Announcer:
Good evening, ladies and gentlemen, and welcome to The Advocates, the PBS
Fight of the Week. This program is made possible by grants from The Arthur
Vining Davis Foundations, Lilly Endowment, Inc., Amoco Foundation, Inc., and
the Central Virginia Educational Television Corporation.
Rogovin:
Ladies and gentlemen, may I have your attention, please.
Announcer:
Moderator Charles Rogovin has just called tonight's meeting to
order.
Rogovin:
Good evening. Tonight The Advocates looks at an issue dealing with freedom
of the press and our electoral process. Specifically, our question is this:
Should newspapers be required to give reply space to political candidates
and others they have attacked? Advocate Tobias Simon says, "Yes."
Simon:
There are at least two sides to every question, and when you have been
attacked by the press, you have the right to have them print your reply for
their audiences to read, as a matter of your freedom of speech. Joining me
on this issue are Jerome Barron, Professor of Law, George Washington
University, and Tracy Westen, communications lawyer.
Rogovin:
Advocate William Van Alstyne says, "No."
Van Alstyne:
Mr. Simon's proposal is frankly that no newspaper, no matter how large or
small, shall be free to decide for itself what is to be published, even oh
its own editorial page. That is a very strange notion of a free press. It is
also quite clearly unconstitutional. With me tonight are Professor Benno
Schmidt, Professor of Constitutional Law at Columbia University, and Mr.
Reginald Murphy, the editor of The Atlanta Constitution.
Rogovin:
Thank you, gentlemen. Our program originates tonight from the Great Hall of
the Christopher Wren building on the campus of the College of William and
Mary in Williamsburg, Virginia. Built in 1695, this is the oldest academic
building still in use in the United States. This hall was used by the
colonial legislature from 1699 to 1704. We are grateful to the College and
to the Colonial Williamsburg Foundation for the privilege of being in this
historic setting for tonight's program, a debate that involves our historic
first amendment to the Constitution. I'm pleased to welcome Tobias Simon as
our advocate in favor of tonight's proposal. Mr. Simon is a graduate of
Harvard Law School and is currently an attorney in Miami, Florida. William
Van Alstyne returns to The Advocates to oppose tonight's proposition. He is
a Professor of Constitutional Law at Duke University in Durham, North
Carolina. We'll be back to you gentlemen for your cases in a moment, but
first a word of background on tonight's question.
In 1913 Florida passed a
statute requiring a newspaper to print the reply of any political candidate
whose character or official record had been attacked by that paper. The
question of the constitutionality of that law is now before the United
States Supreme Court in the case of Miami Herald v. Tornillo. Although only
one other state, Mississippi, has a right to reply statute, a bill similar
to the Florida statute is already pending in the North Carolina legislature,
and both the President and some members of Congress have called for changes
in present federal law so that "people interested in running for public
office can have great recourse against slanderous attacks on them." If the
Supreme Court upholds the Florida right to reply law, there will undoubtedly
be new right to reply statutes enacted throughout the country. Tonight's
proposal would give a right to reply not only to political candidates but to
any persons or groups attacked in newspaper editorials. Specifically, the
proposal is that each newspaper of general circulation shall provide a right
to reply to any organization or individual that is the subject of an attack
of an editorial nature. The debate involves some extremely difficult
questions. Should we protect persons who have been criticized by the press
by guaranteeing them a right to reply? Would a right to reply law enhance
freedom of speech and freedom of the press, or would it abridge these
freedoms? And is there a conflict between the constitutional guarantees of
freedom of speech and freedom of the press? Mr. Simon, the floor is
yours.
Simon:
Tonight I propose to change the format of The Advocates but only slightly.
After we have presented our position and our witnesses, there will be no
cross-examination and no right to reply from the other side. Possibly Mr.
Van Alstyne can arrange to purchase time on the other media and publish his
own show. If you think that is unfair, if this denies freedom of speech to
my opponents, and if this deprives you, the audience, of a hearty and
uninhibited debate, you are as right as rain. Yet I have done no more than
to state the position of the newspaper publishers of America who claim the
right to attack and assail an individual's character and reputation without
giving him a chance to reply either. We hold this truth to be self-evident,
that the twin constitutional guarantees of their freedom of the press and
our freedom of speech impose the duty on all the mass-communication media of
fair presentation in response to personal attacks and therefore a right to
reply law is necessary to prevent imbalance in and abuse of the first
amendment. My first witness is Jerome Barron.
Rogovin:
Good evening. Professor Barron. It's nice to have you on The
Advocates.
Barron:
It's nice to be here.
Simon:
Professor Barron is a Professor of Constitutional Law at George Washington
University and is widely regarded as the leading authority on the issue of
the right to reply. Professor Barron, why is there a need for a right to
reply law?
Barron:
I think there's a need for a right to reply law because our constitutional
law is, I think, very adequate to deal with the person who has already
spoken and to protect such a person—for example, a fellow speaking in a park
who enrages an audience—to protect him from the state. But what about people
who want to reach a larger audience than an audience in a park? What about
those who want to enter those forums which are the real media of opinion in
this country—the VHF television stations and the mass-circulation daily
newspapers in our great metropolitan communities?
Simon:
There's no way to get there except through the right of reply law.
Barron:
It seems to me there is not, no.
Simon:
What would such a right of reply law cover and how would it work?
Barron:
A right of reply law, which would give us that debate which is one of the
purposes of the first amendment, would provide a right of reply to anyone
who is editorially attacked in a daily newspaper. Such a person would have a
right of equal space to the editorial to put his side of the story in that
paper. Whether it's on the first page or the last page is irrelevant. The
main thing is that the same readership is exposed to the other side of the
idea.
Simon:
Do you believe that a right of reply law would really get a fuller debate
before the public?
Barron:
It seems to me that you can't have a debate if one side is muzzled. The only
way to make sure that one side isn't muzzled is to make sure that we have a
reply. Now, I understand that there are some people who say that the result
of the kind of thing I'm talking about will be less speech rather than more
speech.
