COLUMBIA — How much a state secrecy law really hides from the public will be up to the state Supreme Court, which heard arguments Tuesday as part of a broader challenge on executions in South Carolina.
The question arose as part of an ongoing federal lawsuit filed last year by the state chapter of the American Civil Liberties Union. The lawsuit as a whole argues the 2023 expansion of the law, which keeps secret almost all information about who carries out executions and how, violates people’s First Amendment right to free speech.
Legislators passed the law to help prison officials buy the drugs needed to carry out executions through lethal injection.
The boundaries of that law is what justices heard arguments on Tuesday. Under the law, violators can be sent to prison for up to three years.
Attorneys for the state and ACLU agreed on one thing: Any information already out in the open can be repeated without fearing arrest.
The secrecy law worked as intended. Four months after its passage, the Department of Corrections announced securing the drugs, and executions resumed in September 2024. Since then, seven men have been put to death. Four chose to die by lethal injection, and three selected the newly added firing squad.
No other death warrants are imminent, as inmates wait on appeals.
Public versus confidential
Under the interpretation attorneys for both sides proposed, only an employee who leaks restricted information about the execution process or the drugs could face punishment.
The recipients of that information shouldn’t be liable, as long as they didn’t break any other laws to get it, attorneys said. That would include an employee’s spouse, a reporter writing an article, or an advocate trying to sway public opinion.
“Once the leak has been made, everyone else can keep talking about it,” said Greyson Lambert, an attorney for the governor’s office.
The law was clearly written with that interpretation in mind, said Lambert and Joseph Spate, who works in the attorney general’s office. Otherwise, enforcing the law would be impossible in some situations.
If, for instance, members of the execution team identify themselves in a viral social media post, the attorney general’s office couldn’t possibly go after every person who shared it, Spate said.
“The attorney general wouldn’t be able to prosecute potentially millions of violations of the statute,” he said. “The reason for that is because the General Assembly has not funded the attorney general’s office to prosecute millions of offenses against the shield statute.”
The ACLU read the law in a much stricter way.
The nonprofit didn’t want to put anything in the open that could lead to an employee’s arrest, and without clarification, the ACLU believed that could be anything, even information already made public through other means, said Allen Chaney, an attorney for the ACLU.
“South Carolina is executing people again, and the ACLU wants to talk about that without running the risk of being criminally prosecuted,” Chaney said. “All we’re seeking is clarity. We want to know what the act covers so that we and others don’t have to guess as to whether our speech might result in criminal liability.”
The interpretation of the law the attorneys agreed upon would give the ACLU the clarity it needed, Chaney said.
The nonprofit has nearly 3,000 pages of information about the execution process found through court documents, statements from prison officials and news reports that advocates compiled in the hopes of giving the public a fuller understanding of the execution process, Chaney said.
None of those documents would break the law, Lambert said.
“If the ACLU walked out of court this morning and handed a reporter on the courthouse steps that entire document production, the ACLU is not going to be prosecuted,” he said.
Even though the attorneys agreed, an opinion from the state Supreme Court would set precedent in case attorneys for a future attorney general interpret the law differently, Chaney said.
The state’s chief prosecutor will change in January, when Attorney General Alan Wilson’s replacement takes office. Wilson is running for governor this year.
“We need a definitive and clear opinion from this court,” Chaney said.
Justices’ hypotheticals
Justices probed the limits of the proposed interpretation through hypotheticals.
Agency director Joel Anderson’s role in the process is well-known, even though the law bars the release of any information about any person “that participates in the planning or administration” or an execution, Justice George James said. Would talking about Anderson’s involvement lead to a violation in the law?
No, it wouldn’t, attorneys replied.
The director’s position, including the requirement that he verify which execution methods are available, is already well established in the public. A similar rule would apply to the prison’s warden, who oversees executions from a spot visible to the witnesses, including three members of the media, Lambert said.
Justice Garrison Hill asked: What if a reporter released the names of every employee at the prison on Broad River Road, where the death chamber is housed? That would include the names of the execution team, even if that role wasn’t identified. Would that then violate the law?
That wouldn’t give cause for prosecution, either, Lambert said. Anyone can speculate about who’s on the team, as long as they aren’t revealing actual facts they learned from their employer.
“You can put all the theories you want on the internet, like who may be on the team,” Lambert said. “Putting together a theory and publishing it isn’t actually disclosing something, because all it is conjecture. Some theories are good. Some theories are bad.”
Federal case status
What the interpretation could mean for the ongoing court case will be up to the federal judge overseeing it.
Both sides agreed that the state Supreme Court’s opinion could clear up a portion of the case centered around whether the ACLU has the legal right to release the information it has compiled. As long as justices agree with the arguments attorneys made Tuesday, that information would be fine to put in public.
The court’s decision could bring an end to the lawsuit altogether, Lambert said.
If justices decide the law can punish only an employee leaking information and not people repeating it, that could prove the law has no effect on people’s First Amendment right to free speech, he said.
Chaney disagreed. The ACLU’s free speech arguments, which target a different portion of the law than the question posed to the Supreme Court, would still stand, he said.
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