The Right to Be Unfair

One of the most significant First Amendment disputes since the Pentagon papers case was argued last week before the Supreme Court. At issue is the constitutionality of a long-ignored Florida law that requires newspapers to give political candidates the right to reply to editorial criticism. But the stakes are much higher than that. Rumbles of interest in a federal "right-to-reply" law have already come from the White House, the Justice Department and some members of Congress, notably Senator John McClellan of Arkansas.

Should the court uphold the Florida law (a decision is expected in June), similar legislation might be adopted by other states and by the Federal Government. Such laws would have a heavy and harmful impact on political coverage.

The current case resulted from two Miami Herald editorials in September 1972. Both acidly criticized Pat L. Tornillo Jr., a teachers' union executive and then a candidate in a legislative primary."We cannot say it would be illegal", the Herald advised, "but certainly it would be inexcusable of the voters if they sent Pat Tornillo to Tallahassee." Tornillo twice appeared at Herald offices with rebuttals and asked that the paper print them or risk violation of Florida's 1913 right-to-reply statute. Herald editors refused.

Tornillo lost both the election and his first court battle. After hearing the Florida attorney general say that he would not defend the state law, the Bade County circuit court dismissed Tornillo's complaint. But last summer the state supreme court ruled 6-1 that the lower court had erred. The majority opinion stated that "to assure fairness in campaigns, the assailed candidate has to be provided an equivalent opportunity to respond; otherwise, not only would the candidate be hurt, but also the people would be deprived of both sides of the controversy." The Herald appealed.

Legal Guarantee. Tornillo's case has been handled by Jerome Barron, a George Washington University law professor. He has argued for years that freedom of expression is slipping away from ordinary people because newspaper competition has disappeared in many places, and few citizens can afford to buy time on radio or TV. Barron thinks that the First Amendment should be broadened to meet these conditions and give dissident voices a legal guarantee of access to the public. The Florida right-to-reply law, he insists, "adds to debate, adds to content and in no way subtracts from expression."

If the comments and questions from the U.S. Supreme Court Justices last week were any guide, the Barron argument will be rebuffed. Chief Justice Warren Burger asked rhetorically: "If Tornillo goes out and hires a hall to castigate the Miami Herald, should the newspaper get half his time?" Justice Harry Blackmun remarked that the First Amendment was designed to protect press freedom, not to compel full debate on all issues: that is, a free press has a right to take stands that some people might consider unfair.

The Herald and its many supporters in publishing and broadcasting argue that a right-to-reply law will kill controversial coverage and editorial discussion. If editors must either yield space to every candidate who feels himself criticized or face criminal penalties, the temptation to abandon opinion entirely could become overwhelming. As the New York Times and Wall Street Journal claim in a joint brief filed on the Herald's behalf: "Every politically oriented editorial or letter to the editor will be published with the fear that, as a result of its publication, part of the contents of tomorrow's editorial page will be dictated by a politician seeking office." ... The right-to-reply dispute traces to a 1964 Supreme Court decision that gave journalists considerable protection from libel suits when discussing public affairs and officials. The court held that a public official cannot recover damages unless he proves that an injurious statement was printed "with knowledge it was false or with reckless disregard of whether it was false or not." With the burden of proving "malice" on them, public figures found it increasingly difficult to win libel judgments. The right to reply offers politicians one alternative, but there is another now under study in Washington.

President Nixon last month asked the Justice Department "to explore the possibility of legislation to reaffirm certain private rights of public figures so that people interested in running for public office can have greater assurance of recourse against slanderous attacks on them and their families." Nixon's distaste for the press's broad freedom from libel suits is no secret. In a March radio broadcast, he charged that "some libel lawyers" have interpreted Supreme Court decisions "as being virtually a license to lie."

There has been no federal statute on the subject of libel since the repressive 1798 Sedition Act was terminated hi 1801. Drafting a new law that undercuts past Supreme Court rulings and that will also survive an inevitable High Court test has proved difficult. After more than a month of work, the Justice Department has yet to come up with a formulation. Says one high White House official: "It is evidently something the President is very much interested in, but we also have a responsibility to prepare something that is not going to be held unconstitutional." Last week a department lawyer hinted that the most Nixon can hope for is a federal right-to-reply bill of narrow scope, which would give officials who win libel judgments under the current guidelines the bonus of replying in print.

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