MIAMI HERALD PUBLISHING CO. v. TORNILLO

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Argument of Daniel P. S. Paul

Chief Justice Warren E. Burger: We’ll hear arguments next in 73-797, Miami Herald Publishing Co against Tornillo.

You’re losing your audio Mr. Paul.

I think you may proceed whenever you’re ready Mr. Paul.

Mr. Daniel P. S. Paul: Mr. Chief Justice and may it please the Court.

This case is here on appeal by the Miami Herald from a decision of the Florida Supreme Court, which sustained the constitutionality of Section 104.38 Florida statutes.

This appeal involves the constitutionality of that statute on its face under the First and the Fourteenth Amendments.

This statute involves the question of whether a newspaper under the First Amendment may be compelled by the Florida Legislature, to print the political statement of a candidate which it does not desire to print.

The facts of this case arose when the appellee, Mr. Tornillo became a candidate from Dade County for the Florida Legislature in the 1972 State Elections.

In 1913, the Florida Legislature had enacted a criminal statute, which is reproduced in the appendix in full at the top of page 47.

That statute requires a newspaper to give a political candidate, free space to reply to any criticism of the political candidate published by a newspaper.

Statute on its face applies to criticism of a candidate whether published in news articles, columns or editorials.

The truthfulness or fairness of the criticism is irrelevant under the statute and the violation of that statute is the crime punishable by up to one year in jail and a fine up to $1,000.00.

There is no legislative history of the statute.

It was adopted as a part of the States Corrupt Practices and Elections Act and there’s no record of it’s use for almost 60 years.

Its First judicial test was in 1972 in State versus News Journal.

In that case --

Justice William J. Brennan: I gather even on the face of it, it might be read as applicable only to assailing a person running for a nomination who’s already in office.

It’s been given a broader application to that I suppose --

Mr. Daniel P. S. Paul: I think the statute actually is broader because the definition of candidate includes a person who qualifies, a person who is already in all --

Justice William J. Brennan: In this case has your court, Florida Supreme Court given it --

Mr. Daniel P. S. Paul: Yes, the Florida Supreme Court in interpreting this statute in this case, said that it applied to editorials and other articles.

Justice William J. Brennan: Was Mr. Tornillo an office holder or --

Mr. Daniel P. S. Paul: No, he was a candidate for an office in State Legislature.

In the first judicial test of this statute in Florida courts in 1972 in State versus News Journal, the Mayor of Daytona Beach had the newspaper arrested for refusing to print the Mayor’s reply to an article critical of the Mayor.

The lower court held the statute violated free press and due process guarantees of the U.S. in the Florida Constitutions and dismissed the criminal proceedings, that decision is reproduced in the appendix at page 51.

At that time, the Florida Attorney General conceded the invalidity of the statute and refused to appeal the decision.

Mr. Tornillo became a candidate for the legislature some seven months later.

That election was scheduled for October 4, 1972.

On September 20, seven -- 14 days before that election, the Herald printed an editorial critical of Mr. Tornillo’s candidacy, that editorial appears at page 5 of the appendix.

It referred to Mr. Tornillo, criticizing his opponent for violating the election law.

The editorial pointed out that Mr. Tornillo was the same one, who had led an illegal teachers’ strike and the editorial concluded by saying it would be inexcusable if the voters elected Mr. Tornillo to the Legislature.

Mr. Tornillo waited a week and on September 27, submitted a statement he entitled, “Pat Tornillo in the CTA record.”

He demanded that the Herald print that statement, pursuant to the Florida statute, which carries criminal sanctions.

Mr. Tornillo in his statement did not claim that the editorial was not truthful and he did not seek a retraction under the Florida Retraction Statute.

He claimed that the Herald was dwelling on past history and he listed his own accomplishments during the past four years.

The Herald did not print that statement of candidate Tornillo.

The Herald printed a second editorial on September 29, which appears in the appendix at page 8.

Mr. Tornillo submitted a second statement the next day and demanded that it'd be printed, that statement appears at page 10.

Again, there was no claim that the editorial was false.

The Herald did not print Mr. Tornillo’s statement.

The next day on October 1, Mr. Tornillo filed suit in the Dade County Circuit Court, seeking actual and punitive damages and a mandatory injunction to print his two statements.

In his complaint, Mr. Tornillo alleged that by this Florida statute, Florida had established “a fairness doctrine” in enacting this compulsory publication statute.

At Mr. Tornillo’s request an emergency hearing was held in the next day, October 2.

The Florida Attorney General was present, since a statute of the State's constitutionality would be questioned and he advised the Court that he would not defend the statute as he had done in prior case involving the Daytona Beach News Journal.

The Court denied Mr. Tornillo’s request for an injunction and declared the statute was unconstitutional because it violated the First Amendment and the due process guarantees of the constitution.

Mr. Tornillo then advised the Court that he elected not to proceed further in that case and the case therefore dismissed with prejudice.

Mr. Tornillo appealed directly to the Florida Supreme Court and on July 10 of this year in a per curiam opinion, one justice dissenting, the Florida Supreme Court reversed the lower court and held the statute did not violate either the First or the Fourteenth Amendments or the due process guarantees of the Constitution, that opinion of the Florida Court is in the appendix at page 15.

