Document ID: A:\TORNILLO.TXT MIAMI HERALD PUBLISHING CO., DIVISION OF KNIGHT NEWSPAPERS, INC. v. TORNILLO No. 73-797 SUPREME COURT OF THE UNITED STATES 418 U.S. 241; 94 S. Ct. 2831; 1974 U.S. LEXIS 86; 41 L. Ed. 2d 730; 1 Media L. Rep. 1898 April 17, 1974, Argued June 25, 1974, Decided PRIOR HISTORY: [***1] APPEAL FROM THE SUPREME COURT OF FLORIDA DISPOSITION: 287 So. 2d 78, reversed. SYLLABUS: After appellant newspaper had refused to print appellee's replies to editorials orida's "right of reply" statute that grants a political candidate a right to equal space onstitutional as infringing on the freedom of the press and dismissed the action. The Flo nded to the trial court for further proceedings. Held: 1. The Florida Supreme Court's judgment is "final" under 28 U. S. C. @ 1257, and thus i 2. The statute violates the First Amendment's guarantee of a free press. Pp. 247-258. (a) Governmental compulsion on a newspaper to publish that which "reason" tells it shou (b) The statute operates as a command by a State in the same sense as a statute or regu (c) The statute exacts a penalty on the basis of the content of a newspaper by imposing 56-257. (d) Even if a newspaper would face no additional costs to comply with the statute and w s intrusion into the function of editors in choosing what material goes into a newspaper a COUNSEL: Daniel P. S. Paul argued the cause for appellant. With him on the briefs were Ja Jerome A. Barron argued the cause for appellee. With him on the [***3] brief were Tob * Briefs of amici curiae urging reversal were filed by Joseph A. Califano, Jr., and Ric and Lawrence Gunnels for Chicago Tribune Co. et al.; by Harold B. Wahl for Florida Publish r., and Ralph N. Albright, Jr., for the American Newspaper Publishers Assn.; by William G. e Reporters Committee for Freedom of the Press Legal Defense and Research Fund et al.; by d Howard Monderer for National Broadcasting Co., Inc.; by Harry A. Inman and D. Robert Owe Briefs of amici curiae urging affirmance were filed by Albert H. Kramer and Thomas R. A JUDGES: BURGER, C. J., delivered the opinion for a unanimous Court. BRENNAN, J., filed a OPINIONBY: BURGER OPINION: [*243] [**2832] MR. CHIEF JUSTICE BURGER delivered the opinionof the Cou The issue in this case is whether a state statute granting a political candidate a righ I In the fall of 1972, appellee, Executive Director of the Classroom Teachers Association 72, appellant printed editorials critical of appellee's candidacy. n1 In [*244] respon anization's accomplishments for the citizens of Dade County. Appellant declined to print excess of $ 5,000. The action was premised on Florida Statute @ 104.38 (1973), a "right candidate has the right to demand that the newspaper print, free of cost to the candidate mpted the reply, provided it does not take up more space than the charges. Failure to com - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 The text of the September 20, 1972, editorial is as follows: "The State's Laws And Pat Tornillo "LOOK who's upholding the law! "Pat Tornillo, boss of the Classroom Teachers Association and candidate for the State L ributions to and expenditures of his campaign as required by law.' "Czar Tornillo calls 'violation of this law inexcusable.' "This is the same Pat Tornillo who led the CTA strike from February 19 to March 11, 196 the statutes. "We cannot say it would be illegal but certainly it would be inexcusable of the voters The text of the September 29, 1972, editorial is as follows: "FROM the people who brought you this -- the teacher strike of '68 -- come now instruct up daily in teachers' school mailboxes amidst continuing pouts that the School Board shou d of any and all laws the CTA might find aggravating. Whether in defiance of zoning laws sue us -- what's good for CTA is good for CTA and that is natural law. Tornillo's law, m always felt their private ventures so chock-full of public weal that we should leap at the office, says Pat, and he will no doubt live by the Golden Rule. Our translation reads th n2 "104.38 Newspaper assailing candidate in an election; space for reply -- If any news sfeasance in office, or otherwise attacks his official record, or gives to another free sp d in the same kind of type as the matter that calls for such reply, provided such reply do he first degree, punishable as provided in @ 775.082 or @ 775.083." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*245] Appellant sought a declaration that @ 104.38 was unconstitutional. After an e the commission [***7] of a crime, and held that @ 104.38 was unconstitutional as an inf ting what a newspaper must print was no different from dictating what it must not print. On direct appeal, the Florida Supreme Court reversed, holding that @ 104.38 did not vio which in that court's view, furthered the "broad societal interest in the free flow of inf conduct on their part will render them liable to its penalties." Id., at 85. n4 Civil rem with the Florida Supreme Court's opinion. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 The Supreme Court did not disturb the Circuit Court's holding that injunctive relief ecision. 