collega - Károli Gáspár Református Egyetem

Digital revolution – Effects of technological development of freedom of expression
operating in a medium not open
to all.” 55
However, Supreme Court hinted
that general fairness doctrine may be
obsolete if the very fundaments
change. First of all, this stronger, positive
protection of the First Amendment
only applies to a “medium not
open to all”. Second, the scarcity of
the wavelengths may be temporary
and subject to experts researches. As
soon as the shortage in resources
ceases this decision may be
reviewed.
For the evaluation of the Red Lion
case and its impact we quote Donald
P. Mullaly’s words.
“[T]wo facts are indisputable: (1) we
are restricting the freedom of the broadcaster
when we burden him with an obligation
triggered by his statement or the
statement he allows to be broadcast; (2) if
we do not place this burden upon him,
we allow the broadcaster himself to
restrict the freedom of others to express
their opinions and on an entirely arbitrary
basis.” 56
Fair anyway – fair enough
Supreme Court faced challenges of
this relatively new trend in only five
years. As they hinted, the restrictions
on the freedom of press are only
valid to such media, which use
scarce resources to distribute information.
Clearly, press media is not
one of them, so if printed press is
imposed with the burden of the
“right to reply” it does not necessarily
follows, that press would fall
under the Red Lion rules – which
enables Congress or its authorized
agent to regulate such right.
The facts of the Miami Herald
Publishing Co. v. Tornillo 57
were the
following: Mr. Tornillo, leader of a
teacher’s association run for public
position. Miami Herald published
harsh critics on the electoral candidate,
who demanded a free possibility
to respond to these critics. Under
a 1913 (!) Statute – which was only
used once before – the personally
attacked public candidate must be
given free space equal to that of
used to attack him/her to publish
his response free of charge. Failing
this obligation constitutes a firstdegree
misdemeanor. Circuit Court
denied remedy, but Florida
Supreme Court on direct appeal
reversed and held that the Statute is
constitutional, since indeed it promotes,
not abridges free speech and
even civil remedies, damages are
available for violating the right-ofreply.
Supreme Court had to measure
two clashing views. The appellee
and his fellow pro-right-of-reply
advocates started with the thorough
review of the media-system since the
1791 beginning, when the Bill of
Rights was drafted, until present
days. According to their views, the
“happy” free marketplace of ideas,
which was reality in the late 18 th and
the 19 th
century became past to the
second half of the 20 th
century.
Ownership of newspapers had concentrated
in the hands of a few big
publishing companies that were
often affiliated with the radio and TV
companies. Lack of competition did
not ease the entering of the market
for new newspapers, on the contrary
it made almost impossible to reach
sustainable market position. For
these reasons advocates of right-ofreply
insist that fairness should be
reached with positive duties
imposed to the existing newspapers.
“The First Amendment interest of
the public in being informed is said
to be in peril because the ’marketplace
of ideas’ is today a monopoly
controlled by the owners of the market.”
58 Appellant publishing company
attacked the Florida Supreme
Court’s decision on traditional FAM
basis that compulsory right-of-reply
would abridge freedom of press,
especially the freedom of the editor
to write and publish whatever he
sees reasonable.
The very essence of this case was
this, the freedom of editor and
through that the freedom of press.
“Compelling editors or publishers to
publish that which ’«reason» tells
them should not be published’ is
what is at issue in this case.” 59
Supreme Court rejected those arguments
that claimed that freedom of
press was not violated, since no one
told the newspaper in advance what
not to publish. Censorship is broader
than preliminary ban on content of
the news. “The Florida statute operates
as a command in the same sense
as a statute or regulation forbidding
appellant to publish specified matter.”
60
Telling what to publish may
end in occupying the available
space, which ultimately equals to
telling what not to publish.
The Supreme Court made it clear
that there is an apparent distinction
between the press media and the
electronic media regarding the variants
of the right-of-reply, since it is
conspicuous that the electronic
media uses scarce resources where
there is a limited possibility to voluntarily
represent every possibly
angle of a controversial issue.
It is correct, as appellee contends, that
a newspaper is not subject to the finite
technological limitations of time that
confront a broadcaster but it is not correct
to say that, as an economic reality, a
newspaper can proceed to infinite expansion
of its column space to accommodate
the replies that a government agency
determines or a statute commands the
readers should have available. 61
The first conclusion to draw is
that there is constitutionally relevant
difference between the printed and
the electronic media and that is due
to the “finite technological limitations”.
But then it follows that printed
press can not be deemed as
absolutely infinite resource-based
medium, since economic realities
must be considered, which are natural
limits of the compulsory reply. In
other words, although there is limit-
55 Ibid. 392
56 Note 43, 582.
57 Miami Herald Publishing Co. v. Tornillo 418 U.S. 241 (1974)
58 Ibid. 251 Note that these arguments stem from the Red Lion case, where affirmative action of the state – regarding the radio – has been justified.
59 Ibid. 256
60 Ibid. 257
61 Ibid 256–257
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