By Dan Kennedy • The press, politics, technology, culture and other passions

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Public notices are a crucial source of revenue — and of government accountability

Mathewson Farm in Johnston, R.I. Photo (cc) by John Phelan.

When we think about revenue sources for local news, we tend to focus on the obvious — ads, subscriptions, events and, for nonprofits, voluntary memberships and grants. What we often overlook are public notices, also known as legal ads, taken out by government entities to inform the public that a job is being put out to bid or a meeting is being held. Mandatory public notices also include foreclosures, the disposition of public property and other business.

Public notices represent a significant source of revenue for community news organizations — and they can be weaponized. The Boston Globe recently reported on one such example in Rhode Island. Amanda Milkovits wrote that the city of Johnston has removed public notices from the weekly Johnston Sun Rise and moved them instead to the daily Providence Journal, even though the Journal charges much higher fees and is read by few people in Johnston.

The mayor, Joseph Polisena Jr., told Milkovits that he wanted public notices to reach a broader audience, especially to let construction companies know about bids. But the city has also been at odds with the Sun Rise and its editor/reporter, Rory Schuler. Publisher John Howell was quoted as saying that Polisena once told him, “I’m not going to support somebody who is working against me,” and that the mayor said he wouldn’t advertise as long as Schuler was with the paper. (Polisena denied the charges.)

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The loss of city public notices is costing the Sun Rise some $12,000 a year. Justin Silverman, executive director of the New England First Amendment Coalition, told the Globe that the city might be violating the First Amendment if  it could be shown that Polisena’s actions were retaliation for negative coverage.

What’s happening in Rhode Island is hardly unusual. In Florida, Gov. Ron DeSantis pushed a bill through the legislature that allows local governments simply to post public notices on their own websites — a cost-saving measure that also has the effect of making legal ads less visible. DeSantis’ disdain for the news media is well-known.

Colorado College journalism professor Corey Hutchins often tracks fights over public notices in his newsletter, Inside the News in Colorado. Recently he reported on a move by city officials in Aspen to designate the Aspen Daily News, which is locally owned, as the city’s “newspaper of record” over The Aspen Times, a daily owned by the Ogden chain, based in Wheeling, West Virginia. That peculiarity of Colorado law carries with it some major implications. Hutchins writes:

Newspapers that earn a city’s “of record” stamp means they are the ones a city pays to place legal notices and advertising. State law requires governments to publish certain things in local newspapers in order to keep residents abreast of public business. Being a city’s paper of record also can give a newspaper a sense of gravitas in a community.

In other words, more money for the Daily News, less for the Times, which became embroiled earlier this year in a dispute with county officials who were unhappy with the Times’ coverage of a billionaire’s development plans. (Hutchins does not claim there is a link between the county and city actions.)

According to Susan Chandler, writing for the Local News Initiative, such battles are under way across the country, with increasing pressure to move public notices from news outlets to government websites. Richard Karpel, executive director of the Public Notice Resource Center, told Chandler that these initiatives are part of Republican attacks on journalism, saying:

I don’t think the concept of legal notices is controversial. There needs to be a nonpartisan way to officially announce what the government is doing. What’s controversial is how it happens. We’ve seen it become more of a partisan issue in the last five or 10 years. In some states, there are Republicans who are in battle with the media as part of their political strategy. To that extent, it has become partisan.

In Massachusetts, change may be afoot as well. Currently, state law requires that public notices be placed in print newspapers, which has become increasingly difficult as the Gannett chain has closed and merged many of its weekly papers. A number of communities are being well served by nonprofit startups, but those tend to be digital-only. State legislators are considering ways to amend the law to allow public notices to be placed in web publications, especially in communities where there is no viable print paper.

I’ve consulted with state Rep. Ken Gordon, whose district includes Bedford, the home of a vibrant digital publication, The Bedford Citizen, but no print newspaper since Gannett closed the Bedford Minuteman about a year and a half ago. The town now publishes its public notices in The Sun of Lowell, which has virtually no presence in Bedford. Also of note: On the “What Works” podcast, Ellen Clegg and I interviewed Ed Miller, editor of the startup Provincetown Independent, a print and digital publication. Miller argues that the print requirement for public notices is essential, at least in places that still have a print newspaper.

