Right-to-Reply Laws

Everyone in the United States is in favor of a free press, until you get down to particulars. Then qualifications abound. Justice Hugo Black was almost unique in saying that freedom of the press was absolute and anyone could print anything he liked, from libel to pornography, without exception. His fellow justices have generally argued that the First Amendment has its limits, without always being able to agree as to just what they are, and the general public feels that some things—but not always the same things—go too far. Fraudulent advertising, say, or advocating the violent overthrow of the republic. The CIA insists it may censor its agents' memoirs, John Mitchell tried to prevent the New York Times from printing the Pentagon Papers, and Herbert Marcuse thinks no one should have the right to advocate racism. When it comes to particulars the press does not want for adversaries.

For all the argument, however, it has generally been accepted in this country that a free press is the bedrock of political liberty. Without the right to say what they think, however intemperate, wrong-headed or wounding, the people would be powerless. The Supreme Court explicitly recognized this in 1964 when it unanimously ruled that public officials are not protected against public accusation, even when false, unless they can prove a “malicious” intent or “reckless disregard” of the facts.

“Debate on public issues should be uninhibited, robust and wide-open,” the Court said, “and it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.” In effect, the Court agreed with Harry Truman that public officials who can't take the heat should stay out of the kitchen.

No ruling is so firm that it is not subject to revision, however, and the present Supreme Court, a different body from the one which ruled so unequivocally ten years ago, is being asked to turn down the temperature. The case currently before the Court is The Miami Herald Publishing Company v. Pat L. Tornillo and the law at issue is an alluringly-named Florida statute which grants every candidate for public office a “right to reply,” at equal length and in a space of equal prominence, to any newspaper attack on his personal character or public record. At present only one other state, Mississippi, has a “right to reply” statute but a favorable ruling by the Supreme Court would probably bear quick fruit. President Nixon feels that the 1964 decision granted reporters “virtually a license to lie” and Senator John L. McClellan, Democrat, of Arkansas, has already called for a federal “right to reply” statute. No one likes being attacked in print and legislators can be expected to pass any Supreme Court-approved law which would take some of the sting out of public life.

The facts in Herald v. Tornillo are quickly established. Tornillo, a Miami union leader, was attacked by the Herald when he ran for state representative two years ago. Invoking Florida's “right to reply” statute for only the second time since its passage in 1913, Tornillo demanded space for a reply in the Herald's editorial columns despite the fact that the paper had routinely printed his letters of protest in the past. The Herald balked, Tornillo sued and eventually the Florida Supreme Court ruled in his favor, arguing that the law enhanced rather than compromised freedom of the press because it guaranteed the public's “right to know” both sides of public controversies. It is the Herald's appeal which is now before the Supreme Court.

The Florida law is misnamed because it does not really grant a candidate a “right” to reply; that is something which the Constitution already protects. Instead, it guarantees a forum for reply, something quite different. The notion is not a new one. Even A.J. Liebling, hardly an opponent of the First Amendment or a friend of officialdom, once wrote that “Freedom of the press is guaranteed only to those who own one.” This position has been defended most vigorously by Jerome Barron, a Florida law professor representing Tornillo, who argues that the First Amendment is empty if it does not implement, rather than simply protect, an individual's right to print his views. The Florida court largely accepted Barron's view, citing the steady decline in newspapers and suggesting that the public ought to have a Constitutional right of access to the ones that remain.

This argument is not without merit. There is very little competition between newspapers on the local level and the potential for abuse is obvious. Indianapolis and Manchester, New Hampshire, are cases in point. If the attack on Tornillo had come from a local television station, the FCC's “fairness doctrine” clearly would grant him the right to reply on the attacking station. By extension, then, the argument goes, he ought to have a right to defend himself against the Herald in the Herald. Theoretically a city could have a dozen newspapers but in fact most Americans now live in one-newspaper towns, which means that an injured aspirant for public office must reply in the paper which attacks him, or he cannot reply at all. Telling him that he is free to start his own paper is like telling a traveler bound for Chicago that he may start his own railroad. It is a freedom without substance, a pious fraud.

The problem with “right to reply” statutes is not so much their ostensible purpose, which is high-minded and unexceptionable, as their effect, which would be to grant for the first time a degree of public control over the editorial content of newspapers. That degree might be small to begin with, but once conceded it would tend to grow. This, of course, would be denied vigorously in any Congressional debate over a “right to reply” statute, but the government also promised, when it finally got a wiretap law in 1968, that it would never dream of tapping or bugging anyone but gangsters and spies. That is the sort of promise which the fox gave to the gingerbread boy, when he offered to ferry him across the river.*

There are two important ways in which “right to reply” statutes would undermine the freedom they are alleged to enhance. The first is that they would tend to become universally applicable. Why, after all, should a “right to reply,” or guaranteed forum, be uniquely reserved for candidates for elective office, as stipulated in the Florida statute? Officials, union leaders and anti-war activists are just as vulnerable to newspaper “attack” and could fairly demand an equal right to reply. Clive Barnes can destroy a young playwright with a single review; why shouldn't playwrights have a right to reply in the only space which counts, the theater page of the Times? What about all the other people who can claim they have been injured by newspaper comment? The coaches of losing teams, for example, or lawyers defending unpopular Presidents? The list is endless: baby doctors accused of treason, nominees for the Supreme Court who are not confirmed by the Senate, union leaders convicted of murder, Secretaries of Defense charged with war crimes, the builders of aircraft which fall out of the sky, press secretaries ridiculed for dismissing lies as “inoperative,” Jesuits charged with anti-Semitism, generals who do not win wars, the mothers of assassins. Presumably they, too, are protected by the First Amendment. They are in no position to start newspapers. Why should they be denied the guaranteed forum for reply which Florida now grants to every candidate for a local school board? It is a short step, after all, from candidates to elected officials, and from elected to appointed officials, and thence to everyone else.

