Fitts v. Kolb

Decision Date20 November 1991
Docket NumberCiv. A. No. 3:90-2119-17.
Citation779 F. Supp. 1502
CourtU.S. District Court — District of South Carolina
PartiesJames A. FITTS, Drew Wilder, and the South Carolina Press Association, Plaintiffs, and Charles L. Wyrick, Jr. and the American Civil Liberties Union of South Carolina, Inc., individually, and on behalf of others similarly situated, Intervenors-Plaintiffs, v. Wade S. KOLB, Jr., in his official capacity as Solicitor, and individually, Defendant.


Jay Bender, Baker, Barwick, Ravenel & Bender, Columbia, S.C., for plaintiffs.

William H. Davidson, III, Naufil and Ellis, Columbia, S.C., for defendant.

Edmund H. Robinson, Shimel, Ackerman, Theos, Spar & Robinson, Charleston, S.C., for intervenors-plaintiffs.


JOSEPH F. ANDERSON, Jr., District Judge.

This is an action seeking a declaration that the South Carolina criminal libel statute1 violates the First and Fourteenth Amendments to the United States Constitution. Plaintiffs challenge both the facial validity of the statute and its application to activities related to public expression in South Carolina. The case pits a state law, which has been in place since 1912, against the First Amendment to the United States Constitution, adopted by the states 200 years ago. The court concludes that the statute, as presently written, is unconstitutional.


This action was initiated by James F. Fitts, Drew Wilder, and the South Carolina Press Association (SCPA). Fitts and Wilder are working journalists in South Carolina. The SCPA is a voluntary association of some, but not all, newspapers in South Carolina. The defendant, Wade S. Kolb, is the Solicitor of the Third Judicial Circuit of South Carolina. The original complaint sought a declaration2 that the criminal libel statute is unconstitutional only as it relates to the publication of newspapers in South Carolina.

Shortly after the action was instituted, Charles L. Wyrick, Jr. and the American Civil Liberties Union of South Carolina, Inc. (ACLU) sought leave to intervene. Wyrick is a newspaper publisher who is not a member of the SCPA, and the ACLU is an organization whose goal is the agressive advocacy of individual rights contained in the Bill of Rights. The court permitted the intervention and, upon motion of the intervenor-plaintiffs, certified two classes of plaintiffs. The first, designated the "speaker" class, consists of all those who speak, write, broadcast, publish, or otherwise communicate about public officials, public figures, or matters of public concern in South Carolina, and those who might wish to do so in the future. The second, designated the "reader" class, consists of all those who desire to hear, read, or receive such communications. The intervention of these new parties broadened the scope of the constitutional challenge to the criminal libel statute, so as to include all types of public expression in South Carolina.

At a status conference conducted shortly after the issues were joined in this case, both sides agreed that the salient facts in this controversy were essentially undisputed and that the case presented pure questions of law for the court. For this reason the parties agreed to, and did, enter into stipulations of fact. The court adopts these stipulations as its findings.3


In an article entitled, "My Vote Is Not For Sale," dated May 17, 1988, Fitts, the president of The Voice, a weekly newspaper in Kingstree, South Carolina, referred to two state legislators participating in upcoming elections as "black traitors" who participated in "corrupt dealings." The article further stated that "if every black in Williamsburg County would start stealing today and steal every day for the rest of their lives, they could not steal as much as those two have stolen during their time in power."

The two politicians to whom Fitts referred in the article, Senator Frank H. McGill and Representative B.J. Gordon, both subsequently filed charges alleging that Fitts published the statements in violation of the criminal libel statute. The arrest warrants alleged that Fitts "did, with malicious intent, originate, circulate, and publish a false statement ... intended to injure ... their character and reputation."

Following his arrest, Fitts was taken before a state magistrate who set bond at $40,000—eight times the maximum fine provided for in the statute. Fitts spent two nights in jail before being released on his own recognizance. The magistrate required, as a special condition of his release, that he not write any further derogatory articles about Senator McGill and Representative Gordon. Thereafter, the Williamsburg County grand jury entered an indictment charging Fitts with two violations of the criminal libel statute. Before his case came to trial, McGill and Gordon, who had both been re-elected in the interim, wrote to the Solicitor and requested that all charges be dropped. Gordon stated in his letter that "justice has prevailed by the grand jury's indictment."4 The defendant, Kolb, then dismissed the indictment.

In a similar incident, Drew Wilder, a writer for The Banner, a newspaper in Orangeburg, South Carolina, published an article concerning a local high school principal, Hammond D. Still, and his wife, Rhonda Still. The article alleged that Mr. Still "was arrested and charged with assault and battery and disorderly conduct ... in connection with an attack on his wife." The article further stated that Mrs. Still "was apparently sitting in her car when her husband struck her in the face dislocating her jaw and breaking her nose." Although Wilder reported that Mr. Still had been charged with a criminal act, in fact, he had not. Wilder's article was based on a police incident report that incorrectly stated that charges had been filed.

