What can an Arkansas county do to publish legal notices when its only remaining newspaper is online or barely circulated?
Plain-English summary
Arkansas state law requires counties to publish a long list of legal notices (ordinances, tax collection notices, certain procurement actions, court filings) in a "newspaper of general circulation." Where no such newspaper exists, the fallback is posting written notices in public places: three places under the county-government statute Ark. Code Ann. § 14-14-104(b), or five places under the legal-notice statute Ark. Code Ann. § 16-3-101.
Senator Watson's office asked the AG to resolve, at the doctrinal level, whether Little River County (population 13,175) has a newspaper of general circulation given the local facts: the Little River Post prints 1,000 copies weekly and is distributed to a few local businesses; the Texarkana Gazette is sold at the local Exxon and Walmart; and one paper is online-only.
The AG declined to make the call as to either paper. Whether a particular publication is a "newspaper of general circulation" is a factual question that requires a court to apply Arkansas Supreme Court guidance from Williamson v. Nixon (1933): the test asks "whether or not the publication regularly carries the record of events occurring of general interest to the public as a whole." It is a matter of substance, not size. The "legal newspaper" criteria in § 16-3-105 are stricter: fixed title and place of business, fixed regular intervals at least weekly, second-class mailing privilege, four pages of five columns each, twelve months of publication after securing the second-class mailing privilege, distribution to readers of all classes for a definite price, at least 50 percent paid subscriptions, and at least 40 percent news matter "of sufficient merit to have created a following of paid readers." Whether either Little River Post or Texarkana Gazette meets these criteria as to Little River County is again a fact question outside the AG's role.
On online-only publications, the AG was cautious but tilted strongly negative. The argument: "newspaper" in Black's Law Dictionary means a publication "in sheet form, appearing at regular intervals... and containing matters of general public interest." A purely online publication does not meet the sheet-form definition. The "legal newspaper" definition explicitly requires a second-class mailing privilege, which an online-only publication cannot satisfy. South Carolina (2015) and Ohio (2008) AG opinions reached the same conclusion under similar statutes. The AG concluded "it is therefore more likely than not that an online publication does not constitute a 'newspaper of general circulation,'" but acknowledged the question is open absent legislative action.
On counties designating a county website as a "public place" for posted notices, the answer was a "qualified yes." Arkansas law does not statutorily define "public place" for notice purposes. The general-purpose meaning is a place where the public goes such that notices can reasonably be expected to be seen. Amendment 55 to the Arkansas Constitution gives quorum courts broad local legislative authority "not denied by the Constitution or by law." Section 14-14-801 grants quorum courts authority to provide for any service or function relating to county affairs and to exercise other powers necessary for effective administration. The AG's view: a county could designate a county website as a "public place," but whether a court would accept the designation in a specific challenge depends on the facts (e.g., evidence of public access, public familiarity with the website as a notice channel).
This opinion was issued together with companion Opinion 2021-067 (Woodruff County), which applied the same framework to a county that had lost its last print newspaper.
What this means for you
County judges, quorum courts, and county attorneys in counties losing print newspapers
Two practical paths emerge from this opinion. First, if your county still has even a marginal print newspaper that could plausibly satisfy the Williamson v. Nixon "events of general interest" test, the safest course is to keep using it; the AG signaled that publication-volume is not dispositive (a marginal paper may still qualify on substance). Second, if the print newspaper truly does not exist or has clearly stopped covering general public-interest content in your county, the statutory fallback is posting in three public places (§ 14-14-104(b)) for county-government notices, or five public places (§ 16-3-101) for legal notices. Designate the public places by ordinance to remove ambiguity.
The county-website-as-public-place option is available but legally risky absent legislative clarification. If you go that route, pair the website with traditional posting to reduce the risk of a successful challenge. Document the ordinance, the rationale, and the public's actual access patterns to the website.
Process servers, foreclosure publishers, and litigants relying on legal notice
Online-only publications carry real risk. Under this opinion, a court would more likely than not treat an online-only paper as not satisfying the publication requirement, with the strongest reasoning being that "legal newspaper" status under § 16-3-105 requires a second-class mailing privilege that online papers cannot have. If your case turns on whether notice was properly published, choose a print publication if any qualifying option exists; if none does, document the absence and use the statutory posting fallback.
Newspaper publishers in small counties
The Williamson v. Nixon test is a substance test, not a size test. A publication that "regularly carries the record of events occurring of general interest to the public as a whole" can qualify even if circulation is small. Maintaining substantive county-news coverage is more important than volume. For "legal newspaper" status, the § 16-3-105 statutory criteria are mechanical: fixed title, fixed place, weekly+ frequency, second-class mailing privilege, page/column dimensions, twelve months of continuous publication, paid distribution, 50 percent paid subscribers, 40 percent news content.