287 So. 2d, at 85. n4 The Supreme Court placed the following limiting construction on the statute: "[We] hold that the mandate of the statute refers to 'any reply' which is wholly responsiv lication nor anyone else, nor vulgar nor profane." Id., at 86. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - We postponed consideration of the question of jurisdiction to the hearing of the case o II Although both parties contend that this Court has jurisdiction to review the judgment o th Dakota State Pharmacy Bd. v. Snyder's Stores, 414 U.S. 156 (1973), we reviewed a judgme a permit to operate a drug store. We held that to be a final judgment for purposes of ou y this Court. n6 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 Appellee's Response to Appellant's Jurisdictional Statement and Motion to Affirm the n6 Both appellant and appellee claim that the uncertainty of the constitutional validit ideration of the constitutionality of the statute in the upcoming 1974 elections. Whichev he First Amendment; an uneasy and unsettled constitutional posture of @ 104.38 could only Keefe, 402 U.S. 415, 418 n. (1971). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***10] III A The challenged statute creates a right to reply to press criticism of a candidate for n - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 In its first court test the statute was declared unconstitutional. State v. News-Jo orney General defended the statute's constitutionality. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Appellant contends the statute is void on its face because it purports to regulate the words would call the statute into operation. It is also contended that the statute fails B The appellee and supporting advocates [***11] of an enforceable right of access to t ts will be set out in some detail. n9 It is urged that at the time the First Amendment to ers were intensely partisan and narrow in their views, the press collectively presented a ession of unpopular ideas and often treated events and expressed views not covered by conv - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 See generally Barron, Access to the Press -- A New First Amendment Right, 80 Harv. L n9 For a good overview of the position of access advocates see Lange, The Role of the A n10 "Congress shall make no law respecting an establishment of religion, or prohibiting for a redress of grievances." n11 See Commission on Freedom of the Press, A Free and Responsible Press 14 (1947) (her - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Access advocates submit that although newspapers of the present are superficially simil cations revolution has seen the introduction of radio and television into our lives, the p work with two-way capabilities. The printed press, it is said, has not escaped the effects of this revolution. Newspapers re and news services, and one-newspaper towns, n13 are the dominant features of a press th an newspapers have collaborated to establish news services national in scope. n14 Such nat of "advocacy journalism." - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n12 Commission 15. Even in the last 20 years there has been a significant increase in n13 "Nearly half of U.S. daily newspapers, representing some three-fifths of daily and competition operating in only 4 percent of our large cities." Background Paper by Alfred n14 Report of the Task Force in Twentieth Century Fund Task Force Report for a National - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The elimination of competing newspapers in most of our large cities, and the concentrat mportant components of this trend toward [*250] concentration of control of outlets to i The result of these vast changes has been to place in a few hands the power to inform t e and, as a result, we are told, on national and world issues there tends to be a homogene mulations of unreviewable power in the modern media empires. In effect, it is claimed, th r little or no critical analysis of the media except in professional journals of very limi "This concentration of nationwide news organizations -- like other large institutions - ieth Century Fund Task Force Report for a National News Council, A Free and Responsive Pre Appellee cites the report of the Commission on Freedom of the Press, chaired by Robert M. dom of the Press, A Free and Responsible Press 15 (1947). