After appellant newspaper had refused to print appellee's
replies to editorials critical of appellee's candidacy for state
office, appellee brought suit in Florida Circuit Court seeking
injunctive and declaratory relief and damages, based on Florida's
"right of reply" statute that grants a political candidate a right
to equal space to answer criticism and attacks on his record by a
newspaper, and making it a misdemeanor for the newspaper to fail to
comply. The Circuit Court held the statute unconstitutional as
infringing on the freedom of the press, and dismissed the action.
The Florida Supreme Court reversed, holding that the statute did
not violate constitutional guarantees, and that civil remedies,
including damages, were available, and remanded to the trial court
for further proceedings.
1. The Florida Supreme Court's judgment is "final" under 28
U.S.C. § 1257, and thus is ripe for review by this Court. North
Dakota Pharmacy Bd. v. Snyder's Stores, 414 U.
. Pp. 418 U. S.
2. The statute violates the First Amendment's guarantee of a
free press. Pp. 418 U. S.
(a) Governmental compulsion on a newspaper to publish that which
"reason" tells it should not be published is unconstitutional. P.
418 U. S.
(b) The statute operates as a command by a State in the same
sense as a statute or regulation forbidding appellant to publish
specified matter. P. 418 U. S.
(c) The statute exacts a penalty on the basis of the content of
a newspaper by imposing additional printing, composing, and
materials costs and by taking up space that could be devoted to
other material the newspaper may have preferred to print. Pp.
418 U. S.
(d) Even if a newspaper would face no additional costs to comply
with the statute and would not be forced to forgo publication of
news or opinion by the inclusion of a reply, the statute still
fails to clear the First Amendment's barriers because of its
Page 418 U. S. 242
intrusion into the function of editors in choosing what material
goes into a newspaper and in deciding on the size and content of
the paper and the treatment of public issues and officials. P.
418 U. S.
287 So. 2d 78
BURGER, C.J., delivered the opinion for a unanimous Court.
BRENNAN, J., filed a concurring statement, in which REHNQUIST, J.,
p. 418 U. S. 258
WHITE, J., filed a concurring opinion, post,
418 U. S.
Page 418 U. S. 243
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
The issue in this case is whether a state statute granting a
political candidate a right to equal space to reply to criticism
and attacks on his record by a newspaper violates the guarantees of
a free press.
In the fall of 1972, appellee, Executive Director of the
Classroom Teachers Association, apparently a teachers' collective
bargaining agent, was a candidate for the Florida House of
Representatives. On September 20, 1972, and again on September 29,
1972, appellant printed editorials critical of appellee's
candidacy. [Footnote 1
Page 418 U. S. 244
response to these editorials, appellee demanded that appellant
print verbatim his replies, defending the role of the Classroom
Teachers Association and the organization's accomplishments for the
citizens of Dade County. Appellant declined to print the appellee's
replies, and appellee brought suit in Circuit Court, Dade County,
seeking declaratory and injunctive relief and actual and punitive
damages in excess of $5,000. The action was premised on Florida
Statute § 104.38 (1973), a "right of reply" statute which provides
that, if a candidate for nomination or election is assailed
regarding his personal character or official record by any
newspaper, the candidate has the right to demand that the newspaper
print, free of cost to the candidate, any reply the candidate may
make to the newspaper's charges. The reply must appear in as
conspicuous a place and in the same kind of type as the charges
which prompted the reply, provided it does not take up more space
than the charges. Failure to comply with the statute constitutes a
first-degree misdemeanor. [Footnote
Page 418 U. S. 245
Appellant sought a declaration that § 104.38 was
unconstitutional. After an emergency hearing requested by appellee,
the Circuit Court denied injunctive relief because, absent special
circumstances, no injunction could properly issue against the
commission of a crime, and held that § 104.38 was unconstitutional
as an infringement on the freedom of the press under the First and
Fourteenth Amendments to the Constitution. 38 Fla.Supp. 80 (1972).
The Circuit Court concluded that dictating what a newspaper must
print was no different from dictating what it must not print. The
Circuit Judge viewed the statute's vagueness as serving "to
restrict and stifle protected expression." Id.
Appellee's cause was dismissed with prejudice.
