By Jay Bender

When public health officials learn of an individual with a food-borne E. coli illness, it is an incident.  When a few more folks get sick, the incident becomes an outbreak and  public health departments swing into action to prevent the outbreak from becoming an epidemic.

South Carolina has had an outbreak of judicially-imposed prior restraints, and action is needed to contain the outbreak before it becomes an epidemic.

Although official reports of South Carolina law cases began in 1783 with 1 Bay (1 S.C.L.) and equity cases in 1784 with 1 Desaussure (1 S.C. Eq.), it wasn’t until 1998 that a case was reported involving a judicially imposed prior restraint.  A “prior restraint” in this context is an order prohibiting a publication.  In  Ex Parte The State-Record Co., Inc. In Re State v. Quattlebaum, 332 S.C. 346, 504 S.E.2d 592 (1998), a divided Supreme Court upheld the imposition of an order prohibiting news organizations from publishing the contents of a  conversation between a murder suspect, Quattlebaum, and his attorney          The conversation had been secretly videotaped by the Lexington County Sheriff’s Department.  After the existence of the videotape was disclosed by the prosecutor and a copy provided to Quattlebaum’s attorneys, one of  Quattlebaum’s attorneys provided a copy of the tape to news organizations while another of Quattlebaum’s attorneys obtained an ex parte court order prohibiting the news organizations from publishing the contents of the recording.  The publisher of The State newspaper challenged the TRO on First  Amendment grounds, and following the refusal of the trial court to set aside the TRO, appealed the ruling to the Supreme Court of South Carolina.

In its opinion the majority affirmed the trial court, but sought to restrict the reach of its decision by declaring, “Under the extremely limited factual circumstances of this case, we find the circuit court properly enjoined dissemination of the privileged communication.”  504 S.E.2d at 594.   Notwithstanding its affirmation of the TRO, the court noted that a party seeking to limit speech protected by the First Amendment bears “an extremely heavy burden.”Id.

The “heavy burden” placed on one seeking to restrain speech or press in advance of publication was established by decisions of the United States Supreme Court which held that “Any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity.”  Carroll v. Princess Anne, 393 U.S. 175, 181 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).

Perhaps the most famous prior restraint case in this country is New York Times Co. v. United States, 403 U.S. 713 (1971), the “Pentagon Papers” case, in which the Supreme Court held the government had failed to meet the heavy burden required to restrain the publication of a classified document entitled “History of U.S. Decision-Making Process on Viet Nam Policy.”  The decision of the court was per curiam, but with each justice writing separately.  Notwithstanding the separate opinions, even a justice who dissented  Pentagon Papers wrote later that each member of the court acknowledged that a prior restraint was presumptively unconstitutional.  Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976).

In Nebraska Press Assn. Chief Justice Burger, who had dissented in Pentagon Papers, analyzed the Supreme Court prior restraint rulings and noted a unifying principle (427 U.S. at 559):

The thread running through all these cases is that prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights.  A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted.  Only after judgment has become final, correct or otherwise, does the law’s sanction become fully operative.

A prior restraint, by contrast and by definition, has an immediate and irreversible sanction.  If it can be said that a threat of criminal or civil sanctions after publication “chills” speech, prior restraint “freezes” it at least for the time.

The damage can be particularly great when the prior restraint falls upon the communication of news and commentary on current events….

From all of this you would be correct in concluding that prior restraints are not favored by courts and, as a consequence, have been rare.  Writing for the majority in Near v. Minnesota, 283 U.S. 697 (1931), which reversed an injunction against the publication of a newspaper deemed a “nuisance” by the trial court, Chief Justice Hughes ascribed the rarity of prior restraint cases to a national conviction favoring free expression (283 U.S. at 718):

The fact that for approximately one hundred and fifty years there has been almost an entire absence of attempts to impose previous restraints upon publications relating to the malfeasance of public officers is significant of the deep-seated conviction that such restraints would violate constitutional right.

The absence between 1783 and 1998 of a reported South Carolina case imposing a prior restraint unfortunately constituted little impediment to contemporary courts leading to an outbreak of judicially imposed prior restraints in the state.  Between May 2010 and January 2011 three separate courts in three separate cases entered prior restraint orders.

On May 19, 2010 a circuit court sitting in Spartanburg issued an ex parte temporary restraining order prohibiting an independent political committee identified as Reform SC from “continuing to air any ad featuring the Candidate and/or promoting the Candidate’s candidacy for governor in South Carolina media markets prior to the June 8, 2010 primary election….”  The TRO was accompanied by a Rule to Show Cause setting a hearing on May 28.  The plaintiffs, among whom was gubernatorial candidate Gresham Barrett, alleged Reform SC was violating the campaign practices provisions of the state ethics lawby failing to file reports of expenditures and contributions, by accepting contributions in excess of statutory limits, and by failing to act independently of the “Candidate’s” campaign. S.C. Code Ann. §§ 8-13-1300 et seq. (Supp 2010).   An “independent expenditure” is one made without control, coordination or consultation with a candidate.  S.C. Code Ann. §8-13-1300(17).

