South Carolina BAR Journal
SC Lawyer, March 2012, #4.
An Outbreak of Prior Restraint in the Palmetto State
South Carolina LawyerMarch 2012An Outbreak of Prior Restraint in the Palmetto StateBy Jay BenderWhen 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. v. State (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 Sheriffs 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, "[u]nder the extremely limited factual circumstances of this
case, we find the circuit court properly enjoined dissemination of the privileged communication." Id. at 350, 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 U.S. Supreme Court which held that "[any] prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Carroll v. President Comm 'rs of Princess Anne, 393 U.S. 175, 181 (1968) (quotingBantam 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...