Fourth Circuit Upholds South Carolina DOC Policy Restricting Prisoner Access to News Media
Those in custody of the South Carolina Department of Corrections (DOC) “lose the privilege of speaking to the news media,” a policy that makes it “unique among prison systems nationwide,” according to the American Civil Liberties Union (ACLU).
With limited exceptions, the prison system’s media access policy, GA-02.01-8, prohibits “personal contact interviews” not only with state prisoners but also with any “untried county safekeeper, or death row inmate.” The prohibition includes in-person, phone and video-based interviews but does not cover written correspondence.
The ACLU of South Carolina challenged the media access policy both facially and as-applied in federal court, arguing that it prevented its staff members from recording phone interviews with two prisoners on death row —Sofia Cano and Marion Bowman, Jr.—for use in podcasts. The purpose of the interviews was to “increase political pressure in favor of clemency, to shed light on the propriety of capital punishment, and to inform the public about the inhumane treatment endured by people incarcerated” by the DOC, according to the ACLU’s complaint.
But on August 30, 2024, the federal court for the District of South Carolina declined to issue a preliminary injunction and dismissed the case for failure to state a claim. See: ACLU Found. of S.C. v. Stirling, 747 F.Supp.3d 891 (D.S.C. 2024). The ACLU requested an expedited appeal due to Bowman’s pending execution, a request granted by the U.S. Court of Appeals for the Fourth Circuit.
After “carefully considering” the issues raised, the appellate Court examined the ACLU’s argument that the media access policy violated its First Amendment right “to receive and publish speech by incarcerated people.” The DOC, in tum, claimed that the policy was needed for myriad reasons, including prison security, to avoid “disruption to the orderly operation of prisons,” and to prevent a “lack of sensitivity for any outside crime victims.”
Relying on a trio of controlling rulings by the Supreme Court of the U.S. (SCOTUS)—in Pell v. Procunier, 417 U.S. 817 (1974); Saxbe v. Washington Post Co., 417 U.S. 843 (1974); and Houchins v. KQED, Inc., 438 U.S. 1 (1978)—the Fourth Circuit concluded that the First Amendment does not afford members of the press access to prisoners greater than that afforded to the general public. Since the ACLU had no “right of access to … sources of information within the government’s control,” including prisoners, it failed to state a claim for relief.
While the ACLU contended it already had access to Bowman as part of its legal representation, the Fourth Circuit distinguished that type of access from interviews sought by journalists for publication. Reporters have no right of access greater than members of the public, nor did ACLU staffers when acting in a journalistic capacity.
With respect to the facial challenge to the media access policy, the Court of Appeals found that the ACLU could not establish that the policy prohibits “a substantial amount of protected speech relative to its plainly legitimate sweep.” Additionally, prisoners are still able to contact the news media by mail.
Thus the district court’s dismissal of the ACLU’s facial and as-applied challenges to the DOC media access policy was affirmed on December 13, 2024. A request for rehearing before the full Fourth Circuit en banc was also denied on February 6, 2025. An amicus brief in support of the ACLU’s appeal was submitted by Latino Justice PRLDEF. See: ACLU Found. of S.C. v. Stirling, 123 F.4th 170 (4th Cir.); and 2025 U.S. App. LEXIS 2750 (4th Cir.).
No date has been set to execute Cano, 22. DOC killed Bowman, 44, by lethal injection on January 23, 2025.
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Related legal case
ACLU Found. of S.C. v. Stirling
| Year | 2024 |
|---|---|
| Cite | 123 F.4th 170 (4th Cir.) |
| Level | Court of Appeals |