Amicus Curiae Brief — Miami Herald Publishing Co. v. Tornillo

NOV 88 1973

a MICHAEL RODAK, JR.,CLERK

IN THE s. -

Supreme Court of the United States

OcToBER TERM, 1973

No. 73-797

Tae M1amMI HERALD PUBLISHING CoMPANY; a division

of Knight Newspapers, Inc., Appellant,

v.

Pat L. Tornr10, JR., Appellee.

On Appeal from the Supreme Court of Florida

BRIEF OF THE WASHINGTON POST COMPANY.

AS AMICUS CURIAE, IN SUPPORT OF

APPELLANT'S JURISDICTIONAL STATEMENT

JOSEPH A. CALIFANO, JR.

RIcHARD M. CooPER

TreRRY M. Rose

WiuiaMs, CONNOLLY &

CALIFANO

1000 Hill Building

Washington, D.C. 20006

(202) 638-6565

Attorneys for The Washington

Post Company

Pazss or Brron S. Anams Parvrrine, Inc., Wasumreron, D. C.

SS >

3

v

PAUL & THOMSON

ATTORNEYS AT Law

13200 FIRST NATIONAL BANK BUILDING

MIAMI, FLORIDA 33131

TEeLEePHone (305) 371-546!

cage oPse

Tecerax Fco

November 1, 1973

Richard M. Cooper, Esq.

Williams, Connolly & Califano

1000 Hill Building

Washington, D. C. 20006

Tornillo, Jr. v. The Miami Herald

Dear Mr. Cooper:

In response to your request, pursuant to

mle 42(1) of the Rules of the United States Supreme

Court, on behalf of The Miami Herald, we hereby consent

to the filing in that Court of an Amicus Curiae Brief

in this case by the Washington Post Company. |

Sincerely,

Gort G/

Ss W. Beasley

ee ~——~oneeneee

Sm Se enerstenenees,

COPY BOUND CLOSE IN CENTER |

catches

LAw OFFICES

Toeias SIMON & ELIZABETH OU FRESNE

A PROFESSIONAL ASSOCIATION

ne

eae avENUE TEL CPHQne

(208) 396-66"

November 19, 1973

gichard Cooper, Esq.

1000 Hill Building

wshington, D.C. 20006 ¢

Re: Tornillo v. Miami Herald

bear Mr. Cooper:

4s counsel for the above captioned respondent, you are hereby

given permission to file your brief amicus_curiae on behalf

of the Washington Post in the above captioned matter.

z Very Are

Page

QPATEMENT oo... ce cecececececesecswenseeeseseeeenes 1

INTEREST OF THE AMIOUB ....-....cceeeeeeetteeecees 2

AROUMBNT 20. ccc cece escesccceccesvecctceescceecens 2

L Tue Dectsion Berow Hoipine Fiorma Statute

$104.38 ConstrruTionaL Is UNPRECEDENTED AND

Contrary TO SeTTLED AUTHORITY .............. 2

A. The Decision Below Is Contrary to Prior De-

cisions of This Court ................. ee eee 2

B. The Decision Below Conflicts with the Rulings

-<) ot reer rrr Terres 6

Il. Fuorma Statute § 104.38 Is an UNconstIruTIONAL

ABRIDGMENT OF THE FREEDOM OF THE PRESS ...... 7

A. The First Amendment Protects the Freedom

of the Press To Print Political Information

and Comment Without Governmental Inter-

Sememes GP FMR 2 cc sccccevcecccccccccce 7

B. A Statute Which Imposes a Duty To Publish

Abridges the Freedom of the Press .......... 9

C. Florida Statute § 104.38 Is Unconstitutional as

a Prior Restraint on the Press .............. 11

D. The Standards Which Govern Access to Elec-

tric Media Are Not Applicable to the Print

MEE 6666660400044 SRN édbawkb eceeekens sas 11

II. Tae Vacueness or Fiona Statute § 104.38 Vio-

LATES THE Dur Process Clause or THE Fovur-

THBNTM AMEMOMRNT 2... ccc cw eee ccccccccccs 12

IV. Frorma Statute § 104.38 Is an UnconstrrutionaL

Takine or Property Wrirsout ComMPENSATION IN

VioLaATION OF THE Due Process CLAUSE OF THE

FourTeENTH AMENDMENT .............00c0000: 13

ii Index Continued

TABLE OF AUTHORITIES

Jupict1aL Decisions:

Associates & Aldrich Co. v. Times Mirror Co., 440 F.24

Be Cy GIN SD | ohh sn cee iNins cane scncee 6

Avins v. Rutgers, 385 F.2d 151 (3d Cir. 1967), cert. de.

