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.*