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

IN THE

Supreme Court of the United States

OctToBER TERM, 1973

No. 73-797

Tae Miami HERALD PUBLISHING CoMPANY, a Division

of Knight Newspapers, Inc., Appellant

v.

Pat L. TornmL10, JR., Appellee

On Appeal from the Supreme Court of Florida

BRIEF OF AMICUS CURIAE, THE AMERICAN

NEWSPAPER PUBLISHERS ASSOCIATION.

IN SUPPORT OF APPELLANT'S

JURISDICTIONAL STATEMENT

PRELIMINARY STATEMENT

The American Newspaper Publishers Association

submits this brief as amicus curiae in support of

Appellant’s Jurisdictional Statement. The written

consents of the Appellant and Appellee to the filing of

this brief have been filed with the Clerk of this Court.

INTEREST OF THE AMICUS CURIAE

The American Newspaper Publishers Association

(hereinafter referred to as ‘‘ANPA”’ or the “‘ Associa.

tion’) is a nonprofit membership corporation org.

nized and existing under the laws of the Common.

wealth of Virginia. Its membership consists of mor

than 1,000 daily newspapers, representing over ninety

percent of the total daily and Sunday newspaper ciren-

lation in the United States. The Miami Herald Pyb

lishing Company and twenty-six other newspapers

located throughout the State of Florida hold member.

ship in the ANPA.

To the knowledge of your amicus, this case repr.

sents the first litigation involving the issue of consti-

tutionality of a state statute requiring a newspaper to

publish, free of charge, a response to charges against

any candidate for nomination or election. For this

reason, the decision below will have major impact, not

only upon newspapers in the State of Florida, but also

upon newspapers throughout the United States where

similar statutes may exist or be enacted. Because of

this impact, your amicus desires to present to this

Court for its assistance the views of the majority of

its members in regard to the constitutionality and

legality of the State of Florida Statutes, § 104.38.

ARGUMENT

The appellee was a candidate for a state office who

demanded that the appellant print verbatim his r-

sponse to two editorials which allegedly attacked the

appellee’s personal character.

The trial court concluded that the Florida Statutes,

§ 104.38 was an unconstitutional restraint upon free-

eS

dom of speech and press. The Florida Supreme Court,

in a decision contrary to the trial court, determined

that the statute in question enhanced, rather than

i the First and Fourteenth Amendments to

the Constitution of the United States.

Your amicus respectfully submits that the Florida

statute in question is clearly unconstitutional and that

it, permitted to stand, formulates a devastating inroad

upon the freedom of the press guaranteed by the First

Amendment. Not only does the statute compel a news-

paper to print editorial material with which it does

not agree, but also it indirectly and subtly must surely

have stifling effect upon a newspaper’s editorial free-

dom when it can be anticipated that a reply of unknown

comment to the editorial must be published, free of

cost, with equal dignity accorded the original editorial.

3

The Supreme Court of Florida for the most part

erroneously based its opinion upon a case dealing with

the electronic media, Red Lion Broadcasting Co., Inc.

y. FCC, 395 U.S. 367 (1969), in which this Court

upheld the constitutionality of the FCC ‘fairness doc-

trine’? and found that it did not violate the First

Amendment guarantees of freedom of speech and

press. It is clear, however, from a reading of Red Lion

that this Court did not intend its words to be applied

to the private press of this country. The issues and

holding in that case relate only to the regulation of

the broadcast medium, which is a medium not open to

all and one which by the very genesis of its electronic

being is subject to governmental control. The problem

in Red Lion as seen by this Court was a possibility of

station owners and a few networks having within their

power as private interests the ability to censor the free

exchange of information in the broadcast medium.