A rehearing was denied in a second per curiam opinion of the Florida Supreme Court on October 10, which is also in the appendix.

The Herald appealed directly to this Court.

On January 14, the Court agreed to hear this appeal on the merits, postponing decisions on appellee’s jurisdictional claim until the hearing on the merits.

Appellee has subsequently abandoned his claim that this Court does not have jurisdiction of this appeal.

The Florida statute that is before the Court today --

Justice William H. Rehnquist: Mr. Paul, whether or not the appellee has abandoned the claim, if nonetheless when we will have to decide I suppose, do you read the Florida Supreme Court’s opinion as conferring any civil right upon Tornillo when the case goes back to the Circuit Court of Dade County and his right to civilly proceed against your client?

Mr. Daniel P. S. Paul: Yes, I think the Florida Supreme Court said that there was no injunction remedy under the statute, but they did imply, despite the fact that it was a criminal statute, a right for civil damages.

Justice William H. Rehnquist: Well you cite in your brief to pages 16 and 17 of the appendix, the Florida Supreme Court opinion.

There is certainly as no language as such on the Florida Supreme Court that says he can recover damages, is there?

Mr. Daniel P. S. Paul: Yes I think that the Florida Supreme Court in that opinion specifically said that the fact that this was a criminal statute did not mean a civil right could not be implied in that decision.

It appears in the Florida Supreme Court opinion.

I don’t have the page right, it end --

Justice William H. Rehnquist: Well, don’t take up your time on it.

Mr. Daniel P. S. Paul: It's page 40, I believe in the appendix, that particular statement, 39 or 40.

Justice Potter Stewart: Bottom line of page 40 there.

It says that it establishes the civil --

Mr. Daniel P. S. Paul: Criminal penalty can easily be severed and deleted and still leave a complete legislative expression establishing a civil right to damage, that is at the bottom of page40.

Justice Potter Stewart: That however doesn’t answer the jurisdictional question, that is the question of finality?

Mr. Daniel P. S. Paul: No, I -- the Court of course has to examine that question, I think though that the issue in this case, is the constitutionality on its face of the Florida statute and that issue has been fully litigated in the Florida courts.

There are no non-constitutional issues remaining in this case, and the constitutional issue is ripe for determination.

I think --

Justice Byron R. White: You mean the paper -- if the statute is constitutional, the paper concede liability?

Mr. Daniel P. S. Paul: No, the paper does not concede --

Justice Byron R. White: Well that’s not the issue then?

Mr. Daniel P. S. Paul: The remaining issues would be issues solely of Florida law as to the remedy and as to the amount or damage.

Justice Byron R. White: Where, you mean where?

Mr. Daniel P. S. Paul: That possibility is --

Justice Byron R. White: That you may never have to face the question?

Mr. Daniel P. S. Paul: I think though under the principles lay down by this Court in Mills versus Alabama, this constitutional question is now ripe for decision and threatens basic First amendment rights, the decision of the Florida Supreme Court holding the statute constitution --

Justice Byron R. White: And this constitutional issue has been finally settled in the Florida Court?

Mr. Daniel P. S. Paul: Finally settled in the Florida courts and Florida election scheduled within a few months and this statute would seriously inhibit the exercise of First Amendment rights in the decision of the Florida Supreme Court would deter the exercise of those rights.

And I think under the principles laid down in Mills versus Alabama, this case is ripe for decision.

To sanction the Florida --

Justice Potter Stewart: Am I wrong in recollecting that in Mills against Alabama, the newspaper conceded that it had no other defenses?

Mr. Daniel P. S. Paul: That is correct.

Justice Potter Stewart: And here, you just told my brother White that you do have defenses based upon Florida law, and as he suggested you might win and that would be the end of the case.

There’ll be no longer a case for controversy.

Mr. Daniel P. S. Paul: Except that the decision of the Florida Supreme Court from point of view of inhibiting the exercise of First Amendment rights in Florida would still stand, even if the non-constitutional issues should provide success for the Miami Herald in this case.

Justice Potter Stewart: But you would have won this case and this Court is here just to decide cases or controversies, that’s the extent of our power under Article III?

Mr. Daniel P. S. Paul: The --

Justice Byron R. White: Well how would you be inhibited when you haven’t printed anything yet that you did want to and you are not about to, I suppose?

Mr. Daniel P. S. Paul: The Florida Supreme Court has held the statute constitutional and of course the Herald would, in the absence of the reversal by this Court, would have to abide by the constitutional ruling of the highest court in its State.

It would therefore vitally affect not only the Herald’s rights, but many other newspapers rights in Florida who would be guided by that decision in the exercise of their editorial discretion to determine whether or not to print the replies of political candidates.

As Mr. Justice Douglas pointed out in his concurring opinion in Mills versus Alabama, it’s not necessary that the non-constitutional issues remaining in the case, all be resolved when the decision of the state court inhibits the exercise of First Amendment rights.

And to sanction the Florida statute, this Court would have to make a fundamental revision of the First amendment.

