# Amicus Curiae Brief — Miami Herald Publishing Co. v. Tornillo > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0328%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1974 - **Citation:** 418 U.S. 241 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0328%3A07. Public record. Not legal advice.