The Burger Court Opinion
Writing Database
Miami Herald Publishing Co. v. Tornillo
418 U.S. 241 (1974)
Paul J. Wahlbeck, George Washington University
James F. Spriggs, II, Washington University in St. Louis
Forrest Maltzman, George Washington University
2o: Mr. Justice Doug1a3
Mr. Justice Brennan
Mr. Justice Stewart
Jueti.c2 nite
,T11.cte
1st ttuirr
Fr cm:
SUPREME COURT OF THE UNITEIVSTATEg:
No. 73--797
Recil'eulated:
*1 3
3
7974
The Miami Herald Publishing
Company, A Division of
Knight Newspapers,
On Appeal from the SuInc., Appellant,
preme Court of Florida.
v.
Pat L. Tornillo, Jr.
1974]
[June
MR. CHIEF JUSTICE BURGER
ti
delivered the opinion of
cn
the Court.
We set this case for plenary consideration to determine the constitutionality under the First and Fourteenth Amendments to the Constitution of a state
statute which grants to an electoral candidate a right
to demand from a newspaper which criticizes the condidate's character or official record equal space in the
newspaper to reply to the charges made.
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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, 107'7, appellant printed
editorials harshly critical of appellee's candidacy.' In
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
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CHAMBERS OF
THE CHIEF JUSTICE
June 4, 1974
Re: 73-797 - Miami Herald Publishing Co. v. Tornillo
Dear Bill:
You will get a "honed" version of the above
today. On the final I will be glad to amplify to meet
your memo.
Regards,
Mr. Justice Brennan
:
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puzirktujiazt, p. (c. 2a14g
June 4, 1974
Re: No. 73-797 - Miami Herald Publishing Co. v. Tornillo
MEMORANDUM TO THE CONFERENCE:
The first draft of the opinion in this case inadvertently went out prematurely. Enclosed is a revised draft
with stylistic changes throughout but with no changes of substance in any respect. Please disregard the first copy sent
yesterday.
Regards,
To: Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
end DRAFT.
From:
Justice Douglas
Justice Brennan/
Justice Stewart
Justice White
Justice Marshall
Justice Blackuu-:
Justice Powell
Justice Rehnquii17
Unief JusticE
SUPREME COURT OF THE UNITED STA0Talated:
No. 73-797
Recirculated: '
-
The Miami Herald Publishing
Company, A Division of
Knight Newspapers,
On Appeal from the SuInc., Appellant,
preme Court of Florida.
Pat L. Tornillo, Jr.
[June —, 1974]
•
2
MR: CHIEF JUt3TICE BURGER delivered the opinion of
the Court.
The issue in this case is whether a state statute grantjug a political candidate a right to equal space to reply to
criticism and attacks on his record by a newspaper, viofates the guarantees of a free press,
en
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 harshly critical of appellee's candidacy.' In
1-■
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,
4+,‘0)0%)1CA
To: Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
3rd DRAFT
SUPREME COURT OF THE UNITED
No_
73-797
From:
Justice
Justice
Justice
Justice
Justice
Justice
Justice
Justice
The unlef Justice
STATIS
. lated
11 eu
Douglas
Brennan
Stewart
White
Marshall
Blackmun
Powell
Rehnquis -
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:
Recirculated;
JUN A 1
t
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The Miami Herald Publishing
Company, A Division of
Knight Newspapers,
On Appeal from the SuInc Appellant,
preme Court of Florida,
c-
ct
cr.
Pat L. Tornillo. Jr.
(;June
19741
i'Vfa. CHIEF j USTICE 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,
Ri
-
-
tz
.1 a 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.' In
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,
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C HAM BERS OF
THE CHIEF JUSTICE
June 19, 1974
(held for 73-79 - Miami Herald Publishing Co.
v. Tornillo)
MEMORANDUM TO THE CONFERENCE:
Only one case, Bigelow v. Virginia, No. 73-1309, was held for
Miami Herald. Appellant Bigelow is the managing editor of a Charlottesville, Virginia, newspaper. He was fined for printing an advertisement
in February 1971 which stated that abortions were then legal in New York
and offering "immediate placement in accredited hospitals and clinics at
low cost." New York City telephone numbers and an address were supplied for those seeking help or information. The statute under which
appellant was prosecuted made it a misdemeanor for any person
"by publication, lecture, advertisement, or by the sale
or circulation of any publication, or in any other manner,
[to] encourage or prompt the procuring of abortion or
miscarriage."
