South Carolina needs a good SLAPP law

Published June 2022

Eric Robinson
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 has such a law; West Virginia has anti-SLAPP provisions via a court decision). These laws are called “anti-SLAPP” statutes because they prevent “SLAPPs,” an acronym for “strategic lawsuits against public participation.”  These are lawsuits filed to intimidate and stop defendants from discussing matters of public interest, rather then seeking compensation for actual harm.

One such case was filed against a South Carolina defendant in the 1980s. Animal rights activist Shirley McGreal, head of the International Primate Protection League in Summerville, S.C., was sued for $4 million over a letter she wrote to the academic Journal of Medical Primatology protesting a drug company’s plans to use chimpanzees in hepatitis research. Her insurer settled the case against her—over her objection—for $100,000. Later, New York State’s highest court dismissed the case against the remaining defendant, the journal’s editor, on the grounds that the statements were protected by the First Amendment.

Anti-SLAPP statutes create a special motion to dismiss such lawsuits that the defendant shows are meant to stifle discussion of public issues. Claims in such lawsuits often include libel, interference with contractual relations and intentional infliction of emotional distress. In addition to protecting concerned citizens and public interest groups, in many states media organizations have successfully used anti-SLAPP statutes to get libel suits stemming from their coverage of public issues dismissed.

Support for such bills ranges across the political spectrum, from the liberal-leaning American Civil Liberties Union to the conservative-leaning American Legislative Exchange Council. In 2020 the Uniform Law Commission produced a model Public Expression Protection Act that individual states can adopt in order to standardize the law across the U.S. The North Carolina bill is based on this model provision, as are anti-SLAPP laws enacted recently in Kentucky and Washington.

Such a bill should also be seriously considered here in South Carolina. Such a bill was introduced in our legislature in 2003, 2009 and 2018, but never progressed past the House Judiciary Committee. The 2018 effort garnered support after a Mount Pleasant developer subpoenaed opponents of his proposed development, seeking their e-mail and other communications with local officials and with each other. But each of these bills died in the Assembly Judiciary Committee.

South Carolina does have a law imposing sanctions on parties and attorneys for filing frivolous lawsuits, but whether a lawsuit is frivolous is different from whether the true purpose is to stifle speech. Also, such sanctions are rarely imposed.

Protection of speech about public issues is an important First Amendment principle, and we should strengthen that protection by barring frivolous lawsuits that use the threat of litigation—and its inherent expenses and risks—to shut down legitimate discussion of public issues and controversies. South Carolina should bolster its protections for free speech by passing an anti-SLAPP statute in the near future.

Court Rules on Prison Phone Call Tapes

Ruling in a lawsuit brought by disgraced attorney Alex Murdaugh, South Carolina federal judge Cameron McGowan Currie ruled on June 1 that the release of Murdaugh’s recorded jailhouse phone calls under the state’s Freedom of Information Act was not a violation of his privacy. Thus, she denied Murdaugh’s request for a preliminary injunction barring the Richland County Jail from releasing more phone call recordings. The recordings were initially released in response to a FOIA request by the Murdaugh Murders Podcast, after which other media entities requested the materials.

Because Murdaugh was informed of and consented to the taping of his calls, Currie wrote in her decision, the recordings did not violate the federal wiretapping statute.

Judge Currie ruled only on the privacy issue; she did not rule on whether disclosure of the recordings was or was not required by the South Carolina FOIA statute. But a 2011 South Carolina Attorney General’s opinion concluded that “in the opinion of this office, and consistent with the mandate of liberal construction under the FOIA, it could be concluded that inmates’ personal telephone calls should be construed as being subject to disclosure, especially where some form of express or implied consent can be construed to have been in place.”

Following the decision, Richland County released additional recordings, as well as releasing the already-released recordings to other media entities.

Eric P. Robinson focuses on media and internet law as associate 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.

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