Simon:
Well, you have heard the threats to the contrary.
Simon:
Could you explain them?
Barron:
Well, the threats to the contrary go something like this: that what I've
been talking about is really self-censorship, that the American press, if
they felt that they had to let the people they attacked editorially have an
opportunity to reply, would take the position that they just wouldn't get
involved in ideas at all. It seems to me just to state that proposition is
really to destroy it because what they're saying is rather than give my
adversary the only effective forum he will ever have, I would rather say
nothing. I don't believe they really mean that. I think more highly of them
than that.
Simon:
Well, since such a law would meet the opposition of the publishers of
America, would we not have the problem of hauling them into court week after
week in order to enforce the right of reply law?
Barron:
I don't think that would be the result at all. I don't think we'd have a
mass of lawsuits. I think what would happen is that such a law would be
symbolic as one of the great public relations triumphs, it seems to me, of
this century over the eighteenth, that the people who own the media have
managed to completely identify their rights with the first amendment to the
exclusion of all the rest of us. It seems to me if we had a right of reply
law, what it would do, it would say to the American people, the people who
own the media and who work in it have rights in the first amendment, but so
do you, the people, also.
Rogovin:
Last question, Mr. Simon.
Simon:
Why can't we leave the situation alone. Professor Barron? Why can't we leave
it to the idea— leave the ideas to the free market and let them find their
growth in the free market?
Barron:
Mr. Simon, the reason we can't leave it to the free market is because there
is no free market. I wish there were.
Rogovin:
Thank you, Professor Barron. Over to Mr. Van Alstyne for some
cross-examination, please.
Van Alstyne:
Mr. Barron, you've developed some high-powered arguments in terms of a
variety of propositions that I don't understand to be included in your own
bill. I want to ask some questions about your bill. Your first claim is that
there's a need for greater access, but as I understand your proposal, it
does not necessarily ensure access at all. Is it not true, for instance,
that in the event the newspaper simply campaigns favorably to one candidate
and says nothing about a particular candidate, he has no access to
it?
Barron:
That's absolutely correct.
Van Alstyne:
Isn't it also true that under your proposal, even if the newspaper launches
an attack on a candidate but does so by disguising the candor of his
editorial opinion through yellow journalism, putting it in his news columns,
and using syndicated columns . .
Barron:
I don't understand what you mean by "yellow journalism."
Van Alstyne:
By "yellow journalism" I mean disguising the frankness of his opinion not by
expressing it as his own, but farming it out through his regular news
stories, yellow journalism. Then your statute does not operate at all, is
that not correct?
Barron:
That's correct. And if I answer to the thrust of your objections, what
you're saying is that if we can't have perfect access, let's not have
any.
Van Alstyne:
Then I want to ask you this question. Since access cannot be assured at all,
as I understand it, because the attack can take place through the disguise
of the news stories and because you may simply rally in favor of one and say
nothing about the other, what do you do about the problem of the newspaper
which is the only one of several that stands opposed to a candidate and who
attacks him on a truthful basis, on the eve of an election which, however,
now requires them to publish a reply which it cannot edit and may be false
and self-serving and leave a net false impression.
Barron:
It seems to me that I would do the same thing that we now do, but
one-sidedly. There is nothing to prevent a newspaper from making a false
charge against a candidate just before an election. Unless we can prove that
it was calculatedly false, that candidate has absolutely no recourse under
the libel laws. It seems to me if we can publish false editorials, we can
publish false replies.
Van Alstyne:
I'm not sure that you understood my question, Mr. Barron. Let me rephrase
it. I'm assuming the paper is one of several, it acts in good faith, it
publishes its critique frankly as its own editorial view several days. It
then is forced to comply with your statute as a condition of stating its
opinion at all to publish a reply which may be false and self-serving, and
all of the other papers already share that view. Is that your
proposal?
Barron:
No, it is not my proposal.
Van Alstyne:
is that not the way it can work in fact?
Barron:
No, sir. It seems to me that the way it would work is this way, that just as
an editorial is not—the
publisher of an editorial is not liable for damages
if it turns out that what the editorial said was false, as long as there was
no intentional falsehood, so that if the reply turns out to be false, as
long as there was no intent, there will be no libel damages. I think the
answer to you is if you say it turns out that it was calculatedly false,
then I would say that there would be a right in damages, that would be my
answer to you.
Van Alstyne:
But, Mr. Barron, as a Professor of Constitutional Law, surely you can't
subscribe to that answer because the falsehood may simply be in self-serving
statements, misrepresenting his own ...
Barron:
Then if it is false . . .
Van Alstyne:
He has libeled no one.
Barron:
If it is self-serving statements such as we get in editorials every day in
this country, then it seems to me, it is non-actionable from a first
amendment point of view. Since it doesn't enrage you that that's the case
with an editorial, I don't see why it should enrage you that that's the case
with the reply.
Van Alstyne:
Of course not. It only means that the paper, to state its position, should
stand ready to print falsehoods self-serving to a candidate supported by all
other of the press. Is that not right?
Barron:
But my response is that's exactly what happens now with an editorial. Why
doesn't that bother you? It can happen, you wouldn't deny that can happen in
an editorial?
Van Alstyne:
That an editorial may be false?
Van Alstyne:
As you and I know, Mr. Barron, in response to that question, I take it, if
it is false and injurious and not by professional journalistic standards, an
action for libel will lie.
Barron:
That is absolutely incorrect. Unless it is calculatedly false, no damages
will lie.
Van Alstyne:
Isn't the standard, rather, whether or not standards of professional
journalism were observed in the gathering of the stories?
Van Alstyne:
May I ask you, Mr. Barron, what amount of judgment Coach Wally Butts
collected from the Curtis Publishing Company?
Barron:
Yes, but you're using a magazine case and not a daily newspaper
case.
Van Alstyne:
Answer my question and then enlarge if you would, Mr. Barron.
Rogovin:
Would you make your answer brief, Professor Barron.
Barron:
Could I have the question again?
Van Alstyne:
Yes. Did Coach Butts recover a judgment for Curtis Publishing Company for
falsehood?
