Newspapers sue over legal notices published on county website

From the Greensboro, NC News & Record

GREENSBORO — The News & Record and three other Guilford County newspapers filed suit Monday to overturn a local bill lawmakers passed last year that would take legal notice advertising away from privately-owned print publications in favor of a government website.

The newspapers sued the state of North Carolina and Guilford County to protest a local measure the General Assembly adopted in October authorizing use of the county’s website to post public notices online in place of required newspaper publication currently disseminated both in print and on websites.

The act applies only in Guilford County, which the lawsuit claims is unfair, politically motivated and in violation of the North Carolina Constitution. In addition to the News & Record, publications joining the lawsuit include the High Point Enterprise, Carolina Peacemaker and Jamestown News — all of which derive significant revenues from printing a variety of public notices.

The four publications argued in their pleading that lawmakers erred last year in the unorthodox way they enacted the Guilford-only bill. Allegedly motivated by a desire to settle old political scores, the Republican-controlled legislature gutted another local bill that originally dealt with Winston-Salem’s municipal charter and then refiled it with new text enabling the Guilford County pilot program, the lawsuit contends.

“Plaintiffs, as members of the press, were specifically singled out for prior press coverage and editorials published by some or all of the plaintiffs involving certain acts by elected officials from Guilford County,” newspaper attorneys Amanda Martin and Robert Orr said in the complaint.

Elsewhere in the complaint, Martin and Orr asserted that the lawmakers’ intent “was to restrain the plaintiffs in their coverage of and editorializing about members of the General Assembly through the diminution of plaintiffs’ revenue from the sale of legal advertising.”

Legislators used the local measure to “send a message to other members of the print media around the state of the potential negative consequences to them for reporting or editorials negatively reflecting on the General Assembly,” according to the complaint.

Filed in Wake County Superior Court in Raleigh, the lawsuit also contends that legislators improperly used the local act as a vehicle to deprive the publications of their protection under a statewide general statute, which requires that legal notices be published in newspapers circulating generally within the community affected by whatever action is being advertised.

In a prepared statement Monday, Martin said she hoped “the lawsuit speaks for itself that legal notices are critical to our democracy and, historically, newspapers have played an important role in getting that information to the public.”

“We believe there are both substantive and procedural problems with the new law that lets Guilford County move their own legal notices — and those of other governments and private parties — to a county website, which will have a fraction the traffic that newspaper sites have,” Martin said.

She added that “allowing publication on government websites forfeits the important oversight function that publication in newspapers serves.”

At issue are advertisements by public agencies, participants in court cases and others that make readers aware of an official action, meeting or other event. They include notices of foreclosure, creditor status, unclaimed property, public hearings, agency audits and other official actions for which state laws require public notification before they can proceed.

The issue raises hackles on both sides, with critics arguing that the newspaper industry has no right to maintain a monopoly on such advertising. In the age of smartphones, laptop computers and other gadgetry, they believe there are better and more cost-effective ways to get the word out — one of them being to let local governments use their own websites.

Newspaper supporters counter that the websites of media outlets attract far more readers than their governmental counterparts. They say that vesting legal notices solely in the hands of governmental officials invites abuses, such as potential tampering with information those officials might want to suppress or spin.

“If government agencies are allowed to function as both the advertiser and publisher, critical checks and balances will be lost,” the lawsuit contends.

Republican legislative leaders have denied that political payback played a role in their support for either the Guilford pilot program or the general concept of moving away from newspapers as the exclusive venue for the official publication of legal notices.

Guilford County is a defendant in the lawsuit because the county’s Board of Commissioners voted to start the pilot program, including the hiring of a part-time staffer at a salary of about $35,000 a year, plus benefits. The county currently spends about $71,000 a year on its own public notices.

The county currently has a “legal notices” search option on its home page online, but it has only added a few “public meeting” announcements so far.

The newspapers are asking that a judge award them damages, including “lost profits and the fair market value of their legal advertising business that they have lost as a result” of the local act. They also seek a court finding that the act violates the North Carolina Constitution, as well as a permanent injunction preventing either level of government from putting the local legal-notices measure into effect.

The local act was passed Oct. 5 by the Republican-led General Assembly after failing several months earlier as a proposed statewide, general statute that initially included pilot programs in four counties — but eventually was whittled to Guilford alone. Legislators approved that version last summer, but Democratic Gov. Roy Cooper vetoed it and GOP supporters lacked the votes to override him.

In his July 16 veto message, Cooper said the proposed general statute was “meant to specifically threaten and harm the media.”

In the complaint, Orr and Martin noted that local measures are not subject to review by the governor, so the Guilford-only act that passed in October faced no veto threat.

Now an attorney in private practice, Orr is a former state Supreme Court justice who also served on the North Carolina Court of Appeals and led the North Carolina Institute for Constitutional Law. Martin is a Raleigh lawyer who also represents the North Carolina Press Association.

In the lawsuit, Martin and Orr said the local measure deprives the four publications of constitutional protections by treating Guilford newspapers “differently from newspapers of general circulation in all other counties of the state.”

State Sen. Trudy Wade (R-Greensboro) has been an especially strong voice for the view that newspapers’ exclusive role in legal notices should end. At times, she has been the subject of News & Record articles and editorials that sharply questioned her positions on various issues. Wade has said that was not a factor in her support for changing the status quo.

She has said that publishing notices on a county website simply makes it easier for more residents to see them in a way that might be more cost effective for public agencies.

But Monday’s complaint asserted that consigning public notices to a government website would result in an impermanent record that fewer people would see.

“Most North Carolina newspapers are published online but also in hard copy, which makes newspaper notices accessible to the roughly 20 percent of North Carolinians who do not have home or ready access to the Internet,” the lawsuit alleged. “A single newspaper can have an audience of many, whether it is in a public library or a workplace lunchroom.

“Printed newspapers are not subject to hacking, data loss or computer malfunction. Once a notice is published in a printed newspaper, it is fixed for all time in a concrete and permanent way.”