Justice William J. Brennan: Well, I noticed in your reply brief that you also rely on North Dakota Pharmacy Board --

Mr. Daniel P. S. Paul: Yes.

Chief Justice Warren E. Burger: -- against Snyder --

Justice William J. Brennan: Where we decided the constitutional question, not withstanding there were state laws?

Mr. Daniel P. S. Paul: Correct, I think --

Justice William J. Brennan: That one was not a First Amendment case?

Mr. Daniel P. S. Paul: No, it was not a First Amendment case.

Of course, again, it seems really an exercise in futility to send this case back to decide the non-constitutional issues and then have it wind its way back in a long and tortuous process, from the constitutional issue, which obviously in the light of the Florida Supreme Court opinion will have to be decided.

Justice Byron R. White: So if you win the case, it wouldn’t come back.

It'd be end of it, you would be the victor?

Mr. Daniel P. S. Paul: This case wouldn’t, but another case raising the same issue would come back because the Florida Supreme Court’s decision would still stand.

We would not win on the basis of non-constitutional or constitutional rights and I think that that issue will inhibit the exercise of those rights in Florida until it is settled.

Chief Justice Warren E. Burger: Before the North Dakota case, do you think you might have some serious troubles on jurisdiction here?

Mr. Daniel P. S. Paul: Yes, I think we might --

Chief Justice Warren E. Burger: You think -- you rest on that very firmly, I notice in your reply brief?

Mr. Daniel P. S. Paul: Yes.

Compelling a newspaper to print is the same as telling it what not to print.

It is censorship forbidden by the First Amendment.

There is a national policy that has been expressed in the First Amendment, that newspapers should not be deterred in printing what they choose particularly about political candidates.

Mr. Justice Stewart pointed out in his opinion in the CBS case, the First Amendment protects newspapers from the intrusive editorial form of government.

If there is any area where the role of the press under the First Amendment must remain unfettered, it is criticism of political candidates of the very kind expressed in this case.

One of the chief roles of the press is vigorous criticism of candidates and the public officials.

Newspapers historically in this country have been in the business of grinding access and particularly political ones.

Editorial discretion and judgment must mean freedom to choose what to print and what not to print.

As Mr. Chief Justice Burger pointed out in the Columbia Broadcasting case, editors are editing is what editors are for and editing is selection and choice of material.

The only restrains on the autonomy of the press, which this Court sanctioned in the Columbia Broadcasting case in its non-business aspect,s are the restraints imposed by its readers and by its journalistic integrity.

The attempts at regulation of fairness or balance of newspapers strikes at the very core of the First Amendment.

As Professor Barren concedes in his writings, it would lead to the press being treated as a public utility and licensing of the press would be the result.

There would be a return to the conditions, which led to the adoption of the First Amendment to begin with.

Freedom of the press, not fairness is what the First Amendment is concerned with.

Fairness has been left to the editors.

As Mr. Justice Stewart pointed out in his opinion in the CBS case, fairness is too fragile a commodity to be left to the Government to decide.

Although the Florida statute is vague and ambiguous, it is certainly broad in scope.

It may be invoked by any candidate, who has filed for local, state or federal law office.

In fact, it may be invoked by an incumbent public official, as soon as he qualifies for reelection and becomes a candidate.

It applies to any criticism of the candidate published in the newspaper.

It is not limited to editorial criticism.

It applies at the very least, to news articles, to syndicated columns, to cartoons.

In fact the statute could be triggered by a news article in which one candidate assails another.

A reply is demanded and the other candidate demands a counter reply and the entire round-robin ad infinitum could be setup in the newspaper.

One article which criticized several candidates would trigger as many replies, as there were candidates criticized.

Each under the statute would be entitled to his separate reply.

It would apply to newspapers whether or not they were published in Florida.

Justice Thurgood Marshall: What would happen if they publish editorial against all of the candidates in one political party?

Would each one them have an answer?

Mr. Daniel P. S. Paul: Under the Florida statute, each of the candidates would have an answer.

A New York Times story for example, on Florida politics, would trigger the statute and the New York Times under penalty of criminal sanctions would be required to accept replies of Florida candidates.

And again, I emphasize that this statute applies without regard to the true or the falsity or the fairness of the original article, regardless of whether there was any malice involved.

In fact this statute stands the libel standards of the New York Times versus Sullivan on its head.

Newspapers which publish something which is true may be required to publish a totally false reply.

As I said, statute carries criminal penalties.

The editor can be put in jail for up to a year and fined a thousand dollars in addition to the civil remedies, which have been implied by the Florida Supreme Court.

Now the appellee seeks to justify this sweeping incursion on the First Amendment on the ground that the state has an interest in fair elections and that this justifies abridgment.

We submit that such an argument ignores this Court’s holding in Mills versus Alabama, which interestingly is not cited in the Florida Supreme Court opinion or in the appellee’s briefs.

In the Mills case, it was argued in defense of that Alabama statute that purity of elections, justified this ever so slight, abridgment of the First Amendment made by the statute, not to publish any critical of a candidate on election day.

