The opinion
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2021 Term FILED
_______________ November 19, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 20-0722 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
_______________
JANE YURISH and KRISTEN DOUTY,
Third-Party Plaintiffs Below,
Petitioners
v.
SINCLAIR BROADCAST GROUP, INC.,
BARRINGTON BROADCASTING GROUP, LLC,
CUNNINGHAM BROADCASTING CORPORATION,
DEERFIELD MEDIA, INC.,
GOCOM MEDIA OF ILLINOIS, LLC,
GRAY TELEVISION, INC.,
HOWARD STIRK HOLDINGS, LLC,
ROBERTS MEDIA, LLC,
NEW AGE MEDIA,
NEXSTAR MEDIA GROUP, INC.,
TEGNA, INC.,
E.W. SCRIPPS COMPANY,
THOMAS BROADCASTING, INC.,
RSV NG, LLC, and
PRESTON and SALANGO, PLLC,
Defendants Below,
Respondents
____________________________________________________________
Appeal from the Circuit Court of Berkeley County
The Honorable Laura V. Faircloth, Judge
Civil Action No. CC-02-2019-C-93
AFFIRMED
____________________________________________________________
Submitted: October 26, 2021
Filed: November 19, 2021
Christian J. Riddell, Esq. Thomas V. Flaherty, Esq.
The Riddell Law Group Flaherty Sensabaugh Bonasso PLLC
Martinsburg, West Virginia Charleston, West Virginia
Counsel for Petitioners
Stuart A. McMillan, Esq.
J. Tyler Mayhew, Esq.
Bowles Rice LLP
Martinsburg, West Virginia
Counsel for Respondent
RSV NG, LLC
Ben Salango, Esq.
Preston & Salango, PLLC
Charleston, West Virginia
Counsel for Respondent
Preston and Salango, PLLC
JUSTICE ARMSTEAD delivered the Opinion of the Court.
JUSTICE WOOTON concurs and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. “Appellate review of a circuit court’s order granting a motion to
dismiss a complaint is de novo.” Syllabus Point 2, State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).
2. “A motion to vacate a judgment made pursuant to Rule 60(b), W.Va.
R.C.P., is addressed to the sound discretion of the court and the court’s ruling on such
motion will not be disturbed on appeal unless there is a showing of an abuse of such
discretion.” Syllabus Point 4, Vanderpool v. Hunt, 241 W. Va. 254, 823 S.E.2d 526 (2019).
3. “The constitutionality of a statute is a question of law which this Court
reviews de novo.” Syllabus Point 2, In re Brandi B., 231 W. Va. 71, 743 S.E.2d 882 (2013).
4. The West Virginia Wiretapping and Electronic Surveillance Act,
West Virginia Code §§ 62-1D-1 through 16 runs afoul of the First Amendment to the
United States Constitution and Article III, Section 7 of the West Virginia Constitution and
is unconstitutional as applied to the extent that it allows a civil action to be maintained
against an innocent third party who publishes information of public concern that was
obtained by the unlawful interception of wire, oral, or electronic communication in
violation of the statute but who did not participate in the unlawful interception of the
communication.
i
Armstead, Justice:
Jane Yurish and Kristen Douty (“Petitioners”) appeal the Circuit Court of
Berkeley County’s final order denying their Rule 60(b) Motion for Relief from Final Order,
in which the circuit court granted motions to dismiss pursuant to Rule 12(b)(6) of the West
Virginia Rules of Civil Procedure filed by Respondents 1 Barrington Broadcasting Group,
LLC; Cunningham Broadcasting Corporation; Deerfield Media, Inc.; GOCOM Media Of
Illinois, LLC; Gray Television, Inc.; Howard Stirk Holdings, LLC; Roberts Media, LLC;
New Age Media; Nexstar Media Group, Inc.; Sinclair Broadcast Group, Inc.; TEGNA;
Inc.; Thomas Broadcasting, Inc.; E.W. Scripps Company; 2 and Preston and Salango,
PLLC. In the case of Bartnicki v. Vopper, 532 U.S. 514 (2001), the United States Supreme
Court determined that a Pennsylvania statute providing civil remedies to those aggrieved
by the interception and disclosure of illegally intercepted communications was
unconstitutional as applied to information of public concern that was published by those
who did not engage in illegal conduct, but who knew or should have known that the
communications had been illegally obtained. In this matter, we likewise find that West
Virginia’s similar statutory scheme is unconstitutional as applied and affirm the circuit
court.
1
Throughout this opinion, “Respondents” means all named Respondents.
Respondents are also in certain references divided into two groups – “Media Respondents,”
which are all named Respondents except Preston and Salango, PLLC and “Preston and
Salango, PLLC.” “Preston and Salango, PLLC,” means only that respondent.