Van Alstyne:
In what amount?
Barron:
I don't remember.
Van Alstyne:
$300,000, Mr. Barron, to help you.
Rogovin:
Thank you very much, Professor Barron. Pleasure to have you.
Simon:
Are there any other remedies we can use to protect the victims of the
press's attack? For example, could we not use the anti-trust laws to break
up newspaper monopolies in the cities where they exist?
Barron:
I don't want to say it, but I'm glad you asked me that question, but I'm
going to say it. And the reason I'm going to say it is because this is one
argument that really annoys me because although the newspaper industry says
what we ought to do really is rely on our anti-trust laws, what have they
done? They have
gone to the Congress of the United States and gotten
themselves exempted from the anti-trust laws through the Newspaper
Preservation Act.
Rogovin:
Any re-cross, Mr. Van Alstyne?
Van Alstyne:
Well, I again have to ask Mr. Barron whether or not he's accurately
representing even that proposition. Is it not, rather, the case that the
Newspaper Preservation Act makes it possible for competing papers to
maintain themselves separately with separate and uncoordinated editorial
policies, and that's the only function of that act?
Barron:
My response to that is that one of the arguments for the Newspaper
Preservation Act is that we will then get two sides of an opinion in a
community, so that the assumption is that it is permissible under the first
amendment to legislate to get two sides across to a community. That is
exactly what right of reply legislation will do. Yet you are opposed to
right of reply legislation.
Rogovin:
Thank you, gentlemen. I take it that concludes the re-cross. Professor
Barron, thanks so much for being with us tonight on The Advocates. Can we
have your next witness, Mr. Simon.
Simon:
Tracy Westen to the stand, please.
Rogovin:
Good to have you here tonight, Mr. Westen.
Simon:
Tracy Westen is a Director of Public Communications, Inc., a public services
law firm in Los Angeles. He has served for five years as a public interest
lawyer in Washington, D.C., part of that time with the Federal
Communications Commission. And my first question to you, Mr. Westen, is: is
this censorship—does this law violate the first amendment?
Westen:
No, I don't believe it does for a very simple reason. This law does not tell
a newspaper that it can't publish anything. It is still free to express any
opinion it wishes. This law would only provide that once it has attacked
someone, that person has a right to defend himself.
Simon:
But doesn't a law which affirmatively requires that a newspaper print
something, doesn't that abridge freedom of the press?
Westen:
In an overall sense, no. In any democratic society you've got to abridge the
speech of some in order to let others have their say. If I have freedom of
the speech—freedom of speech—that may not entitle me to walk over and shout
down someone else who is trying to speak. So we have ground rules: I speak
for a while, then I sit down, and someone else has his say. My speech is
abridged; I may want to talk forever. But we have to put up with those
restrictions in order to have as many speak as possible.
Simon:
I see. Would you tell us, please, what has happened in the two hundred years
since the adoption of the first amendment that now requires the enactment of
a right to reply law. Why can't the free market of ideas operate?
Westen:
Well, two hundred years ago when the first amendment was drafted, it was a
comparatively easy matter for a person to speak to his neighbor over a back
yard fence or in the town hall meeting or what have you. Today it's a very
different situation. Communities are so large, it's literally impossible for
any one person to reach his fellow neighbors across twenty miles of urban
sprawl. If he's attacked in the L.A. Times, for instance, it doesn't do him
any good to run around door to door and say, "I'm the guy that the L.A.
Times attacked, and this is my view." He's got to have his reply printed in
the paper or he's defenseless.
Simon:
I see. Well, if his reply is printed in the paper, and that's all that's
involved, what is it that the papers are worried about? Why do they keep
claiming that a right of reply law will represent a chilling effect upon
their ability to get the news out to the people?
Westen:
Well, you know, our press has its problems, but essentially I think that we
have the best newspapers in the world. And I just don't accept the argument
that editors all across the country are simply going to gag themselves
merely because they can't have it all to themselves. I believe that they
will be able to continue to state their own opinions with the forthright
candor, that they will simply allow others to have a reply view, and that's
not going to—they're not going to withdraw their own comments.
Simon:
Is there any chilling effect other than their own self-indulgence?
Westen:
See, that's the point here. If I walk up to someone and say, "If you open
your mouth on the war, I'm going to beat you up," that's a pretty big
threat. A person is entitled not to answer. If I say, "If you open your
mouth on some issue, I'm going to oppose you,' and the guy then shuts up,
that's his own fault. He's censoring himself.
Simon:
And that's all that's involved as far as the newspapers are
concerned.
Westen:
Absolutely. This law doesn't say a newspaper can't print anything.
Simon:
Mr. Westen, can you tell us whether or not there are any analogies to the
right of reply that affect the electric media.
Westen:
Well, we've had a very similar right of reply that's affected radio and
television for a number of years. If a radio or television station attacks
someone while discussing an issue of controversy, they have an obligation to
present his viewpoint in reply. We've all seen it. A television station
gives an editorial, may state an opinion strongly, and a couple of days
later there's some representative of an organization presenting the other
viewpoint. It works simply, and although there are seven thousand seven
hundred television stations and radio stations in this country, in the last
three or four years there have been no more than ten or twelve instances in
which this issue has ever had to be resolved by the Federal Communications
Commission. It doesn't arise that often in terms of problems; it has worked
fairly well.
Rogovin:
Let's go to Mr. Van Alstyne for some questions .
Van Alstyne:
Well, I'm so glad you're drawing on your expertness because of the
regulation that the FCC already imposes on the electronic media because I
wanted to ask you to comment on the views of Mr. Bill Monroe, the NBC
correspondent who testified as follows before the Senate Sub-Committee as to
how the reply doctrine has chilled and created self-censor ship on your
media. He testified this way—and I want to know the basis of your
disagreement.
Westen:
Is he a representative of CBS?
Van Alstyne:
"There are stations that do not do investigative reporting. There are
stations that do outspoken editorials but are scared to endorse candidates.
