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

Tae Miami Heratp Pusuisuina Company, a Division

of Knight N ewspapers, Inc., Appellant

v.

Pat L. Tornm10, JR., Appellee

On Appeal from the Supreme Court of Florida

BRIEF OF AMICUS CURIAE,

THE AMERICAN NEWSPAPER PUBLISHERS

ASSOCIATION

-_

Artuur B. Hanson

W. Franx Sticke, Jr.

Rapa N. ALBRIGHT, JR.

888 Seventeenth Street, N.W.

Washington, D. C. 20006

Attorneys for Amicus Curiae,

The American Newspaper

Publishers Association

Hanson, O’Brien, Birney,

AND ButTier

Of Counsel

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT ........ 00.0. eee eee eeees 1

INTEREST OF THE AMICUS CURIAE ......... 0.00 e cece 2

ArGUMENT

A. Tuars Court Has Jurispiction Unper 28 U.S.C.

§ 1257 To Review THe Decision or THE SUPREME

Court or Fitorma in Tuts APPEAL .............. 3

B. Frorma Statutes, § 104.38 Is an Unoonstirv-

TIONAL ABRIDGEMENT OF THE F'REEDOM OF THE

PU nya wa aA 5404404408545 48 4588 AE SS 4

ee ere ere areas ll

TABLE OF AUTHORITIES

CASES :

Associated Press v. U.S., 326 U.S. 1 (1945) .......... 6

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

See CO MDD. ROAD 5655406564555 6 000 05045540055 9

Chicago Joint Board, Amal. Cloth. Workers v. Chicago

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

denied, 402 U.S. 973 (1971) ......... ccc eee eee 8

Columbia Broadcasting System, Inc. v. Democratic Na-

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

Se GOMOD 666 666500640 4404400Nbas Ee Ken exbeness 10

Hudson Distributors, Inc. v. Eli Lilly and Co., 377 U.S.

tt | errr rer yer errr rere or err rer

Mills v. Alabama, 384 U.S. 214 (1966) ............... 3,4

eal’ da Times v. United States, 403 U.S. 713, 716-17

OUR 5506640006 6554 044445 005 0keendeneneenes

North Dakota Pharmacy Board v. Snyder’s Drug

Stores, Inc., — U.S. —, 38 L.Ed.2d 379, 94 S.Ct.

ii Table of Contents Continued

Page

Opinion of the Justices, 298 N.E.2d 829 (Mass. 1973) 10

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

PROUD oe es accuse uss ensuyay cenets eeuneyaes 5, 6, 7,9

Tornillo v. Miami Herald, 287 So.2d 78 .......-...... 2

STATUTES:

§ 104.38, Florida Statutes ...................... 3, 4, 6, 11

BE UE BT 54 kb paw e ence rauccs scenes tssetccsss 3,4

BB UBS.. CIMICR) ons vicina necs cewesswisewcccsnics, 3

28 U.S.C. $1257(3) .. 2... eee eee eee eee eee 3

OTHER:

United States Constitution:

First Amendment .......:....... 0.00.0 eee eens passim

Fourth Amendment .................. 000 eee eee 8

Fourteenth Amendment ...................-.0055 5

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

Vv.

Pat L. Torni1o, JR., Appellee

On Appeal from the Supreme Court of Florida

BRIEF OF AMICUS CURIAE,

THE AMERICAN NEWSPAPER PUBLISHERS

ASSOCIATION

PRELIMINARY STATEMENT

The American Newspaper Publishers Association

submits this brief as amicus curiae in support of the

Appellant and urges that this Court reverse the deci-

sion of the Supreme Court of Florida entered below.

The written consents of the Appellant and Appellee to

the filing of this brief have been filed with the Clerk

of this Court. The American Newspaper Publishers

2

Association with the consent of the parties also filed a

brief amicus curiae in support of Appellant’s Juris-

dictional Statement.

INTEREST OF THE AMICUS CURIAE

The American Newspaper Publishers Association

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

tion’’) is a nonprofit membership corporation organized

and existing under the laws of the Commonwealth

of Virginia. Its membership consists of 1100 daily

newspapers, representing over ninety percent of the

total daily and Sunday newspaper circulation in the

United States. Although some of the largest news-

papers in the country hold membership in the ANPA

and although some ANPA member newspapers may

have ‘‘regional and international’’’ circulation, it

should be noted that more than fifty percent of the

Association’s members have daily newspaper circula-

tion of less than 25,000 and seventy-five percent of the

Association members have daily newspaper circula-

tion of less than 50,000. The Miami Herald Publish-

ing Company and twenty-six other newspapers located

throughout the State of Florida hold membership in

the ANPA.

To the knowledge of your amicus, this case repre-

sents the first litigation involving the issue of constitu-

tionality 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

1 Opinion of the Supreme Court of Florida, Appendix to Ap-

pellant’s Brief, p. 23, 287 So.2d 78.

3

this impact, your amicus desires to present to this

Court its views on behalf of its members in regard to

the constitutionality and legality of the State of

Florida Statutes, § 104.38.

ARGUMENT

A. This Court Has Jurisdiction Under 28 U.S.C. § 1257 To

Review the Decision of the Supreme Court of Florida in

This Appeal.

Your amicus supports and adopts the argument of

the Appellant in connection with this Court’s jurisdic-

tion to review the decision of the Supreme Court of

Florida in this matter. It is clear that the decision of

the Florida Supreme Court on the constitutionality of

§ 104.38, Florida Statutes, meets the finality require-

ment of 28 U.S.C. § 1257.

