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

EL RODAK, JR..C

in the

Supreme Couct

of the

Auited States

OCTOBER TERM, 1973

NO. 73-797

-

THE MIAMI HERALD PUBLISHING COMPANY,

Appellant,

v.

%

Appellee.

On Appeal from the Supreme Court of Florida

PAT L. TORNILLO, JR.,

BRIEF OF THE AMERICAN CIVIL LIBERTIES

UNION OF FLORIDA, AMICUS CURIAE

JONATHAN L. ALPERT

IRMA ROBBINS FEDER

RICHARD YALE FEDER

WARREN S. SCHWARTZ

c/o American Civil Liberties

Union of Florida

19 West Flagler Street

Miami, Florida 33130

Attorneys for Amicus Curiae

MIAMI REVIEW — 371-4853 — 377-3721

TABLE OF CONTENTS

Page

INTEREST OF AMICUS is 2

STATUTE INVOLVED : 2

SUMMARY OF ARGUMENT ___ 3

ARGUMENT ___. 3

I. Florida Statute §104.38 Abridges Free-

Gn oF Te Pe 3

~~ ee... 3

B. The Columbia Broadcasting System

ee 6

II. The “Right-of-Access” Theory Abridges

The First Amendment - 10

A. Senn Pats 10

B. Effects of Free Exchange of

Information and Opinion 14

C. Historical Considerations = 18

| i

TABLE OF CONTENTS (cont.)

III. Additional Grounds for Invalidating

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A. Vee Oe Varun

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C.. Go ees a

D. “Less Drastic Alternative” Doctrine

E. The Missing Requirements of

“Truth” and “Fair Comment” __

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CERTIFICATE OF SERVICE ..

mi

TABLE OF AUTHORITIES

CASES

Abrams v. United States,

oe oe ee CO

Baggett v. Bullitt,

wen ee ee

Bridges v. California, .

314 U.S. 252 (1941)

Columbia Broadcasting System v. Democratic

National Committee,

36 L.Ed.2d. 772 (1973) __

Connally v. General eee —

269 U.S. 385 (1926) _

Craig v. Harney,

331 U.S. 367 (1947)

Curtis Publishing, pany v. Butts,

388 U.S. 130 11967)

Dombrowski v. Pfister,

380 U.S. 479 (1965)

Dunn v. Blumstein,

405 U.S. 330 (1972)

Giancano v. Pennsylvania,

382 U.S. 399 (1966)

IV

TABLE OF AUTHORITIES (cont.)

CASES

Page

Gibson v. Florida Legislative Investigation

Committee,

2 Us. a ie) 25

Griswold v. Connecticut,

381 U.S. 479 (1965) 27

Grosjean v. American Press Company,

297 U.S. 233 (1936) ...

Herndon v. Lowry,

OUR Urs Oe Ce a

Mills v. Alabama,

384 U.S. 214 (1966) _. Rn ERE 5, 15

NAACP v. Button,

OTe the Gee tee) es

Near v. Minnesota,

283 U.S. 297 (1931) _._........

New York Times v. Sullivan,

376. U.S. 364 (66) 5, 14, 18, 26, 28

New York Times v. United States,

OR TS. Tie Ie a ae ve 5

Palmer v. City of Euclid,

BU Te FG viveiirvciicise icicles 21

Vv

TABLE OF AUTHORITIES (cont.)~

CASES

Page

Papachristou v. City of Jacksonville,

Son UE. AOR OTR 21, 22, 23

Pennekamp v. Florida,

ane UM, St (190) 2 5

Red Lion Broadcasting Co. v. FCC,

ee We Oe ec 7

Rosenblatt v. Baer,

883 U.S. 75 (1966) AER Maen =. 18

Rosenbloom v. Metromedia,

“08 US. S00. (0072) 5, 18; 26, 28

Shapiro v. Thompson,

Soe We, OLS (0000) 27

Shelton v. Tucker,

364 U.S. 479 (1960) _ . 27, 28

Speiser v. Randall,

357 U.S. 513 (1958) Sid 25

Thornhill v. Alabama,

310 U.S. 88 (1940) . | : 23

U.S. v. Cohen

255 U.S. 81 (1921) __ 22

ee —

VI

TABLE OF AUTHORITIES (cont.)

CASES

Page

United States v. Reese,

oe oe eee), RRS

Wolf v. Selective Service Local Board #16. ‘

See au, Gee (oe. Oe. tee) a!

CONSTITUTIONAL PROVISION

UNITED STATES CONSTITUTION

First Amendment _.... ncaa FT

STATE STATUTES

FLORIDA STATUTES

ER i om f

OTHER AUTHORITIES

L. Levy, Freedom of Speech and Press in Early

American History: Legacy of Suppression 4 _.. | 18

in the

Supreme Court

of the

Gnited States

OCTOBER TERM, 1973

NO. 73-797

THE MIAMI HERALD PUBLISHING COMPANY,

Appellant,

Vv.

PAT L. TORNILLO, JR.,

Appellee.

On“Appeal from the Supreme Court of Florida

BRIEF OF THE AMERICAN CIVIL LIBERTIES

UNION OF FLORIDA, AMICUS CURIAE

I

—_— {

ty ee iy

INTEREST OF AMICUS

This Brief is filed (with the parties’ consents pre-

_ viously filed in this Court) by the American Civil Liber-

ties Union of Florida pursuant to Rule 42. The American

Civil Liberties Union of Florida is a nonpartisan organi-

zation with the sole purpose of protecting the Bill of

Rights. Amicus is particularly interested in the outcome

of this case because the Florida Statute involved, §104.38,

and the decision of the Florida Supreme Court holding

the statute constitional, deleteriously affect the conduct of

elections and freedom of press in the State of Florida.