My own opinion is that much of this kind of caution— probably most of it—is
due to a deep feeling that boldness equals trouble with government,
blandness equals peace." Mr. Westen?"
Westen:
Well, I think he was commenting on the fairness doctrine which we're not
discussing at all. We're simply discussing a right of reply. The fairness
doctrine, it's complicated, and it's a different issue entirely. I don't
happen to agree with the fairness doctrine, but that's not the issue we're
discussing.
Van Alstyne:
I see. So you don't see the same anxiety of self-censorship by a lonely
newspaper presuming to be the only one to criticize a leading
candidate.
Westen:
No. No, I think, you know, if . . .
Van Alstyne:
If you don't, let me bring it closer to home, Mr. Westen. You're a close
associate, as I recall, of Nicholas Johnson who was formerly with the FCC, a
roost distinguished gentleman. Are you aware of the difficulties we had and
as to the reason why Mr. Johnson was unable to appear on this
program?
Van Alstyne:
Do you realize that only because he is candidate for office in Iowa where
several of the affiliates carry this particular program, because of the
candidate reply doctrine, those affiliates would have had to provide equal
time for six rivals of his for appearing on this program, and that because
of their inability to do that, as an alternative they would have had to
cancel out the program in this area, we had to forego the services of Mr.
Johnson.
Westen:
Well, they may well be presenting the
replies of those six candidates in an entirely different forum. They may be
devoting two hours to a discussion—a round table discussion—of Nicholas
Johnson's views and all the candidates. They may well have another
substitute. But again you're talking about the equal time doctrine which is
substantially different. In a race where there are thirty or forty
candidates, if you put one on television, the station may have to present
equal time— like a half an hour for each—to all the other thirty or
forty.
Van Alstyne:
Yes. The candidates reply time doctrine in your medium. May I ask you, Mr.
Westen—you attended the conference of the Earl Warren Institute for
Advocacy, as I recall. Wasn't it the conclusion of the scholars and the
lawyers . . . ?
Westen:
It was a conference stacked with journalists, I recall.
Van Alstyne:
Wasn't the vote inclusive of scholars and lawyers as well, and does not the
American Civil Liberties Union share their position that "the consensus is
to free television of government control. Here it is recognized
..."
Westen:
Well, I don't represent the ACLU . . .
Van Alstyne:
Let me finish the question.
Rogovin:
Let him finish the question.
Van Alstyne:
"Here it is recognized that while technology has set forth intricate
problems, the spirit of a democracy is also strong enough to let this
twentieth century marvel operate freely."
Westen:
I will say that I was at that conference, and I dissented and they have the
courtesy of printing my reply, which is more than the newspapers are arguing
for here today.
Van Alstyne:
Yes, even though the same conference vouchsafes to a free press, the
prerogative at least on its own editorial page not to do that.
Westen:
I tell you what: you hold the conference of community groups and blacks and
minorities that are often slandered in the papers and have no right of
reply, and I'll guarantee that that decision is going to come out
differently. The problem is when a newspaper attacks an organization that
has no money to pay for a right of reply, it's defenseless. Let's have a
conference of those people and see how they feel about a right of
reply.
Van Alstyne:
But again, Mr. Westen, we may misunderstand one another, for I thought it
was the case that the law of libel still lives and thrives, and to the
extent that one has been maligned by irresponsible journalistic reporting
for false injurious utterances, there is recourse to the courts, that this
proposal by Mr. Barron, rather, is to assure access even in response to a
true criticism on the eve of election for self-serving purposes. Am I
misinformed?
Westen:
Absolutely. No, that's absolutely right, and it's very important to make
clear why that's the case. My right to recover damages under a libel statute
may fill my pocket, but it will not expose my view to the public. I may be
more interested in seeing that my view is presented to my community than I
am in money. A libel law may not interest me. It may give me money recovery,
but I may want my view to be exposed, and that—the right of reply is a
public right: it insures that the public is exposed to diverse views. It's
not a private monetary right; we need it in addition to libel, if
anything.
Rogovin:
We'll go to Mr. Simon for a question, Mr. Van Alstyne, and come back to
you.
Simon:
Mr. Westen, thank you for keeping the issues on the right to reply. I would
like to ask you, sir, whether you feel there is any economic problem for the
press in the administration of a right to reply law.
Westen:
Oh, I don't think so. Newspapers publish hundreds and hundreds of pages a
week, some of them publish 4, or 5 or 6 editions a day. I think there's
plenty of room for a few inches of space to permit somebody who has been
attacked in that paper to reply. If a paper can find enough space to attack
someone, I think they can find enough space to give him a reply.
Rogovin:
To you, Mr. Van Alstyne, for a question.
Van Alstyne:
Mr. Westen, again I submit to you as a question, this is not in substitution
of a libel action, and I take it we're not talking about a proposal pursuant
to which a court could order a retraction or order a reply in the event the
falsehood of the attack has been established.
Westen:
That's right. Its' . . .
Van Alstyne:
This sweeps way beyond that, does it not?
Westen:
Well, you see, it's important to understand that even ... a newspaper can
even state the truth and attack someone.
Westen:
I can say, for instance, you came to work today sober. That may be true, but
it leaves the implication that often you don’t come to work sober. So the
point is not that we only want a right of reply when there are falsehoods,
we want a reply when there's an attack.
Van Alstyne:
That's a choice illustration, and no doubt a court would find that the
insinuation is plain, isn't that frankly true, Mr. Westen?
Van Alstyne:
That the insinuation of defamation is quite plain, so that your illustration
is really not responsive.
Westen:
Yes, it is. Yes, it is. No, the point is that we want a reply when people
are attacked, we'll let the reading public make up their own mind.
Van Alstyne:
If they have time.
Westen:
That's the ultimate solution in first amendment areas, that the public
ultimately is going to have to make up its own mind. The most that we can
hope for is that they'll have access to all views, and that's what this
reply statute is designed to accomplish.
Rogovin:
A last question, Mr. Van Alstyne?
Van Alstyne:
No, it seems to me, Mr. Rogovin, that I can't put another question because
the proposition that was formulated by Professor Barron is not the one to
which I hear Mr. Westen addressing himself. Thank you.
