In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), a unanimous Supreme Court struck down a Florida law granting a right to reply to political candidates whose personal character or official record had been attacked by newspapers. The state right-of-reply statute permitted the attacked candidate — in this case a candidate for the Florida House of Representatives — to demand that the newspaper print free of charge any reply that the candidate wished to make to the newspaper’s editorial criticisms.

Court gave print media constitutionally protected editorial autonomy, unlike broadcast media

By giving the print media constitutionally protected editorial autonomy, Tornillo dramatically differed from the Court’s treatment of the broadcast media. In Red Lion Broadcasting Co. v. Federal Communications Commission (1969), for example, the Court upheld the fairness doctrine, which required broadcasters to give free reply time to persons attacked on air. Later, in CBS, Inc. v. Federal Communications Commission (1981), the Court sustained a Federal Communications Commission (FCC) regulation requiring broadcasters to give reasonable access to candidates for federal elective office.

Tornillo confirmed print media had a higher status under the First Amendment

The Tornillo decision, then, confirmed that the print media’s relationship to the First Amendment enjoyed a higher status than the broadcast media’s. Even though advocates of a legally enforceable right of access to the press argued that newspapers had become monopolistic businesses, unresponsive to the diversity of popular opinion, the Tornillo Court held that the Florida right-of-reply statute unconstitutionally intruded into the freedom of editors to determine the content of their newspaper pages.

The Court also found that the statute, by mandating that a newspaper print a reply of someone else’s choosing, effectively penalized that newspaper for publishing controversial material. Faced with the financial and editorial burdens imposed by a mandated right of reply, newspapers might well take the safe course by avoiding the kind of political controversy that could result in the need to grant rights of reply, thereby blunting or reducing newspapers’ political and electoral coverage.

Tornillo was opposed by those who sought a right of press access

Meanwhile, Tornillo struck a blow to those who sought a right of access to the press. These proponents argued that the scarcity rationale used to justify regulation of the broadcast media in Red Lion should also apply to newspapers, especially in view of the prevalence of one-newspaper cities and the high barriers of entry into the industry. The Court, however, refused to extend the scarcity rationale to privately owned newspapers — all of which were descendents of America’s unregulated, politically active, and highly competitive press of the late eighteenth century.

This article was originally published in 2009. Patrick Garry, JD, PhD, is a professor of law at the University of South Dakota School of Law. Professor Garry’s books on the First Amendment include Scrambling For Protection: The New Media and the First Amendment, An American Paradox: Censorship in a Nation of Free Speech, and Limited Government and the Bill of Rights.

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