The West Virginia Supreme Court of Appeals entered an Order on November 19, 2021 affirming the Circuit Court of Berkeley County’s final order denying Petitioners’ 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. In doing so, the West Virginia Supreme Court of Appeals agreed with the lower court that the West Virginia Wiretapping and Electronic Surveillance Act’s statutory scheme is unconstitutional as applied in this case.
Petitioners in this case were employees of the Berkeley County Board of Education at Berkeley Heights Elementary School. Petitioners alleged that a special education student in their classroom had a secret audio recording device in her hair that was placed there by the student’s mother in an attempt to record Petitioners physically and verbally abusing students. The audio was edited down to approximately sixty to one-hundred and twenty second clips and were disseminated by the student’s mother to the Respondents, various broadcasting and media groups[BS1] . The clips were played by Respondents in numerous broadcast areas nationwide, placed on social media, and shared on the internet.
Petitioners asserted that the recordings came from a secret recording for which no consenting party was present and violated the provisions of the West Virginia Wiretapping and Electronic Surveillance Act when the Respondents intentionally used and disclosed unlawfully intercepted communications of the Petitioners while having reason to know that the information was obtained through interception of oral communications in violation of the Wiretapping and Electronic Surveillance Act. However, nowhere in the Third-Party Complaint was it alleged that any Respondent had any hand in either the classroom recording or in the mother’s subsequent edit of that recording.
In their analysis, the circuit court looked to the United States Supreme Court’s decision in Bartnicki to find that even if the recording had been obtained in violation of the West Virginia Wiretapping and Electronic Surveillance Act, the claims against Respondents should be dismissed as a matter of law as the 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 wiretap laws against the Respondents would violate their constitutional free speech rights. To allow the lawsuit to proceed against the media Respondents would have a chilling effect on the First Amendment to the United States Constitution and to the free press, the media, and public discussion. The West Virginia Supreme Court of Appeals agreed with this analysis.
Thus, the West Virginia Supreme Court of Appeals held that 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.
[BS1]Note: there was one respondent who was not a media group, but the portion of the opinion addressing them separately isn’t really relevant for purposes of this article. Not sure if we can have a footnote in the newsletter article to clarify this.