2
There were two additional media defendants below, Waitt Broadcasting,
Inc. and West Virginia Radio Corporation. Petitioners did not appeal the circuit court’s
order as it related to those defendants.
1
I. FACTUAL AND PROCEDURAL BACKGROUND
Because we must accept as true all allegations contained in the Third-Party
Complaint, this recitation of facts derives from the Third-Party Complaint filed by
Petitioners.
Petitioners were employees of the Berkeley County Board of Education at
Berkeley Heights Elementary School. A.P. was a special education student in their
classroom. Petitioners allege that A.P.’s mother violated both the West Virginia
Wiretapping and Electronic Surveillance Act 3 (“West Virginia Act”) and its federal
construct 4 (“Federal Act”) by placing a secret audio recording device in A.P.’s hair. After
having the surreptitious recording device placed in her hair, A.P. went to school and the
recording device picked up all ambient noise, conversations, and statements made within
audible range of her hair. After the recording was made, A.P.’s mother, or someone acting
on her behalf, edited approximately sixty to one hundred and twenty seconds of clips from
that recording and provided it to the Respondents. The recordings that were disseminated
3
See W. Va. Code §§ 62-1D-1 -16 (2020 Repl. Vol.)
4
See 18 U.S.C. §§ 2510 - 2523.
2
by A.P.’s mother to Respondents purported to show Petitioners physically and verbally
abusing students. 5
All Respondents, except Preston and Salango, PLLC, are various media
groups or outlets. The edited audio clip was played by Respondents in numerous broadcast
areas nationwide, placed upon social media, and was shared on the internet. The Berkeley
County Board of Education subsequently requested that Petitioners resign their
employment in lieu of termination. Petitioners offered their resignations.
Petitioners’ Third-Party Complaint alleged that: “It was known by all
[Respondents] that the footage came from a secret recording which was placed in the hair
of A.P. and for which no consenting party was present,” and Respondents “violated the
provisions of [the West Virginia Act] when [they] intentionally used and disclosed
unlawfully intercepted communications of [Petitioners] while having reason to know that
5
As noted by the circuit court, the allegations in the Third-Party Complaint
are derivative of the claims contained in the underlying complaint alleging abuse by
Petitioners of special education children at Berkeley Heights Elementary School. Those
allegations, according to the circuit court, dealt with two children in A.P.’s special
education classroom whose behavior “underwent significant adverse changes during the
time they were attending school in the [Petitioners’] classroom.”
Subsequent to the events that give rise to the allegations raised in the
underlying complaint, the West Virginia Legislature enacted Senate Bill 632 during the
2019 Legislative Session. 2019 W. Va. Acts, c.94, eff. July 1, 2019. The Legislature made
a few non-substantive changes to this law during the 2020 Legislative Session. 2020 W.
Va. Acts, c.111, eff. March 6, 2020. County boards of education are now required to place
cameras in all “self-contained classrooms” for special education that monitor and record
“all areas” of the classroom. W. Va. Code §§ 18-20-11(e)(1)(A) & (B) (2020).
3
the information was obtained through the interception of oral communications in violation
of” the West Virginia Act. The Third-Party Complaint also alleged that the use and
disclosure of the “unlawful recording . . . further violated the provisions of” the Federal
Act. Conversely, nowhere in the 321 numbered allegations contained in the Third-Party
Complaint is it alleged that any Respondent had any hand in either A.P.’s classroom
recording or in A.P.’s mother’s subsequent edit of that recording.
Respondents filed motions to dismiss for failure to state a claim upon which
relief can be granted pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil
Procedure 6 arguing that the United States Supreme Court’s decision in Bartnicki is
controlling authority and barred all causes of action raised in the Third-Party Complaint by
operation of the First Amendment to the United States Constitution. The circuit court
agreed. In its Order Granting Motion to Dismiss Third-Party Complaint Against Media
[Respondents] and Preston and Salango, PLLC, the circuit court, relying upon Bartnicki,
found that:
[E]ven if the recording had been obtained in violation of the
[West Virginia Act] and [Federal Act], the claims against the
Media [Respondents] are dismissed as a matter of law as the
6
Rule 12(b)(6) provides:
b) How Presented. Every defense, in law or fact, to a
claim for relief in any pleading, whether a claim, counterclaim,
cross-claim, or third-party claim, shall be asserted in the
responsive pleading thereto if one is required, except that the
following defenses may at the option of the pleader be made
by motion: . . . (6) failure to state a claim upon which relief can
be granted. . . .
4
broadcasts and recording pertained to a matter of great public
importance – alleged child abuse in public schools – and the
application of the provisions of the state and federal wiretap
laws against the Media [Respondents] would violate their
constitutional free speech rights. The same analysis applies to
postings of news articles by Preston [and] Salango[, PLLC].