On direct appeal, the Florida Supreme Court reversed, holding
that § 104.38 did not violate constitutional guarantees. 287 So. 2d 78
(1973). [Footnote 3
] It held
that free speech was enhanced, and not abridged, by the Florida
right-of-reply statute, which, in that court's view, furthered the
"broad societal interest in the free flow of information to the
at 82. It also held that the statute is
Page 418 U. S. 246
not impermissibly vague; the statute informs "those who are
subject to it as to what conduct on their part will render them
liable to its penalties." Id.
at 85. [Footnote 4
] Civil remedies, including damages,
were held to be available under this statute; the case was remanded
to the trial court for further proceedings not inconsistent with
the Florida Supreme Court's opinion.
We postponed consideration of the question of jurisdiction to
the hearing of the case on the merits. 414 U.S. 1142 (1974).
Although both parties contend that this Court has jurisdiction
to review the judgment of the Florida Supreme Court, a suggestion
was initially made that the judgment of the Florida Supreme Court
might not be "final" under 28 U.S.C. § 1257. [Footnote 5
] In North Dakota State Pharmacy Bd.
v. Snyder's Stores, 414 U. S. 156
(1973), we reviewed a judgment of the North Dakota Supreme Court,
under which the case had been remanded so that further state
proceedings could be conducted respecting Snyder's application for
a permit to operate a drug store. We held that to be a final
judgment for purposes of our jurisdiction. Under the principles of
finality enunciated in Snyder's Stores,
Page 418 U. S. 247
the Florida Supreme Court in this case is ripe for review by
this Court. [Footnote 6
The challenged statute creates a right to reply to press
criticism of a candidate for nomination or election. The statute
was enacted in 1913, and this is only the second recorded case
decided under its provisions. [Footnote 7
Appellant contends the statute is void on its face because it
purports to regulate the content of a newspaper in violation of the
First Amendment. Alternatively it is urged that the statute is void
for vagueness, since no editor could know exactly what words would
call the statute into operation. It is also contended that the
statute fails to distinguish between critical comment which is, and
which is not, defamatory.
The appellee and supporting advocates of an enforceable right of
access to the press vigorously argue that
Page 418 U. S. 248
government has an obligation to ensure that a wide variety of
views reach the public. [Footnote
] The contentions of access proponents will be set out in some
detail. [Footnote 9
] It is
urged that, at the time the First Amendment to the Constitution
] was ratified
in 1791 as part of our Bill of Rights, the press was broadly
representative of the people it was serving. While many of the
newspapers were intensely partisan and narrow in their views, the
press collectively presented a broad range of opinions to readers.
Entry into publishing was inexpensive; pamphlets and books provided
meaningful alternatives to the organized press for the expression
of unpopular ideas, and often treated events and expressed views
not covered by conventional newspapers. [Footnote 11
] A true marketplace of ideas existed in
which there was relatively easy access to the channels of
Access advocates submit that, although newspapers of the present
are superficially similar to those of 1791, the press of today is
in reality very different from that known in the early years of our
national existence. In the past half century, a communications
revolution has seen the introduction of radio and television into
our lives, the promise of a global community through the
Page 418 U. S. 249
use of communications satellites, and the specter of a "wired"
nation by means of an expanding cable television network with
two-way capabilities. The printed press, it is said, has not
escaped the effects of this revolution. Newspapers have become big
business, and there are far fewer of them to serve a larger
literate population. [Footnote
] Chains of newspapers, national newspapers, national wire
and news services, and one-newspaper towns [Footnote 13
] are the dominant features of a
press that has become noncompetitive and enormously powerful and
influential in its capacity to manipulate popular opinion and
change the course of events. Major metropolitan newspapers have
collaborated to establish news services national in scope.
] Such national
news organizations provide syndicated "interpretive reporting" as
well as syndicated features and commentary, all of which can serve
as part of the new school of "advocacy journalism."
The elimination of competing newspapers in most of our large
cities, and the concentration of control of media that results from
the only newspaper's being owned by the same interests which own a
television station and a radio station, are important components of
this trend toward
Page 418 U. S. 250
concentration of control of outlets to inform the public. The
result of these vast changes has been to place in a few hands the
power to inform the American people and shape public opinion.
] Much of the
editorial opinion and commentary that is printed is that of
syndicated columnists distributed nationwide and, as a result, we
are told, on national and world issues there tends to be a
homogeneity of editorial opinion, commentary, and interpretive
analysis. The abuses of bias and manipulative reportage are,
likewise, said to be the result of the vast accumulations of
unreviewable power in the modern media empires. In effect, it is
claimed, the public has lost any ability to respond or to
contribute in a meaningful way to the debate on issues. The
monopoly of the means of communication allows for little or no
critical analysis of the media except in professional journals of
very limited readership.
