The holes in South Carolina’s shield law

My July column for the South Carolina Press Association:

The case of blogger Will Folks – in which a judge is considering whether to hold Folks in contempt and possibly jail him for refusing to reveal a confidential source – points out an intentional gap in South Carolina’s reporters’ shield law: one that would not threaten jail time if Folks was in most other states.

The subpoena for Folks to reveal his confidential sources came in the course of a libel suit against him by former state representative Kenny Bingham, over a post by Folks alleging that an ethics complaint had been made against Bingham and that he was going to be indicted. There never was such an indictment, and Folks has publically identified his source for the ethics allegation. But Bingham is seeking the sources for other blog posts.

South Carolina’s reporters’ shield law, S.C. Code § 19-11-100(A), like similar statutes adopted in 35 other states and the District of Columbia, grants journalists a qualified privilege against revealing sources to whom they have promised confidentiality. In eleven states and Washington, D.C., this privilege is absolute: reporters cannot be forced to reveal confidential sources under any circumstances. In the other states with such statutes, including South Carolina, the privilege is conditional, and does not apply in some circumstances. (In another 12 states without shield laws, there is court precedent recognizing a limited privilege under the First Amendment. The only state without a statute or such a court precedent is Wyoming.)

Under South Carolina’s law, the privilege does not apply if the party seeking the information can show by “clear and convincing evidence” that either the privilege has been knowingly waived or that information sought is material and relevant to case, is necessary for the party to argue its position in the case, and cannot be reasonably obtained by alternative means.

The statute also specifically provides that the qualified privilege is available only when “the [journalist] asserting the privilege is not a party in interest to the proceeding.” Since Folks is the defendant in the libel suit, under the statute he cannot invoke the privilege.

Only four other states have a similar limitation. Three states’ shield laws – Colorado, Georgia and Oregon – include the limitation on application of the privilege in cases where the journalist is a party; in Oregon the limit is applicable only in defamation cases. In Idaho, which does not have a shield law, courts have also imposed such a limit.

In the other states, where shield laws or court rulings are silent on the question, when courts have considered the issue they have generally ruled that the journalist’s shield law does apply in cases in which the reporter is a party. In states where the privilege is qualified, courts have held that in such situations the balance between the journalist's confidentiality pledge and the need for the information weighs more in favor of requiring disclosure than in cases in which the journalist is not a party. But even when courts have held that journalists in defamation cases have refused to reveal their sources in defiance of a court ruling, the penalty usually is that the jury is instructed to assume that no source actually exists.

Folks’ lawyer has argued that the judge in his case should make a similar ruling, rather than put the blogger in jail for refusing to identify his sources.

Another limitation in the S.C. shield law is the privilege does not apply when the information sought “is necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item.” In 1995, reporter Twila Decker of The State was found in contempt and threatened with jail after she refused to identify her source for the results of sealed psychiatric exams of Susan Smith during her trial for murdering her children. The S.C. Supreme Court affirmed the contempt finding against Decker, finding that the shield law did not apply because the judge was demanding the identity of the source, not any party in the criminal case. The judge eventually rescinded the contempt order and the jail threat after Decker assured him that her source was not covered by the order that the judge had issued to bar disclosure of the psychiatric exams. More recently, in 2013 blogger Logan Smith was required to disclose his sources as part of a settlement with the Sikh Religious Society of a libel suit over Smith’s report that then-governor Nikki Haley was going to be indicted for financial impropriety involving the organization.

Whatever the judge decides to do in the Folks case, it again shows that South Carolina’s journalists’ shield law is not a “get out of jail free” card for reporters to always refuse to disclose confidential sources without consequence. Thus reporters must weigh the decision to grant a source anonymity – or agree to a source’s demand for confidentiality heavily. Given the limitations of South Carolina’s shield law, they must ask themselves, “Am I willing to run the risk of going to jail for this?”