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

Supreme Court brief1974

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APR 3

IN THE

SUPREME COURT OF THE UNITED beeen

OCTOBER TERM, 1973

No. 73-797

THE MIAMI HERALD PUBLISHING COMPANY

a division of

KNIGHT NEWSPAPERS, INC.,

Appellant,

PAT L. TORNILLO, JR.,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF FLORIDA

BRIEF OF THE NATIONAL CITIZENS

COMMITTEE FOR BROADCASTING,

AMICUS CURIAE, IN SUPPORT OF AFFIRMANCE

ALBERT H. KRAMER

1346 Connecticut Ave., N.W.

Washington, D.C. 20036

Of Counsel: L THOMAS R. ASHER

MATTHEW B. BOGIN Media Access Project

MARIA E. MALDONADO 1910 N Street, N.W.

Student Interns Washington, D.C. 20036

Media Access Project FRANK W. LLOYD, Ill.

SHELLEY HIGGINS _ Citizens Communications Center

Student Intern 1914 Sunderland Place, N.W.

Citizens Communications Washington, D.C. 20036

Center Attorneys for Amicus Curiae,

| National Citizens Committee

April 1, 1974 for Broadcasting

WV PRINTING CO. @ (202) 393-0625

Il.

Ill.

INTEREST OF AMICUS CURIAE

STATEMENT

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(i)

TABLE OF CONTENTS

THE CONSTITUTIONAL IMPERATIVE IN

FAVOR OF THE WIDEST POSSIBLE DIS-

SEMINATION OF VIEWS ON PUBLIC.

ISSUES IS PARTICULARLY COMPELLING

IN THE ELECTORAL ARENA AND HAS

BEEN SO RECOGNIZED BY BOTH

COURTS AND LEGISLATURES .......... ‘

THE HERALD AND ITS AMICI HAVE

FAILED TO DEMONSTRATE THAT THE

FLORIDA LEGISLATURE IS PROHIBITED

BY THE FIRST AMENDMENT FROM

BALANCING BETWEEN COMPETING

FIRST AMENDMENT INTERESTS. ...........

A. There is No Direct Judicial Precedent

‘Holding That the First Amendment Bars

A Legislative Governmental Requirement

That the Media Must Print Specified

vaya Ee eres a a a

B. The Herald and Its Amici Have Miscon-

strued the Meaning of Red Lion and CBS,

As Well As the Florida Court’s Citation of

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es 6.) Oe 044 5 SA OO SSE OO Oe eee 6 Ores

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(ii)

Page

C. Clearly Defined Legislative Requirements

that Candidate Information Be Published

Need Not Impose A “Chill” On Vigorous

Newspaper Coverage of Electoral Issues ..... . . 31

1. The asserted chilling effect is too

speculative to support arguments of

legislative unconstitutionality ..:>........., 32

2. The media's traditional “cry wolf”

arguments should be rejected here... ...... 33

3. Even If The Reply Statute Creates An

* Impermissible Restraint On News-

papers’ Free Press Rights, A Flat

Constitutional Ban On Any Legislative

Publication Requirement Is Wholly

re se er 39

D. The Media’s Argument That Any Com-

pelled Access Will Open the Floodgates of

Government Regulation of Newspapers

Has No More Validity Than Their “Chill”

ee er ee 4!

IV. THE WELL ESTABLISHED PRINCIPLES

‘ OF JUDICIAL DEFERENCE TO LEGISLA-

TIVE JUDGMENTS AND FEDERALISM

REQUIRE THAT THE COURT PERMIT

LEGISLATURES MAXIMUM. MANEUVER.

| ABILITY FOR RESOLUTION OF THE

COMPETING FIRST AMENDMENT

POLICIES AT ISSUE IN THIS CASE. THAT

COURSE WOULD PERMIT THE WIDEST

POSSIBLE BREATHING SPACE FOR

FIRST AMENDMENT VALUES ..............-. 44

A. The Legislature May Validly Determine

That There is a Legitimate First Amend-

ment Interest in Publication of Certain

OR ee 44

(iii)

B. Legislatures Should Be Accorded Manev-

verability in Making Judgments Designed

to Further First Amendment Values, and

Their Decisions Should Be Accorded

C. Proper Respect for the Role of the States

In The Federal System Dictates Judicial

Restraint in Review of State Statutes

D. The Court Should Exercise Great Re-

tional Principles Converging In This Case... .. . 50

TABLE OF CITATIONS

Cases:

Abate v. Mundt, 403 U.S. 182 (1971)... .--- 6 ee ee eens $2

American Civil Liberties Union, Inc. v. Jennings, 366

F. Supp. 1041 (D.D.C. 1973)... --- ee eee eee 22,23,28

Associated Press v. United States, 326 U.S. 1

CROES) cw cc cc cc cscs eeee seco eenes 8,12,14,16,19

Associated Press v. Walker, 388 U.S. 130 (1967) .....----- 17

Associates & Aldrich Co. v. Times Mirror Co., 440

F.2d 133 (9th Cir. 1971). ee eee ee eee 24

Avins v. Rutgers, 385 F.2d 151 (3rd Cir. ee 24

Baker v. Carr, 369 U.S. 186 (1962)... 2... eee eee eee 51

Banzhaf v. F.C.C., 405 F.2d 1082 (D.C. Cir., 1969) ..... 41

Beckley Newspaper Corp. v. Hanks, 389 US. 81

WORT oka Kwan cansn tess eenenceck cueeness ‘x 17

Branzburg v. Hayes, 408 U.S. 665 (1972) .... 14,16,32,33,43,49

Brock v. Hardie, 114 Fl. 670 154 So. 690 (1934) ......---- 8

(iv)

Brown v. Murphy, 355 F. Supp. 416 (S.D.N.Y.,

aos os on bbe Wh 0 a OIA oo ac sc 25

Canon v. Justice Court of Lake Valley Judicial

. District of Eldorado County, 39 Cal Rptr. 228,

IE cc 04h a Ba ba 8 6 Ween ks oa ous 18, 2)

Chicago Joint Board, Amal. Cloth. Workers v.

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

1970) cert. denied 402 U.S. 973 (1971)... ........... 24

Citizen Publishing Co. v. United States, 394 U.S. 131

NS 6s ow ca & oo bw bas a OS 64 kA Oe OCR aba es 40

Colegrove v. Green, 328 U.S. 549 (1946)... 2... ee eee 51

Columbia Broadcasting System v. Democratic Na- pgss,

tional Committee, 412 U.S. 94 (1973) ..... 1030314448

Crossman v. Lurman, 192 U.S. 189 (1904) .............. 43

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) ...... 17

Donaldson v. Read Magazine, Inc., 333 U.S. 178

Sh aac be on a a a 5 4s See hn ce basen 28

Farmer’s Educ. & Coop. Union v. WDAY, 360 U.S.

IE aa a Wa oo bk es CN 188 8 ch ceeds 40

Greenbelt Publishing Ass’n. v. Bresler, 398 U.S. 6

GW ics eda hin bade ese ime Red ee i cvineea 17

Heart of Alabama Motel, Inc. v. United States, 379

ee So re yore ere 48

Lewis Publishing Co. v. Morgan, 229 U.S. 288

a rr ee ee ee et ae 27,39,41,44,45

Linn v. Plant Guard Workers, 383 U.S. 53 (1966) .......... 17

Mack v. Costello, 32 S.D. S11, 143 N.W.950(1913) ...... 46

(y)

Page

Miller v. California, 413 U.S. 18 (1973) 2. 5 ee eee eees 49

sails v. Alabama, 384 US. 214(1966) ......--.--- 10:14,22, 23, 2¢

Jy Se

ee Te ee 48"

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) ......----- 18

Mt. Mansfield Television, Inc. v. F.C.C. 442 F.2d 470

ee Oe ee 35,41

“National Association ‘of Theatre Owners v. F.C.C.

(DC. Cir. 1969)... ccc cece ener e es eeeeeces 41

National Broadcasting Co. v. United States, 319 U.S.

IGOCIDET) ow www cece tence ee neerncecenens 41

New York ‘Times Co. v. Sullivan, 376 U.S. 254

| ne ee oe 12,16,17,28

New York Times Co. v. United States, 403 U.S. 713

ONS i phe ee ni nces cdbgs kee ba sirens eres vas 16

of the Justices to the Senate, 298 N.E.2d

a WONEE 5a as nnn cnewse dass seviness cs 26

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) ....---- 49

Pennekamp v. Florida, 328 U.S. 331 (1946)....-------- 6,12

Pickering v. Board of Education, 391 U.S. 563 (1968) .....- 17

Aittsburgh Press Co. v. Pittsburgh Commission on

Human Relations, 413 U.S. 376 C2STS) ow scene weiss 42,46

Radio Television News Directors Ass'n. v. United

States, 400 F.2d 1902 (7th Gir, FOUTS <0. 0 i vs oc tassee 34

Red Lion Broadcasting Company v. F.C.C., 395 US. passim

SEP CIDED ok nn kncccencevess 402834353637 44

Resident Participation of Denver, Inc. v. Love, 322 F.

Supp. 1100(D. Colo. 1971)... +--+ +e eee eee: 24

Reynolds v. Sims, 377 U.S. 533 (1964) ..-----+++-+5> 18,52

(vi)

St. Amant v. Thompson, 390 U.S. 727 (1968)

Schaefer v. Thompson, 240 F. Supp. 247 (D. Wyo.

Schneider v. State, 308 U.S. 147 (1939)

South Carolina v. Katzenbach, 383 U.S. 301 (1966)

Southern Railway Co. v. United States, 222 U.S. 20

Talley v. California, 362 U.S. 60 (1960)

Time, Inc. v. Hill, 385 U.S. 374 (1967)

Time, Inc. v. Pape, 401 U.S. 279 (1971)

United States v. Scott, 195 F. Supp. 446 (D.N.D.,

Wesberry v. Sanders, 376 U.S. 1 (1964)

Whitcomb v. Chavis, 403 U.S. 124 (1971)

Yablonski v. United Mine Workers of America, 305 F.

Supp. 868 (D.D.C. 1969)

Yick Wo v. Hopkins, 118 U.S. 356 (1885)

Younger v. Harris, 401 U.S. 37 (1971)

_—

(vii)

United States Constitution and Statutes:

ad MRUNER . ow vane ncnseranessteeseeer® passim

pUSC. Sec. 431 ef 80g. «2... e seen cece seen e settee 20

Newspaper Preservation Act, 15 U.S.C. Sec. 1801

I in vk nine 5sc< wauen es oe a8A SOA NTS se

RO Wie, WONT wo cnn wenn ss ten ente seer er eens’ 49

ee eee ee ca

ee Web GOED onc. 55 sew anen nn cimnsnseesse ss

GE Wi IND own cnn ses vesenenseten eset

Civil Rights Act of 1964, Title VII, 42 U.S.C.

SRGUNDE ATER 5x2 snsesesenssesressseret et

Communications Act of 1934, 47 U.S.C. Sec. 315....--++--

Federal Election Campaign Act of 1971, Title I,

§ §102 et seq., 103(b), 104,47 U.S.C. 801 et seq. os

Renewal of Broadcast Licenses, 44 F.C.C.2d405 ....---->+>

WE BUNT won wos sss ncesesse to senne ett”

GRO WIE, «5 xo un ener tents eesresonse te?”

MEE WIDRR «oc oxi rts ess eee ener ees?"

