Public Notices in the United States

The “Public Record” (in Philadelphia) is a booster of nearly every local politician, in large part because the paper’s income is dependent on politicians’ advertising. The most exciting of these ads, typically paid for by campaign committees, tell you either to pull a certain lever or enjoy a certain holiday. But even Tayoun’s bipartisan buttering-up doesn’t generate enough revenue to keep his paper in the black. There’s another staple of the Public Record’s advertising hole. Sprawling across the tabloid’s back pages are items attesting to the most humdrum practices of local government: sheriff’s sales, procurement notices, and announcements of city council committee hearings.

Philadelphia is not the only city that publishes the details of its inner workings in such a form. In every state, laws exist requiring local governments to inform the citizenry of their actions through newspaper advertising. These obligations have created a highly valuable—and unlike most types of advertising, virtually recession-proof—stream of revenue to a wide variety of local publishing outfits, and, in the case of boutique papers like Tayoun’s, a sector of American publishing that would probably not exist without them.

A string of new legislative efforts, however, including one in New Jersey that has passed the state assembly, is attempting to free municipalities from existing public-notice standards and to allow governments to post the information on their websites instead. New Jersey Assemblyman Joseph Cryan, who co-sponsored the bipartisan legislation, was attracted to the issue when Kenilworth, a town in his district, missed a newspaper deadline to post a public notice and had to wait 48 hours until it could run, leaving the town unable to take action. “Wait a minute here. We’re in the Internet age,” Cryan said recently. “Quite frankly, in 2005, to not have Internet access to legal notices that are government-sponsored seems absurd.”

Cryan’s bill, which has been hung up in the state senate, threatens to dismantle a cozy relationship between elected officials and the newspaper industry that amounts to a form of publishing patronage. Tayoun’s business model is not an unusual one: Legal notices are, by one account at least, an $800 million industry nationwide. Last year, the City of Philadelphia paid close to $4 million to inform citizens of its activity through newspaper ads. “We buy more space for public notices than we have to,” says former Philadelphia Managing Director Phil Goldsmith, who, it should be noted, was observed not too long ago by the Public Record “going down the Parkway in a hurry.” “A very busy man!” the paper reported.

IT IS NOT CLEAR WHETHER LEGAL NOTICES OF ANY SORT are regularly read by anyone. Law firms don’t typically have attorneys on call to page through the latest issue of the local legal rag, and when it comes to government business, stakeholders and participants in public decisions don’t usually bum rush the newsstand in the morning like apartment hunters racing to check out the latest real estate listings.

“It’s always been a joke in law, and kind of a fiction,” says University of Virginia professor Tim Wu, who specializes in Internet-related law. “Public notice is not really notice at all. It’s what the law does when it’s hard to reach someone.” Once a notice has been published, Wu explained, the law can assume you’ve read it, even if you haven’t (and you almost certainly haven’t).

Public notices have not always been a legal fiction, to be buried in a barren corner of the newspaper like a Sabbath candle-lighting time or Tuesday’s forecast for business travelers to Bozeman. For years, to American newspapers public notices were not only a feature and moneymaker but a source of identity and journalistic pride. To government, they were an essential means of communicating with citizens, a tool that was employed long before the advent of American democracy. (…)

During the 1790s, the Philadelphia-based Gazette of the United States made it clear that government would not be left to speak for itself through notices; the paper placed a correspondent in Congress. “He reported what he saw, not the official words,” Clark said. After the election of George Washington, the colonial press that had cuddled with government gradually became American media that sought to establish distance from it. In addition to soliciting the government for announcements, the press began to cover the government journalistically.

Legal notices were no longer the staple they had been, but they continued to affect how newspapers approached their coverage. The papers of the young republic were typically invented in common cause with political parties. The Federalists had the Gazette of the United States; the Democrats had The National Gazette. When parties came into power at the local, state, or national level, they doled out contracts to their most loyal mouthpieces. “For many newspapers up until after the Civil War, patronage was their primary income stream,” said University of Denver historian Jeffrey Rutenbeck.

During the Lincoln Administration, reformers killed this form of federal patronage by creating the Government Printing Office. But at the local level, the public-notice business remained intact, and a newly professionalized media, which responded to the growth of a more literate reading public with a robust streetcorner “penny press” in large Eastern cities, developed a commercial spirit that had little time for partisanship. “As newspapers became more politically independent during the late 19th century, they began to treat political parties just like other customers,” said Rutenbeck. “This meant that politicians had to pay for their column inches just like anyone else.”

