Can an online-only news site publish official legal notices in Arkansas?

Plain-English summary

Senator Breanne Davis asked whether River Valley Now, an online news outlet, could be eligible to publish "legal notices" required by Arkansas statutes. Legal notices include things like notice of foreclosure sales, probate hearings, school district decisions, county ordinances, and election announcements. State law channels those notices through "legal newspapers" or "newspapers of general circulation."

The AG's answer was generally no for online-only outlets. The Arkansas legal-newspaper statute, Ark. Code Ann. § 16-3-105, requires:

• A fixed title or name and a fixed place of business
• Regular publication at least weekly
• A second-class mailing privilege
• At least four pages of five columns each
• Twelve months of continuous publication after securing second-class mailing
• Distribution to subscribers and readers in the county
• At least 50 percent of subscribers having paid cash for their subscriptions
• Average of 40 percent news matter that has created a following of paid readers

These criteria assume a printed product. The AG noted that a strictly online publication is unlikely to meet the second-class mailing privilege requirement (the U.S. Postal Service ties that privilege to a printed mailable product). The dictionary definition of "newspaper" itself implies a sheet-form publication. South Carolina (2015) and Ohio (2008) AG opinions reached similar conclusions for their states.

For the second question, whether River Valley Now could qualify by mailing printed copies to paid subscribers, the AG declined to give a definitive answer because it would require facts about subscriber numbers, news content percentages, and other criteria that were not before the AG. If a publication can meet the statutory criteria after starting to mail printed copies, it can become eligible to publish legal notices.

The opinion attached an earlier opinion (Op. Att'y Gen. 2021-065) covering a related question from Representative Danny Watson about Little River County and whether a particular newspaper qualified there. That earlier opinion concluded that whether a newspaper qualifies as one of "general circulation" is a factual question about whether the publication regularly carries records of events of general interest to the public (citing Williamson v. Nixon (1933), quoting Continental Life Ins. Co. v. Mahoney (1932)). The AG also concluded that a county quorum court has qualified authority under Amendment 55 and Ark. Code Ann. § 14-14-801 to designate a county or county-affiliated website as a "public place" for posting notices, although whether a court would accept that designation depends on the specific facts.

The big takeaway: under current Arkansas law, online-only publications generally cannot publish legal notices, and online-only websites are an unsettled but defensible candidate for "public place" notice posting if a county properly designates them by ordinance. Express legislative change is needed to put the question to rest.

What this means for you

State legislators

If Arkansas wants to modernize its public-notice system, the path is statutory. Section 16-3-105's print-era requirements (four pages of five columns, second-class mailing, twelve-month seasoning) bind both the AG and any court interpreting them. A bill could update the legal-newspaper definition to recognize online-only publications, set criteria for online news outlets (verified subscribers, content percentages, archive availability, accessibility standards), or create a separate publication channel for online notices. Other states have done this. The AG's footnote 14 cites three law-review articles on the subject.

Newspaper publishers (print and online)

If you run a hybrid print/online operation that mails printed copies, you may already qualify. Walk through the eight § 16-3-105 criteria and document compliance with each, especially second-class mailing, the 50 percent paid-subscriber threshold, and the 40 percent news-matter content. If you are an online-only operation considering print expansion to qualify, the AG's response to Senator Davis's second question gives a roadmap: secure the second-class mailing privilege, then publish for twelve continuous months while building paid subscriber base. Be ready to defend each statutory criterion with documentation if challenged.

County clerks and county attorneys

When a litigant files a proof of publication, run through the legal-newspaper checklist before accepting it. If the publication is online-only, the proof of publication is vulnerable to challenge. For a printed publication, confirm second-class mailing, frequency, and county distribution.

For posting notices in lieu of newspaper publication under § 14-14-104(b), § 16-3-101, or other notice statutes, your quorum court can adopt an ordinance designating county website pages as a "public place." The AG's qualified yes does not mean any designation will hold up; design the ordinance with the AG's analysis in mind. The website should be visible to the public, easy to find, archival, and stable; a deeply nested URL or a page that reorganizes frequently is weaker. Document why the designation reasonably satisfies the public-notice purpose described in Williamson v. Nixon.

Litigants and practitioners filing publication notices

Pick newspapers carefully. A foreclosure notice, probate notice, or other publication-required notice that runs in a non-qualifying paper is voidable and can derail your case. If the only available local publication is an online site, consider the alternative of posting in three (county) or five (general statute) public places under § 14-14-104(b) or § 16-3-101 in a county where no qualifying newspaper of general circulation exists. If the county has designated a county website as a public place by ordinance, that designation is entitled to respect, but be prepared to defend it on the underlying facts.

