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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0328%3A19

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1974
- **Citation:** 418 U.S. 241

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0328%3A19. Public record. Not legal advice.