Posts Tagged ‘First Amendment’

FOI Daily Dose: South Carolina court rules public bodies cannot use First Amendment to evade FOIA

The South Carolina Supreme Court ruled July 17 that organizations supported by public funds cannot use the First Amendment to evade the state Freedom of Information Act, according to Greenville Online.

The opinion echoed a 1991 Supreme Court ruling when The Greenville News sought access to records of a University of South Carolina foundation, and the South Carolina Association of School Administrators (SCASA) claimed disclosing the information violated their First Amendment rights to free speech and free association.

The 1991 ruling said organizations supported in whole or in part by public funds are public bodies subject to the FOIA.

But in the most recent legal dispute, radio personality Rocky Disabato claimed SCASA violated the public records law by refusing to meet his request for information about its role in a high-profile lawsuit against then-Gov. Mark Sanford over federal stimulus funds, according to The State.

The SCASA said state FOIA does not apply to them because even though they engage in public advocacy and receive some public funding, they operate as a non-profit organization, and the FOIA infringes their rights to free speech and association.

A Richland County Circuit Court judge agreed with the administrators and ruled that even though SCASA is a public body, it is not required to comply with FOIA laws.

Even so, the Supreme Court reversed the decision on grounds that the FOIA fosters trust in government and prevents fraud and corruption, The State said.

The court explained that without requiring public bodies to be subject to public scrutiny, agencies could “push agendas through third-party groups without scrutiny,” Greenville Online reports.

The court wrote: “If public bodies were not subject to the FOIA, governmental bodies could subvert the FOIA by funneling state funds to non-profit corporations so that those corporations could act, outside the public’s view, as proxies for the state.”

Writing for the majority, Justice Kaye G. Hearn recognized the negative impact the state FOIA might have on SCASA’s rights, and the court left it up to a lower court to decide if the SCASA is, in fact, a public body.

The decision said the FOIA does not apply to private entities that receive public funds for “a specific purpose,” such as a childcare center or healthcare clinic, The State said. Keith R. Powell, one of the attorneys representing SCASA, explained to The State in an email:

“The majority decision today is that IF a private entity is found to be a ‘public body,’ then it must still comply with the FOIA. The issue of whether or not SCASA is a ‘public body’ has not even been begun yet, and would be the subject of the remainder of the lawsuit back down in the circuit court . . . . Importantly, the court implicitly rejected the plaintiffs’ arguments that merely receiving any payments from the government, and/or merely being given some role in a public advisory committee, would automatically make a body ‘public’ under the FOIA.”

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at or on Twitter: @KaraHackett.

FOI Daily Dose: High fees in California and stress over a school survey

Journalists and open government advocates in California are riled up about Gov. Jerry Brown’s budget proposal they fear could limit access to public documents.

California courts already charge $15 for court records searches lasting longer than 10 minutes. Under the new proposal, the courts could charge $10 for every name, file or information that comes back on a search, regardless of the time spent—a small fee some fear will come at a large price if it limits public access.

Initially, opponents such as California Senator Loni Hancock, D-Berkeley, thought the fees would stifle investigative reporting in newsrooms where journalists are already pinching pennies.

According to a Courthouse News Service report, a California Assembly committee rejected the fee increase, and the state Senate committee approved it with the stipulation of an elusive press exemption. But what that exemption looks like is anyone’s guess.

Jim Ewert of the California Newspaper Publishers Association told Courthouse News Service the exemption was added before the hearing on Thursday, and he just found out about it that morning.

“No one involved us in any of those conversations,” he said.

Even with the exemption, Ewert thinks any price for free information is too high, especially when the public is under-educated about government court activities in the first place.

“Number one, we don’t know what the exemption does. Number two, it’s just a bad idea to deny access to records that the public has already paid for, and shield the public from an institution that it already has very little understanding about,” Ewert said.

On a less FOI (but still relevant) note, a high school teacher in Batavia, Ill., faced scrutiny for reminding students about their constitutional rights before administering an allegedly self-incriminating school survey, according to the Daily Herald.

The survey, meant to measure students’ social-emotional well-being, included questions about their drug and alcohol use. When social studies teacher John Dryden noticed his students’ names were printed on their surveys, he told them they had the Fifth Amendment right to avoid incriminating themselves by not answering the questions.

But administrators deemed Dryden’s decision unprofessional because he did not consult authority before he spoke. Sources say the school board met Tuesday to discuss disciplinary actions against Dryden in closed session, but so far the outcome of the meeting (if it even happened) is mum.

Since the survey was administered in mid-April, students and parents who support Dryden have started an online petition yielding more than 4,200 signatures to “Defend and Support” the teacher they say is simply trying to “make his students aware of their rights as citizens.”

And in the heat of the First Amendment issues of late involved the Obama administration, teaching students about their constitutional rights might be more considerate than criminal.