"This concentration of nationwide news organizations -- like
other large institutions -- has grown increasingly remote from and
unresponsive to the popular constituencies on which they depend and
which depend on them."
Report of the Task Force in Twentieth Century Fund Task Force
Report for a National News Council, A Free and Responsive Press 4
(1973). Appellee cites the report of the Commission on Freedom of
the Press, chaired by Robert M. Hutchins, in which it was stated,
as long ago as 1947, that "[t]he right of free
Page 418 U. S. 251
public expression has . . . lost its earlier reality."
Commission on Freedom of the Press, A Free and Responsible Press 15
The obvious solution, which was available to dissidents at an
earlier time when entry into publishing was relatively inexpensive,
today would be to have additional newspapers. But the same economic
factors which have caused the disappearance of vast numbers of
metropolitan newspapers, [Footnote 16
] have made entry into the marketplace of
ideas served by the print media almost impossible. It is urged that
the claim of newspapers to be "surrogates for the public" carries
with it a concomitant fiduciary obligation to account for that
stewardship. [Footnote 17
From this premise, it is reasoned that the only effective way to
insure fairness and accuracy and to provide for some accountability
is for government to take affirmative action. The First Amendment
interest of the public in being informed is said to be in peril
because the "marketplace of ideas" is today a monopoly controlled
by the owners of the market.
Proponents of enforced access to the press take comfort from
language in several of this Court's decisions which suggests that
the First Amendment acts as a sword as well as a shield, that it
imposes obligations on the owners of the press in addition to
protecting the press from government regulation. In Associated
Press v. United States, 326 U. S. 1
326 U. S. 20
(1945), the Court, in
Page 418 U. S. 252
rejecting the argument that the press is immune from the
antitrust laws by virtue of the First Amendment, stated:
"The First Amendment, far from providing an argument against
application of the Sherman Act, here provides powerful reasons to
the contrary. That Amendment rests on the assumption that the
widest possible dissemination of information from diverse and
antagonistic sources is essential to the welfare of the public,
that a free press is a condition of a free society. Surely a
command that the government itself shall not impede the free flow
of ideas does not afford nongovernmental combinations a refuge if
they impose restraints upon that constitutionally guaranteed
freedom. Freedom to publish means freedom for all and not for some.
Freedom to publish is guaranteed by the Constitution, but freedom
to combine to keep others from publishing is not. Freedom of the
press from governmental interference under the First Amendment does
not sanction repression of that freedom by private interests."
In New York Times Co. v. Sullivan, 376 U.
, 376 U. S. 270
(1964), the Court spoke of "a profound national commitment to the
principle that debate on public issues should be uninhibited,
robust, and wide-open." It is argued that the "uninhibited, robust"
debate is not "wide-open," but open only to a monopoly in control
of the press. Appellee cites the plurality opinion in
Rosenbloom v. Metromedia, Inc., 403 U. S.
, 403 U. S. 47
and n. 15 (1971), which he suggests seemed to invite
experimentation by the States in right-to-access regulation of the
press. [Footnote 18
Page 418 U. S. 253
Access advocates note that MR. JUSTICE DOUGLAS a decade ago
expressed his deep concern regarding the effects of newspaper
"Where one paper has a monopoly in an area, it seldom presents
two sides of an issue. It too often hammers away on one ideological
or political line, using its monopoly position not to educate
people, not to promote debate, but to inculcate in its readers one
philosophy, one attitude -- and to make money."
"The newspapers that give a variety of views and news that is
not slanted or contrived are few indeed. And the problem promises
to get worse. . . ."
The Great Rights 12125, 127 (E. Cahn ed.1963). They also claim
the qualified support of Professor Thomas I. Emerson, who has
written that "[a] limited right of access to the press can be
Page 418 U. S. 254
although he believes that
"[g]overnment measures to encourage a multiplicity of outlets,
rather than compelling a few outlets to represent everybody, seems
a preferable course of action."
T. Emerson, The System of Freedom of Expression 671 (1970).
However much validity may be found in these arguments, at each
point the implementation of a remedy such as an enforceable right
of access necessarily calls for some mechanism, either governmental
or consensual. [Footnote 19
If it is governmental coercion, this at once brings about a
confrontation with the express provisions of the First Amendment
and the judicial gloss on that Amendment developed over the years.
