We have long feared the day the first state in the U.S. passes a law authorizing the government to post all or most public notice on government websites in lieu of newspapers. That day happened last month when the Florida House and Senate both voted largely along party lines to approve House Bill 7049.

Gov. Ron DeSantis is widely expected to sign the bill when it reaches his desk. The bill takes effect on Jan. 1, 2023.

[See a description of the key features of HB-7049 below this story.]

The last thing we expected to find in Florida after HB-7049 passed was optimism about the future of public notice. But the newspaper publishers and industry leaders in Florida we have spoken with are guardedly optimistic. Newspaper notice is still alive and mostly well in the Sunshine State.

Perhaps the most important factor generating a sense of hope is the section of the bill establishing a significant hurdle before government agencies in lower-population counties can begin posting notices on county websites.

HB-7049 requires agencies based primarily in counties with fewer than 160,000 residents (36 of Florida’s 67 appear to fall below that threshold) to determine at a public hearing the area has broadband access sufficient not to “unreasonably restrict public access” to notices posted on county websites. That may be difficult to do, especially since the public access standard is highly nebulous.

That’s not the only vagueness plaguing the bill. In fact, even major aspects of the legislation are shrouded in ambiguity. For instance, it’s still unclear whether private-party notices — like foreclosure, fictitious name and probate notices — can be published on county websites.

“There is statutory language in the various substantive notice sections and in the staff analysis that indicates the newspaper notice must be used (for private-party notices),” Florida Press Association Executive Director Jim Fogler (pictured above) wrote to FPA members the day after the bill passed. “There is other language in the bill that suggests some of these notices may be placed on the county websites. We think the overall intent is that use of government websites is for government/agency notices only.”

That kind of ambiguity invites litigation, the last thing those responsible for publishing notices want to risk. Will government agencies take the chance of providing notice of their public hearings on a government website, for instance, if they think it could potentially render any of the decisions they make vulnerable to a lawsuit.

“Government agencies may decide to return to the comfort of newspaper advertising the first time they run a government-website notice and get sued or make a costly error,” Fogler predicted last week when we spoke with him and FPA General Counsel Sam Morley. “They’ll now be responsible and won’t have a third party — our newspapers — to rely on anymore.”

The risk of litigation will enhance another factor likely to limit the rush to county websites: Administrative inertia. Government agencies move deliberatively under the best of circumstances and may not be inclined to quickly abandon a system of public notice that has served the state well for longer than any of its residents have been alive.

The final factor suggesting newspaper notice in Florida still has plenty of life left in it despite the passage of HB-7049 is FPA’s retention strategy. The organization plans to help its members understand that customer service is paramount and that they must now compete for every agency’s public notice business, including those based in the 30 counties that don’t need to hold public hearings before switching to government website notice.

According to Fogler, FPA has established action teams focused on educating members about how to deliver an excellent customer experience, especially for the clerks responsible for placing notices in each county. But elected officials also expect their own kind of customer service and some in Florida have suggested a lack of it may have played a role in HB-7049’s passage.

Most observers agree the bill was intended by some Republican legislators as revenge for newspapers they believe have covered them unfairly. That helps explain why the legislation is riddled with ambiguity. Those who backed it just wanted to lash out at perceived enemies and had no interest in doing the hard work that would have been required to resolve uncertainties and promote government transparency.

That view is even shared by some in the Republican caucus. “If I wanted to hide something from the public that’s required to be noticed, (HB-7049) is exactly the process I would use,” said Sen. Jeff Brandes, R-St. Petersburg, during a Senate committee hearing the week the bill passed. “I would throw it on one of 67 different websites.”

Members of the Democratic caucus also claim policy considerations weren’t a factor for the bill’s GOP sponsors.

“This bill is nothing more than an attack on the press and on our local newspapers,” said Rep. Carlos Guillermo Smith, D-Orlando, after it passed the House. “It serves no other purpose than to pursue a vendetta against the media,” he said.

Clay Today’s accusations were more specific, noting that HB-7049 sponsor Rep. Randy Fine, R-Palm Bay, started his campaign “to move public notices away from newspapers” shortly after Florida Today’s editorial board criticized his personal style in a 2018 column titled, “Rep. Randy Fine’s bullying of local leaders is bad for Brevard County.”

It’s clear GOP ire with media in the state is primarily directed at the largest papers with the most reportorial resources. Whether their coverage is fair is in the eyes of the beholder, of course. It’s also beside the point. Many in Florida and elsewhere believe what’s important is that those same papers and others like them throughout the U.S. have cut so much staff they often don’t even have a publisher who can respond to a VIP’s complaints.

“Who does a public official talk to when they have an issue with the paper’s coverage and want to blow off some steam?” Fogler asked. “It used to be the publisher. We’ve lost that important role in many of our local communities,” he said.

It’s not fair when legislators use their power to take revenge. Anger and resentment aren’t legitimate motives for sponsoring or voting for bills that have broad impact in a state. But there’s little doubt it was part of the story behind HB-7049 and that it has played a role in other states that have considered legislation to move newspaper notice to government websites.

“When a legislator calls a newspaper and then doesn’t hear back from them for weeks, it’s going to infuriate them,” Fogler explained. “We’ve lost that community connection in way too many places — the person representing the newspaper to the local community doesn’t exist any longer at some papers and the decision to eliminate those positions continue to hurt us.”

Key Features of Florida HB-7049

Highlights

• Allows government agencies to publish notices on their county’s official website or other private website designated by the county, in lieu of print newspapers
• Rolls back most of last year’s groundbreaking HB-35, which allowed most notices to be published on newspaper websites as an alternative to print newspapers
• New authority to publish notices on county websites doesn’t appear to apply to private-party notices, although it’s not completely clear

Government Requirements

• To post notices on county websites, agencies must determine it costs less than newspaper notice
• Agencies based in counties with population under 160,000 must hold public hearing determining residents have sufficient broadband access before publishing notice on official county website
• Agencies adopting county website notice must provide annual notice of that election via newspaper or U.S. mail and inform residents they can register to receive notices via first-class mail or e-mail
• Link to notices published on official county websites must be “conspicuously” posted on homepages of county and agency websites
• Notices published on official county websites must be “searchable” and indicate initial publication date
• Agencies must provide sworn affidavit for notices published in newspapers or on official county websites

Newspaper Requirements

• New eligibility requirements established under HB-35 were eliminated, although some free-circulation papers meeting audience thresholds retain eligibility to publish notices
• Language from HB-35 phasing out periodical-permit requirement was eliminated
• New law still requires newspaper notices to also be posted free of charge on the newspaper’s website and on Florida Press Association’s statewide website