In the quaint village of Delhi, located in central New York, two exceptionally influential women engaged in a face-to-face altercation over the principles outlined in the First Amendment. This noteworthy confrontation took place during the autumn of 2019. Tina Molé, the esteemed elected official of Delaware County, demanded action from Kim Shepard, publisher of The Reporter—the local newspaper—regarding what Molé perceived as biased coverage of county government affairs by the paper.
Not willing to back down, Shepard firmly held her ground. However, Molé retaliated against The Reporter in the most damaging way possible—its finances. The county terminated the newspaper’s highly profitable contract for publishing public notices, citing “the manner in which your paper reports county business” as a factor behind the decision. This loss amounted to approximately $13,000 per year, a significant blow for a newspaper with only 4,000 subscribers.
Throughout most of the United States, state and local laws dictate that public announcements be published in traditional print newspapers, as well as online, to inform citizens about town meetings, elections, land sales, and other routine occurrences of public importance. The payments for these notices serve as a steadfast source of revenue for local newspapers.
Unfortunately, public officials have been resorting to contract revocations as a means to punish local newspapers for their vigorous coverage of local politics. Though this kind of retaliation is not new, it has become more prevalent in recent years, especially as terms like “fake news” have infiltrated the public lexicon.
Newspapers in Colorado, North Carolina, New Jersey, California, and New York have all experienced contract terminations for public notices after publishing articles critical of local governments. In some instances, states like Florida have even removed the requirement for these notices to appear in newspapers.
The executive director of the Public Notice Resource Center, Richard Karpel, stated, “It’s gotten worse over the years in terms of trying to use contracts and laws to lash out at newspapers,” reflecting the concerning trend of government officials exploiting contracts to suppress journalism.
This is merely one example of public figures, including former President Donald J. Trump, delegitimizing mainstream media, while others such as former Governor Sarah Palin and former Representative Devin Nunes have pursued unsuccessful libel lawsuits against news organizations. In certain cases, such attacks have escalated into real-world threats, like when a New Hampshire journalist’s home was vandalized following an exposé on a local businessperson.
Legal experts argue that it is illegal for elected officials to weaponize public contracts in this manner. Thomas Hentoff, a partner at law firm Williams & Connolly specializing in First Amendment law, asserts, “Under the First Amendment, governments cannot retaliate against anyone based upon the viewpoints that they express on any issue.”
While it may be challenging to establish a direct link between contract revocations and displeasure with a newspaper’s coverage, there are instances where such rationales have been overtly expressed.
For example, during the early days of the Covid-19 pandemic, officials in Custer County, Colorado replaced the long-standing public health director with a candidate whose educational credentials were questionable. The Wet Mountain Tribune reported that the individual obtained their degree from an unaccredited university that did not conduct classes or written exams.
As a result, the county commissioners terminated The Tribune’s contract for public notices and awarded it to a smaller rival publication. During a public meeting, one of the commissioners explicitly stated that their decision stemmed from the newspaper’s “witch hunt” against the public health director. In response, The Tribune’s publisher, Jordan Hedberg, sued the county for violating their First Amendment rights, resulting in a settlement where the county agreed to reinstate The Tribune’s contract and compensate the paper for damages incurred.
For small newspapers with limited budgets that can only afford one or two full-time journalists, public-notice contracts are crucial revenue streams that can determine their survival. This is particularly true for papers that generate meager advertising revenue. Unfortunately, savvy governments exploit this vulnerability to exert control, as experienced by the Shawangunk Journal in Ellenville, New York. The town’s school district canceled the Journal’s public-notice contract due to grievances about its coverage, costing the paper approximately $2,000 per year. However, the true loss was a decline in civic engagement within the community.
In another case, The Gaston Gazette, a North Carolina newspaper with a print circulation of around 4,000, faced repercussions after publishing an article alleging that county commissioners had unlawfully settled workers’ compensation cases in secret. The chairman of Gaston County’s board of commissioners criticized the article, labeling it as “another instance of where the fake news media seeks to make news rather than to report the facts.” The county took legal action against the paper for libel but eventually dropped the suit. However, its plan to terminate the public-notice contract, estimated to cost The Gazette up to $100,000 per year, remains uncertain. The county’s intentions have been challenged as unconstitutional by a lawyer representing Gannett, the newspaper chain that owns The Gazette.
Several state legislatures, including North Carolina, are contemplating lifting or reducing requirements for public notices to be published in physical newspapers. Guilford County, for instance, already revised the rule, necessitating public notices solely on government websites.
The dispute in Delaware County, New York began in 2019 when The Reporter covered a series of municipal hearings concerning the treatment of teenagers within the juvenile justice system. State law mandated that these hearings be public, yet journalists and observers noted that they were confined to one end of a room while participants sat at the other end, engaging in hushed conversations without microphones or speakers to facilitate clear audibility. The Reporter published a letter to the editor detailing this peculiar setup.
Molé, the chair of the county’s board of supervisors, disputed The Reporter’s claim that journalists were marginalized, insisting that they were not pushed aside. In November 2019, The Reporter published an article in which a lawyer representing one of the teenagers accused county officials of falsifying a document related to the case. Amy Merklen, the county’s lawyer, refuted the accusation, stating it was false and adding that the newspaper had not sought her office’s comment before publishing the article.
That autumn, Molé paid an unexpected visit to The Reporter’s offices located in downtown Delhi to meet with Shepard. The two women had known each other for decades. They had children who played together, and they occasionally saw each other at Republican Party dinners in the county. According to Shepard, Molé expressed her dissatisfaction with how the county government was portrayed and requested the termination of the paper’s editor, Lillian Browne. Shepard adamantly refused.
Since its establishment in 1881, The Reporter had been responsible for publishing the county’s public records. However, the board of supervisors voted to award the contract to The Hancock Herald—a paper serving a few towns almost 40 miles away from Delhi, with less than half The Reporter’s subscriber count of approximately 4,300.
In March, the county provided a letter outlining its reasoning for the contract termination to Shepard and her business partner and husband, Randy Shepard. This letter, signed by 38 officials, referenced the newspaper’s alleged manipulative tactics and accused it of undermining trust and confidence in the government.
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