Citizens trying to find required public notices
If your county still has a print newspaper, that is the first place to look. If not, ask the county clerk where the county has designated public places by ordinance for posting notices, and check those places. Some counties post the same notices on a county website as a courtesy, but the website is not necessarily an officially designated "public place" unless the quorum court has so designated it.
Common questions
Is the Little River Post or the Texarkana Gazette a newspaper of general circulation in Little River County?
The AG would not say. That is a fact question that turns on what each paper actually carries (general-public-interest content versus narrow-purpose content), how it is distributed, and how it is read in the county. Williamson v. Nixon describes the test, but a court applies it.
Does an online-only newspaper count as a newspaper of general circulation?
Probably not. The AG concluded "it is therefore more likely than not that an online publication does not constitute a 'newspaper of general circulation.'" The "legal newspaper" definition in § 16-3-105 requires a second-class mailing privilege, which online papers cannot have. Other state AGs (South Carolina 2015, Ohio 2008) reached the same conclusion.
Can a county post legal notices on a county website if no print paper exists?
Yes, qualifiedly. A quorum court can by ordinance designate a county website as a "public place" for posted notices under Amendment 55. Whether that designation would survive a court challenge depends on whether the public actually has meaningful access to the website. Pair website posting with physical posting to minimize risk.
What is the difference between a "newspaper of general circulation" and a "legal newspaper"?
A newspaper of general circulation is the general term used in many statutes; the test (Williamson v. Nixon) is a substance test about whether the paper carries general-public-interest content. A "legal newspaper" is a more specific defined term in Ark. Code Ann. § 16-3-105 with mechanical criteria: fixed title, fixed place, weekly+ frequency, second-class mailing privilege, dimensions, paid distribution, paid-subscriber and news-content percentages.
What is the public-place posting fallback?
Where no newspaper of general circulation exists, county-government notices can be posted in three public places designated by ordinance (§ 14-14-104(b)). Other legal notices governed by § 16-3-101 require posting in five "most public places" in the county.
Are these requirements outdated?
Yes, in many practical respects. The AG opinion explicitly notes that the proliferation of online-only newspapers creates a real legal gap and "[c]areful legislative consideration and clarification in this area is warranted." The opinion cites academic treatments arguing that current notice requirements may not satisfy procedural-due-process purposes in the digital age.
Background and statutory framework
Statutory notice requirements:
- Ark. Code Ann. § 14-14-104(b) (county-government notices; fallback to three public places)
- Ark. Code Ann. § 16-3-101 et seq. (legal notices; fallback to five public places)
- Ark. Code Ann. §§ 14-14-105; 14-14-905; 14-14-917; 14-16-105; 14-16-106; 14-21-102; 14-22-101; 22-9-203; 26-36-203; 26-37-102; 26-37-107 (specific notice categories)
"Legal newspaper" criteria:
- Ark. Code Ann. § 16-3-105(a), (c)(1), (d)(1), (d)(2)
Quorum court authority:
- Ark. Const. amend. 55, § 1(a)
- Ark. Code Ann. § 14-14-801(10), (13)
Cases:
- Williamson v. Nixon, 187 Ark. 762, 62 S.W.2d 24 (1933) (general-circulation substance test)
- Continental Life Ins. Co. v. Mahoney, 185 Ark. 748, 49 S.W.2d 371 (1932)
- Myers v. Bogner, 2011 Ark. App. 98, 380 S.W.3d 529 (legal-newspaper/general-circulation distinction in dictum)
- C.S. v. L.B., 305 So.3d 243 (Ala. Civ. App. 2020) (substance, not size)
External persuasive authority:
- Op. S.C. Att'y Gen., 2015 WL 6745997 (online papers do not satisfy notice requirements)
- Op. Ohio Att'y Gen. 2008-013 (online version of printed paper not a newspaper of general circulation)
Citations
- Ark. Code Ann. §§ 14-14-104(b); 14-14-105; 14-14-801(10), (13); 14-14-905; 14-14-917; 14-16-105; 14-16-106; 14-21-102; 14-22-101; 16-3-101 et seq.; 16-3-105; 22-9-203; 5-71-101(10); 26-36-203; 26-37-102; 26-37-107
- Ark. Const. amend. 55, § 1(a)
- Williamson v. Nixon, 187 Ark. 762, 62 S.W.2d 24 (1933)
- Continental Life Ins. Co. v. Mahoney, 185 Ark. 748, 49 S.W.2d 371 (1932)
- Myers v. Bogner, 2011 Ark. App. 98, 380 S.W.3d 529
- C.S. v. L.B., 305 So.3d 243 (Ala. Civ. App. 2020)
Source
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2021-065
July 11, 2022
The Honorable Danny Watson
State Representative
413 East 16th Street
Hope, AR 71801-8304
Dear Representative Watson:
This is in response to your request for an opinion regarding the statutorily required publication of certain legal notices in a newspaper of general circulation in the county or, alternatively, by posting in three (3) public places, pursuant to Ark. Code Ann. § 14-14-104(b). This statute, which is specific to county government notices, states, "[w]here no newspaper of general circulation exists in a county, publication may be made by posting in three (3) public places which have been designated by ordinance." Meanwhile, Ark. Code Ann. § 16-3-101 provides that if there is no newspaper of general circulation in the county, the required publication under that statute shall be made by posting five (5) written notices in the most public places in the county.