Mr. and Mrs. Still swore out separate arrest warrants, on separate days, alleging that Wilder had violated the criminal libel statute. Affidavits signed by the Stills charged Wilder with maliciously publishing and circulating a false story, in The Banner article and in a radio broadcast from WBAW, a station which Wilder managed. These affidavits also maintained that the stories had injured the reputations of Mr. and Mrs. Still. Following his arrests in connection with these statements, Wilder was released on personal recognizance. Both of the warrants issued against Wilder were dismissed by the Solicitor of the Second Circuit at the preliminary hearing stage.


Criminal libel is notoriously intertwined with the history of governmental attempts to suppress criticism. The notion that expression may be penalized goes back at least as far as 880 A.D. when Alfred the Great decreed that "if anyone is guilty of public slander, and it is proved against him, it is to be compensated with no lighter penalty than the cutting off of his tongue...."5 Throughout the centuries, criminal libel has experienced what one court has referred to as an "ignominious history."6 One commentator has suggested that the law of defamation is "a forest of complexities, overgrown with anomalies, inconsistencies, and perverse rigidities."7

In medieval England, prosecutions for libel were originally under the jurisdiction of the ecclesiastical courts,8 but as early as 1275, the royal courts assumed jurisdiction over seditious libel, the branch of libel dealing with false statements about the affairs of the state and those who administered the government.9 The most notorious example of the use of the criminal law to punish seditious libel occurred in the royal Court of Star Chamber.10 There, truth was not a defense, and a defendant was not entitled to a jury trial on the issue of whether the alleged statement was defamatory. Eventually, the Star Chamber's use of criminal libel was adopted by the common-law courts in England, which at least provided trials by jury.11

The modern law of criminal libel is said to have its origin in De Libellis Famosis,12 which arose out of a libel in verse directed against the Archbishop of Canterbury, then deceased, and a living Bishop. Lord Coke analyzed the principal points resolved:

Every libel is made either against a private man, or against a magistrate or public person. If it be against a private man it deserves a severe punishment, for although the libel be made against one, yet it incites all those of the same family, kindred or society to revenge, and so tends per consequens to quarrels and breach of the peace, and may be the cause of the shedding of blood and great inconvenience; if it be against a magistrate, or other public person, it is a greater offense; for it concerns not only the breach of the peace, but also the scandal of Government; for what greater scandal of Government can there be than to have corrupt and wicked magistrates to be appointed by the King to govern his subject under him?13

Thus, one of the principal rationales for punishing private libels was that they tended toward breach of the peace. A corollary to this proposition was that truth was irrelevant; in fact the true insult was considered more likely to give offense "for, as the woman said, she would never grieve to be told of her red nose if she had not one indeed."14

In the colonies, the law of criminal libel was applied against critics of the Crown with equal ferocity. A New York publisher's attack of the colonial governors in 1735 led to the famous trial of John Peter Zenger. Indicted for criminal libel, he was defended by Andrew Hamilton, who sought to have the jury pass on his defense of truth. The royal judge denied this defense, but the jury disregarded the charge and acquitted Zenger.15 Zenger's case became a symbol of the oppressions of the Crown during the revolution.

With the establishment of independence, the states adopted new constitutions with guarantees of freedom of speech and the press,...

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  • Phelps v. Hamilton
    • United States
    • U.S. District Court — District of Kansas
    • 2 Julio 1993
    ...a Kansas court add the essential element of "actual malice" to the statutory definition of criminal defamation. See Fitts v. Kolb, 779 F.Supp. 1502, 1511-12 (D.S.C. 1991). In this court's opinion, K.S.A. 21-4004 is not readily subject to a narrowing and curing construction. The given common......
  • Phelps v. Hamilton
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    • U.S. Court of Appeals — Tenth Circuit
    • 11 Julio 1995
    ...challenges to similar criminal defamation laws have invalidated them and "left the revisions to the state legislators." 779 F.Supp. 1502, 1511 & n. 42 (D.S.C.1991). Moreover, the district court highlighted that Fitts refused to interpret the criminal defamation statute along the lines of So......
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    • 24 Julio 2006 the mayor's prohibition of its sale conferred standing on the ACLU to prosecute free speech claims on their behalf); Fitts v. Kolb, 779 F.Supp. 1502, 1510 (D.S.C.1991) (because the ACLU's members "frequently take controversial public positions on public officials, public figures, and mat......
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    ...(noting the problems inherent in trying to "reconcile the law of defamation with the First Amendment."); see also Fitts v. Kolb, 779 F.Supp. 1502, 1514 (D.S.C.1991) (stating that Sullivan "added a constitutional dimension to the law of libel"). The appropriate circumstances referred to abov......
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