FILED
November 19, 2021
released at 3:00 p.m.
No. 20-0722—Yurish and Douty v. Sinclair Broadcast Group, et al EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
WOOTON, J., concurring:
While I concur in the majority’s affirmance of the circuit court’s dismissal
of petitioners’ third-party causes of action, I write separately to express my disagreement
with the manner in which the majority dispenses with the third-party claim against
respondent Preston and Salango PLLC. The majority asserts that this claim fails because
the third-party complaint “pled no facts supporting” the commercial speech exception to
the First Amendment protection it affords to the speech at issue. In effect, the majority
suggests that the cause of action must be dismissed due to a failure of pleading—the failure
to plead an exception to an affirmative defense.
Of course, our law contains no such requirement. Not even six months ago,
this Court held that
[u]nder Rule 8(a) of the West Virginia Rules of Civil
Procedure, a plaintiff's complaint need not anticipate or attempt
to plead around potential defenses that may be raised by the
defendant. A complaint is not required to contain any
information about defenses and may not be dismissed, under
the guise of Rule 12(b)(6), for that omission.
Syl. Pt. 5, Gable v. Gable, 245 W. Va. 213, 858 S.E.2d 838 (2021). Despite citing Gable,
the majority nevertheless states that “Petitioners must point to some factual allegations in
their Complaint” that Preston and Salango’s mere reposting of the news stories constituted
“commercial speech.” This is in direct contravention of Gable’s holding.
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In Gable this Court found that the lower court violated a “cardinal rule of
pleading” by dismissing a complaint “because the plaintiff failed to anticipate and plead
facts to rebut potential defenses available to the defendant.” Id. at ___, 858 S.E.2d at 850.
The Court cited a litany of cases which have “universally ruled that ‘[c]omplaints need not
anticipate or attempt to defuse potential defenses.’” Id. at ___, 858 S.E.2d at 847 (quoting
U.S. Gypsum Co. v. Indiana Gas Co., 350 F.3d 623, 626 (7th Cir. 2003)). By affirmatively
requiring petitioners to “alleg[e] that Preston and Salango’s actions were an advertisement
that referred to a specific product or service” or “alleg[e] . . . what economic motivation, if
any, Preston and Salango, PLLC, had in publishing the speech[,]” the majority undermines
this very recent holding of this Court. See Morris v. Corder, No. 20-0750, slip op. at 4 (W.
Va. Nov. 16, 2021) (Armstead, J. and Jenkins, C. J., dissenting) (stating that “departure”
from “recently rendered” memorandum decision violates “the doctrine of stare decisis”).
West Virginia is a notice pleading state. Unquestionably, petitioners pled a
fully formed cause of action against the respondents for violation of West Virginia Code §
62-1D-3 and 18 U.S.C. § 2511. In response, respondents asserted that enforcement of that
cause of action constituted an unconstitutional abridgement of their freedom of speech—
an unmistakable affirmative defense. See Adams v. Jumpstart Wireless Corp., 294 F.R.D.
668, 671 (S.D. Fla. 2013) (“An affirmative defense is one that admits to the complaint, but
avoids liability, wholly or partly, by new allegations of excuse, justification, or other
negating matters.”). Petitioners’ assertion of the commercial speech exception—which
would merely lessen the scrutiny afforded to the cause of action—neither nullifies the cause
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of action, nor does it go to the elements of proof of their cause of action. See Coyote Pub.,
Inc. v. Miller, 598 F.3d 592, 598 (9th Cir. 2010) (“Restrictions on commercial speech are
now reviewed under the standard of intermediate scrutiny[.]”). These issues speak only to
whether the cause of action has been rendered unenforceable in this case as against these
specific parties on constitutional principles; as the majority itself acknowledges, this is an
“as applied” challenge which does not affect the validity of the underlying cause of action
in general.
By discussing the “four corners” of the complaint and “carelessly drafted”
pleadings, the majority suggests an inaccurate basis upon which petitioners’ claim against
Preston and Salango fails. Claims subject to Rule 12(b)(6) scrutiny do not fail merely for
lack of adequate pleading. More fundamentally, claims must be dismissed where they fail
to set forth an actionable claim, under the facts as alleged and accepted as true: “The 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.” Syl. Pt 3, Chapman v.
Kane Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (1977). Having determined that the
media reports—which Preston and Salango merely republished—are protected speech
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under the First Amendment, no actionable claim for their “use” or “disclosure” under the
applicable statutes remains. 1
Petitioners provide this Court with no authority upon which it may pursue a
claim under the applicable statutes against an innocent republisher of First Amendment-
protected speech. Indeed, it would be absurd to extend First Amendment protection to the
originator of the protected content, but impose liability upon those who are even further
removed from its creation. See Bartnicki v. Vopper, 532 U.S. 514, 546 (2001) (Rehnquist,
J., dissenting) (“[O]ne cannot ‘disclose’ what is already in the public domain.”); The Fla.
Star v. B.J.F., 491 U.S. 524, 535 (1989) (noting where “certain information [is] publicly
available, it is highly anomalous to sanction persons other than the source of its release.”);
Smith v. Daily Mail Pub. Co., 443 U.S. 97, 103 (1979) (“[O]nce the truthful information
was ‘publicly revealed’ or ‘in the public domain’ the court could not constitutionally
restrain its dissemination.”). Simply put, the third-party complaint against Preston and
Salango fails not because it is was insufficiently pled, but because it is not actionable under
the law of this case, which finds the media reports to be protected by the First Amendment.
1
Critically, the protected speech at issue is not that of Preston and Salango; the
protected speech is and remains the media reports, which Preston and Salango merely
reposted and to which it appended no original content. The purported contents of the
illegible exhibit containing original content of Preston and Salango do not reference,
include, or attach the subject media reports and therefore bear no relationship to the
allegations in the complaint for “use” or “disclosure” of improperly intercepted
communications.
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Accordingly, I concur in the majority’s determination that the circuit court’s
dismissal of this claim should be affirmed, but disagree with its suggestion that the
dismissal is occasioned by petitioners’ failure to “plead around” respondents’ First
Amendment defense. See Syl. Pt. 5, Gable, 245 W. Va. 213, 858 S.E.2d 838.
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