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

Published Feb. 2023

Eric Robinson
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 trial in the 2010s.

In South Carolina alone, in recent decades we have had “blockbuster” trials in the Susan Smith murder case (1995), the guilt and sentencing trials of Dylan Roof for the Mother Emanuel church shooting (2016-17), and now the Alex Murdaugh case.

The presumption in U.S. courts is that proceedings will be open to the press and the public, a principle that is steeply rooted in the history of our court system and has been reinforced by a series of U.S. Supreme Court rulings. Access to courts by still and video cameras has a more checkered history; in South Carolina, cameras are permitted only with advance permission.

But the intense media and public interest in a “blockbuster” case like the Murdaugh trial present unique challenges, since the public’s right of access, protected by the free speech and free provisions of the First Amendment, can sometimes imperil a criminal defendant’s right to a fair and impartial trial, which is protected by the Sixth Amendment. Intense interest from the public and press in physically attending a trial also presents practical issues in allocating seats and ensuring decorum in and outside the courtroom.

Judge Clifton Newman and Colleton County have done a good job accommodating the trial and the press, thanks in large part to the efforts of SCPA’s own Jay Bender, who Newman appointed as a liaison between the court and the media. Newman’s media coverage order set up an orderly system of pool video and still photography coverage of the court proceedings, and of reserved seats for media that have consistently covered the case, with additional seats available to other media outlets by a daily lottery.

Jay Bender’s reminder to reporters that cell phones cannot be used in court. (Photo Courtesy of Jay Bender)

Some reporters have apparently griped that use of cell phones is not allowed in the courtroom—they must be turned off or set to silent—which is a common rule throughout South Carolina. Jay helpfully distributed reporters’ notebooks to reinforce the message.

But reporters are free to use their cell phones to tweet or text about the trial in the overflow media center set up at the Walterboro Wildlife Center across the street from the courthouse. The media center has live video and audio feeds of the trial, as well as workspace for journalists and electrical outlets, cell and wi-fi access, and rest rooms. The city also invited food trucks and set up rocking chairs in the Wildlife Center’s parking lot.

There have been a few issues with weddings and other events at the Center while the trial’s been going on, with the media sometimes having to share space with snake exhibits.

But overall the system for media coverage of the Murdaugh case seems to be working well. And it shows that it is possible for the media to comprehensively cover a “trial of the century” without interfering with the progress and decorum of the courtroom proceedings.

A Win Over Court Case “Scraping”: In addition to the openness of court proceedings, open courts also have been held to include access to court documents in legal cases. In South Carolina, the court system makes case documents publicly available through its website.

 But the terms of service for the site—shown once a user selects a particular county’s records to search—bars use of a “data scraper,” software that collects information through automated, repetitive querying of the site’s search function.

The NAACP, the National Association for the Advancement of Colored People, was using such a “scraping” program to collect information from the South Carolina courts website about pending housing eviction cases, in order to offer representation to the individuals being evicted.

The NAACP sued over the “scraping” prohibition in federal court, and the state—represented by the state Attorney General’s office—moved to get the case dismissed. But U.S. District Judge Mary Geiger Lewis denied the motion to dismiss, ruling that there were legitimate questions that the case raised as to whether the prohibition on “scraping” was a necessary limitation on access to the case information.  So the case will continue.

An Update: In last month’s column on lawsuits against the media aimed at forcing the defendant out of business, or spending a crippling amount in legal fees, one example I gave was Barstool Sports founder Dave Portnoy’s lawsuit against Insider. A federal court in Massachusetts dismissed Portnoy’s lawsuit in November. Now, Portnoy has dropped his appeal of the dismissal.

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 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.

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