Your correspondence goes on to state that Little River County, population 13,175, is an example of a county where there is a question as to whether a newspaper of general circulation exists. You write that in the past three years, several newspapers have stopped distributing their publications in the county. You continue:
The Little River Post newspaper was first published early 2020. As of now, this newspaper only publishes 1,000 copies of the newspaper every Thursday[,] and these newspapers are sent to and accessible only at the location of a few local businesses. Little River County also has the Texarkana Gazette, a newspaper [that] can be picked up from the local Exxon and Walmart. Another newspaper is offered online only in this county (that newspaper does not provide a printed circulation of newspapers at all in the county).
Against this background, you have asked the following questions:
1) Is there a newspaper of general circulation in Little River County for purposes of Ark. Code Ann. §§ 14-14-104, -105; 14-14-905; 14-14-917; 14-16-105; 14-16-106; 14-21-102; 14-22-101; [22-9-203]; 26-36-203; 26-37-102; and 26-37-107?
2) Is there a newspaper of general circulation in Little River County for purposes of Ark. Code Ann. § 16-3-101 et seq.?
3a) If so, does the Little River Post newspaper qualify as a newspaper of general circulation in Little River County?
3b) If so, does the Texarkana Gazette newspaper qualify as a newspaper of general circulation in Little River County?
4) Can a county official or litigant rely upon online newspapers for required publications under the foregoing laws? Due to the digitization of newspapers online, do online newspaper publications count as circulation of a newspaper of general circulation?
5a) Could a county by ordinance identify a county website or county affiliated website as public location for purposes of posting in public places under Ark. Code Ann. § 14-14-104(b)?
5b) Could a county by ordinance identify a county website or county affiliated website as public location for purposes of posting in public places under Ark. Code Ann. § 16-3-101 et seq.?
RESPONSE
In response to your first two questions, whether a particular newspaper qualifies as a newspaper of general circulation requires a factual determination, and I lack sufficient facts to provide a definitive answer here. Similarly, whether a publication qualifies as a "legal newspaper" also depends on certain facts. Therefore, no response is necessary to both parts of your third question. I also cannot provide a definitive answer to your fourth question given the current state of Arkansas law. Only express legislative action will resolve this question. As to both parts of your fifth question, the answer is a qualified "yes." But whether a court would accept a county's designation of a website as a "public place" will ultimately be a factual question.
DISCUSSION
Question 1: Is there a newspaper of general circulation in Little River County for purposes of Ark. Code Ann. §§ 14-14-104, -105; 14-14-905; 14-14-917; 14-16-105; 14-16-106; 14-21-102; 14-22-101; [22-9-203]; 26-36-203; 26-37-102; and 26-37-107?
Question 2: Is there a newspaper of general circulation in Little River County for purposes of Ark. Code Ann. § 16-3-101 et seq.?
Providing a definitive answer to these questions requires a highly factual inquiry, and I lack sufficient information to do so here. But I can provide a brief discussion of the factors that I believe a court would likely apply in answering your questions.
a. Newspaper of General Circulation
A "newspaper of general circulation" is not defined by statute. But the Arkansas Supreme Court has explained that in deciding whether a publication qualifies, courts should consider "whether or not the publication regularly carries the record of events occurring of general interest to the public as a whole." It has also explained that "those publications which do carry such items might be properly designated as newspapers, although some special purpose or class of happenings be the chief object to which the publication is devoted." The Court's stated rationale for its test has to do with the broader purpose behind publication of notices, that they be given wide and general publicity and can reasonably be expected to be generally read. In the end, whether a newspaper can be said to be of general circulation likely is a matter of substance, and not merely of size.
b. Legal Newspaper
Although not specifically mentioned, your second question, by referencing Ark. Code Ann. § 16-3-101 et seq., implicates what those statutes call "legal newspapers." State law recognizes a distinction between a legal newspaper and a newspaper of general circulation.
