I haven’t paid a lot of attention to S.C. legislators’ effort to protect kids from online pornography. It's not that I sympathize with the pornographers' arguments. Of course we ought to make it harder for kids to access porn, and I have no problem with making adults verify their age to access it — much the same way they had to show proof of age to get into a theater showing X-rated movies back when movie theaters were a thing.
Yes, I know, electronic records, with their frequent hacks and forever trails. Frankly, I just don’t have a lot of sympathy for pornography patrons. It’s absurd to believe that’s what the Founding Fathers had in mind when they wrote the First Amendment.
Where are all those originalist justices when you need them?
Scoppe
Still, the bill just felt so much like another one of those ridiculous culture-war battles, and every time I thought maybe I should write about it anyway, something more urgent came up: improving our judicial selection system, merging our duplicative health agencies, the latest efforts to exacerbate the teacher shortage, that big utility bill. Besides, it seems like shooting fish in a barrel to advocate for such a populist bill, one that's so subject to pandering.
But my interest in H.3424 spiked when I read the article by The Post and Courier’s Nick Reynolds about the Senate subcommittee debate on it earlier this month. It started like this: “The South Carolina Senate is poised to enact a pair of bills requiring users of social media and pornographic websites to verify their age before accessing the content despite concerns from their own attorneys of a likely legal challenge.”
The article quoted Assistant Senate Clerk Kenneth Moffitt telling the panel that “there are vulnerabilities on First Amendment grounds” with the anti-porn bill and “There may be vulnerabilities as it relates to federal law, even though this is dealing with, ultimately, obscenity.”
The S.C. Daily Gazette noted that Mr. Moffitt echoed some of the same warnings as a privacy advocate about threatening the privacy rights of adult porn consumers. But, Columbia’s State newspaper reported, he also told the subcommittee that protecting children could be considered a compelling state interest, which can trump constitutional concerns, and said a lot of states “have passed something similar to this, or have some sort of age verification process that’s similar.”
Nothing extraordinary about any of that. In fact, the only thing extraordinary about Mr. Moffitt’s overview of the legal landscape, as best as I can tell, is that it got so much press.
Such briefings are so routine around the Statehouse that reporters don’t normally mention them. And in fact, they’re normally drowned out by the competing legal overviews provided by legislators themselves, because these constitutional questions usually come up in the House and Senate Judiciary committees, which have a stable of lawyers (and legislators) who are well-versed in constitutional law — or at least, in the case of the committee members, convinced that they are.
But step outside the Statehouse and walk a few blocks up Columbia’s Main Street to Columbia City Hall, or drive a mile over to the Richland County administrative building or up to the Richland 1 School District headquarters — or to just about any city or county council or school board meeting room in the state (you know who you are, Charleston County Council, and School Board) — and you’ll experience something very different.
In any of those spots, you’ll see tight-lipped lawyers advising their clients to kick the public out of their legal briefings. Yes, state law allows executive sessions for “the receipt of legal advice.” Lawmakers clearly had in mind advice that related to “a pending, threatened, or potential claim,” but they threw in “or other matters covered by the attorney-client privilege,” and any government lawyer worth our tax dollars will tell you everything a lawyer tells her client is covered by attorney-client privilege. And the elected officials won't dare challenge her, because they don't want to face those news articles about how they ignored their attorney's warning — or the ones that show the attorney's warning was ridiculous.
Sen. Sean Bennett easily could have kicked the public out while Mr. Moffitt was briefing his subcommittee on the pornography and social media bills. But of course he didn’t, because such an action would have been unprecedented. Our state legislators realize that questions about the constitutionality of proposed legislation and the legality of contemplated actions are an essential part of the decision-making process, which the public has a right to witness.
I’m not praising our legislators for their commitment to open government. Far from it. They still refuse to close gaping loopholes in the Freedom of Information Act — some even worse than the “legal advice” loophole that most boards and councils can’t even stay inside of. I’ve always suspected that the Senate’s executive sessions stray far beyond the character of candidates for confirmation. And legislators routinely violate the spirit if not the letter of the law that prohibits a quorum of conference committee members from meeting in secret.
But it would no more occur to legislators to kick out the public to hear what their attorney has to say about the constitutionality of pornography restrictions than it would occur to them to kick the public out of the Senate chamber while senators are debating the budget.
No, really; that only happened once. And it was decades ago. Today, the entire budget debate — from subcommittee through full committee and on the House and Senate floors — is online for the world to see.
Unfortunately, while Mr. Moffitt’s legal briefing was open to the public, you can’t find it online, because the Labor, Commerce and Industry Committee doesn’t prioritize making it easy for the public to follow its work by livestreaming its meetings. Of course, neither do a lot of school boards and city and county councils. But that's something lawmakers could still fix this year. The abuse of the legal-briefing exemption, not so much.
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