STATUTE INVOLVED

Florida Statutes §104.38: .-

Newspaper assailing candidate in an election;

space for reply. — 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 record, or gives to another

free space for such purpose, such newspaper shall

upon request of such candidate immediately pub-

lish free of cost any reply he may make thereto

in as conspicious a place and in the same kind of

type as the matter that calls for such reply, pro-

vided such reply does not take up more space

than the matter replied to. Any person or firm

failing to reply with the provisions of this section

shall be guilty of a misdemeanor of the first

degree, punishable as provided in §775.082 or

§775.083.

3

SUMMARY OF ARGUMENT

>

The statute involved in this case, by granting a “Right

of Reply” or “Right of Access”, clearly breaches the free-

dom of press guarantee of the First Amendment. Such

right to access exercised by any individual results in

corresponding reduction in the freedom f the print media

to print or not as they so desire.

The First Amendment interdiction of governmental

interference with this country’s free press conclusively

and completely bars the entry of the State into the edi-

torial board rooms and journalistic newsrooms of all news-

papers. By granting political candidates a right to space

in newspapers, the Florida Legislature and Supreme Court

effectively curtailed, abridged and eliminated freedom of

the press in Florida.

ARGUMENT

I

THE FLORIDA STATUTES §104.38 ABRIDGES

FREEDOM OF THE PRESS

A. Introduction

All parties herein concede that this is a case of first

impression before this Court and that no such statute has

ever been held Constitutional before.

The Florida Supreme Court and Tornillo assert the

novel position that the Florida right to reply statute

“implements” freedom of the press rather than restraining

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it because the statute aids the free flow of information

and ideas and thus enhances the public’s right to know.'

In the first place, no semantic exercise can change

the obvious fact that the statute restrains or abridges

private newspapers’ freedom to print or not to print as

they see fit and does not “implement” freedom of the press.

In the second place, the Florida statute does not

benefit the public’s right to be informed.

In the third place, whether or not the statute “imple-

ments” or inhibits the free flow of information is irrele

vant to the statute’s constitutionality or lack thereof be-

cause the Constitutional prohibition against any “law .. .

- abridging the freedom . . . of the press” does not make an

exception for laws-abridging-freedom-of-press with the

purpose of enhancing the public’s right to know.

The very language of the First Amendment demon-

strates the framers’ determination that a governmentally

unfettered right to print or not to print is the best means

for assuring the people’s right to know, the considered

judgment that a constitutional wall separating newspapers _

and government is the best means for protecting and en-

couraging the free flow of information. The very language

of the First Amendment explicitly rejects a compulsory

governmental press, a governmentally-determined “respon-

sible” press, a governmentally-insured “accurate” press or

a governmentally-guaranteed “freedom of access to press.”

‘See e.g. Appellee’s Response to Appellant’s Jurisdictional State-

ment . . . (hereinafter called App. Response), pp. 9, 14-15.

5

The underlying basis for the First Amendment is

that truth best emerges in a free marketplace of ideas.*

Therefore, all Americans — liberal or conservative, re-

actionary or radical, black or white, rich or poor, majority

or minority — must have the right to print or not to print

and to read or not to read “the truth” as they see it, free

from governmental interference. In other words, the func-

tion of newspapers in exposing and evaluating government

weaknesses and strengths cannot be accomplished if

government itself is to determine “the truth” or require

newspapers to print specified matter.

The basis of the First Amendment is the separation

of the press and the government. If Tornillo is correct or

if Tornillo’s position represents sound public policy, then

the proper forum for Tornillo is the Congress and the

State Legislatures to modify, alter or repeal the First

Amendment. If each citizen has a “right-to-know” para-

mount to the freedom of the press, then the First Amend-

ment should be properly altered by amendment.

The First Amendment, however, prohibits laws

allegedly aiding the public’s right to know if and when

they abridge freedom of the press.’ Similarly, the First

2See e.g. Abrams v. United States, 250 US. 616, 630 (1919)

(dissenting op., Holmes, J.).

See e.g. Near v. Minnesota, 283 U.S. 297 (1931) and New York

Times v. United States, 403 U.S. 713 (1971) (prior restraints) ;

Bridges v. California, 314 U.S. 252 (1941), Pennekamp v. Florida, :

328 U.S. 331 (1946), Craig v. Harney, 331 U.S. 367 (1947), and Mills :

v, Alabama, 381 U.S. 214 (1966) (subsequent punishments) ; Grosjean q

v. American Press Company, 297 U.S. 233 (1936) (discriminatory

taxes); New York Times v. Sullivan, 376 U.S. 254 (1964), Curtis Pub-

lishing Company v. Butts, 388 U.S. 130 (1967), and Rosenbloom v.

Metromedia, 403 U.S. 329 (1971) ( inhibiting forms of libel actions).

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Amendment in no way imposes or permits any legal duty

on the press to inform the public and does not enforce

any duty on the public to be informed.