The Court foresaw the problems relating to government-enforced
access as early as its decision in Associated Press v. United
There, it carefully contrasted the private
"compulsion to print" called for by the Association's bylaws with
the provisions of the District Court decree against appellants
which "does not compel AP or its members to permit publication of
anything which their reason' tells them should not be
published." 326 U.S. at 326 U. S. 20 n.
18. In Branzburg v. Hayes, 408 U.
S. 665, 408 U. S. 681
(1972), we emphasized that the cases then
Page 418 U. S. 255
"involve no intrusions upon speech or assembly, no prior
restraint or restriction on what the press may publish, and no
express or implied. command that the press publish what it prefers
In Columbia Broadcasting System, Inc. v. Democratic National
Committee, 412 U. S. 94
412 U. S. 117
(1973), the plurality opinion as to Part III noted:
"The power of a privately owned newspaper to advance its own
political, social, and economic views is bounded by only two
factors: first, the acceptance of a sufficient number of readers --
and hence advertisers -- to assure financial success, and second,
the journalistic integrity of its editors and publishers."
An attitude strongly adverse to any attempt to extend a right of
access to newspapers was echoed by other Members of this Court in
their separate opinions in that case. Id.
at 412 U. S. 145
(STEWART, J., concurring); id.
at 412 U. S. 182
n. 12 (BRENNAN, J., joined by MARSHALL, J., dissenting). Recently,
while approving a bar against employment advertising specifying
"male" or "female" preference, the Court's opinion in
Pittsburgh Press Co. v. Human Relations Comm'n,
413 U. S. 376
413 U. S. 391
(1973), took pains to limit its holding within narrow bounds:
"Nor, a fortiori,
does our decision authorize any
restriction whatever, whether of content or layout, on stories or
commentary originated by Pittsburgh Press, its columnists, or its
contributors. On the contrary, we reaffirm unequivocally the
protection afforded to editorial judgment and to the free
expression of views on these and other issues, however
Dissenting in Pittsburgh Press,
MR. JUSTICE STEWART,
joined by MR. JUSTICE DOUGLAS, expressed the view that no
"government agency -- local, state, or federal can tell
Page 418 U. S. 256
a newspaper in advance what it can print and what it cannot."
at 413 U. S. 400
See Associates & Aldrich Co. v. Times Mirror Co.,
F.2d 133, 135 (CA9 1971).
We see that, beginning with Associated Press, supra,
the Court has expressed sensitivity as to whether a restriction or
requirement constituted the compulsion exerted by government on a
newspaper to print that which it would not otherwise print. The
clear implication has been that any such a compulsion to publish
that which "reason' tells them should not be published" is
unconstitutional. A responsible press is an undoubtedly desirable
goal, but press responsibility is not mandated by the Constitution,
and, like many other virtues, it cannot be legislated.
Appellee's argument that the Florida statute does not amount to
a restriction of appellant's right to speak, because "the statute
in question here has not prevented the Miami Herald from saying
anything it wished," [Footnote
] begs the core question. Compelling editors or publishers to
publish that which "reason' tells them should not be published"
is what is at issue in this case. The Florida statute operates as a
command in the same sense as a statute or regulation forbidding
appellant to publish specified matter. Governmental restraint on
publishing need not fall into familiar or traditional patterns to
be subject to constitutional limitations on governmental powers.
Grosjean v. American Press Co., 297 U.
S. 233, 297 U. S.
244-245 (1936). The Florida statute exacts a penalty on
the basis of the content of a newspaper. The first phase of the
penalty resulting from the compelled printing of a reply is exacted
in terms of the cost in printing and composing time and materials
and in taking up space that could be devoted to other material the
newspaper may have preferred to print. It is correct, as appellee
contends, that a newspaper is not subject to the
Page 418 U. S. 257
finite technological limitations of time that confront a
broadcaster, but it is not correct to say that, as an economic
reality, a newspaper can proceed to infinite expansion of its
column space to accommodate the replies that a government agency
determines or a statute commands the readers should have available.
Faced with the penalties that would accrue to any newspaper that
published news or commentary arguably within the reach of the
right-of-access statute, editors might well conclude that the safe
course is to avoid controversy. Therefore, under the operation of
the Florida statute, political and electoral coverage would be
blunted or reduced. [Footnote
] Government-enforced right of access inescapably "dampens
the vigor and limits the variety of public debate," New York
Times Co. v. Sullivan,
376 U.S. at 376 U. S. 279
The Court, in Mills v. Alabama, 384 U.