N

Grayned v. City of Rockford, 408 U.S. 104 (1972) .... 1

Grosjean v. American Press Co., 297 U.S. 233 (1936) ..310

Lamont v. Postmaster General, 381 U.S. 301 (1965) .. 10

Manesco v. Walley, 63 So.2d 91 (Miss. 1953) ........ 6

Mills v. Alabama, 384 U.S. 214 (1966) ...... 0.0.0... 37,8

Near v. Minnesota, 283 U.S. 697 (1981) ............ 4,7, 11

3, 8, 10

New York Times Co. v. United States, 403 U.S. 713

OIE oo hac cel veut clo vin on oe 4,11

Opinion of the Justices, 298 N.E.2d 829 (Mass. 1973). 7

Papachristou v. City of Jacksonville, 405 U.S. 156

Ce ca ba bichon kh neh daeéh due enedaetnkscwiakal 12

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). 13

Pittsburgh Press Co. v. Pittsburgh Commission on

Human Relations, US. , 37 L.Ed.2d 669

CROOE gk ache bu ead sscpakstocassccaccrectsekae 3,9

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 inns | ”

Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971) .. 5,8

Talley v. California, 362 U.S. 60 (1960) . 22.0.6... .00 10

Thomas v. Collins, 323 U.S. 516 (1945) 2.0.0.0... 0008 9

Index Continued iii

Page

ConstrruTion, STaTUTES AND REGULATIONS:

US. Const.

CE, <hus ch Gaeduks cuKkemreeh<cei cans passim

SE IIIS S'S kk Aa sa eeavekwceaenn eas 12, 13

6 ba Na wo NWS haCRRRESORCSE ROS passim

i PC <5 66n eccwin dane wankers Guenac eis 6

Communications Act of 1934, 47 U.S.C. §315(a) ..... 12

Oragrn AUTHORITIES :

Note, Vindication of the Reputation of a Public Oficial,

80 Harv. L. Rev. 1730 (1967) ..............008.

Report on the Virginia Resolutions, 4 Madison’s Works

odd

IN THE

Supreme Court of the United States

OcToBer TERM, 1973

No. 73-797

Tue MraMI HERALD PUBLISHING COMPANY, a division

of Knight Newspapers, Inc., Appellant,

v.

Pat L. TorNnrIL1o, JR., Appellee.

On Appeal from the Supreme Court of Florida

BRIEF OF THE WASHINGTON POST COMPANY,

AS AMICUS CURIAE, IN SUPPORT OF

APPELLANT'S JURISDICTIONAL STATEMENT

STATEMENT

The Washington Post Company, a Delaware cor-

poration, submits this brief as amicus curiae in

support of the appellant’s jurisdictional statement,

pursuant to Rule 42 of the Rules of this Court upon

the written consent of both parties to this action.

Copies of letters of consent from both parties have

been filed with the Clerk. Amicus urges this Court

to note probable jurisdiction because amicus believes

that the statute upheld by the decision of the Florida

2

Supreme Court below is an unconstitutional diree

attack on the freedom of the press.

INTEREST OF THE AMICUS

The Washington Post Company is the publisher of

The Washington Post, a daily newspaper, published

in the Nation’s capital. In addition, The Washington

Post Company is the parent of subsidiary corporations

including Post-Newsweek stations which operate

WPLG-TV in Miami, Florida and WJXT-TV in

Jacksonville, Florida. The Washington Post Con.

pany through a subsidiary also publishes Newsweek,

a nationally and internationally distributed news

magazine.

ARGUMENT

I, THE DECISION BELOW HOLDING FLORIDA STATUTE § 1K

CONSTITUTIONAL IS UNPRECEDENTED AND CONTRARY

TO SETTLED AUTHORITY.

A. The Decision Below Is Contrary to Prior Decisions

of This Court.

Florida statute § 104.38 requires a newspaper which

in its columns ‘‘assails’’ the character or attacks the

official record of any candidate for public office to

make available to the candidate free equal space for

reply.' The Florida statute upheld below by the

1 Fla. Stat. § 104.38 provides: If any newspaper in its columns

assails the personal character of any candidate for nomination or

for election in any election, or charges said candidate with mal-

feasance or misfeasance in office, or otherwise attacks his official ree-

ord, or gives to another free space for such purpose, such

newspaper shall upon request of such candidate immediately publish

free of cost any reply he may make thereto in as conspicuous a place

and in the same kind of type as the matter that calls for such reply,

provided such reply does not take up more space than the matter

replied to. Any person or firm failing to comply with the provi-

sions of this section shall be guilty of a misdemeanor of the first

degree ...

