# Disabato v. South Carolina Ass'n of School Administrators

> Supreme Court of South Carolina · July 17, 2013 · 404 S.C. 433

URL: https://www.frixlaw.com/law-library/cases/8295136

## Case

- **Full name:** Rocky DISABATO, d/b/a Rocky D. v. SOUTH CAROLINA ASSOCIATION OF SCHOOL ADMINISTRATORS, State ex rel. Alan Wilson, Attorney General, Intervenor
- **Court:** Supreme Court of South Carolina
- **Decided:** July 17, 2013
- **Citations:** 404 S.C. 433; 746 S.E.2d 329; 41 Media L. Rep. (BNA) 2430; 2013 S.C. LEXIS 171; 2013 WL 3723502
- **Precedential status:** Published
- **Opinion:** Concurring in part by Pleicones
- **Judges:** Beatty, Hearn, Kittredge, Pleicones, Toal
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

JUSTICE PLEICONES:
I respectfully concur in part and dissent in part. I wholeheartedly agree with the majority regarding the importance of ensuring transparency and accountability in the expenditure of public funds, and in my view FOIA plays a critical part in providing that transparency. But critical governmental interests alone cannot justify undue burdens on First Amendment rights. In my view, FOIA cannot constitutionally be applied to “any organization, corporation, or agency supported ... in part by public funds or expending public funds” without regard to the potential application to organizations that may engage in both public and private functions because to do so may run afoul of First Amendment rights. I would therefore sever from the definitional section of FOIA the language that applies it in sweeping terms to any organization that receives any public funds. Whether SCASA is subject to FOIA for other reasons can be explored on remand.
South Carolina’s Freedom of Information Act, S.C.Code Ann. §§ 30-4-10 et seq., defines a “public body” as “any organization, corporation, or agency supported in whole or in part by public funds or expending public funds.” S.C.Code Ann. § 30-4-20(a). FOIA requires any such “public body” make its records available for public inspection and copying and announce and hold its meetings open to the public, subject to certain exemptions. §§ 30-4-30 to -90. Failure to comply with the requirements subjects both groups and individuals to civil and criminal liability. §§ 30-4-100 to -110.
*458 SCASA moved to dismiss Appellant’s suit to compel its disclosure of certain records on the basis that the FOIA requirements violate its First Amendment speech rights as a private organization engaged in issue advocacy.
“It is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable.” Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 129 , 112 S.Ct. 2395 , 120 L.Ed.2d 101 (1992). Thus, we must evaluate SCASA’s challenge as a facial one: does FOIA impermissibly intrude on the First Amendment rights of organizations that receive some public funding but are not wholly instrumentalities of the state? As explained infra, in my view the sweeping applicability of FOIA disclosure and open meetings requirements impermissibly intrudes on First Amendment rights because the requirements apply to any organization that receives any public funding without any differentiation of its publicly and privately funded activities.
The First Amendment protects not only the right to speak but also the right not to speak and the right to speak in private. See, e.g., Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 559 , 105 S.Ct. 2218 , 85 L.Ed.2d 588 (1985); Buckley v. Valeo, 424 U.S. 1, 64-65 , 96 S.Ct. 612 , 46 L.Ed.2d 659 (1976). In addition, it protects the right of an association or organization to deliberate internally and to formulate its message without interference. See Herbert v. Lando, 441 U.S. 153, 190 , 99 S.Ct. 1635 , 60 L.Ed.2d 115 (1979) (“Through the editorial process expression is composed; to regulate the process is therefore to regulate the expression.”); Perry v. Schwarzenegger, 591 F.3d 1126 , 1142 n. 9 (9th Cir.2009). Thus, I agree with the majority that FOIA disclosure requirements implicate First Amendment concerns.