, 384 U. S. 218
"[T]here is practically universal agreement that a major purpose
of [the First] Amendment was to protect the free discussion of
governmental affairs. This of course includes discussions of
candidates. . . . "
Page 418 U. S. 258
Even if a newspaper would face no additional costs to comply
with a compulsory access law and would not be forced to forgo
publication of news or opinion by the inclusion of a reply, the
Florida statute fails to clear the barriers of the First Amendment
because of its intrusion into the function of editors. A newspaper
is more than a passive receptacle or conduit for news, comment, and
advertising. [Footnote 24
The choice of material to go into a new paper, and the decisions
made as to limitations on the size and content of the paper, and
treatment of public issues and public official -- whether fair or
unfair -- constitute the exercise of editorial control and
judgment. It has yet to be demonstrated how governmental regulation
of this crucial process can be exercised consistent with First
Amendment guarantees of a free press as they have evolved to this
time. Accordingly, the judgment of the Supreme Court of Florida is
It is so ordered.
The text of the September 20, 1972, editorial is as follows:
"The State's Laws And Pat Tornillo"
"LOOK who's upholding the law!"
"Pat Tornillo, boss of the Classroom Teachers Association and
candidate for the State Legislature in the Oct. 3 runoff election,
has denounced his opponent as lacking 'the knowledge to be a
legislator, as evidenced by his failure to file a list of
contribution to and expenditures of his campaign as required by
"Czar Tornillo calls 'violation of this law inexcusable.'"
"This is the same Pat Tornillo who led the CTA strike from
February 19 to March 11, 1968, against the school children and
taxpayers of Dade County. Call it whatever you will, it was an
illegal act against the public interest, and clearly prohibited by
"We cannot say it would be illegal, but certainly it would be
inexcusable of the voters if they sent Pat Tornillo to Tallahassee
to occupy the seat for District 103 in the House of
The text of the September 29, 1972, editorial is as follows:
"FROM the people who brought you this -- the teacher strike of
'68 -- come now instructions on how to vote for responsible
against Crutcher Harrison and Ethel
Beckham, for Pat Tornillo. The tracts and blurbs and bumper
stickers pile up daily in teachers' school mailboxes amidst
continuing pouts that the School Board should be delivering all
this at your expense. The screeds say the strike is not an issue.
We say maybe it wouldn't be were it not a part of a continuation of
disregard of any and all laws the CTA might find aggravating.
Whether in defiance of zoning laws at CTA Towers, contracts and
laws during the strike, or, more recently, state prohibitions
against soliciting campaign funds amongst teachers, CTA says fie
and try and sue us -- what's good for CTA is good for CTA, and that
is natural law. Tornillo's law, maybe. For years now, he has been
kicking the public shin to call attention to his shakedown
statesmanship. He and whichever acerbic prexy is in alleged office
have always felt their private ventures so chock-full of public
weal that we should leap at the chance to nab the tab, be it half
the glorious Leader's salary or the dues check-off or anything else
except perhaps mileage on the staff hydrofoil. Give him public
office, says Pat, and he will no doubt live by the Golden Rule. Our
translation reads that as more gold and more rule."
104.38 Newspaper assailing candidate in an election; space
-- If any newspaper in its columns assails the
personal character of any candidate for nomination or for election
in any election, or charges said candidate with malfeasance or
misfeasance in office, or otherwise attacks his official record, or
gives to another free space for such purpose, such newspaper shall
upon request of such candidate immediately publish free of cost any
reply he may make thereto in as conspicuous a place and in the same
kind of type as the matter that calls for such reply, provided such
reply does not take up more space than the matter replied to. Any
person or firm failing to comply with the provisions of this
section shall be guilty of a misdemeanor of the first degree,
punishable as provided in § 775.082 or § 775.083.
The Supreme Court did not disturb the Circuit Court's holding
that injunctive relief was not proper in this case even if the
statute were constitutional. According to the Supreme Court neither
side took issue with that part of the Circuit Court's decision. 287
So. 2d at 85.
The Supreme Court placed the following limiting construction on
"[W]e hold that the mandate of the statute refers to 'any reply'
which is wholly responsive to the charge made in the editorial or
other article in a newspaper being replied to, and further that
such reply will be neither libelous nor slanderous of the
publication nor anyone else, nor vulgar nor profane."
Appellee's Response to Appellant's Jurisdictional Statement and
Motion to Affirm the Judgment Below or, in the Alternative, to
Dismiss the Appeal 7.