Rogovin:
Thank you, Mr. Westen, very much for being with us on The Advocates. Thank
you. For those of you in our audience who may have joined us late, Mr. Simon
and his witnesses have just presented the case in favor of newspapers being
required to give reply space to political candidates and others they have
attacked. And now for the case against. Mr. Van Alstyne, if you will
open.
Van Alstyne:
Mr. Rogovin, ladies and gentlemen, a free press has its shortcomings
obviously. Because of the freedom of the press that we have cherished, that
freedom that brought us the Watergate revelations and the Pentagon Papers is
necessarily also the freedom to be highly partisan and occasionally very
abusive. Whatever the shortcomings of that press, the specific proposal
which Professor Barron has drafted cannot conceivably cure them.
Respectfully, it is simply absurd if you deal with it concretely. Consider
specifically what it will do: if but one paper attacks a candidate that all
others support, and all other media also support, Mr. Barron would
nevertheless allow the candidate to commandeer the editorial page of the
only newspaper with the fortitude to oppose him. Even if the newspaper's
criticisms were entirely true, the candidate could nonetheless force the
paper to print a reply which is quite false and wholly self-serving, and to
do so on the eve of the election when it is impossible to make further
comment on the part of the paper. The essence of this bill is that the press
is free, but only insofar as it editorializes mere compliment or praise, or
indeed avoids editorializing at all. And by applying precisely and solely to
the frank expressions of the newspaper of its own views on its own editorial
column this bill perversely discourages a newspaper from candidly stating
its position in editorial and does as I previously suggested, encourage it
to pursue a yellow journalism by disguising its bias in its regular news
columns to which this proposal does not apply at all. Now, as Mr. Barron
readily admits, as Mr. Simon stressed in his opening remarks, this
compulsory publication act is meant to be the first major step toward a
guaranteed right of access for all ideas, whether their proponents are
attacked or not. Ultimately this would make newspapers mirror images of one
another in my view, editorial cafeterias with a suitable sprinkling of other
people's views as the price of having any of their own. Mr. Barron calls his
proposal the truth preservation act. As my colleagues in the American Civil
Liberties Union have suggested, however, it might more appropriately be
called the Barron Wasteland Bill. It was diversity among the free and
private press and not a pale sameness imposed by government regulation that
led Jefferson and Madison here in Williamsburg to draft the first amendment
to our Constitution. I call as my first witness Professor Benno
Schmidt.
Rogovin:
Good evening. Professor Schmidt. Pleased to have you here.
Van Alstyne:
Professor Schmidt is Professor of Constitutional Law at Columbia University.
Professor Schmidt, it was not noted in the opening argument that only, with
any emphasis, that only two states, Mississippi and Florida, notwithstanding
these alleged problems have seen fit to adopt a statute such as this. Why
has it not gained wider acceptance?
Schmidt Jr:
And in those two states the statutes have almost never been used. I think
statutes of this kind have been regarded as a violation of traditional
principles of freedom of the press. The idea that the government would force
someone to publish an idea which he or she does not believe runs counter to
our traditions of individual liberty. I believe it violates notions of
individual autonomy in political expression, which it was one purpose of the
first amendment to put beyond the reach of government interference. There is
a second problem which I take more seriously than the other witnesses, and
that is the chilling effect problem, that a publication which has to provide
free space because it engages in some critical commentary—and we've seen how
widespread can be the implication of an attack in Mr. Westen's
testimony—that such a publication will decide simply to forego the criticism
in the first place so as not to have to worry about the expense and the
hassle and the infringement on its editorial discretion.
Van Alstyne:
Now, Mr. Schmidt, in spite of those prospective difficulties, Mr. Barron has
suggested that this is a necessary filling of the gap because of the
inadequate coverage of the libel law. Do you agree with that?
Schmidt Jr:
I believe Mr. Barron may have somewhat exaggerated the impact of recent
libel decisions on the traditional law of libel. There have been several
major recoveries in libel cases since the recent liberalization. Senator
Goldwater recovered $50,000 for an article asserting that he was
psychologically unfit to be President, and Wally Butts, who has been
mentioned before, recovered over $300,000 from the Saturday Evening Post for
an article which asserted that he'd provided helpful information to a rival
football team. Moreover, the number of libel actions which are currently
being filed show no evidence of slackening; I don't think it's impossible to
win a libel case.
Van Alstyne:
But even, let's suppose just momentarily that libel cases don't quite do all
that the public thinks desirable. Do you think this is a necessary
resolution then?
Schmidt Jr:
Well, I think the point that needs to be stressed is that under the
traditional law of libel, a recovery against a paper dependent on a judicial
finding of defamatory falsehood—that is, that a newspaper published a false
statement of fact which damaged the reputation of an individual. Now, if a
right of reply statute was geared to serve the purposes of the libel laws,
it also ought to depend on a judicial finding of a defamatory statement. But
Professor Barron's statute goes way beyond that, and indeed, I think it
stands the law of libel analogy right on its head. A paper which publishes a
truthful criticism can be forced under his law to publish a false
reply.
Van Alstyne:
I've but so little time to ask you one last question. Do you regard this
statute as a suitable answer to alleged problems of concentration in the
media, too few papers?
Rogovin:
A brief answer. Professor Schmidt.
Schmidt Jr:
No, I think the way to deal with concentration is not to undermine the
independence of the newspapers which we have left. We ought to deal with it
directly, laws and policies designed to create more independent publishing
units and not undermine the independence of the ones that we now
have.
Rogovin:
Mr. Simon, some questions from you.
Simon:
Thank you. Professor Schmidt, in your comments about the Florida and
Mississippi statutes, you don't really know that these statutes have been
used or not. You simply know that the statutes have not been disobeyed; you
don't see any evidence of cases, isn't that correct, sir?
Schmidt Jr:
That's correct.
Simon:
All right. And to correct another, what I think is a misapprehension: you
don't know of any libel judgments ...