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n15 "Local monopoly in printed news raises serious questions of diversity of informatio nd enunciation of opinions, it has extraordinary power to set the atmosphere and determine - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***16] The obvious solution, which was available to dissidents at an earlier time when entry i umbers of metropolitan newspapers, n16 have made entry into the marketplace of ideas serve n to account for that stewardship. n17 From this premise it is reasoned that the only effe ublic in being informed is said to be in peril because the "marketplace of ideas" is today - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n16 The newspapers have persuaded Congress to grant them immunity from the antitrust la n17 "Freedom of the press is a right belonging, like all rights in a democracy, to all conditions limit such access to a small minority, the exercise of that right by that minor - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***17] Proponents of enforced access to the press take comfort from language in several of thi o protecting the press from government regulation. In Associated Press v. United States, stated: "The First Amendment, far from providing an argument against application of the Sherman Ac agonistic sources is essential to the welfare of the public, that a free press is a condit they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish ot. Freedom of the press from governmental interference under the First Amendment does not In New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), the Court spoke of "a prof ate is not "wide-open" but open only to a monopoly in control of the press. Appellee cite ht-to-access regulation of the press. n18 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n18 "If the States fear that private citizens will not be able to respond adequately to ncern.[*] "[*]Some states have adopted retraction statutes or right-of-reply statutes . . . . "One writer, in arguing that the First Amendment itself should be read to guarantee a r , Access to the Press -- A New First Amendment Right, 80 Harv. L. Rev. 1641, 1666-1678 (19 must take into account the individual's interest in access to the press as well as the in y on situations where the individual has been harmed by undesired press attention. A constitutional rule that deters the press from covering the ideas or activities of the p - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***19] [*253] Access advocates note that MR. JUSTICE DOUGLAS a decade ago expressed his deep "Where one paper has a monopoly in an area, it seldom presents two sides of an issue. It one philosophy, one attitude -- and to make money." "The newspapers that give a variety of views and news that is not slanted or contrived They also claim the qualified support of Professor Thomas I. Emerson, who has written that rather than compelling a few outlets to represent everybody, seems a preferable course of [**2838] IV However much validity may be found in these arguments, at each point the implementation rcion, this at once brings about a confrontation with the express provisions of the First - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n19 The National News Council, an independent and voluntary body concerned with press f tieth Century Fund Task Force Report for a National News Council, A Free and Responsive Pr the United States of the European press councils. n20 Because we hold that @ 104.38 violates the First Amendment's guarantee of a free pr - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***21] The Court foresaw the problems relating to government-enforced access as early as its d provisions of the District Court decree against appellants which "does not compel AP or it (1972), we emphasized that the cases then [*255] before us "involve no intrusions upo thhold." In Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. "The power of a privately owned newspaper to advance its own political, social, and econom and, second, the journalistic integrity of its editors and publishers." An attitude strongly adverse to any attempt to extend a right of access to newspapers was HALL, J., dissenting). Recently, while approving a bar against employment advertising sp ing within narrow bounds: "Nor, a fortiori, does our decision authorize any restriction whatever, whether of content afforded to editorial judgment and to the free expression of views on these and other issu Dissenting in Pittsburgh Press, MR. JUSTICE STEWART, joined by MR. JUSTICE DOUGLAS, [*** Id., at 400. See Associates & Aldrich Co. v. Times Mirror Co., 440 F.2d 133, 135 (CA9 1971 We see that beginning with Associated Press, supra, the Court has expressed sensitivity rint. The clear implication has been that any such a compulsion to publish that which "'r e Constitution and like many other virtues it cannot be legislated. Appellee's argument that the Florida statute does not amount to a restriction of appell editors or publishers to publish that which "'reason' [***24] tells them should not be pecified matter. Governmental restraint on publishing need not fall into familiar or trad te exacts a penalty on the basis of the content of a newspaper. The first phase of the pe be devoted to other material the newspaper may have preferred to print. It is correct, a say that, as an economic reality, a newspaper can proceed to infinite expansion of its col - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n21 Brief for Appellee 5. n22 "However, since the amount of space a newspaper can devote to 'live news' is finite "[*] The number of column inches available for news is predetermined by a number of fin 438 (1974) (one footnote omitted). Another factor operating against the "solution" of adding more pages to accommodate the t./Oct. 1973). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Faced with the penalties that would accrue to any newspaper that published news or com r the operation of the Florida statute, political and electoral coverage would be blunted , at 279. The Court, in Mills v. Alabama, 384 U.S. 214, 218 (1966), stated: "[There] is practically universal agreement that a major purpose of [the First] Amendment - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n23 See the description of the likely effect of the Florida statute on publishers, in L - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*258] Even if a newspaper would face no additional costs to comply with a compulsory Amendment because of its intrusion into the function of editors. [**2840] [***27] ade as to limitations on the size and content of the paper, and treatment of public issues ion of this crucial process can be exercised consistent with First Amendment guarantees of - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n24 "[Liberty] of the press is in peril as soon as the government tries to compel what in their context, you have interpretation and you have selection, and editorial selection t and Mass Communications 633 (1947). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***28] It is so ordered. CONCURBY: BRENNAN; WHITE CONCUR: MR. JUSTICE BRENNAN, with whom MR. JUSTICE REHNQUIST joins, concurring. I join the Court's opinion which, as I understand it, addresses only "right of reply" s re publication of a retraction. [*259] See generally Note, Vindication of the Reputati MR. JUSTICE WHITE, concurring. The Court today holds that the First Amendment bars a State from requiring a newspaper ence, the First Amendment erects a virtually insurmountable barrier between government and .S. 713 (1971). A newspaper or magazine is not a public utility subject to "reasonable" go 66). We have learned, and continue to learn, from what we view as the unhappy experiences controlling the press might be, we prefer "the power of reason as applied through public d "Whatever differences may exist about interpretations of the First Amendment, there is ns of candidates, structures and forms of [*260] government, the manner in which governm tant role [***30] in the discussion of public affairs. Thus the press serves and was lected by the people responsible to all the people whom they were selected to serve. Supp he Framers of our Constitution thoughtfully and deliberately selected to improve our socie - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Of course, the press is not always accurate, or even responsible, and may not present f sionally debate on [***31] vital matters will not be comprehensive and that all viewpoi other accommodation -- any other system that would supplant private control of the press - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Lett - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - To justify this statute, Florida advances a concededly important interest of ensuring f of a newspaper -- the decision as to what copy will or will not be included in any given e "liberty of the press is in peril as soon as the government tries to compel what is to go The constitutionally obnoxious feature of @ 104.38 is not that the Florida Legislature ng and redressing attacks upon reputation." Rosenblatt v. Baer, 383 U.S. 75, 86 (1966). Qu c discretion, it chooses to leave on the newsroom floor. Whatever power may reside in gov 6 (1973); New York Times Co. v. United States, 403 U.S., at 730 (WHITE, J., concurring), w orials. But though a newspaper may publish without government censorship, it has never been ent ividual reputation. At least until today, we have cherished the average citizen's [*262 to force the press to tell his side of the story or to print a retraction, but he has had es for his injury. Reaffirming the rule that the press cannot be forced to print an answer to a [**2842] ertz v. Robert Welch, Inc., post, p. 323, goes far toward eviscerating the effectiveness of proving liability is immeasurably increased, proving damages is made exceedingly more vializes and denigrates the interest in reputation by removing virtually all the protectio Of course, these two decisions do not mean that because government may not dictate what orm; and the press certainly remains liable for knowing or reckless falsehoods under New Y One need not think less of the First Amendment to sustain reasonable methods for allowi the vast majority of professional journalists to support the right of any individual to h ry with it an unrestricted hunting license to prey on the ordinary citizen. "In plain English, freedom carries with it responsibility even for the press; freedom of t t of injustice." Pennekamp v. Florida, 328 U.S. 331, 356, 365 (1946) (Frankfurter, J., con To me it is a near absurdity to so deprecate individual dignity, as the Court does in Gert is steadily becoming more powerful and much less likely to be deterred by threats of libel