Public notices aren’t sexy. It’s much more satisfying to talk about a local news outlet that has built a successful events business or has found a way to boost digital subscriptions. But they are essential. Not only do they provide as much as 20% to 25% of a small local newspaper’s revenues, but they an important part of accountability. Public notices on a government website can be hidden away or even changed. Since Colonial times, public notices have helped local journalism thrive and have kept citizens informed. The laws governing public notices need to be updated — but not overturned.

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Libel battle won, but war remains lost

A battle has been won over a bizarre and dangerous decision by a federal appeals court earlier this year that truth may not be a defense in libel cases brought by private parties. Unfortunately, the war remains lost.

According to lawyer Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, a jury found recently that the office-supply chain Staples did not act with malice when a manager sent an e-mail to some 1,500 employees informing them he had fired a sales manager named Alan Noonan for violating the company’s travel and expense policies. (Ambrogi points to an article in the National Law Journal, but it’s subscription-only.)

As I reported earlier this year in the Guardian, the U.S. Court of Appeals for the First Circuit, in Boston, ruled that Noonan’s libel suit against Staples could proceed even though the contents of the e-mail were true. The court relied on an old provision of Massachusetts libel law pertaining to “actual malice,” which Judge Juan Torruella wrote should be defined as “ill will” or “malevolent intent.” Torruella earned a Boston Phoenix Muzzle Award for his anti-First Amendment decision.

Although Staples may not spring immediately to mind when one thinks about freedom of the press, the implications for the news media are obvious.

In the 1964 U.S. Supreme Court case of Times v. Sullivan, actual malice is defined as pertaining to a defamatory statement made with knowing falsity, or with “reckless disregard” for the truth. And though Times v. Sullivan applies solely to public officials, a series of subsequent decisions by the Court made it clear that a defamatory statement can never be found libelous if it is true — a principle asserted by free-speech advocates since the 1735 trial of John Peter Zenger.

First Amendment lawyers such as Ambrogi and Robert Bertsche wrote that Torruella should have thrown out the Massachusetts law, on the books since 1902, as unconstitutional in light of Times v. Sullivan.

So far, though, Torruella’s toxic handiwork remains in effect — at least in Massachusetts.

The high cost of Cambridge police records

The Cambridge Police Department has adopted a restrictive policy that would force the Cambridge Chronicle to pay more than $1,200 to obtain public records of police activity for most of July, according to a story by Chronicle reporter Erin Smith. What’s more, the policy may be in violation of the Massachusetts public-records law.

Like all Massachusetts police departments, Cambridge’s makes a bare-bones incident log freely available to members of the public; it is, in fact, online. But state law exempts police departments from having to release detailed information about incidents that are under investigation.

What is and isn’t public information, and when it must be made public, are complicated matters that I’m not going to get into here. But the law does require that the public log — also known as the police blotter — contain the “names and addresses of persons arrested and charges against such persons.”

According to the Chronicle, though:

The Cambridge Police Department already keeps a daily police log online maintained by a student intern, but over the past several months, the Chronicle noticed that previously available information — such as the ages and addresses of arrested people, the addresses where crimes occurred and the description of suspects — was being withheld from the public.

In quickly scanning through a few days’ worth of the Cambridge log, I found several examples of arrestees whose addresses (and ages) were listed. I couldn’t find any whose address was not listed. I have no reason to doubt the Chronicle’s reporting, but it’s important to point that out.

The fees are another matter. Charging $1,215 for public records is an outrageous breach of the public’s right to know. The police department’s lawyer, Kelly Downes, cites the cost of compiling and copying those records. But the standard practice with many police departments is to allow reporters to view the originals at the police station, at no cost to anyone.

Given the embarrassment over the department’s recent arrest of Harvard scholar Henry Louis Gates in his own home, you’d think that everyone would be on his or her best behavior these days. Well, think again.

And by the way — we’re still waiting to hear how Sgt. James Crowley, who arrested Gates, managed to incorporate information into his report from a woman who insists she never talked with Crowley. Maybe Downes hasn’t had a chance to work out a price for that particular piece of information.

Media should keep pushing on Crowley

Even many of us who think the Cambridge Police overreacted by arresting Henry Louis Gates in his own home have assumed — for the sake of argument if nothing else — that Sgt. James Crowley’s report was accurate.

I’ve contended from the beginning that Crowley’s mistake was in failing to recognize why Gates would think he’d been racially profiled. Friend of Media Nation Harvey Silverglate and Slate columnist Christopher Hitchens have both written that the issue wasn’t race, but Gates’ constitutional right to throw a nutty in his own home. I agree.

