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May 11, 2017

Local case raises question: Is journalism harassment?

My May column for the South Carolina Press Association:

In April, independent investigative journalist Ron Aiken successfully defended himself against civil harassment and stalking charges brought against him by Pinewood Lake Park Foundation CEO Liewendelyn Hart, after Aiken reported that the foundation’s use of government funds is under investigation.

While reporting on the story, Aiken called Hart twice and sent her two text messages. But he did not contact her after she sent a certified letter requesting that he no longer do so. Nevertheless, Hart filed civil charges against him, and Aiken was summoned to a hearing before Blythewood Magistrate Court Judge Josef Robinson (no relation to this author). At the hearing, Judge Robinson dismissed Hart’s claim that Aiken’s actions constituted harassment and stalking, and refused to issue a court order barring Aiken from contacting Hart. Aiken argued the case himself, without a lawyer.

Aiken’s experience is not the only recent example of a journalist being charged with harassment or stalking for routine journalism practices. Last year, a Georgia reporter and his attorney were jailed overnight on criminal harassment and other charges after seeking public records regarding spending of court funds by Chief Judge Brenda Weaver of the Appalachian Judicial Circuit Court. The charges against the reporter and lawyer were dropped after the case received news coverage. In 2014, a county commissioner candidate in Dekalb County, Georgia, unsuccessfully sought an arrest warrant against a reporter who the candidate felt was harassing him.

In a similar vein, on May 9, a reporter was arrested in the West Virginia statehouse for persistent questioning of Health and Human Services Secretary Tom Price. But the reporter was charged with misdemeanor willful disruption of governmental processes, not criminal or civil harassment. He was released on a $5,000 bond.
Obviously, reporters often attempt to contact people who would rather not hear from or talk to them. But when do such attempts cross the line from legitimate newsgathering to harassment for which the law should provide a remedy?

A study that I conducted with Dr. Erin Coyle of Louisiana State University found a handful of cases in which legal claims were sought – and in some cases, actually filed – against journalists for harassment, stalking and similar criminal or civil violations, simply for contacting people as part of their reporting. The charges or claims were dismissed in four of the five cases we found. But these dismissals only came after reporters had to deal with the cases filed against them, including being arrested and hiring attorneys to deal with the legal claims against them.

We also examined the laws under which harassment and similar claims may be brought, and found that only a few states – including South Carolina – have laws that have explicit exemptions for journalism and other activities protected by the First Amendment. Courts in most states have nevertheless imposed such a limitation on harassment and stalking claims against journalists, as a matter of constitutional law. As a result, harassment claims against journalists are possibly viable in only four states (Idaho, Louisiana, Ohio and Vermont), while stalking claims are possibly viable in five (Colorado, Delaware, Illinois, Maine and New Jersey).

But we also cautioned that states are now frequently adopting new laws to criminalize new forms of harassment online; and often these new laws are not carefully crafted to explicitly exempt activities protected under the First Amendment, including reporters’ attempts to contact sources or individuals involved in a story who may not welcome such contact.

South Carolina’s primary harassment statute is limited to language or behavior that “serves no legitimate purpose,” S.C. Code § 16-3-1700(B), (C), and the law specifically exempts “words or conduct protected by the Constitution of this State or the United States.” S.C. Code § 16-3-1700(G). Both of these provisions should prevent application of these statutes to most journalists’ normal newsgathering activities.

But as the cases against Aiken and the one last year in Georgia show, people who feel they have been harassed by reporters can still try to bring criminal and civil claims. And, while in both cases the claims against the journalists were eventually dismissed, they do show that journalists still have to deal with these charges when they are brought. Also, the Georgia case shows that a reporter can even end up in jail over such charges.

Legislators must be careful as they craft new laws to cover online and other forms of harassment to exclude newsgathering and other legitimate activities. And judges and magistrates, especially at the local level, must be informed on the First Amendment limitations on penalizing reporters for simply doing their jobs.

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