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

TABLE OF CONTENTS

PAGE

Consent of the Parties 1

Opinions Below, Jurisdiction and Statement 0.00. 2

Constitutional and Statutory Provisions Involved ....... 2

Question Considered in This Brief 3

Interest of Amicus Curiae ..... 3

Argument

A State Statute Compelling Newspapers To Print

Reply Material Which They Choose Not To Pub-

lish Violates The First Amendment

Introduction ....

The Broadcast Experience

Conclusion 12

TasBLE oF AUTHORITIES

Cases

Brandywine-Main Line Radio, Inc. v. FCC, 473 F.2d

16 (D.C. Cir. 1972), cert. denied, 412 U.S. 922

(1973) 4n, 5n

Columbia Broadcasting System, Inc. v. Democratic

National Committee, 412 U.S. 94 (1973) 3,4

Cramp v. Board of Public Instruction, 368 U.S. 278

(1961) 5n

Democratic National Committee v. FCC, 460 F.2d 891

(D.C. Cir.), cert. denied, 409 U.S. 843 (1972) ............ 4n

+4

PAGE

Green v. FCC. 447 F.2d 323 (D.C. Cir. 1971) ............ a

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

NAACP v. Button, 371 U.S. 415 (1963) 5n

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

(1969) 5, 12

ADMINISTRATIVE DECISIONS

Accuracy In Media, Inc., 39 F.C.C. 2d 1011 (1973) -...... 8

Accuracy In Media, Inc., 28 P&F Rapio Rec. 2d 1371

(1973), petition for review docketed sub nom. Na-

tional Broadcasting Co. v. FCC, No. 73-2256 (D.C.

Cir. December 21, 1973) 12n

Columbia Broadcasting System, Inc., 17 P&F Rapto

Rec. 2d 843 (1969) 9

Committee for the Fair Broadcasting of Controver-

stal Issues, 25 F.C.C, 2d 283 (1970) 4n

Committee to Preserve Religious Liberty, 25 F.C.C.

2d 733 (1970) 8

“Hunger in America”, 20 F.C.C. 2d 143 (1969) ............ 7

Gary Lane, 38 F.C.C. 2d 45 (1972), rev. denied, 39

F.C.C. 2d 938 (1973) 8

Joseph McD. Mitchell, 40 F.C.C. 526 (1962) -................... 8

National Broadcasting Co., Inc., 22 F.C.C. 2d 446, set

aside, Petition by National Broadcasting Co., Inc., 25

F.C.C. 2d 735 (1970) 8

The National Coalition on the Crisis in Education, 26

F.C.C. 2d 586 (1970) oe

PAGE

Network Coverage of the Democratic National Con-

vention, 16 F.C.C. 2d 650 (1969) 9

The Port of New York Authority, 25 F.C.C. 2d 417

(1970)

“The Selling of the Pentagon”, 30 F.C.C. 2d 150 (1971) 7

Hon. John F. Thompson, 40 F.C.C. 523 (1962) -........... 8

Voice for Innocent Victims of Abortion, 42 F.C.C. 2d

335, rev. denied, F.C.C. No. 73—1219 (Nov. 29,

1973) 7

Wilderness Society, 31 F.C.C. 2d 729 (1971) ................ 12n

Constitutions, STATUTES AND REGULATIONS

United States Constitution

First Amendment 2

Federal Communications Act

47 U.S.C. § 315(a) (1970) 4n

Florida Election Code

7A Fla. Stats. Ann. ¢ 104.38 (1973) 2

Federal Communications Commission Regulations

47 C.F.R. § 73.123(¢) 4n

47 C.F.R. § 73.123(a) (b) 4n

MISCELLANEOUS

Geller, The Fairness Doctrine in Broadcasting: Prob-

lems and Suggested Courses of Action (1973) ........ 11-12

Hearings on Freedom of the Press before the Sub-

committee on Constitutional Rights of the Senate

Committee on the Judiciary, 92nd Cong., 1st Sess.

& 2d Sess. (1972) 6-7, 9-11

—-

iv

_ PAGE

Note, The First Amendment Overbreadth Doctrine,

83 Harv.L.Rev. 844 (1970) es

Radio Television News Directors Association, Letter to

Federal Communications Commission, July 16, 1973

re: Complaint of Accuracy in Media, Inc., 8330-5,

C2-2233, C2-1135, C11-2174 6

White, The Making of the President 1960 (1961) ........ 6n

IN THE

Supreme Court of the United States

Ocroser Term, 1973

No. 73-797

Tue Miami Heravp Pusiisaine Company,

a Division of Knight Newspapers, Inc.,

. Appellant,

v.