Real estate practitioners and probate counsel

These statutes hit your work hard. A defective publication of a foreclosure or probate notice is a recurring source of litigation. Build a check into your closing or probate workflow: confirm the chosen newspaper qualifies as a legal newspaper or newspaper of general circulation; if relying on a county-website designation, pull the underlying ordinance and the designation's adoption record. The AG's view that online-only publications are not legal newspapers is the safer conclusion to operate on until the legislature acts.

Common questions

Q: What's the difference between a "legal newspaper" and a "newspaper of general circulation"?
A: They are related but distinct concepts. A "legal newspaper" is defined statutorily by § 16-3-105 with specific criteria. A "newspaper of general circulation" is a more general term that Arkansas case law has interpreted to mean a publication that regularly carries records of events of general interest to the public (Williamson v. Nixon (1933)). A publication can be both, just one, or neither, depending on the facts.

Q: Why does second-class mailing matter so much?
A: Section 16-3-105(a) requires a publication to have a "second-class mailing privilege" to qualify as a legal newspaper. Second-class mailing is a federal Postal Service classification for periodicals that mail printed copies to paid subscribers. An online-only publication has no printed product to mail, so it cannot obtain the privilege. Until Arkansas legislators rewrite the statute, this is a structural barrier to online-only legal-notice eligibility.

Q: Can a county designate a county website as a "public place" for notice posting?
A: Yes, qualified. Under Amendment 55, § 1(a) and Ark. Code Ann. § 14-14-801, quorum courts have legislative authority over local affairs. They can identify a county or county-affiliated website as a public place by ordinance. Whether a court would accept that designation in a specific case is a factual question about visibility and reasonable expectation that the public will see the notice. The AG's footnote 16 quotes the standard from a 1963 ALR annotation.

Q: What does "public place" mean for posting notices?
A: Arkansas does not statutorily define the term in the public-notice context. The criminal code defines it differently in § 5-71-101(10), but the AG suggested courts probably do not import the criminal-code definition into the notice-publication context. Generally, a "public place" is "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" (1963 ALR annotation cited by the AG).

Q: Other states' AG opinions reached the same conclusion?
A: Yes, the AG cited South Carolina's 2015 AG opinion and Ohio's 2008 AG opinion concluding that online-only newspapers do not generally satisfy notice-publication statutes. These are persuasive but not binding on Arkansas courts.

Q: What happens if I publish a legal notice in a non-qualifying paper?
A: The notice may be ineffective. In foreclosure, probate, and other contexts, this can void the underlying action or require republication. Consult counsel before relying on a non-traditional publication channel.

Q: Has the legislature acted to modernize public-notice law since this opinion?
A: As of this AG opinion (July 2022), no. Bills have been introduced in subsequent sessions in many states. Arkansas-specific legislation should be checked against the current Code before relying on this opinion's conclusion that online-only publications are ineligible.

Q: Can the legislature change all of this?
A: Yes. The AG was clear that "[e]xpress legislative changes would be needed" to allow online-only legal-notice publishing. The print-only criteria are statutory, not constitutional, so a statute can change them.

Background and statutory framework

Arkansas's notice-publication regime is scattered across multiple statutes. § 16-3-101 et seq. covers general civil notices. § 14-14-104(b) covers county-government notices and provides that "where 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." Other statutes (§§ 14-14-105, -905, -917; 14-16-105, -106; 14-21-102; 14-22-101; 22-9-203; 26-36-203; 26-37-102, -107) reference "newspapers of general circulation" for various notice types.

§ 16-3-105 sets the "legal newspaper" criteria:

• (a) Fixed title, fixed place of business, regular issuance at fixed intervals at least weekly, second-class mailing privilege, at least four pages of five columns each.
• (c)(1) Twelve continuous months of publication after securing second-class mailing.
• (c)(1) Distribution to subscribers and readers in the county.
• (d)(1) At least 50 percent of subscribers paid cash.
• (d)(2) Average of 40 percent news matter that has created a following of paid readers.

The "newspaper of general circulation" standard comes from Williamson v. Nixon, 187 Ark. 762, 62 S.W.2d 24 (1933) (quoting Continental Life Ins. Co. v. Mahoney, 185 Ark. 748, 49 S.W.2d 371 (1932)). The court asked "whether or not the publication regularly carries the record of events occurring of general interest to the public as a whole" and noted that even special-purpose publications can qualify if they carry such items. The rationale ties to the public-notice purpose: notices should reach a wide audience.

Online-only publications struggle on the legal-newspaper criteria because they lack second-class mailing. The newspaper-of-general-circulation analysis is more flexible, but the ordinary meaning of "newspaper" implies print form, and other states' interpretations push the same way.