In addition, the majority correctly recognizes that the burden FOIA disclosure and open meetings requirements impose on speech and association rights is substantial, impairing an organization’s ability to deliberate internally and outside the presence of its opponents or to formulate its message in private. See AFL-CIO v. Federal Election Commission, 333 F.3d 168, 178 (D.C.Cir.2003) (“[C]ompel[ling] public disclosure *459 of an association’s confidential internal materials ... intrudes on the privacy of association and belief guaranteed by the First Amendment [and] seriously interferes with internal group operations and effectiveness.”). These requirements also impose the substantial burden of legal uncertainty regarding an organization’s obligations and vulnerability to legal attack and even individuals’ liability to criminal charges. See Citizens United v. Federal Election Commission, 558 U.S. 310 , 130 S.Ct. 876, 889, 891 , 175 L.Ed.2d 753 (2010) (“Prolix laws chill speech for the same reason that vague laws chill speech: People of common intelligence must necessarily guess at the law’s meaning and differ as to its application”; “First Amendment standards ... must give the benefit of any doubt to protecting rather than stifling speech.” (internal quotation marks and brackets omitted)).
Nevertheless, it is axiomatic that the First Amendment protects only private speech from governmental interference. 8 Thus, if an organization is in fact a governmental entity or wholly a government instrumentality, it does not possess First Amendment rights. Similarly, a public employee speaking in the course and scope of her duties as a spokesperson for the government’s message has no First Amendment right to avoid restrictions on that speech. See Garcetti v. Ceballos, 547 U.S. 410 , 126 S.Ct. 1951 , 164 L.Ed.2d 689 (2006). Likewise, when the government engages a private speaker to promote its message, the resulting communication is not private speech protected by the First Amendment, and the government is free to restrict it. 9 See Rust v. Sullivan, 500 U.S. 173, 192-95 , 111 S.Ct. 1759 , 114 L.Ed.2d 233 (1991).
The requirements at issue here purport to apply only to “public” bodies as defined by § 3(M-20(a). However, the *460 statutory designation of an organization as a “public body” does not establish that an entity functions as a governmental body for purposes of a constitutional challenge. See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 840-43 , 102 S.Ct. 2764 , 73 L.Ed.2d 418 (1982) (determining whether actions are fairly attributable to the state in § 1983 context).
Our previous interpretation of “public funds” in § 30-4-20(a) somewhat narrows the applicability of the FOIA disclosure requirements. We have held that the definition of “public funds” excludes “payment from public bodies in return for supplying specific goods or services on an arms[-]length basis.” Weston v. Carolina Research and Development Foundation, 303 S.C. 398, 404 , 401 S.E.2d 161, 165 (1991). Thus, many businesses and organizations engaging in transactions with government entities are not subjected to FOIA requirements. However, FOIA remains applicable to the entirety of any recipient organization if “a block of public funds is diverted en masse from a public body to a related organization, or when the related organization undertakes the management of the expenditure of public funds....” Id. The clear language of the statute, we said in Weston , mandates that an organization receiving public funds in even one transaction is a “public body” for purposes of FOIA requirements, and construing the statute to reach only governmental or quasi-governmental organizations would “obliterate both the intent and the clear meaning of the statutory definition.” 303 S.C. at 403 , 401 S.E.2d at 164 . Thus, the statute may reach an otherwise private organization that receives even a negligible amount of public funding for a discrete purpose. 10 In effect, therefore, *461 FOIA disclosure requirements attach as a condition to the receipt by a private organization of any government funding that is not exchanged for a specific good or service in an arm’s-length transaction. § 30-4-20(a); Weston, supra.
Government may not impose an unconstitutional condition on the receipt of public benefits. See Rust v. Sullivan, 500 U.S. at 196-98 , 111 S.Ct. 1759 ; Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 59 , 126 S.Ct. 1297 , 164 L.Ed.2d 156 (2006). A condition is unconstitutional if it could not be imposed directly. See Rumsfeld, 547 U.S. at 59 , 126 S.Ct. 1297 .
Here, the conditions imposed by the receipt of any public funding include that most of the recipient organization’s meetings be on the record and open to the public and that many of its records be disclosed to any interested party. Failing to comply with these requirements subjects organizations and individuals to civil liability and criminal penalty.
Although such requirements do not fit readily within any established line of First Amendment jurisprudence, 11 I assume for purposes of analysis that the majority is correct to evalu *462 ate FOIA disclosure and open meetings requirements as content-neutral time, place, or manner restrictions on speech, thus subject to intermediate scrutiny. Under this standard, speech regulation must advance a significant, legitimate government interest (prong one). See Hill v. Colorado, 530 U.S. 703, 725-26 , 120 S.Ct. 2480 , 147 L.Ed.2d 597 .