SE BIRD oo xn nec tsnss certs reteset ree”

29 Fed. Reg. 10416 (1964) ...-----eeseccrctttr tt

Miscellaneous:

Barrett, Survey of Broadcast Journalism, ee

Broadcasting, February 25, 1974. ..-------+sssscrrctte

Broadcasting, July 11, 1973 ©... ---eeeereree rst

Brown, Television: The Business Behind the Box

BO cis ba cise newk ac banee cues ce eee ert”

(viii)

Columbia Broadcasting System Brief in Red Lion

Broadcasting Co. v. F.C.C., 395 U.S. 367 .......... 35,36

ee ft ee 8

Friendly, Due to Circumstances Beyond Our Control

SON ks es ee ced oo ee bs ee ca kk 37

Joint Petition for Writ of Certiorari of Radio Tele-

vision News Directors Ass’n, Columbia Broad-

casting System, National Broadcasting Co. in

We hy A I ok nh Soe oo ok 8s eae ss 34

er re ae 43

Note “Reapportionment”, 79 Harv. L. Rev. 1228

| Se ee err ee are re ere 52

Radio and Television News Directors Association

Brief in Red Lion Broadcasting Co. v. F.C.C., 395

U.S. 367 (1969)

Report of the Senate Committee on Commerce on

S.382, Federal Election Campaign Act of 1971

No. 92-96, 92nd Cong., Ist Sess.,(1971) ............ 21

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

No. 73-797

THE MIAMI HERALD PUBLISHING COMPANY

a division of

KNIGHT NEWSPAPERS, INC.,

Appellant,

PAT L. TORNILLO, JR.,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF FLORIDA

BRIEF OF THE NATIONAL CITIZENS

COMMITTEE FOR BROADCASTING,

AMICUS CURIAE, IN SUPPORT OF AFFIRMANCE

The National Citizen‘ Committee for Broadcasting

submits this brief as amicus curiae in support of

affirmance of the judgment of the Supreme Court of

Florida, entered on July 18, 1973, rehearing denied,

October 10, 1973, which judgment upheld the constitu-.

tionality of Section 104.38 of the Florida Statutes. Both

parties to this action have given their written consent to

the fi.ing of this brief pursuant to Supreme Court Rule

42(1). Copies of the letters of consent of the parties have

been lodged with the Clerk of the Court.

INTEREST OF AMICUS CURIAE

The National Citizens Committee for Broadcasting

(NCCB) is a non-profit membership corporation devoted

to assuring the public responsiveness of the broadcast

media. NCCB has received financial support from about

16,000 Americans. It achieves its objectives by partici-

pating in the regulatory processes affecting media and

engages in a wide array of educational and other activities

to assist others to do so.

NCCB is not committed to any ideology; its commit-

ment is to open media processes that assure that the

public can hear a diversity of ideas in the media. NCCB

has several concerns with regard to this case. The First

Amendment principles involved in this case can poten-

tially have a major impact on the public’s right to obtain

access to diverse views. The sweeping and absolute nature

of the rights and principles urged upon this Court by the

Herald and its amici supporters leave the public with

virtually no recourse if the media fail to provide a

spectrum of viewpoints or adequate information with

regard to the electoral processes. Finally NCCB is

concerned because of the implication, contained in the

briefs of several amici who have filed in support of the

Herald, that the Court should use this occasion to in

some manner undermine, or at least do nothing to

reaffirm, the fairness doctrine as applied to the broadcast

media, which NCCB regards as a bedrock of the public’s

' First Amendment right to hear diverse views.

STATEMENT

This case challenges the constitutionality of Section

104.38, Florida Revised Statutes (hereafter “the Reply

Statute”). This issue was presented to the court below in

the context of a real and substantial legal controversy,

not in the context of some hypothetical or threatened

application of the statute. Accordingly, we summarize

the facts.

1. The Statute

As part of a comprehensive statutory scheme designed

to assure fairness in the electoral process, the State of

Florida in 1909 and 1913 enacted a number of statutes,

including the predecessor of the Reply Statute.’ The

Reply Statute, as it is before this Court, provides as

/ follows:?

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 malfeasance 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

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

' Appendix (A.) 18-19.

24.47.

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7 = =e

comply With the provisions of this section shall be

ty of a misdemeanor of the first degree,

punishable as provided in §775.082 or §775.083.

2. The Editorials and Replies.

On September 20 and 29, 1972, the Appellant Miami

Herald tan editorials vigorously attacking Appellee

Tornillo’s candidacy for the Democratic Party’s nomina-

tion for a seat in the Florida legislature. The first editorial

characterized Tornillo as the ‘“‘Czar” of the Classroom

Teachers Association (CTA) who led a teacher’s strike

which the editorial called “‘an illegal act against the public

interest.” It concluded:

We cannot say it would be illegal but certainly it

would be inexcusable of the voters if they sent Pat

Tornillo to Tallahassee to occupy the seat for

District 103 in the House of Representatives.?

The.second editorial accused CTA of illegal activities in

supporting Tornillo’s candidacy, and _ characterized

Tornillo as the CTA’s ‘“‘acerbic prexy”* who “[f] or years

now ... has been kicking the public shin to call attention

to his shakedown statesmanship.’”*

On September 27 and 30, 1972, Tornillo submitted to

the Herald written replies to the respective editorials,

requesting that they be printed in accordance with terms

of the Reply Statute. Each reply statement was an effort

to list the actions taken by both CTA and Tornillo to

comply with the laws while seeking to safeguard the

€conoMic interests of teachers and the educational

interests of the public. Tornillo’s September 27 statement

concludes:

7A. $.

“y

Bel

Unfortunately, the Herald dwells on past history

and ignores CTA’s totally legal efforts of the past

four years.

We are proud of our record.5

Tornillo’s September 30 statement concludes:

We have attempted to obey all the laws of the state,

not intentionally violating any, while continuing our

efforts to alert the public to the impending financial

crisis facing the schools.

We have, however, also retained our belief in the

right of public employees to engage in political

activity and to support the candidates of our choice,

as is the right of any citizen in this great country of

ours.

Aye, there’s the rub.®

The Herald refused to print either reply, in whole or in

part.

3. The Litigation

“On October 1, 1972, Tornillo filed a civil complaint in

the Dade County Circuit Court seeking money damages

and a mandatory injunction that the Herald publish his

replies, contending that he

has neither the means nor the opportunity of

responding to the attacks upon him by the Defend-

ant save through the methods permitted by the .

Legislature in its adoption of F.S. 104.38.’

5A. 6-7.

SA. 10.

"A. 3

He further alleged that the Herald’s attack on him had

“been deliberately made in close proximity to this

election date [the election was to be held on October 3,

1972, just four days after the Herald’s second editorial}

in order to make it impossible for [Tornillo] to reply in

an adequate fashion,”* so as to materially reduce his

chances to secure the nomination.

The trial court held the Reply Statute facially uncon-

stitutional on the grounds that it (1) violates the First

Amendment by imposing censorship on the press? and

(2) is both overbroad and vague in its terms.'®

On appeal, the Supreme Court of Florida reversed,"

relying on opinions of this Court stressing the First

Amendment’s paramount interest in the free flow of

information to the electorate. “(U]nderlying First

Amendment guarantees there is a broad societal interest

in the ‘free flow of information to the public.’!? The

court observed “that the First Amendment guarantee is

‘not for the benefit of the press so much as for the

benefit of us all,,’'* and that “Freedom of the

press ... is not an end in itself but a means to the end of

a free society.”'* The Réply Statute ‘tis designed to add

to the flow of information and ideas,”'* by assuring that

* Ibid.

° A. 12-13.

A. 13-14.

"A. 15-17. |

"he 2. }

134. 19-20, quoting Time, Inc. v. Hill, 3 U.S. 374, 389

(1967). |

- 4 A. 20, quoting Pennekamp v. Florida, 328US. 331 (1946).

a “reader gets the whole story, rather than half of it.”’®

A statute which assures that readers will not be

“blacked out’ as to the other side of a controversy,””

the court stated, “‘does not deny to the owners of the ©

instruments of the newspaper industry any right of

expression.”"* The Reply. Statute imposes no “prior

restraint, since no. specified newspaper content is

excluded.’”'®

These considerations are particularly applicable to the

Reply Statute, which is designed to achieve the bedrock

First Amendment objective of a “fully informed electo-

rate.”2° The statute “‘was enacted not to punish, coerce

or censor the press but rather as a part of a centuries old

legislative task of maintaining conditions conducive to

free and fair elections.”* The court perceived a particu-

lar need for such regulation in light of “the growing

concentration of the ownership of the mass media into

16 A, 33.

1” rid

194.22 (emphasis in original). The court later cited Rosen-

bloom v. Metromedia, 403 U.S. 29, 47 (1971):

If the States fear that private citizens will not be able to

respond adequately to publicity involving them, the solution

lies in the direction of ensuring their ability to respond,

rather than in stifling public discussion of matters of public

concern. :

A. 26.

wa. 17.

214.19 (emphasis in original).

fewer and fewer hands, resulting ultimately. in a form of

private censorship.” __

The Florida Supreme Court rejected the void for

vagueness argument. The court recognized that a statute

which was “ ‘so vague that men of common intelligence

must necessarily guess at its meaning and differ as to its

application violates the first essential of due process of

law.’ ”’?? But it also stated its policy of giving “‘a statute,

if reasonably possible, a construction supporting its

constitutionality.”** In accordance with this policy, the

court narrowed the definition of “any reply” to mean a

which is wholly responsive to the charge made in

the editorial or other article in a newspaper being

replied to and further that such reply will be neither

libelous nor slanderous of the publication. nor

anyone else, nor vulgar or profane.?*

As so construed, the court in a per curiam opinion found

the statute sufficiently clear to withstand constitutional

224° 22. The court went on to cite this Court’s opinion in

Associated Press v. United States, 326 U.S. 1, 20 (1945).

We would ask the Court to take judicial notice of the fact that

metropolitan Miami has but two English language daily news-

papers, the Herald and the News, except on Sundays when they

publish a joint edition. In 1972, the Herald, a morning paper, had

average daily circulation of 354,408, while the News, an evening

paper, had average daily circulation of 78,119. Thus, the Herald

had about 82% of the market. Editor-Publisher Yearbook—1973.

3 A. 29, quoting Brock v. Hardie, 114 Fla. 670, 154 So. 690,

694 (1934). |

* A. 30.

2S Ibid.

challenge. A concurring opinion, in which five other

justices joined, was filed by Justice Roberts.?7 One Jus-

tice dissented.” *

On rehearing,?® the court again rejected the charge that

the statute was unconstitutionally vague.°°

This appeal followed.

ARGUMENT

= . INTRODUCTION

This case presents a unique issue, one qualitatively

different from any previously ruled upon by this Court.

Contrary to the assertions of the Herald and a number of

the amici supporting it, there is no established prece-

dent that controls this case. At best, prior decisions may

provide analogies or guidelines. But they provide no clear

% a. 31.

27 A. 33.

28 A. 37.

4. 39.

%1 found the statute, as construed, similar to two Florida

retraction statutes, one of which had earlier withstood constitu-

tional challenge, and under which newspapers in the state had

operated for a number of years without any apparent difficulty. A.

41-43. It recognized that it was under a duty to be especially

cautious in construing the statute because of its penal nature. But

the court found that the instant proceeding was civil in nature, and

while the statute might fail to pass constitutional muster on void

for vagueness grounds in a criminal prosecution, the penal

provision was severable from the remainder of the statute without

affecting its viability as a civil law. A. 39-41.

answers to the legal question before the Court. Accord-

ingly, it is important to clarify at the outset what is and

what is not involved in this case.