State law defines a legal newspaper as a publication "bearing a fixed title or name, published at a fixed place of business, regularly issued at fixed intervals as frequently as once each week and having a second-class mailing privilege, and being not less than four (4) pages of five (5) columns each." Additionally, to be a legal newspaper, a newspaper must have been published at regular intervals continuously during a period of at least 12 months after securing a second-class mailing privilege. Furthermore, the newspaper must be "circulated and distributed from an established place of business to subscribers and readers generally of all classes in the county or counties in which it is circulated for a definite price or consideration for each copy or at a fixed price per annum...." Finally, in order to be a "legal newspaper," a publication must meet other criteria, i.e., having at least 50 percent of the subscribers having paid for their subscriptions, and publishing an average of 40 percent news matter "which has sufficient merit to have created a following of paid readers."
With that in mind, determining whether either publication you reference qualifies as a newspaper of general circulation or legal newspaper requires a factual inquiry that is beyond the scope of this office in the issuance of opinions.
Question 3a): If so, does the Little River Post newspaper qualify as a newspaper of general circulation in Little River County?
Question 3b): If so, does the Texarkana Gazette newspaper qualify as a newspaper of general circulation in Little River County?
In light of my response to your first two questions, no response to these questions is necessary.
Question 4: Can a county official or litigant rely upon online newspapers for required publications under the foregoing laws? Due to the digitization of newspapers online, do online newspaper publications count as circulation of a newspaper of general circulation?
I cannot provide definitive answers to either of these questions given the current state of Arkansas law. Mindful of this, any reliance on notices published in "online newspapers" that you ask about carries with it certain risks. Careful legislative consideration and clarification in this area is warranted.
As noted above, the term "newspaper of general circulation" is not defined in statute. However, the general definition of a "newspaper" is a "publication for general circulation, usu. in sheet form, appearing at regular intervals... and containing matters of general public interest...." Thus, in common parlance, the term "newspaper" means a publication normally "in sheet form" and a strictly online publication would not meet that definition. Indeed, reflecting the common understanding that a newspaper is a printed publication, Arkansas law requires that to be a "legal newspaper," a publication must "hav[e] a second-class mailing privilege." And a strictly online publication is unlikely to be able to meet that requirement. Hence, a court may well find it unlikely that an online publication constitutes a newspaper for purposes of the notice statutes, or, at a minimum, a "legal newspaper."
This analytical approach is consistent with how other states have interpreted similar notice-publication statutes. While courts do not appear to have addressed the issue of whether strictly online publications count as newspapers of general circulation for notice purposes, other state attorneys general have suggested that online publications do not generally qualify. For instance, in a 2015 opinion, South Carolina's attorney general concluded that online newspapers were unlikely to satisfy that state's notice-publication requirements. Likewise, a 2008 Ohio attorney general opinion concluded that an online version of a printed newspaper was not a "newspaper of general circulation in the county" as that term was understood in state law. That opinion contained a lengthy analysis of the state's statutory notice by publication statute and online publications, and it concluded that, under various statutes, "an online version of a newspaper cannot be deemed a newspaper of general circulation on its own merits."
On balance, it is therefore more likely than not that an online publication does not constitute a "newspaper of general circulation." That said, the current proliferation of online newspapers and the move to publish many papers exclusively in an online format gives some pause. As a result, absent a definitive statutory definition and legislative clarification, the question remains open.
Question 5a: Could a county by ordinance identify a county website or county affiliated website as public location for purposes of posting in public places under Ark. Code Ann. § 14-14-104(b)?
Question 5b: Could a county by ordinance identify a county website or county affiliated website as public location for purposes of posting in public places under Ark. Code Ann. § 16-3-101 et seq.?
The answer to both questions is a qualified "yes." But whether a court would accept a county's decision designating an internet website as a "public place" would turn on all the attendant facts and circumstances.
For the purposes of posting notices, Arkansas law does not define a "public place." As a general matter in this context, a "public place" is viewed as a place where the public goes, "so that a notice in such a place may be expected to be seen by persons who are interested therein or affected thereby."
As a general proposition, quorum courts enjoy considerable latitude in crafting local laws. Amendment 55 to the Arkansas Constitution provides that "[a] county acting through its Quorum Court may exercise local legislative authority not denied by the Constitution or by law." Furthermore, state law affords quorum courts local legislative authority to "[p]rovide for any service or performance of any function relating to county affairs," and to "[e]xercise other powers, not inconsistent with law, necessary for effective administration of authorized services and functions."
Thus, in the main, it is possible that a county could designate a county website or one affiliated with the county as a public place for the publishing notices. But whether that would be seen as acceptable by a court in a particular circumstance will depend on factual issues that are beyond the scope of this opinion.
Sincerely,
LESLIE RUTLEDGE
Attorney General