ACLU, ACLU of South Carolina Challenges Prison Policy that Seeks to Silence the Incarcerated
COLUMBIA – The American Civil Liberties Union and the ACLU of South Carolina filed a federal lawsuit today challenging the South Carolina Department of Corrections’ (SCDC) total ban on news media interviews with incarcerated people on First Amendment grounds. In addition to filing a complaint, the ACLU of South Carolina is seeking emergency relief that will allow the organization the right to interview incarcerated clients and publish their speech.
“Incarcerated peoples’ speech has long played a critical role in our public discourse,” said Allen Chaney, legal director for the ACLU of South Carolina. “If applied historically, SCDC’s rule would suppress publication of Martin Luther King Jr.’s ‘Letter from Birmingham Jail,’ Nelson Mandela’s autobiography, and four books of the New Testament. Today, it operates to insulate SCDC from real public accountability and to suppress the public’s knowledge about the violence committed against prisoners — wrongs that are committed in the public’s own name.”
South Carolina’s prison media-access policy is among the most restrictive of any state in the U.S. Unique among prison systems nationwide, SCDC takes the position that incarcerated people “lose the privilege of speaking to the news media when they enter SCDC.” In addition to infringing on the ACLU of South Carolina’s First Amendment right to receive and publish the speech of incarcerated people, this blanket policy impoverishes public understanding of vital matters including prison conditions, treatment of LGBTQ individuals and other vulnerable prisoners, and the propriety of capital punishment.
“The SCDC’s categorical rule that incarcerated people can never talk to the press or anyone else for the purpose of publication is blatantly unconstitutional,” said Emerson Sykes, senior staff attorney with the ACLU Speech, Privacy, and Technology Project. “This policy is so broad that no court has upheld anything similar. We urge the court to block this law, and defend our right to free speech as soon as possible.”
As highlighted last year in news coverage of the Alex Murdaugh murder trial, incarcerated people and their legal teams can face punishment for publicizing written or recorded statements by people held in SCDC. While Murdaugh’s case has garnered national attention, the ACLU of South Carolina seeks to address the routine violations of all incarcerated people’s rights, including in lower-profile cases.
As one example, the ACLU of South Carolina seeks to publish an interview with Marion Bowman Jr., who resides on South Carolina’s death row in Columbia. As Mr. Bowman prepares to petition the governor to commute his sentence to life imprisonment, we want to share Mr. Bowman’s story in his own words. To quote the complaint:
A story about Marion Bowman — that is, a telling of his case and his life behind bars — is not functionally equivalent to a story by Marion Bowman … In the context of prison advocacy, empathy is hard earned. The sound of another person’s voice can break the demonizing and otherizing constructs that the public has about “prisoners,” and can reveal the multidimensional humanity possessed by those behind bars.
"Our state government spends untold millions of dollars a year to keep 33 men on death row, often for decades,” said the Rev. Hillary Taylor, executive director of South Carolinians for Alternatives to the Death Penalty. “The citizens of South Carolina deserve to know who they are keeping alive with their tax dollars. It's time for SCDC to stop acting like it's a 'black box' of state secrets and allow media access to South Carolina's death row. What could SCDC possibly be afraid of revealing?"
There is wide variation in media access policies among the states, but South Carolina’s policy is uniquely draconian. Many states include some restrictions on speech and press access for prisoners, but not a total prohibition.
Learn More About the Issues in This Press Release
-
Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.