Opinion of the Justices to the Senate

• Decision Date: 13 July 1973
• Citation: 363 Mass. 909,298 N.E.2d 829
• Parties: OPINION OF THE JUSTICES TO THE SENATE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 829

298 N.E.2d 829

363 Mass. 909

OPINION OF THE JUSTICES TO THE SENATE.

Supreme Judicial Court of Massachusetts.

July 13, 1973.

On July 13, 1973, the Justices submitted the following answers to questions propounded to them by the Senate.

To the Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions set forth in an order adopted by the Senate on May 2, 1973, and transmitted to us on May 11, 1973. The order recites the pendency before the General Court of a bill, House No. 3460, as amended, a copy of which was transmitted with the order. The bill is entitled, 'An Act further regulating the publication of political advertisements by newspapers or other periodicals.'

The order recites that the bill seeks in part to 'prohibit a newspaper or periodical of general circulation from refusing to accept political advertising which tends to aid, injure or defeat one candidate if the newspaper or periodical has already accepted political advertising from another candidate for the same public or political office or from refusing to accept political advertising in relation to one position with respect to a question to be submitted to the voters if said newspaper or periodical has already accepted political advertising in relation to another position with respect to the same question to be submitted to the voters.' The order states furter that the bill would also 'prevent newspapers or other periodicals of general circulation from imposing a charge for political advertising which is greater than the charge imposed upon other nonpolitical advertising offered under similar circumstances and of comparable size, complexity and location in the same issue or edition of said periodical or newspaper.'

The bill inserts two new sections in G.L. c. 56, which would read as follows:

'SECTION 1. Chapter 56 of the General Laws is hereby amended by inserting after section 39 the following two sections:

'Section 39A. If the owner, editor, publisher or agent of a newspaper or other periodical of general circulation publishes any paid political advertisement designed or tending to aid, injure or defeat any candidate for public or political office or any position with respect to a question to be submitted to the voters, he shall not refuse to publish any paid political advertisment tending to aid, injure or defeat any other candidate for the same public or political office or any other position with respect to 'Whoever refuses to comply with this section may be ordered to comply therewith in a suit in equity commenced by any aggrieved candidate or other person or persons and shall forfeit to him or them not less than one hundred dollars. The court may award such additional damages as it may deem proper, together with costs of suit, including a reasonable attorney's fee.

the same question to be submitted to the voters in the primary or election unless such publication would violate section forty-two or any other provision of this chapter.

Section 39B. The owner, editor, publisher or agent of a newspaper or other periodical of general circulation shall not charge for the publication of any paid political advertisement an amount greater than the local display rate charged for a paid nonpolitical advertisement offered under similar circumstances and of comparable size, complexity, and location in the same edition or issue of such newspaper or periodical.

'A candidate or other person or persons aggrieved by a violation of this section may recover treble the differential between the amount charged and the amount that should have been charged, plus court costs, and a reasonable attorney's fee.'

The questions propounded are:

'1. Would the enactment of House No. 3460 violate the First Amendment to the Constitution of the United States and Article XVI of Part the First of the Constitution of Massachusetts, as amended by Article LXXVII of the Amendments to said Constitution of Massachusetts?

'2. Does the attempt to regulate political advertising in House No. 3460 advertising in House No. 3460 on the freedom of the press?'

Substantially these same questions were presented to the Justices of this court last year with respect to legislation proposed on the same subject. In answering the questions presented last year, the Justices said that the proposed legislation had obscurities and an impermissible vagueness which rendered the measure unconstitutional. OPINION OF THE JUSTICES, MASS., 284 N.E.2D 919.^A The proposed legislation now considered by us remedies almost all of the difficulties which were found in the previous bill.

The issues are substantially the same under the First Amendment freedom of the press provisions of the Constitution of the United States (as applicable to the States under the Fourteenth Amendment), and under the 'liberty of the press' provisions of art. 16 of the Declaration of Rights of the Massachusetts Constitution. See Bowe v. Secretary of Commonwealth, 320 Mass. 230, 249--250, 69 N.E.2d 115. Because the two questions posed to us raise substantially the same constitutional issues, we will consider those questions together as to each section of the bill.