I agree with the majority that FOIA is designed to achieve a significant and legitimate government interest in transparency regarding the spending of public funds. However, neither the State nor the majority has explained, nor is it apparent, how extending FOIA requirements beyond the publicly subsidized activities to entire organizations receiving any public funds advances the legitimate public interest at stake. Because the requirements reach activities of an organization that are unrelated to publicly funded activities, they have not been shown to advance a legitimate government interest and fail prong one.
In addition, to survive intermediate scrutiny, the regulation must be narrowly tailored so that the means chosen do not “burden substantially more speech than is necessary to further the government’s legitimate interests” (prong two). Ward v. Rock Against Racism, 491 U.S. 781, 799 , 109 S.Ct. 2746 , 105 L.Ed.2d 661 (1989). Where a statute sweeps broadly without any interest-related purpose for that sweep, it burdens substantially more speech than necessary to accomplish its purpose. FCC v. League of Women Voters of California, 468 U.S. 364, 400 , 104 S.Ct. 3106 , 82 L.Ed.2d 278 (1984) (disallowing prohibition on any editorializing as condition of receipt of any government funding). Indeed, in its unconstitutional conditions analysis, the United States Supreme Court has emphasized that imposition of a speech-related condition is suspect when it applies to a recipient rather than to an activity. 12 See Rust v. Sullivan, 500 U.S. at 197 , 111 S.Ct. 1759 (explaining that a condition’s applying to “the recipient of *463 the subsidy rather than ... a particular program or service” is key to determination (emphasis in original)). Here, the condition is imposed on the recipient of the funds rather than on the particular program or service being funded and thus fails prong two because it lacks any tailoring. The words of another court, though in a slightly different context, 13 are applicable here:
Having concluded that the [plaintiffs] have asserted substantial First Amendment interests in [avoiding] the disclosure of their own internal materials and at least marginal interests in preventing the chilling of political participation by their members and officials, we proceed to assess the strength of the government’s proffered interest in disclosure. The Commission offers two justifications : The regulation deters FECA violations, and it promotes the agency’s own public accountability. Although we have no doubt that these interests are valid, we need not engage in a detailed balancing analysis, for the Commission made no attempt to tailor its policy to avoid unnecessarily burdening the First Amendment rights of the political organizations it investigates. See, e.g., United States v. Popa, 187 F.3d 672, 676 (D.C.Cir.1999) (declining to determine the precise level of scrutiny applicable to a particular statute where it was insufficiently tailored to meet even the least exacting standard). Indeed, the blanket nature of the Commission’s regulation — requiring, as it does, the release of all information not expressly exempted by FOIA — appears to result in the release of significant amounts of information that furthers neither goal. For example, the Commission never explains how releasing investigatory files will deter future violations in cases where, as here, the respondents have been cleared of wrongdoing. Nor does the Commission explain how a policy requiring the release of materials that played no meaningful role in its decisionmaking process will promote its own accountability. The facts of this case are particularly disturbing because the Commission proposes to release between 10,000 and 20,000 pages of documentation that it has never examined. The materials therefore cannot *464 shed light on the Commission’s reasoning, and may not even relate to questionable activities. The fact that the Commission redacts information falling under one or more FOIA exemptions is no answer, since the Freedom of Information Act does little to protect the First Amendment interests at issue.
AFL-CIO v. Federal Election Commission, 333 F.3d 168, 178 (2003). Moreover, the potential intrusion on First Amendment rights here is even more disturbing than in AFL-CIO : recipient organizations are subjected not to disclosure of material related to a discrete investigation instigated by an agency with prosecutorial discretion to decline to investigate spurious accusations but to perpetual and wide-ranging disclosure requirements at the behest of any individual or organization. See §§ 30-4-20(b), 30-4-30(a). In addition, as was also the case in AFL-CIO , the FOIA exemptions do little here to protect the First Amendment interests at issue.
The burden that is imposed on unrelated exercise of a speaker’s First Amendment rights by the definition of “public body” in § 3(M-20(a) has no substantial relation to the governmental interest at stake. It applies solely by virtue of the fact that the organization has received public funds, regardless of any relationship between the organization’s publicly and privately funded activities. Thus, the FOIA disclosure requirements at issue impose an unconstitutional condition on the exercise of First Amendment rights.
