Eric Robinson

Past Columns by Eric P. Robinson

Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication, an affiliate of USC’s Joseph F. Rice School of Law and in an “of counsel” position at Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 25 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.

S.C. Supreme Court Opens Police to Scrutiny, as Radio Scrambling Takes it Away

S.C. Supreme Court Opens Police to Scrutiny, as Radio Scrambling Takes it Away Published May 2024 By Eric P. Robinson, USC School of Journalism and Mass Communications On May 8 the South Carolina Supreme Court issued an opinion reversing the conviction of a man arrested merely for annoying the police by asking questions as they issued a traffic ticket, giving the public and the press some protection for scrutinizing police actions. But two weeks earlier, public scrutiny of the police suffered a setback when the Myrtle Beach Police Department began scrambling its radio communications.   Public scrutiny of the police…

Lawsuit Challenges SC Prisoner Gag Rule

Lawsuit Challenges SC Prisoner Gag Rule Published April 2024 By Eric P. Robinson, USC School of Journalism and Mass Communications The Alex Murdaugh trials brought new unprecedented attention to South Carolina’s legal system, including how it deals with the media in high-profile cases. And his incarceration—both during trial and after his convictions—brought new attention to the South Carolina Department of Corrections policy which provides that “Personal contact interviews with any SCDC inmate … or death row inmate by anyone will be prohibited.” According to prison officials, the policy does allow media interviews by mail. In February the ACLU of South…

South Carolina Supreme Court Limits Public Figure Status

South Carolina Supreme Court Limits Public Figure Status Published Feb. 2024 By Eric P. Robinson, USC School of Journalism and Mass Communications Ruling in a non-media case on Jan. 17, the South Carolina Supreme Court held that a former public high school football coach and athletic director was not a public official or public figure for the purposes of a libel claim, and restored the coach’s $200,000 defamation verdict against the Berkeley County School District. After 15 years coaching at Hanahan and Cane Bay high schools, in 2011 Jeffrey L. Cruce became the head football coach and athletic director for…

Back and Forth and Back Again on Employee/Independent Contractor Standards

Back and Forth and Back Again on Employee/Independent Contractor Standards Published January 2024 By Eric P. Robinson, USC School of Journalism and Mass Communications Over the past few years, the National Labor Relations Board has gone back and forth on the definition of and standards for determining whether individuals who work for newspapers and other businesses on a part-time basis are employees or independent contractors.   In the newspaper industry, this has been a particular issue with delivery people, freelance reporters and other part-timers.   In 2005—during the George W. Bush administration—the NLRB determined that newspaper carriers for the St.…

Court Gag Orders Are Serious Business

Court Gag Orders Are Serious Business Published December 2023 By Eric P. Robinson, USC School of Journalism and Mass Communications There has been a lot of court action recently on “gag orders” that courts hearing some of the civil and criminal cases against ex-president Donald Trump have issued that limit what he can say about the cases and the individuals involved. I wrote about such gag orders last August, when South Carolina Circuit Judge Clifton Newman rejected requests for gag orders in the murder prosecution of disgraced attorney Alex Murdaugh. In that case, both the prosecution and the defense had…

Does Using Personal Devices Foil FOIA?

Does Using Personal Devices Foil FOIA? Published November 2023 By Eric P. Robinson, USC School of Journalism and Mass Communications Most of us use our cellphones and other portable devices for a wide variety of purposes each day, such as accessing news and information, checking our e-mail and social media, and even once in a while using them as actual telephones. But use of these devices presents challenges under South Carolina’s Freedom of Information Act when public officials and employees use their personal devices for government business. A 2021 nationwide study found that nearly 25 percent of state and local…

Oops, They Did it Again….

Oops, They Did it Again…. Published October 2023 By Eric P. Robinson, USC School of Journalism and Mass Communications Just over five weeks after all five justices of the South Carolina Supreme Court issued resounding statements on the importance of open court proceedings—even if they differed on the consequences of a circuit court judge’s failure to follow openness requirements—another state circuit judge held a secret hearing at which the defendant pleaded guilty to the murder of two Florence police officers and the attempted murder of five others in 2018.   Despite the notoriety and public interest in the case, there…

Is Your Website Being Used for AI? Can You Stop it?