Nevertheless the court struck that statute down on the ground that the state's interest in fair elections could not justify an abridgment of the First Amendment.

Secondly, we are told by appellee that the statute is justified by the economic concentration of the media.

However, there is nothing in the record to justify appellee’s argument that the media is now one vast monolith.

The facts are, that there is much more diversity in the media and in the number of media, than at the time the First Amendment was adopted.

But again, the Court has found in the Associated Press case that even antitrust violations do not justify infringement of the First Amendment.

Of course, the press has power.

It’s obvious that the press has to have power to assure its editorial independence and to assure that it can fulfill its role under the First Amendment.

Interestingly enough, the argument made in this case for this statute and the benefits it theoretically would provide, the statute would have exactly the opposite effect.

Newspapers, particularly small ones, with space limitations would be deterred in publishing political criticism for fear of triggering the statute.

Publications for example with the distinct editorial viewpoints would have the greatest dilemma of all.

Will the 12 black newspapers, serving the black community in Florida have to give equal time to George Wallace to reply as a candidate, despite the views of the particular editor of that newspaper in the community which it serves?

There are many other examples but we submit that an examination of this statute on its face dictates that the opinion of the Florida Supreme Court must be reversed.

I should like to save the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Barron.

Argument of Jerome A. Barron

Mr. Jerome A. Barron: Mr. Chief Justice and may it please the Court.

My name is Jerome Barron and I am counsel for Appellee Pat Tornillo.

First thing, I think I would like to do is to answer a question and that question is, who is Pat Tornillo as I read the host to briefs that have been filed in this case on the other side.

I had to scratch my head sometimes to remember who Tornillo was because as I read the briefs he sounds like he was some high official in the Government.

Justice William H. Rehnquist: Does he pronounce his name Tornillo rather than Torneo.

Mr. Jerome A. Barron: Tornillo.

Justice William H. Rehnquist: Tornillo.

Mr. Jerome A. Barron: Mr. Justice Rehnquist Tornillo.

Pat Tornillo is the Executive Director of the Classroom Teachers' Association of Dade County, Florida and he is a very controversial fellow and he intends to remain being a very controversial fellow.

Mr. Tornillo led the school teachers of Florida in a strike which angered the Governor of Florida.

He -- and it also angered the Miami Herald as we are reminded in these editorials in the appendix in this case.

That is everybody’s right to be angered and to say what they please under our Constitution.

What Mr. Tornillo wanted, however, when he read this editorial was to fulfill his role as to use the phrase in New York Times against Sullivan, this Court’s very own phrase he wanted to serve a role as a citizen critic of Government.

Mr. Tornillo had an advantage over other people who had have media problems.

First of all, he lived in a state which has and has had a Right of Reply Statute since 1913.

Secondly, he had the advantage of this Court’s plurality opinion in Rosenbloom against Metromedia.

And in that case and if there is any quotation that is important in this case, in any particular portion of the opinion that’s in Rosenbloom that is important, it is the passage and it’s very short but I like to bring at the Court’s attention.

In 403 U.S. 29 at page 47, Mr. Justice Brennan joined by Mr. Justice Blackmun and Chief Justice Burger said this.

“If the States fear that private citizens will not be able to respond adequately to publicity involving them, the solution lies in the direction of insuring their ability to respond rather than in stifling public discussion of matters of public concern.”

To me the paradox of this case is that we have mountains of print in this case about censorship and the only person who had been sensitive in this proceeding is Pat Tornillo.

The question before the Court, the question presented by the statute is if a candidate during the course of an election is editorially attacked by a daily newspaper in his community, may a state statute afford him a reply of similar amount of space?

That is the question before the Court.

Justice Thurgood Marshall: Or they put it in another way, a person who cannot reply to an editorial by merely becoming candidate automatically gets that right?

Mr. Jerome A. Barron: That’s right, Mr. Justice Marshall.

In other words, the position of course is that generally there are no access rights to the media, that is the law.

You are quite right Mr. Justice Marshall, that the point is that if one becomes a candidate and one is attacked then --

Justice Thurgood Marshall: So, if an editorial is written against Joe Dokes (ph) calling him anything and really condemning him to high heaven and Joe Dokes says well I know how to fix him, I'll become a candidate.

Mr. Jerome A. Barron: But --

Justice Thurgood Marshall: Will this statute --

Mr. Jerome A. Barron: The media still have --

Justice Thurgood Marshall: -- apply to him even if a man does that deliberately, this statute covers him [Voice Overlap]

Mr. Jerome A. Barron: Not quite Mr. Justice Marshall because the media will still have the upper hand because if they have attacked him prior to the time he became a candidate and then he becomes a candidate, they still will be able to deny him a forum under the statute as long as they don’t editorial attack -- as long as they do not editorially attack him.

Justice Thurgood Marshall: Joe -- well let me put in another way.

If he is an ordinary citizen and he is attacked, he can get no redress unless he becomes a candidate --

Mr. Jerome A. Barron: And is attacked.

Justice Thurgood Marshall: But if he becomes -- well, after that if he hadn't become a candidate he could still be attacked, couldn’t he?

