Eric Robinson

Past Columns by Eric P. Robinson

Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communications, and is Of Counsel to Fenno Law in Charleston / Mount Pleasant, although any opinions are his own. He has worked in media law for more than 18 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.

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journalists, police detaining and arresting reporters, and law enforcement agencies seeking media materials such as unpublished photos and unaired television footage in order to identify miscreants.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…

South Carolina Appeals Court Ruling Outlines Libel Law Principles

South Carolina Appeals Court Ruling Outlines Libel Law Principles Published Nov. 2019 By Eric P. Robinson, USC School of Journalism and Mass Communications On Nov. 6, a three-judge panel of the South Carolina Court of Appeals affirmed the grant of summary judgment to the former owner of the Charleston City Paper in a defamation lawsuit against the newspaper over two editorial columns about a football team’s pre-game ritual that some considered racist. While the appellate court’s decision is not too surprising, it does illuminate several well-established principles of libel law in South Carolina that should be known by writers, journalists…

October Media Law Updates

Media Law Updates: ADA Suit Against S.C. Newspaper; FCC Net Neutrality Repeal Upheld, While Repeal of Cross-Ownership Ban Vacated Published Oct. 16, 2019 By Eric P. Robinson, USC School of Journalism and Mass Communications ADA Lawsuit Over South Carolina Newspaper’s Web Site: In August I wrote about the question of whether the requirements that businesses accommodate disabilities apply to websites, including the sites of newspapers and other news organizations. At the time, we knew that such a lawsuit had been filed against a chain of weekly newspapers in Oregon. Now, a similar lawsuit has been threatened against a small daily…

Are Newspaper Carriers Employees or Independent Contractors?

Are Newspaper Carriers Employees or Independent Contractors? Published Sept. 18, 2018 By Eric P. Robinson, USC School of Journalism and Mass Communications While many newspapers’ circulations—in the form of physical papers delivered to homes and offices—have declined in recent years, the carriers who deliver the physical newspapers continue to be an integral part of the newspapers’ operations. But do these delivery people need to be employees of the newspaper? Or can the newspaper classify them as independent contractors, which relieves the paper of paying employment taxes, and of providing the workers with benefits such as overtime pay, or unemployment, disability…

Does your website violate the law?

Does your website violate the law? Published August 2019 By Eric P. Robinson, USC School of Journalism and Mass Communications When signing the Americans with Disability Act in late July 1990, President George H.W. Bush said that under the law “every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom.”   President Bush’s reference to doors was likely deliberate, since one of the primary goals of the legislation was to remove physical barriers that prevented disabled individuals from gaining access to facilities, including businesses, in their…

Words and Deeds

Words and Deeds Published July 2019 By Eric P. Robinson, USC School of Journalism and Mass Communications In 2017, when signing a law to strengthen the state’s Freedom of Information Act, Governor McMaster said that “[g]overnment has to be accountable to the people it serves, and its citizens should have unimpeded access to public information that speaks to whether or not their best interests are being served.” And earlier this year, when releasing an audit of state agencies’ compliance with the law—the results were mixed—and issuing an executive order for agencies to better meet FOIA requirements, McMaster said, “We want…

Can anti-trust law save newspapers?

By Eric P. Robinson, USC School of Journalism and Mass Communications | Federal and state anti-trust laws date from the late 19th and early 20th centuries, way before the emergence of the modern internet-fueled economy. But increasingly these old laws and concepts are being seen as the means of limiting the influence of the dominant internet platforms, and perhaps of helping the print media, particularly newspapers, remain viable.

A newsrack, a judge, and the First Amendment

By Eric P. Robinson, USC School of Journalism and Mass Communications | Last week, during jury selection for trial of Timothy Jones, who is accused of killing his five children in Lexington County and dumping their bodies in Alabama in 2014, presiding judge Eugene Griffith Jr. ordered the removal of a Lexington County Chronicle dispensing machine in front of the courthouse. The judge’s order raises the question of how far courts may go to ensure that a criminal defendant gets a fair trial.

Cut out the attacks on the press

By Eric P. Robinson, USC School of Journalism and Mass Communications | There was widespread condemnation when Hope Carpenter returned on March 31 to the Greenville church that she and her husband Ron founded in 1991 and expressed her support for the church’s new leaders, John and Aventer Gray.

Does South Carolina’s FOIA end at the border?

