First Amendment

No "Right" to Reply


One indicator of the rate at which we're losing our freedom is the extent to which yesterday's bad joke becomes today's reality. Thus, just when people were finally beginning to comprehend the destructiveness of FPC regulation of interstate natural gas prices, we find Congress seriously considering extending this regulation to intrastate sales as well! Similarly, for years concerned libertarians have attacked the FCC's Fairness Doctrine as a violation of the First Amendment's guarantee of free press and free speech. A point frequently made in such discussions was that broadcast journalism is in principle no different from print journalism, and a fairness doctrine for newspapers would be recognized by everyone as ludicrous and unconstitutional. Only—you guessed it—now they want to impose a fairness doctrine on newspapers!

The idea first popped into public view last July when the Florida Supreme Court upheld a little-known 1913 state law forcing a newspaper to print a political candidate's reply to any article that "assails" his character, charges him with misconduct in office, or otherwise attacks his official record. The law applies to both editorials and to news stories reporting what one candidate says about another. The MIAMI HERALD has appealed the ruling to the U.S. Supreme Court.

The Alabama legislature jumped on the antipress bandwagon by passing a totalitarian law forcing those in the business of gathering and disseminating news to disclose publicly, as individuals, all their sources of income. Then in November, a scurrilous outfit called the National Citizens' Committee for Fairness to the Presidency, in full-page ads in leading newspapers, praised the Florida and Alabama laws and called for a federal fairness law for newspapers. (The Connecticut chapter of this organization demonstrated its concept of fairness by inviting a college sophomore to present a speech giving an opposing view on Watergate, then proceeded to shout her down halfway through!)

Following these trial balloons, Sen. John McClellan of Arkansas called for a Senate study of the "possibility" of enacting a national right to reply law, if the U.S. Supreme Court upholds the Florida law. "In essence," he explained, "a national right to reply law would entail the application of some form of the 'fairness doctrine' now applicable to broadcasters to the print media." Just one month later, amidst new Watergate revelations, President Nixon formally proposed a national right to reply law, as part of his election campaign reform plan sent to Congress in March. The proposed law would apply to attacks on candidates, public officials, and "public figures," whoever that may be.

That such a proposal could be introduced—and taken seriously—shows how close this country is coming to tyranny. And make no mistake: not everyone is rising up in horror at such a law. Many of the establishment liberals who have supported the FCC Fairness Doctrine all these years are turning up as apologists for just this sort of law. Fred W. Friendly, formerly president of CBS News, recently took NBC to task for its recent attempt to scuttle the Fairness Doctrine, and in so doing, linked NBC's position with that of newspapers. "NBC News and the MIAMI HERALD," wrote Friendly, "are making the mistake of pushing the First Amendment too far." Friendly thinks freedom of the press is fine, as long as the press doesn't go to "absolutist" extremes, like thinking that "freedom of the press belongs to those who own the presses."

But this is precisely the point! A newspaper, like a TV station, is a private enterprise. The only alternative to a privately owned press is a government owned press. One would think people of Friendly's erudition would have heard of Solzhenitsyn, Sakharov, Amalrik, and their comrades who must turn to illegal samizdat publishing because "their" government owns all the presses. A newspaper, like this magazine, only exists because its owners and staff raise capital and sell advertising and write articles and edit and set type and buy ink and paper and operate presses and arrange for distribution. It is their business and their judgment as to what it contains. If they judge wrong a large enough fraction of the time, people will refuse to buy it, and will seek alternatives. And even "one-paper" towns have weeklies, underground papers, out-of-town papers, radio, television, and magazines to provide an alternative. No news media in this country is a "huge monopoly" as Fred Friendly and the Committee for Fairness to the Presidency would have us believe.

So much for the moral arguments. For those who need practical considerations, consider the effects of a right to reply law. A newspaper faced with such a law would have two choices. It could surrender its editorial prerogatives and allow politicians and bureaucrats free access to its pages, thereby placing government in the editor's chair. Or, it could simply refuse to cover controversial public figures so that it could avoid being forced to provide equal time for replies. This approach would reduce the role of journalism to that of the blandest company house organ, never questioning the wisdom of those in power, but studiously looking the other way. Such an approach would prevent the printing of unsubstantiated charges from unnamed sources, of the kind that helped break the Watergate scandal wide open. It's not hard to see why the Richard Nixons of the world would support such a law.

The proposed right to reply law would apply only to newspapers, not to magazines. For many years newspapers remained silent as the Fairness Doctrine was imposed on broadcasters. We at REASON hope the magazine industry won't stand idly by while a new fairness doctrine is imposed on newspapers—because magazines are the next logical target. And we would like to take this opportunity to state publicly that should such a law be proposed we will fight it, and should such a law be passed we will ignore it. This magazine belongs to us and to nobody else. To be forced to give space in our magazine to parasitical fascists like Richard Nixon and Henry Jackson would be the worst kind of obscenity.

Thomas Jefferson once stated that if forced to choose between a country with a government but no newspapers, and a country with newspapers but no government, he would unquestionably choose the latter. So would we.