4

~~ «Certainly, no extensive argument is required to con-

vinee this Court that Red Lion does not Constitute

precedent for permitting the State of Florida to dictate

to a free press when, where and what it will publish ip

its daily newspapers. :

Further, the Court below relied upon this Court's

decision in Associated Press v. U.S., 326 U.S. 1 (1945),

in reaching its decision. Again, its reliance is clearly

misplaced. Associated Press concerned monopolist

practices and only stands for the proposition that the

business of operating a newspaper, like other busi-

nesses, is subject to usual business regulation, in-

cluding regulation under applicable antitrust laws. It

appears that the Court below in relying so heavily

upon Red Lion and Associated Press believed that

those cases supported its theory that, since daily news-

papers and chain newspapers have become so large,

they tend to in some -way improperly or illegally

monopolize the dissemination of news. To the cor-

trary, however, it is submitted that what this Court in

essence said in Red Lion and Associated Press is that

the First Amendment right to a free press not only

prohibits governmental interference but also prohibits

interference with the exercise of a free press by private

interest. In other words, private interests cannot con-

spire to interfere with another’s right of freedom of

press, ; .

In this case no one is conspiring, or in any way

attempting, to intrude upon or to repress Appellee’s

exercise of his constitutional guarantee of a free press

or his constitutional guarantee to express in any man-

ner his views on political issues. The “‘right’’ Appellee

is, in fact, asserting is a “‘right’”’ given to him by the

State of Florida under Section 104.38 of its statutes.

5

Although the Court below indicates that it recog-

nizes that Red Lion is perhaps in some way distinguish-

able as a case dealing with the broadcast medium, the

Court below believed that the law as enunciated by

this Court concerning regulation of the broadcast

medium was clearly applicable to, and controlling on,

the print medium. For instance, in its opinion the

Court below stated that Red Lion was applicable to

the facts of the case before it since it could take judi-

cial notice of the fact that publishers of newspapers

rely upon the gathering and dissemination of news

transmitted over telegraph wires or air waves to and

from news-gathering bodies and newspapers. Without

further comment on the logic of this reasoning, suffice

it to say that your amicus does not contest for a

moment that telegraph wires and air waves are subject

to regulation and may be regulated. However, this is

a function separate and apart from Appellee’s exercise

of its guarantee of freedom to utilize the medium of

the printed word.

It would appear that the Court below has in some

way decided that since competition is rapidly van-

ishing in the business of the publication of daily

newspapers and that the trend is toward the

concentration of ownership of mass media, including

newspapers, the Florida statute in question here is

justified because it permits the individual candidate

for office, who does not own or have unlimited access

to a daily metropolitan newspaper, a right to express

his views on equal terms with that of the large news-

paper owner. In other words, the Court below has

indicated that the First Amendment guarantee to a

free press must somehow be adjusted to eliminate the

inequitable disparity in the ability of a large news-

Se.

—

paper to publish or exercise its freedom of press and

ability of an individual candidate for office to €Xer cise

his freedom of the press. This is precisely that type of

frightening logic often espoused to the effect that an

individual’s Fourth Amendment right to be free from

an unreasonable search and seizure should be abro-

gated by the courts when the effect of upholding that

right allows a guilty man to go free. In other words,

even if the free and fair exercise of constitutional

guarantees may result in inequities or injustices, the

overall benefit to society must suffer in the long run

if this Court does not enforce those guarantees on a

uniform and impartial basis.

The Supreme Court of Florida in this case has

adopted the untenable position that the press is only

one-half free unless others have access to that press to

express an opposing view on matters of political and

public concern. Similar arguments were rejected in

the Chicago Joint Board, Amal. Cloth. Workers y.

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

cert. denied, 402 U.S. 973 (1971), wherein a newspaper

refused to publish advertisements submitted to it bya

union purporting to present the union’s view in a labor

dispute. The Court of Appeals, in rejecting the union's

contentions, stated:

“The Union's right to free speech does not give

it the right to make use of the defendants’ printing

presses and distribution systems without defend-

ants’ consent.” 435 F.2d 478.

6

Similarly, this issue was faced in the case of Asso-

ciates & Aldrich Co. v. Times Mirror Co., 440 F.2d 133

(9th Cir. 1971), wherein the Court stated at p. 135:

*‘Appellant has not convinced us that the Courts

or any other governmental agency should dictate

the contents of a newspaper.”’

