Although it has never been the First Amendment’s concern that the press be fair, that issue has emerged as a serious concern with the increased monopolization of newspapers in their circulation areas. If the injured person cannot respond to an editorial’s personal accusations in another paper of equal stature and audience, does the editorializing newspaper’s refusal to print the response in its own pages undermine the purposes of the free press clause’s protections?
This was the question considered by the U.S. Supreme Court in Miami Publishing Co. v. Tornillo (1974). In Tornillo, a Florida political candidate invoked a state right-to-reply law after the Miami Herald editorialized against his election. The Herald’s refusal was taken to the Supreme Court, which ruled against Tornillo. In its decision, the Court held the right-to-reply law unconstitutional for three reasons.
First, reply rights of candidates would impose costs on newspapers. To make room for the reply, the paper might forgo publishing other content, or incur expenses to publish the added content. Second, reply rights would chill editorial speech. If an editor knew that the newspaper would be required to publish a response, he or she might decide to forgo the critical editorial completely.
Most importantly, a mandated right to reply intrudes on editorial autonomy. Although the parameters of constitutionally protected ‘‘editorial judgment’’ were left unelaborated by the Court, it relied on broad principles. The First Amendment on its face proscribes state action, but does not require press responsibility. In other words, the free press clause means that the press must be free, not fair.
Two contradictory justifications for the press’s constitutional protections collide in this decision. On the one hand, it is common to hear that the press guarantees are designed to foster vibrant political debate. In the airing of different positions on matters of public concern, citizens become informed on important questions, and thus better prepared to make wise decisions regarding public policy. From this perspective, the intentions of the First Amendment are furthered, not hindered, by a right-to-reply statute.
Alternatively, the Constitution envisions the press serving as a ‘‘check’’ on the abuses of government, earning the press the sobriquet of the ‘‘Fourth Estate.’’ This was the face of the press most famously on display during the Watergate investigations. This function would be seriously compromised if the government could control content in the press, and thus a right-of-reply statute must fall.
The Court implicitly found in Tornillo that the balance favored the checking function over the informed debate function. Because conditions have changed since 1974, however, it should not be presumed that the balance today favors the same outcome.
The reluctance to impose a fairness requirement on the press made more sense when alternative outlets were easily available. Few markets today have more than one newspaper, and thus a refusal to publish a reply is tantamount to preventing an alternative viewpoint from becoming known to the public. Similar limited accessibility allowed the Supreme Court, in Red Lion Broadcasting Co. v. FCC (1969), to uphold a fairness rule imposed on broadcast media. (This rule was repealed administratively in 1987.) As print outlets approach the scarcity of broadcast frequencies, the Tornillo rationale to reject right-to-reply statutes might require rethinking.
JAMES M. DONOVAN
References and Further Reading
Cases and Statutes Cited
See also Freedom of Speech and Press: Nineteenth Century; Press Clause (I): Framing and History from Colonial Period up to Early National Period