A three-judge panel unanimously ruled on Friday that the American Civil Liberties Union Foundation of South Carolina had no constitutional right to access prison inmates to conduct interviews for publication, agreeing with a federal district court that had dismissed the lawsuit ACLU brought, seeking to record and publish interviews with inmates on death row it represents.
The judges agreed with the lower court's August ruling that South Carolina Department of Corrections' policy did not violate the Constitution because "there is no general First Amendment right of access to inmates."
"SCDC makes inmates available to their attorneys to assist with their legal claims, but it does not make inmates available for interviews with members of the general public, including journalists," the panel said in the opinion written by U.S. Circuit Judge Allison Jones Rushing. "The latter is the 'access' ACLU-SC wants. And that is what the Supreme Court concluded was not constitutionally required."
The ACLU had planned to record interviews with two of its clients on death row — Marion Bowman Jr. and Sofia Cano — and publish those interviews in a series of audio podcasts and written pieces, according to the opinion. The interviews would be conducted by the communications director of ACLU of South Carolina, Paul Bowers.
The state's corrections department, however, forbids all types of interviews with inmates — in person, by video, or by phone — on any topic, the panel noted. While inmates are allowed to communicate with the people outside the institution, including news media, by mail, the department's policy bans publication of an inmate's own speech.
On Feb. 22, the nonprofit sued SCDC Director Bryan Stirling in his official capacity, saying the corrections department's policy violated the First Amendment both facially and as applied to the nonprofit's plans to publish the accounts of its clients on several aspects of their lives behind bars, including prison administration, prison healthcare, gender equity and capital punishment as a whole.
In a complaint asking the court to declare the policy unconstitutional and stop its enforcement, and seeking attorney fees, the ACLU said the department's policy "chills" the inmates' freedom of speech.
"The South Carolina Department of Corrections ... enforces the nation's most restrictive policy on media access to prisoners," the ACLU said. "People in SCDC custody are deliberately and comprehensively shut out of the public discourse."
The ACLU represents Cano, a transgender woman diagnosed with gender dysphoria, in a separate suit accusing the SCDC of violating federal law because it denied her hormone therapy. The ACLU is representing Bowman, who has exhausted all his appeals and now hopes for clemency, as part of its broader campaign against the death penalty.
In its filings, SCDC has defended its interview policy as necessary to avoid "disruption to the orderly operation of prisons," a "drain on prison staffing" and a "security risk."
The department also has described the policy as a "longstanding" measure to prevent victims of crimes from being exposed to the speech of people who victimized them or their family members.
In a press release in August 2023 announcing disciplinary action against disgraced lawyer and convicted murderer Alex Murdaugh, who was punished for relaying information intended for the news media via a telephone call with his lawyer, the department said "inmates lose the privilege of speaking to the news media when they enter SCDC."
In April, SCDC moved to dismiss the ACLU suit, telling the U.S. District Court for the District of South Carolina the corrections department's policy to restrict access to inmates was in line with other prison systems across the country. The department argued the ACLU lacked standing to sue because alternative avenues of communication, such as written interviews, were available to the nonprofit, and so the policy caused no real injury.
On Aug. 30, U.S. District Judge Jacquelyn D. Austin dismissed the suit with prejudice. She agreed with the ACLU that the threat of a chilling effect on its right to publish information was real, but she concluded that under U.S. Supreme Court precedent, the nonprofit had no First Amendment right to access information "that is within the government's control" any more than the public at large has.
"Not even the media have a special right under the First Amendment to such access," the judge concluded.
Judge Austin relied on a trio of Supreme Court cases from the 1970s, where media outlets unsuccessfully sought to bypass state prisons' prohibitions on interviewing inmates. In one of them, Pell v. Procunier
, which challenged a California prison's media access policy, the high court held in 1974 that "newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public."On the same day it decided Pell, the Supreme Court also held in Saxbe v. Washington Post Co.
that a Federal Bureau of Prison policy forbidding interviews did not place the press "in any less advantageous position than the public generally," and so it did not implicate any constitutional right of the newspaper or reporter.In 1978, in Houchins v. KQED Inc.
, in which a broadcasting company claimed it had a First Amendment right to access a California county jail to report on inmates' living conditions, the Supreme Court again refused to recognize any special right by news media.After reviewing the district court's decision from scratch, the Fourth Circuit panel concluded Friday that Judge Austin had correctly applied the precedent.
"Because ACLU-SC failed to allege a violation of its First Amendment rights, the district court did not abuse its discretion," the panel ruled.
Bowers and attorneys for the ACLU declined to comment on Monday. Attorneys representing SCDC did not respond to a request for comment.
Lourdes Rosado, the president and general counsel at LatinoJustice PRLDEF, a nonprofit that filed an amicus brief in support of the ACLU, told Law360 on Monday the Fourth Circuit has chosen to uphold "the most draconian state policy of its kind in the country, giving states broad discretion to restrict the speech of incarcerated people."
"To defend his life, Bowman deserves the chance to share his story directly with his fellow South Carolinians," Rosado said in a statement. "And as his legal representation, the ACLU of South Carolina reserves the First Amendment right to publish information, including Bowman's words, to which it has lawful access."
U.S. Circuit Judges Allison Jones Rushing, Paul V. Niemeyer and G. Steven Agee sat on the panel for the Fourth Circuit.
The American Civil Liberties Union Foundation of South Carolina is represented by David Allen Chaney Jr., David C. Fathi, Corene T. Kendrick and Emerson J. Sykes.
The South Carolina Department of Correction is represented by M. Todd Carroll, David M. Collins and Kevin A. Hall of Womble Bond Dickinson.
The case is American Civil Liberties Union Foundation of SC v. Bryan Stirling, case number 24-1882, in the U.S. Court of Appeals for the Fourth Circuit.
--Editing by Lakshna Mehta.
Update: This article has been updated with a comment from amicus filer LatinoJustice PRLDEF.