1. Jacobellis v. Ohio , 378 U.S. 184, 197—98 (1964).

2. P. Stewart, "Or of the Press," 26 Hastings Law Journal 631, 633-34 (1975).

3. Miami Herald v. Tornillo , 418 U.S. 241 (1974). Tornillo is pronounced tor-nil-lo (not tor-nee-yo). The remainder of this chapter is condensed from my article Tornillo , 1987 Supreme Court Review 345, which has both additional information and more extensive footnoting.

4. T. Clark, THE SOUTHERN COUNTRY EDITOR 283 (Indianapolis: Bobbs Merrill, 1948).

5. Clark,THE SOUTHERN COUNTRY EDITOR at 295-96; J. Dovell, 2 florida 711-12 (New York: Lewis Historical Publishing, 1952), quoting 1907 Message to the Legislature from the House Journal at 70; T. Hoffer and G. Butterfield, The Right to Reply , 53 Journalism Quarterly 111, 112 (1976).

6. Hoffer and Butterfield, Right to Reply at 113-14.

7. Miami Herald , October 22, 1965; November 22, 1965; March 2, 1966; June 28, 1966; July 14-17, 1967.

8. Powe, Tornillo at 352-56.

9. Reynolds v. Sims , 377 U.S. 533 (1964); C. Tebeau, A HISTORY OF FLORIDA 449 (Coral Gables: University of Miami Press, 1971). break

10. Miami Herald , September 9, 1970; September 30, 1970.

11. Miami Herald , July 12, 1972.

12. Miami Herald , September 13, 1972.

13. The full text of the editorial (Miami Herald , September 20, 1972) reads:

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, as evidenced by his failure to file a list of contributions to and expenditures of his campaign as required by law.

Czar Tornillo calls "violation of this law inexcusable."

This is the same Pat Tomillo who led the CTA strike from February 19 to March 11, 1968, against the school children and taxpayers of Dade County. Call it whatever you will, it was an illegal act against the public interest and clearly prohibited by the statutes.

We cannot say it would be illegal but certainly it would be inexcusable of the voters if they sent Pat Tornillo to Tallahassee to occupy the seat for District 103 in the House of Representatives.

14. The full text of the second editorial ( Miami Herald , September 29, 1972) reads:

See Pat Run

FROM the people who brought you this—the teacher strike of '68—come now instructions on how to vote for responsible government, i.e., against Crutcher Harrison and Ethel Beckham, for Pat Tornillo. The tracts and blurbs and bumper stickers pile up daily in teachers' school mailboxes amidst continuing pouts that the School Board should be delivering all this at your expense. The screeds say the strike is not an issue. We say maybe it wouldn't be were it not a part of a continuation of disregard of any and all laws the CTA might find aggravating. Whether in defiance of zoning laws at CTA Towers, contracts and laws during the strike, or more recently state prohibitions against soliciting campaign funds amongst teachers, CTA says fie and try and sue us—what's good for CTA is good for CTA and that is natural law. Tornillo's law, maybe. For years now he has been kicking the public shin to call attention to his shakedown statesmanship. He and whichever acerbic prexy is in alleged office have always felt their private ventures so chock-full of public weal that we should leap at the chance to nab the tab, be it half the Glorious Leader's salary or the dues checkoff or anything else except perhaps mileage on the staff hydrofoil. Give him public office, says Pat, and he will no doubt live by the Golden Rule. Our translation reads that as more gold and more rule.

15. State v. News-Journal Corp ., 36 Fla. Supp. 164 (Cir. Ct. Volusia County 1972).

16. Miami Herald , October 4, 1972; Miami News , September 11, 1972, at 3oA; October 2, 1972, at 30A. The Herald's circulation was continue

      354,408, while that of the News was only 78,119. EDITOR AND PUBLISHER YEARBOOK 61, 62 (New York: Editor and Publisher, 1973).