This Court has not previously confronted a constitu-

tional challenge to a legislative effort to balance the

following two competing First Amendment interests:(1)

a newspaper’s right to determine what it will not print

and (2) the voting public’s right to receive information

from the widest possible range of sources, specifically,

the electorate’s right to be fully informed on electéfal

issues and the views of candidates.

Only three decisions of the Court have touched upon

this delicate matter. Red Lion Broadcasting Co. y.

F.C.C.,*! Columbia Broadcasting System, Inc. v. Demo-

cratic National Committee,** and Mills v. State of

Alabama.** While each case is instructive, none is

controlling.

Both Red Lion and CBS involved government regula-

tion of broadcasting, not the print media. Red Lion

upheld the Federal Communications Commission’s per-

sonal attack doctrine—which is similar to, but far broader

than, the Reply Statute—in the face of a constitutional

challenge by broadcasters. That challenge was virtually

identical to the challenge here offered by and on behalf

of the print media. In CBS, the Court rejected arguments

that the First Amendment compels broadcasters to sell

time to persons wishing to discuss controversial issues.

Since broadcasting is subject to comprehensive govern-

31 395 U.S. 367 (1969).

32412 U.S. 94 (1973).

33 384 U.S. 214 (1966).

mental regulation, neither of these decisions is dispositive

here.**

CBS is distinguishable from the instant case on another

ground, as well. There, the complainants asserted a right

to speak flowing directly from the First Amendment

even though there was no statute or regulation conferring

such a right. In rejecting the asserted right, the Court

followed the Red Lion approach of deferring to legisla-

tive judgment (as the Herald herein contends the Court

cannot) and relied upon the existence of the fairness

doctrine, as it had been upheld in Red Lion, to

adequately safeguard the public’s First Amendment right

to be adequately informed.

While Mills did involve a legislative attempt to regulate

the print media’s discussion of electoral matters, the

Alabama statute there in issue sought to punish a

newspaper's publication of an editorial position about

electoral matters. It involved a legislative effort to

prohibit publication, to restrict information available to

the electorate. In contrast, the Reply Statute seeks the

opposite objective, to expand the views reaching the

voters, and leaves unfettered the newspaper’s right to

publish anything it wishes. |

Ordinarily, the two First Amendment interésts at issue

in this case—an unfettered press discretidn to choose the

1 material it will and will not print and the achievement of

7 an informed electorate—coincide. Indeéd, it is the core

sad — no position on the technical, physical and

economic differences between broadcast and print media which

might warrant different governmental regulatory approaches. The

record is barren of facts or analysis of this question. The Court

need not and, we “urge, should not on this record reach that

question. See, infra at 29-31, 38-39.

assumption of the First Amendment that unrestricted

speech and an unfettered press will create a marketplace

of ideas in which viewpoints are exchanged and are as |

open to acceptance or rejection as freely. as are commodi-

ties in the commercial marketplace.** Thus, as this Court

has often stressed, and as the court below recognized,

the First Amendment guarantee is “not for the benefit of

the press so much as for the benefit of us all.’’*”

However, the realities of communication in a modem,

industrialized society vest in the mass media, especially

those which, like the Miami Herald, enjoy monoply

positions, the power to exclude valuable information

from the public as well as the power to inform it.*

When the danger of such exclusion is great, and the injury

it can cause to the First Amendment interest in an

informed electorate is serious, legislative efforts to strike

a reasonable, non-censoring balance have been accorded

great deference by the Court. That is the teaching of both

Red Lion and CBS.

35 Associated Press v. United States, 326 U.S. 1, 20 (1945); New

York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964).

3% A. 19-20.

37 Time, Inc. v. Hill, 385 U.S. 374, 389 (1967).

38In Pennekamp v. Florida, 328 U.S. 331, 365 (1946)

(Frankfurter, J., concurring), this Court emphasized that the power

of the press must be tempered with responsibility:

“.. the public function which belongs to the press makes it

an obligation of honor to exercise this function only with the

fullest sense of responsibility. Without such a lively sense of

responsibility a free press may readily become a powerful

instrument of injustice.”

Red Lipn sustained the constitutionality of the “*fair-

ness doctrine”’®® as applied to the broadcast media.*° In

doing so the Court deferred to the legislative reconcilia-

tion of the two First Amendment values, stressing that

the public’s right to know is paramount. Again in CBS

the Court was faced with an asserted confrontation

between these same two First Amendment values. The

Court reaffirmed its commitment to the public’s right to

know. But it refused to inject constitutional imperatives,

deferring again to the legislative judgment that the

fairness doctrine adequately served both of the com-

peting First Amendment interests.*"

39Communications Act of 1934, Section 315, as amended, 47

U.S.C. §315. See Applicability of the Fairness Doctrine in the

Handling of Controversial Issues of Public Importance. 29 Fed.

Reg. 10416 (1964).

4 We cite Red Lion at this point only for the proposition that

there can exist a tension between these First Amendment values

and that legislative efforts to safeguard the public’s right to know

will be afforded great deference. As stated above, supra at 9-10,

Amicus believes there is no controlling precedent on the issues

presented by the instant case. And as discussed below, infra

at 28-30, Amicus is not attempting to assert that newspapers

are or are not on the same regulatory footing as broadcasters, an

issue not presented by this case. Further, and as is discussed more

fully below, infra at 28-29, Amicus does not believe, as the

Herald does believe (Herald Br. at 20-24), that the decision of the

court below turned on the applicability to newspapers of the

“scarcity” rationale of Red Lion.

4! Essentially the Court found that the public right to know was

satisfied by the “trustee” role conferred upon licensees by the

Communications Act of 1934.

Red Lion and CBS are important not only because

they illustrate the issue involved in this case; they

illustrate what is not involved in this case. This case does

not involve a legislative decision to advance a general

police-power interest, such as the need for clean streets,

in a way which might incidentally encroach on free

speech rights.*? Nor does it involve an effort to apply a

general regulatory law, such as the antitrust laws,*? or

general legal obligation, such as the duty to appear before

grand juries,“* to the press. Thus, the Court is not

required to balance public speech interests against govern-

mental non-speech interests in order to determine

whether the latter are sufficiently strong and compelling

to outweigh the former. Here the task is far more

difficult; for the legislature has had to weigh, and this

Court must review and weigh the value of, one speech

interest against another: the right of newspapers to

exclude versus the right of the public to hear all essential

points of view.

In this regard, the Herald’s contention that Florida’s

interest in fair elections, or any other state interest, is not

sufficiently compelling to warrant upholding the Reply

Statute*S is not responsive to the issues in this case.*®

*? Compare Schneider v. State, 308 U.S. 147 (1939).

‘3 Associated Press v. United States, 326 U.S. 1 (1945).

“ See Branzburg v. Hayes, 408 U.S. 665 (1972).

45 Herald Br. at 24-29.

“Mills v. Alabama, supra, contained an analysis of First

Amendment rights in the context of elections. However, the only

First Amendment right there in issue was the newspaper’s interest

in being free to publish. The countervailing state interest which

Alabama’s Supreme Court had held to justify the legislative

publication prohibition was “the State’s police power.” 384 U.S. at

The state’s police power over elections is not the only

issue here; the primary issue is Florida’s legislative

judgment reconciling First Amendment interests.

As the Court below observed, the First Amendment

interest in an informed electorate, the public’s need to

know and hear diverse views—the First Amendment

interest emphasized by this Court in Red Lion—“is most

critical during an election campaign.””*”

THE CONSTITUTIONAL IMPERATIVE IN FAVOR OF

THE WIDEST POSSIBLE DISSEMINATION OF VIEWS

ON PUBLIC ISSUES IS PARTICULARLY COMPELLING

IN THE ELECTORAL ARENA AND HAS BEEN SO

RECOGNIZED BY BOTH COURTS AND LEGISLA-

It is well established that the core purpose of the First

Amendment eryered “to secure ‘the widest possible

dissemination of inforthation from diverse and antagonis-

216. For this reason, and perhaps also because the Alabama statue

was designed to restrict speech, the Court engaged in no balancing

of First Amendment interests.

In contrast, the court below discussed the state’s authority to

generally regulate elections (A. 19) only after discussing the

bedrock First Amendment interest in an informed electorate and

pointing out that it was to achieve such an informed electorate that

the Reply Statute was primarily directed. A. 17-18. See text

following this note.

474 18. Indeed, it is somewhat anomalous to even speak of the

state’s police power over elections unless the precondition for

meaningful elections—an informed electorate—has been met. And

this precondition is the fundamental precept of popular govern-

ment. See A. 17-18, quoting James Madison.

tic sources’ ’’** and not to protect the private interests of

newspapers. As Justice Frankfurter stated in Associated

Press v. United States, supra:*®

I find myself entirely in agreement with [the lower

court’s opinion by] Judge Learned Hand that

“neither exclusively, nor even primarily, are the

interests of the newspaper industry conclusive; for

that industry serves one of the most vital of all

general interests: the dissemination of news from as

many different sources, and with as many different

facets and colors as possible. That interest is closely

akin to, if indeed it is not the same as, the interest

protected by the First Amendment; it presupposes

that right conclusions are more likely to be gathered

out of a multitude of tongues than through any kind

of authoritative selection. To many this is, and

always will be, folly; but we have staked upon it our

all.’’*5°

And as Chief Justice Burger pointed out in his

dissenting opinion in New York Times Co. v. United

States,5' in arguments before this Court, thé newspapers

themselves successfully resisted the government’s attempt

to enjoin publication of the “Pentagon Papers” by

asserting “‘the public ‘right to know’.”

To assure an adequate flow of information to the

public, this Court has steadily broadened the permissible

arena of public debate by imposing limitations on the

application of libel laws to the press. The Court stated in

*8New York Times Co. v. Sullivan, supra, 376 U.S. at 266.

(1964). |

4326 U.S. at 28, (concurring opinion), quoting 52 F.Supp. 362,

372 (1943).

See also Branzburg v. Hayes, supra, 408 U.S. at 726-27.

(dissenting opinion of Justice Stewart).

*! 403 U.S. 713, 749 (1971).

_ —_—

New York Times Co. v. Sullivan that attempts to impose

libel sanctions must be considered

against the background of a profound national

commitment to the principle that debate on public ©

issues should be uninhibited, robust, and wide-open,

and that it may well include vehement, caustic, and

sometimes unpleasantly sharp attacks on govern-

ment and public officials.*?

The cases that followed New York Times Co. v.

Sullivan have re-emphasized the public’s interest in

securing information about events of public or general

interest,°? or “public figures,”** or public officials.** It

is no accident that most of these cases have confronted

this Court with limitations on speech that impeded the

flow of information about public officials. And it is

similarly no accident that the Court has used its strongest

language in protecting the flow of information in cases

that have involved public officials or candidates for

public office. The Court has recognized that the primary

First Amendment goal is to assure an informed elector-

ate:

52376 U.S. at 270.

536, Rosenbloom v. Metromedia, 403 U.S. 29 (1971). Cf,

Pickering v. Board of Education, 391 U.S. 563 (1968); Time, Inc.

y. Hill, 385 U.S. 374 (1967).

“Fg Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967);

Associated Press v. Walker, 388 U.S. 130 (1967); Linn v. Plant

Guard Workers, 383 U.S. 53 (1966).