Pat L. Torni11o, Jr.,

; Appellee.

ON APPEAL FROM THE SUPREME COURT OF FLORIDA

BRIEF OF THE NATIONAL BROADCASTING

COMPANY, INC. AS AMICUS CURIAE

This brief is submitted on behalf of National Broadcast-

ing Company, Inc. (“NBC”), as amicus curiae, in support

of the position of appellant, The Miami Herald Publishing

Company, a division of Knight Newspapers, Inc., (Miami

_ Herald) that the judgment entered against .it by the Su-

: preme Court of Florida violates the First Amendment of

_ the United States Constitution.

Consent. of the Parties

_All the parties to the proceedings below have given their

consent to the filing of this brief and their letters of

consent are on file with the Clerk of this Court.

2

Opinions Below, Jurisdiction

and Statement

NBC adopts the material set forth in the equivalent

sections of the brief of the Miami Herald.

Constitutional. and Statutory

Provisions Involved

The First Amendment of the United States Constitution

provides, in part:

“Congtess shall make no law... abridging the free.

dom of speech, or of the press... .”

The principal statute involved in this case is Section

104.38, Florida Statutes, which is part of the Florida Elec-

tion Code:

**§ 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 elec-

tion in any election, or charges said candidate with

malfeasance or ainbennaina’ in office, or otherwise-at-.&

tacks his official record, or gives to another free space

for such purpose, such newspaper shall upon request

of such candidate immediately publish free of cost any

reply he may make thereto in as conspicuous a place

and in the same kind of type as the matter that calls

for such reply, provided such reply does not take up

more space than the matter replied to. Any person or

firm failing to comply with the provisions of this

section shall be guilty of a misdemeanor of the first

degree, punishable as provided in § 775.082 [by im-

prisonment. not exceeding one year] or § 775.083 [by

a fine not exceeding $1,000].”

Question Considered in This Brief

Whether the First Amendment permits the State of

Florida to compel a’ newspaper which publishes material

critical of a candidate for public office to publish, in equal

space and type, a reply by the candidate?

Interest of Amicus Curiae

NBC News, a division of NBO, is a news-gathering or-

ganization which prepares news. and other informational

programming on matters of public interest and concern

which it furnishes to radio and television stations for

broadcast in communities across the country.

The experience of the broadcast press is flatly contrary

to the assumption of the Florida Supreme Court that .

“equal time” and “right of reply” formulations enhance

First Amendment freedoms. This brief is submitted to,

illuminate that experience and thereby to demonstrate the

factual error of the opinion here on review.

<A) ARGUMENT

A State Statute Compelling Newspapers To Print Re-

ply Material Which They Choose Not To Publish Vio-

lates The First Amendment.

Introduction

This landmark case has already led to exhaustive brief-

ing on the part of all concerned, both the parties and

their amici supporters. NBC believes that the case raises

a legal issue far simpler of resolution than is often con-

sidered by this Court. Indeed, if the Miami Herald could”

cite no cases other than Columbia Broadcasting System,

a

Inc. v. Democratic National Committee, 412 U.S. 94 (1973)

and Mills v. Alabama, 384 U.S. 214 (1966) and no text

other than that of the First Amendment itself, we believe

summary reversal would be justified.

We will not seek to add to the legal learning already

before the Court with respect to the First Amendment

itself. However, since the basis of the opinion of the

Florida Supreme Court is that the statute in question

“enhances rather than abridges freedom of speech and

press,” and since broadcasting has had experience with _

analogous, if less draconian rules,* we believe we can con. ~

tribute to the information before the Court on that subject.

4

* The editorializing rule of the Federal Communications Com.

mission (the “Commission”) requires a licensee who has editorially

endorsed or opposed a candidate for public office to offer other

candidates or their spokesmen “a reasonable opportunity” to

“respond over the licensee’s facilities.” (47 C.F.R. § 73.123(c)

(1972)) Neither that rule, nor the Commission’s rules relating

to “personal attacks” or equal time to rebut an actual appearance

by a candidate (47 C.F.R. § 73.123(a), (b) (1972) and 47 U.S.C.