It is accordingly the opinion of this Court that there can
be no greater matter of public concern than the manner in
which our children are addressed and treated in the public
school system, which is funded by taxpayer dollars. The public
has a right to know what transpires in public schools and the
First Amendment protects dissemination of that information.
For this Court to rule otherwise would be a chilling effect on
the First Amendment to the United States Constitution and to
our free press and media, as well as public discussion. It would
likewise serve as a shield to hide and keep secret conduct, [as]
the public has a right to know what occurs in our public
schools.
The publications by the Media [Respondents] and
Preston [and] Salango[, PLLC] do not qualify as commercial
speech because those publications do more than simply
propose a commercial transaction.
After the circuit court entered its final order granting Respondents’ motions
to dismiss, Petitioners filed a motion below seeking relief from the final order pursuant to
West Virginia Rule of Civil Procedure 60(b). 7 In that motion, Petitioners sought
7
Rule 60(b) provides:
(b) Mistakes; Inadvertence; Excusable Neglect;
Unavoidable Cause; Newly Discovered Evidence; Fraud,
etc. On motion and upon such terms as are just, the court may
relieve a party or a party’s legal representative from a final
judgment, order, or proceeding for the following reasons: (1)
(continued . . .)
5
clarification of the circuit court’s order as it related to whether the publication of the audio
recording on Preston and Salango, PLLC’s webpage was commercial speech. Attached to
that motion was Exhibit B, which Petitioners claimed was newly discovered and was
alleged to contain the following language, “[i]f you are a parent of a special needs child
who attended Berkeley Heights Elementary School between 2016 and 2019 and suspect
your child may have been physically or verbally abused, please contact Preston [and]
Salango[, PLLC].” We would note that Exhibit B in the Appendix is illegible.
Mistake, inadvertence, surprise, excusable neglect, or
unavoidable cause; (2) newly discovered evidence which by
due diligence could not have been discovered in time to move
for a new trial under Rule 59(b); (3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; (4) the judgment is void; (5)
the judgment has been satisfied, released, or discharged, or a
prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment
should have prospective application; or (6) any other reason
justifying relief from the operation of the judgment. The
motion shall be made within a reasonable time, and for reasons
(1), (2), and (3) not more than one year after the judgment,
order, or proceeding was entered or taken. A motion under this
subdivision (b) does not affect the finality of a judgment or
suspend its operation. This rule does not limit the power of a
court to entertain an independent action to relieve a party from
a judgment, order or proceeding, or to grant statutory relief in
the same action to a defendant not served with a summons in
that action, or to set aside a judgment for fraud upon the court.
Writs of coram nobis, coram vobis, petitions for rehearing,
bills of review and bills in the nature of a bill of review, are
abolished, and the procedure for obtaining any relief from a
judgment shall be by motion as prescribed in these rules or by
an independent action.
6
Thereafter, the circuit court entered an order denying relief to Petitioners but
did clarify the circuit court’s reasoning regarding its determination that Preston and
Salango, PLLC’s, publication of the recording was not commercial speech. It is from the
circuit court’s grant of the motion to dismiss and subsequent denial of the Rule 60(b)
motion that Petitioners appeal.
II. STANDARD OF REVIEW
We have previously held that “[a]ppellate review of a circuit court’s order
granting a motion to dismiss a complaint is de novo.” Syllabus Point 2, State ex rel.
McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).
“Since the preference is to decide cases on their merits, courts presented with a motion to
dismiss for failure to state a claim construe the complaint in the light most favorable to the
plaintiff, taking all allegations as true.” Sedlock v. Moyle, 222 W.Va. 547, 550, 668 S.E.2d
176, 179 (2008) (citation omitted). Finally, “[t]he trial court, in appraising the sufficiency
of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Syllabus Point 2, Chapman v. Kane Transfer Co., 160
W. Va. 530, 236 S.E.2d 207 (1977) (citation omitted). We are also mindful that “[a] motion
to vacate a judgment made pursuant to Rule 60(b), W.Va. R.C.P., is addressed to the sound
discretion of the court and the court’s ruling on such motion will not be disturbed on appeal
unless there is a showing of an abuse of such discretion.” Syllabus Point 4, Vanderpool v.
Hunt, 241 W. Va. 254, 823 S.E.2d 526 (2019) (citation omitted).
7
Ultimately, to reach our conclusion in this matter requires this Court to pass
judgment on whether a statute, as applied to the facts of this case, is constitutional. “The
constitutionality of a statute is a question of law which this Court reviews de novo.”
Syllabus Point 2, In re Brandi B., 231 W. Va. 71, 743 S.E.2d 882 (2013) (citation omitted).