SE g., Time, Inc. v. Pape, 401 US. 279 (1971); Greenbelt

Publishing Assn. v. Bresler, 398 U.S. 6 (1970); St. Amant v.

Thompson, 390 U.S. 727 (1968); Beckley Newspapers Corp. v.

ie 389 U.S. 81 (1967); Rosenblatt v. Baer, 383 U.S. 75

1966).

{I]f...the First Amendment was “fashioned to

assure the unfettered interchange of ideas for the

bringing about of political and social changes desired

by the people,” Roth v. United States, 354 US.

476, 484, then it can hardly be doubted that the

constitutional guarantee has its fullest and most

urgent application precisely to the conduct of

campaigns for political office.*®

The reason why the Court has focused on an informed

electorate is plain. It has long been recognized’ that

protecting the integrity of the electoral processes lies at

the very heart of our democratic system of government

and the liberties which the Constitution is designed to

protect.5”? But for the process to function, citizens must

not only be given free access to the ballot box, but must

also be armed with sufficient inforniation about the

candidates and the issues to make intelligent, informed

decisions.

The purpose of the Florida Reply Statute is to provide

just such information, and it must be read in that light—in

the light of the electorate’s right to know. The imple-

mentation of this First Amendment interest has been

recognized as conferring greater power upon the state

than its ordinary police power.*® +

57 Reynolds v. Sims, 377 U.S. 533 (1964); Wesberry v. Sanders,

376 U.S. 1 (1964); Yick Wo v. Hopkins, 118 U.S. 356 (1885).

Compare Canon v. Justice Court of Lake Valley. Judicial

District of Eldorado County, 39 Cal.Rptr. 228, 393 P.2d 429 (Sup.

Ct. of Calif. 1964) and United States v. Scott, 195-F. Supp. 446

(D.N.D., 1961) (Statutes prohibiting distribution emé anonymous

campaign literature do not violate the First Amendment) with

Talley v. California, 362 U.S. 60 (1960) (Ordinance prohibiting

distribution of all anonymous handbills voided, jonperasiasible

exercise of state police power.) -

Newspapers, of course, play a vital, indeed indispensi-

ble, role in securing the right of the electorate to be

informed. One need not fault their performance, how-

ever, to recognize that even innocent acts of omission or

commission by newspapers can drastically alter the

electorate’s ability to be well informed. The legislature

thus has a substantial interest in assuring that newspapers

do not hinder the flow of information to the electorate,

and the First Amendment forms no absolute bar to the

exercise of that power. In upholding the application of

the antitrust laws to newspapers, this Court stated:

It would be strange indeed . . . if the grave concern

for freedom of the press which prompted adoption ~

of the First Amendment should be read as a

command that the government was without power

to protect that freedom... . Surely a command that

the government itself shall not impede the free flow

of ideas does not afford non-governmental combina-

tions a refuge if they impose restraints upon that

constitutionally guaranteed freedom. Freedom to

publish means freedom for all and not for some.

Freedom to publish is guaranteed by the Constitu-

tion, but freedom to combine to keep others from

publishing is not. Freedom of the press from

governmental interference under the First Amend-

ment does not sanction repression of that freedom

by private interests.*®

59 Associated Press v. United States, supra, 326 U.S. at 20

(footnote omitted). In the omitted footnote, the Court observed

that the decree, as framed, did not order AP or its members to

print or publish anything, but the Court did not say such a course

would be prohibited if necessary to implement the decree.

The Herald cites Associated Press for the proposition that the

“only” means for curing monopolization of the media is by

application of the antitrust laws. Herald Br. at 27. Associated Press

contains no such limitation; it merely sanctioned use of the

antitrust laws as one means of curing monopolization of the media.

See text following this note.

If the legislature can prevent private combinations that

impose restraints on First Amendment rights, it can also

act to prevent individuals from doing so, just as it may

act to prevent individuals from imposing restraints on the

exercise of other constitutional rights.

Both Congress and the state legislatures have long

recognized the need to protect the First Amendment

interest in having an informed electorate. The Communi-

cations Act mandates that if one candidate appears on

the broadcast media, the candidate’s opponent(s) will be:

afforded an “equal opportunit[y]” to appear.*' The

regulations of the Federal Communications Commission

(““FCC”’) require that candidates be informed of and have

the opportunity to respond to political editorials endors-

ing another candidate.*?

The Federal Elections Campaign Act of 1971%

expresses an even stronger congressional concern for

assuring that the electorate is adequately informed. It

limits the rates that both newspapers and broadcast

media may charge political candidates.“ The Senate

Report accompanying that legislation stated that the rate

“limitations will . . . increase the amounts of air time and

cy, eg., Civil Rights Act of 1964, Title VII, 42 U.S.C.

§ §2000e-1, et seg.

*'Communications Act of 1934, Section 315, as amended, 47

U.S.C. §315(a), commonly known as the “equal opportunities

provision.”

47 C.F.R. 73.123, 73.300, 73.598, 73.679. The constitution-

ality of these provisions was upheld in Red Lion, supra.

86 Stat. 3, 47 U.S.C. §§801 et seg. and 2 U.S.C. §§431 et

seq

“47 U.S.C. §§315, 802, 803.

—

space which candidates may buy,”®* resulting in a more

informed electorate.**

State legislatures have also recognized the need to

enact regulations to assure an informed electorate. For

example, state statutes similar to the one at issue in

Canon, supra, which prohibit the distribution of anony-

mous election material, are quite common.*”

These statutes are legislative resolutions of the tension

between the same First Amendment interests that are

present in the instant case. Like the Florida Reply

Report of the Committee on Commerce on the Federal

Elections Campaign Act of 1971, S. 382, Senate Report No. 92-96,

92d Cong., Ist Sess. 38 (1971).

The provisions of the Federal Elections Campaign Act of 1971

are illustrative of the complex constitutional and public interest

factors at work in legislative efforts to promote the First

Amendment interest in assuring that the electorate is well informed

while simultaneously safeguarding the integrity of the electoral

process against economic exploitation and corruption. While

Congress stressed the need to assure candidates “access to the

media” (id. at 32) to express their views, and imposed rate

limitations to further this objective, Congress restricted the amount

of money candidates can spend for media time and space. Congress

is still attempting to unravel the complex and closely interrelated

First Amendment and other public policy interests touching on the

electoral process. It is all the more reason for this Court to allow

adequate breathing room for legislative manueverability instead of

erecting broad constitutional barriers in the path of reform. See

infra at 44-54.

®"See supra, note 58. The Appendix to Appellee Tornillo’s brief

below contains a compilation of state statutes regulating the print

media.

Statute, they are designed to increase rather than

constrict the flow of information to the public.

The courts have not, of course, hesitated to strike

down legislation which is designed to restrict the flow of

information to the electorate. In Mills v. Alabama, supra,

this Court struck down an Alabama statute prohibiting

editorials on election day. Similarly, in American Civil

Liberties Union, Inc. v. Jennings,®* a three judge district

court invalidated the certification procedures of the

Federal Elections Campaign Act of 19717 which pro-

hibited newspapers from publishing political advertise-

ments unless certain assurances were provided by the

sponsoring party.”'

In Mills and Jennings newspapers desired to print

information relating to elections but were restrained by

legislation which made the publisher vulnerable to crimi-

nal prosecution for printing the material. In the instant

case, the Miami Herald has refused to print election

“The Court explicitly found that the statute foreclosed debate:

The state statute leaves people free to hurl their campaign

charges up to the last minute of the day before election. The

law held valid by the Alabama Supreme Court then goes on

to make it a crime to answer those “last minute” charges on

election day, the only time they can be effectively answered.

Because the law prevents any adequate reply to these

charges, it is wholly ineffective in protecting the elec-

torate. ...

384 U.S. at 220.

366 F. Supp. 1041 (D.D.C. 1973).

See supra, at 20-21.

™The newspaper was willing to publish the proferred ad except

for the restraining effect of the Act. It joined the plaintiff in

seeking to have the certification procedures declared unconstitu-

tional.

information, and the newspaper industry is arguing that it

has an unlimited power to restrict the flow of informa-

tion to the public. The Florida statute, unlike the

legislation invalidated in Mills and Jennings, is designed to

insure that unwilling newspapers like the Herald print

relevant information about candidates. In the instant case

it is the newspaper, not the statute, which tends “to

restrict the free and unfettered dissemination” of election

opinion. Such obstruction, in the name of the First

Amendment, “cannot be favorably viewed” by this

Court.”

THE HERALD AND ITS AMICI HAVE FAILED TO

DEMONSTRATE THAT THE FLORIDA LEGISLA-

TURE IS PROHIBITED BY THE FIRST AMEND-

MENT FROM BALANCING BETWEEN COMPETING

FIRST AMENDMENT INTERESTS.

In an effort to convince the Court that the First

Amendment works to absolutely and exclusively protect

the print media’s interest in retaining unfettered power to

refuse to print any and all material, Appellant and its

amici advance three basic arguments: (1) that their posi-

tion is well established by case law; (2) that the effect of

the Reply Statute or, for that matter, any other govern-

mental publication requirement, will be to so severely

“chill” newspapers’ vigorous treatment of public issues as

to be tantamount to direct censorship; and (3) that to

permit the Reply Statute to stand would be to counte-

nance the entry of the proverbial “camel’s nose” of

government censorship into the press “tent”, leading

inexorably to total government control of the press.

727d. at 1051.

Each of these arguments suffers from the very vague-

ness and overbreadth that the Herald attributes to the

Reply Statute. They are without merit and illustrate how

untenable is the extreme position urged upon the Court

by the mass media. We shall deal with each argument in

turn.

A. There Is No Direct Judicial Precedent Holding

That the First Amendment Categorically Bars

A Legislative Requirement That the Media

Print Specified Material.

The Herald cites a number of cases as “‘uniform direct

precedents”’> that the First Amendment prohibits any

legislation requiring a newspaper to publish specified elec-

tion information. However, an examination of the cited

cases indicates that no litigated case has invalidated state

or federal election legislation on such sweeping

grounds.

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

Tribune Co.," Associates & Aldrich Co. v. Times Mirror

Co.,75 Avins v. Rutgers,"° and Resident Participation of

Denver, Inc. v. Love,’’ are erroneously cited by the

Herald as “‘uniform direct precedents.”” However, not one

of these cases invalidated legislation. Rather, like CBS,

73 Herald Br. at 18.

% 435 F.2d 470 (7th Cir. 1970), cert. denied, 402 U.S. 973

(1971).

78 440 F.2d 133 (9th Cir. 1971).

% 385 F.2d 151 (3d Cir. 1967).

77 322 F.Supp. 1100 (D. Colo. 1971).

supra, they were unsuccessful attempts to secure judicial

declaration of a constitutionally compelled right of access

to newspapers. The question of state legislation requiring

access in electoral or any other circumstances was not

addressed.

Brown v. Murphy” and Yablonski y. United Mine

Workers of America,”® also cited by the Herald as direct

precedents, are equally inapposite. Both involved individ-

ual claims for access on bases other than a statute

providing for access.

In Brown, the plaintiff sought to judicially compel a

magazine to publish a correction or retraction of material

which portrayed him exchanging gunfire with police. The

District Court denied this relief >

The plaintiff in Yablonski sought an injunction direct-

ing (1) that a union journal print copy submitted by the

plaintiff and (2) that future issues provide fair and equal

treatment to the plaintiffs candidacy for the union’s

presidency. While the court did not require the journal to

print the proffered copy, it reasoned that a provision of

the Labor Management Reporting and Disclosure Act of

1959 effectively required the journal to give balanced

coverage to the two candidates.*! Thus, Yablonski

78 355 F.Supp. 416, 417 (S.D.N.Y. 1973).

