The Matthew J. Perry Federal Courthouse in Columbia on Tuesday, Feb. 20, 2024. (Skylar Laird/SC Daily Gazette)
COLUMBIA — Three federal appeals judges will decide whether a civil rights group can publish interviews conducted with two South Carolina prison inmates, one of whom is on death row.
A federal judge initially dismissed in September the American Civil Liberties Union’s lawsuit challenging a South Carolina Department of Corrections policy that bars “news media, legislators and others,” from recording and publishing conversations with inmates, excluding interviews conducted for law enforcement purposes. The judge ruled that constitutional free speech doesn’t extend to prisoners.
The ACLU appealed, and a federal appeals court heard arguments virtually Tuesday.
Free speech rights don’t extend to recording SC inmates, judge rules
It’s a case that has taken on new urgency as the state resumed executions of death row inmates in September, breaking a 13-year hiatus after the state Supreme Court ruled the electric chair and firing squad are constitutional methods of capital punishment.
This gives the ACLU limited time to record an interview with death row inmate Marion Bowman, who a jury convicted in 2002 of shooting a woman to death and burning her body. Publishing Bowman’s story in his own voice could spur more conversations about the death penalty and potentially garner more support for his clemency petition, the ACLU’s attorneys have argued.
While the ACLU argues an interview is more persuasive than a letter, that might not be enough to get Bowman off death row. No governor in the state has commuted a death sentence since executions resumed nationally in 1976.
Gov. Henry McMaster has denied clemency to the first two inmates to face execution, one of whom had support from the former head of the prison system, the trial judge who oversaw his case and three jurors who recommended his sentence.
When the state might schedule Bowman’s execution is still up in the air. The state Supreme Court had initially said it would set the 44-year-old’s execution date Friday, but no death warrant came.
Death row inmates’ attorneys are asking the high court to hold off on issuing any more warrants until January.
Regardless, Bowman is “next in line,” ACLU attorney Allen Cheney told judges Tuesday.
Why the policy exists
For its part, the state prison system argues its policy is in place to prevent inmates from divulging information that would create security risks, getting famous from an interview or directing conspirators outside prison to commit crimes on their behalf. It also keeps victims from having to see someone who harmed them or their loved one in the news, the department has said in legal filings.
“Many penal institutions have encountered severe disciplinary problems when unfettered media access to inmates has created ‘virtual public figures’ within the prison society,” attorneys for the corrections department wrote in a court filing. “Inmates who gain ‘celebrity status’ within the prison system garner a disproportionate degree of notoriety and influence among their fellow inmates.”
The only people who can talk to an inmate by phone are pre-approved friends, family members, spiritual leaders and attorneys, Hall said. None may record or publish the inmate’s conversations.
The policy prevents even the most innocuous recordings, Cheney said Tuesday. For example, a family member who recorded an inmate singing “Happy Birthday” and posted it on Facebook would violate it, the ACLU argued in court filings.
The prison system allows inmates to write letters to whomever they’d like, a department spokeswoman has said previously, and news reporters have used letters from inmates to report on incidents inside the state’s prisons.
The agency also sometimes gives tours of the state’s 21 prisons and allows reporters to interview inmates there. But discussions are limited to the reason for the tour, such as inmates’ participation in a work or study program.
Inmates who violate the policy, whether by talking over the phone to members of the media or giving recorded interviews that are later used for publication, can lose certain privileges.
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Susan Smith lost access to her telephone, tablet and the prison canteen last month for talking to a filmmaker about killing her two young sons in 1994. Alex Murdaugh, who a jury convicted last year of killing his wife and son, also lost phone and computer access after reading aloud portions of his diary to his lawyer, who recorded the call for use in a documentary.
The agency does release recordings of phone calls in response to Freedom of Information Act requests. Because that law includes an exemption for security breaches, that suggests at least some conversations don’t pose a real threat, Cheney said.
The policy “furthers too little and suppresses too much,” he said.
The prisons agency often reviews phone calls before releasing them under requests, said Kevin Hall, an attorney for the Department of Corrections. If anyone could record and broadcast any phone call, the department would have to hire staff to monitor each and every call inmates make while they are making it, he added.
“Imagine the demands on prison resources if that were the case,” Hall said.
‘Access versus publication’
While the First Amendment’s guarantees of free speech and free press give people a right to record audio in public, that does not extend to government-controlled places where the public does not have access, such as prisons, U.S. District Judge Jacquelyn Austin wrote in her September dismissal of the case.
Past federal cases “make clear that not even the media have a special right under the First Amendment to such access,” Austin wrote. The ACLU “has no constitutional entitlement to the access it demands.”
The ACLU has said it already has access. Through the legal side of the organization, members can talk to Bowman and Sofia Cano, a transgender inmate the group is representing in a lawsuit claiming the prison system won’t give her access to hormones.
Austin ruled what the ACLU is seeking is a “different type of access,” one that extends beyond attorney-client privilege.
The question the organization wants the Appeals Court to answer is whether non-attorney members of the organization can record those conversations and post them.
“The tug-of-war that we seem to be having is one of access versus publication,” Hall said.
The ACLU’s reasons for wanting an interview and the department’s reasons for not granting one both seem legitimate, Fourth Circuit Appeals Judge Paul Niemeyer said at Tuesday’s hearing. When the court might give its opinion is unclear.
“Your organization makes no bones about it. You want to address the capital punishment issue and increase the public debate, which is all very legitimate,” Niemeyer said to Cheney. “But the question is whether that interferes with the (prison’s) penological interest.”