§315(a) (1970)) apply to “bona fide newscasts, bona fide news

interviews and on-the-spot coverage of a bona fide news event

(including commentary or analysis contained in the foregoing

program. .. .). ” Thus, insofar as the Florida statute fails to

exclude from its regulation material printed in the course of

ordinary news coverage, it extends well beyond the directly com-

parable regulations in the broadcast field.

The fairness doctrine of the Commission, unlike the rules set out

above, reaches such general néws coverage insofar as that coverage

presents views on “controversial issues of public importance.” The

courts and Commission alike have rejected, however, the conten-

tion that the doctrine imposes an equal time requirement generally

with respect to the presentation of controversial issues. See (om-

mittee for the Fair Broadcasting of Controversial Issues, 25 F.C.C.

2d 283, 292 (1970); Brandywine-Main Line Radio, Inc. v. FCC,

473 F.2d 16, 46 n. 133 (D.C. Cir. 1972), cert. denied, 412 U.S. 922

(1973) ; Democratic National Committee v. FCC, 460 F.2d 891, 902

(D.C. Cir.), cert. denied, 409 U.S. 843 (1972). — ;'

Apart from illustrating the error of the Florida Supreme Court

reliance on regulation of the broadcast industry as support for

its decision, the demonstration above of the unprecedentedly broad

sweep of the Florida statute suggests another infirmity of the

The Broadcast Experience

Unlike the print press in this country, the broadcast

press has been subject to limited governmental regulation

of content through the mechanisms of various laws and

regulations.

The most prominent of these are the Federal Communi-

cations Commission rules relating to “Equal Time”, “Per-

sonal Attack and Political Editorials” and the Fairness

Doctrine (See note, p. 4 supra). These have been predi-

eated in part on the view that given the limited number of

frequencies available,* such regulation was permissible in

the interest of assuring the existence of “an uninhibited

marketplace of ideas in which truth will ultimately pre-

vail... .” Red Lion Broadcasting Co. v. FCC,'395 U.S. 367,

390 (1969).

In fact, the experience of broadcast journalism is that

all these regulations have not, taken separately or together,

“enhanced” freedom of speech or press. One example of

this may be seen in the fact that it took a suspension of

the equal time regulations to permit television to make

one of its most significant contributions to public knowl-

edge and awareness and to permit the kind of “uninhibited”

programming television is often criticized for not carry-

ing. Only the passage of legislation suspending the equal

statute: its dangerous overbreadth. The statute may well inhibit

newspaper coverage of general news issues unrelated, except in

the most peripheral way, to the coverage of political campaigns or

candidates which the Florida legislature apparently sought to

regulate. Such overbreadth is itself a sufficient ground for reversing

the decision below and holding the Florida statute unconstitutional.

See NAACP v. Button, 371 U.S. 415 (1963); Cramp v. Board of

Public Instruction, 368 U.S. 278 (1961); Note, The First Amend-

ment Overbreadth Doctrine, 83 Harv. L. Rev. 844 (1970).

* But see Brandywine-Main Line Radio, Inc. v. FCC, supra, 473

F.2d at 80. (Bazelon, C.J. dissenting).

6

time rules permitted the broadcasting of the 1960 Kennedy.

Nixon debates, which are often credited with leading to

a larger percentage of voters going to the polls than ever

before or since.*

The effects of governmental presence in thése areas are

felt by all broadcasters, but with particular harshiess by

the smaller ones which are understandably chary about

confrontations with the very government that grants and

considers renewals of licenses. As phrased by the Radice.

Television News Directors Association [RTNDA] in a

recent submission to the FCC:

“Indeed, it is the smaller stations and those stations

less courageous and financially able thaneNBC which

are the most sensitive to the ‘lifted eyebrow’ of govern-

ment. Gradually editorial personnel of the news de-

partments learn what management personnel know—

that displeased government officials and private critics

threaten a station’s continued. existence, or at least

expensive litigation and damage to the station’s good

standing before the Commission.” RTNDA Letter to

FCC, July 16, 1973 re: Complaint of Accuracy in

Media, Inc., 8330-5, C2-2233, C2-1135, C11-2174.

As NBC Washington correspondent Bill Monroe pointed

out in his testimony before the Senate Subcommittee on

Constitutional Rights,

“ .. there are stations that don’t do investigative re-

porting. . .. There are stations that don’t editorialize.

There are stations that do editorialize but don’t say

anything.

* See generally White, The Making of The President 1960, Cha.

11, 14 (1961).

. , aan

7.