17. Miami Herald , October 5, 1972; October 7, 1972. Tornillo signed the letter: "Pat 'Boss' Tornillo."

18. Tornillo v. Miami Herald , 38 Fla. Supp. 80 (Cir. Ct. Dade County 1972).

19. J. Barron, FREEDOM OF THE PRESS FOR WHOM? (Bloomington: Indiana University Press, 1973); Access to the Press—A New First Amendment Right , 80 Harvard Law Review 1641 (1967); An Emerging First Amendment Right of Access to the Media? 37 George Washington Law Review 487 (1969); Access—The Only Choice for the Media? 48 Texas Law Review 766 (1970); Red Lion Broadcasting v. FCC , 395 U.S. 367 (1969).

20. R. Fisher, And Who Will Take Care of the Damrons? in The Trial of the First Amendment at 16 (Columbia, Mo.: Freedom of Information Center, 1975). This little pamphlet was commissioned by Knight-Ridder, owner of the Herald , for a pretty tidy sum.

21. Tornillo v. Miami Herald , 287 So. 2d 78 (Fla. 1973).

22. Id. at 81-83.

23. Id. at 82, 83, 84 (emphasis in original).

24. Id. at 91.

25. South Dade News-Leader , July 25, 1973; Simon to Paul Brookshire (editor of South Dade News-Leader) , August 9, 1973.

26. Simon to Cranberg, January 8, 1974, at 3.

27. Fisher, Who Will Take Care? at 13.

28. Tornillo , 418 U.S. at 248, 253.

29. Id. at 250, quoting the Hutchins Commission report at 4.

30. Id. at 256-58.

31. Id. at 257.

32. V. Blasi, The Checking Value in First Amendment Theory , 1977 American Bar Foundation Research Journal 521.

33. Simon told Tornillo of the newspapers' filings, listed them by name, and then wrote: "Do you realize the amount of attorney's fees you are generating? This is unquestionably contributing to the enormous inflation overtaking the United States." Simon to Tornillo, August 14, 1973. Brief of The Citrus County Chronicle as Amicus Curiae at 2; Brief of The Islander as Amicus Curiae at 2.

34. L. Bollinger, Freedom of the Press and Public Access , 75 Michigan Law Review 1, 31 (1976); L. Tribe, AMERICAN CONSTITUTIONAL LAW 1002 (Mineola, N.Y: Foundation Press, 2d ed. 1988).

35. E. Hynds, AMERICAN NEWSPAPERS IN THE 1970s, at 17 (New York: Hasting House, 1975), states that advertising constitutes 40 to 75 continue

      percent of a paper. I have never heard anyone previously place the figure below 60 percent. According to the standard media text, E. Emery and M. Emery, THE PRESS AND AMERICA 233 (Englewood Cliffs, N.J.: Prentice-Hall, 4th ed. 1978), advertising space reached 50 percent by World War I. Regardless of the exact amount of advertising space, a newspaper cannot just print everything. The amount of advertising sets a limit on the amount of news that will be printed.

36. B. Schmidt, FREEDOM OF THE PRESS VS PUBLIC ACCESS 233 (New York: Praeger, 1976); F. Abrams, In Defense of Tornillo , 86 Yale Law Journal 361 (1976).

37. United States v. Morison , 844 F. 2d 1057 (4th Cir. 1988) cert. denied, 109 S. Ct. 259 (1988); Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations , 413 U.S. 376 (1973).

38. A typical "abuse" clause reads as follows: "No law shall be passed to curtail, or restrain the liberty of speech, or of the press, and any person may speak, write and publish his sentiments, on all subjects, being responsible for the abuse of that liberty." GEORGIA CONSTITUTION art. I, § 1, para. 5. Forty-two states have similar provisions.

39. 17 Congressional Record 43163-64 (1971); Senate Conference Report 92-580. The statute was sustained in CBS v. FCC (Carter-Mondale) , 453 U.S. 367 (1981).

