Can a free shopper publication that contains only advertising and printed legal notices (no general news content and no paid subscribers) qualify as a 'newspaper' or a 'legal newspaper' under South Dakota law for purposes of publishing legal notices?
Plain-English summary
The Moody County Shopper was a free non-subscription publication delivered to boxholders under U.S. Bulk Rate Postage Permit No. 62 out of the Flandreau post office. Its June 1, 1966 issue was six unnumbered sheets of classified advertisements, other ads, and legal notices (City of Flandreau notices, Flandreau Independent School District notices, primary election ballots, and probate notices). It had no general news content and no paid subscribers.
The Shopper was apparently being considered for use as a publication vehicle for legal notices, perhaps because it was less expensive than the established paid-circulation paper. A municipal or county official asked the AG whether legal notices published in the Shopper would satisfy South Dakota's statutory notice requirements.
The AG said no, on two independent grounds.
First, the Shopper could not qualify as a "legal newspaper" under SDC 1960 Supp. 65.0508. That statute required, among other things, that a weekly publication have "a bona fide paid circulation of two hundred copies weekly." The Shopper had zero paid circulation because it was free. So it failed the explicit statutory definition.
Second, the Shopper could not qualify even as a "newspaper" in the ordinary sense, which mattered for a separate question: could it be designated as the official newspaper of the City of Flandreau (which under a 1955-56 AG opinion could be a non-"legal newspaper" so long as it was printed in the municipality)? The AG said the Shopper failed the newspaper threshold too, because a newspaper had to contain current news of general interest, not just ads and legal notices.
The AG quoted 66 C.J.S. pages 22-23 for the general definition of a newspaper: "a publication, usually in sheet form, intended for general circulation and published regularly at short intervals, containing intelligence of current events and news of general interest." A publication could specialize (legal, commercial, religious, sports), but it had to contain current news as a primary or significant element. A 1939-40 AG opinion (citing the same C.J.S. authority) had said: "If the paper is printed merely for publishing legal notices or advertisements and does not have the characteristics as defined in the citation given above, it would not be a newspaper."
The AG marshaled cases from Pennsylvania, Nebraska, Ohio, Florida, and New York holding that publications devoted solely to advertising, racing tips, city proceedings, or trade-specific content were not "newspapers" in the legal sense. One Iowa case (L. H. Henry Sons v. Rhinesmith) had held that a weekly shopping guide with serial stories, editorials, news items, and ads circulated free in the city was a newspaper because it had enough news and editorial content to cross the threshold. But the Moody County Shopper, as described, had no news or editorial content at all.
The bottom line: a legal notice published in the Moody County Shopper would not satisfy any South Dakota statute that required publication in a "legal newspaper," a "newspaper," or an "official newspaper."
Currency note
This opinion was issued in 1966. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. South Dakota's legal newspaper statute has been substantially restructured since 1966; the modern definition is in SDCL Title 17 (Publication and Notices) chapter 2. The 200-copy paid-circulation threshold and the requirement of news content have evolved, with digital publication adding new wrinkles. Counties and municipalities considering nontraditional publication venues for legal notices should consult current SDCL and applicable Department of Legislative Audit guidance.
What the opinion meant at the time
For municipalities and counties in 1966, the opinion was a barrier to cost-saving. Free shoppers were a popular alternative to traditional paid-circulation papers because their advertising-supported model let them reach every household at no cost to readers. Some local officials may have hoped to publish legal notices in shoppers (cheaper rates? broader distribution?). The AG's opinion shut that door. Legal notices had to go in a paid-circulation newspaper that also published news.
For newspaper publishers, the opinion was a defense of their business model. Newspapers earned significant revenue from legal-notice publication. If shoppers could siphon off that revenue, traditional papers' financial position would have deteriorated rapidly. The AG's strict reading of SDC 65.0508 and of the general "newspaper" definition preserved the legal-notice revenue stream for established papers.
For shopper publishers, the opinion was a limit on their ability to compete for legal-notice business. They could either change their model (adding news content, paid subscriptions) to qualify, or stay out of the legal-notice market. The Moody County Shopper, as described, would have needed substantial structural changes to qualify.
For the public, the opinion's policy logic was that legal notices reach people best when they appear in publications that people actually read for news. A free shopper that gets glanced at for coupons and then thrown out might or might not reach the intended audience. A paid-subscription paper that delivers a news product implies engagement by the reader and a higher likelihood that legal notices in it will actually be noticed. The 200-paid-circulation floor was a rough proxy for that engagement.
For Moody County and the City of Flandreau specifically, the opinion meant continuing to use the Moody County Enterprise (the paid paper that published the Shopper as a free sister publication) for legal notices. The Enterprise presumably qualified; the Shopper did not.
Common questions
Q: Could the Shopper qualify if it had even a small amount of news content?