Just as our Constitution presently rejects voting as a

citizen’s compulsory duty in favor of voting as a citizen’s

d right (subject to personal option to exercise or not), so too

it rejects a compulsory “informed” public. In both in-

stances, the implicit premise is that some ultimate demo-

cratic goals, such as elections involving all eligible citizens,

all of whom are totally informed, cannot be achieved by

governmental compulsion.

ispuaihdtdiaiDar seth ele ihn a -

As suggested previously, the reductio ad absurdum

of the position taken by the court below and Tornillo would

be, in addition to compulsory printing in the name of

“access to media,” another Florida statute involving com-

pulsory reading in the name of “the free flow of informa-

tion.” Amicus contends that both are equally incompatible

with democracy, that neither would further the legitimate

interest in fair and honest elections, and, most important,

that both reject freedom of the press as guaranteed by the

- Constitution in favor of a new esoteric and unworkable

- experiment to be undertaken by judicial interpretation

j rather than Constitutional Amendment.

; B. The Columbia Broadcasting System Case.

1

In Columbia Broadcasting System v. Democratic Na-

| tional Committee, 36 L.Ed. 2d 772 (1973), this Court held

_ that radio and TV broadcast licensees’ policy against ac-

' cepting paid editorial advertising does not violate the First

Amendment and/or the Federal Communications Act (Mr.

Justices Brennan and Marshall dissenting). Disagreement

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7

among the Justices arose because the existing “hybrid”

system of government regulation of private radio and TV

due to limited broadcast frequencies raised serious ques-

tions concerning “governmental action” under the First

Amendment. Such questions are irrelevant in this case

because, as the CBS opinions explicitly point out, news-

papers are not and cannot be so governmentally regulated

under our Constitution.

Thus in Part I of the opinion of the Court, six

Justices retiterated with approval the Red Lion proposition

that “it is idle to posit an unabridgeable First Amend-

ment to broadcast comparable to the right of every indi-

vidual to speak, write, or publish.”* Similarly, in the

dissenting opinion. two Justices also cited the same Red

Lion language.’ The one remaining Justice deemed the

First Amendment equally applicable to private radio and

TV broadcasters as to private newspapers, banning

“access” law or any other law that abridges freedom of

the press in both instances.‘

Futhermore, although a majority of this Court per-

mits some government regulation of radio and TV in view

of the “inherent physical limitation” involved (i.e.,

“Broadcast frequencies are a scarce resource”) ,”7 no mem-

Columbia Broadcasting System case, supra (hereinafter CBS),

36 L.Ed. 2d at 783 (Opinion of the Court, Part I, quoting from Red

Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388 (1969).

‘CBS, 36 L.Ed. 2d at 839 (dissenting op., Brennan, J.).

CBS, 36 L.Ed. 2d at 809 (separate op., Douglas, J.) ; See also at

801 (separate op., Stewart, J.).

7CBS, 36 L.Ed. 2d at 783 (Opinion of the Court, Part I); see also

at 790 (Opinion of the Court, Part III), at 797 (Opinion of the

Court, Part IV), at 802 (separate opinion, Stewart, J.), at 829 and

838 (dissenting opinion, Brennan, J.), and cf. at 815-816 (separate

opinion, Douglas, 1).

~

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8

ber of this Court would permit similar governmental regu-

lation of private newspapers based on alleged economic

limitations (i.e., newspapers’ alleged “monopolistic in-

fluence” as relied on by the court below in response to

Tornillo’s plea‘) .

For example, Part I of the Court’s opinion stated

that “All who possess the financial resources and the desire

to communicate by television or radio cannot be satis-

factorily accommodated” on account of the scarce natural

resource,’ thus justifying in effect an abridgeable or non-

absolute right to broadcast. (Clearly all who possess the

money and wish to communicate by printing newspapers

can do so.).

As set forth by Mr. Chief Justice Burger in Part III,

the First Amendment does not allow infringement of news-

papers’ freedom on the ground that some Americans who

want to publish are not rich enough to do so:'°

“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 suc-

cess; and second, the journalistic integrity of its

editors and publishers.”

8Tornillo v. The Miami Herald Publishing Company, So.

2d (July 18, 1973); Jurisdictional Statement, Appendix A, pp.

App. 8-9.

°CBS, 36 L.Ed. 2d at 783 (Opinion of the Court, Part I).

10CBS, 36 L.Ed. 2d at 792 (Opinion of the Court, Part III).

9

In analagous fashion, Mr. Justice Douglas’ separate

opinion states that with respect to daily newspapers “it

would be virtually impossible for a competitor to enter the

field due to the financial exigencies of this era” but never-

theless takes the position that the First Amendment does

not permit “ ‘some’ laws ‘abridging’ freedom of the press.”

Again, Mr. Justice Stewart’s concurring opinion spe-

cifically rejects the argument that newspapers should be

“compelled to open their pages to all comers” or to “dissi-

dent voices” or to “responsible” dissident voices, and rejects

any such argument even if “there was a single newspaper

in a particular community” :'”

“For that guarantee [of the First Amendment]

gives every newspaper the liberty to print what

it chooses and reject what it chooses, free from

the intrusive editorial thumb of Government.”

Lastly, the dissenting opinion of Mr. Justice Brennan,

in which Mr. Justice Marshall joined, also proscribed gov-

ernmental regulation of newspapers despite economic dis-

parity:

“The decision as to who shall operate newspapers

is made in the free market, not by Governmental

fiat. The newspaper industry is not extensively

regulated and, indeed, in light of the differences

between the electronic and printed media, such

regulation would violate the First Amendment

with respect to newspapers.”"

"CBS, 36 L.Ed. 2d at 816 (separate op., Douglas, J.).

"CBS, 36 L.Ed. 2d at 808 (separate op., Stewart, J.).

CBS, 36 L.Ed. 2d at 829 (dissenting op., Brennan, J.).

