SC judge poised to dismiss former LR5 school board member’s lawsuit over Facebook group

A South Carolina judge indicated Friday she’s prepared to dismiss a now-former Midlands school board member’s lawsuit against a constituent who ran a Facebook group critical of the board.

Judge Jean Toal did not issue a formal order after a hearing Friday, but said from the bench that a lawsuit brought by former Lexington-Richland 5 school board member Ken Loveless would not be able to overcome federal law and Supreme Court precedent moving forward.

Loveless sued district parent Leslie Stiles in March over comments made in her Facebook group Deep Dive Into D5. The lawsuit ultimately led to a page that was often critical of the Chapin-Irmo area school board being shut down.

Loveless sued Stiles both over critical comments she made on the Facebook page, and for allowing others to post comments critical of Loveless including calling him “Crooked Ken” and “a loser.”

But Toal agreed with defense attorney Chris Kenney that action against Stiles for others’ comments on the page is barred by the federal Communications Decency Act, which prohibits the operator of a website from being liable for public comments posted by others to the site.

Further, Toal said Loveless attorney Desa Ballard failed to establish “actual malice” against Loveless in the comments. That’s the high standard set by the U.S. Supreme Court in the case of New York Times v. Sullivan for a public official such as Loveless, an elected school board member, to take action for defamation.

Toal, a former chief justice of the S.C. Supreme Court, did not issue a formal order Friday at the Richland County Judicial Center, but invited Kenney to draft a formal order within two weeks. Ballard would then have a week to respond to Kenney’s draft, Toal said. Kenney confirmed after Friday’s hearing he would draft an order to dismiss based on the judge’s reasoning.

Toal did not rule Friday on a separate defamation case Loveless brought against school district constituent Kevin Scully for authoring several of the allegedly defamatory posts, including saying that “Crooked Ken is an unethical hypocrite and a liar.” But Loveless’ suit in that case would have to meet the same “actual malice” standard that Toal said would doom his lawsuit against Stiles.

Loveless last month lost his re-election bid to the school board by just 16 votes, while Scully won election to a different seat on the school board for the first time.

Toal also did not dismiss counterclaims brought by Stiles that Loveless’ lawsuit constituted an abuse of the legal process meant to chill the free speech rights of Stiles and other critics of the board.

Ruling on a separate motion Friday, Toal ordered Loveless to respond to requests for information from the defense. She ruled that Loveless had failed to provide any documents requested in the case since March. Loveless also had objected to questions posed by the defense, and Ballard acknowledged that one of her responses was “sarcastic.”

“This indicates an attitude on the part of the plaintiff I find distressing,” Toal said at one point of Loveless’ failure to offer substantive responses to the defense’s questions. “You can’t bring a case like this and not expect questions from the defense. You have to subject yourself to questions that may be uncomfortable. That’s the nature of the beast.”

The judge gave the plaintiff 10 days from the hearing to provide answers to the defense. She also ordered Nikki Gardner, a now-former board member, and current member Catherine Huddle to turn over any private communications to or about Loveless sent between Loveless’ election to the board in November 2018 and the lawsuit’s filing in March 2022. Gardner and Huddle had declined to respond to defense requests for information.

Both must also respond within 10 days, but Toal said they may remove the names of any Lexington-Richland 5 students they may have discussed.

The judge did decline a request by attorney Tucker Player to block a subpoena Loveless issued for information on the Facebook pages of Player and several other people as part of the lawsuit against Scully. Loveless is asking the social media giant to turn over information from the accounts of 31 people connected to the school district, including Player, the attorney for a Lexington-Richland 5 schoolteacher who was called to give a deposition in the case, as well as his client Mary Wood.

Toal said that since the subpoena was issued to Facebook and not the individual account holders, it was up to the social network to respond to the request. Player and others could then seek relief from a South Carolina court if Facebook agrees to turn over the information.

But given her knowledge of federal privacy laws, “That would be an amazing thing, and I think it’s unlikely to happen,” Toal said, adding that “I’m not on Facebook for many reasons, and that is a good one.”

Loveless is also seeking the Facebook information of two McClatchy reporters who have covered the district, Bristow Marchant of The State and Adam Benson of the Myrtle Beach Sun News. Neither reporter was represented by Player in the motion heard Friday. An attorney for The State has written to Facebook asking that the website not comply with the subpoena.