Is Your Website Being Used for AI? Can You Stop it? Published Sept. 2023 By Eric P. Robinson, USC School of Journalism and Mass Communications Chatbots such as ChatGPT and other artificial intelligence services have exploded online since their introduction just a few months ago. They have become so popular in part because of their uncanny ability to mimic human writing and thought on any topic, even if the information they provide is often wrong. The information—and disinformation—that these services offer are largely the result of comprehensive web surfing and collection of material from online sources. Since most of the…

Could the Kansas Police Newspaper Raid Happen Here?

Could the Kansas Police Newspaper Raid Happen Here? Published August 2023 Editor’s Note: SCPA members are welcome to republish this column online or in print. By Eric P. Robinson, USC School of Journalism and Mass Communications The Aug. 11 police raid of the Marion County Record—in which the police seized the newspaper’s computers and reporter’s and editor’s personal cell phones at both the newspaper’s offices and publisher’s and reporter’s homes—may have started in a small Kansas town, but the case has grown into a major cause for those concerned about the First Amendment and freedom of the press. And many newspaper…

Free Press Doesn’t Mean Freedom to Break the Law, But Police Shouldn’t Arrest Journalists

Free Press Doesn’t Mean Freedom to Break the Law, But Police Shouldn’t Arrest Journalists Published July 2023 By Eric P. Robinson, USC School of Journalism and Mass Communications Last month two reporters for the left-leaning The Asheville Blade in North Carolina were convicted of misdemeanor trespassing for not leaving when the police began clearing out homeless people and protestors from Aston Park on Christmas Eve 2021. This was actually their second conviction on the charge, after they appealed their earlier conviction in a bench trial to a jury. The reporters were each fined $50, and were also—without their knowledge—banned from…

'Running of the interns' highlights why federal courts should be open to cameras​

‘Running of the interns’ highlights why federal courts should be open to cameras Published June 2023 By Eric P. Robinson, USC School of Journalism and Mass Communications “On your mark. Get set. Go!” These words were not actually called out in the federal courtroom where former president Donald Trump was arraigned on June 13. But that courtroom was effectively the starting line in a relay race of high school students hired by CNN to report on the arraignment, after Magistrate Judge Jonathan Goodman denied a media request to allow pooled camera access, or release an audio recording after the proceeding.…

Is “Actual Malice” Really Not an Insurmountable Hurdle?

Is “Actual Malice” Really Not an Insurmountable Hurdle? Published May 2023 By Eric P. Robinson, USC School of Journalism and Mass Communications This column has repeatedly discussed the numerous attacks on the landmark New York Times v. Sullivan precedent and the “actual malice” standard that it added to American libel law. Under the “actual malice” standard, public officials and public figures suing for defamation must prove not only that the defendant(s) made a false statement that harmed the plaintiff’s reputation, but also that the defendant(s) made the statement with “actual malice:” either knowing that the statement was false or with…

Even if Public Records Are Wrong, Accurately Reporting Them is Protected

Even if Public Records Are Wrong, Accurately Reporting Them is Protected Published April 2023 By Eric P. Robinson, USC School of Journalism and Mass Communications The “fair report” privilege is a legal doctrine accepted in South Carolina and most other states which provides that a publisher is not liable for defamation when accurately reporting on a public document, even if the report repeats factual errors in the original document. A recent example of this was the dismissal on March 31 of a libel lawsuit against the Myrtle Beach Herald and one of its reporters over coverage of the unsuccessful campaign…

S.C. media and First Amendment advocates must remain vigilant as new 'hurricane' brews in Florida

S.C. media and First Amendment advocates must remain vigilant as new ‘hurricane’ brews in Florida Published March 2023 By Eric P. Robinson, USC School of Journalism and Mass Communications In 2022, Hurricane Ian barreled across Florida, causing widespread damage and becoming the deadliest hurricane to strike Florida since 1935. Ian then traveled into the Atlantic Ocean before making a second landfall near Georgetown, South Carolina, then dissipated upon moving inland. Now, there’s a new hurricane brewing in Florida, but instead of threatening buildings, infrastructure and lives it is taking aim at well-established and cherished principles of First Amendment law. And,…

Managing and Covering the Murdaugh Case and Other “Trials of the Century”

Managing and Covering the Murdaugh Case and Other “Trials of the Century” Published Feb. 2023 By Eric P. Robinson, USC School of Journalism and Mass Communications Although it is common to call a high-profile trial “the trial of the century,” it is a misnomer; there have been several such trials in recent history. This includes several in the 20th and 21st centuries, such as the Lindbergh baby kidnapping and murder case in the 1930s, the trial of Charles Manson and the Manson “family” for murder in the 1970s, the O.J. Simpson murder trial in the 1990s, and the Casey Anthony…

