Each month in this column, I attempt to highlight a recent development in media law, either in South Carolina or nationally, that may have an impact on the news organizations that are members of the Press Association. But for this column, in honor of the retirement of Bill Rogers after 33 years as executive director of the Association, I thought it would be enlightening to look at media law as it existed in South Carolina and nationally when Bill began here, and explore how the law has changed since. Of course, Bill and his colleagues at the Association, SCPA attorneys Jay Bender and Taylor Smith, and the members of the Press Association have also all played in a role in these developments, particularly at the state level.
Nationally, any discussion of modern media law essentially begins with the U.S. Supreme Court’s 1964 decision in New York Times v. Sullivan, which revolutionized American libel law by recognizing that the free speech guarantees of the First Amendment requires some limitations on defamation. In Sullivan the court held that in order to win a libel case, public officials must show “actual malice”: that the media or other defendant either knew that the statement at issue was false or acted with “reckless disregard” whether it was true or false. 
By the time Bill began at the Press Association in 1988, the U.S. Supreme Court was deep into the process of expanding and refining the standards it had imposed in Sullivan, a process that continued for more than two decades. The result is the law today: that public figures—not just public officials—need to show “actual malice” in order to win any damages in a libel case. But private figures can win damages by showing whatever the state in which they are suing requires—which cannot be just that the material was published—but if the issue is a matter of public concern then they must show “actual malice” in order to win punitive damages. (If it is a matter of private concern, the state standard applies for both compensatory and punitive damages.) 
In 1988—the year that Bill began at the Press Association—the U.S. Supreme Court extended the “actual malice” requirement to a claim for “intentional infliction of emotional distress” by evangelist Jerry Falwell over an ad parody in Hustler magazine which falsely stated that Falwell’s first sexual experience was in an outhouse with his mother. The Supreme Court agreed with the jury and the lower appeals court that the ad parody “was not reasonably believable,” so that Falwell—a public figure—could not show that the transparently fake ad had been published with “actual malice.” Read more