Both appellant and appellee claim that the uncertainty of the
constitutional validity of § 104.38 restricts the present exercise
of First Amendment rights. Brief for Appellant 41; Brief for
Appellee 79. Appellant finds urgency for the present consideration
of the constitutionality of the statute in the upcoming 1974
elections. Whichever way we were to decide on the merits, it would
be intolerable to leave unanswered, under these circumstances, an
important question of freedom of the press under the First
Amendment; an uneasy and unsettled constitutional posture of §
104.38 could only further harm the operation of a free press.
Mills v. Alabama, 384 U. S. 214
384 U. S.
-222 (1966) (DOUGLAS, J., concurring). See also
Organization for a Better Austin v. Keefe, 402 U.
, 402 U. S. 418
In its first court test, the statute was declared
unconstitutional. State v. News-Journal Corp.,
Supp. 164 (Volusia County Judge's Court, 1972). In neither of the
two suits, the instant action and the News-Journal
has the Florida Attorney General defended the statute's
See generally Barron,
Access to the Press -- A New
First Amendment Right, 80 Harv.L.Rev. 1641 (1967).
For a good overview of the position of access advocates
Lange, The Role of the Access Doctrine in the
Regulation of the Mass Media: A Critical Review and Assessment, 52
N.C.L.Rev. 1, 8-9 (1973) (hereinafter Lange).
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or of the right of the
people peaceably to assemble, and to petition the Government for a
redress of grievances."
Commission on Freedom of the Press, A Free and
Responsible Press 14 (1947) (hereinafter sometimes Commission).
Commission 15. Even in the last 20 years there has been a
significant increase in the number of people likely to read
newspapers. Bagdikian, Fat Newspapers and Slim Coverage, Columbia
Journalism Review 15, 16 (Sept./Oct.1973).
"Nearly half of U.S. daily newspapers, representing some
three-fifths of daily and Sunday circulation, are owned by
newspaper groups and chains, including diversified business
conglomerates. One-newspaper towns have become the rule, with
effective competition operating in only 4 percent of our large
Background Paper by Alfred Balk in Twentieth Century Fund Task
Force Report for a National News Council, A Free and Responsive
Press 18 (1973).
Report of the Task Force in Twentieth Century Fund Task Force
Report for a National News Council, A Free and Responsive Press 4
"Local monopoly in printed news raises serious questions of
diversity of information and opinion. What a local newspaper does
not print about local affairs does not see general print at all.
And, having the power to take initiative in reporting and
enunciation of opinions, it has extraordinary power to set the
atmosphere and determine the terms of local consideration of public
B. Bagdikian, The Information Machines 127 (1971).
The newspapers have persuaded Congress to grant them immunity
from the antitrust laws in the case of "failing" newspapers for
joint operations. 84 Stat. 466, 15 U.S.C. § 1801 et
"Freedom of the press is a right belonging, like all rights in a
democracy, to all the people. As a practical matter, however, it
can be exercised only by those who have effective access to the
press. Where financial, economic, and technological conditions
limit such access to a small minority, the exercise of that right
by that minority takes on fiduciary or quasi
A. Macleish in W. Hocking, Freedom of the Press 99 n. 4 (1947)
"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 ensuring their ability to respond, rather than
in stifling public discussion of matters of public concern.[*]"
"[*]Some states have adopted retraction statutes or
right-of-reply statutes. . . . "
"One writer, in arguing that the First Amendment itself should
be read to guarantee a right of access to the media not limited to
a right to respond to defamatory falsehoods, has suggested several
ways the law might encourage public discussion. Barron, Access to
the Press -- A New First Amendment Right, 80 Harv.L.Rev. 1641,
1666-1678 (1967). It is important to recognize that the private
individual often desires press exposure either for himself, his
ideas, or his causes. Constitutional adjudication must take into
account the individual's interest in access to the press as well as
the individual's interest in preserving his reputation, even though
libel actions by their nature encourage a narrow view of the
individual's interest, since they focus only on situations where
the individual has been harmed by undesired press attention. A
constitutional rule that deters the press from covering the ideas
or activities of the private individual thus conceives the
individual's interest too narrowly."
The National News Council, an independent and voluntary body
concerned with press fairness, was created in 1973 to provide a
means for neutral examination of claims of press inaccuracy. The
Council was created following the publication of the Twentieth
Century Fund Task Force Report for a National News Council, A Free
and Responsive Press. The background paper attached to the Report
dealt in some detail with the British Press Council, seen by the
author of the paper as having the most interest to the United
States of the European press councils.
