United Mine Workers of America Intern. Union by Trumka v. Parsons

• Decision Date: 08 July 1983
• Docket Number: No. 15831,15831
• Court: West Virginia Supreme Court
• Parties: , 13 Ed. Law Rep. 1136 UNITED MINE WORKERS OF AMERICA INTERNATIONAL UNION, By its Officers Richard TRUMKA, Cecil Roberts and John Banovic v. Michael PARSONS, Assistant Athletic Director, West Virginia University and West Virginia Board of Regents, a Statutory Corporation.

Page 343

305 S.E.2d 343

172 W.Va. 386, 13 Ed. Law Rep. 1136

UNITED MINE WORKERS OF AMERICA INTERNATIONAL UNION, By its

Officers Richard TRUMKA, Cecil Roberts and John Banovic v. Michael PARSONS, Assistant Athletic Director, West Virginia

University and West Virginia Board of Regents, a

Statutory Corporation.

No. 15831.

Supreme Court of Appeals of

West Virginia.

July 8, 1983.

Syllabus by the Court

1. When a state agency or instrumentality sells advertising for broadcast which presents one side of a politically controversial issue of public concern, it is obligated under W.Va. Const. art. III, § 3 and art. III, § 7, to preserve its neutrality by providing a reasonable opportunity for the presentation of contrasting points of view in order that the "common benefit, protection and security" be served and fundamental fairness preserved.

2. Although it is normally within a state agency's discretion to determine the appropriate spokesmen for the presentation of opposing viewpoints, it must, under the standards of reasonableness and good faith, consider legitimate requests by those wishing to express opposing views.

3. Although a state agency may consider ability to pay in determining the amount to be charged for the access provided, access may not turn on the financial capacity of potential spokesmen to pay the rates normally charged. Thus, in a proper case, access may be required to be provided either at a reduced rate or at no charge.

4. While the amount of time provided for response need not be equivalent to that provided proponents of the initial point of view, it must be sufficient to ensure a reasonably balanced presentation of differing viewpoints in order to preserve the right of the people to hear diverse points of view in state-sponsored forums.

McIntyre, Haviland & Jordan and James M. Haviland, Charleston, Michael H. Holland, Gen. Counsel, United Mine Workers of America, Washington, D.C., for petitioners.

Gene R. Nichol, Jr., Morgantown, for respondents.

McGRAW, Chief Justice:

In this original proceeding in mandamus, the Court is asked to examine the constitutional obligation of a state-supported university to afford interested parties an opportunity to respond to political speech contained in radio advertisements broadcast as part of a university athletic event.

The petitioners, Richard Trumka, Cecil Roberts and John Banovic, initiated this proceeding on behalf of the United Mine Workers of America (UMWA), a voluntary association and international union which represents coal miners throughout West Virginia. The respondents are Michael Parsons, assistant athletic director at West Virginia University (WVU), and the West Virginia Board of Regents, a statutory corporation responsible for all public higher education activities in West Virginia.

The petitioners seek to compel the respondents to provide them an opportunity, during the next ensuing radio broadcasts of WVU football games, to express contrasting views to those expressed in paid radio advertisements sponsored jointly by the West Virginia Coal Association and the West Virginia Surface Mining and Reclamation Association (the coal associations) and broadcast during WVU football games in the Fall of 1982 over the Mountaineer Sports Network (MSN). In the alternative, the petitioners seek to prohibit future political programming by the respondents. We find that the respondents have a constitutional obligation to present opposing viewpoints to those expressed in the coal associations' advertisements and that the UMWA, as an appropriate spokesman for the presentation of such viewpoints, has the right to respond to the coal associations' advertisements. ¹ Accordingly, we grant the writ.

WVU is a publicly owned and supported land-grant institution of higher education established by the West Virginia Legislature in 1867. See 1867 W.Va. Acts ch. 9, ch. 108; see also 1863 W.Va. Acts ch. 56. MSN is an arm of the Department of Intercollegiate Athletics at WVU which contracts with advertisers to provide funds for broadcast coverage of WVU athletic events. Respondent Parsons is responsible for the oversight of MSN.

MSN is not a radio broadcaster itself, but rather produces a sports program "package" which it provides through a barter system to individual radio stations for broadcast. As part of its football programming, MSN requires local radio stations to carry 15 minutes of advertising provided by MSN pursuant to agreements with advertisers. ² The radio "sponsor agreement" executed between MSN and its advertisers includes a right of first refusal whereby it is provided that when MSN determines the advertising rates to be charged in the next season, the advertiser is given the opportunity to purchase the same amount of advertising time purchased in the previous season. Because MSN advertisers typically exercise their right to renew, there is presently a waiting list of prospective advertisers for WVU football broadcasts. The "sponsor agreement" does, however, contain a clause permitting either party to cancel its contractual obligations by giving 30 days notice.

The respondents assert that MSN is not involved in the production of advertisements. Rather, the advertisements are received by MSN as a finished product provided by the advertiser. Although the radio "sponsor agreement" provides that MSN announcers will perform live commercials if so requested, the announcers merely read advertising copy provided by advertisers. Thus, the respondents assert that MSN performs no substantive review prior to broadcast of the content of advertising furnished. We note, however, that the radio "sponsor agreement" expressly reserves to MSN the right to "approve or disapprove ... all commercial copy." The respondents assert that this right has never been exercised by MSN, and exists solely to insure compliance with NCAA obligations and WVU rules which prohibit endorsement of advertisers' products.

The West Virginia Coal Association has been an advertiser on MSN for more than ten years. In the past, its advertisements were essentially commercial in nature and designed to promote the use of coal. During the Fall of 1982, however, the advertisements provided by the coal associations to MSN and broadcast during WVU football games were both political and controversial. Their apparent purpose was to convince legislators and the public that the "business climate" in West Virginia needed improvement. ³ Although recognizing the political and controversial nature of the coal associations' advertising, MSN determined that it would be "inappropriate to refuse to run advertisements based upon their political content."

Sometime in February or early March, 1983, Michael Burdiss, a representative of the UMWA, telephoned respondent Parsons and requested free advertising time to express a rebuttal to the views expressed by the coal associations in the advertisements broadcast over MSN. Respondent Parsons denied this request. The union representative then inquired whether the UMWA could purchase advertising time. Respondent Parsons also denied this request saying no advertising time was available. ⁴ Thereafter, the petitioners instituted proceedings in this Court.

This case is unique in that it presents a novel combination of legal issues. These issues involve similar, though diverse, principles of law which have evolved from our constitutional guarantees of equal protection and free speech. Two of these principles are particularly relevant to this case--the "public forum doctrine" which protects the right of citizens to use certain governmental property for the exercise of free speech, and the "fairness doctrine" which requires that the discussion of public issues be presented on broadcast stations, and that each side of those issues be given fair coverage. Although not controlling under the facts presented, an examination of these principles is essential to understanding the nature of the issues involved.

I.

In a series of cases, the United States Supreme Court has developed the "public forum doctrine." The doctrine first emerged in Hague v. CIO, 307 U.S. 496, 515-16, 59 S.Ct. 954, 964, 83 L.Ed. 1423, 1436-37 (1939), where the Court struck down a city ordinance requiring a permit for public assembly, stating:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

Since Hague, the doctrine has become firmly established as an important principle of constitutional law. It prohibits states from regulating speech-related conduct on certain governmental property except through reasonable, nondiscriminatory time, place, and manner regulations. Central to the doctrine is the concept that access to public forums must be provided by government on an equal basis. As was stated in Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212, 217 (1972):

Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is...