Eric Robinson

Past Columns by Eric P. Robinson

Eric P. Robinson focuses on media and internet law as assistant professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 20 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.

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…

SOS for South Carolina’s FOIA

SOS for South Carolina’s FOIA Published Sept. 2021 By Eric P. Robinson, USC School of Journalism and Mass Communications In the past several weeks and months we have seen numerous examples of local and state government boards and agencies refusing to comply with South Carolina’s Freedom of Information Act. These include school districts not disclosing numbers of COVID cases, law enforcement’s initial refusal to disclose more than scant information about the extraordinary Murdaugh case, and Chester’s human resources director, Coastal Carolina’s women’s lacrosse coach, the director of the S.C. Department of Disabilities and Special Needs and Lexington-Richland District 5’s superintendent…

Embedded Graphics May Lead to Copyright Troubles

Embedded Graphics May Lead to Copyright Troubles Published Aug. 2021 By Eric P. Robinson, USC School of Journalism and Mass Communications Hopefully most reporters, layout artists, and web designers at media companies understand that they can’t simply copy a photo or other illustration they find online and use it in their print, broadcast or online news report, without regard for any copyright issues. (Then again, maybe they don’t, since that scenario is a constant source of litigation.) Until a recent court decision, a way of avoiding the copyright problems online, instead of downloading an image and then uploading it to…

Media Law Then and Now: In Recognition of Bill Rogers’ Retirement

Media Law Then and Now: In Recognition of Bill Rogers’ Retirement Published July 2021 By Eric P. Robinson, USC School of Journalism and Mass Communications Each month in this column, I attempt to highlight a recent development in media law, either in South Carolina or nationally, that may have an impact on the news organizations that are members of the Press Association. But for this column, in honor of the retirement of Bill Rogers after 33 years as executive director of the Association, I thought it would be enlightening to look at media law as it existed in South Carolina…

Government Accessing Electronic Communications to Identify Sources: It Can Happen to You

Government Accessing Electronic Communications to Identify Sources: It Can Happen to You Published June 2021 By Eric P. Robinson, USC School of Journalism and Mass Communications  The revelations that the U.S. Justice Department secretly sought information on reporters’ e-mail, phone and other communications has sent shock waves through media and political circles in Washington, D.C. The Justice Department sought the information directly from communication providers in order to identify the sources of various leaks of government information. It also obtained gag orders barring editors and lawyers at the reporters’ news organizations and the communications providers from informing the reporters that…

Study Shows Increasing U.S. Supreme Court Skepticism of the Press

Study Shows Increasing U.S. Supreme Court Skepticism of the Press Published May 2021 By Eric P. Robinson, USC School of Journalism and Mass Communications Despite avowed threats to media freedom in recent years, the U.S. Supreme Court and lower courts have showed general fealty to the landmark New York Times v. Sullivan decision by the U.S. Supreme Court that set the modern standard for defamation law and understanding of the First Amendment. In short, First Amendment law has not substantially changed in the last few years, despite the expressed desires of some. But a new study scheduled to be published…

Chauvin Trial Shows Importance of Court Access

Chauvin Trial Shows Importance of Court Access Published April 2021 By Eric P. Robinson, USC School of Journalism and Mass Communications There has been a lot of attention focused on the ongoing trial of former police officer Derek Chauvin in the death of George Floyd. Occurring in the context of often-heated discussions of police treatment of minorities, the trial has been shown live on TV and online, and most of the coverage by other media has relied on these live feeds. This shows that a trial can be covered by cameras without turning into a sensation. And it provides a…

“The Right to Be Forgotten” Washes Ashore in the U.S.

