Tornillo v. Miami Herald Pub. Co., No. 43009

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM; Learned Hand; CARLTON; ROBERTS, J., concurs specially with Opinion in which CARLTON; BOYD; ROBERTS; CARLTON; BOYD; PER CURIAM; CARLTON; BOYD
Citation287 So.2d 78
PartiesPat L. TORNILLO, Jr., Appellant, v. The MIAMI HERALD PUBLISHING COMPANY, a Division of Knight Newspapers, Inc., Appellee.
Docket NumberNo. 43009
Decision Date18 July 1973

Page 78

287 So.2d 78
Pat L. TORNILLO, Jr., Appellant,
v.
The MIAMI HERALD PUBLISHING COMPANY, a Division of Knight Newspapers, Inc., Appellee.
No. 43009.
Supreme Court of Florida.
July 18, 1973.
Rehearing Denied Oct. 10, 1973.

Jerome A. Barron, Syracuse, N.Y., Tobias Simon and Elizabeth J. du Fresne, Miami, for appellant.

Dan P. S. Paul and James W. Beasley, Jr., of Paul & Thomson, Miami, for appellee.

Robert L. Shevin, Atty. Gen., amicus curiae.

Page 79

Jonathan L. Alpert, Miami, Richard Yale Feder, Coral Gables, Irma Robbins Feder, Miami, and Warren S. Schwartz, Miami Beach, for amicus curiae, American Civil Liberties Union of Fla., Inc.

William C. Ballard of Baynard, McLeod, Lang, Eckert & Ballard, St. Petersburg, for amicus curiae, Times Publishing Co.

Donald U. Sessions, Daytona Beach, amicus curiae.

S. Lindsey Holland, Jr., of Crofton, Holland & Starling, Melbourne, for Gannett Florida Corp., News-Press Publishing Co. and Pensacola News-Journal, Inc., amicus curiae.

Harold B. Wahl, of Loftin & Wahl, Jacksonville, for Florida Publishing Co., amicus curiae.

Thomas T. Cobb, of Cobb, Cole, Sigerson, McCoy, Bell & Bond, Daytona Beach, for News-Journal Corp., amicus curiae.

Charles W. Pittman, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for The Tribune Co., amicus curiae.

Terry McDavid, Lake City, for Lake City Reporter, amicus curiae.

James L. Livingston, of Livingston & Livingston, Sebring, for Sebring News, Inc., amicus curiae.

Malcolm B. Johnson, for The Tallahassee Democrat, amicus curiae.

Selig I. Goldin, of Goldin & Turner, Gainesville, for Gainesville Sun, amicus curiae.

Arthur I. Jacobs, Fernandina Beach, for Fernandina Beach News-Leader, amicus curiae.

A. W. Nichols, III, Palatka, for The Palatka Daily News, amicus curiae.

Willard Ayres, of Ayres, Swigert, Cluster, Tucker & Curry, Ocala, for Ocala Star-Banner, amicus curiae.

John F. Wendel, of Wendel & McArthur, P.A., Lakeland, for The Ledger, amicus curiae.

P. B. Howell, Jr., of Cherry, Howell & Cummins, Leesburg, for The Daily Commercial, amicus curiae.

Cecil H. Albury of Heuer, Albury & Okell, West Palm Beach, for Palm Beach Newspapers, Inc., amicus curiae.

PER CURIAM.

This cause is before us upon direct appeal from Circuit Court of Dade County, holding Florida Statute 104.38, F.S.A. 1 unconstitutional thereby vesting jurisdiction in this Court under Article V, Section 3(b)(1), Florida Constitution, as amended 1973, F.S.A.

Appellant Tornillo, plaintiff below, who was a candidate for the State Legislature demanded that appellee print verbatim his replies to two editorials printed therein attacking appellant's personal character. The appellee refused and Tornillo filed complaint for declaratory and injunctive relief and punitive damages. Pursuant to Florida Statute 86.091, F.S.A., the Attorney General of this State was advised that appellee intended to contest the constitutionality vel non of Florida Statute 104.38, F.S.A. In view of the circumstances, the trial court granted the request for an emergency hearing.

Page 80

Preliminarily, the trial court determined that the statutory provision in question is a criminal statute and that absent special circumstances, equity will not ordinarily enjoin commission of a crime. Pompano Horse Club Co. v. State, 93 Fla. 415, 111 So. 801 (1927). Notwithstanding this infirmity in appellant's complaint, the trial court further concluded that F.S. § 104.38, F.S.A. is violative of Article I, Sections 4 and 9 of the Constitution of Florida and the Fourteenth Amendment to the Constitution of the United States as a resraint upon freedom of speech and press and because it is impermissibly vague and indefinite.

Believing that the promulgation of this statute is authorized by Article IV, Section 4, 2 and the First 3 and Fourteenth Amendments to the Constitution of the United States, and Article VI, Section 1, 4 and Article I, Section 4 5 of the Florida Constitution, and believing that this statute enhances rather than abridges freedom of speech and press protected by the First Amendment, we hold that it does not constitute a violation of the First and Fourteenth Amendments to the Constitution of the United States or Article I, Section 4, Florida Constitution.

The election of leaders of our government by a majority of the qualified electors is the fundamental precept upon which our system of government is based, and is an integral part of our nation's history. Recognizing that there is a right to publish without prior governmental restraint, 6 we also emphasize that there is a correlative responsibility that the public be fully informed.