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10

Returning now to the facts of the CBS case, in Part

IV of the Court’s CBS opinion, five Justices concluded

that neither the public interest standard of the Federal

Communications Act nor the First Amendment “requires

broadcasters to accept editorial advertisements” and con-

sequently rejected the limited right of access requested by

the Democratic National Committee ;” Regimenting broad-

casters is too radical a therapy for the ailments respondents

complain of.”'* Most assuredly, Florida’s Right to Reply

Statute and Tornillo’s right-of-access to newspapers theory

both involve regimenting newspapers to an incredible de-

gree, a degree far greater than that already rejected by

this Court for broadcasters."

Il

THE “RIGHT-OF-ACCESS” THEORY ABRIDGES

THE FIRST AMENDMENT

A. Economic Factors

The main thrust of Tornillo’s argument is that the

First Amendment coupled with today’s economic conditions

guarantees or at least does not prohibit a right of access to

newspapers by assailed political candidates, and that

Florida’s Right to Reply Statute is constitutional because

our free enterprise system has yielded a giant newspaper

“CBS, 36 L.Ed. 2d at 794-797 (Opinion of the Court, Part IV);

see also at 807-808 (separate op., Stewart, J.) and quoted material

in text accompanying fn. 12 of this Brief as well as at 817-819

(separate op., Douglas, J.: “the laissez faire regime which the First

Amendment sanctions” renders the Fairness Doctrine imposed on broad-

cast licensees improper, leastwise any governmental-compulsory-access-

to-newspaper media.

'SCBS, supra.

11

industry and monopolization rendering it all but impossible

for the average citizen and minority group to reach the

public through print:

“. . . In this law, the Legislature, in 1913 (!)

decided that the owners of the printing presses

had (already) achieved such political clout that

when they (the publishers) engaged in character

assailings, the victims’ electoral chances were un-

duly and improperly diminished . . . For these

reasons and to avoid a hit-run election stratagem,

concocted by one candidate and a dominant news-

paper, the Legislature in F.S. 104.38 gave the

victim of the press’ acerbic pen, a limited oppor-

tunity to respond to the same people who read

the attack against him.

“There can hardly be anything Communistic

about that!!” ;

(Brief of Appellant Tornillo in the Supreme

Court of Florida, pp. “xi” and “xii,” original

emphasis)

If Tornillo had a tenable position, it would not be-

necessary to bandy about the term “Communistic.” Re-

gardless of Tornillo’s views about Communism, it is simply

not constitutional to deprive a newspaper publisher of his

private property (newspaper space) without just compen-

sation (or indeed any compensation), nor is it constitu-

tional to give some Americans the right to “buy” private

newspaper space for free and even if the property owner

doesn’t want té “sell” it.

4

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12

Amicus suggests that constitutional remedies for those

Americans who desire more access to private newspaper

media and cannot afford to reach the audience they wish

would include working for economic betterment or reform

within our Constitutional system." .

Assuming arguendo that the goals sought to be

achieved by Tornillo are desirable, mere economic size does

not a Constitution unmake. There are numerous ways in

which candidate Tornillo could have presented his case to

the electorate in his district (not all of Dade County) with-

out infringing upon the freedom of the editors and pub-

lishers of the Miami Herald to speak their minds. Tornillo

could have hired halls, spoken to individual voters, distrib-

uted leaflets and pamphlets, or strived for change within

our constitutional system to enable him to speak his mind

to his particular group of voters without tampering with

the First Amendment.

The particular defendant presented to this Court in-

volves an inviting target — the extremely popular and

widely circulated Miami Herald. The Right of access to the

smaller newspapers in Dade County (and there are many)

or the ‘‘newspapers” published by private organizations in

Dade County (and there are many) is not of immediate

interest to the parties. This Court, however, will be de-

ciding the fate of these smaller newspapers and organiza-

tions “newspapers” too.

16Parenthetically, Constitutional remedies for one who desires more

access and also advocates some Marxist principles would include trying: -

to persuade a majority of Americans to agree through First Amend-

ment peaceful means of persuasion and legally striving for pertinent

Constitutional Amendments; asking any Court to amend our First

Amendment is an improper remedy under our Constitutional system.

13

Although the Miami Herald, economically speaking,

might be able to survive free space for a right to reply for

political candidates, it is highly questionable whether the

Dade Democrat (the publication of the Dade County Young

Democrats) or the Classroom Teacher (the newspaper

publication of the organization with which Mr. Tornillo is

affiliated)'? would also be able to survive. What will be

the effect of the Florida Statute upon the Coral Gables

Times, the Greater Miami Journal, the North Dade

Journal, the Liberty City News, and the many other small

newspapers in Dade County, if the Statute is upheld, in-

voked with increasing frequency, and enforced with merely

appropriate effort (leastwise with zealous dedication) ?

Equally important, economically speaking, is the

strong possibility that one reason for the Miami Herald’s

wide circulation is its exposure and evaluation of

“official” records and “candidates” such as Mr. Tornillo,

and that one reason for the continued existence of the

numerous small papers in Dade County is their appeal to

their readers on the basis of their particular viewpoints.

In all probability the Miami Herald’s readership and

circulation would diminish if it were forced to give all such

persons a right of reply, thereby diluting the Miami

Herald’s editorial spleen; certainly the (Dade County)

Jewish Floridian would lose a substantial portion of its

subscribers if it were compelled to print “replies” of can-

didates supporting the anti-Israel “Palestine Liberation

Front” and the Miami Times ( published by and for Dade

County’s black residents) would soon go out of business

if it were compelled to print “replies” of candidates advo-

‘It should be noted that Appellee Tornillo has total access to this

av which goes to some 8,000 of the 12,000 teachers in Dade

unty.