“The Right to Be Forgotten” Washes Ashore in the U.S. Published March 2021 By Eric P. Robinson, USC School of Journalism and Mass Communications We all make mistakes, take foolish actions, and say stupid things. Most of the time, these errors in judgment are ephemeral: we deal with the consequences—or not—and we move on, hopefully a bit more prudent and wiser. But in the age of the internet, past indiscretions that once would be forgotten now never really go away. But while we may have little sympathy for public officials and public figures whose failings are revealed after they knowingly…

New Administration Means Changes on Press Issues

New Administration Means Changes on Press Issues Published Feb. 2021 By Eric P. Robinson, USC School of Journalism and Mass Communications Any change in presidential administrations, especially when it involves a change of party affiliation, means changes in a lot of federal government personnel, stances on issues and policy changes. This is especially true as the Biden Administration takes over from Donald Trump. And many of the changes will likely be in the new administration’s policies and attitudes regarding the press. The Biden White House has already re-instituted the daily briefing by the White House press secretary, a ritual that…

Free Speech Issues Abound After Capitol Hill Riot

Free Speech Issues Abound After Capitol Hill Riot Published January 2021 By Eric P. Robinson, USC School of Journalism and Mass Communications The riot at the Capitol building on Jan. 6 and its aftermath have raised several serious concerns about American politics and society. These events also raise several questions and dilemmas regarding First Amendment law and freedom of speech generally. Social Media Bans: In the aftermath of the events in Washington, various social media platforms at first suspended and then terminated President Trump’s accounts. They also terminated accounts of several groups and individuals who participated, encouraged and/or celebrated the…

If Tech Hurts Newspapers, Can Tech Save Them?

If Tech Hurts Newspapers, Can Tech Save Them? Published December 2020 By Eric P. Robinson, USC School of Journalism and Mass Communications One of the many developments that have hurt newspapers is tech companies and their websites that collect and display headlines and story ledes from websites of newspapers and other news sources. The tech companies have argued that they drive traffic to the news organizations’ web sites from users who click on the headlines and ledes on their sites, which lead the users to the news organizations sites to read the full stories: users that the news sites can…

Music Awards Dispute Shows Dilemma of Photo Coverage of Concerts and Other Events

Music Awards Dispute Shows Dilemma of Photo Coverage of Concerts and Other Events Published November 2020 By Eric P. Robinson, USC School of Journalism and Mass Communications In-mid November, the Associated Press declined to cover the Country Music Association Awards after the organizers attempted to place severe limits on the photos that the wire service could take and distribute of the event. An AP photographer was not allowed into the awards event because of coronavirus limitations. So the CMA suggested that the AP license photos taken by CMA photographers. But the AP refused, since licensing normally involves a fee (which…

Lessons Not Learned

Lessons Not Learned Published October 2020 By Eric P. Robinson, USC School of Journalism and Mass Communications Within the past few weeks, there have been a number of examples of government bodies and officials ignoring the open records and open meeting requirements of South Carolina’s Freedom of Information Act, and in some of these cases seeing consequences as a result. Unfortunately, these latest incidents are part of a pattern of misinterpreting or ignoring the requirements of the law that has continued even after changes to clarify and reinforce FOIA were passed in 2015. More amendments in 2017 expanded the law…

Protect Sources by Not Showing Them?

Protect Sources by Not Showing Them? Published Sept. 2020 By Eric P. Robinson, USC School of Journalism and Mass Communications The past several months of protests in reaction to police shootings have raised several First Amendment issues, including police and protestors physically attacking journalists, police detaining and arresting reporters, and law enforcement agencies seeking media materials such as unpublished photos and unaired television footage in order to identify miscreants. The latter has led to a current dispute in the Washington state Supreme Court, in which the Seattle Times and several TV stations are refusing to provide their unused photos and…

Seattle Subpoena Fight Is First Amendment Dilemma

Seattle Subpoena Fight Is First Amendment Dilemma Published August 2020 By Eric P. Robinson, USC School of Journalism and Mass Communications The protests and riots in cities across the country after the police killing of George Floyd in Minneapolis raised many questions about race, justice and free speech. But developments in Seattle in the wake of those events raise serious issues of press freedom and responsibility that have simmered in the law for decades: Do news organizations have an obligation to help authorities identify or prosecute miscreants, and do media law and/or journalism ethics require the media to cooperate with…

Trump Hits the Wall of Courts' Prior Restraint Precedents

Trump Hits the Wall of Courts’ Prior Restraint Precedents Published July 13, 2020 By Eric P. Robinson, USC School of Journalism and Mass Communications President Trump’s campaign and family have both tried in recent weeks—and earlier in his presidency—to stop publication of books and other things that may be uncomfortable or embarrassing to him. And each time such efforts have failed, with the courts rejecting these attempts based on almost 90 years of legal precedent that allows such prior restraints only under the direst circumstances. The most recent efforts sought to stop publication of niece Mary Trump’s Too Much and…