Suing the Media for Revenge and Profit

Suing the Media for Revenge and Profit Published Jan. 2023 By Eric P. Robinson, USC School of Journalism and Mass Communications In his new bestselling book and slew of media interviews promoting it, Prince Harry rails against the British media and their alleged collaborators within the British Monarchy, blaming them for everything from the death of his mother, Princess Diana, to the rift with his family that persists after he and his wife Meghan Markle “stepped back” as senior members of the British royal family and moved to the United States in 2020. He has also joined a lawsuit in…

Old videotape law presents new legal challenge to news websites

Old videotape law presents new legal challenge to news websites Published December 2022 By Eric P. Robinson, USC School of Journalism and Mass Communications An enterprising law firm in New York City is soliciting for plaintiffs to sue various newspapers whose websites allegedly include a “pixel” from Meta Platforms Inc.—the parent of Facebook—that allows Meta to track users’ activity. Ironically, one of the prominent places that the law firm is advertising is on Facebook. The ads assert that “Your local newspaper is sharing your personal information,” with some specifying that the information being shared includes the videos that you have…

Does the reporters’ shield survive death? And another way to foil FOIA

Does the reporters’ shield survive death? And another way to foil FOIA Published November 2022 By Eric P. Robinson, USC School of Journalism and Mass Communications The murder of Las Vegas Review-Journal investigative reporter Jeff German—for which a former local official who lost his reelection bid and was then removed from office after German exposed improprieties in his office has been charged—is a troubling reminder that journalists’ jobs can be dangerous, especially when revealing things that some people don’t want known. Thankfully—unlike some places in the world—killing journalists for their work is relatively rare in the United States. Prior to…

Libel without a name?

Libel without a name? Published October 2022 By Eric P. Robinson, USC School of Journalism and Mass Communications A parent’s apparently false allegation at a public November school board meeting that an administrator in Richland County School District Two had strip searched his daughter led to a defamation lawsuit against the parent, and against The Voice of Blythewood and Fairfield County for reporting on the allegation. An investigation concluded that the strip search had not occurred. The defamation claims were made against the newspaper even though The Voice never named the school administrator accused of conducting the strip search in…

The Royals and the Press

The Royals and the Press Published September 2022 By Eric P. Robinson, USC School of Journalism and Mass Communications The death of Britain’s Queen Elizabeth II after a reign of more than 70 years has prompted a cascade of retrospectives and reminiscences of the major events and changes of the past quarter-century. These have included the break-up of the British Empire, the reshaping of the world’s politics and economy and the explosion of new technology. There has also been a revolution in the media and the press, including new forms of communication that allow a wider conversation of topics both…

Trial Gag Orders Are No Laughing Matter

Trial gag orders are no laughing matter Published August 2022 By Eric P. Robinson, USC School of Journalism and Mass Communications South Carolina Circuit Judge Clifton Newman was praised (here and here, for example) in early August when he rejected requests for gag orders from both the prosecution and the defense in the pending double-homicide murder trial against disbarred attorney Alex Murdaugh for allegedly killing his wife and son in the midst of a maelstrom of other charges involving fraud, theft and other illegal and unethical behavior. The parties had requested that Newman seal—remove public access to—all the evidence in…

Abortion Ruling Could Impact Media Law

Abortion Ruling Could Impact Media Law Published July 2022 By Eric P. Robinson, USC School of Journalism and Mass Communications We have already seen some of the impact of the U.S. Supreme Court’s recent blockbuster decision in Dobbs v. Jackson Women’s Health Organization, which reversed its 49-year-old Roe v. Wade precedent and left it to the states to individually determine the availability of abortions. The debate over abortion is for another forum. But it seems likely that the decision will also bring new legal questions for the media. These questions will arise from the statutes that individual states pass to…

South Carolina needs a good SLAPP law

South Carolina needs a good SLAPP law Published June 2022 By Eric P. Robinson, USC School of Journalism and Mass Communications In late May, the Judiciary Committee of the North Carolina State Assembly approved a legislative bill, which would allow for early dismissal of lawsuits making libel or other claims that are meant to shut down discussion of important public issues. The bill is now due to be considered by the Assembly as a whole. If North Carolina adopts the bill into law, it will become the 34th state to pass a so-called “Anti-SLAPP” statute. (The District of Columbia also…