But with Crowley, Gates and President Obama settling in for an awkward beer later today, let’s not forget that there is an enormous discrepancy between Crowley’s report and the statements of Lucia Whalen, the woman who called 911 and then waited at the scene until police had arrived.

Using very specific, descriptive language, Crowley wrote that Whalen told him she’d seen “two black males with backpacks on the porch.” And when the Boston Herald pointed out the discrepancy to Crowley, he replied, “Obviously, I stand behind everything that’s in the police report. It wouldn’t be in there if it wasn’t true.”

Yet Whalen, at first through her lawyer, Wendy Murphy, and yesterday in her own appearance before the media (Boston Globe story here; Herald story here; Cambridge Chronicle story here), has insisted that she and Crowley never spoke.

The media need to keep pushing. If Crowley’s report turns out to be wrong in some fundamental way, then it calls everything else into question as well.

Creative Commons photo (cc) via Wikimedia.

Fighting censorship at his old school paper

A summer intern at the Cape Cod Times named Henry Rome was such an outstanding journalist at his high-school paper in Pennsylvania that he was named the National High School Journalist of the Year.

Now, before he heads off to Princeton University this fall, he’s fighting a proposal that could result in his old paper being censored by school officials before publication.

George Brennan reports.

More on the Newton North controversy

Newton blogger Chuck Tanowitz shares some thoughts on the battle between city officials and the Newton Tab over access to the Newton North construction site.

Meet the Tab’s new editor

It’s Newton Mayor David Cohen, who tells the Newton Tab’s Dan Atkinson that photos are “not essential” for reporting on progress at the Newton North High School construction site.

Earlier: “Meet the Tab’s new photographer.”

Meet the Tab’s new photographer

The Newton Tab reports that Alderman Ken Parker took a photo of the Newton North High School construction site with his iPhone and sent it along to the Tab. Parker says he didn’t do it surreptitiously, either. Amazing. Earlier item here.

Press barred from public tour of public school

You wouldn’t think that when public officials tour a public school, anyone would be brazen enough to bar a news organization by claiming it’s a “private event on private property.” But that’s exactly what happened on Wednesday, according to the Newton Tab, which had assigned a reporter and a photographer to cover a tour of the $200 million Newton North High School construction site.

The Tab’s Dan Atkinson reports that Mayor David Cohen, a number of aldermen and members of the school’s design-review committee took the tour, but that Dimeo Construction wouldn’t allow the press to tag along — even though the event had been posted as being open to the public.

“It’s an essentially private event on private property,” Cohen spokesman Jeremy Solomon is quoted as saying. “It doesn’t entitle the media to attend.” Solomon added: “Elected officials deserve the courtesy to ask any questions without being concerned about how they’re portrayed in the Tab.”

The Newton North project — the most expensive public school in the history of the state, if not the known universe — has long been controversial. The Boston Globe’s Newton Wiki reports that the current price tag of nearly $200 million has almost doubled since 2003, when Cohen first proposed it. Newton voters approved it in a 2007 referendum.

Based on the facts as reported by the Tab, it’s unclear as to whether officials violated the Massachusetts open-meeting law, which, among other things, forbids private governmental meetings when there is a quorum present. Atkinson writes that “at least” nine aldermen took the tour — well short of a quorum, given that Newton has 24 aldermen. But if a quorum of design-review committee members was present, what took place might be considered an illegal meeting.

More important, what happened to the Tab on Wednesday was not just an affront to the press, but to the proposition that the public’s business should be conducted in public. As Tab publisher Greg Reibman said, “[I]t’s not the Tab that is being punished. It’s the taxpayers who are spending nearly $200 million on this project and they deserve to know how their dollars are being spent.”

More: Great catch by Michael Pahre, who notes that there is an “on-site inspection” exception to the open-meeting law. So, in all likelihood, no violation of the law took place. “That said,” Pahre writes, “the Newton officials were boneheaded in announcing this as a tour that is open to the public if they don’t want the press to attend.”

Still more: The Tab says that its reporter was allowed to take a tour today. But still no photos (or photographer), please.

Torturing the language

Civil-liberties lawyer and friend of Media Nation Harvey Silverglate explains in the Guardian why the Washington Post is wrong to claim that it can’t use the word “torture” because of libel concerns.

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