A: The opinion suggested that some news content would not be enough by itself. The 1939-40 AG opinion's framing was that the publication had to have "the characteristics" of a newspaper, including being intended for general circulation and containing news of general interest as a meaningful feature, not as window dressing.
Q: Could the Shopper qualify as a "legal newspaper" if it added paid subscriptions?
A: It would have needed both: paid subscriptions of at least 200 copies weekly (SDC 65.0508's bright line) and enough news content to qualify as a "newspaper" in the general sense. Just the paid subscriptions alone, without the news content, might not have been enough.
Q: What about the Iowa case (Rhinesmith) finding that a free shopping guide was a newspaper?
A: That case turned on the shopping guide's substantial news and editorial content (serial stories, editorials, news items). The Moody County Shopper, as described, had none of that. So even under the more generous Iowa reading, the Shopper would not qualify.
Q: Did the opinion address electronic publication?
A: No. In 1966 the question of electronic or internet publication did not exist. Modern questions about online-only publications, hybrid print-online publications, and digital legal notices would require analysis under current statutes.
Q: What if a municipality designated the Shopper as its official newspaper anyway?
A: The designation would not transform the Shopper into a publication that satisfied SDC notice requirements. Any legal notice published only in the Shopper would be vulnerable to challenge as not having been published in a qualifying publication, with possible consequences ranging from delayed effective dates to outright invalidation.
Q: Could the publisher publish the same legal notice in both the Enterprise (paid) and the Shopper (free)?
A: Yes, that would have been a permissible belt-and-suspenders approach. The Enterprise publication would satisfy the statutory requirement; the Shopper publication would add broader distribution at no statutory cost.
Background and statutory framework
Legal notices in 1966 South Dakota included a wide range of publications required by statute: foreclosure notices, probate notices, sheriff's sales, tax sale notices, primary and general election ballots, municipal ordinances, school district bond announcements, and many more. The legislature required publication in newspapers as a way to give the public actual notice of governmental and legal actions affecting their interests.
SDC 65.0508 defined "legal newspaper" with specific quantitative thresholds (paid circulation, frequency of publication, period of operation). The thresholds were designed to ensure that legal notices appeared in publications with enough reach and reader engagement to plausibly inform the public. The 200-copy paid-circulation floor for weeklies was modest by urban standards but realistic for rural South Dakota counties.
The newspaper/legal-newspaper distinction was important because some statutes required publication in a "legal newspaper" specifically (more stringent), while others were satisfied by publication in a "newspaper" (less stringent), and a few used "official newspaper" (designated by the municipality but had to be a "newspaper" in the ordinary sense). The 1955-56 AG opinion cited by the 1966 opinion had drawn out the official-newspaper distinction.
Free shopper publications were a 1960s phenomenon, driven by the rise of supermarket advertising and the cost-of-printing efficiencies that made bulk-mail free distribution viable. They were a new format the legal-newspaper statutes had not been written to accommodate. The AG's 1966 opinion was essentially saying that the statutes, read on their existing terms, did not bend to accommodate the new format.
The opinion did not address whether the Moody County Shopper's status could be changed through structural modifications (adding news, taking paid subscriptions, adopting a masthead with editor and publisher information). The case-law citations suggested that incremental changes might not be enough; the publication would need genuine news-content character to qualify.
Citations and references
Statutes:
- SDC 1960 Supp. 65.0508 (legal newspaper definition; paid circulation requirement)
Cases:
- Pennsylvania Publications v. Pennsylvania Public Utility Commission, 152 Pa. Super. 279, 32 A.2d 40 (racing scratch sheet not a newspaper)
- Turney v. Blomstron, 62 Neb. 616, 87 N.W. 616
- Bising v. City of Cincinnati, 126 Ohio St. 218, 184 N.E. 837 (city-proceedings-only periodical not a newspaper)
- Green v. Home News Publishing Co., 90 So. 2d 295 (Fla.) (free publication without masthead, one page of news, not a newspaper)
- Deutsch v. McGurrin, 241 N.Y.S.2d 393 (travel-industry publication not a newspaper)
- L. H. Henry Sons v. Rhinesmith, 219 Iowa 1088, 260 N.W. 9 (free shopping guide with serial stories, editorials, news items, was a newspaper)
Prior AG opinions:
- 1939-40 AGR 78 (newspaper must have current news, not just legal notices)
- 1955-56 AGR 319 (non-legal newspaper may be designated official newspaper of municipality if printed within municipality)
Treatises:
- 66 C.J.S. pages 22-23 (definition of newspaper)
Source
Original opinion text
Newspapers. A nonsubscription newspaper consisting of only advertising, and published legal notices cannot qualify as either a "Newspaper" or a "Legal Newspaper" in South Dakota.
