Reply, Right Of

Reply, Right Of The question arises whether the government, consistent with the First Amendment, can require the media to provide space or time to people wishing to respond to views expressed in the same media. Some legal scholars have argued that the First Amendment forbids only abridgment of expression, not its enhancement. Just as scarcity of frequencies limits the number of broadcast outlets, they argue, economic concentration has drastically reduced the number of newspapers. Thus, to foster the exchange of diverse ideas in the media marketplace, it is reasonable to require newspapers and electronic media to provide some right of access to those who do not own newspapers, hold broadcast licenses, or operate cable television systems.

In the leading case of Miami Herald Publishing Co. v. Tornillo (1974), the Supreme Court rejected a state‐imposed right of reply. Pat Tornillo, a candidate for the Florida legislature, was criticized in editorials by the Miami Herald. Tornillo demanded space under a Florida statute that required a newspaper to provide free reply space to any candidate whose personal character or official record the newspaper had assailed. The Herald refused. The Court unanimously declared the law unconstitutional as an infringement of the First Amendment guarantee of freedom of the press. A “responsible press is an undoubtedly desirable goal,” the Court remarked, “but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated” (p. 256). The Court concluded that a right of reply could impose intolerable financial costs, force newspapers to omit material they wished to publish in order to make room for replies, lead newspapers to avoid publishing anything that might trigger a reply, and constitute an unwarranted intrusion into the editorial process.

Only five years earlier, in Red Lion Broadcasting Co. Inc. v. Federal Communications (1969), the Court unanimously upheld a strikingly similar right of reply applicable to the broadcast media. Red Lion upheld the Fairness Doctrine and the personal attack and political editorial rules imposed by the Federal Communications Commission (FCC). By implication, the decision also affirmed the constitutionality of the so‐called equal opportunity section of the Federal Communications Act. In Red Lion, the Court found the First Amendment right of viewers and listeners to have access to diverse ideas to be more important than any First Amendment rights enjoyed by broadcasters. The Court also upheld in CBS v. FCC (1981) a federal statute requiring broadcasters to provide “reasonable access” to federal candidates. But it refused to recognize in CBS v. Democratic National Committee (1973) any First Amendment right to purchase air time for editorial advertising. The FCC in 1987 announced that it would no longer enforce the Fairness Doctrine, but the personal attack rule, political editorial rule, and Equal Opportunity Law remained in place. The Equal Opportunity Law, also with certain exceptions, requires broadcasters who provide legally qualified candidates with free or paid air time to make similar time available to all other qualified candidates for the same office. The personal attack and political editorial rules, with certain exceptions, required broadcasters to provide free reply time to people or groups whose personal integrity was impugned and to political candidates who were editorially opposed by a station. But in 2000, the U.S. Court of Appeals for the District of Columbia, frustrated with and annoyed by nearly two decades of inaction on the part of the FCC in response to petitions to eliminate these rules, ordered the agency to repeal them. The FCC immediately complied.

The Fairness Doctrine never required broadcasters to provide reply time to specific individuals or groups. It required only that broadcasters cover controversial issues of public importance in a fair manner. Nevertheless, the FCC's rationale for repeal of the doctrine included concern that it discouraged broadcasters from bold public affairs coverage, intruded on their editorial judgment, and gave censorship power to the FCC. Having repealed the Fairness Doctrine, the FCC found it difficult to convincingly justify the personal attack and political editorial rules, and it was little surprise when those rules succumbed to legal challenge. Thus, the right of reply in the electronic media today is confined to the Equal Opportunity Law. In theory, there is no First Amendment impediment to Congress or the FCC imposing the Fairness Doctrine and even the personal attack and political editorial rules. But in the current deregulatory environment, the prospects of such action seem small indeed.

See also Speech and the Press.

Bibliography

Jerome A. Barron , Freedom of the Press for Whom?: The Right of Access to Mass Media (1973).

Robert E. Drechsel