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South Carolina Supreme Court Responds To Calls For Judicial Transparency

Palmetto State judicial branch engages the marketplace of ideas on a critical issue …

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One of my favorite parts about this job is the opportunity it affords me to share perspectives that are not my own – including perspectives from people who take issue with things I’ve said or written.

Why do I relish the receipt of such perspectives? Because I believe competition in ideas is inherently good – raising what’s right and reducing what’s rubbish. Or at least that’s the idea.

Ultimately, it is up to each of us as independent thinkers to break down what we see and hear … to use our best judgment to make sense of it (even in a world that seems to make less sense by the day).

In his compelling rebuke of censorship over a century ago, supreme court justice Oliver Wendell Holmes Jr. observed that “the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

What was true then is true now. Similarly, it remains true that no one – not even the wisest among us – enjoys a monopoly on the truth in this “marketplace of ideas.”

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Last week, I penned a column on the issue of judicial transparency in the Palmetto State which garnered considerable attention. In that post, I argued a recent bond hearing in the high-profile ‘Murdaugh Murders’ true crime saga should have been made available to the public via live-streaming – and that media outlets following the hearing should have been permitted to record and republish audio and video excerpts from the hearing (or republish the hearing in its entirety).

I also questioned the lack of a uniform standard for courtroom transparency in the Palmetto State.

“It is literally up to the whims of individual judges, far too many of whom like to play favorites with members of the media – cherrypicking which news outlets are allowed to have photographers and videographers in their courtrooms and which ones are not,” I wrote.

Earlier this year, in fact, my news outlet was prohibited from taking still pictures at a Murdaugh-related court hearing while a photographer from a rival publication was permitted to snap away. A deputy patrolling the courtroom made absolutely certain this selective access was strictly observed.

This week, my column received a response from the public information director for the S.C. supreme court – Ginny T. Jones – who took issue with its alleged “misinformation.”

In a letter (.pdf) dated December 21, 2021, Jones noted the Murdaugh bond hearing “was open and available to anyone with Internet access” and that “many thousands of people were able to virtually attend, observe the proceedings, and judge for themselves (their) nature and quality.”

“(Your) argument is flawed and distorts what occurred at the Dec. 13 Murdaugh bond hearing and at other hearings, whether virtual or in person,” Jones added, referring to my contention that the hearings were not conducted “in public.”


“A restriction on recording virtual or live proceedings neither renders them non-public, nor creates ‘secrecy’ or ‘shadiness,’” Jones continued. “The Dec. 13 Murdaugh bond hearing was not held behind closed doors – quite the opposite. This hearing was broadcast live on the Internet, and the date and time when it would be broadcast was published well in advance of the hearing.”

Jones further noted the judicial branch regulates access to judicial proceedings in order to “balance the interests of justice with the media’s right to report on court proceedings.”

Finally, Jones referenced a September 28, 2020 order from S.C. chief justice Donald Beatty which held that “taking still photographs, recording (visual or audio), or streaming of any live, virtual, or subsequently broadcasted court proceeding is strictly prohibited unless specifically authorized by the presiding judge.”

Anyone determined to be in violation of this order “may be held in contempt of court and subject to sanctions.”

According to Jones, Beatty issued this order “to protect the integrity of the judicial process.” She further noted his ruling was “consistent with the practice in federal court and in other states.”

“You may wish to complain that you were not allowed to record the bond hearing or broadcast it on your own website, and it is certainly within your right to do so,” Jones concluded. “However, in the spirit of accountability, which you have written is important to you, I ask you this: Please do not tell your readers that the Dec. 13 Murdaugh bond hearing was not open to the public, because that’s simply not true.”

Here is Jones’ letter in its entirety …

(Click to view)

FITS-Letter-Dec-21-2021

(Via: S.C. Judicial Branch)

First of all, I want to thank Jones for submitting this response. Anytime anyone wishes to respond intelligently and substantively to something that appears on this news outlet – or wishes to address an issue proactively – my microphone is always open to them.

As noted above, such an exchange is what the marketplace of ideas is all about.

By way of response, though, let me say this: My news outlet made multiple attempts prior to the Murdaugh bond hearing to contact the presiding judge – to no avail. Those attempts included a formal, written request pursuant to Rule 605 – which is the section of the S.C. Appellate Court Rules (SCACR) governing the rights – or lack thereof – of both citizens and reporters when it comes to making an audio, photographic or video record of public court hearings.

What sort of latitude does Rule 605 afford South Carolinians? Not much …

As far as members of the public are concerned, “the broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions is prohibited.”

When it comes to the press, judges “may refuse, limit, or terminate media coverage of an entire case, portions thereof, or testimony of particular witnesses as may be required in the interests of justice.” Judges are further empowered to impose “additional reasonable restrictions, or prohibit altogether, photographing, recording, or broadcasting in court facilities other than the courtroom.”

Hmmm. That doesn’t sound very “public” to me … nor does it strike me as particularly transparent. It certainly isn’t consistent seeing as one judge’s definition of the “interest of justice” could differ dramatically from another’s.

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Anyway, after failing to hear back from the presiding judge my news outlet contacted the chief justice directly in an effort to obtain access. At that point, Jones responded by emailing us a link to the presiding judge’s virtual courtroom – although we were never told whether this information could be shared with the public.

Moreover, all of the regulations referenced by Jones in her letter above specifically deal with media access to the hearing … not public access.

Furthermore, when the date of the Murdaugh bond hearing was changed from December 10 to December 13, the only notification we received came in the form of a media advisory from the office of S.C. attorney general Alan Wilson. According to that advisory, outlets which hoped to cover the rescheduled hearing were asked to “make arrangements” with the office of the presiding judge.

Once again, there was no mention whatsoever of public access to the hearing … only media access. And once again, we received no response from the presiding judge to our inquiries about access.

Jones’ eventual description of the five-step process for accessing the hearing on the judiciary’s website – which was sent to us 34 minutes before the proceedings commenced – was the very first reference we received to a publicly accessible link. And while the information she provided was certainly helpful, I would hardly describe it as user-friendly for members of the public.

(Click to Listen)

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“The way to get to the virtual courtroom for each judge is to go (to) SCCourts.org -> calendar (upper right hand side) -> monthly view -> and then choose what type of court you want,” she wrote. “Virtual courtroom links are visible under the name for each circuit and family court judge. The virtual courtroom link is only active when that judge is holding a virtual hearing.”

Wait … are these web navigation instructions? Or is this the screenplay to one of those National Treasure movies?

Look, I appreciated Jones’ response. Her willingness to engage in a constructive dialogue on such a critical issue marks what I hope will be the first step in an ongoing process – one I fervently pray will lead to greater transparency over judicial proceedings in the Palmetto State when it’s all said and done. And while I found Jones’ defense of the current system lacking (for reasons outlined above), I can promise her my news outlet is committed to continuing the discussion – and working with the court to achieve a satisfactory outcome as it relates to all of these concerns.

Ultimately, I believe we want the same thing – for the “interest of justice” to prevail.

I simply believe maximizing access for both press and the public to these proceedings – and expanding the ability of both press and the public to preserve a record of such proceedings for posterity – is in the “interest of justice” far more than the rules currently imposed by the status quo.

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ABOUT THE AUTHOR …

(Via: FITSNews)

Will Folks is the founding editor of the news outlet you are currently reading. Prior to founding FITSNews, he served as press secretary to the governor of South Carolina. He lives in the Midlands region of the state with his wife and seven children. And yes, he has LOTS of hats (including that New York Giants’ 1942 All Star Game lid pictured above).

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