The South Dakota Department of Public Safety and county and city police have stopped issuing information about traffic accidents, for fear that such disclosures may violate the new crime victims’ bill of rights that voters wrote into our state constitution this month. The provision zipping law enforcement’s lips is Clause 5 of Amendment S, popularly known as “Marsy’s Law,” now seated in Article 6, Section 29 of our state constitution:
The right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information about the victim, and to be notified of any request for such information or records;
I suspect the thinking is that if a car has crashed, any fatalities may be victims of whatever traffic violation led to the injury or death. Public officials must thus check with the victim and the victim’s family before publicizing any identifying information.
But notice that Amendment S doesn’t deal strictly with how the state deals with crime victims. Just as the constitution protects free speech from infringement by the state or by other citizens, so does our constitution now protect these new victim rights from infringement by any party, public or private. If cops can’t release the names of crash victims, neither can journalists, bloggers, or even regular folks posting info on social media. Suppose you were a friend of the 39-year-old male who died Saturday in that car crash south of Highmore. Stricken with grief, you publish a quick memoriam to your friend on Facebook. Technically, you’ve just violated your deceased friend’s family’s constitutional right as crime victims to prevent the disclosure of information that could be used to locate or harass them.
Or consider this reporter’s nightmare, a scenario that I explained here on the blog back in August 2015 when Republican lawyer and strategist Jason Glodt first made his proposal public. Senator-Elect Reynold Nesiba (D-15/Sioux Falls) was arrested on November 14 (in a suspicious media spectacle that has conservatives and liberals wondering who leaked what to whom and why) on a charge of sexual contact without consent. Two days before Glodt’s amendment took effect, the media reported the victim’s age, sex, and house block number and street. That information, taken from the original arrest affidavit from Sioux Falls Police Department Detective Chris Schoepf, remains online as of this writing. That information could be used to locate or harass the victim. The Glodt amendment thus makes it illegal for any media outlet to continue to disseminate that information. The victim could demand its removal and could sue the journalists and media company responsible. Covering the crime beat objectively could become impossible, as reporters can only report about the accused and don’t dare present information about accusers who claim victim status.
Consider how Glodt’s amendment would have stifled journalism on a case of much greater public interest, the death of Richard Benda. When the former state economic development chief was found dead on his brother-in-law’s land in October 2013 with “a bullet hole in his side,” journalists pounced on the story, opening the floodgates of South Dakota’s EB-5 scandal. Had Glodt’s amendment been in effect in 2013, Governor Daugaard could not have issued a statement naming Benda as the dead man. Reporters would not have been allowed to disclose Benda’s name. If Benda’s ex-wife had wanted to keep the suicide a secret (and she refused to release the death investigation records), the EB-5 story might not have broken for weeks or months, plenty of time for concerned parties to quietly hide documents, coordinate stories, and come up with a more solid story making Benda the fall guy. Conceivably, members of Benda’s family could still assert Glodt rights over any documents that “could disclose confidential or privileged information” about Benda and deals he may have made during his world travels on behalf of South Dakota’s EB-5 program, thus stifling further journalistic investigation of a still unresolved scandal.
So far the press has focused on the impact of Glodt’s new rights for crime victims on local and state government. I would suggest the press should take a look at the implications of Glodt’s amendment for the press itself.