In such posture, “[w]hen the constitutionality of a statute is questioned every reasonable
construction of the statute must be resorted to by a court in order to sustain constitutionality,
and any doubt must be resolved in favor of the constitutionality of the legislative
enactment.” Syllabus Point 3, Carvey v. W. Virginia State Bd. of Educ., 206 W. Va. 720,
527 S.E.2d 831 (1999) (internal quotation marks omitted) (citations omitted). With these
principles in mind, we proceed to analyze the arguments raised by this appeal.
III. ANALYSIS
This matter comes before the Court on the circuit court’s grant of a motion
dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure and
subsequent denial of a Rule 60(b) motion requesting clarification of the circuit court’s order
dismissing the case, based upon newly discovered evidence. As such, we must make
certain assumptions as to the facts. Because of this procedural posture, we accept as true
the allegation that the audio recording was unlawfully made. 8 See Sedlock, 222 W.Va. at
In West Virginia, “[i]t is lawful . . . for a person to intercept a wire, oral or
8
electronic communication . . . where one of the parties to the communication has given
(continued . . .)
8
550, 668 S.E.2d at 179. Given that question is not subject to conjecture, the only questions
that must be resolved in this appeal are: 1) Whether the audio recording of events in a
special education classroom is a matter of public concern; 2) Whether Petitioners’ Third-
Party Complaint states a claim for relief in light of the United States Supreme Court’s
decision in Bartnicki; and, 3) Whether the publication of the recording by Preston and
Salango, PLLC, constitutes commercial speech, which is entitled to lesser First
Amendment protection? 9
Applicable to all of these issues are the provisions of the United States and
West Virginia Constitutions relating to freedoms of speech and press. The First
Amendment to the United States Constitution provides, in pertinent part, “Congress shall
prior consent to the interception . . . .” W. Va. Code § 62-1D-3(e), in part. Substantially
similar language also is found in 18 U.S.C. § 2511(2)(d). The Third-Party Complaint
specifically alleges that A.P. “was not legally capable of consenting, was not offered the
opportunity to give her consent, and did not, at any point, give actual consent” to
intercepting Petitioners’ oral communications in the classroom. Because we accept this
allegation as true strictly for purposes of resolving the issue presented in the context of
Respondents’ Rule 12(b)(6) motion to dismiss, we do not address whether A.P. was or was
not “legally capable of consenting” to the interception.
9
Respondent RSV NG, LLC argues in its separate summary response that
Petitioners’ appeal should be denied on collateral estoppel grounds because Petitioners did
not appeal the judgment below as to two named media defendants – Waitt Broadcasting,
Inc. and West Virginia Radio Corporation. Asked about this issue at oral argument,
counsel specifically said he was not advocating this position. Moreover, because we affirm
the circuit court’s ruling pursuant to the holding in Bartnicki, it is not necessary for us to
determine the validity of RSV NG, LLC’s alternative grounds to affirm the circuit court’s
order. Accordingly, we do not address this issue. See Perrine v. E.I. du Pont de Nemours
and Co., 225 W. Va. 482, 601, 694 S.E.2d 815, 934 on petition for rehearing (2010).
9
make no law . . . abridging the freedom of speech, or of the press. . . .” U.S. CONST.
amend. I. Likewise, West Virginia’s Constitution states:
No law abridging the freedom of speech, or of the press,
shall be passed; but the Legislature may, by suitable penalties,
restrain the publication or sale of obscene books, papers, or
pictures, and provide for the punishment of libel, and
defamation of character, and for the recovery, in civil actions,
by the aggrieved party, of suitable damages for such libel, or
defamation.
W. Va. CONST. art. III, §7. We have previously stated that:
The First Amendment to the United States Constitution
and Article III, Section 7 of the West Virginia Constitution are
virtually identical in pertinent parts. Both constitutional
provisions prohibit the making of any law abridging the
freedom of speech or of the press. For purposes of this opinion,
we use the First Amendment to the United States Constitution
and Article III, Section 7 of the West Virginia Constitution
interchangeably. Article I, Section 1 of the West Virginia
Constitution recognizes that the United States Constitution
shall be the supreme law of the land. Accordingly, the
decisions of the United States Supreme Court interpreting the
First Amendment are binding on this Court and, consequently,
will be used throughout our discussion of this
issue. See Pushinsky v. West Virginia Bd. of Law
Examiners, 164 W.Va. 736, 744, 266 S.E.2d 444, 449 (1980).
State By & Through McGraw v. Imperial Mktg., 196 W. Va. 346, 359 n.43, 472 S.E.2d
792, 805 n.43 (1996). Thus, the United States Supreme Court decisions in First
Amendment cases are binding precedent on this Court and will be treated as such. We will
now address each of the issues raised by the Respondents.
