Guilford County newspapers suing to stop legal notices change
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 media 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 in the lawsuit include the High Point Enterprise, Carolina Peacemaker and Jamestown News, all of which derive significant revenues from publishing a variety of public notices.
“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 attorney Amanda Martin said in the complaint. “As such, ‘the Act’ is an effort to restrain the free press in violation of Article 1, Section 14 of the North Carolina Constitution.”
Elsewhere in the complaint, Martin 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,” Martin said in 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.
At issue are advertisements by public agencies, participants in court cases and others that put readers on notice 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 legal notice advertising. In the age of smart phones, laptop computers and other electronic gadgetry, they believe there are better and more cost-effective ways to get the word out about official events, court actions and other public information, one of them being to let local governments to use their own websites.
Newspaper supporters counter that print publications’ websites 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,” Martin said in the lawsuit.
Republican legislative leaders, have denied that political payback played a role in their support for either the Guilford pilot 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.
“Guilford County will compete with plaintiffs and be paid by other governmental units for legal advertising and notices, and will accept and be paid by private citizens for legal advertising and notices,” the lawsuit asserts. “Such actions will deprive plaintiffs of most, if not all, of their revenue currently generated by legal advertising.”
The local act says the county should use revenue from its electronic notices “for local supplements for teacher salary and other county needs.” 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 each publication’s “lost profits and the fair market value of their legal advertising business.” They also seek a court finding that the disputed, local 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 a total of four counties — but that eventually was whittled down to Guilford County alone. Legislators approved that version last summer, but Democratic Gov. Roy Cooper vetoed it and GOP supporters lacked the votes to override him.
Martin, a Raleigh lawyer who also represents the North Carolina Press Association, said in the complaint that the local measure deprives the four publications of constitutional protections by “irrationally treating the plaintiffs differently than all other print newspapers in general circulation in North Carolina.”
The action last fall resulted “in Guilford County being allowed by local act to circumvent the requirements of the general laws,” the lawsuit asserts.
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 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.
Publishing notices on a county website, in her view, simply makes it easier for more residents to see them in way that might be more cost effective for public agencies and others who must post such notices, she has said.
But in Friday’s complaint, Martin 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,” Martin 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.”
Story By Taft Wireback
Reprinted with permission from the Greensboro News & Record