Local government retaliation through public notice contracts must end
Caitlin Vogus
December 12, 2023
Local news outlets around the country are losing an important source of funding, as government officials withdraw contracts to publish public notices, sometimes in retaliation for critical reporting. woman reading newspaper by rawpixel.com is licensed under CC0 1.0.
The Reporter, a weekly newspaper in upstate Delhi, New York, had been publishing government notices for more than a century when Delaware County government officials yanked the notices away, allegedly in retaliation for the paper’s reporting. Now, the Reporter is suing.
It’s part of an alarming trend: Government officials are turning contracts to print official notices — an important source of revenue for many news outlets — into a carrot or stick to control news coverage. And since we last wrote about it, several other disturbing examples have come to light or developed further.
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When the Delaware County Board of Supervisors revoked The Reporter’s designation as the official county newspaper in spring 2022 — and with it, the money the paper received to print local laws and notices — it said that the change was because of increased prices and the time it took to place the notices in the paper.
But a year later, the county changed its tune. The board of supervisors and other government employees sent a letter to The Reporter demanding that it change how it covers the county. They also admitted that their displeasure with the newspaper’s coverage was one of the reasons its designation was revoked.
Revoking the designation wasn’t the only step the county took against the paper. It also gagged county employees from speaking to The Reporter’s journalists. Just five days after a story in The New York Times about the decision to remove The Reporter’s designation, the county attorney issued a directive to county employees requiring that any communications or requests for comment from The Reporter be sent to her office.
The Reporter’s lawsuit challenging the revocation of its designation also argues that the gag order directive violates both its First Amendment rights and those of county employees who want to speak with the newspaper. Other courts have held that similar gag orders violate the First Amendment, even when they’re not issued in retaliation for critical coverage.
The press has a First Amendment right to gather information from government employees who want to speak to them. Those employees also have a constitutional right to speak about matters of public concern without their employer’s permission.
The outcome of The Reporter’s lawsuit could be important for other New York newspapers facing similar retaliation. Earlier this year, for example, the Putnam County legislature voted to revoke The Putnam County News and Recorder’s contract to publish county legal notices. The vote followed disputes between the newspaper and a newly elected county executive over The News and Recorder’s “highly critical” coverage of the executive’s administration.
In Kansas — a state that recently embarrassed itself on the national stage for other press freedom violations — an advisory opinion issued by Attorney General Kris Kobach this summer said that smaller cities could exempt themselves from a state law requiring official notices to be printed by a designated newspaper.
As a result, several Kansas cities have voted to remove official notices from their local newspapers. For example, the city of Hillsboro decided in October to stop publishing public notices in the Hillsboro Star-Journal. The city of Westmoreland has done the same with respect to its local paper. Notices will instead be posted on government websites.
The loss of this revenue can threaten the existence of local news outlets serving the smallest communities. It also harms transparency. Unlike the permanent public record created when government notices are published in an independent newspaper, notices printed on government websites could be altered by agencies or officials.
Meanwhile, in Ohio, the state already passed a new law over the summer allowing municipalities to publish public notices on their own websites, rather than designated newspapers. Because the law was snuck into a budget bill more than 6,000 pages long, it went mostly unnoticed.
It hasn’t gone without impact, however. At least one Ohio municipality is already considering removing public notices from the local newspaper and publishing them on a government website instead. The Ohio legislature is also considering another bill that would allow counties, villages, or townships — which are not covered by the new law — to publish their public notices online as well.
If this new bill passes, it will further undermine revenue for local newspapers serving small communities. It will also give more jurisdictions in Ohio a powerful tool to use against newspapers whose coverage they dislike, just as has happened elsewhere around the country.
Public notices provide a small but steady income stream for many community news outlets, which often operate on a financial razor’s edge. That makes them especially vulnerable to government officials who use public notices contracts to retaliate, or to misguided attempts to “update” the law to encourage notices to be published online.
Finding ways to shore up funding for local news would go a long way toward solving this problem. One thing Congress could do is pass the Community News and Small Business Support Act, a bipartisan bill that would give tax credits to small businesses that advertise in local media and a payroll tax credit to local news outlets that employ reporters in their communities.
Of course, what local lawmakers must do is stop using public notice contracts to illegally retaliate against the press. We hope Delaware County will soon do so on its own. If not, the courts must make it.