Protests, Free Speech and Press Freedom

Protests, Free Speech and Press Freedom Published June 16, 2020 By Eric P. Robinson, USC School of Journalism and Mass Communications The past few weeks have been tumultuous and tragic, with an ongoing pandemic, large (peaceful) protests against police misconduct and riots in some places that involved destruction of property and looting. Of course, this is all troubling and traumatic. But from a First Amendment perspective, the direst events were the numerous instances of police, law enforcement officers and (in Washington, D.C.) national guard soldiers (in Washington, D.C.) using aggressive tactics and violence against protesters who were peacefully—although sometimes angrily…

Patient Privacy in the Time of Coronavirus: The Limits of HIPAA

Patient Privacy in the Time of Coronavirus: The Limits of HIPAA Published May 19, 2020 By Eric P. Robinson, USC School of Journalism and Mass Communications Covid-19 has of course dominated the media for more than two months, with exhaustive coverage of the pandemic, the shutdown of much ordinary activities, the economic impact, and much more. But an aspect of the pandemic that has not received much first-hand reporting is the situation in some hospitals, particularly in major cities, that have been dealing with a deluge of patients as they also suffer a lack of doctors, nurses and other personnel;…

Is There a Legal Remedy for Coronavirus “Fake News”?

By Eric P. Robinson, USC School of Journalism and Mass Communications President Trump, various federal officials and several governors have been criticized for initially failing to acknowledge the threat posed by the coronavirus and by doing so leading some to a false sense of complacency and that the threat was not real. In addition, there has also been criticism of media outlets and personalities that also downplayed the situation. One reaction to this is an “Open Letter to the Murdochs,” signed by a collection of journalists and journalism professors, asking the owners of the Fox News Channel to stop conveying…

If this Headline Catches Your Attention, Can it be Libel?

If this Headline Catches Your Attention, Can it be Libel? Published March 2020 By Eric P. Robinson, USC School of Journalism and Mass Communications A news headline – whether on the printed page or online – is meant to draw attention to the article that follows. It is a short, punchy phrase that is meant to grab the reader and make them pay attention. But in the modern era, all a casual web reader may see of a news story is the headline above it: if the headline doesn’t entice them to click through to the article online, the headline…

Sealed Mulvaney case shows rules for sealing court documents

Sealed Mulvaney case shows rules for sealing court documents Published February 2020 By Eric P. Robinson, USC School of Journalism and Mass Communications On the surface, a legal case with an appeal currently pending before the South Carolina Court of Appeals looks like a technical business case resulting from a real estate deal. But as originally reported by the Washington Post, the case involves White House acting chief of staff John Michael (“Mick”) Mulvaney. This is not obvious from the name of the case, Indian Land Ventures, LLC v. Lancaster Collins Road, LLC. But what makes it even harder to…

In Test of Revised FOIA, Judge Rules Against Last-Minute Agenda Additions

In test of revised FOIA, judge rules against last-minute agenda additions Published Jan. 2020 By Eric P. Robinson, USC School of Journalism and Mass Communications A recent common pleas court decision appears to be the first application of recent changes to South Carolina’s Freedom of Information Law, and requirements for public notice of agenda items at public meetings. And since an appeal is planned, it may establish an important precedent on this issue. Changes to South Carolina’s Freedom of Information Act in 2015 added a requirement that public bodies subject to the law publicly release an agenda at least 24 hours…

Tales of FOIA and Secrets, Then and Now

Tales of FOIA and Secrets, Then and Now Published December 2019 By Eric P. Robinson, USC School of Journalism and Mass Communications The Pentagon Papers case, in which the U.S. Supreme Court rejected the Nixon administration’s attempt to bar publication of a detailed history of American involvement in southeast Asia prior to and during the Vietnam War, is rightly celebrated as a landmark decision in favor of government openness and accountability. But the case also shows that tenacity and persistence is also required: by the journalists who analyzed and summarized the information in the documents, by the editors who resisted…