Lawyer for S.C. Attorney General Subpoenas Reporter

Issue #25.35 :: 08/29/2012 - 09/04/2012

Lawyer for S.C. Attorney General Subpoenas Reporter



BY COREY HUTCHINS





The day Republican Attorney General Alan Wilson toured South Carolina in support of better open-records laws, he was listed as a plaintiff in a broad subpoena that asks a local reporter to turn over her private notes and conversations.



A semi-retired freelancer for The Newberry Observer, Sue Summer has been writing for the paper since 1979. For the past several months she’s been virtually the only reporter chronicling a series of legal proceedings related to a controversy surrounding the estate plan of the late musician James Brown, who lived in Aiken.



In recent legal proceedings she’s covered, the attorney general’s office has blocked open-records requests from a Newberry attorney who is a former trustee of the James Brown estate.



Now, in the course of Summer’s reporting, she’s become a part of the story. And she feels the government is trying to silence her.



“They want to find out who has been providing me with information that I’ve used in my stories,” Summer says. “That’s not something that I can reveal.”



Summer has published roughly 40 stories on the case in the Observer. She also runs a Facebook page about the case and has posted documents on it.



The Aug. 22 subpoena asks for all correspondence between Summer and any source she used for her stories, either on or off the record. Further, it asks for information “in any way touching on” her communications with those sources, drafts of unpublished stories, emails, interviews, phone calls, notes, “or any other type of contact” with anyone relating to them.



University of South Carolina journalism professor and First Amendment lawyer Jay Bender called the subpoena overbroad.



“In the context of recognizing reporter privilege in South Carolina, it’s entirely unsupportable,” he says.



After Godfather of Soul James Brown died of heart failure in 2006, then-Attorney General Henry McMaster intervened to address infighting over the case, rewriting the Brown estate plan against the wishes of two then-trustees. Brown had wanted his wealth to go toward an educational fund for needy children in South Carolina and Georgia called the I Feel Good Trust. Last November, the State Supreme Court heard arguments about whether the takeover was proper. It has yet to rule.



In the meantime, Summer has been reporting on whether the McMaster estate plan settlement was an appropriate protection of the charity. As part of her reporting, she has filed open records requests with the attorney general’s office that have been denied.



That office, she says, “has been stonewalling the release of public documents.”



For instance, Summer says the McMaster deal gave away over half of what Brown had intended to go to the charity, which McMaster has said was to prevent litigation.



But the new attorney general, Wilson, won’t let the public see documents related to the deal, Summer says.



Wilson’s office referred questions to the lawyer representing him, Mark Gende, who declined to comment on pending litigation but said all the plaintiffs respect the First Amendment rights of the press.



At the center of the drama is the diary of a woman who says she is Brown’s wife and is therefore entitled to a spousal share of his money. In July a judge kept in place a gag order on the diary’s contents, at the request of the Attorney General’s office.



Summer has talked to a source or sources who have apparently read the diary, and she has written that according to her source there is clear evidence in the diary that the woman was not Brown’s wife, and knew it.



Summer believes the government wants to know who told her about the contents in the diary.



“They want me to reveal sources for this story, and the bottom line is I can’t do that,” Summer says. “It would hurt every reporter in the state of South Carolina.”



In the mid-1990s, the General Assembly enacted a shield law for reporters. At the time, lawmakers said requiring reporters to be subject to subpoenas like the one Summer is facing interferes with the democratic process, says Bender, the First Amendment lawyer.



South Carolina Press Association director Bill Rogers called the state’s shield law “very good,” and said he hoped it would protect her.



“I think it is a rare occurrence when a reporter can provide information not available from other sources, which is a test in our shield law,” Rogers says. “Reporters are just that — not arms of the government.”



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