Citizen Awareness Regarding Educ. v. Calhoun County Pub., Inc., 19898
| Decision Date | 06 June 1991 |
| Docket Number | No. 19898,19898 |
| Citation | 185 W.Va. 168,406 S.E.2d 65 |
| Parties | , 68 Ed. Law Rep. 912, 19 Media L. Rep. 1061 CITIZEN AWARENESS REGARDING EDUCATION, an unincorporated association registered with the Office of the Clerk of the County Commission of Calhoun County as a PAC, Appellee, v. CALHOUN COUNTY PUBLISHING, INC., a corporation, Appellant. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. "This Court, in its discretion, may decide a case that is technically moot if the issue presented by the case can be repeatedly presented to the trial court yet escape review at the appellate level because of its fleeting and determinate nature." Syllabus Point 1, Means v. Sidiropolis, 184 W.Va. 514, 401 S.E.2d 447 (1990).
2. A circuit court's injunction compelling a newspaper to accept and print an advertisement that the newspaper had chosen not to print violated the guarantee of a free press contained in the First Amendment to the Constitution of the United States, and also violated the guarantee of a free press found in W.Va. Constitution, Art. III, § 7.
3. Government can never compel a private newspaper to print anything, without violating the First Amendment's guarantee of a free press.
Rebecca A. Baitty, DiTrapano & Jackson, Charleston, for appellant.
This is an appeal by Calhoun County Publishing, Inc. of the Calhoun County Circuit Court's injunction compelling it to accept and print a paid political advertisement submitted by a local political action committee. We hold that the lower court's injunction violated the federal guarantee of a free press contained in U.S. Const., amend. I, 1 and our own guarantee of a free press contained in W.Va. Const., art. III, § 7. 2
Appellant Calhoun County Publishing, Inc., publishes a weekly newspaper, the Calhoun Chronicle, in Calhoun County, West Virginia. Appellee Citizen Awareness Regarding Education (hereinafter "CARE") is a political action committee formed to oppose a school bond levy that was scheduled for a vote at the 8 May 1990 primary election.
In its 12 April, 19 April, and 26 April editions, the Calhoun Chronicle published several paid political advertisements placed by CARE. However, when CARE attempted to place an advertisement in the 3 May 1991 edition, the newspaper refused to print it, because the newspaper apparently had a policy of not publishing any political advertisements in the last issue before an election.
On 1 May 1990, CARE filed a complaint and motion for mandatory injunction in the Circuit Court of Calhoun County, seeking an order compelling the newspaper to publish CARE's advertisement. Several hours after the filing of the complaint and motion, the circuit judge conducted a hearing on CARE's complaint.
The newspaper was unable to procure counsel before the proceeding. At the hearing, CARE's counsel candidly admitted that she could not cite any cases to support CARE's position:
I have brought this forward out of a gut sense, my arguments are based on decency and fair play and basic sense of Constitutional Law. I really cannot site [sic] any cases because of the shortness of notice and the pressure under which I had to prepare this work.
The court, likewise, noted the lack of authority for compelling the newspaper to print the advertisement, yet granted the injunction CARE requested, apparently on the same gut sense.
I.
As a threshold matter, it should be noted that although this case is technically moot because the advertisement has been run and the election is over, we can still address it, because, as we said in Syllabus Point 1 of Means v. Sidiropolis, 184 W.Va. 514, 401 S.E.2d 447 (1990):
This Court, in its discretion, may decide a case that is technically moot if the issue presented by the case can be repeatedly presented to the trial court yet escape review at the appellate level because of its fleeting and determinate nature.
Although CARE's counsel had only a short time to search for precedent, the fact is that there exists no support for the injunction CARE sought. The United States Supreme Court announced the law governing this case in Miami Herald Publishing Company v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), in which the Court reaffirmed the First Amendment's guarantee of a free press. This fact may explain why CARE has submitted no brief, and no oral argument was had in this proceeding.
In Miami Herald, the Supreme Court struck down a Florida "right-of-access" statute that required any newspaper that assailed a candidate for election to give free space to the candidate for his rebuttal. The Court examined the various arguments for "right-of-access" provisions, but ultimately found that any right-of-access provision would run afoul of the First Amendment's protection of freedom of the press:
However much validity may be found in these arguments, at each point the implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism, either governmental or consensual. If it...
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