—,

Supreme Court of Florida entitles a candidate for any

public office to equal space to reply to any criticism in

a newspaper, regardless of its truth or fairness and

regardless of the context in which it appears. The

Florida Supreme Court in upholding the constitu-

tionality of Florida statute section 104.38 has ruled

that the First Amendment permits a state to dictate to

the press what it must print in its news, editorial and

other columns. The entire constitutional juris-

prudence of this Court contains no precedent for such

a direct governmental intrusion upon the editorial

freedom of a newspaper.

In holding that the Florida statute promotes the

First Amendment’s interest in ensuring that the

public be fully informed, the Florida court ignored

the well-established principle that the First Amend-

ment prohibits government from being the arbiter of

what the public shall read. As this Court has re-

peatedly emphasized, the predominant purpose of the

First Amendment is ‘‘to preserve an untrammeled

press” as ‘‘one of the great interpreters between the

government and the people.”’ Grosjean v. American

Press Co., 297 U.S. 233, 250 (1936) ; Mills v. Alabama,

384 U.S. 214 (1966) ; New York Times Co. v. Sullivan,

876 U.S. 254 (1964); Pittsburgh Press Co. v. Pitts-

burgh Commission on Human Relations, U.S.

—+,, 37 L.Ed.2d. 669 (1973).

The decision below is directly contrary to New York

Times Co. v. Sullivan, supra, which recognized our

“profound national commitment to the principle that

debate on public issues should be uninhibited, robust,

and wide open, and it may well include vehement,

caustic, and sometimes unpleasantly sharp attacks on

government and public officials.’? 376 U.S., at 270.

an

‘ '

Apart from direct governmental censorship of the sort

attempted in Near v. Minnesota, 283 U.S. 697 (1931),

and New York Times Co. v. United States, 403 US.

713 (1971), nothing could be better calculated than

§ 104.38 to make discussion of candidates in the press

“‘eabin’d, cribb’d, confined, bound in to saney

doubts and fears.’’ W. Shakespeare, Macbeth, Act

III, Scene 4, ll. 23-24. Libel judgments and dis.

criminatory taxes involve only money. Section 10438

requires the editors of a newspaper to surrender

something much more precious—their editorial judg.

ment as to what should be printed in their publication;

it even prescribes the type to be set and the section of

the newspaper in which these governmentally mandated

articles must appear. For every vehement, caustic or

unpleasantly sharp attack on a candidate for public

office, including a public official seeking re-election, a

newspaper will pay a price—in money (for it must

provide space without compensation) and, more im-

portantly, in the editorial integrity of its publication.

Under the statute upheld below, this price must be paid

even if the attack is true, fair, objective, moderate,

balanced and wholly factual. The impact of section

104.38 on freedom of the press can be seen by con-

sidering the effect the statute would have had if during

the reporting on the Watergate scandals Mr. Nixon

had been entitled to equal (and equally prominent)

space on the front page and editorial page of The

Washington Post. Any newspaper worthy of the

First Amendment trust vested in it by the Founding

Fathers will think twice before opening its pages to

an invasion of self-serving press releases.

In sum, the effect of the Florida statute is to disturb

the delicate balance between an independent press and

aa

the co-equal branches of government, which has

always been preserved by this Court. It is crucial to

maintain this balance so that the press can continue to

orm its two vital functions as eritical evaluator of

+a] conduct and independent arbiter of the news-

worthiness of daily events. By intruding upon the

exercise of these functions by the press, section 104.38

will turn every candidate for public office into his own

reporter and editor with mass circulation and dis-

tribution guaranteed. —

5

>

The court below also erred by applying to the print

media the standards which this Court enunciated in

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367

(1969) with respect to the governmentally regulated

and technologically limited electronic media. The

Florida Supreme Court completely disregarded the

repeated statements by this Court that the unique

characteristics which distinguish the broadcast media

from the print media ‘‘justify differences in the First

Amendment standards applied to them.’”? Red Lion

Broadcasting Co. v. FCC, supra, at 386. As Mr.

