Cindi Ross Scoppe

August 15, 2013

Scoppe: Can freedom of information ever be in conflict with freedom of speech? Well, maybe

The surprise in a recent ruling wasn’t that the SC Supreme Court said the Freedom of Information Act doesn’t violate the First Amendment. The surprise was that two of the justices think it does.

IT WAS ONE of those “dog bites man” stories: The state Supreme Court ruled that the Freedom of Information Act doesn’t violate the First Amendment. No surprise there.

What would have been surprising was if the court had ruled the government-openness law did violate anyone’s freedom of speech.

Which was precisely what two of the five justices wanted to do.

Associate Justice Costa Pleicones, joined in his dissent by Justice Don Beatty, didn’t actually propose striking down the whole Freedom of Information Act. Indeed, most people never would have noticed if they had prevailed, because their problem was with a little-known and less-used provision of the law that applies to private organizations that receive government funding.

Justice Pleicones even noted that it’s not possible for a public-records law to violate the First Amendment when it is applied to the government itself, writing that “if an organization is in fact a governmental entity or wholly a governmental instrumentality, it does not possess First Amendment rights.” (He also noted that “it is axiomatic that the First Amendment protects only private speech from governmental interference” — which is a useful reminder to all those people who make the absurd claim that businesses or individuals are violating their or others’ First Amendment rights, by, for instance, dropping Paula Deen, or boycotting the Dixie Chicks.)

Still, the contrasting views — from two justices who think our open-records law opens too many records and three justices who used this case as an opportunity to turn a muscular defense of the law into court precedent — illuminates a fascinating debate over just what should and shouldn’t be public and what is and isn’t protected by the First Amendment’s guarantees of freedom of speech and assembly.

The case involves a Charleston radio talk-show host who wants to look at the records of the S.C. Association of School Administrators, a private lobbying and training organization that is funded through membership dues from public school districts. It’s not clear whether the group is even covered by the law; the lower court didn’t address that question, and neither did the Supreme Court, which considered only the lower court’s ruling that it would violate the group’s constitutional rights to apply the law in this case.

At issue is a provision in the Freedom of Information Act that says a private entity is subject to the open-records and open-meetings law if it receives any government funding. That provision was most notably cited in 1991, when media organizations were trying to pry loose information about the profligate spending of Jim Holderman, whose lavish lifestyle as USC president was underwritten largely through, and hidden from the public by, private foundations affiliated with the school. Because those foundations received their funding from the university, the unanimous Supreme Court ruled, they had to open their books to public scrutiny.

That ruling was widely seen as extending the open-records law to private entities, but in Justice Pleicones’ telling, it actually narrowed the scope of the law. The statute itself, he notes, defines a public body as “any organization, corporation, or agency supported … in part by public funds or expending public funds.” He writes that the 1991 ruling “somewhat narrows the applicability” of the law, by excluding entities that merely receive “payment from public bodies in return for supplying specific goods or services on an arms[-]length basis.”

Even with that court-interpreted contraction, he writes, the law still “may reach an otherwise private organization that receives even a negligible amount of public funding for a discrete purpose.” And in a footnote, he argues that at a minimum “we must assume that a lay person would read the law in this way.”

For their part, the justices in the majority dismissed the idea that the law applies to a private organization that receives “a negligible amount of public funding for a discrete purpose,” and emphasized the language from the 1991 order that said it “only applies to private entities who receive government funds en masse.”

“The FOIA would not apply to a private entity that receives public funds for a specific purpose,” Justice Kay Hearn wrote for the majority. “For example, the FOIA would not apply to a private organization that receives public funds to operate a childcare center or healthcare clinic. However, the FOIA does apply to any private organization that is generally supported by public funds.”

This was only a tiny part of the majority opinion, which seemed designed largely to remind readers of the value of the Freedom of Information Act — and to inoculate it against future challenges based on recent federal court rulings that have gone too far in limiting the government’s ability to require public disclosure of political campaign finances.

The tension, then, is between two justices who read the statute literally, and find in it an infringement of constitutional rights that should be eliminated by limiting its scope, and three who say, essentially, “Trust us; we’re going to read the law sensibly, in keeping with our duty to interpret statutes in a way that renders them constitutional.”

Justices Pleicones and Beatty have wandered into an extremely gray area of constitutional law, and I’m not about to try to say whether they’re right. But they raise concerns that the majority doesn’t do a particularly good job of refuting, from either a constitutional or a political perspective.

And this case gives us yet another flash point in what could turn out to be the most interesting thing going next year at the State House: the unprecedented attempt by Justice Pleicones to unseat his longtime friend and ally, Jean Toal, as chief justice.

Ms. Scoppe can be reached at or at (803) 771-8571. Follow her on Twitter @CindiScoppe.

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