You have forwarded a copy of a publication, the masthead of which denominates such as "THE MOODY COUNTY SHOPPER," published by the Moody County Enterprise, Flandreau, South Dakota. Such is mailed out to various boxholders under Bulk Rate U. S. Postage Permit No. 62 from the Flandreau post office. You have advised that such is a "nonsubscription" newspaper.
An examination of such "SHOPPER" discloses that the June 1, 1966, issue consists of six unnumbered sheets, which carried classified and other advertisements, together with various legal notices issued by both the City of Flandreau, the Flandreau Independent School District, copies of the proposed ballots in the primary election of 1966, and various notices required by the probate laws.
You have asked my opinion as to whether or not it would be legal to publish legal notices in "THE MOODY COUNTY SHOPPER?"
There can be no question that the "SHOPPER" cannot qualify as a "legal newspaper" as defined in SDC 1960 Supp. 65.0508 as one of the requisites for a "legal newspaper for the publication of legal and other official notices" is that if such is a weekly newspaper that "it shall have a bona fide paid circulation of two hundred copies weekly." You have advised that the "SHOPPER" is a "nonsubscription" publication. It has no paid circulation. It cannot qualify as a "legal newspaper" of this state.
My predecessor in office in an opinion reported in 1955-56 AGR 319 in construing the appropriate statutes concluded that in the designation of a newspaper as an official newspaper for a municipality that a newspaper which did not qualify as a "legal newspaper" could be designated as such official newspaper so long as it was printed and published within the corporate limits of the municipality.
The question still remains; however, can "THE MOODY COUNTY SHOPPER" qualify as a "newspaper" so as to be designated as an official newspaper for the City of Flandreau?
In 66 CJS pages 22 and 23 the following citation of authority defining what constitutes a "newspaper" appears:
"Newspapers are of so many varieties that it is next to impossible to give any brief definition that will include and describe all kinds of newspapers. In ordinary understanding a newspaper is a publication, usually in sheet form, intended for general circulation and published regularly at short intervals, containing intelligence of current events and news of general interest. Newspapers may be classed as general, devoted to dissemination of intelligence on a great variety of topics which are of interest to the general reader or special, in which some particular subject as religion, temperance, literature, law etc., has prominence, general news occupying only a secondary place. Thus, if a publication contains the current news of the day, it is nonetheless a newspaper because it is devoted primarily to special interest, such as legal, commercial and financial, mercantile, political religious, or sporting."
My predecessor in an opinion reported in 1939-40 AGR 78, after quoting from the above citation of authority, said:
"It is my opinion, therefore, that the character of the particular paper as a newspaper must first exist and that it must be published at regular intervals, at short periods of time. If the paper is printed merely for publishing legal notices or advertisements and does not have the characteristics as defined in the citation given above, it would not be a newspaper."
See also the following authorities. Pennsylvania Publications v. Pennsylvania Public Utility Commission, 152 Pa Super 279, 32 A (2) 40 (holding "racing scratch sheet" was not a "newspaper"); Turney v. Blomstron, 62 Neb. 616, 87 NW 616; Bising v. City of Cincinnati, 126 Ohio St. 218, 184 NE 837 (holding periodical whose publication was confined to reports of city proceedings was not a "newspaper" in which other legal notices could be published); Green v. Home News Publishing Co. (Fla) 90 South (2) 295 (a publication distributed free to the public which did not contain a masthead setting forth publisher, editor, circulation, place of publication, etc., and which contained one full page of news in a twelve page and in a six page issue, with remainder being advertising, did not constitute a "newspaper" within Sales Tax Act); Deutsch v. McGurrin, 241 NYS (2) 393 (A weekly publication not found on newstands, distributed almost exclusively to persons or companies in travel resort industry, and listed publishing industry directories as a "business publication," and which did not contain general news or general advertisements, was not a "newspaper" so that its editor was exempt from jury service.)
In L. H. Henry Sons v. Rhinesmith, 219 Iowa 1088, 260 NW 9 the Iowa Court held that a "weekly shopping guide" which contained serial stories, editorial comments, items taken from newspaper, and large amount of advertising, which was circulated free in the city, and which was hardly distinguishable in appearance from an ordinary county seat newspaper, was a "newspaper."
I concur in the opinion of my predecessor and the above quoted adjudicated cases. From an examination of such opinion and decisions, and comparison with "THE MOODY COUNTY SHOPPER," it is my opinion that it cannot be considered to be a "newspaper."
As "THE MOODY COUNTY SHOPPER" cannot qualify as a legal newspaper, as defined in SDC 1960 Supp. 65.0508, and cannot qualify as a Newspaper that can be selected as an official newspaper of the City of Flandreau, it is my opinion that the publication of any legal notice within such "SHOPPER" would not satisfy the requirements of South Dakota statutes requiring the publication of such legal notice in a "Legal Newspaper," a "newspaper," or an "official newspaper" within this State.