Because we hold that § 104.38 violates the First Amendment's
guarantee of a free press, we have no occasion to consider
appellant's further argument that the statute is unconstitutionally
Brief for Appellee 5.
"However, since the amount of space a newspaper can devote to
'live news' is finite,[*] if a newspaper is forced to publish a
particular item, it must as a practical matter, omit something
"[*] The number of column inches available for news is
predetermined by a number of financial and physical factors,
including circulation, the amount of advertising, and,
increasingly, the availability of newsprint. . . ."
Note, 48 Tulane L.Rev. 433, 438 (1974) (one footnote
Another factor operating against the "solution" of adding more
pages to accommodate the access matter is that, "increasingly,
subscribers complain of bulky, unwieldly papers." Bagdikian, Fat
Newspapers and Slim Coverage, Columbia Journalism Review 19
See the description of the likely effect of the Florida statute
on publishers, in Lange 70-71.
"[L]iberty of the press is in peril as soon as the government
tries to compel what is to go into a newspaper. A journal does not
merely print observed facts the way a cow is photographed through a
plateglass window. As soon as the facts are set in their context,
you have interpretation and you have selection, and editorial
selection opens the way to editorial suppression. Then how can the
state force abstention from discrimination in the news without
2 Z. Chafee, Government and Mass Communications 633 (1947).
MR. JUSTICE BRENNAN, with whom MR. JUSTICE REHNQUIST joins,
I join the Court's opinion which, as I understand it, addresses
only "right of reply" statutes, and implies no view upon the
constitutionality of "retraction" statutes affording plaintiffs
able to prove defamatory falsehoods a statutory action to require
publication of a retraction.
Page 418 U. S. 259
Note, Vindication of the Reputation of a
Public Official, 80 Harv.L.Rev. 1730, 1739-1747 (1967).
MR. JUSTICE WHITE, concurring.
The Court today holds that the First Amendment bars a State from
requiring a newspaper to print the reply of a candidate for public
office whose personal character has been criticized by that
newspaper's editorials. According to our accepted jurisprudence,
the First Amendment erects a virtually insurmountable barrier
between government and the print media so far as government
tampering, in advance of publication, with news and editorial
content is concerned. New York Times Co. v. United States,
403 U. S. 713
(1971). A newspaper or magazine is not a public utility subject to
"reasonable" governmental regulation in matters affecting the
exercise of journalistic judgment as to what shall be printed.
Cf. Mills v. Alabama, 384 U. S. 214
384 U. S. 220
(1966). We have learned, and continue to learn, from what we view
as the unhappy experiences of other nations where government has
been allowed to meddle in the internal editorial affairs of
newspapers. Regardless of how beneficent-sounding the purposes of
controlling the press might be, we prefer "the power of reason as
applied through public discussion," [Footnote 2/1
] and remain intensely skeptical about those
measures that would allow government to insinuate itself into the
editorial rooms of this Nation's press.
"Whatever differences may exist about interpretations of the
First Amendment, there is practically universal agreement that a
major purpose of that Amendment was to protect the free discussion
of governmental affairs. This, of course, includes discussions of
candidates, structures and forms of
Page 418 U. S. 260
government, the manner in which government is operated or should
be operated, and all such matters relating to political processes.
The Constitution specifically selected the press . . . to play an
important role in the discussion of public affairs. Thus, the press
serves and was designed to serve as a powerful antidote to any
abuses of power by governmental officials and as a constitutionally
chosen means for keeping officials elected by the people
responsible to all the people whom they were selected to serve.
Suppression of the right of the press to praise or criticize
governmental agents and to clamor and contend for or against change
. . . muzzles one of the very agencies the Framers of our
Constitution thoughtfully and deliberately selected to improve our
society and keep it free."
Mills v. Alabama, supra,
at 384 U. S.
Of course, the press is not always accurate, or even
responsible, and may not present full and fair debate on important
public issues. But the balance struck by the First Amendment with
respect to the press is that society must take the risk that
occasionally debate on vital matters will not be comprehensive, and
that all viewpoints may not be expressed. The press would be
unlicensed because, in Jefferson's words, "[w]here the press is
free, and every man able to read, all is safe." [Footnote 2/2
] Any other accommodation -- any other
system that would supplant private control of the press with the
heavy hand of government intrusion -- would make the government the
censor of what the people may read and know.