10
1. Public Concern
The threshold question we must resolve is whether the speech at issue (i.e.,
the recorded communication) involves a matter of public concern. Matters of public
concern must be openly discussed in our constitutional republic. As the United States
Supreme Court has held:
Speech deals with matters of public concern when it can
“be fairly considered as relating to any matter of political,
social, or other concern to the community,” Connick, supra, at
146, 103 S.Ct. 1684, or when it “is a subject of legitimate news
interest; that is, a subject of general interest and of value and
concern to the public,” San Diego, supra, at 83-84, 125 S.Ct.
521. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492–
494, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); Time, Inc. v.
Hill, 385 U.S. 374, 387–388, 87 S.Ct. 534, 17 L.Ed.2d 456
(1967).
Snyder v. Phelps, 562 U.S. 443, 453 (2011). To determine if speech regards a matter of
public concern we must examine “‘the content, form, and context of a given statement, as
revealed by the whole record.’ See Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct.
1684, 1690, 75 L.Ed.2d 708 (1983).” Alderman v. Pocahontas Cty. Bd. of Educ., 223 W.
Va. 431, 442, 675 S.E.2d 907, 918 (2009). “In considering content, form, and context, no
11
factor is dispositive, and it is necessary to evaluate all the circumstances of the speech,
including what was said, where it was said, and how it was said.” Snyder at 454.
The content of the speech at issue in this appeal clearly relates to “broad
issues of interest to society at large.” 10 Id. We emphatically agree with the circuit court
that there can be no doubt that alleged child abuse in a public school’s special education
classroom is a matter of grave public concern. What was recorded in A.P.’s classroom
goes to the heart of our society’s need for transparency in its public education system.
Thus, the speech at issue clearly and unequivocally related to a matter of public concern.
Apart from the content of the speech, the form and context also demonstrate
the speech was of public concern. The nationwide publication of the recording on
television and over the internet in conjunction with news stories and blogs reflects that it
was “a subject of legitimate news interest; that is, a subject of general interest and of value
and concern to the public.” Snyder at 453 (internal quotation marks and citations omitted).
10
Petitioners attempt to distinguish what represents speech of public concern
based upon the locality in which the speech is published, differentiating between speech
published in West Virginia and speech published in other states. To say that the
Constitution stops at the state line defies logic. The interest in whether speech is of public
concern is not constrained by geographic limits.
12
We therefore conclude that the publication of the recording in this case was a matter of
public concern.
2. Bartnicki
We now move to the question of whether Bartnicki applies to the facts of this
matter. Our first inquiry in this discussion is a comparison of the West Virginia Act at
issue here with the Pennsylvania Act at issue in Bartnicki. Compare W. Va. Code § 62-
1D-12 (1987), with 18 Pa. Cons. Stat. § 5725(a) (1988). First, the West Virginia Act
provides a civil remedy for the recordation and distribution of protected communications:
(a) Any person whose wire, oral or electronic communication
is intercepted, disclosed, used or whose identity is disclosed in
violation of this article shall have a civil cause of action against
any person who so intercepts, discloses, or uses, or procures
any other person to intercept, disclose, or use the
communications, and shall be entitled to recover from any such
person or persons:
(1) Actual damages, but not less than one hundred dollars for
each day of violation;
(2) Punitive damages, if found to be proper; and
(3) Reasonable attorney fees and reasonable costs of litigation
incurred.
W. Va. Code § 62-1D-12 (1987). Using strikingly similar language, the Pennsylvania Act
at issue in Bartnicki also provides for a civil remedy:
(a) Cause of action.--Any person whose wire, electronic or oral
communication is intercepted, disclosed or used in violation of
this chapter shall have a civil cause of action against any person
who intercepts, discloses or uses or procures any other person
13
to intercept, disclose or use, such communication; and shall be
entitled to recover from any such person:
(1) Actual damages, but not less than liquidated damages
computed at the rate of $100 a day for each day of violation, or
$1,000, whichever is higher.
(2) Punitive damages.
(3) A reasonable attorney’s fee and other litigation costs
reasonably incurred.
18 Pa. Cons. Stat. § 5725(a) (1988) (“Pennsylvania Act”). It was this statutory provision
that was found to be unconstitutionally applied in Bartnicki.
The facts in Bartnicki involved a contentious contract negotiation between a
teachers’ union and the school board. Bartnicki at 518. A telephone call between two
union representatives was illegally recorded. Id. During that conversation, some illegal
activity was discussed:
“‘If they’re not gonna move for three percent, we’re
gonna have to go to their, their homes. . . . To blow off their
front porches, we’ll have to do some work on some of those
guys. (PAUSES). Really, uh, really and truthfully because this
is, you know, this is bad news. (UNDECIPHERABLE).’”
Id. at 518-19. In the amended complaint in Bartnicki, it was alleged that the:
[T]elephone conversation had been surreptitiously intercepted
by an unknown person using an electronic device, that Yocum
had obtained a tape of that conversation, and that he
intentionally disclosed it to Vopper, as well as other
individuals and media representatives. Thereafter, Vopper and
other members of the media repeatedly published the contents
of that conversation. The amended complaint alleged that each
of the defendants “knew or had reason to know” that the
14
recording of the private telephone conversation had been
obtained by means of an illegal interception.