In my view, we must strike as unconstitutional the language “or in part” and “or expending public funds” from § 30 — 4— 20(a). Likewise, I would hold that the interpretation of “quasi-governmental body of the State” cannot extend to organizations that engage in activities not fairly attributable to the government itself. I have no trouble also concluding that such action would not destroy the legislative intent of the General Assembly in enacting FOIA, since FOIA would still apply to governmental bodies. Stone v. Traynham, 278 S.C. 407, 409-10 , 297 S.E.2d 420, 422 (1982) (striking an exemption from a statute only “as it applies to appointed bodies” upon a determination that the action would not destroy legislative intent (emphasis in original)). It would be inconceivable the General Assembly would not provide for transparency of governance by public agencies and other governmental bodies *465 on the basis it could not also apply the same disclosure requirements on private organizations in their entirety when they receive any amount of public funding. Id. This is not to say that organizations private only in form would be exempt from FOIA or that appropriately tailored requirements could not be upheld.
Thus, I would affirm as modified, holding that the portions of FOIA extending it to organizations in their entirety upon the receipt of any public funds are facially unconstitutional and are severed from the statute. I would remand to the trial court for further proceedings consistent with this view.
BEATTY, J., concurs.
. See, e.g., Randall Bezanson and William Buss, The Many Faces of Government Speech, 86 Iowa L.Rev. 1377, 1502 (2001) ("The First Amendment is explicitly drafted as a restraint on government: 'Congress shall make no law abridging the freedom of speech.' If the government can claim to act as a First Amendment right holder, the First Amendment loses coherence, for in such situations there is nothing for the First Amendment to act on or constrain. The idea of government ‘speech’ under the First Amendment is thus both illogical and inconsistent with the text.”).
. When the government funds a limited forum for private speech rather than funding its own message, a different standard applies. See Legal *460 Services Corp. v. Velazquez, 531 U.S. 533, 540-42 , 121 S.Ct. 1043 , 149 L.Ed.2d 63 (2001). Viewpoint-based restrictions are permissible only when the government funds dissemination of its own message. Id. The FOIA disclosure requirements at issue here are viewpoint neutral, applying without distinction to a broad range of speech of any organization that receives any public funding. Thus, it is unnecessary to determine whether funds to which the requirements attach are provided for the purpose of communicating the government’s own message or funding a limited forum for private speech.
. At a minimum, for purposes of a First Amendment challenge, we must assume that a lay person would read the law in this way. See Citizens United, supra.
. First Amendment jurisprudence contains two clear lines of disclosure analysis. One relates to mandated disclosure of membership lists, primarily implicating the associational rights of members. See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 , 78 S.Ct. 1163 , 2 L.Ed.2d 1488 (1958); NAACP v. Button, 371 U.S. 415 , 83 S.Ct. 328 , 9 L.Ed.2d 405 (1963). The other distinct line of cases dealing with disclosure relates to the election context, primarily implicating political association and somewhat more extensive disclosure, but much less than is required under FOIA. See, e.g., Citizens United, supra; Buckley v. Valeo, supra; John Doe No. 1 v. Reed, - U.S. -, 130 S.Ct. 2811 , 177 L.Ed.2d 493 (2010). Neither is directly applicable to the required disclosure of broad swaths of an organization’s internal communications, implicating the right to speak privately, deliberate internally, formulate a message without interference, and associate effectively. Even if election-related disclosure precedents were directly applicable in this case, as the majority applies them for purposes of associational rights, in my view the majority has not shown how the restrictions at issue are reasonable in relation to their purpose or are not overbroad. If, for example, an organization received government funding for a discrete, relatively minor activity in which it acted to convey the government’s message, there is no reason why its membership list need be disclosed in order for the public to know the purpose and manner in which public funds were spent. See Clingman v. Beaver, 544 U.S. 581, 590 , 125 S.Ct. 2029 , 161 L.Ed.2d 920 (2005).
. The cases cited by the majority as upholding First Amendment challenges to other states' FOIA requirements are inapposite because, in those cases, the restrictions were challenged as infringements on the First Amendment rights of government officeholders acting in their official capacities. Those cases did not address the constitutionality of extending FOIA requirements to officeholders or entities engaging in protected activities unrelated to their publicly funded activities.
. AFL-CIO analyzed a Federal Election Commission policy of publicly disseminating all materials obtained in its investigations of organizations accused of violating election laws.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8295136. Public record. Not legal advice.