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U
S A 10. RIGHT OF REPLY AND OF RETRACTION Right of Reply: The Supreme Court has treated regulations for
radio and television differently than regulations for print media.
The government may more closely regulate radio and television broadcasting,
the Court has held, because broadcast frequencies are finite. As
such, in 1969, it upheld the Federal Communication Commission?s
?fairness doctrine,?? which requires broadcasters to allow the public
time to reply to personal attacks or political statements by an
opponent. But the court in 1974 said that a similar statute requiring
a newspaper to give political candidates space to respond to its
criticism would violate the First Amendment freedom of the press.
The government cannot interfere with an editor?s decision on content
merely to give the public access to the newspaper, the court held. Right of retraction: The 1974 Supreme Court case suggests that
a court could compel a retraction if a person establishes that he
has been defamed. The Court has yet to rule on the question. Several states have passed statutes requiring a public communication
medium to give a right of response to a person who claims to have
been defamed by it. A Florida statute to this effect was held unconstitutional
in Miami Herald Pub. Co. v. Tornillo (1974). While the particular
statute was overly broad and did not limit the requirement to cases
in which there was a claim of actual defamation, the holding seems
broad enough to cover a more limited statute. The holding seemed
to turn on two significant considerations. The first, compulsory
publication was perceived as imposing a significant penalty on freedom
of expression based on the content of the publication thereby chilling
speech. Second, the Florida statute was seen as an impermissible
restraint on editorial autonomy. The argument that the Florida statute chilled expression proceeded
on an assumption that if a newspaper contemplated publishing a particularly
caustic attack on a candidate, it would necessarily contemplate
that it might be obliged to surrender valuable space to provide
a reply. ?[Editors] might well conclude that the safe course is
to avoid controversy and that, under the operation of the Florida
statute, political and electoral coverage would be blunted and reduced.? As the second reason, it was said that the First Amendment
guarantees a free press, not a fair one. It is not the function
of government to assure less responsibility through regulation of
editorial judgment. There are retraction statutes in many states. They vary considerably
in their provisions as to the types of defamation covered, the requirement
of notice, types of defendants, etc. It seems that the holding in
Tornillo would not imply that retraction statutes would be held
unconstitutional.
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