Chief Justice Burger stated only last Term in

Columbia Broadcasting System v. Democratic Nat’l

Comm., 412 U.S. 94, 117-18 (1973) :

“The power of a privately owned newspaper to

advance its own political, social, and economic

views is bounded by only two factors: First, the

acceptance of a sufficient number of readers—and

hence advertisers—to assure financial success;

and, second, the journalistic integrity of its edi-

tors and publishers. .. . A[broadeast] licensee

must balance what it might prefer to do as a

slong entrepreneur with what it is required to

o as a ‘public trustee.’ ”’

6

B. The Decision Below Conflicts with the Rulings of

Other Courts.

Mississippi, the only other state that today has q

right of reply statute,? has narrowly construed the

statute’s application. Although the Mississippi statute

in terms affords a right of reply to any newspaper

story reflecting on ‘‘honesty, integrity, or moral char.

acter,’’ the Mississippi Supreme Court has ruled thai

that State’s right of reply statute applies only to state.

ments proven to be libelous. Manasco v. Walley, §

So. 2d 91 (Miss. 1953). No such limitation applies tp

the statute upheld by the decision below. Libel was

neither alleged in the complaint nor considered by the

Florida Supreme Court. Once a newspaper has pub-

lished an article reflecting adversely on a candidate,

the Florida Supreme Court has held that the Florida

statute gives the candidate equal space for a reply.

The decision below cannot be reconciled with the

line of cases holding that the First Amendment pr-

hibits courts and legislatures from requiring news.

papers and other print media to publish particular

articles, Avins v. Rutgers, 385 F.2d 151 (3d Cir. 1967),

cert. denied, 390 U.S. 920 (1968), or paid political

or other advertising, Chicago Joint Board ACWA v.

Chicago Tribune Co., 435 F.2d 470 (7th Cir. 1970);

Associates & Aldrich Co. v. Times Mirror Co., 440

F.2d 133 (9th Cir. 1971).

In a recent advisory opinion to the state legislature,

the Supreme Judicial Court of Massachusetts found

unconstitutional a proposed statute requiring that a

newspaper publish paid answers to political advertise-

ments. The Massachusetts court concluded that requir-

2 Miss. Code Ann. § 23.3.25.

-—

ing a newspaper to print is equivalent to censorship,

and that the statute would have a chilling effect on the

press, discouraging it from publishing any political

advertising. Opinion of the Justices, 298 N.E.2d 829

(Mass. 1973). The same logic applies a fortiori to the

Florida statute, which regulates a newspaper’s edi-

torial and news coverage.

7

IL FLORIDA STATUTE § 104.38 IS AN UNCONSTITUTIONAL

ABRIDGMENT OF THE FREEDOM OF THE PRESS.

A. The First Amendment Protects the Freedom of the Press

To Print Political Information and Comment Without Gov-

ernmental Interference or Penalty.

The freedom of the press guaranteed by the First

Amendment ‘‘was designed to serve as a powerful

antidote to any abuses of power by governmental offi-

cials’’ and as a ‘‘means for keeping officials elected by

the people responsible to all the people whom they

were selected to serve.’’ Mills v. Alabama, supra, at

219; Near v. Minnesota, supra. The basic premise was

laid down by James Madison:

“T]he press has exerted a freedom in canvassing

the merits and measures of public men of every

description which has not been confined to the

strict limits of the common law. On this footing

the freedom of the press has stood; on this footing

it yet stands. . . . Some degree of abuse is insep-

arable from the proper use of everything, and in

no instance is this more true than in that of the

ress.’” Report on the Virginia Resolutions, 4

dison’s Works 544.

Political comments lose the protection of the First

Amendment only when they are false and are made

either with knowledge that they are false or with reck-

less disregard of whether they are true or false. New

8

York Times -Co. v. Sullivan, supra; Garrison y.

Louisiana, 379 U.S. 64 (1964); Rosenbloom y,

Metromedia, Inc., 403 U.S. 29 (1971). The Florida

statute, however, imposes sanctions on a newspaper

for publishing protected speech. The statute com.

mandeers free space in a newspaper for a candidate's

reply to any statement, whether true or not. For this

reason, the Florida statute is quite different from libel

retraction statutes, which give newspapers the option

of limiting damages by printing a retraction after it

has been shown that a defamatory falsehood was

published with actual malice.* Note, Vindication of

the Reputation of a Public Official, 80 Harv. L. Rev.

1730, 1740 (1967).