The statute was amended, effective July 1, 1972, while the case was
court and now provides:
pendins a ore the state
"If any person, by publication, lecture, advertisement,
or by the sale or circulation of any publication, or through
the use of a referral agency for profit, or in any other
manner, encourage or promote the processing of an abortion
or miscarriage to be performed in this State which is prohibited under this article, he shall be guilty of a misdemeanor."
In affirming appellant's conviction on direct appeal the Virginia
Supreme Court rejected appellant's claim that the statute, as applied
and on its face, violated the First Amendment. Appellant appealed to
this Court, No. 72-932, and, after holding the case for Pittsburgh Press
v. Comm'n on Human Relations, 413 U.S. 376 (1973), we vacated and
remanded for further consideration in light of Roe v. Wader 410 U.S.
113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973). 413 U.S. 909 (1973).
See Mr. Justice Powell's "hold" Memorandum to the Conference of June 16,
1973. The Virginia Supreme Court affirmed on remand stating that the
First Amendment issue posed by this case is totally distinguishable from
the abortion case.
The Court's opinion in Miami Herald would not seem to bear upon
any disposition that we might wish to make of this appeal. The amendment of the statute would, in my view, probably preclude a First Amendment overbreadth attack on the statute, see Allee v. Medrano, No.
72-1125, concurrence and dissent, slip op., p. 13 n. 9. However, the
as-applied attack on the statute raises possibly significant questions
under Roe and Doe and Pittsburgh Press, which questions remain unresolved after Lehman v. City of Shaker Heights, No. 73-328.
At most, I would consider "joining three" to note.
Regards,
Ar2
4,4.ariloraroii.”
sL8M
asAi
To: Mr. j usce Douglas
Mr. Brennan
vo
Mr. M:ite Stewart
Mr. J:t-ce White
Mr. ,7:7L7-t:ce Marshall
Mr, Jstice Blackmun
Mr. Jastice Powell
Mr. Justice Rehnquis4th 1DRAF'r
From:„y^yJustice
SUPREME COURT OF THE UNITED SicATEKia ced:
No, 73-797
Rec irculated.
The Miami Herald Publishing
Company, A Division of
Knight Newspapers,
On Appeal from the Su.
Inca, Appellant,
preme Court of Florida.
Pat L. Tornilloi
June —, 1974]
Ma. CHIEF JUSTICE BUEGER 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.
7
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.' In
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,
iS7
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CHAMBERS OF
JUSTICE WILLIAM 0. DOUGLAS
Dear
June 3, 1974
Chief:
Please join =e in
your opinion in
73-797, MIAMI BERALD PUB. CO. v. TORNILLO.
WILLIAM O. DOUGLAS
The Chief Justice
cc: The Conference
nr.ritunaulAMM recurs ini UULLEUT1ONS
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OF THE MANUSCRIPT DIVISION, LIBRARY OF CONGRESS
1st DRAFT
SUPREME COURT OF THE UNITED STATES
011-r,
No. 73-797
The Miami Herald Publishing
Company, A Division of
Knight Newspapers,
On Appeal from the SuInc., Appellant,
preme Court of Florida.
Pat L. Tornillo, Jr.
[June —, 1974]
concurring.
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.
See generally Note, Vindication of the Reputation of a
Public Official. 80 Harv. L. Rev. 1730,1739-1747 (1967).
MR. JUSTICE BRENNAN,
-_.7_=1741
2nd DRAFT
SUPREME COURT OF THE UNITED STATES
No. 73-797
The Miami Herald Publishing
Company, A Division of
Knight Newspapers,
On Appeal from the SuInc., Appellant,
preme Court of Florida.
v.
Pat L. Tornillo, Jr.
[June —, 1974]
MR. JUSTICE BRENNAN,
with whom
MR. JUSTICE
joins, concurring.
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.
See generally Note, Vindication of the Reputation of a
Public Official, 80 Harv. L. Rev. 1730, 1739-1747 (1967).
REHNQUIST
Ouvrtatt 0.ourt of titt lartiteti , S tates
(q. zeg)ig
Vaollington,
CHAMBERS OF
JUSTICE POTTER STEWART
June 4, 1974
No. 73-797 - Miami Herald Publishing Co.
v. Tornillo
Dear Chief,
I am glad to join your opinion for the
• Court in this case. It is possible that I may
write a brief concurring opinion.
Sincerely yours,
t
The Chief Justice
Copies to the Conference
•
Circ-d1;_at
'22.2-1.1aG2d:
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No. 73-797 - The Miami Herald Publishing Co.
v. Tornillo
ti
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Mr. Justice White, concurring.