7 305 F.Supp. 868 (D.D.C. 1969).

® The petitioner was on trial in New York State Court. He

based his claim to access on his right to a fair trial. The District

Court deferred to the state court's procedures for insuring a fair

trial. 355 F.Supp. at 418.

81 The court enjoined the journal from using the union

membership lists to distribute copy that discriminated in favor of

the incumbent. 305 F.Supp. at 872.

actually relied upon a legislative judgment as to how to

deal with an election problem involving sensitive First

Amendment interests, imposing a ‘fairness’ requirement

which was far more extreme than Florida’s Reply

Statute.

Even the advisory opinion of the Supreme Judicial

Court of Massachusetts, Opinion of the Justices to the

Senate,** falls far short of adopting the Herald’s position.

The Massachusetts advisory opinion involved a State

Senate request for judicial analysis of the constitution-

ality of a bill which would have required a publication

that sells advertising space to one side of an electoral

issue or contest to sell to all sides. The court advised that

the proposed legislation would be unconstitutional for a

combination of reasons, including the absence of legisla-

tive articulation of a compelling public interest;** and the

danger that newspapers might bar all campaign ad-

vertising if carrying some opened the door to all.**

It is clear, then, that the Massachusetts advisory

opinion stands for nothing like the absolute First Amend-

ment straitjacket the Herald would impose on legislative

efforts to compel access in certain limited electoral situa-

tions®S Moreover, the Massachusetts case illustrates the

current state of legislative concern with assuring candi-

82298 N.E.2d 829 (Mass. 1973) (hereafter “Massachusetts ”’)

S/d. at 834.

* Ibid.

85 Indeed, unlike the instant case, Massachusetts did not even

involve a reply statute.

—

date access, a concern which, as indicated above,®® is

shared by the United States Congress.

Contrary to the Herald’s argument, the only decision

of this Court on the subject held that the First Amend

ment does not prohibit all legislative requirements that

the print media publish specified material. In Lewis Pub-

lishing Co. v. Morgan, 229 U.S. 288 (1913), two pub-

lishers challenged the validity of a federal statute requir-

ing that all publications utilizing second class postal

service publish, on a periodic basis, the names of the

publication’s ownership and editors, as well as certain

other information, including circulation data.*? The

statute also required that all material published for

consideration be labeled as an “advertisement”.®* The

statute was challenged on the ground, inter alia, that it

was an infringement on the publishers’ First Amendment

rights.°® The Court stated that the publication require-

ment was a valid exercise of governmental power incident

86Supra at 20-21.

87 These basic requirements of the statute are presently con-

tained in 39 U.S.C. §4369.

8 This basic requirement is presently contained in 39 U.S.C.

§4367.

8 1ike the Herald in the instant case, the publishers in Lewis

Publishing Co. v. Morgan also argued that the publication require-

ment was a taking of property in contravention of procedural as

well as substantive due process since they were not paid for the

space required to publish the information. The Court rejected this

challenge, observing that the government had created a “privi-

leged” class of mail users, conferring upon them substantial

economic benefit. It did not violate due process for the govern-

ment to require publications availing themselves of this privilege to

utilize their space to make the required disclosures. See 229 US. at

316.

to the constitutional power to regulate the use of the

postal service. Having granted preferential postal rates to

publications, Congress could validly act to assure public

exposure to important information.?°

Finally, to the extent the Herald and its amici rely on

Mills v. Alabama, supra, and ACLU vy. Jennings, supra, as

“controlling precedent,” they are wide of the mark. As

indicated above®' those cases hold only that the govern-

ment’s interest in fair elections does not countenance

legislative restrictions upon or obstacles to speech on

electoral issues. Indeed, it was to afford public access to

the pages of newspapers that ACLU v. Jennings struck

down Title I of the 1971 Federal Elections Campaign

Act.

B. The Herald and Its Amici Have Misconstrued

the Meaning of Red Lion and CBS, As Well As

the Florida Court’s Citation of Red Lion.

The court below made clear that it relied on Red Lion

only for the constitutional propositions (1) that there is a

“First Amendment goal of producing an informed

electorate,”®? and (2) that the Reply Statute reflects a

® Similar regulations governing access to the postal service have

also been upheld. E.g., 39 U.S.C. §4005, upheld in Donaldson v.

Read Magazine, Inc., 333 U.S. 178 (1948).

"Supra at 22-23. In addition, the other cases cited in the Herald

brief (e.g. at 12 n. 22) are even more inapposite. All of them

involved direct restraints on speech similar to those in Mills and

Jennings.

% 366 F.Supp. at 1053. Compare, New York Times, Co. v.

Sullivan, supra, 376 U.S. at 266.

% 4. 24, quoting from Red Lion, 395 US. at 392.

legislative effort to resolve the tension between that First

Amendment goal and the First Amendment goal of leav-

ing newspapers free from any government compuls-

ions.%* The Florida Supreme Court specifically disclaimed

any intention to draw upon Red Lion for more than

principles “which are applicable to First Amendment

guarantees in general.””°*

Apparently unwilling or unable to confront the ramifi-

cations of a conflict between First Amendment values,

the Herald and several newspaper amici argue that the

court below relied on Red Lion to import the Commun-

ications Act’s “fairness doctrine” wholesale into the print

media market. They then attack this straw man by

demonstrating that Red Lion does not, in its terms,

address the print media and by arguing that Red Lion

holds that different technological barriers to entry into

broadcasting and the newspaper business justify differing

First Amendment treatment of the two media.

While the print media thus seek to escape Red Lion ’s

constitutional principles by aaa: misreading the

holding of the court below, their broadcaster bretheren,

in the apparent hope of avoiding any suggestion by the

Court that Red Lion and the fairness doctrine are still

constitutionally alive, ask the Court to decide the instant

case without reference to Red Lion.*"

9 A. 22-25.

954 25 Even when it added a dictum to the effect that

newspapers make use of electronic media to transmit news, the

court below again spoke in terms of the Red Lion “principles.” A.

ae:

% Herald Br. at 20-22; American Newspaper Publishers Assn.

(ANPA) Br. at 5-6, Washington Post Br. at 43-48; Reporters’

Committee Br. at 7-9.

97 Radio and Television News Directors Assn. (RTNDA) Br. at

3-5, 15, 20; National Association of Broadcasters (NAB) Br. at 2,

7-8, 10-11, 14-15.

—

As we have indicated above; neither of these positions

is responsive to the Florida Supreme Court’s opinion nor

to the legal issues pending before the Court. While we

agree with the broadcasters that the Court, on this

record, has no basis to reconsider either the result

reached in Red Lion or the constitutional implications of

broadcasting’s fairness doctrine, surely Red Lion’s defini-

tion of the competing First Amendment interests and

their appropriateness for legislative resolution cannot be

avoided.

The fairness doctrine is not before the Court, nor does

the record contain any evidence which would enable the

Court to make a reasoned decision involving it.

Nevertheless, despite its statement that these issues

should be kept out of the instant proceeding, RTNDA

attempts to begin litigating the “chilling effect” of the

fairness doctrine in its amicus brief.** Yet if anything is

clear from the Court’s decision last term in CBS, it is that

the result there was premised in large measure on the

continued existence and vitality of the broadcaster’s

“public trustee” duty under the fairness doctrine to meet

the “public interest in being fully and fairly informed.””

The Court there further noted the great deference

which must be paid to decisions of Congress and the

F.C.C. in such delicate regulatory matters.'© It specifi-

cally recognized the Commission’s ongoing fairness re-

regulation study as a critical part of this “‘necessarily

dynamic process.”!°! Having taken this approach, it

*RTNDA Br. at 16-20.

9412 US. at 111-112.

100 Td. at 103.

101 Td. at 132.

would be particularly anomalous for the Court now to

reach out for a re-examination of the fairness doctrine

before the Commission’s report on its inquiry is even

publicly released.’

C. Clearly Defined Legislative Requirements that

Candidate Information be Published Need Not

Impose A “Chill” On ‘Vigorous Newspaper

Coverage Of Electoral Issues. 4,

The Herald, and many of its media amici, argue that

the state’s determination in this instance to further the

public’s First Amendment right to hear competing voices

on electoral issues will create a “chilling effect” on the

freedom of newspapers to cover elections vigorously.’

The alleged chill created by the Reply Statute would

flow from (1) the fact that if a newspaper covers electoral

matters, it will have to make reply space available to

attacked candidates, (2) the fact that reply space must be

provided for free, thereby allegedly imposing significant

102 Ty follow the logic of CBS and Red Lion, 395 US. at

381-382, the broadcasters appearing as amici here should be

making their arguments for “reform” to the Commission. It is the

Commission which in the first instance must balance the competing

First Amendment interests inherent in the fairness doctrine, just as

the state legislature and the courts had to resolve those interests in

adopting and upholding the newspaper right of reply statute at

issue here. Broadcasting standards such as the fairness doctrine are

indeed “evolving” ones. CBS, 412 US. at 110. Therefore their

evolution should be left to the primary supervision of the

Commission that is charged with responsibility for executing the

statutory scheme, as this Court recognized in CBS.

103 See e.g, Herald Br. at 29-30; Washington Post at 49-51;

Reporter’s Committee Br. at 16-19; RTNDA Br., passim.

costs on newspaper publishers, and (3) the alleged vague-

ness and overbreadth of the Reply Statute, which leaves

newspapers unsure which coverage of a candidate might

trigger the Reply Statute’s requirements.

Amicus suggests that this three-pronged chill argument

is too speculative to form the basis of a constitutional

determination that the Reply Statute infringes too heavily

on the newspapers’ First Amendment rights. Further-

more, even assuming arguendo that the Reply Statute

creates a dangerous chill, this constitutes no justification

for the media’s assertion that, to avoid such “chilling

effects,” the Court must prohibit all legislative efforts to

require the publication of information needed to assure

an informed electorate. As we discuss below, it is possible

to enact legislation which both protects the electorate’s

right to be informed and is ‘“‘chillproof.”

1. The Asserted Chilling Effect Is Too Speculative

To Support Arguments Of Legislative Uncon-

stitutionality.

We agree, as the Court recently said of similar “chilling

effect” arguments advanced by the media in support of

their request for a newsman’s privilege, that such argu-

ments are “not irrational.’’!®°, Nevertheless, the “chilling

effect’”’ argument here rests on no more firm, specific

foundation than the Court found present in Branzburg. It

thus cannot invalidate a state’s statutory determination as

to its overriding interests in widening its citizens’ First

Amendment right to hear divergent views, particularly in

the electoral arena. ™

1038 Branzburg v. Hayes, supra, 408 U.S. at 693.

The “evidence” adduced by newsmen here,’ far

more than the evidence in Branzburg, is “unclear” and

“speculative”.'°* Estimates of the inhibiting effects of

the statute in question are similarly “widely divergent”;

and those of newsmen are equally based on “professional

self-interest.”"°° As in Branzburg, the print media and

broadcaster chill argument “fails to demonstrate that

there would be a significant constriction of the flow of

news to the public.”

As discussed below, the speculative arguments of chill

and censorship advanced by the media in the instant case

are consistent with a tradition of such efforts. The mass

media, broadcast and print, have, in their search for a

constitutional shield against any and all public account-

ability, long been making arguments to this Court of an

impending censorship apocalypse, arguments which rarely

prove to contain sufficient substance to require the

drastic remedy proposed.