The rule of universal applicability also means that a “right to reply” to newspaper attack would quickly be extended to every other sort of periodical, from trade journals to diocesan newspapers, and ultimately even to books. The number of magazines is diminishing, too, and it would hardly be consistent with the First Amendment to grant the ones that remain a unique freedom to print criticism which was denied to newspapers, or to expose officials to attack from one quarter while protecting them from another. Magazines are more intimate than newspapers and the threat to free speech inherent in “right to reply” statutes is somehow clearer in their case. Would it enhance freedom of the press to require Catholic magazines to print the views of abortionists? Must the New Leader provide a forum for Stalinists? Should Lester Maddox have a right to space in The Race Relations Reporter? Must the Audubon Magazine offer its gorgeous pages to Western Senators who favor the poisoning of coyotes? Many small magazines of opinion are sustained only by conviction. They could hardly survive a situation in which half of every deficit dollar was a free gift to their bitterest opponents.

The second danger grows out of the first. Who is to decide what constitutes an “attack,” its precise length and the prominence of its position in the paper? Would an attack on “Congress” for dragging its feet on impeachment be answerable by each and every Representative? Who would answer attacks on “the public” for its indifference to freedom of the press, or on “teachers” for their insensitivity to the richness of ghetto English, or on “the oil industry” or “the automotive industry”? If every citizen were not to be the sole judge of whether or not he had been attacked, at what length and how prominently, then some public institution would have to act as arbiter. Its power would be very great indeed. If there were no appeal of its decisions its power would be totalitarian, and if there were appeal there would be no end to them. Almost every story in every publication would be the potential focus of a legal struggle as bitter as a custody fight. The purpose of “right to reply” statutes might be to guarantee a forum for the voiceless, but their effect would be to establish a degree—and inevitably a growing degree—of public control over the press. It is not hard to see who would benefit. Would a “right to reply” board be less instinctively sympathetic to the President in its rulings than the Internal Revenue Service officials who praised him for the neatness of his tax returns? A man who would believe that, as the Duke of Wellington said in another context, would believe anything.

“Right to reply” advocates misunderstand—unless they understand only too well—the purpose of the First Amendment, which is to protect the freedom of citizens to publish their views, not to guarantee their fairness. The men who wrote the Constitution were hardly indifferent to such matters, but they concluded that fairness, like moderation and wisdom, could not be imposed upon political debate. Any attempt to do so, they felt, would inevitably favor one faction over another, with the most likely beneficiary the faction in power. “Fairness” is not the object of political struggle, after all, but only a means, an intellectual style, a tone intended to persuade. Political partisans can and do resort to ridicule, invective and exhortation as well as to reason. It is hardly fair to say of Gerald Ford that he has played too much football without his helmet. Perhaps in strict fact he always wore his helmet. Nixon was not being fair in 1952 when he attacked the Democrats as the party of “Communism, corruption and Korea.” Barry Goldwater was unfair in 1964 when he called Lyndon Johnson “the biggest faker in the United States” and Bobby Kennedy was unfair in 1968 when he said Johnson was “calling upon the darker impulses in the American spirit.” Unfair attack is the common coin of politics. The lack of “fairness” may work for or against an advocate; that is a tactical question. But if his freedom to speak and publish is to have substance, the choice of words must be his alone.

The legal arguments in favor of “right to reply” statutes are so strained, and the consequences of their acceptance so clear, that it is hard to see how the Supreme Court could accept them. And yet . . . it might. There is a lot of hostility toward the press in this country, for the same reason there is a lot of hostility toward city hall, General Motors and the Internal Revenue Service, because they are huge, indifferent and inaccessible. Arrogance is the least congenial of human failings. Attacks on freedom of the press get as far as they do, which is farther all the time, because a lot of people would like to see the Times taken down a peg or two and either do not see or do not care that their own freedom would inevitably be compromised as well.

It is unfortunate that the press must be the chief defender of the press in these matters; it makes freedom of the press seem somehow self-serving. The Times may argue that it is defending the people's freedom in defending its own but this has a specious ring to it, like Charlie Wilson's assurance in the 1950s that what's good for General Motors is good for the country. Things were different in the 18th century when starting a newspaper was a week's work for a handful of men; citizens then were jealous of their right to publish unimpeded because it was a right they might reasonably expect to exercise. But in the age of media giants like Time-Life, CBS, the New York Times and the Washington Post, when starting a newspaper is beyond all but centi-millionaires, it is easy to see freedom of the press as little more than an institutional prerogative. This ignores the importance of small papers and magazines, many of which have an influence greater than their circulation, but it is an opinion widely held all the same.

The best cure for the ills of democracy, it is said, is more democracy, and the best cure for the failings of newspapers would be more newspapers. Let a hundred flowers bloom! But how are we to start more newspapers, when the necessary investment is in the tens of millions and the chances of financial success are problematic at best? That, as they say, is another subject altogether. In the meantime we must protect the independence of the newspapers that survive, even as we criticize their performance, because if they cannot publish without let or hindrance, who can?

*The too-trusting gingerbread boy, it will be remembered, started out on the fox's back, and ended inside his stomach.

This article was originally published in the May 17, 1974 issue of Commonweal.