Section 39A. Proposed § 39A provides that an owner, editor, publisher or agent of a newspaper or other periodical of general circulation who publishes a paid political advertisement concerning a candidate for public office must publish a paid political advertisement concerning any other candidate for the same public office. Moreover, similarly, if such a person publishes a paid political advertisement designed or tending to aid, injure or defeat any position with respect to a question to be submitted to the voters, he must publish any paid political advertisement on any other position with respect to the same question.

In its simplest form the question is whether, if a newspaper or other publication of general circulation has published a paid political advertisement, it is a violation of Federal or State constitutional protections We have held, without explicit consideration of constitutional questions, that a newspaper, acting alone, is commonly at liberty to reject advertising as it sees fit. Commonwealth v. Boston Transcript Co., 249 Mass. 477, 144 N.E. 500; J. J. Gordon, Inc. v. Worcester Telegram Publishing Co. Inc., 343 Mass. 142, 143--144, 177 N.E.2d 586. See North Station Wine Co. Inc. v. United Liquors, Ltd., 323 Mass. 48, 51, 80 N.E.2d 1. This is the almost unanimous conclusion expressed elsewhere in this country. Annotation, 18 A.L.R.3d 1286. The result might be different if the particular publication involves State action within the meaning of those words under the Fourteenth Amendment. See Chicago Joint Bd. Amalgamated Clothing Wkrs. of Am. AFL-CIO v. Chicago Tribune Co., 435 F.2d 470, 474 (7th Cir.), cert. den. 402 U.S. 973, 91 S.Ct. 1662, 29 L.Ed.2d 138; Associates & Aldrich Co. Inc. v. Times Mirror Co., 440 F.2d 133, 134--136 (9th Cir.); Radical Lawyers Caucus v. Pool, 324 F.Supp. 268, 270 (W.D.Texas); America's Best Cinema Corp. v. Fort Wayne Newspapers, Inc., 347 F.Supp. 328, 335 (N.D. Ind.).

accorded to the press to compel that newspaper or other publication to publish paid political advertisements espousing a contrary view.

No decision cited in the briefs filed with this court ¹ and no case which we have found deals with a State statute requiring a newspaper to publish a paid political advertisement.

Freedom of the press does not mean that the press may not be subjected to reasonable regulation. Clearly the press has no special immunity from civil and criminal laws which relate to its business aspects. Associated Press v. National Labor Relations Bd., 301 U.S. 103, 132--133, 57 S.Ct. 650, 81 L.Ed. 953; Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 89 L.Ed. 2013; Mabee v. White Plains Publishing Co., 327 U.S. 178, 184, 66 S.Ct. 511, 90 L.Ed. 607. See Commonwealth v. Boston Transcript Co., 249 Mass. 477, 484, 144 N.E. 400; Branzburg v. Hayes, 408 U.S. 665, 682--683, 92 S.Ct. 2646, 33 L.Ed.2d 626; Pittsburgh Press Co. v. Pittsburgh Commn. on Human Relations, 1973, --- U.S. ---, ---, 9o S.Ct. 2553, 37 L.Ed.2d 669. However, when dealing with First Amendment rights the Supreme Court of the United States has traditionally been unwilling to uphold State regulation of the expression of political views. See Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155, reversing Commonwealth v. Nichols, 301 Mass. 584, 18 N.E.2d 166; Mills v. Alabama, 384 U.S. 214, 219--220, 86 S.Ct. 1434, 16 L.Ed.2d 484. See also Bowe v. Secretary of Commonwealth, 320 Mass., supra, at 251, 69 N.E.2d 115.

Constitutional litigation concerning attempted regulation of what shall or shall not appear in the press usually involves governmental attempts to restrict or forbid publication. See Near v. Minnesota ex rel. Olson, County Attorney, 283 U.S. 697, 716--717, 51 S.Ct. 625, 75 L.Ed. 1357. More rarely have courts considered the right of government constitutionally to direct the publication of specific items. The constitutionality of a mandate to publish has, however, been considered and upheld in connection with the so called fairness doctrine applied to radio and television stations by the Federal Communications Commission. Red Lion Bdcst. Co. Inc. v. Federal Communications Commn., 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371. In addition, where public health considerations The process of communication by printed word presents certain different considerations from those applicable to the broadcast media. The physical limitations inherent in the use of the air waves have necessitated governmental regulation with the unavoidable result that, even assuming a financial capacity to do so, not everyone has access to the means of broadcasting his views. The court's opinion in the Columbia Bdcst. Sys. Inc. case noted the distinction between the...