2. The Media's Traditional “Cry Wolf” Arguments

Should Be Rejected Here.

In Red Lion the broadcasters made virtually the same

contentions as they and the print media advance in the

104 See Reporters Committee Brief Passim.

105 408 U.S. at 694-95.

106 jpid. The individual Amici in the Reporters Committee Brief

assert that the Reply Statute may chill their ability to have their

writings published in Florida newspapers. We agree that the Court

should be sensitive to their need, but we believe the Court should

be equally sensitive to the need to ensure that the public hears the

views of candidates for public office, like Tornillo.

107 7d. at 694.

instant case — i.e., that editorializing rules would “chill”

off the air the discussion of important public issues. Sub-

sequent developments indicate the lack of merit in those

projections. Red Lion involved a federal rather than a

state-created reply remedy. The Court there was

bombarded with fervent warnings from the broadcast

media that judicial sanction of that remedy, a right of

reply, would have precisely the same censoring effects as

are argued by the Herald and its amici in this case, five

years later.

In fact, one of the amici in this case argued strongly

against adoption of the Court’s Red Lion decision on the

very same grounds that it advances here. RTNDA con-

sistently urged from the outset that the FCC’s personal

attack right of reply rules fostered “‘self-censorship” that

would cause broadcasters to steer “wide of the dangerous

zone.”'®* RTNDA argued that the “chilling effect” of

any rule giving a right of reply to broadcast personal

attacks would severely emasculate such programs as Eric

Sevareid’s commentaries, Face the Nation, and network

news documentaries.'®? The choices, it claimed, would

be solely between elimination of an attack or of an entire

program (rejecting out of hand as unworkable the third

possibility — complying with the rule by permitting a

reply).''°

108 See RTNDA, CBS, NBC Joint Petition for Writ of Certiorari

Before Judgment in RTNDA v. United States (which was ulti-

mately decided favorably to RTNDA by the 7th Circuit, 400 F.2d

1002 (1968), and consolidated with Red Lion in this Court), at 9.

109 fd. at 11-12.

‘07g at 12. RTNDA restated these arguments in detail in its

ultimate brief on the merits of Red Lion in this Court. Red Lion

RTNDA Br. at 31-36. CBS, in the consolidated cases, wrote a

—

This Court in Red Lion properly rejected this line of

argument, holding that the “possibility” of media self-

censorship was “‘at best speculative.”"*** The Court found,

perhaps on the basis of the representations to this effect

in at least one network's brief,!!? that the general fairness

diversity of controversial views aired, actual “experi-

ence” was necessary."** In the final analysis, the Court,

as previously noted, held that the First Amendment

rights of the public are paramount, and that the

governmental choice of a mandatory right of reply was

not “inconsistent with the First Amendment goal of

producing an informed public capable of conducting its

own affairs.”"'*

separate brief from RTNDA for the stated purpose of trying to

demonstrate, by specific examples from its own programs, that the

rules would have a deterrent, chilling effect on its broadcast of

views on controversial issues. Red Lion CBS Br. at 1-2. It

submitted a separate Volume Il of the Record containing

from Eric Sevareid’s commentaries, Face the Nation, CBS Reports

and other news documentaries as examples of material upon which

the Commission's right of reply rules for personal attacks would

have “an insidious, if not totally destructive effect.” Jd. at 4. CBS

even argued that under such a rule “news documentary programs as

we now know them could not continue. . .”” /d. at 41.

111395 U.S. at 393.

112. Red Lion CBS Br. at 6-7, 59-62.

113 395 U.S. at 393.

114395 U.S. at 392. See also Mt. Mansfield Television, Inc. Vv.

FCC. 442 F.2d 470 (2nd Cir. 1971) (no assumption would be

made of a “speculative” decrease in network controversial pro-

gramming as a result of adoption of a rule limiting the number of

network programs network affiliated television stations may

broadcast during prime television viewing hours).

The broadcasters in Red Lion also argued, as do the

media here, in the instant case, that the practical and

financial burdens caused by offering free reply time and

the vagueness of the rules at issue there would “chill”

their coverage of controversial matters.''S The Court

answered the “vagueness” contention in Red Lion by

taking the same approach we advocate in this case. It

observed that “there was nothing vague about the FCC’s’

specific ruling in Red Lion”’ and stated that it “will not

now pass upon the constitutionality of these regulations

by envisioning the most extreme applications con-

ceivable .... but will deal with those problems if and

when they arise.”’'"*

"'STronically the broadcasters’ argument there was specifically

based on the comparative ease with which a newspaper could

comply with a similar right of reply rule. One brief noted that

“unlike a newspaper, which has few practical limitations on the

number of pages and columns that it can publish, a broadcast

station is sharply limited by the finite nature of broadcast time.”

Red Lion CBS Brief at 14. Other “characteristics not shared by the

printed press” were adduced to show how much more severely a

right of reply requirement would burden broadcasters. These

included “the fact that any additional material broadcast neces-

sarily replaces other material, the unpredictable content of

unrehearsed interviews or discussions and the practical problems of

network program scheduling and station clearance. /d. at 4.

16 395 U.S. at 395-96 (footnote omitted). The facts and

circumstances of the instant case hardly give cause for alarm about

the possibility of irational judicial construction. Here there were

unquestionably attacks upon the personal character of the candi-

date Tornillo in two Herald editorials. (App. 5, 8) Tornillo

submitted statements directly responsive to the editorials, the same

length as the editorial (App. 6, 9.) No clearer case could be

presented within the statute. Thus, as applied here, under its most

narrow construction, the statute gave reasonable notice to the

Herald.

——

or any other grounds as well. Eric Sevareid still delivers

commentaries with a bite, public figures are still effective-

ly grilled on Face the Nation, and network news

documentaries still cover controversial issues. In fact,

during that period the public saw some of broadcast

journalism’s most hard hitting coverage, including the

Pentagon Papers, Vietnam, and, according to some, the

widespread emergence of “advocacy journalism.”"*”

At the same time, during the past five years, both the

general fairness doctrine and the FCC’s narrower personal

attack and political editorializing right of reply rules have

enabled the listening public to hear rebuttal on many

issues that might otherwise have been monopolized by

views on only one side.''®

117 Certainly the broadcaster amici in this case, who now reverse

the position of at least some of their brethern in Red Lion and

attack even the overall fairness doctrine as “ i

their briefs here no specific examples of inhibited broadcast

speech.

In fact, the most “chilling” restrictions on mass media

sources such as television and newspapers come from the fact that

many view their primary functions as vehicles for advertising rather

than journalism, and thus are more subject to private economic,

rather than governmental, pressures. As to this effect on television

journalism, for example, see Friendly, Due To Circumstances

Beyond Our Control (1967) (esp. Ch. 10. “Common Stock v. the

Commonweal”); Brown, Television, The Business Behind the Box

(1971), Barrett, Survey of Broadcast Journalism 1970-71, 83-89

(1971).

1181 1972, for example, after a fairness complaint against a

Denver television station that had broadcast 60 editorialized

station identifications taking a position against a state-wide ballot

proposition that would bar the 1976 Olympics from Denver,

Yet even in their briefs in this case, the broadcasters

persist in arguing that the fairness doctrine is unworkable,

Both NAB and RTNDA argue that the fairness doctrine

“has come under increasing question,”''® and that its

critics have included “leading jurists and present and

former FCC officials.”'?° They then cite several critics of

the doctrine, omitting to note its many supporters,'?! a

supporters of the proposition received two five-minute prime time

slots. The proposition was adopted. Like this case, which is taken

from an exchange of correspondence in the files of the Citizens

Communications Center, most of the cases in which time is

actually received are not litigated, and are therefore unreported.

"19 NAB Br. at 2.

120 RTNDA Br. at 5.

121 Even of the list adduced of those opposing the fairness

doctrine, many, such as former Chairman Burch and former

General Counsel Geller, have never disavowed the doctrine; they

have questioned its procedural application by the FCC or the

wisdom of utilizing the rationales of the past for retaining it in

precisely the same administrative form. Two of the RTNDA-cited

critics of the doctrine, former FCC Chairman Paul Porter and E.

William Henry, are now private attorneys with broadcast clients.

Two other RTNDA-cited sources, Sam Ervin and the Cambridge,

Massachusetts Conference on “The First Amendment and the News

Media,” according to the sources cited in their brief, directed their

remarks primarily to the doctrine’s application to radio rather than

television. And the RTNDA-cited article concerning the supposed

conversion of Judge J. Skelly Wright (Broadcasting, July 11, 1973,

p. 28) quotes him as ultimately reaching a conclusion that is the

opposite of what RTNDA states:

“... before we de-regulate the public media in the name of

the First Amendment and allow the licensees or the

advertisers that support them to manipulate public opinion

as they desire, we should proceed with the greatest caution.”

—,

number of whom have filed extensive comments in the

Commission’s pending rule making proceeding on

possible changes in the Commission’s administration of

the fairness doctrine.

Our exploration of the arguments made here by

broadcasters and rejected by this Court in Red Lion is

not meant to indicate that Amicus believes that the

validity of the broadcast fairness doctrine upheld there is

in any way before the Court in this case.'?? Rather, it is

intended to show the Court’s wisdom in rejecting purely

speculative allegations of a potential chilling effect on the

exercise of journalistic speech in mass media. As outlined

above, this Court has consigned minimal weight to such

arguments when, as in both Red Lion and the instant

case, important competing First Amendment interests,

such as the public’s interest in hearing diverse viewpoints

on controversial issues, are involved.

3. Even If The Reply Statute Creates An Imper-

missible Restraint On Newspapers’ Free Press

Rights, A Flat Constitutional Ban On Any

Legislative Publication Requirement Is Wholly

Unwarranted

Even if the Court were to find a serious potential

“chilling effect” on robust presentation of controversial

issues by Florida newspapers because of the Reply

Statute here at issue, it does not follow that any law

compelling a newspaper to print any matter it does not

want to print must perforce violate the First Amend-

ment.!23 A legislature could enact a tightly drawn statute

122 See PP. 28-31, supra.

123 See generally, Lewis, supra, 229 US. at 302-305. See also

The Newspaper Preservation Act, 15 U.S.C. §1801 (1970) where

—

that creates no chilling potential. For example, if

publishers would refrain from affording vigorous coverage

of electoral matters in order to avoid a compulsory reply

requirement, surely legislation that granted candidates

access regardless of what a paper printed would cause no

such chill. Similarly, a statute requiring newspapers to sell

space at their prevailing rates to all candidates for public

office would be chill-proof. The paper would be given no

incentive to self-censor since it would be required to sell

space to candidates regardless of what it prints in its news

and editorial columns. Likewise, if chill is thought to

derive from the Reply Statute’s requirement of free

publication of candidate responses, a statute which‘

provided for paid replies, or compulsory newspaper

acceptance of advertising, would not create any such

chill. And if vagueness creates a chill, a narrow statute

that defined in clear and precise terms when and to what

classes of publications it applied would overcome that

objection.'™4

Congress, in effect overruling this Court’s decision in Citizen

Publishing Co. v. United States, 394 U.S. 131 (1969), authorized

certain newspapers to enter into joint operating agreements which

otherwise might have violated the antitrust laws. The rationale

behind the Act was that this economic aid was necessary to

preserve the number and diversity of editorial voices. Under the

reasoning advanced by the Herald which, ironically, is a beneficiary

of that legislation, the Act’s requirement of independent editorial

voices — the very justification for the economic benefits conferred

by the Act — could be voided.