Schmidt Jr:
I believe I said the statutes hadn't been applied to my knowledge; I meant
through judicial process.
Simon:
You simply don't know whether there have been
any cases in which the
press has been required—they may have obeyed voluntarily. Isn't that
correct, sir?
Schmidt Jr:
Right, oh yes.
Simon:
Thank you. And now let me check on some facts you've given us about libel.
Can you think of any $500,000 libel verdicts since New York Times v.
Sullivan was quashed by the Supreme Court of the United States?
Simon:
Yes, sir. Isn't that the verdict in New York Times v. Sullivan that resulted
in the repeal of the law of negligence for the press?
Schmidt Jr:
That had been upheld.
Schmidt Jr:
Of course there were several that the Supreme Court reversed against General
Walker, for one ...
Simon:
There have been more than a hundred cases filed in the last two years, all
of which have been dismissed on some rejudgment, isn't that
correct?
Schmidt Jr:
Well, yes, that's correct, but ...
Simon:
And isn't it correct, sir, that the two libel judgments you've talked about
have been judgments that occurred against the magazine section of the press
and not the daily press?
Schmidt Jr:
Yes, that's true, but the New York Times, for example, has only lost one
libel case in its .history, and I'm told by their General Counsel that just
as many libel cases are now being filed against them. They didn't lose them
before Sullivan, they haven't lost them since.
Simon:
Are you advocating a return to the pre-New York Times-Sullivan libel law
situation with its potential for million dollar verdicts against the press?
Is it your position that the libel situation is more or less repressive than
simply requiring a reply when the press has attacked its victim?
Schmidt Jr:
No, I believe Sullivan to have been an excellent decision. As a matter of
fact, I would personally favor a right of reply statute that was geared to
the Sullivan problem—that is, which allowed a person who had been falsely
defamed by a newspaper to bring an action for vindication of reputation, and
if that person is unable to recover damages because he cannot prove reckless
disregard of journalistic—adequate' journalistic—standards under the
Sullivan rule, but nevertheless can prove that he has been falsely libeled,
I believe it would be desirable for the papers to be required to publish the
judgment of the court. I would go that far. But this statute, of course,
goes way, way beyond that.
Simon:
So the Barron Wasteland does have an oasis, if I may coin a phrase here.
You're prepared to protect the victim of the press if the press has been
false, but you are not prepared to protect the victim of the press if his
reputation has been merely torn to shreds and tatters because they've
dredged up some thirty-five year old conviction, or if they have simply made
a mistake.
Schmidt Jr:
Well, if they've made a mistake and published something false, as I've said
before, I would support a right of reply, but I would not support imposing
potentially rather onerous burdens on the press for publishing truthful
facts about public figures. But I should comment also that I don't think it
does Professor Barron any discredit to note that proposals for a narrow
right of reply of the kind that I've indicated have been around for quite a
long time.
Simon:
Thank you. Let me ask you this. Professor Schmidt. Are you taking the
position that there are no rules of law to which the press can be made
subject?
Schmidt Jr:
Oh no, I wouldn't take that position.
Simon:
All right. You're not assuming that the press has liberties which are
absolute.
Schmidt Jr:
Oh no, I don't make that assumption, no.
Simon:
All right. Would you support, for example, a rule of law which requires the
press to withhold statements in order to permit fair trials for
defendants?
Schmidt Jr:
In certain very narrow circumstances I'm quite dubious about that. I think
there are other ways to deal with that. I support courts ordering attorneys
and police and in some cases witnesses not to speak to reporters .
Simon:
Including the press?
Schmidt Jr:
Including the press.
Simon:
Well, then, let me ask you this last question.
Rogovin:
Last question, Mr. Simon.
Simon:
Thank you. Our society obviously has an interest in free elections, and just
as our government can assure citizens fair trials, why can't we guarantee
free elections by prohibiting sustained and unanswered attacks on candidates
by giving them a right of reply?
Schmidt Jr:
Well, this statute is so easily circumvented, if that's the purpose. Why not
simply publish the attack the day before the election?
Simon:
Do you feel the press is so dishonest as to seek to evade the law by doing
that kind of churlish trick?
Rogovin:
Let me go over, gentlemen, to Mr. Van Alstyne, please.
Van Alstyne:
Well, picking up exactly where opposing counsel left off, it isn't—isn't it
the case that a state which had just that kind of statute seeking to muzzle
the unfriendly comment of the press the day before the election was held
unconstitutional, as a violation of freedom of the press by the Supreme
Court?
Schmidt Jr:
No, we've already had that case, yes.
Van Alstyne:
Yes, that's right. We're not talking about an access doctrine here, are we,
Mr. Schmidt? I wanted you to have an opportunity to elaborate on your
response, that this thing doesn't grant access, even while it will chill the
editorial acumen to be candid though harsh.
Schmidt Jr:
No, this proposal is not one which really provides access to those of us who
don't have recourse to the editorial pages of our daily papers. It's only if
the paper, for one reason or another, should focus upon us in a way that we
deem to be an attack that Professor Barron's statute would give us this
right of reply.
Van Alstyne:
The statute doesn't apply to syndicated columns ...
Rogovin:
Mr. Van Alstyne, Mr. Simon gets one last brief question and a brief answer
from Professor Schmidt.
Simon:
Well, do I take it, Professor Schmidt, that what you're saying is that
Professor Barron's law doesn't go far enough and that you would be in favor
of an expanded law which would protect those who were assailed not only in
the editorial columns but in the news and in the private columns as
well?
Schmidt Jr:
Well, I think that's the logic of his position. I must say, I think it
demonstrates the absurdity of any broader right of reply than one which
depends on a judicial finding of defamatory falsehood for its
trigger.
Rogovin:
Thank you very much, Professor Schmidt.
Van Alstyne:
My next witness is Mr. Reginald Murphy, Editor of The Atlanta
Constitution.
Rogovin:
Very pleased you could join us, Mr. Murphy.
Murphy:
I'm delighted to be here. Anywhere . . .