State interference with the freedom of the press

cannot be justified as promoting the public’s right to

know. The First Amendment does not rest on the

theory that each newspaper must present a balanced

view of every issue, but rather on the principle that

dissemination of information should come from diverse

and antagonistic sources. Associated Press v. United

States, 326 U.S. 1 (1945). Nor does a state’s interest

in affording the electorate an opportunity to consider

both sides of an issue permit statutes which ‘‘muzzle”

the press. Mills v. Alabama, supra.

A newspaper’s constitutionally protected function is

not to provide a public forum for the airing of all

views. Each newspaper is one component in the system

of freedom of expression, which embraces many impor-

tant outlets for information and opinion. The philos-

ophy of the Founding Fathers was that the public could

best be informed by establishing a system of free

* For this reason the reliance of the court below on a footnote

in the plurality opinion in Rosenbloom v. Metromedia, Inc., 48

U.S. 29, 47 n.15 (1971), is entirely misplaced.

9

expression, not by allowing government to tell individ-

ual newspapers what to print.

Just last Term, this Court reaffirmed its adherence

tothe principle that government may not interfere with

the journalistic integrity of a newspaper in deter-

mining the coverage to be given to issues of public

importance :

“Nor, a fortiori, does our decision authorize any

restriction whatever, whether of content or layout,

on stories or commentary originated by Pittsburgh

Press, its columnists, or its contributors ... [W]e

reaffirm unequivocally the protection afforded to

editorial judgment and to the free expression of

views on these and other issues, however contro-

versial.’’ Pittsburgh Press Co. v. Pittsburgh

Commission on Human Relations, supra, at ‘

680.

B. A Statute Which Imposes a Duty To Publish Abridges

the Freedom of the Press.

The fact that the Florida statute takes the form of

an obligation to print rather than a prohibition against

printing does not lessen its unconstitutionality. The

government interference which is proscribed by the

First Amendment includes all regulations which create

a fear of criminal or economic reprisals or otherwise

unduly burden the exercise of First Amendment rights.

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) ;

Talley v. California, 362 U.S. 60 (1960); Thomas v.

Collins, 323 U.S. 516 (1945).

The Florida statute will have a chilling effect on

the protected freedom of expression of the press. This

Court has consistently invalidated regulatory statutes

which, although not directly prohibiting the printing

or disseminating of facts and ideas, placed an imper-

missible burden on the exercise of First Amendment

—

rights. E.g., Talley v. California, supra; Lamont y.

Postmaster General, 381 U.S. 301 (1965) ; Grosjean y.

American Press Co., supra.

‘The editorial and financial burdens placed on the

press by section 104.38 have the same inhibiting effect

The statute creates a strong incentive for newspapers

to avoid publishing controversial columns, including

the presentation of both sides of an issue, or to censor

articles for statements which might be interpreted as

attacking a political candidate for fear of having to

devote (without compensation) equal and equally

prominent space to a candidate’s reply, over which the

newspaper will have no editorial control.

10

The financial burden placed on the newspaper is alw

conducive to self-censorship. The statute is in effect

an unconstitutional tax, measured according to the type

and amount of space which a newspaper allocates to

comment adverse to a candidate. Cf. Grosjean v. Amer-

tcan Press Co., supra.

The impact of section 104.38 on marginal or ideo-

logically oriented newspapers may be disastrous. Many

of these newspapers cannot afford to print free extra

copy. Nor can they afford to eliminate the critical

viewpoints which are the basis of their appeal toa

select audience. Journals with a recognized political

viewpoint, like the National Review or the New Repud-

lic, may lose their readers if they are forced to fill

their pages with self-serving responses from criticized

candidates. The net effect of the Florida statute may

well be to decrease the variety of news sources on

which the vigorous public debate contemplated in New

York Times Co. v. Sullivan, supra, depends.

ll

Florida Statute § 104.38 Is Unconstitutional as a Prior |

e Restraint on the Press. ;

The preceding section considered the chilling effect

which a prospective right of reply under the Florida

statue will have when a newspaper is deciding whether

to publish a criticism of a candidate for public office.

Quite apart from this chilling effect, once a criticism

has already been published the administration of the

statutory right of reply necessarily involves a prior

restraint. The statutory right of reply pre-empts .a

newspaper from printing news material of its choice in

space equal in quantity and prominence to the space .

occupied by the previously published criticism. If the

is the lead column on the front page, the news-

paper is barred from printing news material of its own

choice in the lead column on the front page. If the

space is the lead editorial, the newspaper is barred

from expressing its own editorial views in the lead

editorial space. A restraint of this character is a prior

restraint, condemned by Near v. Minnesota, supra;

New York Times Co. v. United States, supra.

