Free speech rights don’t extend to recording SC inmates, judge rules

Department of Corrections Director Bryan Stirling speaks to reporters following a bond hearing at the Richland County Courthouse on Wednesday, July 31, 2024. (Skylar Laird/SC Daily Gazette)

COLUMBIA — The First Amendment does not give anyone the right to record prison inmates for publication, a federal judge decided in dismissing a lawsuit against the South Carolina prison system.

The ruling by U.S. District Judge Jacquelyn Austin upheld the Department of Corrections’ longstanding policy of allowing interviews with inmates only through written correspondence. The policy applies to “news media, legislators and others,” while excluding interviews for law enforcement purposes.

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The state chapter of the American Civil Liberties Union wanted to record and publish interviews with two prisoners — a transgender woman and a man on death row — who wanted to tell their stories and talk about prison conditions.

The ACLU is representing inmate Sofia Cano in a separate lawsuit over the agency’s denial of hormone treatments and failure to use her female name. Death row inmate Marion Bowman Jr. is third in line for execution , and the ACLU sought to release an interview with him as a podcast in hopes of increasing public pressure for clemency.

The civil rights group challenged Corrections’ policy barring interviews, whether by phone or face to face, for release to the public.

That policy is about supporting victims and their right to not “have to see the person who harmed them or their family members on the evening news,” according to the agency’s response, which the judge cited in last Friday’s decision.

In her order, Austin pointed to three U.S. Supreme Court rulings that the Constitution does not give reporters a right to interview inmates in person.

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, Austin wrote.

The other 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.”

While the ACLU argued it already has access to its clients and should be able to record interviews, Austin called that a red herring. The lawsuit is seeking a “different type of access: access to SCDC inmates, including its clients, for the purpose of recording interviews for publishing,” the order reads.

The ACLU plans to appeal the decision, attorney Allen Chaney said in a statement Thursday.

“We continue to believe that South Carolinians deserve to hear what is happening in our prisons, and to hear it from the people experiencing it,” Chaney said.

In its lawsuit, the ACLU pointed to Corrections’ response to a violation of the policy by Alex Murdaugh, the once-prominent Hampton County lawyer convicted last year of killing his wife and son. His lawyer recorded a phone call with his client and provided it to Fox Nation for a docu-series. As a result, Murdaugh’s tablet and phone privileges were suspended, and his attorney was warned he could jeopardize access to his client.

The prisons agency 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.

In those cases, reporters can’t take or use photos or videos that would identify an inmate, including showing their face or tattoos and can publish their first names only. The SC Daily Gazette is among outlets that have previously agreed to those conditions.

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Other reasons for the policy, according to the agency, are to bar inmates from getting famous and profiting from their crimes and to prevent the disclosure of information that could create a security risk. Whether the interviewer realizes it or not, what the inmate says could aid criminal efforts.

Inmates are allowed to write letters to anyone they want, including reporters, under the policy.

“SCDC stands by its longstanding policy, which allows inmates to answer interview questions in writing,” agency spokeswoman Chrysti Shain said in a statement. “We’re grateful the courts recognized and upheld it.”