Van Alstyne:
We're happy you're here too; as some in the audience may not know, you are
the Mr. Murphy who was kidnapped not too long ago. Mr. Murphy, I wanted
originally to ask you whether or not, as a newspaper editor, sitting in that
particular seat, you do in candor think that there would be very difficult
problems as an editor if you had to face a statute such as this. But in
light of what has been pressed here—that they do not want to stick with the
original proposition, but may even want to press into the regular news
columns—I want you to treat my question in that frame as well.
Murphy:
Fine. Look, what would happen to me if I had to deal with the right of
access to everybody? First of all, I'd either have to refrain from comment
on the issues of the day, or I'd have to invite some very special guests
into the editorial board meetings of my newspaper. I'd have to invite Lester
Maddox who is the Lieutenant Governor of Georgia, I'd have to invite some
people from the Symbionese Liberation Army, who I lave been critical
of—that's a group you talk about—and I would have to invite the Ku Klux
Klan, and I think that's an unworkable process. The second process—and this
is more serious—is that your limiting it to the editorial page would force
opinion into the news columns of the paper, and it's my understanding that
you'd rather have the opinion confined to the editorial page. And the final
process that so drastically alters all of our problems here is that you'd
require me to spend all of my time in lawyers' offices trying to figure out
whether or not I could comment here without opening myself to all these
kinds of replies that would naturally come.
Van Alstyne:
I take it if you expand the right even into the news columns, you have to
render the same judgment there as well, is that right?
Murphy:
Yes. That's correct.
Van Alstyne:
Mr. Simon's witnesses say that you will not really operate under censorship
in this indirect way for printing an attack, but just be forced to print the
reply, and that that's simply fair. Why isn't it simply fair, Mr.
Murphy?
Murphy:
Well, what would they like me to leave out? Would they like me to leave out
the commentary about the sewer plan, about the rapid transit program, what
would they like for me to leave out instead? What really happens here is
that there is access to the news media. Our whole reason for being is to
communicate the clash of ideas in a community and to say that we can't ever
communicate those is to overlook the realities of the situation.
Van Alstyne:
The point has been pressed earlier that perhaps, though only two states have
seen fit even to consider this legislation seriously thus far, nevertheless
because there are dwindling numbers in the press it now becomes a sensible
tonic to the diminution of the press itself. Is that factually correct, Mr.
Murphy?
Murphy:
Well, look, it's not factual at all. The fact is that the number of daily
newspapers has stabilized at about 1,750 in the last decade. The number of
weeklies has escalated to over 8,000. There are better than 7,700 radio and
television stations. There are talk radio shows all over the world that
communicate these kinds of political ideas. I think that is not a well
founded kind of an argument. There's a proliferation and not a
shrinking.
Van Alstyne:
I see. In short, there is not a greater concentration in the market at
all.
Rogovin:
Let me go to Mr. Simon for some questions.
Simon:
Mr. Murphy, I'm very pleased to have you here also. I want to add my voice
to that. But I do have some serious questions about your
testimony.
Simon:
If you're able to find space to attack a man in your editorial columns, why
is it you have so much difficulty finding a place for him to file
reply?
Murphy:
I do not, as a matter of fact. One of the processes is that we print most of
those replies.
Simon:
Is that consistent throughout the entire newspaper industry?
Murphy:
No, sir. I don't speak for everybody in the newspaper industry. We are not
all standardized yet, Mr. Simon.
Simon:
Well, it would be nice—I agree with you, being from the South myself—if we
could all live in Atlanta, but I wonder if you don't find some sympathy and
compassion in your heart for those who don't live in Atlanta and get the
advantage of your policy of free reply which I understand does exist, and I
would like to ask you why can't other newspapers find place—find space—for a
reply to those they assail in their editorial columns?
Murphy:
The answer is that some do and some don't, but if you standardize it, you do
destroy the first amendment, Mr. Simon.
Simon:
I'm not interested in standardizing anything. I simply want to know, for
example, why you couldn't give up Ann Landers for a day. Why couldn't you
give up a crossword puzzle? The obituary columns wouldn't go stale. And
would you not be willing in the interests of fairness, in the interest of a
reply to assist a man whose reputation has been tattered, to give up an
eighth of a page of commercial advertising, say for canned
pineapples?
Murphy:
Now, that's not the question, and you know very well it's not the question.
The question is whether or not on the editorial page, on which we don't run
advertisements, we cannot give up something without—if we cannot print
something without giving up some other kinds of commentary.
Simon:
Would you be willing, then, to withdraw your objections to Professor
Barron's statute if a reply could be printed on the last page of your
newspaper where you do carry automobile dealer advertisements?
Murphy:
No, sir, I would not.
Simon:
All right. So it really has nothing to do with finding space at all. Isn't
that correct, sir?
Murphy:
No, sir, that's not true.
Simon:
All right. There was a suggestion made, most unfortunate, I think, that
seemed to indicate that this law couldn't be enforced, that if there was
going to have to be a reply to editorial attack, that there wouldn't be any
editorial attack per se, and it would find itself in the distortion of the
news stories themselves. You're familiar with that comment. .
Simon:
Now I would like to ask you whether or not you regard that as an evasion of
the law, and whether if this law is adopted, you can expect to find from the
editors of America the same type of evasion that we so unfortunately found
from Southern school boards after the Brown decision of 1954.
Murphy:
Well, I think the answer to your question is that in some cases you would
find evasion and in some cases you would not find evasion, but I think the
important, salient point here is that what you're doing is you're choosing a
referee who I don't know, and I don't know how long it's going to take him
to make his decision. If you're going to tell me that the referee is going
to be a man who has no background in the newspaper business, then I say to
you that that's a very dangerous precedent for you to begin
setting.
Simon:
Do you have any objections to using our federal and state judges as
referees?
Simon:
You don't have confidence in the judiciary?
Murphy:
It's not that I don't have confidence in the judiciary, it is that I oppose
giving to the government, any government official in whichever branch, the
right to decide what it is that we print in the newspapers in
America.