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14

eating segregated public schools, etc.! Requiring news-

papers to become community bulletin boards rather than

strong and independent voices in the community, however

unpopular or unusual, would mean economic death of

newspapers as they now exist. (Whether or not there is a

ready market for “community bulletin boards” is an eco-

nomic question whose answer is unknown to Amicus and

irrelevant to decision of the case at bar, though it may be

of interest to enterprising Americans looking for the pro-

verbial road from rags to riches).

Additionally, just as a relatively poor person is con-

stitutionally entitled to run for public office, but he is not

constitutionally entitled to compel a crowd of listeners to

gather to hear him in an auditorium . . . and receive bus

or cab fare for such listeners from the government, so too

such a person should not be constitutionally entitled to

gather the same listening or reading audience through the

unwilling columns of a daily newspaper . . . and to do so

at the publisher’s expense. Economic size cannot be a con- _

stitutional criterion for access. The bully is as entitled to

speak and print freely as the meek, the powerful as en-

titled as the weak, and vice-versa under our Constitution,

without regard to high or low financial status.

B. Effects on the free exchange of information and

Opinion

The primary fallacy in Tornillo’s argument, however,

is not the Florida Statutes’ deleterious effect on the news-

papers’ economic profits but instead the Right to Reply

law’s destructive effect on the free, “uninhibited, robust

and wide-open”"* discussion of governmental affairs.

18New York Times v. Sullivan, supra, at 270.

15

Thus enforcement" of the Florida Statute means no

newspaper can print any critical evaluation of any candi-

date for nomination or election without inviting or risking

the right to reply under one. or more of the law’s four

subsections.

The only two ways for a newspaper to avoid the

Statute (assuming arguendo it is not void for vagueness)

would be (1) to print a list of candidates supported with

no further comment, no rhyme or reason for the news-.

paper’s support, or (2) to eliminate from the newspaper’s

columns, editorials, etc. all information and evaluation

concerning candidates and their attitudes or actions which

might conceivably be deemed to assail their personal

characters or to attack their official records, i.e., to cut

all candidate-and-record assessments encompassing any

criticism whatsoever. Obviously neither of the above avoid-

ance methods would inure to the benefit of the public’s

right to know, nor would such self-censorship help secure

fair and honest elections.?°

If, on the other hand, the average Floridian news-

paper decided to invite and print all the required reply-

material-in-similar-space-and-type, the newspaper would

soon lose those readers interested in particular points of

view, those readers interested in “the truth” as their chosen

newspaper sees it, those readers disinterested in commu-

‘The case at bar is apparently the second ever having been

brought under the Florida Statute, and the- first case in which the

Statute was held constitutional by any Florida Court. Jurisdictional .

Statement, p. 6. In view of the nationwide publicity and interest in :

this case, a decision by this Court upholding the Statute would in-

evitably result in constant massive recourse to the Statute and assid- —

uous enforcement thereof by the Florida courts.

20Cf. Mills v. Alabama, supra, at 219.

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16

nity billboards advancing all points of view and exercising

neutrality rather than editorial judgment. This kind of

compliance with the Florida Statute would not increase

the free flow of information and opinion nor make elec-

- tions more fair and honest.

The political campaign is a central feature of a de-

mocracy. But this fact does not support Tornillo’s view

that a Right topReply is peculiarly compelling; this fact

supports Appellant’s position because government regula-

tion of newspapers’ political commentary, however inno-

cent it may seem to some at first blush, is indeed the prel-

ude to dictatorship through suppression of full and free

discussion of political concerns.

No free marketplace of ideas can coexist with com-

pulsory access to private newspaper media, and no election

ean be fair and honest when the free marketplace of ideas

is decreased or destroyed:

«“¢ | any effort to solve the broader problems

of a monopoly press by forcing newspapers to

cover all “newsworthy” events and print all view-

points, under the watchful eyes of petty public

officials is likely to undermine such independ-

ence as the press now shows without achieving

any real diversity.’ The System of Freedom of

Expression. (1970), p. 671”

The decision below is particularly reprehensible to the

entire function and meaning of the democratic process. At

the heart of the democratic process is the election. At the

21CBS, 36 L.Ed. 2d at 811 (separate op., Douglas, J., quoting

“Thomas I. Emerson, our leading First Amendment scholar”).

—— -

17

- heart of each election is each person’s opinion. At the

heart of each person’s opinion is the right of every person,

every group and every newspaper to express a view on

every candidate no matter how outrageous that view may

be and subject only to the applicable law of libel.

The editors of the Miami Herald are as entitled to

express their opinions through their columns without gov-

ernment interference as much as any individual is en-

titled to express his opinion verbally or in print without

government interference. If Tornillo may require the

Miami Herald to print his replies today, then he can re-

quire each individual who speaks against him to speak his

replies tomorrow. What Tornillo really seeks is not a

“right-of-reply” (which by any constitutional standard is

untenable and by any practical standard is unworkable),

but a right to stifle and shield government and politicians

from legitimate public inquiry and comment.

A subsidiary legal argument relied on by Tornillo

merits brief attention. .