The plaintiffs in Bartnicki sought damages under both the Pennsylvania Act and the Federal
Act. Id. at 519. The United States Supreme Court recognized the constitutional
implications of allowing the lawsuit to move forward:
The constitutional question before us concerns the
validity of the statutes as applied to the specific facts of these
cases. Because of the procedural posture of these cases, it is
appropriate to make certain important assumptions about
those facts. We accept petitioners’ submission that the
interception was intentional, and therefore unlawful, and that,
at a minimum, respondents “had reason to know” that it was
unlawful. Accordingly, the disclosure of the contents of the
intercepted conversation by Yocum to school board members
and to representatives of the media, as well as the subsequent
disclosures by the media defendants to the public, violated the
federal and state statutes. Under the provisions of the federal
statute, as well as its Pennsylvania analogue, petitioners are
thus entitled to recover damages from each of the respondents.
The only question is whether the application of these statutes
in such circumstances violates the First Amendment.
Id. at 524–25 (internal footnote omitted). The issue framed by the Supreme Court was:
“Where the punished publisher of information has obtained the information in question in
a manner lawful in itself but from a source who has obtained it unlawfully, may the
government punish the ensuing publication of that information based on the defect in a
chain?” Id. at 528. The Bartnicki Court then analyzed a host of former precedents:
Our opinion in New York Times Co. v. Sullivan, 376
U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), reviewed many
of the decisions that settled the “general proposition that
freedom of expression upon public questions is secured by the
First Amendment.” Id., at 269, 84 S.Ct. 710; see Roth v. United
States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498
(1957); Bridges v. California, 314 U.S. 252, 270, 62 S.Ct. 190,
15
86 L.Ed. 192 (1941); Stromberg v. California, 283 U.S. 359,
369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). Those cases all relied
on our “profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and
wide-open,” New York Times, 376 U.S., at 270, 84 S.Ct. 710;
see Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93
L.Ed. 1131 (1949); De Jonge v. Oregon, 299 U.S. 353, 365,
57 S.Ct. 255, 81 L.Ed. 278 (1937); Whitney v. California, 274
U.S. 357, 375–376, 47 S.Ct. 641, 71 L.Ed. 1095 (1927)
(Brandeis, J., concurring); see also Roth, 354 U.S., at 484, 77
S.Ct. 1304; Stromberg, 283 U.S., at 369, 51 S.Ct.
532; Bridges, 314 U.S., at 270, 62 S.Ct. 190. It was the
overriding importance of that commitment that supported our
holding that neither factual error nor defamatory content, nor a
combination of the two, sufficed to remove the First
Amendment shield from criticism of official conduct. Id., at
273, 62 S.Ct. 190; see also NAACP v. Button, 371 U.S. 415,
445, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Wood v.
Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569
(1962); Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed.
1546 (1947); Pennekamp v. Florida, 328 U.S. 331, 342, 343,
n. 5, 345, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946); Bridges, 314
U.S., at 270, 62 S.Ct. 190.
Id. at 534–35. From that analysis, the United States Supreme Court held that, “[w]e think
it clear that parallel reasoning requires the conclusion that a stranger’s illegal conduct does
not suffice to remove the First Amendment shield from speech about a matter of public
concern.” Id. at 535.
The United States Supreme Court’s holding in Bartnicki is in accord with a
prior decision of this Court. In State ex rel. Daily Mail Publishing Co. v. Smith, 161 W.
Va. 684, 248 S.E.2d 269 (1978) (“Daily Mail”), we were asked to determine if a law
prohibiting the publication of the name of a juvenile who shot and killed a classmate was
16
unconstitutional as a prior restraint of speech. Id., W. Va. at 685, S.E.2d at 270. We found
the statute in question to be unconstitutional as to such application, holding:
To the extent that W.Va. Code, 49-7-3 (1941) makes it
a criminal offense for a newspaper to publish the name of a
child in any proceeding under Chapter 49 of the W.Va. Code,
without the prior approval of the trial court, W.Va. Code, 49-
7-3 (1941) is unconstitutional as repugnant to the First
Amendment to the Constitution of the United States, because
it creates an impermissible prior restraint on the freedom of the
press.
Syllabus Point 2, id., aff’d sub nom. Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979)
(“Smith”). The United States Supreme Court affirmed this result and elaborated that “[i]f
the information is lawfully obtained, as it was here, the state may not punish its publication
except when necessary to further an interest more substantial than is present here.” Smith,
443 U.S. at 104.
Petitioners maintain that the Constitution allows their case to move forward.
