Mass. law governing legal ads needs to be updated to include digital-only outlets

Legal advertising has been a mainstay of the press since Colonial times. Official announcements of bids for government work, auctions and the like bring in a lot of revenue, and there were papers that were literally founded in order to be paid for publishing public notices.

But the future of legal ads in Massachusetts has come into question. State law requires that they be published in the print edition of a newspaper that circulates in the relevant city, town or county — and Gannett next month will be closing at least 19 local print weeklies after shutting down at least a half-dozen in 2021. Where will you publish legal ads?

I know that this has long been a thorn in the side of The Bedford Citizen, a nonprofit digital news outlet that would like to get its share of legals. Instead, those ads are published in Gannett’s Bedford Minuteman, whose paid circulation is less than 500, according to the Alliance for Audited Media. By contrast, the Citizen’s daily newsletter has more than 2,000 subscribers, and its website recorded some 133,000 users during the first half of 2021.

And now the Minuteman is closing. The assumption is that the legal ads will be run in The Sun of Lowell, a daily with virtually no presence in Bedford.

The current, confusingly worded law allows for the online publication of legal ads, but they must also be published in a print edition. State Rep. Ken Gordon, a Bedford Democrat, responded to my inquiry on Twitter by saying that he’s working with Rep. Alice Hanlon Peisch, D-Wellesley, to change that and allow for legals in digital-only publications.

Gannett also publishes the weekly Wellesley Townsman, which is not among the print weeklies that the chain will be closing. But who knows what the next round of cuts will bring? Moreover, Wellesley is home to the independent, online-only Swellesley Report, which would surely like a share of those legals. No doubt that’s part of what has piqued Rep. Peisch’s interest.

All of this comes at a time when the idea of publishing legal ads in news outlets is under assault. Why should the government subsidize journalism through advertising when it can publish legals for free on its own websites?

Florida is going through this right now. It was only recently that the state passed a law allowing government officials to advertise on news websites instead of in print newspapers if they so chose. But as Gretchen A. Peck recently reported in the trade publication Editor & Publisher, a proposal is being pushed through the state legislature that would allow for free publication on government websites instead.

The legislation has all the appearances of being part of Gov. Ron DeSantis’ war against the press. “This is just yet another of his red meat, hateful, harmful, hurtful pieces of legislation that he has been pushing this legislative session,” Democratic state Sen. Gary Farmer told E&P.

But to get back to the question of why: The Massachusetts Newspaper Publishers Association, which maintains a database of legal ads published throughout the state, offers four reasons for publishing ads in news outlets rather than on government websites:

  • “They must be published in a forum independent of the government.
  • “The published notice must be preserved and secure in a tangible record that is archived.
  • “The notice must be conveniently accessible by all segments of society.
  • “The notice’s publication must be verifiable (by way of an affidavit of publication).”

In other words, the news-outlet requirement is an anti-corruption measure. If government is allowed to publish its own legal notices, who’s to say that some of them won’t be buried for some nefarious purpose? Who’s to say the wording won’t be changed?

The involvement of news organizations in legal ads is essential not just as a revenue stream but for ensuring that the government can’t engage in self-dealing. That said, the law needs to be updated. The print requirement has been an anachronism for years, and it’s only getting worse.

12 thoughts on “Mass. law governing legal ads needs to be updated to include digital-only outlets

  1. As editor of YourArlington, now a nonprofit, covering Arlington, Mass., since 2006, I am not a neutral observer. It is no surprise that I support Dan’s view here, as changes in the law to allow growing local sites would benefit our future as well as well as that of the Citizen in Bedford and my friend Bob Brown in Wellesley. As Dan writes, it will in the long run help the public, too. Thanks for this post.

  2. Dan, thanks for writing about this. The Swellesley Report did in fact approach Rep. Peisch’s office on this topic as far back as 2019 and she pledged to pursue it, warning that it could be a slog. We’re happy to see progress being made. We’re also happy that the town of Wellesley, while fulfilling its legal requirement to post legal notices in print newspapers, has recognized that this law is outdated. It also has begun to post some legals notices on our online-only site.

  3. I disagree with you, Dan. I think the requirement for publication in print is essential. You point out, correctly, that one powerful argument for the publication requirement is that legal notices be published in a forum independent of the government, as an anti-corruption measure. But virtually all of the new online-only publications are organized as nonprofits, which are not independent of the government. They are dependent on being approved as legitimate by the IRS and the state.
    Further, legal notices must be accessible by all segments of society. That is true of print newspapers, but not true of online sources. The Provincetown Independent currently has almost 4,000 subscribers. We publish both in print and online, and 81 percent of our subscribers choose the print edition. A print subscription comes with digital access at no extra charge. Yes almost half of our print subscribers have never looked at the online edition even once.
    The reason why online-only news has to be nonprofit is that there is simply no business model for a profitable online-only news organization, whereas print advertising remains an enormously important way for businesses to communicate with their communities.

    1. Dan Kennedy

      Ed: I’ll leave aside the nonprofit issue for the time being. We are talking about communities that literally have no print newspaper. Provincetown has two, which makes it a real outlier.

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  5. John Hawkinson

    Dan, why do you (and so many others) claim that “State law requires that they be published in the print edition of a newspaper”?

    As far as I can tell, that is not the language in the statutes. E.g., for the Zoning Act, Ch. 40A §11 requires “publication in a newspaper of general circulation.” (There are a lot of notice statutes with similar but-not-identical language.) Nowhere does the word “print” appear as a requirement, as far as I can tell.

    Reasonable people can argue about whether “publication” in an online publication meets that language of the statute, but I think nobody would say there is an unambiguous requirement that it must be a print edition.

    Has there been some court decision reading an unwritten “print edition” requirement into the statute that I am unaware of?

    1. Dan Kennedy

      John, according to state Rep. Ken Gordon, the wording — confusingly written — currently specifies that legals can be run online *in addition to* print. He wants to change it so that it’s either/or.

      1. John Hawkinson

        Thanks Dan, I understand Gordon’s desire, and I get that’s what people say, but…that’s not what I see in the wording?

        HOWEVER, I had missed the link in your post to Ch. 4 §13 which purports to define “newspaper of general circulation” for all other statutes.

        §13(b) further says it means, “shall publish said notice in a newspaper which shall ensure that the legal notice appears in: (i) a newspaper’s print publication; (ii) on the newspaper’s website; and (iii) on a statewide website that may be maintained as a repository for such notices; provided, however, that if a newspaper does not maintain its own website, publication on a statewide website and reference to the statewide website in the print publication notice shall satisfy the requirement of publication on the newspaper’s website.”

        I guess it would be a tough sell to say that we need to read “if any” into the requirement (i) of “a newspaper’s print publication.” But on the other hand, clearly we must read “if any” into (ii)’s requirement of “the newspaper’s website” because that’s made explicit by the subsequent “however” clause.

        Still, it seems to me that this language is ambiguous and a town can reasonable claim to be compliant if they choose to publish in an online-only newspaper. No town counsel would advise their client to do that when it cost $50 to publish in the local paper. But when the same ad costs $500 or $1000 in the Globe or the Herald and citizens aren’t likely to search the legal ads in those publications, then it becomes a lot easier to read the ambiguity into the statute and say there is no explicit print requirement.

        I guess it also depends on what the risk is. Somebody comes forward and says notice was defective for a variance or special permit or whatever because of lack of a print advertisement, and a costly development project is tied up in years of litigation? Maybe. But for announcement of municipal bidding or other minor things, it’s hard to see anyone complaining.

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