SC law criminalizing release of death penalty information attacked in federal lawsuit

South Carolina’s sweeping ban on releasing information about state executions is “unconstitutional” and violates First Amendment free speech protections, according to a federal lawsuit filed Wednesday. The lawsuit seeks more transparency in the state’s execution process.

If the lawsuit attacking what it calls South Carolina’s “Secrecy Statute” succeeds in disclosing now-secret information, the state might have to halt future executions. That’s because pharmaceutical companies that supply drugs for lethal injections might refuse to do so because of fears bad publicity would hurt their image.

Such was the situation before the state enacted its execution secrecy law in 2023.

However, Wednesday’s lawsuit does not seek to halt Friday’s scheduled execution of Marion Bowman Jr., 44, of Dorchester County, who has chosen to die by lethal injection. He will be the third inmate to die since South Carolina resumed executions last year. Executions for three others are slated for later this year at approximately one month intervals.

A motion for injunction filed with the lawsuit seeks to stop South Carolina officials from enforcing the state’s broad ban on the release of information about executions, including the kinds of drugs used to kill condemned inmates.

The lawsuit, filed in federal court in Columbia, attacks provisions in the state’s execution laws that make it a crime to disclose “any information even tangentially related to individuals or entities involved in executions ⎯ such as entities who manufacture, compound, distribute, supply, test, or administer lethal injection drugs, including the amount the state paid for the drugs or other equipment.”

“This ban not only departs from the state’s history of making execution-related information publicly available but criminalizes the disclosure of this information by anyone for any reason. It thus silences the scientists, doctors, journalists, former correctional officials, lawyers, and citizens who seek to scrutinize the safety, efficacy, morality, and legality of South Carolina’s use of lethal injection,” the lawsuit alleges.

Disclosure of such information is punishable by up to three years in prison, the lawsuit says.

The South Carolina ACLU possesses some information covered by the Secrecy Statute and wants to disclose that information, the lawsuit says.

“But for the Secrecy Statute, ACLU-SC would disclose and disseminate this information as part of its political advocacy,” the lawsuit asserts.

“However, the threat of criminal punishment under the Secrecy Statute is sufficient to deter ACLU-SC from exercising its First Amendment right to speak.”

ACLU-SC legal director Allen Chaney Jr. echoed the lawsuit’s claims in an affidavit he filed with the lawsuit, saying that the “threat of criminal punishment under the Secrecy Statute is sufficient to deter ACLU-SC from exercising its First Amendment right to speak.”

Defendants in the lawsuit, which was brought by the ACLU of South Carolina Foundation, are S.C. Attorney General Alan Wilson and state Department of Corrections Director Bryan Stirling.

“Since this is pending litigation, we have no comment,” said an attorney general’s spokesman.

“Any response we have will be filed with the courts,” a spokeswoman for the Department of Corrections said.

The case has been assigned to U.S. Judge Joe Anderson. No hearing date has yet been set.

ACLU-SC’s lawyers in the case are Chaney and Meredith D. McPhail.