That’s all for now, folks. But as you know, First Amendment issues are all around us, so tell me what’s going on in your neighborhood.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at or on Twitter: @KaraHackett.

New York City MTA required to run pro-Israel ads, judge rules

MTA sued after ad refusal

A federal judge said the New York Metropolitan Transit Authority violated a group’s free speech rights by refusing to run potentially offensive ads.

American Freedom Defense Initiative sought to place an ad that said, “In any war between the civilized man and the savage, support the civilized man,” The New York Times reported.  The ad also called for people to “Support Israel” and “Defeat Jihad.”

The MTA refused to run the ads, saying it violated their policy against running derogatory ads against, among other things, people’s race, religion and nationality. They told the initiative they could revise and resubmit.

The American Freedom Defense Initiative instead sued in 2011, claiming the transit authority’s policy violated their free speech rights.

Federal Judge Paul A. Engelmayer ruled Friday, July 20,  in the group’s favor.

The proposed ad represents political speech and falls within First Amendment protections, Engelmayer said.

Engelmayer said the MTA’s policy, though well-intended, violates free speech rights; they cannot allow some types of negative ads and not others.

He praised the transportation agency’s effort to minimize harmful speech, but said it cannot selectively allow some types of discriminatory speech and not others.

Engelmayer suspended the ruling for 30 days, during which the MTA can attempt to make their policy constitutional.

Read Reuters and The New York Times coverage of and New York Daily News opinion on the ruling.

MTA asked to take down other ads

In a related incident, an elected New York official asked the MTA to take down ads showing the shrinking geography of Palestine and growth of Israel.

Assembly member Robert Castelli wrote a letter to the MTA saying the ads were offensive to the Jewish community and created disharmony. His letter appealed to the authority to take down the ads. However, given Englemayer’s recent ruling, Castelli may not have success with his petition.

The Center for Peace in Israel and Palestine paid for the ads.

Read more here.

Whitney is the summer Pulliam/Killgore intern with the Society of Professional Journalists. She recently graduated from Brigham Young University after studying journalism. Connect with her via email – –  or on twitter – @whitevs7

*Know something about Freedom of Information that you think we should cover in a blog post? We want to hear from you! Send information to It may be featured in a future post.


Massachusetts town fines for public swearing, First Amendment advocates scratch heads

A small town in Massachusetts has imposed a $20 fine for swearing in public. In order to make punishments for offenses more actionable, residents of Middleborough, Mass., voted to make profanity in a public area punishable by fine, along with public marijuana smoking, drinking and dumping snow in roadways.

A similar measure has been on the books in Middleborough since 1968. However, while swearing was a crime in the 1968 ordinance, the new measure is an attempt to “decriminalize” and make it more likely for the police to enforce.

“…people might end up getting fined for constitutionally protected speech.”  – Matthew Segal, ACLU of Mass. legal director

Rather than limit all swearing, this ordinance aims to curb loud profanity in the parks and downtown areas, city officials said, according to the Washington Post.

I’m really happy about it,” Mimi Duphily, a store owner and former town selectwoman, said after the vote, according to the Asociated Press. “I’m sure there’s going to be some fallout, but I think what we did was necessary.”

The First Amendment is an obvious concern. Court cases such as Chaplinsky v. New Hampshire and Cohen v. California helped establish freedom of speech. Profanity is allowable under the First Amendment except in cases of true threats, fighting words or an incitement to imminent lawless action.

“If the Massachusetts attorney general approves it, the ordinance would encourage police to ticket speech that is, and likely will eventually be found to be, constitutionally protected,” a Washington Post editorial said.

Whitney is the summer Pulliam/Killgore intern with SPJ. She recently graduated from Brigham Young University after studying journalism. Connect with her via email – –  or on twitter – @whitevs7

*Know something about Freedom of Information that you think we should cover in a blog post? We want to hear from you! Send information to It may be featured in a future post.







FOI Tip of the Week: RCFP’s Digital Journalist’s Legal Guide

Whether you have your own blog or report stories for online production at a newspaper, you now have an easy-to-use reference guide for all your legal concerns.

The Reporters Committee for Freedom of the Press released its legal guide for digital journalists this week, and it touches on some of the major issues that journalists face when working online.

Each topic is divided into sections that include the history of a legal issue, quick answers to common concerns and links to other helpful resources.

The guide is also integrated with other RCFP Web materials, such as its state and federal guides to open government and The First Amendment Handbook.

Some of the topics covered in the digital guide focus on FOI issues, such as open records concerns and court access problems, but other covered topics that may be of help include privacy invasion issues and Internet regulation rules.

So if you run into a legal quagmire, mosey on over to the RCFP website and take a look at their handy guide.

– Morgan Watkins

Morgan Watkins is SPJ’s summer Pulliam/Kilgore Freedom of Information intern and a University of Florida student. Reach her by email ( or connect with her on Twitter (@morganwatkins26).


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