'* Moreover, where a serious “chilling” burden has in the past

been shown from a statute designed to increase speech in an

electoral context, the Court has been able to fashion remedies that

remove the danger without invalidating the statute itself. See, e.g.

Farmer’s Educ. & Coop. Union v. WDA Y, 360 U.S. 525 (1959)

(licensee relieved from liability for defamation in broadcast by

candidate under equal time provisions of Section 315 of the

Communications Act).

D. The Media’s Argument That Any Compelled

Access Will Open The Floodgates Of Govern-

ment Regulation Of Newspapers Has No More

Validity Than Their “Chill” Arguments

The Herald, in addition to arguing “chill”, raises the

spectre of “total governmental control of the content of

all newspapers”!?5 if the Reply Statute is sustained. This

familiar argument has been raised by both the newspaper

and broadcast media every time the government attempts

to adopt “reasonable rules and regulations which fall

short of abridgment of the freedom of speech and

press.”!?6 The courts have usually recognized this argu-

ment as premature, and even more speculative than the

“chilling effect” arguments. They have assumed ihat if

arbitrary and impermissible governmental intrusions ever

do occur, the courts will be able to deal effectively with

them.

Red Lion, for example, rejected the “total control”

spectre. The Court there stated that by approving the

personal attack rules it did not mean to “ratify every past

and future decision by the FCC with regard to program-

ming,” and it indicated the types of restrictions on

broadcaster speech which would be repugnant to the

First Amendment and would be struck down.'?”

128 Herald Br. at 32.

126 Red Lion, supra, 395 U.S. at 382. See, Lewis Publishing Co.

v. Morgan, 229 U.S. 288 (1913).

127395 U.S. at 396. This Court, and the lower federal courts

have consistently rejected this argument, as it has been raised by

broadcasters, whenever the government takes steps to increase the

diversity of speech in that medium. National Broadcasting Co. v.

United States, 319 U.S. 190 (1943) (elimination of network’s

“option time”); Banzhaf v. FCC, 405 F.2d 1082 (D.C. Cir. 1969)

(requiring cigarette advertising counter-messages); National Assoct-

Similarly, in Pittsburgh Press Co. v. Pittsburgh Com-

mission on Human Relations, 413 U.S. 376 (1973), this

Court again rejected the “camel’s nose in the tent”

argument in connection with newspapers. It there upheld

a local ordinance barring reference to sex in help-wanted

advertising columns, finding that it was not an unconsti-

tutional abridgment of a newspaper’s absolute discretion.

Rebutting the charge that it was sanctioning wholesale

government dictation of the form and substance of

newspapers, the Court emphasized that its decision did

not “authorize any restriction whatsoever, whether of

content or layout, on stories or commentary originated

by Pittsburgh Press, its columnists, or its

contributors.” ?®

The media’s continuous and excessive use of the

argument that the next incidental restriction will wipe

out the First Amendment and the free press in fact

creates its own dangers. As the former head of CBS News

has stated in arguing for retention of the fairness

doctrine and criticizing the Herald in this case for its

intransigent refusal to publish Tornillo’s reply:

I don’t know which alarms me mo —prosecutors

and jurists flooding the courts subpoenaed

reporters and contempt citations or newsmen and

ation of Theatre Owners v. F.C.C., 420 F.2d 194 (D.C. Cir. 1969)

(program type restrictions on subscription television); Mt. Mans-

field Television, Inc. v. F.C.C., 442 F.2d 470 (2d Cir. 1971)

(“prime time access” rule, see supra, note 114).

128 413 U.S. at 391. In the instant case as well as in Branzburg,

the state statute at issue directly, by its terms, “involves no

restraint on what newspapers may publish”, in the first instance,

408 U.S. at 681. It provides solely that a political candidate has a

limited right of reply in the newspaper’s own columns to, in effect,

a personal attack.

—

publishers crying ‘First Amendment’ every time

they are challenged.'?°

By “crying wolf’ every time any limited attempt is made

to diversify the sources of speech, the media themselves

denigrate the value of the First Amendment.'*

In sum, this Court should adhere to the principle that

where competing First Amendment interests clash, simp-

listic arguments about the possibility of extreme govern-

mental interference with the media are off-base. Rather,

“(t]he balance of these vital constitutional and societal

interests on a case-by-case basis accords with the tried

and traditional way of adjudicating such questions.”**"

129 «Media Are Scored By Fred Friendly” /“He Finds Excessive

Use of First Amendment Slogan,” New York Times, January i

1974.

130 One of the chief ironies of the automatic First Amendment

_ doak of journalistic freedom that the media wrap about themselves

each time there is an attempt to diversify speech is that as soon as

the challenge to their absolute discretion to exclude viewpoints is

passed, they return to business as usual, avoiding exercise of the

journalistic freedom they have so recently defended by tailoring

programming so as not to offend their advertisers. Senator Frank

Moss, in a recent speech to broadcasters, noted the latter

phenomenon in several deleted segments of network programs

concerning medical insurance and malpractice that offended the

AMA, and stated:

“When you justly express fear of government encroach-

ment on the freedom of the broadcaster to resist govern-

ment-sponsored propaganda in any form of programming,

I’m with you, and the American public is with you. But

when you allow yourselves, with a rather exaggerated sense

of deference to your advertisers for the simple human wish

Broadcasting, February 25, 1974, p. 29.

131 Branzburg v. Hayes, supra, 408 U.S. at 710 (Justice Powell,

concurring).

IV.

THE WELL ESTABLISHED PRINCIPLES OF JUDICIAL

DEFERENCE TO LEGISLATIVE JUDGMENTS AND

FEDERALISM REQUIRE THAT THE COURT PERMIT

LEGISLATURES MAXIMUM MANEUVERABILITY

FOR RESOLUTION OF THE COMPETING FIRST

AMENDMENT POLICIES AT ISSUE IN THIS CASE.

THAT COURSE WOULD PERMIT THE WIDEST POSSI-

BLE BREATHING SPACE FOR FIRST AMENDMENT

VALUES.

The sweeping principles urged upon this Court by the

media would wrap legislative attempts to assure an

informed electorate—the core purpose of the First

Amendment—in a “constitutional strait-jacket.’’'>? This

Court has wisely eschewed such a course in areas where

judicial deference to legislative judgments reconciling

competing interests and judicial deference to “[o]ur

Federalism’’!** is warranted.

A. The Legislature May Validly Determine That

There is a Legitimate First Amendment In-

terest In Publication of Certain Information.

In Lewis Publishing Co. v. Morgan'* this Court turned

aside a First Amendment attack on a statute requiring

disclosure of certain information in order to qualify for

second class mail privileges. In Lewis the Court was

engaged in what today would be referred to as “‘balanc-

ing”: Is the government’s police power interest adequate

to overcome the statute’s incidential infringement on

First Amendment rights? But in the instant case, the

Court need not balance a police power interest

132 CBS vy, DNC, supra, 412 US. at 101. .

133 Younger v. Harris, 401 U.S. 37, 44 (1971).

14229 U.S. 288 (1913), discussed supra at 27-28.

—=~_~7—~"

against an incidental or direct infringement of First

Amendment rights. Rather, the problem is how to

reconcile competing First Amendment interests. The

Florida legislature chose the Reply Statute to reconcile

these interests in favor of the right of the electorate to be

informed. Appellant cannot simply state that it is

“censorship” to require it to print anything it does not

want to print and thereby nullify a considered legislative

judgment which seeks to reconcile competing First

Amendment interests. If Congress’ interest in maintaining

the integrity of the postal services was held by this Court

to be sufficiently strong to offset the publishers’ interest

in refusing to print certain information, it follows 4

fortiori that the Reply Statute which requires the

publication of certain materials in order to vindicate the

First Amendment interest in an informed electorate is

not, as Appellant would have it, invalid.’®°

Many state and local statutes also require that (a)

certain materials appearing in newspapers and other

publications be clearly identified generally as advertise-

ments, (b) paid political advertisements be specifically so

denominated, and/or (c) information regarding sponsor-

ship of paid political advertisements also be provided. A

catalogue of such statutes already is a part of the record

135 Indeed, Lewis itself could be viewed as in part based on the

public’s First Amendment right to know. As the Court stated in

Lewis, the interest of Congress in enacting the disclosure require-

ment was “to secure to the public in ‘the dissemination of

knowledge of current events’ by means of newspaper, the names

not only of the apparent, but of what might prove to be the real

and substantial owners of the publications, and to enable the

public to know whether matter which was published was what it

purported to be or was in substance a paid advertisement.” 229

U.S. at 315-16.

Herald’s contention that any form of compulsory pub-

lication of informational matter is censorship'?’ would

likewise invalidate these statutes. Yet each reflects a

legislative judgment of how the clash of conflicting First

Amendment values should be resolved.

Many states and localities also impose newspaper

publication requirements in connection with a wide array

of legal transactions, such as probate, property condem-

nation, licensing for alcoholic beverages, the sales of

certain property, and escheat. These requirements recog-

nize the critical role of newspapers as disseminators of

information and as journals of public record.'®* These

statutes are normally framed in terms of requiring the

parties to the transaction to publish. But it would seem

anomalous if a state could impose such a requirement on

the parties to the transaction but could not compel

newspapers of general circulation to carry such

notices.'®® Certainly a discriminatory refusal to publish

such notices, such as a newspaper’s refusal on racial

grounds to carry death notices—a legal prerequisite to

probate in many states—could be legislatively barred.'*°

136 See Appendix to Brief of Appellee Tornillo.

137 Herald Brief at 10-20.

138 Indeed, in proceedings before the Federal Communications

Commission, the National Newspaper Association opposed a

proposed rule that replaced with an on the air announcement the

requirement that a broadcast licensee publish notice that its license

renewal application was pending. The NNA argued that broadcast

announcements were insufficient to inform the public of pending

license applications. Renewal of Broadcast Licenses, 44 F.C.C.2d

405, 418-20.

'® But see Mack v. Costello, 32 S.D. 511, 143 N.W. 950 (1913),

where a newspaper defendant’s refusal to carry plaintiff's ad, a

notice required by law, was sustained. However, there was no

statute requiring the newspaper to carry the notice.

CY. Pittsburgh Press Co. v. Pittsburgh Committee on Human

Relations, 413 U.S. 376 (1973). ,

—— .

B. Legislatures Should Be Accorded Maneuverabi-

lity In Making Judgments Designed to Further

First Amendment Values, And Their Decisions

Should Be Accorded Broad Deference.

The statute under attack here is part of a comprehen-

sive scheme regulating elections. As early as 1885, the

Florida constitution commanded that state’s legislature

“to pass laws ‘regulating elections and prohibiting under

adequate penalties all undue influence thereof from

power, bribery, tumult or other improper practices’ and

to ‘enact such laws as will preserve the purity of the

ballot given under this Constitution.’ ”"*! By 1909,

Florida had enacted a comprehensive corrupt practices

act to deal with primary elections. The statute in

question was enacted four years later, “not to punish,

coerce or censor the press but rather as a part of a

centuries old legislative task of maintaining conditions

conducive to free and fair elections.” '*?

That the government has a special interest in maintain-

ing fair elections is beyond question. As discussed above,

this special interest has been manifest at both the state

and national level.'43 The electoral process, which is the

bedrock of democracy, presumes that the First Amend-

ment goal of an informed electorate has been achieved.