Mr. Jerome A. Barron: Yes he could be, I understand --

Justice Thurgood Marshall: So to insulate him from attack he becomes a candidate.

Mr. Jerome A. Barron: Yes, but my point is --

Justice Thurgood Marshall: This statute would cover him.

Mr. Jerome A. Barron: I don’t believe that the statute goes quite that far Mr. Justice Marshall.

As I read the statute, the attack would have to come after he is become a candidate.

Well, if that’s what you’re saying, I agree with you.

Justice Thurgood Marshall: (Inaudible)

Mr. Jerome A. Barron: He is insulated from not being able to respond.

That’s correct, yes sir.

There has been considerable discussion in the argument of the appellant about the criminal features of the statute.

In the complaint that was filed in this case no criminal sanctions were ever asked for.

Moreover, in the petition for rehearing when the same parties and amici who are here made the same argument about the criminality of the Statute 104.38, the Florida Supreme Court on page 39 in this petition for rehearing said that no criminal penalty is sought in the case sub judice, they emphasize that.

They said that very clearly on page 39 and therefore the validity vel non of the criminal penalty is not here involved.

Now obviously the Court only wanted to pass upon the case before them, but they certainly prepared the way for the future in case there was a criminal proceeding because they said on the very next page, page 40 of the appendix, anticipating a criminal penalty, they said the statute is so constructed that the criminal penalty can be easily severed and deleted and still leave a complete legislative expression establishing a civil right to damages.

That language has to be read in conjunction with the second paragraph on page 39.

I believe these two pages of the court decision below are very fundamental to an understanding of this case.

And if you look at paragraph 2 on page 39 what they talk about is the fact that what was sought by Tornillo was the publication of a reply.

That is all that is before this Court is a civil proceeding to enforce a reply.

We quite understand the reason and the drive to have this conceded as a criminal penalty in hopes in validating, but that is simply is not this procedure.

That is not this proceeding at all.

This statue can be justified on two very familiar propositions of constitutional law.

The first is that some regulation, some regulation of the press is permissible so long as it serves an overriding police power purpose.

Along with our brief on the merits to this Court we submitted an appendix, our own appendix of a 146 pages reciting various kinds of state statutes which restrict the press.

The primary motivation in preparing that appendix which has -- collects statutes about our restricting electioneering at the post, and reporting boycotts in newspapers, and reporting the names of rape victims in newspapers and so on.

The point of that was not to glory in regulation at all.

It was because we thought the statute that we are defending is so much superior.

Why did we think it was so much superior because unlike the legislation that I am talking about, this statute does not detract from expression one iota.

What it does is it adds to the realm of discretion, so that the statute has the unique feature of both responding to a police power purpose and free and fair and honest election and implementing one of the grand ideas.

In this Court’s opinion in New York Times against Sullivan when this Court said that it considered that famous case against a profound commitment, national commitment to debate vigorous free and wide open.

Justice William H. Rehnquist: Nothing in this court of Union in New York Times had suggested that one person would ever like to comment, there is somebody else’s printing press and make his expression that way.

Mr. Jerome A. Barron: Mr. Justice Rehnquist let me answer your question this way.

In the rich case law that has developed since this Court’s decision in New York Times against Sullivan, in 1964 for example you take the case as the go from New York Times against Sullivan to Rosenbloom against Metromedia in 1971.

I think you see the breakdown of an implied premise in New York Times against Sullivan.

The case talks and I just said, I just gave the word, the case talks about the word debate and I think the assumption of this Court was that if the media are free as perhaps they should be from the specter of heavy damage suits that can put them out of business, that then we would have vigorous criticism of governmental institutions and of public issues that was finally held in result by this Court in Rosenbloom.

However, by the time the New York Times against Sullivan fact situation was extended, first from elected public officials to non-elected public official to public figures and finally in Rosenbloom just to anyone involved in a public issue.

What happened was as this Court pointed out in its plurality opinion in Rosenbloom, the situation arose or the conclusion developed that it may not be true that debate will come merely by removing newspapers from libel -- from heavy libel suits for damages.

That is why in the plurality opinion, it was suggested that damages revisited was the answer, but rather that the answer might be to allow some kind of reply.

Florida with prophetic judgment has precisely the statute geared to fulfill that purpose, to let New York Times against Sullivan live, but yet to have debate.

Chief Justice Warren E. Burger: What if Mr. Tornillo in the course of his campaign had announced after this editorial attack that on the next Friday night he was going to take care of the Miami Herald and had announcements throughout the week and advertising to build up an audience on that conflict and that on Wednesday the Miami Herald said they wanted equal time and would like to have one of their editors or someone present to answer.

Do you think Mr. Tornillo would have to yield half of the time on the platform in the hall he had rented for that occasion?

Mr. Jerome A. Barron: He would not Mr. Chief Justice because Florida --

Chief Justice Warren E. Burger: The statute does not apply at all?

Mr. Jerome A. Barron: The statute does not apply him and may I just speak a little further to your point because I think it’s again a fundamental point in this case.

This case has occasion of apparently good deal of interest, yet, again as I had to struggle as I read through the briefs of the amici until and so on to remember who Mr. Tornillo was, I also had a struggle to remember what this case was about.