At oral argument they pointed this Court to a United States Court of Appeals decision from
the Fifth Circuit, Peavy v. WFAA TV, 221 F.3d 158 (5th Cir. 2000), as support for their
position. We have reviewed this case and do not believe it supports Petitioners’
contentions. First, it was decided by a federal appeals court prior to the United States
Supreme Court’s decision in Bartnicki. Peavy, 221 F.3d 158. Second, and more
importantly, as noted in Bartnicki, the publishing media defendant in Peavy had unclean
hands and “in fact participated in the interceptions at issue.” Bartnicki at 522 n.5. That is
not the factual situation here. In this case, Petitioners make no factual allegation that
17
Respondents in any way participated in the efforts to record the information that they
subsequently disseminated.
We are persuaded that the factual scenario in Bartnicki is nearly identical to
the factual scenario alleged in the Third-Party Complaint in the present case. In both cases,
the defendants were alleged to have published recordings that they knew or should have
known were created in violation of state and federal wiretapping laws. Importantly, it was
not alleged in either case that the media defendants were in any way involved in creating
the recordings. Thus, Bartnicki compels us to find that the West Virginia Act is
unconstitutional as applied. 11 To do otherwise would run afoul of the Constitution of the
United States, the Constitution of West Virginia and the Bartnicki Court’s sound reasoning.
Petitioners additionally alleged violations of the substantially similar Federal Act. We
believe Bartnicki clearly precludes Petitioners’ action under the Federal Act as well.
Accordingly, the West Virginia Wiretapping and Electronic Surveillance Act, West
Virginia Code §§ 62-1D-1 through 16 runs afoul of the First Amendment to the United
States Constitution and Article III, Section 7 of the West Virginia Constitution and is
unconstitutional as applied to the extent that it allows a civil action to be maintained against
an innocent third party who publishes information of public concern that was obtained by
11
Our determination that the West Virginia Act is an unconstitutional
violation of the First Amendment to the United States Constitution and Article III, Section
7 of the West Virginia Constitution is limited to its application to innocent third parties
who did not take part in the unauthorized interception or recording of the information and
should not be interpreted as a declaration that such statute is unconstitutional in all cases.
18
the unlawful interception of wire, oral, or electronic communication in violation of the
statute but who did not participate in the unlawful interception of the communication.
3. Commercial Speech
Petitioners next argue that the publication by Preston and Salango, PLLC,
constituted commercial speech and, as such, is actionable because commercial speech may
be regulated under the First Amendment. We have adopted the United States Supreme
Court’s approach on commercial speech in such cases, acknowledging that such speech is
afforded lesser protection:
In Central Hudson Gas & Electric Corp. v. Public Service
Commission of New York, 447 U.S. 557 . . . (1980), the United
States Supreme Court adopted a four[-]part test for
determining the validity of governmental regulation
of commercial speech, which is generally accorded “a lesser
protection . . . than . . . other constitutionally guaranteed
expression.”
Fisher v. City of Charleston, 188 W. Va. 518, 524 n.11, 425 S.E.2d 194, 200 n.11 (1992)
(internal citations omitted).
[W]e must determine whether the expression is
protected by the First Amendment. For commercial speech to
come within that provision, it at least must concern lawful
activity and not be misleading. Next, we ask whether the
asserted governmental interest is substantial. If both inquiries
yield positive answers, we must determine whether the
regulation directly advances the governmental interest
asserted, and whether it is not more extensive than is necessary
to serve that interest.
Central Hudson at 566. We adopted the Central Hudson test in Syllabus Point 3 of Lawyer
Disciplinary Board v. Allen, 198 W. Va. 18, 479 S.E.2d 317 (1996), where we held:
19
Commercial speech that is not unlawful or misleading
may be regulated only if the government satisfies the
remaining elements of the test set forth in Central Hudson Gas
v. Public Service Com’n of New York, 447 U.S. 557, 564–65,
100 S.Ct. 2343, 2350–51, 65 L.Ed.2d 341, 350–51 (1980),
which requires first, that the government assert a substantial
interest in support of its regulation; second, that the
government demonstrate that the restriction
on commercial speech directly and materially advances that
interest; and third, that there is a reasonable fit between the
regulation and the State’s interest.
Syllabus Point 3, in part, Id. However, neither Central Hudson nor Allen defined
specifically what constitutes commercial speech. The Fourth Circuit has reasoned that
“commercial speech is ‘usually defined as speech that does no
more than propose a commercial transaction.’” Greater
Baltimore Ctr., 721 F.3d at 284 (quoting United States v.