But in the instant case, this Court is faced with a

legislative judgment that, in a particular electoral situa-

tion, there is a confrontation between First Amendment

141 A. 18.

142 4 19, Emphasis in original.

143 Supra, at 20-22.

principles that normally should operate in harmony. Where

these interests clash, the task of reconciling them is

necessarily a sensitive one, touching core values of a free

and democratic society. It is, in every sense, a “‘legislative

task.”"** The Florida legislature discharged that task by

concluding that the unrestricted protection of the private

rights of newspapers would not achieve the broad public

purpose undergirding the First Amendment.

In areas where great public values intersect, and where

a legislature has attempted to deal with a problem by a

comprehensive statutory scheme, this Court will accord

broad deference to legislative judgments.'*S Thus, the

Florida legislature’s attempt to resolve the competing

mandates and claims of the First Amendment is entitled

to be given great weight. The Herald dismisses with one

sentence the notion that legislatures may act to safeguard

public First Amendment interests: “Whether govern-

mental compulsion is by court decree or by statute is

constitutionally irrelevant.”’'** This Court should not

sanction such a limitation on legislative manueverability

in so sensitive an area and the Appellant has advanced no

sound reason to do so.'*”

4A 18.

5 Heart of Alabama Motel, Inc. v. United States, 379 U.S. 241

(1964); Southern Railway Co. v. United States, 222 U.S. 20

(1911); Crossman v. Lurman, 192 U.S. 189 (1904); Mintz ».

Baldwin, 289 U.S. 346 (1933).

6 Herald Br. at 10. Footnotes omitted. As previously noted,

every case cited by the Herald in the area of newspaper publication

requirements involved a request for a court-declared constitution-

ally mandated right of access to newspapers, rather than a

legislative attempt to resolve competing First Amendment interests

or enhance First Amendment values. See supra at 24-28.

'*7 Allowing legislative manueverability is not only consistent

with CBS v. DNC and Red Lion; it is mandated by them. In those

cases, Congress made one determination as to how to reconcile

competing First Amendment interests. The Florida legislature had

‘Tae

In the instant proceeding, the fundamental precept

that a court will give great deference to legislative

judgments harmonizes with another great constitutional

principle: the importance of Federalism.'** Federal

rights must be vindicated in a way that has a minimal

impact on the legitimate activities of the states.'*°

In the instant case, Florida made a legitimate legislative

effort to vindicate the First Amendment fundamental

purpose of assuring an informed electorate. This does

not, of course, preclude review by this Court. The Court

can and must review state legislative acts to assure that

important constitutional principles are not ignored.'*°

Where, as in Mills v. Alabama, supra, a legislature cannot

show that it is reasonably attempting to reconcile

competing First Amendment values, this Court can

properly invalidate a state regulating newspapers.

By contrast, a candidate reply statute

does not bar newspaper editors from speaking on

electoral issues OT from endorsing candidates at any time.

A reply statute could, be designed to deal narrowly with

the problem the jegislature, sousht to address in Mills.***

For example,qmight merely provide that no editorial

charges could be made within 24 hours of an election

without notifying the candidate and providing

opportunity for reply. While the Florida Reply

————e

made another. That different media are involved is irrelevant. What

is important is that the legislature has rendered a judgment as to

how to resolve the competing interests, and it is entitled to great

weight.

148 Younger v. Harris, supra, 401 U.S. at 44.

149 7q - Branzburg v. Hayes, supra, 408 U.S. 665 at 706; Panis

Adult Theatre I ¥. Slaton, 413 US. 49, 60 (1973); Miller v.

California, 413 US. 15, 30 (1973). >

150 See 28 U.S.C. §1257.

151 See supra, note 68.

Statute is not framed in precisely these terms, its Purpose

is also to prevent political charges from being made

without affording the public an opportunity to hear

contrasting views. But under the sweeping rationale

advocated by the Herald, no state reply statute to remedy

the Mills or similar electoral problems, no matter how

narrowly drawn and well adapted to the First Amend-

ment purpose of preserving the public’s interest in

electoral information, could withstand a First Amend-

ment challenge.

This Court, which has been continually sensitive to the

strength of federal principles, must be Particularly wary

of adopting an absolute prohibition on state efforts to

implement sensitive and conflicting First Amendment

values. Federalism is not only a matter of “comity” to

states.'*? It also reflects a commitment to the notion that

diverse approaches to problems are likely to produce

better solutions, just as the First Amendment assumes

that there is a greater likelihood that truth will emerge

out of a multitude of tongues. Precipitous action by this

Court now to prevent experimentation by state legisla-

tures is totally unwarranted.

D.The Court Should Exercise Great Restraint In

Light Of The Important Constitutional Princi-

ples Converging In This Case

The statute under challenge presents this Court with

the convergence of three great interests: the deference to

be accorded (a) a legislative act, (b) when adopted by a

State, (c) that attempts to reconcile competing considera-

tions in assuring the free flow of information to the

public. Whether taken individually or considered

"S? Younger v. Harris, supra, 401 U.S. at 44.

together, the presence of these three interests in this case

mandate that any action which this Court takes should be

extremely limited.

This ruling will have a critical impact on the ability of

both the states and the federal government to assure that

their electorates are informed. Thus, any action by this

Court must leave legislatures with wide discretion to

attempt to resolve and balance the competing interests

inherent in the regulation of 50 different state electoral

schemes as well as the national electoral process.

There is no line of cases directly presenting the Court

with all three of these factors in the same context. But in

one line of cases that raised closely related issues, this

Court has wisely chosen to leave expansive discretion to

legislatures to fill in the interstices of the constitutional

framework.

In the legislative apportionment cases, the interests

both of federalism and deference to legislative judgment

were involved and closely intertwined. And, although no

speech issues were directly involved in the apportionment

cases, the states’ authority to preserve the integrity of

their electoral processes—an issue closely related to the

speech issue here—was also involved. The evolution of

this Court’s involvement in the apportionment issue

illustrates the manner in which this Court has proceeded

where so many sensitive constitutional issues are

involved.

Initially, this Court declined even to adjudicate the

issue of state legislative apportionment.'®*® Then in Baker

». Carr,"8* the Court held that the issue was justiciable.

But even as it cleared away the barrier to justiciability, it

went no further than to declare its adherence to the

1583 Colegrove v. Green, 328 U.S. 549 (1946).

184 369 U.S. 186 (1962).

—————

broad constitutional principle of equal protection. When

in subsequent cases it clarified the meaning of equal

protection in this context by declaring that state legisla-

tive districts must reflect population,'®’ it left state

legislatures broad discretion to consider a variety of

criteria in diverse ways in making “an honest and good

faith effort to construct districts ...as nearly of equal

population as is practicable.”'5® Although various tests

evolved for ascertaining whether this standard was

met,'S’? in applying these tests the courts gave deference

to the state’s interest in preserving the integrity of

political subdivisions,'** in assuring at least some repre-

sentation for political subdivisions,'*® in using fractional

or multi-member apportionment schemes,'® and even in

deviating substantially from proportional _repre-

sentation'®*' so long as the basic equal protection

guarantee of proportional representation was not “sub-

merged.””'®

Amicus submits that here, because similarly critical

issues of deference, federalism, and substantive rights are

involved, similar care and caution is warranted. While the

Constitution sets the basic limiting framework of values

that must be considered in framing statutes applicable to

1SS Reynolds v. Sims, 377 U.S. 533 (1964).

156 Id at 577.

'S7Note, “Reapportionment,” 79 Harv. L. Rev. 1228, 1250

(1966).

'S8See Abate v. Mundt, 403 U.S. 182 (1971).

159 See Schaefer v. Thomson, 240 F. Supp. 247 (D. Wyo. 1964).

1@Whitcomb v. Chavis, 403 U.S. 124 (1971).

161 Abate v. Mundt, supra.

162 Reynolds v. Sims, supra, 377 U.S. at 581.

—

the media, just as in the case of apportionment, there

must similarly be a wide area of legislative manueverabi-

lity for the states'®? and Congress to reconcile the

electorate’s right to be informed on public issues with the

wer of the press to exclude such information. Amicus

submits that this constellation of principles compels

affirmance of the Reply Statute, or at the least a decision

that leaves maximum room for legislative flexibility.

Adoption of the broad holding urged by the Herald

and its amici would, for example, prohibit a state from

determining that the public’s interest in information on

electoral matters required that, as part of a statewide

voter registration effort, sending voting registrars to

counter underregistration,’™ would be effective only if

notice of their presence were carried in local newspapers

of general circulation.

Similarly, a state might determine that newspapers

must sell space to those who wish to reproduce ballot

propositions in notice form, as is presently undertaken in

many states by the League of Women Voters.

Finally, outside the electoral area, a state legislature

might determine that, in order to provide information

163 Conditions from state to state vary widely. States might, for

example, want to consider such factors as the extent to which

major metropolitan areas have competing local newspapers (such as

in New York), whether newspapers from major cities inside the

state (such as in lowa) or from outside the state (such as in New

Jersey) compete with local newspapers, the extent to which local

newspapers or newspapers competing with them accept paid

political advertisements and the nature of the state’s respective

electoral process, €-g. whether there are primary elections for local

and/or statewide offices.

164 Cf. the Federal Voting Rights Act of 1965, upheld in South

Carolina v. Katzenbach, 383 U.S. 301 (1966).

about matters of urgent public health and safety, notices

concerning drugs or other products found to be immi-

nently dangerous should be widely disseminated. The

legislature might determine that a statute requiring

newspapers in the area the drug or other product was

being sold to publish such notices was a valid method of

advancing this legitimate governmental purpose.

In all of the above cases, a detailed examination of the

context of the legislation, its goals and purposes, and the

manner of the legislature’s resolution of the competing

interests, would be called for. If the statute provided for

payment for the particular notice, there could be no

question of financial burden, or “tax” or “taking.” In

addition, all of the above examples are content-neutral—

that is, they do not depend on whether or not the

newspaper itself says anything on the subject of the

material to be printed. Thus, there cannot be any even

speculative chilling effect on the media’s own discussion

of issues from such statutes.

These and other types of specific questions are worth

scrutiny each time such a statute is examined within the

overall constitutional framework. But because such stat-

utes deal with attempts to maximize First Amendment

values, as well as other governmental interests such as the

integrity of the electoral process and public health and

safety, they should not be held per se invalid. As the

Court recently stated in dealing with difficult constitu-

tional questions involving state election statutes, there is

no “litmus paper test” in such areas, and “hard judg-

ments” must be made in each case.'®

165 Storer v. Brown, No. 72-812 (March 26, 1974) Slip Op. at 5.

CONCLUSION

For the foregoing reasons, amicus respectfully submits

tha: the-decision of the Florida Supreme Court should be

affirmed.

Respectfully submitted,

ALBERT H. KRAMER

1346 Connecticut Ave., N.W.

Washington, D.C. 20036

Orc I THOMAS R. ASHER

ounset. Media Access Project

MATTHEW B. BOGIN 1910 N Street, N.W.

MARIA E.MALDONADO Washington, D.C. 20036

Student Interns FRANK W. LLOYD III

Media Access Project Citizens Communications Center

SHELLEY HIGGINS 1914 Sunderland Place, N.W.

Student Intern Washington, D.C. 20036

Citizens Communications 4 ¢¢orneys for Amicus Curiae,

Center National Citizens Committee

for Broadcasting

April 1, 1974

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.