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Media groups support taking The Sun News’ lawsuit to the S.C. Supreme Court

Ten media organizations filed a legal brief this week supporting The Sun News’ petition asking the state Supreme Court to review an appeals court ruling in a defamation case brought by lobbyist Mark Kelley.

The S.C. Court of Appeals ruling favored Kelley, who filed the suit against Sun Publishing Co. and investigative reporter David Wren. Wren now works for The Post and Courier in Charleston. The Sun News has asked the state Supreme Court to review the case, and regional and national media organizations filed an amici brief supporting that petition Tuesday.

The organizations want the higher court to hear the case based on two arguments: That “a single phrase in otherwise accurate news coverage cannot make that news coverage substantially false” and “to enforce the court’s ruling to define the heightened burden on public figures attempting to show actual malice,” according to a briefing filed Tuesday with the state’s Supreme Court.

“If the decision below were allowed to stand, it would muddle the existing law of defamation in South Carolina and chill essential journalism about issues of serious public concern, including the issue that was the subject of the journalism in this case: the influence of money in politics,” the briefing reads.

The Thomas Jefferson Center for the Protection of Free Expression, the Society of Professional Journalists, the Associated Press, the Reporters Committee for Freedom of the Press and various news organizations throughout South Carolina and Georgia signed on to the legal brief asking the state Supreme Court to review the case.

The Supreme Court will now decide whether or not to accept the case for review. Typically the court issues written rulings in these cases, said Mark Bailen, an attorney with the firm representing the media companies.

“If the Supreme Court does not accept the case for review, then the Court of Appeals ruling stands,” Bailen said via email. “If it accepts the case, there will be further briefing and then oral argument before the court.”

Kelley sued Wren and Sun Publishing Co. in 2012 after a series of 2010 articles focusing on donations made to a political candidate made Kelley feel the wording of the articles accused him of violating state ethics laws.

Attorneys for the newspaper and Wren have argued that the accounts did not defame Kelley or harm his reputation, but were part of a series of stories about campaign contributions. The newspaper’s leaders maintain they were seeking to determine where those donations came from.

The jury sided with Kelley and in 2014 awarded the lobbyist $400,000 in actual damages and $250,000 in punitive damages. The newspaper appealed that decision, and the appeals court upheld the ruling in December.

The argument before the state Supreme Court states the state appeals court failed to adhere to a mandate about providing “breathing space” for inconclusive or ambiguous speech.

“Such a ruling, if allowed to stand, would pose grave dangers to the practice of journalism,” according to the brief filed by the media organizations. “News articles are not great works of poetry, with every phrase polished to a perfect sheen. Coverage of complex and rapidly changing news events must be produced quickly and accurately, and even the most circumspect journalist is not able to identify, edit and resolve every conceivable linguistic ambiguity prior to publication.”

As for the malice argument, the petitioners provided several cases that they claim could be considered more malicious than Wren’s case, which focuses solely on whether a single phrase would be read by readers as a false accusation, the legal brief states.

“The Court of Appeals in effect converted the subjective actual malice test into an objective ‘reasonableness’ standard,” the document states.

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