# Amicus Curiae Brief — Miami Herald Publishing Co. v. Tornillo > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0328%3A29 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1974 - **Citation:** 418 U.S. 241 ## Text 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, v. 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 l. 2. 1. Il. Ill. INTEREST OF AMICUS CURIAE STATEMENT Eg Se ee eee eee RT he ree ae een eee (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 Es a 5 ee os. & Ue OG. 2“e,.6 © 8 0 0 @ 6 es. S28. SS 8, 66.0 BO 6 OS OO 8 Oh) 6: oe 8 OQ 8.6 6 6 es 6.) Oe 044 5 SA OO SSE OO Oe eee 6 Ores eee (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 i" 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 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+> 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 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). 25 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. 26 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. — 27 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. 28 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. 29 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. — 30 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. 31 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. 32 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. 33 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. 34 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 — 35 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). 36 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. —— 37 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, 38 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.” —, 39 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). 40 41 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- 42 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. — 43 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.”**" a 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). 44 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—~" 45 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. 46 before this Court,'*© and need not be repeated here. The 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). , —— . 47 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. 48 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. 50 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. 51 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). ————— 52 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. — 53 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). = 54 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. ye 55 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0328%3A29. Public record. Not legal advice.