Tornillo has managed to confuse Florida’s Right to

Reply candidates’ access law with some imaginary right-

to-reply-to-libel legislation not involved in the case at bar

and not now before this Court.7 The Florida Statute in

no way requires libel before its prescribed right-to-reply

comes into play. Moreover, Tornillo did not sue as a “libel

plaintiff” in the instant case, has not sued the Miami

Herald in any civil libel action grounded on the editorial

involved herein, and has not sought a retraction under a

separate Florida libel Statute ($770.02), providing for

limited libel damages if the losing defendant printed the

22See e.g. App. Response, pp. 10 et seq.

18

winning plaintiff’s requested retraction. Whether or not

the recent case-law establishing the new “public law of

libel” so deplored by Tornillo”? should be judicially modi-

fied is irrelevant in the case at bar. Surely Tornillo’s 9b-

jections to this Court’s extensions of the New York Times

rule limiting libel actions against newspapers cannot sup-

port Tornillo’s contention that the Florida non-libel access

Statute is thereby rendered constitutional even though*it

abridges freedom of the press.

C. Historical Considerations

Although “no citizen, and certainly no jurist worthy

of his position, would or should conclude his judgment on

either a constitutional question or a matter of public pol-

icy by an antiquarian examination of the original meaning

of the freedom of speech-and-press clause,” L. Levy, Free-

dom of Speech and Press in Early American History;

Legacy of Suppression 4, a short comment on Appellee’s

argument is indicated.

The argument has been made that the framers of the

First Amendment, who intended and required separation

of the press and the government, and chose not to provide

“freedom of access” to the press by aggrieved citizens or

politicians, should be “overruled” because neither Tornillo

nor the Miami Herald were in existence at the time nor

were the economic conditions that spawned them both. ©

Since it is true that (1) the First Amendment was written

in the late 18th century for an agrarian rural society, not

23See e.g. Response, p. 12, referring to New York Times v.

Sullivan, supra, Rosenblatt v. Baer, 383 US. 75 (1966), Curtis Pub-

lishing Company v. Butts, supra, and Rosenb'oom v. Metromedia,

supra.

19

a highly industrialized urban one, that (2) many small

newspapers existed then in even the tiniest towns and

cities, and that (3) the small franchise and population size

permitted each citizen to make his/her views known from

his/her own soapbox, then freedom of access to private

newsprint was not and would not have been a real issue

before drafters of the First Amendment. So the argument

runs.

As a matter of fact, the framers of our Constitution

did consider the access question before rejecting it in favor

of our present First Amendment. To illustrate, Benjamin

Franklin, an active participant in Constitutional framing

- and the pre-eminent printer and newspaper publisher of

his day, carefully explained that his paper was his to mold

and was not to be shared like “a stagecoach with seats for

all.”

As another matter of fact, the 5 million or so inhab-

itants of the 13 colonies in 1774 had less access to infor-

mation than we 250 million Americans have in 1974. Two

hundred years ago telephone, telegraph, radio, television,

air mail, railways, and even traversible highways did not

exist. Delays of weeks or occasionally months occurred in

mail delivery. Dangers from the elements, highwaymen,

ete. did not help communication. The non-existence of uni-

versal education and the resulting lowered literacy impeded

access. The limitations on the electorate-to male property

owners left a majority of adult Americans forbidden to

vote and lessened the motivation of some with respect to

learning about public affairs.

*CBS, 36 L.Ed. 2d at 811-812, see text accompanying fn. 2

(separate op., Douglas, J.).

20

Thus, historically comparing the availability of news,

opinions and ideas of 1974’s American to 1774’s American

reveals the insignificance of today’s alleged decrease in

the number of privately owned newspapers and alleged

increase in the economic costs of publishing such a paper.

Ill

ADDITIONAL GROUNDS FOR INVALIDAT-

ING STATUTE

A. Void For Vagueness

Florida Statutes §104.38 fails to provide adequate

notice to persons of ordinary intelligence as to what con-

duct is forbidden. The statute mandates a reply “if a

newspaper + . . assails the personal character of any can-

didate . . . ” without delineating what constitutes an “as-

sault” or what constitutes “personal character.” Is it an

assault to say that a man simply is not big enough to fill

a particular office? Is personal character attacked by en-

dorsing one candidate over another? Is it an assault on

personal character to state that a candidate has been con-

victed of a crime when in fact he has been convicted of a

crime?

The dissenting opinion of Florida Supreme Court Jus-

tice Boyd in the case sub judice suggested that there are

some important questions left unanswered by this statute:

“Does the law include both news stories and edi-

torial comments? If a story mentions a ‘situa-

tion,’ but does not mention the candidate by name,

may he reply? When the publisher knows the

3 21

statements are true must he publish a statement

by the candidate which he knows to be false? If

the reply of the candidate libels other persons,

must the publisher print it and, if so, is the pub-

lisher subject to liability for any resulting libel

suit? If the candidates reply were to contain ob-

scene language, would the publisher still have to

print it— and thereby invite prosecution under

obscenity laws?”

Tornillo v. The Miami Herald Publishing Co.,

— So.2d — (1973), (Jurisd. Statement, App.

pp. 22-23A).

Where a state seeks to regulate, the due process clause

requires that the statute authorizing such intrusion be

cast in language that is clear and unambiguous. Papachris-

tou v. City of Jacksonville, 405 U.S. 156 (1972); Palmer

v. City of Euclid, 402 U.S. 544 (1971) ; Connally v. Gen-

eral Construction Company, 269 U.S. 385 (1926). This

Court has declared:

“{A] statute which either forbids or requires the

doing of an act in terms so vague that men of.

common intelligence must necessarily guess as to

its meaning and differ as to its application, vio-

lates the first essential of due process of law.”