This case has nothing to do with the establishment as a matter of constitutional case law of a right of reply with all the problems of establishing parameters that, that would involve.

This case raises a much more narrow and a much more conventional constitutional question and that question is if a state by statute fulfilling a police power purpose, a purpose to go as directly to implement in the electoral code.

If a state passes such a statute which also happens to respond to the interest of public debate of New York Times against Sullivan, is such a statute constitutional and it seems to me Mr. Chief Justice that is a much more limited and a much more familiar task for constitutional adjudication.

Chief Justice Warren E. Burger: Then one step further on my question I had only a preliminary.

Suppose Florida had a statute that required a candidate for office who attacked a newspaper to give equal time in the place and setting in which he made the attack on the newspaper, would you then have an approximate parallel to this statute?

Mr. Jerome A. Barron: No, Mr. Chief Justice I do not believe you would for this reason.

From Marsh against Alabama to many First Amendment cases ever since, one of the insistent themes of this Court has been are there alternative avenues of communication?

I am not frankly worried about the access problems of the Miami Herald for the circulation of 350,000, the dominant paper in the State of Florida with 82% of the circulation in Dade County.

The other newspaper, the Miami News has only about 80,000 in circulation, so that under this Court’s own principles in terms of alternative means, in terms of restriction on free expression it seems to me that the constitutional case for this statute would be much greater than the statute governing that situation.

It is not our position here.

It is not our position here that we wish the newspapers of this country to say anything in their editorials that they do not wish to say.

Let them say what they please.

What we have is a situation that perhaps none of us wanted.

I do not see any conspiracy of the press not to the contrary.

We live here in the 20th century when economics and technology have given us a world perhaps we did not want.

And what we want -- what our task is to try to make an adjustment so that freedom of speech and process we understand it and as we believe in it can endure it, that is our problem.

It seems to me that we can get guidance from this case in terms of what the First Amendment was all about and how this statute responds to that.

Mr. Justice Brandeis' great and eloquent concurring opinion in Whitney against California and what Mr. Justice Brandeis said there was in a couple of famous pages he said that, “Liberty could be a means as well as an end” and that is why I respectfully disagree with the appellant and all of the sincere people I do not doubt on the other side.

I do not believe that it's completely beyond the power of the state to say that if someone is attacked to the point of destruction he cannot reply.

I do not believe the First Amendment means that.

Justice Thurgood Marshall: But you can just attack to destruction anybody in Florida except a candidate?

Mr. Jerome A. Barron: That is true, Your Honor and it is a situation I regret but it is a fact.

But we make progress in life incrementally and I believe that the sustaining of the statute would be progress in terms of the First Amendment.

Now I would like just to say a couple of other things with regard to Mr. Justice Brandeis’ opinion in Whitney against California because I really think it is terribly dispositive and helpful to this proceeding.

Mr. Justice Brandeis asked two questions and after all this is a person who himself studied the press, Mr. Justice Brandeis, the most famous of all Law Review articles is his article on The Right of Privacy in 4 Harvard Law Review.

And Mr. Justice Brandeis said two things as to why we have First Amendment protection.

First of all he said we have First Amendment protection because public discussion is a political duty.

What did he mean by public discussion is a political duty?

He meant that public discussion is a political duty in the sense of what we talk about today in our contemporary language as the public’s right to know.

Then he said something else which I think is equally responsive and significant in trying to ascertain the validity of this legislation.

Mr. Justice Brandies said, “Opportunity to air supposed grievances is the path of safety.

Opportunity to air supposed grievances is the path of safety.

”What did he mean by that?

I believe what he meant by that is that if we are going to have things like freedom of speech and press, if we are going to have a free society, then people have to have a sense of justice about existing institutions.

He believed that if they could reach an audience that if they could -- that if we could have what this Court has always talked about, debate then our institutions, our free institution would be secure.

It seems to me that 104.38, the Florida Right of Reply Statute though permits the airing of supposed grievances, and notice how artfully Mr. Justice Brandeis wrote.

He didn’t say there were legitimate grievances.

He said supposed grievances.

I find it shocking that the people on the other side should say well they can publish a false reply.

This Court and I have no quarrel with it has given the media that opportunity to write false replies in the sense, a false editorials rather, in the sense that we are not interested whether ultimately whether in the eye of eternity something is true or false.

Unless we can show calculatedly that it is false first -- from our First Amendment point of view, we are not interested because we know that we are going to have hurly burly of free debate we cannot stop and pause to verify each statement but by the same law and doctrine that gives that latitude to the Miami Herald, should not Tornillo.

If a state statute has given it to him, shall he not have also the same remedy, the same right?

Justice Harry A. Blackmun: Mr. Barron?

Mr. Jerome A. Barron: Yes, Mr. Justice Blackmun.

Justice Harry A. Blackmun: Your eloquence prompts me just to ask one question.

Perhaps you can help me over to hurdle of it.

For better or for worse, we have opted for a free press not for free debate?

Mr. Jerome A. Barron: Well, Mr. Justice Blackmun I hope that is not so.

