State ex rel. Daily Mail Publishing Co. v. Smith

248 S.E.2d 269, 161 W. Va. 684, 4 Media L. Rep. (BNA) 1329, 1978 W. Va. LEXIS 275
CourtWest Virginia Supreme Court
DecidedJune 27, 1978
DocketNo. 14158; No. 14180
StatusPublished
Cited by24 cases

This text of 248 S.E.2d 269 (State ex rel. Daily Mail Publishing Co. v. Smith) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Daily Mail Publishing Co. v. Smith, 248 S.E.2d 269, 161 W. Va. 684, 4 Media L. Rep. (BNA) 1329, 1978 W. Va. LEXIS 275 (W. Va. 1978).

Opinion

Neely, Justice:

These two cases, which have been consolidated for decision, both present a conceptionally indisguisable permutation of a classic First Amendment, freedom-of-the press issue concerning prior restraint on publication which the United States Supreme Court has addressed numerous times in the last ten years. These original jurisdiction proceedings seek to prohibit the respondent judges of the Circuit Court of Kanawha County, and the Prosecuting Attorney of Kanawha County from prosecuting petitioners under W.Va. Code, 49-7-3 [1941] which forbids any newspaper from publishing the name of a child in connection with any juvenile proceeding without the permission of the trial court. The petitioners are the Charleston Gazette; its Publisher, W. E. Chilton, III; its Editor, Don Marsh; one of its reporters, Leslie H. Milam; The Charleston Daily Mail; its Editor, Jack Maurice; and one of its reporters, Mary Schnack.

On 10 February 1978 both newspapers printed stories naming a juvenile charged in the fatal shooting of a student at a local junior high school. The respondent prosecuting attorney sought and obtained indictments against petitioners on 1 March 1978 for knowingly and unlawfully violating Code, 49-7-3 [1941]. That statute provides:

Any evidence given in any cause or proceeding under this chapter, or any order, judgment or finding therein, or any adjudication upon the status of juvenile delinquent heretofore made or rendered, shall not in any civil, criminal or other cause or proceeding whatever in any court, be lawful or proper evidence against such child for any purpose whatsoever except in subsequent cases under this chapter involving the same child; nor shall the name of any child, in connec[686]*686tion with any proceedings under this chapter, be published in any newspaper without a written order of the court; nor shall any such adjudication upon the status of any child by a juvenile court operate to impose any of the civil disabilities ordinarily imposed by conviction, nor shall any child be deemed a criminal by reason of such adjudication, nor shall such adjudication be deemed a conviction, nor shall any such adjudication operate to disqualify a child in any future civil service examination, appointment, or application.

Petitioners urge that W.Va. Code, 49-7-3 [1941] violates West Virginia Constitution, art. 3, § 7, which is the state counterpart to the First Amendment to the Constitution of the United States. While ordinarily a constitutional question would be decided on state grounds in the first instance, thus avoiding a needless federal question, we find that in this instance it is better practice to rely upon a well developed body of federal law rather than an essentially nonexistent body of state law. Our regular use of state constitutional provisions is grounded in their capacity to be broader, in the sense of being more protective of individual rights, than the federal constitution; however, with regard to the First Amendment it would be difficult to find a more expansive interpretation of freedom of the press than that developed by the Supreme Court of the United States. Even if we were to hypothesize that a broader guaranty might one day be necessary, it would be unwise to formulate new rules in the context of cases whose facts do not compel a minute inquiry into the sagacity of the new rules urged upon us. Furthermore, it is more serviceable to use federal law because of the interrelationship among all of the various news media, some of which are primarily governed by federal law, thereby providing a uniform resolution of these issues throughout the United States.

Recent cases demonstrate that the United States Supreme Court is concerned with all cases involving the First Amendment and that they are regularly respon[687]*687sive to the need for daily supervision of this area of the law throughout the United States. Accordingly in the interest of comprehensibility and uniformity we decide this case according to crystal clear principles of federal law concerning freedom of the press.

I

The preeminent rule with regard to prior restraint on free speech has recently been articulated by the Chief Justice of the United States in Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976), citing with approval Organization For A Better Austin v. Keefe, 402 U.S. 415 (1971):

Any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity.

An exegesis of the reasoning of the Supreme Court of the United States with regard to the issue of prior restraint is hardly appropriate here since that Court has done it in substantial length themselves in numerous cases involving this very issue.1

[688]*688Although the Supreme Court has never taken an absolutist position that there can be no abridgment of the freedom of the press under any circumstances, it would appear that outside of the area of pornography there is no governmental interest sufficiently compelling to justify a prior restraint in times of peace. We suspect, although we cannot prove, that the Supreme Court would authorize a prior restraint with regard to publication of military intelligence in a time of serious national peril and concerning a dangerous and indispensable operation such as the Allies’ invasion of Normandy in 1944. A relatively concise statement of the two well recognized exceptions to absolute freedom from prior restraint was stated in Near v. Minnesota, 283 U.S. 697 (1931) and cited with approval by Justice Brennan in his concurring opinion in Nebraska Press Assn., supra, as follows: (1) to prevent the disclosure of information that would inevitably, directly, and immediately cause irreparable damage to the Nation in time of war; and (2) to suppress expression which is simply not deemed “speech” within the meaning of the First Amendment, such as obscenity or incitements to violence or revolution by force. In addition to these two exceptions discussed by Justice Brennan, it appears that with regard to acts which are verbal in nature, as for example a parade, a third exception is the regulation of the time, place and manner of expression, without unduly limiting the opportunity for expression. Cox v. New Hampshire, 312 U.S. 569 (1941).

II

It is inevitable that if the Supreme Court takes something less than an absolutist position that all those who seek to impose prior restraint upon the press will attempt to bring themselves within the exceptions. So it is [689]*689in these cases that the State of West Virginia argues that a child’s interest in anonymity with regard to his youthful transgressions and the State’s interest in assuring him a future free of prejudice, are sufficiently compelling to permit the statute under review to withstand constitutional scrutiny. We disagree with this conclusion because the Supreme Court of the United States has uniformly held over the past ten years that similar legitimate state and private interests were not sufficiently compelling to permit a prior restraint. The case of

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State Ex Rel. Daily Mail Pub. Co. v. Smith
248 S.E.2d 269 (West Virginia Supreme Court, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
248 S.E.2d 269, 161 W. Va. 684, 4 Media L. Rep. (BNA) 1329, 1978 W. Va. LEXIS 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-daily-mail-publishing-co-v-smith-wva-1978.