Registration of journalists bill laughable
By Jay Bender, Column posted by SC Press Association on January 27th, 2016
I confess. I had more fun responding to inquiries about Mike Pitts’ (R-Laurens) journalist registration bill than I have had answering questions about any other proposed restrictions on the press or personal freedoms.
A client called and asked what the response to the bill should be. I responded, “laughter.” The client then asked, “What do we say when someone wants our official response?” “Tell them when we quit laughing we’ll think of something.”
Unfortunately many news organizations groaned and harrumphed like the sea lions on the beach in front of William Randolph Hearst’s castle in California. A reaction I suspect Pitts desired.
If he were honest, and I have no way of knowing, Pitts would have known that his bill had very little chance of getting even subcommittee consideration and no chance of passage.
Of course Pitts’ explanation for filing the bill was as humorous as the bill itself: unhappiness with press coverage of firearms legislation.
If Pitts really had a complaint about news coverage of firearms legislation, as distinguished from editorial and opinion treatment of the issue, he could have responded on the merits of specific proposals. With respect to editorials and opinion pieces, I am confident most newspapers would have welcomed a piece from Pitts addressing specific legislative proposals regarding such things as closing the “gun show loophole” where one can buy a firearm without a background check, or methods to get mental health information into the background check data bases.
But, because he is a member of the General Assembly, with lawyers and typists at his disposal at state expense, Pitts decided to demonstrate what a big shot he is. He used public resources to take the language of the state’s concealed weapons law and modify it to require the registration of journalists. I am guessing that if Pitts had been required to draft the bill himself rather than use the professional staff, he might have decided it would be a better use of his time to take a hunting trip to Alaska (which he has done apparently using his campaign treasury to finance the trip).
Some have suggested that Pitts’ registration bill has less to do with his unhappiness with firearms legislation coverage and more to do with The Post & Courier report on his use of campaign funds to underwrite hunting trips.
Pitts is not alone in promoting legislation to burden the press for fulfilling the role of the press in our democratic society. Every year someone in the General Assembly proposes to remove the sales tax exemption on newspapers and newsprint — exemptions that have been in the law since South Carolina’s initial sales tax legislation was adopted. And a historical note, the imposition of a tax on newspapers and newspaper readers by the Crown was one of the rallying points for colonists in the days leading to the American Revolution. The exemption repeal usually pops up after a newspaper has disclosed questionable or illegal conduct by a public official.
Louisiana and Minnesota both enacted tax schemes that imposed taxes on the largest newspapers in those states — the papers most likely to write about governmental corruption. The Louisiana legislature didn’t even try to hide the fact that the tax was being imposed on those newspapers critical of Huey Long. The United States Supreme Court ruled both schemes unconstitutional.
Minnesota also had a statute that allowed a court to issue an injunction to stop the publication of a newspaper deemed to be a “nuisance” on the basis of what it published about government and government officials. The concept of nuisance in common law allows a court to enjoin an activity when noise, odors or light from an activity on one person’s property interferes with the use of an adjoining property. Minnesota, like Pitts, was trying to be clever in taking law that dealt with one subject and modify it to enable a court to punish a newspaper for publishing that which a public official found offensive.
This is not a new notion. During the administration of John Adams, Congress enacted a Sedition Act to allow the imprisonment of publishers who criticized government and government officials. The notion of sedition was imported from England where one could be put to death in a gruesome fashion for criticizing the monarch. Those punished under the act were supporters of Thomas Jefferson. When Jefferson became President he pardoned those who had been imprisoned and the law expired.
Certainly Pitts was throwing his weight around and acting the bully with his pretend (I hope) legislation, but he is to be applauded for causing us to think about why we have the First Amendment. I tell my classes that the First Amendment exists to protect from the government speech that nobody likes. Even if the nobody is in the General Assembly.
Jay Bender has been SCPA’s lawyer for nearly 30 years. He holds the Reid H. Montgomery Freedom of Information Chair at the University of South Carolina and teaches media law at the USC J-school and USC School of Law.