Miami Herald Publishing Company v. Tornillo (1974)

Candidate Pat Tornillo demanded that the Miami Herald print his reply to the paper's critical editorials. Under the Florida “Right to Reply” law, The Herald asked the State court to declare the “right of reply” law unconstitutional. The Herald won at the trial court level, but lost in the Florida Supreme Court, and then appealed to the United States Supreme Court.

Chief Justice Warren Burger's opinion, for a unanimous Supreme Court, found that Florida's “right of reply” statute violated the First Amendment. Justice Burger noted that changes had been made in the media since the First Amendment was ratified in 1791. It has become increasingly difficult and expensive to start a newspaper or to communicate a minority point of view to the public. Justice Burger concluded, however, that the First Amendment still prevents the government from ordering a newspaper to print something it did not wish to print.

Mr. Tornillo argued that the right of reply law did not restrict the Miami Herald's free speech because it did not prevent the newspaper from saying whatever else it wanted. Justice Burger noted, however, that the law “exacts a penalty on the basis of the content” of the paper. The penalty would be the time, materials, and newspaper space required to publish a candidate's reply. As a result, “editors might well conclude that the safe course is to avoid controversy. Therefore…political and electoral coverage would be blunted or reduced.”

Justice Burger concluded that “the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors.”

The First Amendment is intended to allow expression of a wide range of ideas. The Supreme Court has ruled that broadcasting is special because only a limited number of radio and television licenses are available. In Red Lion Broadcasting Co. v. FCC, 1969, the Supreme Court concluded that this “scarcity” of broadcasting opportunities allowed the government to impose special rules on broadcasters to insure “fairness.” A station in Red Lion, Pennsylvania, was required to give an author air time to reply to a “personal attack.” The Court determined that the rights of viewers and listeners to hear both sides of the story was more important than the rights of the station.

However, the Court held in Tornillo that similar right-of-reply rules would violate the First Amendment if applied to newspapers. A critical difference is that the Federal Communications Commission (FCC) decides who will have the right to use the broadcast spectrum, so it does not violate the First Amendment to require those broadcasters to give fair access to those who they attack. In other words, “fairness” is one of the obligations that comes with the privilege of having a broadcasting license. The government does not decide who can publish a newspaper, however, so publishers cannot be forced to give access to the public.

In 1987, the FCC issued another fairness report which concluded that there were then enough broadcasters in the marketplace so that diversity of viewpoint was no longer an issue, and government intrusion into the content of programming was no longer justifiable. As a result, the FCC eliminated the fairness doctrine.