11
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, 220
(1966). We have learned, and coliTaaa— 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,"if 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 discussion of candidates, structures and forms of government, the manner in
which government is operated or should be operated,
•
1/ Whitney v. California, 274 U.S. 357, 375 (1927)
(Brandeis, J., concurring).
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From: Thlt:3, J.
SUPREME COURT OF THE UNITED STATES ,„.„,:;:
No. 73-797
The Miami Herald Publishing
Company, A Division of
Knight Newspapers,
On Appeal from the SuInc., Appellant,
preme Court of Florida,
v.
Pat L Tornillo, Jr.
[June —, 1974]
Mn. 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 S. 713 (1971). A newspaper or
magaizne 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, 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 beneficientsounding the purposes of controlling the press might be,
we prefer "the power of reason as applied through public
„_
Attprtutt QJourt
Washington. p.
CHAMBERS OF
JUSTICE THURGOOD MARSHALL
Mates
2.17p13
June 13, 1974
Re: No. 73-797 -- The Miami Herald Publishing Co. v. Tornillo
Dear Chief:
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Please join me.
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The Chief Justice
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CHAMBERS OF
JUSTICE HARRY A. BLACKMUN
June 4, 1974
Dear Chief:
Re: No. 73-797 - Miami Herald
Publishing Co. v. Tornillo
Please join me.
Sincerely,
The Chief Justice
Copies to the Conference
**mut Court of tfit litrattrJkafts
Ortsitingtort, gt. QT. zug4g
CHAMBERS OF
JUSTICE LEWIS F. POWELL,JR.
November 20, 1973
A-504 The Miami Herald Publishing Co. v. Tornillo
MEMORANDUM TO THE CONFERENCE:
I am sending to each of you with this Memorandum:
(i) Application for Stay of Mandate in the above case;
Jurisdictional statement filed on behalf of the applicant;
(iii) Memorandum of November 20 from Jim Ginty which
summarizes the facts, decision of the Florida Supreme Court, and the
contentions of the applicant.
After conferring with the Chief Justice, I have today signed an
Order in my capacity as Circuit Justice staying the application pending
further order of this Court. In view of the importance of the issue, I
am referring the application to the Court for consideration at our
Conference on November 30.
November 2 1973
=WE
The Miami Herald Publis
(No. 73-791) itAPPticati"
MATZ SrMAT/X3111 A Florida CircuitCourt held
mesonst tutional a Florists criminal statute which makes it a
dommanor far *.newsPaparrefuse to publish a reply by a
critical of the candidate publia
in the newspaper.
case
back to the trial c oo
The
SC stayed its mandate
applicant
to seek review "and obtain any L`as r
F,A.CTS:
legislature,
two editorials
refused and re
relief seeking to enforce by
provi
ha may make the
in the same kind
such reply, provided. sue
more space than the matter r
complabit for an
has been held, sad hie
ry
November 20,
1973
A-504 (No. 73-797) The Miami Herald
Publishing Co. v. Tornillo
Dear Chief:
The attached application for a stay of mandate has been filed
with me as Circuit Justice.
The Florida Supreme Court stayed its mandate through today
to allow an application to be made to us. Thus I am inclined to act
today unless you think otherwise. Also, I am inclined to grant a stay
pending action bn the application by the full Court (at our next
Conference). As you will see from Jim Ginty's memo the case
raises a major question of first impression. I am satisfied that
there will be at least four votes to grant.
I will call you early this afternoon to discuss this, if convenient
with you.
Sincerely,
The Chief Justice
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OSTICE
CHAM BERS OF
LEWIS F. POWELL, JR.
ti Priftb. ,;-5;tafro
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zrrgitg
June 6, 1974
No. 73-797 Miami Herald v. Tornillo
Dear Chief:
Please join me.
Sincerely,
•
The Chief Justice
lfp/ss
cc: The Conference
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C HA,,BF.PS OF
JUSTICE WILLIAM H. REHNQUIST
June 6, 1974
Re: No. 73-797 - Miami Herald v. Tornillo
Dear Chief:
Please join me in the opinion for the Court you have
prepared in this case.
Sincerely,
V
•
The Chief Justice
Copies to the Conference
(court of Hie Atiftti taco
Itraolriatgfint,
cfr. arpij
CHAMBERS OF
JUSTICE WILLIAM H. REHNQUIST
June 10, 1974
Re: No. 73-797 - Miami Herald v. Tornillo
Dear Bill:
Please join me in your concurring opinion in this case.
Sincerely,
vrAlvMr. Justice Brennan
Copies to the Conference