As recently as December 5, 1973, this Court had occa-

sion to discuss the finality requirement of 28 U.S.C.

§ 1257 in North Dakota Pharmacy Board v. Snyder’s

Drug Stores, Inc., — U.S. —, 38 L.Ed.2d 379, 94

8.Ct. — (1973). Although that case came before the

Court on certiorari under 28 U.S.C. § 1257(3), and

the present case involves an appeal under 28 U.S.C.

§ 1257(2), this is a distinction without a difference as

it relates to that statute. In Snyder’s, the State

Supreme Court remanded for a further administra-

tive proceedings after it determined that the state

statute involved was constitutional. In that case, this

Court was met with the respondent’s argument that

because of the remand by the state court, the U. S.

Supreme Court had no jurisdiction to review the state

court decision on the constitutional issues. Relying

upon Mills vy. Alabama, 384 U.S. 214 (1966), and

Hudson Distributors, Inc. v. Eli Lilly and Co., 377 U.S.

+

386 (1964), this Court found the decision of the North

Dakota Supreme Court to be final and appealable.

Further, the Court reaffirmed Mr. Justice Frank-

furter’s point that the concept of finality has a

‘‘penumbral area’’. Here, for all practical purposes,

the Florida Supreme Court has finally decided the

constitutional issue presented by the Appellant. It

held that there was no constitutional barrier prevent-

ing the enforcement through civil litigation of the

Florida criminal statute dealing with the right of a

candidate for office to reply to newspaper columns

assailing that candidate’s personal character or

charging that candidate with malfeasance or mis-

feasance in office, or otherwise ‘‘attacking”’ that candi-

date’s official record. If this Court denies review at

this point, the Appellant, as in Snyder’s, has no con-

stitutional barrier to the enforcement of § 104.38, of .

the Florida Statutes. To deny review of this matter on

this appeal would ‘‘result in a completely unnecessary

waste of time and energy in judicial systems already

troubled by delay due to congested dockets’’. Mulls vy.

Alabama, supra, p. 217-218. Your amicus respectfully

suggests that the finality requirement of 28 U.S.C.

§ 1257 has been satisfied and that the decision of the

Supreme Court of Florida on the constitutional issue

is ripe for review.

B. Florida Statutes, § 104.38 Is an Unconstitutional

Abridgement of the Freedom of the Press.

The Appellee was a candidate for a state office who

demanded that the appellant print verbatim his re-

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-

dom of speech and press. The Florida Supreme Court,

ee

5

in a decision contrary to the trial court, determined

that the statute in question enhanced, rather than

abridged, 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 a stifling effect upon a newspaper’s editorial free-

dom when it can be anticipated that a reply of unknown

comment to the editorial piust be published, free of

cost, with equal dignity accorded the original editorial.

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.

v. 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.

Certainly, no extensive argument is required to con-

6

vince 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 in

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 monopolistic

practices and only stands for the proposition that the

business of operating a newspaper, like other busi-

nesses, is subject to usual business regulation, includ-

ing 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. As this Court

can clearly see from the Interest of the Amicus section

set out on page two of this brief, the membership

statistics of this amicus demonstrate that the lower

court’s concern with the size and concentration of the

press is unfounded. Those statistics show that above

all the majority of the members of this amicus are

local, community businesses. Not only are the lower

court’s concerns relating to size and concentration of

the press medium unfounded, but also it is submitted

that the thrust of this Court’s decisions in Red Lion

and Associated Press does not relate to size and con-

centration of the press, but declares that a free press

not only prohibits governmental interference but also

prohibits interference with the exercise of a free press

by private interests. In other words, private interests

cannot conspire to interfere with another’s right of

freedom of the press.

-_-

7

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.

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 wire 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

8

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-

paper to publish or exercise its freedom of press and

ability of an individual candidate for office to exercise

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 v.

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

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

refused to publish advertisements submitted to it by a

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.

9

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 statedat’p. 135:

‘Appellant has not convinced us that the Courts

or any other governmental agency should dictate

the contents of a newspaper.”’

The issue presented in this case is fundamental.

The struggle for liberty has historica]ly 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

10

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. Opinion

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

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 shall

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

privilege exercised under the color of public interest

by whoever acts with the authority of government.

Justice Stewart, in a coneurring opinion in

Columbia Broadcasting System, Inc. v. Democratic

National-Committee, — U.S. —, 36 L.Ed. 2d 772, 807-08

(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 broadcast-

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-

pers get Government mail subsidies and a

imited antitrust immunity. The reasoning of the

Court of Appeals would then lead to the conelu-

sion that the First Amendment requires that news-

papers too be compelled to open their pages to

all comers. .

1l

“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.”’

Your amicus is ever mindful of the potential influence

of the press and is 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.

Inherent in a truly free press, however, is the unfet-

tered right to criticize or to advocate. For every pub-

lisher who 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

fiat.

CONCLUSION >

In conclusion, it is respectfully urged that this Court

reverse the decision of the Supreme Court of Florida

which upheld the constitutionality of Florida Statutes,

§ 104.38 and in so doing, reaffirm that the Framers of

the First Amendment to the Constitution did not

intend that the several states should have the power to

12

so intimidate persons exercising their First Amend.

ment right to a free press.

Respectfully submitted,

ArtTuurR B. Hanson

W. Frank STIck ig, JR.

Raupx N. ALBRIGHT, JR.

888 Seventeenth Street, N.W.

Washington, D. C. 20006

Attorneys for Amicus Curiae,

The American Newspaper

Publishers Association

Hanson, O’Brien, BIrRNvey,

STICKLE AND BUTLER

Of Counsel