Td. at 391.

Clarity and precision serve two critical functions.

First, it assures that those who may be affected so seri-

ously have notice of behavior which will subject them to

the State’s interference. Connally v. General Construction

Co., supra. Second, the proscription against vagueness

22

serves to prevent courts and other official authorities from

enforcing a statute in a wholly subjective manner. Giancano

v. Pennsylvania, 382 U.S. 399 (1966); U.S. v. Cohen

Grocery, 255 U.S. 81 (1921) and Herndon v. Lowry, 301

U.S. 242 (1937).

This prohibition of vagueness is based upon notions

of due process and fundamental fairness which must attend

any state regulation. The concept of vagueness has been

used by the Courts in many different ways, two of which

are controlling here:

1. A penal statute must give adequate notice of the

conduct proscribed. Jn Papachristou v. Jacksonville, supra,

this Court struck down a vagrancy ordinance. It held:

“This ordinance is void-for-vagueness, both in

the sense that it ‘fails to give a person of ordi-

nary intelligence fair notice that his contemplated

conduct is forbidden by statute,’ . . . and because

it encourages arbitrary and erratic arrests and

convictions.” (Citations omitted)

The Court further quoted a much earlier opinion:

“It would certainly be dangerous if the legisla-

ture could set a net large enough to catch all

possible offenders, and leave it to the court to

step inside and say who could be rightfully de-

tained and who could be set at large.” United

States v. Reese, 92 U.S. 214, 221 (1876).

2. A penal statute cannot carry with it the threat

of erratic and arbitrary arrests and convictions. Papa-

-_

23

christou v. City of Jacksonville, supra; Thornhill v.

Alabama, 310 U.S. 88 (1940) ; Herndon v. Lowry, supra;

United States v. Reese, supra.

This statute by subjecting one to threats of arbitrary

and erratic arrests and convictions, by failing to give

adequate notice, and by failing to prescribe specifically

what conduct falls within the purview of the statute, sets

a net large enough to catch all possible offenders and

leaves it to the courts to say who could be rightfully de-

tained and who shall be set at large, and is thus void for

vagueness. See United States v. Reese, supra.

So amenable are the terms of the statute to subjective

interpretation, the statute’s application must perforce be

capricious. Indeed, no legislative prescription really gov-

erns the enforcement of this penal statute. The statute is

wholly subjective and unlimited in scope, thereby depriving

Florida citizens of their most fundamental, constitutionally ~

protected rights, to wit: those embodied by the First

Amendment.

B. Overbreadth

The statute in question also violates the prohibition

against overbreadth by proscribing legitimate First Amend-

ment rights.

Florida Statutes §104.38 provides that “if a news-

paper in its columns assails the personal character of any

candidate . . .” the newspaper, unless it prints a reply,

shall be guilty of a misdemeanor.

24

While some forms of assailment may in fact be subject

to state regulation (such as libel and slander), Florida

Statutes §104.38 does not distinguish between those forms

of assailment which are subject to state regulation and

those forms which are constitutionally protected. There-

fore, the statute is overbroad on its face and invalid as

violative of the First Amendment. ©

The overbreadth doctrine focuses directly on the need

for precision drafting to avoid conflict with First Amend-

ment rights. The doctrine rejects a “shot-gun approach”

to barring unprivileged conduct where First Amendment

privileged conduct is also swept within the ambit of the

law. It is, after all, primarily the legislature’s job to -

identify features of conduct which cause sufficient harm to

public interest to warrant intervention. The key word here

is “identify.” Where a law fails to clearly “identify” con-

duct with such specificity as required in order that First

Amendment freedoms are not curtailed, the law violates

the overbreadth doctrine.

“The objectional quality of . . . overbreadth does

not depend upon absence of fair notice to a

criminally accused or upon unchanneled delega-

tion of legislative power, but upon the danger of

tolerating in the area of First Amendment free-

doms, the existence of a penal statute susceptible

of sweeping or improper application.”

NAACP v. Button, 371 U.S. 415 at 432-433

(1963).

C. Chilling Effect

The newspaper’s right to print what it wishes is pro-

tected by the First Amendment. If a newspaper is required,

under the threat of the sanctions of the Florida Statute,

to provide free space which it does not wish to provide and

print words which it does not wish to print, it may very

well be deterred from printing words it does wish to print.

This chilling effect clearly destroys freedom of the press

in its most basic sense.

This Court has repeatedly stated that:

“The threat of sanction may deter . . . almost as

potently as the actual application of sanctions.”

NAACP v. Button, supra at 433.

The threat of sanction exerts a chilling effect upon

the exercise of First Amendment rights regardless of the

chance of success of the threatened sanction, Dombrowski

v. Pfister, 380 U.S. 479 at 487 (1965). See e.g. Wolf v.

Selective Service Local Board #16, 372 F.2d 817 (2d Cir.

1967) (Complainant faced with possible induction into

the armed services following reclassification after a peace-

ful protest); Baggett v. Bullitt, 377 U.S. 360 (1964)

(State employee might have to curb protected activities in

order to swear to state loyalty oath) ; Speiser v. Randall,

357 U.S. 513 (1958) (State cannot impose a tax burden

for refusal to swear to a loyalty oath, due to its deterrent

effect) ; Gibson v. Florida Legislative Investigation Com-

mittee, 372 U.S. 539, 544 (1963) (Disclosure of organiza-

tional membership list chills First Amendment right of

free association).

