Here’s the danger of suspending publication during COVID 19

Kentucky update: We’ve only had one newspaper contact KPA about stopping publication for two weeks and moving to online only during that time. Once the public notice advertising situation was explained, the publisher decided not to stop publication.

 

The town of Glastonbury, Connecticut announced last week it would begin publishing public notices on its website in lieu of newspaper notice, which is normally required by law, according to Manchester’s Journal Inquirer. In a statement on its website, Glastonbury cited an emergency order issued March 21 by Connecticut Gov. Ned Lamont (D) that “suspended and modified” the state’s public notice laws to allow notices “to be published electronically on a municipality’s or agency’s website”.

The announcement also mentioned parenthetically that “The Glastonbury Citizen has temporarily stopped publishing during the COVID-19 pandemic.” A statement on the Citizen’s website explains that the “family-owned and operated” weekly newspaper was “forced to temporarily suspend publication” due to the public health crisis. An observer in Connecticut speculated that the Governor’s executive order was inspired by a request from public officials in Glastonbury, who realized they may need to purchase public notice ads in the more expensive Hartford Courant now that their local newspaper was shutting down for the duration of the crisis.

Regardless of how it transpired, the situation in Connecticut demonstrates the primary risk when newspapers suspend publication as a result of the coronavirus pandemic. First, it runs counter to the efforts of the many state and national press associations that have lobbied governor’s offices to declare newspapers essential businesses that must be allowed to continue to operate during the pandemic. Second, it may require local officials to seek an alternative when they no longer have a newspaper in which to publish their notices. And they are unlikely to forget it when the crisis passes.

This is an issue that many state press associations have faced as their members search for answers about how to continue publishing when there’s little revenue coming in to sustain operations. Most associations have counseled caution, patience and persistence.

Wisconsin Newspaper Association Executive Director Beth Bennett wrote to her members on March 25, warning “it is vitally important that any change to content or frequency not impact the ‘legal’ status of your newspaper(s).” Bennett explained that the public notice statute in Wisconsin requires newspapers to “publish at least once a week” and “contain on average at least 25% news content per issue” to qualify to publish notices.

The Michigan Press Association wrote to its members the following day, telling them the state’s public notice law requires newspapers to publish “not less than weekly intervals in the same community without interruption for at least 2 years”. MPA also noted the law provides an exception to the continuous-publication requirement when an “act of God” leads to the stoppage. Nevertheless, the press group cautioned that “with no specific government orders in place and no clarity that this is an act of God, MPA would have concerns that disruption in publishing may cause you to lose your status as a ‘notice’ publication for both legal and public notices.”

Missouri Press Association lawyer Jean Maneke issued a lengthy memo on the subject, explaining that Missouri law requires newspapers to be “published regularly and consecutively for a period of three years” to qualify to publish notice. Despite noting the requirement has been construed liberally by state courts in the rare cases it has been addressed, Maneke ended her memo with a warning:  “Missouri Press Association wants to make note that we have grave concerns that any disruption in the notices now will result in a dilution of our arguments with legislators to preserve print notice down the road.”

The Mississippi Press Association also had its lawyers issue a memo. They warned that “(f)alling below the (minimum publication) threshold would forfeit a newspaper’s right to publish public notice advertising, and a wait period of 12 months would be required before a newspaper could” regain its eligibility. The memo also noted Mississippi Governor Tate Reeves issued an executive order identifying newspapers as an Essential Business or Operation. “We understand that a newspaper with an online presence can remain ‘operational’ without publishing a print edition,” said the lawyers, “but the designation as ‘essential’ makes it harder to justify deliberate actions that would directly impact a newspaper’s qualifications to publish legal notices.”

Wisconsin, Michigan, Missouri and Mississippi are not alone. All of the state press associations we’ve communicated with are urgently counseling their members that suspending publication could be dangerous.

Considering a temporary closure is an understandable reaction to this crisis. Most newspapers operate on thin margins and aren’t in a good position to be able to withstand a sustained downturn. Some papers have already been permanently shuttered. Many others have furloughed employees or reduced print publication frequency by one or two issues per week, while continuing to publish news on their websites.

Far fewer have completely suspended publication, with good reason. Newspapers are essential in a time of crisis. Our communities need us now more than ever.

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