United Foods, Inc., 533 U.S. 405, 409, 121 S.Ct. 2334, 150
L.Ed.2d 438 (2001)). However, because “application of this
definition is not always a simple matter,” Adventure
Commc’ns, Inc. v. Ky. Registry of Election Fin., 191 F.3d 429,
440 (4th Cir. 1999), some speech outside this “core notion”
may also be deemed commercial. Bolger v. Youngs Drug
Prods. Corp., 463 U.S. 60, 66, 103 S.Ct. 2875, 77 L.Ed.2d 469
(1983). Courts rely on three factors to identify such
commercial speech: “(1) is the speech an advertisement; (2)
does the speech refer to a specific product or service; and (3)
does the speaker have an economic motivation for the
speech.” Greater Baltimore Ctr., 721 F.3d at 285 (citing U.S.
Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914,
933 (3d Cir. 1990)).
Because of the “difficulty of drawing bright lines that
will clearly cabin commercial speech,” the inquiry is fact-
intensive. City of Cincinnati v. Discovery Network, Inc., 507
U.S. 410, 419, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). It is also
one in which “context matters.” Greater Baltimore Ctr., 721
F.3d at 286.
20
Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of
Baltimore, 879 F.3d 101, 108 (4th Cir. 2018).
Reading the Third-Party Complaint in the light most favorable to the
Petitioners clearly shows there to be insufficient factual allegations contained within its
four corners to state a cause of action against Preston and Salango, PLLC, much less to
support a finding that the publication of the recording by Preston and Salango, PLLC,
constituted a “commercial speech” exception to the holding in Bartnicki. The allegations
against Preston and Salango, PLLC, are that it merely published the previous news stories
that contained the audio recording at issue. Petitioners did not allege that Preston and
Salango, PLLC, acted differently than the Media Respondents in publishing the
communications or was motivated by any different goal in regard to such publication.
Clearly, the right of all Respondents to publish the information, having taken no role in its
recording, was protected by the First Amendment. Respondents pled no facts supporting
an exception to such protection. We have previously stated:
In Sticklen v. Kittle, 168 W.Va. 147, 287 S.E.2d 148
(1981), we held that the plaintiffs had alleged “various factual
matters in support of their assertion that the
defendants [had] acted in an arbitrary and capricious
manner.” Id. 168 W.Va. at 167, 287 S.E.2d at 159. We
recognized, however, that
liberalization in the rules of pleading in civil cases does
not justify a carelessly drafted or baseless pleading. As
stated in Lugar and Silverstein, West Virginia Rules of
Civil Procedure (1960) at 75: ‘Simplicity and informality
of pleading do not permit carelessness and sloth: the
plaintiff's attorney must know every essential element of
his cause of action and must state it in the complaint.’
21
Id. 168 W.Va. at 164, 287 S.E.2d at 157–58. Accord, Fass v.
Nowsco Well Service, Ltd., 177 W.Va. 50, 52, 350 S.E.2d 562,
564 (1986).
Par Mar v. City of Parkersburg, 183 W. Va. 706, 710-11, 398 S.E.2d 532, 536-37 (1990).
Petitioners counter that Exhibit B, which is purportedly an exhibit from the
firm’s web page, demonstrates that the speech of Preston and Salango, PLLC, was
commercial. However, the document attached to the 60(b) motion and contained in the
appendix record is largely illegible. Nonetheless, we cannot discern from looking at this
document that it solely proposes a commercial transaction. Further, Petitioners
misapprehend the question before the Court, namely whether the Third-Party Complaint
contained allegations sufficient to survive Respondents’ Motion to Dismiss.
Although Petitioners may not be expected to anticipate all defenses that may
be raised by Respondents to the Third-Party Complaint, See Syllabus Point 5, Gable v.
Gable, 245 W. Va. 213, 858 S.E.2d. 838 (2021), in this case Petitioners are seeking to
characterize the communications as those that fall within a narrow exception to the well-
established First Amendment principle that speech regarding matters of public concern is
offered broad protection. In order to satisfy such exception, Petitioners must point to some
factual allegations in their Complaint that Preston and Salango, PLLC’s, publication of the
communications was motivated by profit or commercial goals.
22
In Greater Baltimore, the court defined commercial speech as speech that
usually “does no more” than propose a commercial transaction. Greater Baltimore, 879
F.3d 101 at 108. Nowhere in the Third-Party Complaint is it alleged that the firm’s
publication proposed a commercial transaction. In addition, the Third-Party Complaint is
devoid of any allegations that Preston and Salango’s actions were an advertisement that
referred to a specific product or service or allegations regarding what economic motivation,
if any, Preston and Salango, PLLC, had in publishing the speech. Even when we assume
all facts as alleged are true, Petitioners have made insufficient factual allegations to
withstand a motion pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure.
We find that the circuit court did not err in finding that the social media and internet posts
by Preston and Salango, PLLC, were afforded the full protection guaranteed by the First
Amendment and our state constitution for speech relating to matters of public concern.
IV. CONCLUSION
For the foregoing reasons, we affirm the circuit court.
Affirmed.
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