Lawyer who fought to keep SC courts, public meetings open to retire

South Carolina’s best-known advocate of a free press and government accountability also is an adventurist who would hop on his motorcycle and drive face-first toward horizons across the United States.

Attorney, professor, one-time athletics trainer and adrenaline addict Jay Bender is preparing to retire later this year at age 72. He was roasted Friday by those who have worked shoulder to shoulder with him against power brokers and closed-door government dating to 1970.

In a career as South Carolina’s leading litigator for the First Amendment, open records, open courts and open public meetings, Bender leaves a hole for backers of sunshine in public life, his supporters said.

“He has been the most important figure over several decades to make sure all of us — not just journalists — know how their money is spent, how the rules have been made and how the rules have been broken,” said Trisha O’Connor, former executive editor of The Sun News newspaper in Myrtle Beach, a longtime chairwoman of the S.C. Press Association’s Freedom of Information committee.

Bender relishes holding to account those with power.

“Certainly, he enjoys challenging capricious authority,” said Bill Rogers, executive director of the S.C. Press Association.

Bender challenged himself while in his 60s. He straddled his vintage BMW motorcycle and drove more than 5,500 miles to Alaska. A second trip took him some 9,000 miles to the four corners of the United States.

Retired state Supreme Court Chief Justice Jean Toal has known Bender almost 50 years. They worked together at a Columbia law firm where Bender was a law clerk and his talent for writing cogent legal arguments became apparent. He became a partner with that firm, now called Baker, Ravenel & Bender.

Early in their careers, Toal and Bender defended student journalists who refused to identify their sources for an article about an unnamed University of South Carolina professor who used drugs. The 5th Circuit prosecutor subpoenaed the students to testify before a grand jury. Toal and Bender advised them to refuse to answer and persuaded the prosecutor to not file charges.

Toal cited their victory against the Richland 1 school board after it closed Booker T. Washington High School, Columbia’s premier African-American public high school, during a secret meeting whose agenda listed a discussion only of school “facilities.”

As the decades unfolded, Bender would win cases that struck down criminal libel, created case law that defined stricter rules for local governments to hold closed-door meetings, what they could do in those meetings and helped establish that courts — including juvenile court — are open to the public. Along the way, Bender wrote a shield law for journalists and helped craft refinements to the state’s open-records law.

“Without a doubt,” Toal said, “the transparency we enjoy now is tied to the long legal career of Jay Bender. I can’t think of any First Amendment case in the last 20 years in South Carolina that hasn’t involved Jay.”

The New Mexico native came to Columbia in the 1966 to become a trainer on the staff of then-football coach Paul Dietzel, to study journalism and later to graduate from USC’s law school.

That evolved into a career representing the state’s newspapers, TV and radio stations even as the media landscape was overhauled by the internet, social media and rapidly changing standards of defamation.

Margaret Ford Wallace, director of the S.C. Broadcasters Association, said Bender has provided legal guidance to the association’s 129 TV and radio station members. She called him the go-to guy for her industry.

“He’s extremely bright and extremely well versed in broadcast law,” Wallace said. “He’s all that, and he’s funny — a great storyteller.”

Bender also made time to teach journalism and media law to USC students studying journalism and public relations as well as those seeking to become lawyers.

“His students have tremendous respect for him,” said Carmen Maye, a USC journalism professor and once an associate in Bender’s firm. “They recognize they are being taught media law by someone who has been in the trenches.”

His respect reaches into courtrooms and will be missed, Rogers said. “His credibility with the judges ... that’s going to be a huge problem” in winning cases.

Rogers likes to kid Bender about not ever wearing a judicial robe.

“The only judge he ever got to be is a certified barbecue judge,” Rogers said.

Alex Sanders was the first chief judge of the state Appeals Court and a one-time legislator who worked with Bender. He described his impact this way: “Jay has had a remarkable career given that he has chosen the First Amendment as his career — or, more likely, the First Amendment chose him.”

Asked who could fill the gap Bender’s retirement will leave, Sanders said, “The First Amendment will choose somebody else just as it chose him.”

This story was originally published April 22, 2016 at 2:35 PM with the headline "Lawyer who fought to keep SC courts, public meetings open to retire."