By Eric P. Robinson, USC School of Journalism and Mass Communications | Common Pleas Judge Robert E. Hood’s ruling that the House Republican Caucus is not subject to South Carolina’s Freedom of Information Act is a disturbing result. The caucus uses government resources without charge, and much of the state legislature’s policies are formulated in the caucus meetings. It is especially troubling because of the corruption that has been found in the legislature in recent years, since such impropriety can flourish in secrecy.

Is New York Times v. Sullivan in danger?

By Eric P. Robinson, USC School of Journalism and Mass Communications | The basis of modern American media law is the 1964 ruling in New York Times v. Sullivan, in which a unanimous U.S. Supreme Court recognized that the First Amendment required that limitations be placed on defamation law. But the Sullivan decision has been the subject of criticism in some circles ever since it was decided, the latest being a concurring opinion by Justice Clarence Thomas.

The government doesn’t dictate media here

By Eric P. Robinson, USC School of Journalism and Mass Communications | On Jan. 6, 60 Minutes aired an interview with Egyptian President Abdel Fattah el-Sisi with two notable revelations: el-Sisi denied that his country has political prisoners, despite documentation; and he confirmed prior reports that Egyptian and Israeli forces have coordinated in airstrikes against an Islamic insurgency in the northern Sinai.

Can public officials shut out journalists? It depends...

By Eric P. Robinson, USC School of Journalism and Mass Communications | It already seems like a long time ago, but it’s only been a month since the Trump administration’s long-simmering clash with CNN reached a new level, with the cancellation of reporter Jim Acosta’s “hard pass” that gave him access to the White House. The pass was restored temporarily on the orders of a federal judge when CNN sued over the action, and then permanently when the White House press office deescalated the confrontation.

Freelancing FOIA

By Eric P. Robinson, USC School of Journalism and Mass Communications | South Carolina’s Freedom of Information law provides that “[a]ll materials, regardless of form, gathered by a public body during a search to fill an employment position, except that materials relating to not fewer than the final three applicants under consideration for a position must be made available for public inspection and copying.” As explained in the S.C. Press Association’s Public Official’s Guide to Compliance with the S.C. Freedom of Information Act, this means that public bodies must release “all material relating to no fewer than three final applicants…

First Amendment protects free distribution pubs too; new Horry litter ordinance could bring test

By Eric P. Robinson, USC School of Journalism and Mass Communications | As newspapers have faced economic challenges, many have developed slimmed down versions that feature a few stories and both display and insert advertising. These new publications are offered for free, and are often delivered to individual homes without the homeowner requesting such delivery.

Frustrating FOIA

By Eric P. Robinson, USC School of Journalism and Mass Communications | Through South Carolina’s Freedom of Information Act, diligent journalists and others have discovered much revealing information about the actions of state and local government in our state. Things recently revealed through FOIA requests have included Anderson County’s failure to distribute donated bleeding-control trauma kits to schools until two years after the 2016 Townville shooting; questionable spending by Fifth Circuit Solicitor Dan Johnson;documents relating to the V.C. Summer nuclear plant debacle; enforcement of Myrtle Beach’s disorderly conduct offense; and a $225,000 guarantee that Coastal Carolina will pay Norfolk State…

Rhetoric aside, libel and media law haven't changed that much

By Eric P. Robinson, USC School of Journalism and Mass Communications | In an initiative fostered by the Boston Globe, newspapers and other news organizations are publishing editorials this week—primarily this Thursday, Aug. 16—denouncing President Trump’s frequent attacks on the news media, including his assertion that the media are “the enemy of the people.”

When perceived libel gets deadly

By Eric P. Robinson, USC School of Journalism and Mass Communications | There is obviously no justification for the shootings at the Capital Gazette in Annapolis, Md., which killed five of the newspaper’s staff and injured two. But in the aftermath of the incident many have looked for causes, including President Trump’s anti-media diatribes and the troubled history of the alleged shooter, Jarrod Ramos.

Source secrecy in the modern era

By Eric P. Robinson, USC School of Journalism and Mass Communications | The Justice Department’s accessing of reporter Ali Watkins’s email and phone records as part of a leak investigation is just one of several recent incidents in which the federal government has obtained the digital and other information about journalists’ activities in order to identify confidential sources.

The (court)room where it happens

By Eric P. Robinson, USC School of Journalism and Mass Communications | In the second act of the hit Broadway musical “Hamilton,” the Aaron Burr character expresses his jealousy at being excluded from –and his desire to get into – the meetings that his rival Alexander Hamilton participates in where major decisions are made to plot the course of the new United States. “I / Wanna be in / The room where it happens,” Burr sings.