The “Candidate” was not named in the court’s order and a footnote claimed the omission was “In deference to the confidentiality requirements of the South Carolina campaign ethics and finance regulations.”  The sensitivity displayed in the court’s order served no purpose as the Complaint in the action identified the “Candidate” as Nikki Haley.

The Barrett suit alleged that Reform SC had purchased commercial air time on South Carolina television stations to advocate the candidacy of Haley, and by doing so had exceeded the statutory limit for campaign contributions.  The court’s order considered the request for injunctive relief in the traditional non-constitutional framework of irreparable injury and probability of success on the merits.

While irreparable injury and likelihood of success on the merits are appropriate considerations in some settings to warrant injunctive relief, the use of this standard to justify the imposition of a prior restraint on political speech is misplaced.  While any prior restraint is presumed to be unconstitutional, prior restraints on political speech must be even less favored given the elevated status of political speech in our democracy, reflective of our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”  New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

In June 2010 an order was issued in an action initiated by Michael Alan Wilson and the Wilson for Attorney General campaign against South Carolina Truth Squad and L. E. Adams.  As in the Barrett case, the Wilson Complaint alleged that the defendants had failed to file appropriate campaign finance disclosure forms with the South Carolina Ethics Commission, and defendants’ expenditures were not independent committee expenditures because they had been coordinated with Leighton Lord with whom Wilson was in a primary run-off election.

In the Wilson case a Lexington County circuit court issued an ex parte prior restraint order three days before the run-off election was to be held and prohibited defendants from broadcasting political advertisements questioning Wilson’s qualifications for office.  As in the Barrett case the prior restraint was characterized as a Temporary Restraining Order.  This TRO was also accompanied by a Rule to Show Cause which set a hearing for 9:00 a.m. on election day.  The TRO was granted on the court’s forecast of irreparable injury and likelihood of success on the merits—the same framework used by the court in the Barrett case.

These trial court orders are remarkable in that they enjoined core political speech within days of an election without an adversarial hearing and based solely on allegations of violations of the state ethics law provisions relating to campaign contribution limits and reporting requirements.  The civil penalty for late filing or failing to file a campaign report is $100 for the first five days of failing to file and up to $100 per day after certified notice of the deficiency has been given.  S.C. Code Ann. §8-13-1510.  If the expenditures were not independent, defendants could have been in violation of state limits on campaign contribution, a misdemeanor.  S.C. Code Ann. §8-13-1520.  Had there been a contested hearing in advance of the issuance of the restraining orders, it is possible the courts might have concluded the reporting requirements were constitutional while at the same time having to confront the possibility that some caps on campaign expenditures are unconstitutional in light of the decision of the United States Supreme Court in Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010).

While the ex parte nature of the prior restraint orders alone would make them remarkable, the orders are made even more remarkable because at no point in the combined 16 pages devoted to describing the alleged violations of the campaign laws and formulating the injunctive relief is mention made of the First Amendment to the United States Constitution.

The Barrett order was not appealed, and Reform SC’s advertising ceased.  Wilson’s attorneys, upon receipt of the TRO, wrote to television stations in the state advising the stations that the order barred the “airing of advertisements purchased by the South Carolina Truth Squad regarding Alan Wilson effective immediately.”  (emphasis in letter)  In fact, the order did impose a restraint on television stations and “media outlets” by stating”

All television stations and media outlets in South Carolina are enjoined from airing or continuing to air any ad sponsored by, paid for or produced by the Defendants that features Alan Wilson and/or advocates the defeat of Alan Wilson for the office of South Carolina Attorney General….

No television station was a party to the Wilson suit, and no provision was made to compensate the television stations for lost advertising revenue.

Defendants in the Wilson suit appealed and the Supreme Court of South Carolina issued its writ of supersedeas within two days of the issuance of the TRO.

On January 11, 2011 a circuit court in Horry County issued an oral prior restraint order in connection with an evidentiary suppression hearing in a homicide case.  The order was issued during a hearing on a motion by the Solicitor to close the evidentiary hearing.  The trial court denied the closure motion, but enjoined the reporters in attendance from reporting the identity of the defendants and other matters discussed in open court and contained in open court files.  Wacacamaw Publishers, Inc., the publisher of several newspapers in Horry County, filed an emergency motion for a writ of supersedeas immediately following the issuance of the restraint.

Chief Justice Jean Toal convened a hearing on the motion by telephone, and within two hours of the imposition of the prior restraint, issued a hand-written order staying the restraining order.  The appeal of the prior restraint by Waccamaw Publishers resulted in a reversal of the trial court in an unpublished per curiam opinion issued by the Supreme Court in October.  The Supreme Court’s opinion bears the legend “THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(D)(2), SCACR.”

The message from the Supreme Court of South Carolina seems clear:  prior restraints on expression remain presumptively unconstitutional in South Carolina, and the law in the area needs no further explanation.  Perhaps the outbreak has been contained, but we should know soon as citizens in Charleston protesting the application of the federal Indian Child Welfare Act of 1978, 25 U.S.C.A. §§1901 et seq., to set aside a South Carolina adoption are fearful that a court has been asked to impose a “gag” order to silence them.