Simon:
Well, should we hesitate to adopt a valid law which gives the victim of the
press's attack an opportunity to respond simply because the press doesn't
like it, or because the press would seek to evade and avoid compliance
through some subterfuge such as I've mentioned?
Murphy:
We should not fail to pass the law on either of those grounds. Those aren't
the question. The question is who is going to be the referee and who is
going to make the decision and what government agency are you satisfied to
allow that kind of a process to begin because, as you know, once it begins,
it escalates.
Simon:
Well, that's speculation, but let us go on to this question.
Simon:
Are you prepared under any circumstances to give a right of reply to someone
you have assailed if, for example, he were willing to pay for the reply, or
to purchase an advertisement and get his reply into the press in that
fashion.
Murphy:
No, sir, not if it's obscene, not if it's libelous, not if it doesn't fit
into a family newspaper concept, and again we get to the question of who the
referee is.
Simon:
I'll withdraw all those problems from you. The man whose reputation has been
tattered by your attack simply wants to address the audience that you spoke
to in a responsive, polite, courteous way, and he's willing to pay for the
opportunity if he has to. Are you willing under those circumstances to
accept a reply from this man?
Murphy:
Yes, sir, I'm willing to, but I'm not willing to have it imbedded in the
law.
Rogovin:
Thank you, Mr. Murphy. Mr. Van Alstyne, to you.
Van Alstyne:
Mr. Murphy, I asked you here as my witness precisely because you're a
reputable editor, realizing that that, then, would lead to a variety of
questions as to whether we could trust your colleagues. Then I want to ask
you candidly, as an editor operating in good faith, would it not be the case
if a law like this, or a broader one indeed that ran into the news column,
would it not be the case that you would have to think to a far greater
extent and hesitate and sometimes perhaps withhold critical editorial
commentary because of concerns about this statute?
Murphy:
The word is to flinch, and we would flinch because it would be inevitable.
No other way could I describe it.
Rogovin:
One question, Mr. Simon, for you and a brief answer, Mr. Murphy.
Simon:
Mr. Murphy, the publisher of the Boston Globe and the Chairman of the
American Newspapers Publishers Association board made this statement: "Under
our concept of a free press, the publisher bears the ultimate responsibility
to the public to preserve a free flow of information." My question to you,
sir, is what do we do as a government, a public, and a society when
newspaper publishers violate their duty and block the free flow of
information by cutting off a reply? Do we just sit there and do nothing, or
do we come in with a law that helps the press, the public, and every citizen
in the United States?
Murphy:
We trust the diversity of 1,750 daily newspapers and 8,000 weekly newspapers
in this country.
Rogovin:
Thank you very much, Mr. Murphy, and again, we're pleased to have had you on
The Advocates.
Van Alstyne:
In wrapping up our case before summarizing, let me try to see if we can't
narrow the area of disagreement. We disagree over whether an antidote to the
libel law is necessary, for our impression is that this remedy for those who
have been hurt by falsehoods is alive and well, as Senator Goldwater found
out to the tune of $50,000. We disagree, in fact, if the libel law had any
shortcoming, that this proposal has anything to do with it because it has
nothing at all to do with the truth of the criticism that has been published
by the press. We disagree entirely that it has anything to do with the
concentration of the media in this country because this statute will apply
even to the one and only newspaper courageous enough to attack on a truthful
basis powerful public figures and have no recourse against self-serving
falsehoods that he wishes to place in their columns as the price tag.
Indeed, we do not think that this statute is appropriately addressed to any
one of the problems. Rather, what it is is a cellophane-wrapped package
which offers itself in the usual course of taking away liberty in the
general public interest and is simply not responsive to common
problems.
Rogovin:
Thank you, gentlemen. Now, that completes the cases, ladies and gentlemen,
and it's time for each of the advocates to present their closing arguments.
Mr. Van Alstyne, will you sum up for your side, please.
Van Alstyne:
Yes. In summing up, I don't want to limit myself to this bill, though I do
think it is absurd, as we've tried to make clear. I want to return to Mr.
Simon's opening clever remark as to whether I might have been offended could
I not have gotten on this show. One of the men who drafted the first
amendment found himself frequently in that position, and that was Thomas
Jefferson. As the third President of this country, he was often the object
of hostile, false and abusive attacks by the free press. Yet the draftsman
of the first amendment never demanded the right of reply. As a matter of
fact, his own attitude with respect to the free-standing press as a critic
was so strong that this was his position: "Our liberty depends on the
freedom of the press, and that cannot be limited without being lost." It is
on the basis of that bold proposition I ask you to vote "no" on this absurd
proposal.
Rogovin:
Mr. Simon, will you sum up for your side, please.
Simon:
James Madison wrote that popular government without popular information or
the means of acquiring it is but a prologue to farce or tragedy or perhaps
both. An informed electorate must have all the facts if it is to govern
itself wisely. The press has the duty to add to our store of knowledge, not
bombard it with one-sided propaganda. That is why I find it so distressing
to find that the press has fallen into the hands of a few powerful, wealthy
persons who assert the right to shut off debate at their whimsy and call
that freedom. If the press accuses a person of dishonesty, he must have the
opportunity of saying, "I am not a crook," or we are all the losers. It is
small comfort to anyone that a man whose reputation is in shreds and tatters
has been blacked out by a publisher and not by a government functionary. The
right of reply is more than simple justice. It is the chief pillar of due
process of law and our system of free elections. We urge you to vote
"yes."
Rogovin:
Thank you, gentlemen. And now, ladies and gentlemen, it's time for you in
our audience to get involved. What do you think about tonight's question?
Should newspapers be required to give reply space to political candidates
and others they have attacked? Send us your "yes" or "no" vote on a letter
or postcard to The Advocates, Box 1974, Boston 02134. The right to reply law
is currently before the Supreme Court, and a national law might soon be
under consideration by Congress. How do you want your Congressman to act?
Send us your vote and we will tabulate the results and make them known to
members of congress and others interested in the question. Remember the
address: The Advocates, Box 1974, Boston 02134.
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Recently The Advocates
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The Advocates will not be
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debate.
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