For the "public place" alternative posting, Amendment 55, § 1(a) gives counties broad legislative authority. Ark. Code Ann. § 14-14-801(10) authorizes quorum courts to "[p]rovide for any service or performance of any function relating to county affairs," and § 14-14-801(13) lets them exercise other powers necessary for effective administration. A county ordinance designating a website as a public place for posting notice fits within that authority, qualified by the factual question of whether the website realistically lets the public see the notices.

The AG declined to apply § 5-71-101(10)'s criminal-code definition of "public place" to the notice-publication context, noting that it is unclear whether courts would adopt the criminal definition in this context.

Citations

• Ark. Code Ann. § 16-3-101 (general civil notice statute)
• Ark. Code Ann. § 16-3-105 (legal newspaper definition and criteria)
• Ark. Code Ann. § 14-14-104(b) (county notice statute, posting alternative)
• Ark. Code Ann. § 14-14-801(10), (13) (quorum-court legislative authority)
• Ark. Code Ann. § 5-71-101(10) (criminal-code definition of public place; not adopted here)
• Ark. Const. amend. 55, § 1(a) (county home-rule authority)
• 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 (distinguishing legal newspaper from general circulation)
• C.S. v. J.B., 305 So. 3d 243 (Ala. Civ. App. 2020)
• 90 A.L.R.2d 1210 (1963) (definition of public place for notice posting)
• Op. S.C. Att'y Gen., 2015 WL 6745997 (Oct. 21, 2015)
• Op. Ohio Att'y Gen. 2008-013 (April 30, 2008)
• Op. Att'y Gen. 2021-065 (Little River County newspaper-of-general-circulation analysis)
• Op. Att'y Gen. 90-134
• Madison L. Moore, Legal and Public Notices Need to Be Where the Public Notices, 69 U. Kan. L. Rev. 675 (2021)
• Daniel S. Cohen & Brian D. Koosed, Extra!! Extra!!! Click All About It?, 26 Va. J. Soc. Pol'y & L. 1 (2019)
• Lauren A. Rieders, Of Principles, New Technology, and the Future of Notice in Newspapers, 38 Hofstra L. Rev. 1009 (2010)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked official source is authoritative.

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2022-003

July 11, 2022

The Honorable Breanne Davis
State Senator
P.O. Box 10088
Russellville, AR 72812

Dear Senator Davis:

This is in response to your request for my opinion regarding Ark. Code Ann. § 16-3-105 and the requirements to be considered a legal newspaper for the purpose of being able to publish legal notices. Your correspondence states that an outlet called the River Valley Now is a news source that wants to be able to publish legal notices.

With this in mind, you pose the following questions:

1. What are the requirements for an online news outlet to be eligible to publish legal notices?

2. If River Valley Now obtains second-class mailing privileges and mails printed copies of their online news to subscribers who pay for it (their news is free to their readers but they have local businesses who advertise/sponsor and could qualify as subscribers), would they meet the standard?

RESPONSE

With regard to your first question, online news publications are generally ineligible to publish "legal notices" required by state law. Express legislative changes would be needed. As to your second question, I lack sufficient information given the limited criteria you provide to be able to provide a definitive answer.

DISCUSSION

Question 1: What are the requirements for an online news outlet to be eligible to publish legal notices?

As explained in Op. Att'y Gen. 2021-065, online publications are generally not eligible to publish legal notices. A copy of that opinion detailing my analysis is included herewith this response.

Question 2: If River Valley Now obtains second-class mailing privileges and mails printed copies of their online news to subscribers who pay for it (their news is free to their readers but they have local businesses who advertise/sponsor and could qualify as subscribers), would they meet the standard?

I take it from your question that you are asking about the possibility of River Valley Now qualifying as a "legal newspaper" under Ark. Code Ann. § 16-3-101 et seq. (Repl. 2010). I will set out the statutory criteria that a publication must meet in order to publish legal notices.

Under Arkansas law, a "'legal newspaper' means a publication bearing a fixed title or name, published at a fixed place of business, regularly issued at fixed intervals as frequently as one (1) time each week and having a second-class mailing privilege, and being not less than four (4) pages of five (5) columns each." Further, the statute provides that:

For a newspaper to be eligible to publish legal notices and to be classified as a legal newspaper, it shall have been published at regular intervals continuously during a period of at least twelve (12) months following the securing of a second-class mailing privilege . . . . The newspaper shall 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 . . . .

Additionally, to be recognized as a "legal newspaper," a publication must meet other criteria, i.e., having at least 50 percent of the subscribers "having paid cash for their subscriptions, and publishing an average of 40 percent news matter "which has sufficient merit to have created a following of paid readers."

If River Valley Now meets or can meet these standards, then it should be eligible to publish legal notices pursuant to Ark. Code Ann. § 16-3-105. But I lack sufficient information in this case to make that determination.

Sincerely,

LESLIE RUTLEDGE
Attorney General

ATTACHMENT: 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