S.C. police agencies should follow FOIA law

S.C. police agencies should follow FOIA law Published May 2022 By Eric P. Robinson, USC School of Journalism and Mass Communications A “possibly gang-related” shooting in a Greenville middle school. Records from the 2009 disappearance of a high school student in Myrtle Beach. And the notorious murder of Maggie and Paul Murdaugh at their family estate in Colleton County. In the Greenville and Murdaugh cases, police agencies released only brief, one-page reports to the press and public that said little beyond vaguely describing the incident that occurred, as well as when and where it happened. In the Myrtle Beach case,…

Lawsuit Settlement Will Loosen Ethics Confidentiality

Lawsuit Settlement Will Loosen Ethics Confidentiality Published April 2022 By Eric P. Robinson, USC School of Journalism and Mass Communications Just as the media have investigated and disclosed numerous examples of apparent conflicts of interest and corruption in state and local government here in South Carolina, a pending settlement of a federal lawsuit will allow whistleblowers who report ethics violations to publicly disclose their allegations without the threat of being prosecuted for doing so. The lawsuit was filed on Aug. 25, 2021 by Columbia attorney Chris Kenney on behalf of a client who complained to the State Ethics Commission about…

Publication of Murdaugh Phone Call Recordings Raises Legal Issues

Publication of Murdaugh Phone Call Recordings Raises Legal Issues Published March 2022 By Eric P. Robinson, USC School of Journalism and Mass Communications South Carolina’s Freedom of Information Act provides that state agencies must provide public records, within certain parameters and exceptions, to the public upon request. It also defines “public record” as including “all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials regardless of physical form or characteristics prepared, owned, used, in the possession of, or retained by a public body.” So when the Murdaugh Murders Podcast made a FOIA request for recorded phone conversations of…

$50 Million Verdict in South Carolina Libel Case Is an Outlier, Not an Omen 

$50 Million Verdict in South Carolina Libel Case Is an Outlier, Not an Omen Published Feb. 2021 By Eric P. Robinson, USC School of Journalism and Mass Communications There is a saying among lawyers that “bad facts make bad law,” meaning that cases in which the litigants (and/or perhaps lawyers) acted strangely or improperly often lead to problematic results, which give a false impression of the law and may become troublesome precedents for future cases.   The libel suit by Bluffton mayor Lisa Sulka against government critic and gadfly Skip Hoagland, which ended with a $50 million jury verdict—$40 million in…

2021 Was a Record Year in U.S. Press Freedom, But Not in a Good Way

2021 was another record year in U.S. Press Freedom, but not in a good way Published Jan. 2022 By Eric P. Robinson, USC School of Journalism and Mass Communications The language of the First Amendment regarding freedom of speech and the press seems pretty absolute: “Congress shall make no law … abridging the freedom of speech, or of the press.” But the reality has always been more complicated. In the early years of the republic—only a decade after the adoption of the First Amendment—a federal law allowed prosecutions for criticism of President John Adams and his government. During the Civil…

Antitrust Clouds—and Lawsuits—Gather Against Big Tech

Antitrust Clouds—and Lawsuits—Gather Against Big Tech Published Dec. 2021 By Eric P. Robinson, USC School of Journalism and Mass Communications What started as a West Virginia publisher’s quixotic quest has become a major lawsuit, brought on behalf of more than 200 individual newspapers, to challenge the uncompensated use of newspapers’ stories online by Google in its search results and by Google and Facebook in their news feeds; a lawsuit that could change the online—and financial—landscape for newspapers and other news organizations nationwide. At the same time, Google, Facebook and other tech giants are facing broader challenges to their dominant role…

Holy Cow!: Troubling Appeals Court Ruling Holds that Tweet Link May Be Libel, Though the Linked Article Is Not

Holy Cow!: Troubling Appeals Court Ruling Holds that Tweet Link May Be Libel, Though the Linked Article Is Not Published Oct. 2021 By Eric P. Robinson, USC School of Journalism and Mass Communications You may have noticed that California Congressman Devin Nunes is in the news. If you’re interested in a strange tale about Nunes, a tweet, the complexities of libel law and a fake cow, I’ve got a story for you. Congressman Nunes is a particularly outspoken supporter of former President Trump and—like the former president—also a prolific defamation plaintiff. One of the more prominent suits that Nunes filed…