“There are stations that do outspoken editorials but

are scared to endorse candidates. My opinion is that

much of this kind of caution, probably most of it, is

due to a deep feeling that boldness equals trouble with

Government, blandness equals peace.” Hearings on

“Freedom of the Press” Before the Subcomm. on Con-

stitutional Rights of the Senate Comm. on the Judi-

ciary, 92d Cong. Ist Sess. & 2d Sess. at 561 (1972).

[Hereinafter cited as “Hearings.”]

Moreover, it is an unfortunate truth that, as Mr. Monroe

observed, “the FCC has no way to reward you for bold,

controversial journalism. All it has is a way to harass

you.” Even a cursory review of the aftermath of many of

broadcast journalism’s “bold, creative” efforts documents

the accuracy of that observation.

For example, each of the following news reports or dis-

cussions on problems in our society led to government

investigations. However, these investigations were not of

the problem exposed but of the broadcaster who chose to

make such a report to the public:

The Selling of The Pentagon Complaint Concerning the

CBS Program “The Selling

of The Pentagon”, 30 F.C.C.

2d 150 (1971)

Hunger in America Complaints Covering CBS

Program “Hunger in Amer-

ica,” 20 F.C.C. 2d 143 (1969)

Abortion Laws Complaint by Voice for In-

nocent Victims of Abortion,

42 F.C.C. 2d 335, rev. denied,

F.C.C. No. 73—1219 (Nov.

- 29, 1973)

Welfare Problems—

“The Battle of Newburgh”

Gambling and Official

Corruption

Conditions in San

Francisco’s Chinatown

Bureaucracy

(Brinkley comment)

Migrant: An NBC White

Paper

Sex Education in Schools

Air Traffic Congestion and

Air Safety

Government Aid to

Education

—

Complaint Under Fairness

Doctrine Requirements by

Joseph McD. Mitchell, 40

F.C.C. 526 (1962)

Complaint Under Fairness

Doctrine Requirements by

Hon. John F. Thompson, 40

F.C.C. 523 (1962)

Complaint by Accuracy In

Media, Inc., 39 F.C.C. 2

1011 (1973)

Complaint by Gary Lane, 38

F.C.C. 2d 45 (1972) rev.

denied, 39 F.C.C. 2d 938

(1973)

FCC Staff Letter to NBC”

dated July 24, 1970

Complaint by the National

Coalition on the Crisis in

Education, 26 F.C.C. 2d 586

(1970)

Complaints Concerning Na

tional Broadcasting Co.,

Inc., 22 F.C.C. 2d 446, set

aside, Petition by National

Broadcasting Co., Inc., 25

F.C.C. 2d 735 (1970)

Complaint by Committee to

Preserve Religious Liberty,

25 F.C.C. 2d 733 (1970)

1968 Democratic Convention Complaints concerning Net-

in Chicago work Coverage of the

Democratic National Con-

vention, 16 F.C.C. 2d 650

(1969)

Poor Peoples’ Campaign Columbia Broadcasting

System, Inc., 17 P&F Rapto

Ree. 2d 843 (1969)

Report on The Port of New Complaint by The Port of

York Authority New York Authority, 25

F.C.C. 2d 417 (1970).

The very fact of such governmental inquiries into news

programming has had its inhibiting effects. The industry

has voiced its concern over what the “right of reply”

formula is doing to the flow of information. For example,

Robert Barron, President of the North Carolina Associa-

tion of Broadgasters, testifying at the hearings before the

Senate Subcommittee on Constitutional Rights, quoted one

station manager as saying:

“«. . now that the fairness doctrine has been ex-

paned [sic] so drastically, we have given serious con-

sideration to taking the editorials off the air, because

of the potential of so many splinter group requests for

air time.’ ”

e s .

Mr. Barron continued:

“Another television manager in a large city said, ‘In

order to try to keep abreast of all the rules and regula-

tions and court decisions these days, I seem to stay on

the phone constantly with our legal counsel in Wash-

ington, And, on many issues, the lawyers throw their

hands up in bewilderment. Our legal fees, because of

ae —

10

these matters, have doubled in the past 2 years. We

live in the constant fear that one day we are going to

be penalized for doing something wrong.’

“A radio station manager in a medium sized town

in ‘Piedmont North Carolina’ said that the recordkeep-

ing is unreasonably burdensome and took an inordi-

nate amount of time away from running his station.