I hope that we can work out of an accommodation between the two.

It seems to me it is not necessary to change any of our ideas about what should be in the content of editorials.

On the other hand, in terms of the realities that I averted to before I think it is possible for us to have both.

I think it is possible if we go with a statute that is careful enough and the situation that cries out for some redress injustice, this one does, it seems to me we can have both.

Now, it maybe that we could have situations where the two would be incompatible.

I do not believe that this is such a case.

I would like to address myself to one another argument that has been made here, and that is the so-called chilling effect argument.

I am a teacher of constitutional law.

I am supposed to know what chilling effect means whether I do or not, but in any case chilling effect comes from the Dombrowski against Pfister.

What was Dombrowski against Pfister all about?

The Dombrowski against Pfister was a case with civil rights workers who wanted to engage in protection that was unquest -- an activity and expression that was unquestionably protected.

And they were faced with a situation where law enforcement people said, in effect, we will prosecute you, we don’t care whether we win or not.

We will prosecute you, we will fix your First Amendment right, so that the specter of a prison was put aside or was a threat to the implantation of free expression.

Is that this case?

This, the Florida Court it seems to me, has done all but any state court can do in a case that did not involve or request for from criminal sanctions to exclude the possibility of criminal prosecution.

It seems to me it is that the chilling effect that was talked about in Dombrowski is a world away from the cry we have heard in this case which is that if we must give our proponent of forum we would rather say nothing.

To call that chilling effect, I think we have to ask a question.

Who then is putting the chilling effect on the expression of constitutional right?

Justice William H. Rehnquist: Well of course the only entity that the First Amendment is directed against is the Government.

I take it the Miami Herald can chill anybody’s rights to their hearts content, they are not violating --

Mr. Jerome A. Barron: Well, Mr. Justice Rehnquist that would be true absence the statute.

If it seems that if we had a request that Mr. Justice Marshall was suggesting by a private citizen, absent of statute then, and I think this is what your question was addressed to, then we would have a state action problem.

Justice William H. Rehnquist: That's not what my question is address to, but what you’re saying is in effect that the real chilling here comes from the Miami Herald?

Mr. Jerome A. Barron: That is correct.

Justice William H. Rehnquist: Well, there is nothing in the constitution that prevents that private person from chilling anybody’s First Amendment right?

Mr. Jerome A. Barron: But I would suggest Mr. Justice Rehnquist that since this Court has held time without number that the First Amendment is not absolute, that a state statute that imposes some duties on the Miami Herald changes that situation.

Chief Justice Warren E. Burger: Then you come down to the question of whether a state statute can impose, goes back to your [Voice Overlap] or it can impose a duty?

Mr. Jerome A. Barron: Exactly, Mr. Chief Justice that is the question.

The question is whether this statute is consistent with the First Amendment and our position is a twofold line and it is a very simple position.

First, that it is justified by an overriding police power purpose and conventional of First Amendment and police power ideas.

And secondly, and this is what we believe is the unique feature of the case that since it adds to expression rather than detracts from expression that what it does really is instead of offending the First Amendment it implemented it at least under the statute and with these facts.

Justice Thurgood Marshall: What’s the difference between the state saying you shall publish “A” and the state say you shall not publish “A” in the First Amendment?

Mr. Jerome A. Barron: Mr. Justice Marshall I believe there is a great difference.

To respond directly to your question, if the state shall say you shall not publish, then I think we are by anyone's reckoning by anyone’s view of the First Amendment in the historic area of censorship.

Whereas if you say that a state -- if a state says you shall publish a reply then you are not telling this -- the newspaper may not say something or even that it must take a position that it dislikes.

The only censorship --

Justice Thurgood Marshall: Wait a minute.

You said you are not making them take the position they dislike?

Mr. Jerome A. Barron: That’s right because they can tell --

Justice Thurgood Marshall: Well, if Miami Herald liked it and then they would have publish it?

Mr. Jerome A. Barron: That is correct but what I mean by that --

Justice Thurgood Marshall: Let’s start all over again.

Mr. Jerome A. Barron: I am sorry.

What I mean by that Mr. Justice Marshall is that institutionally they are still free.

If this statute is sustained every paper in Florida will still be free editorially to attack anyone they wish.

Justice Thurgood Marshall: And then publish what they don’t want to publish?

Mr. Jerome A. Barron: That is correct if the statute --

Justice Thurgood Marshall: That is not governmental control?

Mr. Jerome A. Barron: It is seems I would suggest that it is not governmental control of a degree that is any where like many of the statute that restrict the press that we called to your attention.

Justice Thurgood Marshall: None like this one?

Mr. Jerome A. Barron: Well, you take if a statute says that a newspaper cannot mention the name of a rape victim in the paper that of course is something they cannot say.

Now --

Chief Justice Warren E. Burger: Have they ever decided that the --

Mr. Jerome A. Barron: This Court has a case before it, now is Cox against Cohn Broadcasting which raise that very question and there again you have just as in this case Mr. Justice Marshall you have really competing constitutional claims because you see the --

Justice Thurgood Marshall: But of course the state says that every newspaper must publish any material that can be classified as the debate by any politician who offers it, would that be constitutional?