To justify this statute, Florida advances a concededly important
interest of ensuring free and fair elections by means of an
electorate informed about the issues. But
Page 418 U. S. 261
prior compulsion by government in matters going to the very
nerve center of a newspaper -- the decision as to what copy will or
will not be included in any given edition -- collides with the
First Amendment. Woven into the fabric of the First Amendment is
the unexceptionable, but nonetheless timeless, sentiment that
"liberty of the press is in peril as soon as the government tries
to compel what is to go into a newspaper." 2 Z. Chafee, Government
and Mass Communications 633 (1947).
The constitutionally obnoxious feature of § 104.38 is not that
the Florida Legislature may also have placed a high premium on the
protection of individual reputational interests; for government
certainly has "a pervasive and strong interest in preventing and
redressing attacks upon reputation." Rosenblatt v. Baer,
383 U. S. 75
383 U. S. 86
(1966). Quite the contrary, this law runs afoul of the elementary
First Amendment proposition that government may not force a
newspaper to print copy which, in its journalistic discretion, it
chooses to leave on the newsroom floor. Whatever power may reside
in government to influence the publishing of certain narrowly
circumscribed categories of material, see, e.g., Pittsburgh
Press Co. v. Human Relations Comm'n, 413 U.
(1973); New York Times Co. v. United
403 U.S. at 403 U. S. 730
(WHITE, J., concurring), we have never thought that the First
Amendment permitted public officials to dictate to the press the
contents of its news columns or the slant of its editorials.
But though a newspaper may publish without government
censorship, it has never been entirely free from liability for what
it chooses to print. See ibid.
Among other things, the
press has not been wholly at liberty to publish falsehoods damaging
to individual reputation. At least until today, we have cherished
the average citizen's
Page 418 U. S. 262
reputation interest enough to afford him a fair chance to
vindicate himself in an action for libel characteristically
provided by state law. He has been unable to force the press to
tell his side of the story or to print a retraction, but he has had
at least the opportunity to win a judgment if he has been able to
prove the falsity of the damaging publication, as well as a fair
chance to recover reasonable damages for his injury.
Reaffirming the rule that the press cannot be forced to print an
answer to a personal attack made by it, however, throws into stark
relief the consequences of the new balance forged by the Court in
the companion case also announced today. Gertz v. Robert Welch,
p. 418 U. S. 323
goes far toward eviscerating the effectiveness of the ordinary
libel action, which has long been the only potent response
available to the private citizen libeled by the press. Under
the burden of proving liability is immeasurably
increased, proving damages is made exceedingly more difficult, and
vindicating reputation by merely proving falsehood and winning a
judgment to that effect are wholly foreclosed. Needlessly, in my
view, the Court trivializes and denigrates the interest in
reputation by removing virtually all the protection the law has
Of course, these two decisions do not mean that, because
government may not dictate what the press is to print, neither can
it afford a remedy for libel in any form. Gertz
leaves a putative remedy for libel intact, albeit in severely
emaciated form; and the press certainly remains liable for knowing
or reckless falsehoods under New York Times Co. v.
Sullivan, 376 U. S. 254
(1964), and its progeny, however improper an injunction against
publication might be.
One need not think less of the First Amendment to sustain
reasonable methods for allowing the average citizen
Page 418 U. S. 263
to redeem a falsely tarnished reputation. Nor does one have to
doubt the genuine decency, integrity, and good sense of the vast
majority of professional journalists to support the right of any
individual to have his day in court when he has been falsely
maligned in the public press. The press is the servant, not the
master, of the citizenry, and its freedom does not carry with it an
unrestricted hunting license to prey on the ordinary citizen.
"In plain English, freedom carries with it responsibility even
for the press; freedom of the press is not a freedom from
responsibility for its exercise."
"Without . . . a lively sense of responsibility, a free press
may readily become a powerful instrument of injustice."
Pennekamp v. Florida, 328 U. S. 331
328 U. S. 356
328 U. S. 365
(1946) (Frankfurter, J., concurring) (footnote omitted). To me, it
is a near absurdity to so deprecate individual dignity, as the
Court does in Gertz,
and to leave the people at the
complete mercy of the press, at least in this stage of our history,
when the press, as the majority in this case so well documents, is
steadily becoming more powerful and much less likely to be deterred
by threats of libel suits.
Whitney v. California, 274 U.
, 274 U. S. 375
(1927) (Brandeis, J., concurring).
Letter to Col. Charles Yancey in 14 The Writings of Thomas
Jefferson 384 (Lipscomb ed.1904).