7

The issue presented in this case is fundamental.

The struggle for liberty has historically been a struggle

against government. The Founding Fathers in their

collective wisdom sought to prevent the curtailment of

freedom of religion, press, assembly and _ speech.

“Madison and the other Framers of the First Amend-

ment, able men they were, wrote in language they

earnestly believed could never be misunderstood:

‘Congress shall make no law . . . abridging the freedom

_.. of the press...’ Both the history and language

of the First Amendment support the view that the

press must be left free to publish news, whatever the

source, without censorship, injunctions, or prior re-

straints.”” New York Times v. United States, 403 U.S.

713, 716-17 (1971).

As recent as July 13, 1973, the Supreme Judicial

Court of Massachusetts issued an opinion concerning

proposed legislation in that state which would require

a newspaper accepting a paid political advertisement

for one group to accept for publication a paid political

advertisement advocating a contrary view. The Court

in its opinion considered not only the rationale of the

so-called ‘‘fairness doctrine’? upheld in Red Lion,

supra, but also the proposition that the intent of the

statute was to foster the expression of all views in the

public interest. The Massachusetts Court concluded

that the statute was unconstitutional and that, para-

doxically, a result opposite from the one desired would

be achieved. Further, the Court held that combating

alleged media concentration would in no way justify

the abridgment of First Amendment rights.

If the legislature can dictate to the press what it

must print in the public interest regarding candidates

—

for election, it follows that freedom of expression shal]

not long be a right retained by the people but a limited

privilege exercised under the color of public interest

by whomever acts with the authority of government

Justice Stewart, in a concurring opinion jp

Columbia Broadcasting System, Inc. vy. Democratic

National Committee, — U.S. —, 36 L.Ed. 2d 772, 807-8

(1973), stated:

“*There is never a paucity of arguments in favor

of limiting the freedom of the press. The Court

of Appeals concluded that greater government

control of press freedom is acceptable here be-

cause of the scarcity of frequencies for broadeast-

ing. But there are many more broadcasting sta.

tions than there are daily newspapers. And it

would require no great ingenuity to argue that

newspapers too are Government. After all, news.

papers get Government mail subsidies and ,

limited antitrust immunity. The reasoning of the

Court of Appeals would then lead to the conclu-

sion that the First Amendment requires that news-

papers too be compelled to open their pages to all

comers.

7 . . .

‘‘Those who wrote our First Amendment put their

faith in the proposition that a free press is indis-

pensable to a free society. They believed that

‘fairness’ was far too fragile to be left for a gov-

ernment bureaucracy to accomplish. History has .

many times confirmed the wisdom of their choice.”

The amicus is ever mindful of the potential influence

of the press and dedicated to the proposition that a

free and open society requires the widest dissemina-

tion of all ideas and positions from as many different

sources as possible if our society is to remain free.

Interent in a truly free press is the unfettered right

to criticize or to advocate. For every publisher who

9

may express a critical view, there are others who will

express an opposing view.

It is respectfully submitted that the application of

the Florida statute to the Appellant herein presents -

to this Court the most substantial and clear-cut viola-

tion of the constitutional guarantee of a free press that

this Court has ever been called upon to review. If the

decision of the Florida Court is sustained, freedom of

the press as explicitly guaranteed by the Constitution

shall soon perish and be replaced by administrative

fat }

CONCLUSION \

It is respectfully urged that this Court enter an

order noting probable jurisdiction in order that the

substantial constitutional questions raised by this ap-

peal relative to freedom of speech and of the press can

be fully examined.

Respectfully submitted,

ArTHUR B. Hanson

Paut L. O’Brien

W. Frank STICKLE, Jr.

888 Seventeenth Street, N. W.

Washington, D. C. 20006

Attorneys for Amicus Curiae,

The American Newspaper

Publishers Association

ae