Mr. Jerome A. Barron: I would have great doubt about the constitutionality.

Justice Thurgood Marshall: That sure would build up the debates you’ve been talking about?

Mr. Jerome A. Barron: No because the – no, Mr. Justice Marshall I don’t believe it would because --

Justice Thurgood Marshall: You don’t believe it would?

If you gave a [Voice Overlap] it will gave you a right to print something in a newspaper?

Mr. Jerome A. Barron: Because we are not sure that we have responsiveness.

The whole idea of the right of reply goes to responsiveness.

If we have attack and reply then it seems me we are in a debate.

Justice Thurgood Marshall: I see.

Mr. Jerome A. Barron: And so I think that differs, sir from the hypothetical that you suggest.

But may I in the just remaining time that I have and adverting to the fact of the Cox against Cohn Broadcasting is before this Court, it seems to me, it seems that what we have there of course is a right of privacy problem against of the free press problem.

The fascinating thing about this case of course is that we have competing First Amendment interest in conflict.

Unless you take the view that the only people who are protected by freedom of the press are those who work in the media and on stock in it.

Unless you take that view --

Justice William H. Rehnquist: Was that such a naive view?

Mr. Jerome A. Barron: It is not a naive view Mr. Justice Rehnquist, but it seems to me that is an inadequate view and for this reason I think in view of the inability to respond is this court talked about in Rosenbloom if that it is a danger really to free expression.

If we exhaust the free expression rights of the American people with the property rights of those who own communication facilities.

This is not to say those who own and work in such facilities do not have First Amendment rights, of course they do.

The question is, can we afford some modicum to some slight legislative aid to make the debate we have all been talking about a reality.

And it is my position that the sustaining of the statute would lead precisely to that.

Now, if the argument is that as Mr. Justice Marshall pointed out, one could be presented with statutes which would raise great problems then the answer to that is this Court has said again time without number is that it is a process of constitution.

It is part of the task and the obligation of constitutional adjudication to draw lines and to save the beyond this point, we will not go.

But we have not reach that point we have far from reached it in this case.

Your Honor, I think I have said all that I wish to say.

Thank you.

Chief Justice Warren E. Burger: Thank you.

Do you have anything further Mr. Daniel Paul?

Rebuttal of Daniel P. S. Paul

Mr. Daniel P. S. Paul: Mr. Chief Justice and may it please the Court.

Just briefly, I would like to clear up two misstatements by Professor Barron in reference to the statute.

He refers to the statute as applying only to criticism published in a newspaper published in the same community where the candidate is.

There is no such limitation in the statute.

As I said it would apply to the New York Times if it happens to publish something about a particular Florida election and the candidates involved.

And it is not correct to say that the criminal penalty can be detached from the statute.

The Florida Supreme Court has let the criminal penalty standing, but there is no way that any candidate can get a reply under this statute by any other way than the criminal penalty because the Florida Supreme Court has knocked out the mandatory injunction penalty, on the old common law theory that equity will enjoin a crime, a rule which is followed in Florida.

So without the criminal penalty this would not provoke any reply.

Mr. Barron keeps talking about Mr. Tornillo being censored but there is absolutely nothing in this record to support any such assertion that Mr. Tornillo did not get his message across.

Mr. Barron describes Mr. Tornillo as a public figure and as a controversial man.

We would have to be very naive to think that Mr. Tornillo was relying entirely on a paragraph statement in the Miami Herald in order to get his message across in his campaign.

There is nothing that shows that he was muzzled, but I think de novo it comes down to the concluding remarks that Professor Barron made when he says that this case poses compete -- competing First Amendment interest in conflict.

There are no competing First Amendment interests in conflict here.

There is no First Amendment right to use the press.

There is no right of a citizen to be interviewed by the press.

There is no right to have a letter that a citizen may write to the press to have that letter printed.

As Mr. Justice Stewart pointed it out yesterday in the prison cases, the editor might just as well throw that letter in the waste basket if he determines that he does not desire to print it.

A judicial inquiry into the editorial discretion and the editorial function is not permissible under the First Amendment.

Compulsion is the same as censorship and there is no difference between saying that you shall publish and you shall not publish under the First Amendment.

As Mr. Justice Blackmun pointed it out, our founding fathers in writing the First Amendment opted for a free press, not a fair press.

They decided fairness was too fragile an issue for them to deal with.

It is the only First Amendment we have as pointed it out in the Columbia Broadcasting case and it is not the function of the Court to rewrite that Amendment.

The issue is really who decides what gets in to the newspaper?

The government, the Florida Legislature or the editor of the free newspaper.

There is no constitutional right for the Florida legislature to regulate the fairness of political criticism without violating the First Amendment.

I understand that Professor Barron says this is a noble concept, but motherhood is, as one editor pointed out, also a noble condition.

But motherhood under compulsion is the product of rape and it begets illegitimacy and to force an editor to print in his editorial judgment what he does not desire and his conscience does not wish to print or he may think is not true is a clear violation of the First Amendment.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.