PUBLIC NOTICES ARE THE CLASSIFIED ADS OF A RESPONSIVE DEMOCRACY, in which the burden of transparency is shouldered by modest agate. Today, there are some 30,000 laws nationwide, many of them drafted at the state level, requiring different government entities to publish their doings in the newspaper. In 42 states, these come with eligibility requirements dictating the type of media that’s acceptable: by circulation, geographic range, and amount of editorial content (you can’t print a public notice in Auto Trader). In Ohio, for example, a local government must buy general-circulation newspaper ads in two consecutive weeks before embarking on “the lighting, sprinkling, sweeping, or cleaning of any street, alley, public road, or place, or parts thereof or for treating the surface of the same with dust-laying or preservative substances, or for the planting, maintaining, and removing of shade trees, or for the constructing, maintaining, repairing, cleaning and enclosing of ditches.”

Thirty-four bills in 19 states have recently challenged this status quo, including comprehensive legislation in Indiana, Colorado, and New Jersey that would effectively end those states’ public-notice requirements. The latest legislative efforts tend to target official notices posted by government, not those from private-sector legal activity like small businesses compelled to publish announcements of their incorporation. (It is not clear how much of the legal-notice business comes from governments mandated to buy ads.)

The most formidable resistance faced by legislative efforts to put public notices online has come, naturally, from the newspaper industry—which has already seen eBay make newspaper “For Sale” ads a marketplace anachronism. At the national level, the American Court & Commercial Newspapers, a trade group, created the Public Notice Resource Center to advocate in defense of existing requirements. “It’s really not a revenue issue. It’s about democratic government,” says Rishi Hingoraney, the resource center’s executive director. “We believe readers should be notified in a stable format. It’s been around for hundreds of years, and it’s been doing the job it was supposed to.”

But the format isn’t what it used to be. Just over 50 percent of Americans say they read the newspaper in an average week. That may seem like a formidable number, but it is in steady decline, down from 77 percent in 1970. That tumble in newspaper consumption has, as we all know, coincided with the growth of an online reading public. According to the Pew Internet & American Life Project, 66 percent of American adults—77 million daily—use the Internet, and 9 percent of them say they look for information from government websites. No one seems to measure the ranks of newspaper readers hardy enough to make it through the public notices.

Hingoraney ominously identifies the legislative efforts to lessen dependence on newspapers as part of a “growing trend in secrecy among governments.” In its materials, the Public Notice Resource Center cites as its example of the dangers of opaque bureaucracy an episode not soon to give rise to fears of untrammeled tyranny: “Until 2003, Washington Redskin[s] fans were forced to park miles away from theteam’s home stadium and pay exorbitant parking fees. As it turned out, the parking policy was enacted by a local council of representatives at a public meeting that was not properly advertised.”

The American Court & Commercial Newspapers is, in a certain way, like any trade association that pushes legislators to give members of the group preferential treatment when it comes to government contracting. But newspapers have access to a rhetorical arsenal not at the disposal of, say, construction-industry representatives. Among New Jersey newspapers, the proposed public-notice law drew a unanimity of editorial-page opinion rarely found on any public policy issue. “If the bill is approved, the residents of New Jersey—not its newspapers—will be the big losers,” said the Asbury Park Press. “New Jersey lawmakers are once again trying to slam the doors on open government. . . Lawmakers with an ounce of conscience should reject this measure,” exhorted the Bridgewater Courier-News. Many of these papers suggested that legislators were exacting revenge on newspapers for their vigorous crusade for ethics reform in Trenton.

Where fledgling newspapers once used government news as proof of the papers’ credibility, publishers today are arguing that an appearance in their pages validates the announcements of authority. This is a curious rhetorical pirouette. In state capitals, newspaper lobbyists (or “First-Amendment attorneys,” to use the industry’s sometimes disingenuous euphemism) are making the unromantic argument that they are vital partners of government. This symbiosis between power and the press is what one would expect of Jimmy Tayoun’s Public Record; his newspaper isn’t just kept afloat by publishing patronage, it is publishing patronage. But don’t we expect something different from major metropolitan dailies?

Government put its advertising in newspapers because it was more economical than government publishing the ads itself, and, in the spirit of Willie Sutton, that’s where the readers were. It wasn’t because there was something improper about government communicating directly with the public. When the Supreme Court has a decision to hand down, it doesn’t buy space next to the she-male ads in the back of the Washington City Paper. It prints them off a government press.

Government communication unmediated by the press—the object of the most alarmist newspaper-industry rhetoric in the legal-notices debate—does not bother Tim Wu. Generally speaking, he said, we let government be both a speaker and a publisher. “These First Amendment issues are all important—in areas where we think government might have the motivation to misbehave.” But what incentive does the government have to do that in this case?

Here, the suspicious motives belong to media companies. The irony is that, in other cases, public-information crusaders are pushing governments to use their websites as depots for self-disclosure of everything from campaign finance documents to information on government contracts. By standing together to keep notices in their pages, newspapers are perpetuating public notices’ standing as a legal fiction. “Internet notices,” Wu says wryly, “might actually be noticed.”

Sasha Issenberg is a writer-at-large at Philadelphia