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Miami Herald Publishing Company v. Tornillo - Appeal Goes To The U.s. Supreme Court

statute reply public newspaper

The Miami Herald appealed the Florida Supreme Court's reversal before the U.S. Supreme Court on 17 April 1974. Led by chief defense lawyer Jerome A. Barron, the paper argued that the right to reply statute was indeed unconstitutional according to the First Amendment. Attorney Daniel P. S. Paul argued that a strict interpretation of the First Amendment prevented the private individual from responding to press criticism. Whereas the press was easily accessible in 1791 when the amendment was ratified, the trend toward media monopolies in the modern age prohibits common people from participating in public debate. This is mostly due to "economic factors which have . . . made entry into the marketplace of ideas served by the print media almost impossible," the trial transcripts stated. Therefore Paul argued, governmental intervention, such as the right to reply statute, is necessary to ensure a wider debate.

The Miami Herald's counsel embraced Tornillo's argument regarding the need for wider debate as ammunition for their own case. Upholding the right to reply statute, they reasoned, would constrict rather than broaden debate on public issues as newspapers would shy away from controversial topics. In effect, reluctance to critically analyze issues, especially regarding politics and candidates for public office, would overshadow editorial judgment. Moreover, if the government were permitted to enforce the right to reply statute, a precedent would be set for intervening in other editorial decisions. This intervention, the Miami Herald pointed out, is exactly what the First Amendment was designed to protect against.

In a unanimous decision written by Chief Justice Burger, the Supreme Court found Florida's right to reply statute unconstitutional according to the First Amendment. In his opinion Justice Burger cited Associated Press v. United States (1945) as the first case which addressed government's reluctance to interfere in the affairs of a newspaper. He quoted that forcing a newspaper to print something that "`reason' tells them should not be published" violated free press guarantees. Furthermore, telling the Miami Herald what it must print is no different from telling them what not to print. Coupled with this argument was the point that enforcing the right to reply statute would incur printing costs and limit column space, effectively preventing the editors from printing other items that they may deem more important. In conclusion, Justice Burger wrote:

A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials--whether fair or unfair--constitute the exercise of editorial control and judgment.

Although the U.S. Supreme Court decided the right to reply statute was unconstitutional, this does not prohibit public officials from contesting personal attacks printed by a newspaper. The print media is still beholden to libel laws that prevent them from publishing unsubstantiated, slanderous reports. However, Justice White expressed concern in his concurring opinion that proving libel was becoming increasingly difficult. Indeed, in Gertz v. Robert Welch, Inc. which was announced the exact day of the Miami Herald Publishing Company v. Tornillo decision, the Court disabled most of the protection afforded by the individual against libel. White warned that this was a dangerous development in a world where the power of the media monopoly remains unchecked.

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