26

A penal statute which is subject to state as well as

private enforcement and thereby deters the exercise of

First Amendment rights, is unconstitutional because of its

chilling effect. Florida Statutes $104.38 is apparently sub-

ject to both state as well as private enforcement. The

deterring effect on a newspaper’s valid exercise of First

Amendment freedom of press is brought about by the

possibility of a conviction (state enforcement) and in-

junction or damages (private enforcement) when a news-

paper seeks to assert its First Amendment right.

Recent developments in the law of libel stand as an

example of how this court may modify subsequent stand-

ards to lessen the chilling effect of common law regula-

tion of the dissemination of ideas. New York Times v.

Sullivan, supra; Rosenbloom v. Metromedia, supra. This

ourt has utilized the concept of chilling to modify the

standards to be applied in a libel claim against a public

person. The quote “chilling effect” concept supports the

view that a public person could prevail in a law suit

claiming that certain statements concerning his public

actions were libelous only upon a showing that such state-

ments were made with “actual malice” . . . i.e. knowledge

of their falsity — or with reckless regard for the truth.

This Court has reasoned that would-be critics should not

be deterred by the fear of being sued for libel. If they were

so stifled, the exercise of First Amendment rights would

be hampered.

D. Less Drastic Alternative Doctrine

It is clear that even where the state has a recognized

interest in regulating personal freedoms, it must, where

those freedoms are fundamental and constitutionally pro-

27

tected, pursue the least drastic course in furthering its

interest. Shapiro v. Thompson, 394 U.S. 618 (1969) ;

Griswold v. Connecticut, 381 U.S. 479 (1965) ; Shelton v.

Tucker, 364 U.S. 479 (1960); NAACP v. Button, supra.

The doctrine, first developed where the government

sought to regulate freedom of speech, has been expanded

to mean that whenever the freedoms to be affected are _

personal and fundamental, the state is obligated to pursue

reasonable alternatives which impose a lesser, rather than

a greater, infringement. Dunn v. Blumstein, 405 U.S. 330

(1972) (the right to vote); Shapiro v. Thompson, supra

(the right to travel); Griswold v. Connecticut, supra

(marital privacy) .

In Dunn this Court acknowledged the state’s interest

in regulating the franchise. Nonetheless, in rejecting

Tennessee’s durational residence requirement, this court

admonished :

“It is not sufficient for the state to show that

durational residence requirements further a very

substantial state interest. In pursuing that im-

portant interest, the state carinot choose means

which unnecessarily burden or restrict constitu-

tional protected activity. Statutes affecting con-

stitutional rights must be drawn with precision,

and must be tailored to serve the legitimate ob-

jectives. And if there are other, reasonable ways

to achieve those goals with a lesser burden on con-

stitutionally protected activity, a state may not

choose the way of greater interference. If it acts

28

at all, it must choose less drastic means.” (Cita-

tions omitted.)

Id, at 348.

The interest of the State of Florida in maintaining

conditions conducive to free and fair elections.

“cannot be pursued by means that broadly stifle

fundamental personal liberties when the end can

be more narrowly achieved. The breadth of

legislative abridgement must be viewed in the

light of less drastic means for achieving the same

basic purpose.”

Shelton v. Tucker, supra, at 488.

There are less drastic alternatives which the State of

Florida may pursue.

Obviously, the State of Florida has not sought to avail

itself of other less drastic alternatives than interference

with freedom of the press.

E. The Missing Requirements of “Truth” and “Fair

Comment”

This court has mandated that freedom of the press

prohibits any recovery in a libel action unless the Plain-

tiff shows by clear and convincing proof that the news-

paper account was false and was published with actual

malice, defined as knowledge by the publisher of falsity

or reckless disregard for the truth. Rosenbloom v. Metro-

media, Inc., supra; New York Times Company v. Sullivan,

supra.

29

Since compulsory printing inhibits freedom of the

press at least as much as civil damages, clearly freedom

of the press prohibits any legislatively required right to

reply, particularly so when libel is not involved. But if

some “Right-To-Reply” Law may somehow be constitu-

tional, then a replyer must convincingly demonstrate the

newspaper’s knowledge of falsity or reckless disregard for

the truth. Yet the Florida Statute renders “truth” and

“fair comment” totally meaningless and completely un-

available to newspapers as a defense despite the case law

cited above. |

30

CONCLUSION

For the foregoing reasons, Amicus respectfully sub-

mit that any “Right-To-Reply” Law is inconsistent with

the basic command of the First Amendment and this

particular statute must also fall due to the other consti-

tutional infirmities set forth herein.

Respectfully submitted,

JONATHAN L. ALPERT

IRMA ROBBINS FEDER

RICHARD YALE FEDER

WARREN S. SCHWARTZ

c/o American Civil Liberties

Union of Florida

19 West Flagler Street

Miami, Florida 33130

Attorneys for Amicus Curiae

31

CERTIFICATE OF SERVICE

I, JONATHAN L. ALPERT, as a member of the Bar

of the Supreme Court of the United States, hereby certify

that a true and correct copy of the foregoing Brief of the

American Civil Liberties Union of Florida, Amicus Curiae,

was mailed by United States Mail this ___. day of Feb-

ruary, 1974, to each of the following:

Mr. James W. Beasley, Jr.

Paul and Thompson

1300 First National Bank Building

Miami, Florida 33131

Attorney for Appellant

Mr. Tobias Simon

1492 South Miami Avenue

Miami, Florida 33130

Attorney for Appellee

JONATHAN L. ALPERT