South Carolina Appeals Court Ruling Outlines Libel Law Principles
Published Nov. 2019
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 and editors here.
The libel lawsuit stemmed from coverage of a pre-game ritual in which, according to Charleston County School District Superintendent Nancy McGinley at an Oct. 21, 2014 news conference, members of the Academic Magnet High School (AMHS) football team celebrated their victories in several games by “gather[ing] in a circle and smash[ing] [a] watermelon while others either were standing in a group or locking arms and making chanting sounds that were described as ‘Ooo ooo ooo.’” The watermelon was given the moniker “Junior,” and then “Bonds Wilson” numbers one, two, three, four or five at subsequent games. Bonds Wilson was the name of the segregated black-only school that formerly occupied the site of AMHS, a name that was retained for the campus that AMHS now shares with another school. A face was drawn on the watermelon, which McGinley said “could be considered a caricature.”
At the press conference McGinley said that the ritual had been reported to district officials by a member of the school board, who was concerned about the “racial stereotypes related to this type of ritual.”
McGinley also announced at the news conference that AMHS football coach Eugene “Bud” Walpole would be removed from his positions coaching the football and girls’ basketball teams, but not from his teaching position. Walpole was fired by the board a few days later, but his position was restored after community opposition. McGinley eventually resigned.
City Paper published several items on the controversy, including two columns by editor Chris Haire: one after the press conference, and another after McGinley’s resignation.
Six members of the AMHS football team and Coach Walpole filed separate defamation lawsuits against several defendants, including then-City Paper owner Jones Street Publishers. The lawsuits, which were combined in 2015, cited language in the columns stating that the pre-game ritual “would be perceived as racist by any sensible outside observer,” that it was condoned by Coach Walpole, and that someone should have told the players that that they were “racist douchebags.” These statements, the lawsuits alleged, were made without City Paper or Haire researching the circumstances of the ritual or the intentions of the participants and coach.
City Paper sought summary judgment, which is granted when the record of a case shows that there is no actual question of fact for a jury to decide and the law requires a particular result based on the established facts. City Paper’s argument was that the columns used information from McGinley’s press conference, and that Haire’s conclusions were statements of opinion that could not be the basis of a libel suit. Former Supreme Court Justice Jean Toal, acting as a judge of the Circuit Court in Charleston County, granted the newspaper’s motion in November 2016. The plaintiffs appealed that decision of the South Carolina Court of Appeals, which heard arguments on April 1, 2019. That court’s ruling, issued on Nov. 6, affirmed the trial court’s grant of summary judgement in favor of City Paper.
First, the appellate court held that the information in the columns had come from the statements made by Superintendent McGinley at the press conference. Because the columns accurately reported her statements, the court held, they are immune from a legal claim under the “fair report” privilege. This privilege—recognized in all but three states, and adopted in South Carolina as early as 1936—protects “fair and accurate” reports of government proceedings and events, such as McGinley’s press conference. This protection continues even if it turns out that a statement at the government event is false and defamatory. If such a statement comes from a generally reliable source, anyone repeating it is not legally required to independently verify whether it is true or not.
Second, the appeals court held that the statements in the columns that the ritual, the players and the coach were racist regarded matters of public concern. Thus the court applied the United States Supreme Court’s admonition from a 1990 case that “statement[s] on matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations … where a media defendant is involved.”
Applying this standard, the South Carolina appeals court then examined whether the columns’ statements were expressions of opinion or fact. Statements of opinion cannot be the basis of a libel suit, since by definition in order for a statement to be libelous it must be false. In other words, only a false factual statement can be libelous. Since opinions cannot be proven to be either true or false, any libel claims based on statements of opinion must be dismissed.
The appeals court concluded that the statements in Haire’s columns calling the ritual “racist” and calling the players “racist douchebags” could not be defamatory, since they were statements of opinion, not verifiable facts. The court added that these statements were “rhetorical hyperbole,” not meant to be taken as literal statements of fact.
Third, the appeals court found that the plaintiffs—Coach Walpole and the players—had not shown any actual injury to their reputations from the statements in the City Paper columns. They did not identify any specific individuals who viewed the plaintiffs differently after reading the City Paper columns. They also did not provide evidence of any lost opportunities as a result of the articles, such as lost friends, jobs, or college admissions. Some of the plaintiffs said that they had been questioned about the ritual, but could not identify those who had questioned them and whether they had seen the City Paper publications.
Fourth, the appellate court affirmed Judge Toal’s determination that the individual members of the football team were not libeled by statements made about the team as a whole. While individual members of very small groups may maintain a libel suit when false, defamatory statements are made about the group as a whole, the appeals court said that “a football team would not constitute a small group,” and is too large to invoke this principle. Quoting a 1940 ruling by the South Carolina Supreme Court, the appellate court observed that “where defamatory statements are made against an aggregate body of persons, an individual member not specially imputed or designated cannot maintain an action.”
Finally, the appeals court also affirmed the trial court’s finding that Coach Walpole was a public official, and as a result was required to show that City Paper made its statements with “actual malice.” Thus he had to show that the newspaper either knew the statement was not true or made the statement with “reckless disregard” for whether it was true or not, meaning that there was a “high degree of awareness of … probable falsity.” Public officials, the appeals court observed, are government employees whose “position must be one [that] would invite public scrutiny and discussion of the person holding it,” apart from the statements at issue. Applying this standard, the court said, various public school officials—including coaches such as Walpole—have been held to be public officials in prior cases, and Coach Walpole was no different.
As a public official, under U.S. Supreme Court precedent Walpole was required to show “actual malice” by clear and convincing evidence. And, the appeals court ruled, he had not done so.
The appeals court’s decision ends the claims against City Paper without a trial. But Wapole or one or more of the football players in the lawsuit seeking may seek rehearing by the Court of Appeals, and if that is denied may seek review by the South Carolina Supreme Court.
Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication 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.