A federal appeals court will soon decide if there is a First Amendment right to interview people in prison in the case of a South Carolina death row inmate with weeks left to live.
The American Civil Liberties Union of South Carolina (ACLU-SC) is fighting a lawsuit on fast-tracked appeal before the U.S. Court of Appeals for the 4th Circuit seeking to overturn a state policy that bars it from recording and publishing a face-to-face interview with Marion Bowman, who is scheduled to be executed on November 29. Bowman was convicted of murder in 2001.
In its appeal, the ACLU-SC says it intends to publish interviews with Bowman to support his clemency petition. The group says it is not simply a matter of right of access—it already has access to phone and face-to-face interviews with Bowman—but that the interview ban infringes on its First Amendment right to publicly advocate for its clients.
"By prohibiting ACLU-SC from publishing its incarcerated clients' speech, the policy restricts its right to speak on matters of importance," the ACLU-SC writes in an October 4 brief to the 4th Circuit.
The ACLU of South Carolina first filed a federal complaint in February challenging the South Carolina Department of Corrections' (SCDC) policy banning anyone—reporters, lawyers, advocacy groups, or family members—from recording and publishing an interview with an inmate. While other states and the federal prison system restrict interviews and generally stonewall media, the ACLU-SC says South Carolina is the only state that categorically bans publishing recorded interviews.
The SCDC has argued that its policy is necessary to protect crime victims from emotional harm and prevent security threats, such as inmates using interviews to slip coded messages to conspirators outside.
The SCDC also noted that it allows the media to print written correspondence from incarcerated people, but the ACLU-SC says this is an inadequate substitute for seeing and hearing someone.
The ACLU-SC argues that the state's policy is overbroad, that its justifications are too vague, and that all of the hypothetical problems could be addressed by less restrictive rules.
"The denial of access in South Carolina is the most aggressive, egregious suppression of speech of any present prison system in the country," ACLU-SC legal director Allen Chaney said in a recent interview with First Amendment Watch. "And so the fact that all 49 other state prison facilities and the federal prison system can all protect their own interests in prison, security and rehabilitation and order without categorically suppressing prisoner speech in the media, is pretty good evidence that it's not necessary here either."
That lawsuit took on an added urgency after the South Carolina Supreme Court ruled in July that all three execution methods available to the state—lethal injection, electrocution, and firing squad—were permissible under the state constitution. South Carolina immediately started planning to resume executions for the first time since 2011.
However, a U.S. District Court judge dismissed the ACLU-SC's lawsuit in August and held that, despite the advocacy group's insistence, the legal issue remained whether it had a First Amendment right to unfettered access to inmates. In 1974, the U.S. Supreme Court upheld the California prison system's ban on face-to-face interviews, ruling that the First Amendment did not grant journalists any special access beyond that afforded to the general public.
Earlier this month, the 4th Circuit granted the ACLU-SC's motion to expedite its appeal, and both sides will now file briefs in support and opposition of an injunction.
"The public deserves a chance to meaningfully encounter the person being murdered on their behalf," Chaney said in a press release. "We aim to give them that."
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