40. New York Times , March 12, 1974, at 17; Washington Post , March 13, 1974, at 26 (editorial); Reflections on the Tornillo Case , in J. Barron, PUBLIC RIGHTS AND THE PRIVATE PRESS 1, 2 (Toronto: Butterworths, 1981).

41. Tribe, AMERICAN CONSTITUTIONAL LAW at 700; see also Bollinger, Freedom of the Press and Public Access at 31. Blasi sees this as an important symbolic value because even if press regulation has "limited material impact," it nevertheless tarnishes the image of a totally free press ( Checking Value at 624; but see id. at 628, quoted in text at note 45 below).

42. When I presented this at a faculty colloquium, my colleagues understood that my four-part test was facetious, but several told me they thought it was nevertheless sound. Therefore, let me briefly explain its flaws. (1) It is probably impossible to find an equivalent to a daily newspaper, given their scarcity and probable market dominance. Thus the first part of the test is likely either to be always satisfied or to provide an interesting discussion of how many radio stations equal a newspaper. (2) What does "reading public" mean? How is it different from the public? Does "generally available" have any different content from "alternative equivalent media outlet"? (3) This sounds nice, but still it is a mechanism continue

      that could be abused. (4) The requirement is conclusory and assumes, as discussed, that reading the reply is of more benefit to the public than whatever story is omitted to make room for the reply.

43. Schmidt, FREEDOM OF THE PRESS at 231. Alexander Bickel decried a story of faculty members debating with students over whether to burn an ROTC building. "The matter was ultimately voted upon, and the affirmative lost—narrowly. But the negative taken by the faculty was only one side of a debate which the faculty rendered legitimate by engaging in it. Where nothing is unspeakable, nothing is undoable." A. Bickel, THE MORALITY OF CONSENT 73 (New Haven, Conn.: Yale University Press, 1975).

44. Boyd v. United States , 116 U.S. 616 (1886); Olmstead v. United States , 277 U.S. 438, 474 (1927) (dissenting).

45. Blasi, Checking Value at 628.

46. West Virginia v. Barnette , 319 U.S. 624, 641 (1943).

47. New York Times v. United States , 403 U.S. 713, 717 (1971).

48. New York Times , September 21, 1970, at 42; Jim Hampton (editor of the Herald ) to author, June 15, 1987: "I've opened our Op-Ed Page far more than in Shoemaker's day. Nothing to do with Tornillo; just my own recognition that, as the only real game in town, we have an obligation to provide an accessible soapbox for those of opposing views. We give priority in our Reader's Forum to letters opposing us, for the same reason." The Herald does not have an ombudsman. E. Hynds, AMERICAN NEWSPAPERS IN THE 1980s, at 294-95 (New York: Hasting House, 1980); D. Shaw, JOURNALISM TODAY chap. 6 (New York: Harper's College Press, 1977); C. Tate, What Do Ombudsmen Do? 23 Columbia Journalism Review 37 (1984).

49. One ambitious project, announced with much fanfare in the Columbia Journalism Review , was a National News Council. It was proposed by the Twentieth Century Fund as "an independent forum for public and press discussion of important issues affecting the flow of information." 11 Columbia Journalism Review at 44 (1973). With foundation funding, its goal was "to receive, to examine, and to report on complaints concerning the accuracy and fairness of news reporting," thereby increasing public trust in journalism by assessing complaints about the work of major news organizations. Id. at 43. The Columbia Journalism Review reported the council's decisions, but many newspapers refused to cooperate, others cooperated tepidly, and the New York Times was vigorously opposed to the council. New York Times , March 21, 1984, at 19. The Council eventually wound up so moribund that its death went unnoticed in the Columbia Journalism Review . P. Brogan, SPIKED: continue

      THE SHORT LIFE AND DEATH OF THE NATIONAL NEWS COUNCIL (New York: Priority Press, 1985).

50. Editor and Publisher , May 3, 1975, at 40.