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 since been recodified and revised; the paid-circulation and news-content requirements have changed, and digital publication raises questions the 1966 framework did not address. Counties and municipalities considering nontraditional publication venues for legal notices should consult the current SDCL.

What the opinion meant at the time

For municipalities and counties in 1966, the opinion closed off a possible cost-saving route. A free shopper could not be used to publish legal notices; those notices had to go in a paid-circulation newspaper that also published news.

For newspaper publishers, the opinion confirmed that legal notices had to appear in a qualifying paid-circulation newspaper that published news, which described established papers rather than free shoppers.

For shopper publishers, the opinion meant that a free, advertising-only publication did not qualify. To carry legal notices, a publication would have needed both paid circulation of at least 200 weekly and genuine news content. The Moody County Shopper, as described, would have needed substantial structural changes to qualify.

For Moody County and the City of Flandreau specifically, the opinion meant the Shopper could not be used for legal notices. The body notes that the Shopper was published by the Moody County Enterprise, the established paid paper; the opinion did not rule on the Enterprise itself.

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: Under the opinion, the designation would not transform the Shopper into a publication that satisfied SDC notice requirements. A legal notice published only in the Shopper would not satisfy the statute requiring publication in a "legal newspaper," a "newspaper," or an "official newspaper."

Q: Could the publisher publish the same legal notice in both the Enterprise (paid) and the Shopper (free)?
A: The opinion did not address dual publication. Its holding was that publication in the Shopper alone would not satisfy the statute; it did not opine on publishing the same notice in a qualifying paper plus the Shopper.

Background and statutory framework

Legal notices required by statute in 1966 covered things like municipal and school district notices, primary election ballots, and probate notices, all of which had to be published so the public received actual notice of governmental and legal actions. The June 1, 1966 Shopper issue itself carried City of Flandreau notices, Flandreau school district notices, primary election ballots, and probate notices.

SDC 65.0508 defined "legal newspaper" with specific requirements, including the 200-copy weekly paid-circulation floor for weeklies. A free, non-subscription publication had no paid circulation and so could not meet that threshold.

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 relatively new format that the legal-newspaper statutes had not been written to accommodate. The AG's 1966 opinion read the statutes on their existing terms and concluded they 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

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1727

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.