He said he felt he could provide a better service to his

community if he were not required to devote so much

time to the problem of keeping up with FCC and court

rulings.” Hearings at 408.

Thoughtful newsmen have concluded that inhibition is

inherent in the system. “The effect I know on myself,”

said Walter Cronkite, testifying in the hearings before the

Senate Subcommittee on Constitutional Rights. He went

on to say:

“Tt is a matter here of, as insidious as it is, being con-

stantly alert to my own reactions of being influenced

by this threat in being. . . . There is a new element of

awareness of things over here that are extraneous to

the clear objective judgment of that news as I make

the news judgment. I may feel that I have not been

influenced, that I have not been intimidated, in other

words, but in bending over to avoid being intimidated,

I am intimidated. It is kind of a rapidly accelerating

merry-go-round, but I think this is what happens.”

Hearings at 103.

Management representatives, Julian Goodman, Presi-

dent of NBC, Frank Stanton, then President of CBS and

Elmer W. Lower, President of ABC News, expressed

similar concerns. (See Hearings at 145, et seq., 53, et seq.

and 233, et seq.) NBC’s executive head, Julian Goodman,

11

with a 20 year background as a news producer and exec-

utive, testified in part as follows:

“The FCC rule dealing with fairness—its system of

’ regulations called the fairness doctrine—has little in

common with journalism. We are increasingly con-

cerned at the process by which Government judgments

are being made in this field.

“Even more serious than the resulting confusion is

the fact that the FCC is deep into the news area, and

this sort of Government oversight of the journalistic

function does interfere with freedom of press expres-

sion.” Hearings at 147.

Finally, the Florida statute under review assumes that

it will be immediately evident and beyond reasonable dis-

pute when material published by a newspaper attacks the

“official record” of a candidate or office holder or otherwise ©

assails him in a manner sufficient to trigger the reply pro-

visions of the statute. However, the experience of NBC

and other broadcasters makes clear the difficulties—and

dangers—of any governmental effort to define the issues

dealt with in a journalistic piece or the viewpoint taken in

such piece. Henry Geller, former General Counsel of the

Federal Communications Commission, has noted the in-

herent difficulty of “... judging whether a program seg-

ment is for, against, or neutral in regard to a particular

issue. In the gray areas that are bound to arise in this

respect, serious questions arise about the appropriateness

of a government agency making such sensitive program-

ming judgments.” Geller, The Fairness Doctrine in Broad-

casting: Problems and Suggested Courses of Action, at 11

—

12

(1973).* If such “serious questions” as to improper gov-

ernment intrusion and broadcaster inhibition arise with

respect to agency enforcement involving only civil sane.

tions in a regulated industry, how much more serious are

the questions raised by such problems when criminal sane-

tions can be applied.

Conclusion

In certain respects, the First Amendment rights of print

press journalists and those who are engaged in broadcast

journalism have diverged as a consequence of congressional

legislation and this Court’s Red Lion ruling. Questions as

to the further implications of Red Lion for broadcast

journalism are not before this Court today. However, for

the Florida Supreme Court to suggest that the experience

in the broadcast area should lead to a similar—not to say

greater—constriction of the First Amendment rights of

print press journalists is wholly insupportable.

We urge the Court to reverse the decision of the Florida

Supreme Court.

* See e.g., the definitional problems raised before the Federal

Communications Commission in Wildnerness Society, 31 F.C.C.2d

729, 732 (1971) and Accuracy In Media, Inc., 28 P&F Rapio Ree.

2d 1371 (1973), petition for review docketed sub. nom. National

Broadcasting Co., Inc. v. FCC, No. 73-2256, D.C. Cir., December

21, 1973; see also Green v. FCC, 447 F.2d 323 (D.C. Cir. 1971).

13

Dated: New York, New York

February 28, 1974

Respectfully submitted,

Fioyp ABRrams

Dean Rincen

Canim, Gorpon & Rerper

80 Pine Street

New York, New York 10005

(212) 944-7400

Attorneys for National

Broadcasting Company, Inc.

Of Counsel:

Corypon B. Dunnam

Vice President and General Counsel

National Broadcasting Company, Inc.

30 Rockefeller Plaza

New York, New York 10020

Howarp MonpDERER

General Attorney, Washington

National Broadcasting Company, Inc.

1800 “K” Street, N.W.

Washington, D. C. 20006

Barsara G. Herne

Senior Attorney

National Broadcasting Company, Inc.

30 Rockefeller Plaza

New York, New York 10020