D. The Standards Which Govern Access to Electronic Media

Are Not Applicable to the Print Media.

Section 104.38 bears a resemblance to aspects of the

“fairness doctrine”? which this Court has upheld as

constitutionally permissible regulation of the broad-

casting industry. But as both legislative history and

the decisions of this Court demonstrate, this doctrine

stems from the fact that broadcasting frequencies are

a searce resource whose use must be regulated by the

government to prevent chaos. Red Lion Broadcasting

Co, v. FCC, supra. Such considerations have no rele-

vance to newspapers. Cf. Brandywine-Maine Line

. Radio, Inc. v. FCC, 473, F2d 16, 54 (D.C. Cir. 1972)

| (Bazelon, J., dissenting).

\ 12

Red Lion also reflected this Court’s recognition

that during the last half century, Congress and the

authorized regulatory agency, the Federal Communi.

cations Commission, had gained experience and ey.

pertise in dealing with the broadcasting industry,

The challenged doctrines were the product of this

administrative expertise, which was given great weight

by the Court. See Columbia Broadcasting Systen,

Inc. v. Democratic Nat’l Comm., supra.

The Florida statute is even broader in its sweep than

congressional legislation‘ regulating the broadcast ip.

dustry and rules of the FCC under the fairness doe.

trine. Congress specifically exempted from equal time

provisions statements made during newscasts, news

interviews, and coverage of bona fide news events

The FCC administratively adopted this exemption for

the fairness doctrine. The Florida statute contains

no such limitations. The FCC political editorial ruk

applies only to editorial endorsements of candidate

and does not require, as the Florida statute does, that

the candidate adversely affected be given equal and

equally desirable time to reply.

Ill. THE VAGUENESS OF FLORIDA STATUTE § 104.38 VIOLATES

THE DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT.

The Due Process Clause requires that criminal

statutes whose prohibitions are not clearly defined be

struck down as void for vagueness. Grayned v. City

of Rockford, 408 U.S. 104 (1972); Papachristou v.

City of Jacksonville, 405 U.S. 156 (1972) ; Cramp ¥.

* Section 315(a) of the Communications Act of 1934, 47 USC.

§ 315(a) requires licensees who permit one candidate to use their

stations to afford equal opportunities to other candidates for the

same office,

13

Board of Public Instruction, 368 U.S. 278 (1961).

Where First Amendment rights are at stake, vague

laws are particularly suspect, since their effect may be

to chill activities beyond the unlawful zone. Baggett

y, Bullitt, 377 U.S. 360 (1964); Ashton v. Kentucky,

984 U.S. 195 (1966).

The Florida statute is a criminal statute, although

it was applied below in a civil proceeding. The

terms of the statute are unconstitutionally vague in at

least two significant ways:

—The statute covers ‘‘newspapers’’, but provides

no guidance as to what this term includes beyond

daily journals of general circulation. Are

magazines and other periodicals covered ?

—The prohibition against comments which ‘‘as-

sail’? the personal character of candidates is

subject to completely subjective determinations

as to the meaning of ‘‘assail’’.

Provisions this vague cannot satisfy the Due Process

Clause. See, e.g., Coates v. Cincinnati, 402 U.S. 611

(1971). ‘

IV. FLORIDA STATUTE § 104.38 IS AN UNCONSTITUTIONAL

TAKING OF PROPERTY WITHOUT COMPENSATION IN

VIOLATION OF THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT.

By requiring that a newspaper publish without

compensation the reply of a candidate, Florida Statute

§104.38 takes private property unconstitutionally.

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).

The newspaper’s columns are its own private property.

If, for public purposes, a state. takes this space, which

has substantial economic value, it t compensate

the newspaper accordingly. This is particularly true

—

14

as newspapers find economic survival increasingly

diffeult. Section 104.38 authorizes takings without

compensation, in violation of the Due Process Clause,

CONCLUSION

For the foregoing reasons, this Court should note

probable jurisdiction in this case.

Respectfully submitted,

JosEPH A. CALIFANO, JR.

RIcHARD M. Cooper

Terry M. Rose

Wuutams, Connoiiy &

CALIFANO

1000 Hill Building

Washington, D.C. 20006

(202) 638-6565

Attorneys for The Washington

Post Company