The entire concept of freedom of expression as seen by our founding fathers rests upon the necessity for a fully informed electorate. James Madison wrote that, 'A popular government without popular information or the means of acquiring it is but a prologue to a farce or tragedy; or, perhaps both. Knowledge will forever govern ignorance; and a people who mean to be their own governors, must arm themselves with the power which knowledge gives (to W. T. Barry, August 4, 1822).' 7

The public 'need to know' is most critical during an election campaign. By enactment of the first comprehensive corrupt practices act relating to primary elections in 1909 our legislature responded to the need for insuring free and fair elections. Article III, Section 26, and Article VI, Section 9, Constitution of Florida 1885,

Page 81

commanded the Legislature to pass laws 'regulating elections and prohibiting under adequate penalties, all undue influence thereof from power, bribery, tumult or other improper practices' and to 'enact such laws as will preserve the purity of the ballot given under this Constitution.' This act of 1909 did not deal with the subject of the wrongful use of newspapers or other printed or written matter, with the exception of a provision which declared it to be a misdemeanor for any candidate or other person to have or distribute on day of primary at or near any polling place any writing against any candidate in the primary. Florida Statute 104.38, F.S.A., was originally enacted in 1913 as Chapter 6470, Section 12, Laws of Florida, 1913. 8 This second act adopted in 1913 known as the corrupt practices act was enacted to supplement the act of 1909. The statutory provision, the constitutionality vel non which is being questioned in the instant cause, was enacted not to punish, coerce or censor the press but rather as a part of a centuries old legislative task of Maintaining conditions conducive to free and fair elections. The Legislature in 1913 decided that owners of the printing press had already achieved such political clout that when they engaged in character assailings, the victim's electoral chances were unduly and improperly diminished. To assure fairness in campaigns, the assailed candidate had to be provided an equivalent opportunity to respond; otherwise not only the candidate would be hurt But also the people would be deprived of both sides of the controversy. 9

What some segments of the press seem to lose sight of is that the First Amendment guarantee is 'not for the benefit of the press so much as for the benefit of us all.' 10 Speech concerning public affairs is more than self expression. It is the essence of self government. 11

Mr. Justice Learned Hand expressed the role of the press well when he emphasized,

'However neither exclusively, nor even primarily are the interests of the newspaper industry conclusive; for that industry serves one of the most vital of all general interests: The dissemination of

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news from as many different sources and with as many different facets and colors as possible.' 12

In Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946), the Supreme Court of the United States emphasized that the power of the press must be tempered with responsibility when it explained,

'Without a free press there can be no free society. Freedom of the press, however, is not an end in itself but a means to the end of a free society. The scope and nature of the constitutional protection of freedom of speech must be viewed in that light and in that light applied. * * *

'A free press is vital to a democratic society because its freedom gives it power. Power in a democracy implies responsibility in its exercise. No institution in a democracy, either governmental or private, can have absolute power. Nor can the limits of power which enforce responsibility be finally determined by the limited power itself. . . . In plain English, freedom carries with it responsibility even for the press; freedom of the press is not a freedom from responsibility for its exercise. Most State constitutions expressly provide for liability for abuse of the press's freedom. That there was such legal liability was so taken for granted by the framers of the First Amendment that it was not spelled out. Responsibility for its abuse was embedded in the law. The First Amendment safeguarded that right.

'The press does have the right, which is its professional function, to criticize and to advocate. The whole gamut of public affairs is the domain for fearless and critical comment, and not the least the administration of justice. But the public function which belongs to the press makes it an obligation of honor to exercise this function only with the fullest sense of responsibility. Without such a lively sense of responsibility a free press may readily become a powerful instrument of injustice.' (Emphasis Supplied)

The concept which appears throughout the decisions underlying First Amendment guarantees that there is a broad societal interest in the free flow of information to the public by the Supreme Court of the United States was explicitly stated in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), as well as other Supreme Court decisions, as follows:

'The general proposition that freedom of expression...

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13 practice notes
  • State v. Mayhew, No. 43575
    • United States
    • United States State Supreme Court of Florida
    • December 19, 1973
    ...865 (1959); Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1965); Tornillo v. The Miami Herald Publishing Company, Fla., 287 So.2d 78, filed July 18, 1973. Pursuant to the requisites of due process, the statute in question sub judice is sufficiently explicit to withstand t......
  • State v. Aiuppa, No. 44264
    • United States
    • United States State Supreme Court of Florida
    • May 1, 1974
    ...197 (Fla.1969); Hancock v. Sapp, 225 So.2d 411 (Fla.1969); Rich v. Ryals, 212 So.2d 641 (Fla.1968); Tornillo v. Miami Herald Pub. Co., 287 So.2d 78 5 Ervin v. Peninsular Tel. Co., 53 So.2d 647 (Fla.1951). 6 Fla.Const., art. II, § 3, F.S.A. 7 State v. Barquet, 262 So.2d 431 (Fla.1972); State......
  • Burnsed v. Seaboard Coastline R. Co., No. 43651
    • United States
    • United States State Supreme Court of Florida
    • February 6, 1974
    ...(Fla.1969); Hancock v. Sapp, 225 So.2d 411 (Fla.1969); Rich v. Ryals, 212 So.2d 641 (Fla.1968); Tornillo v. Miami Herald Publishing Co., 287 So.2d 78...
  • Morris v. State, No. 1D99-4286.
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2001
    ...reasonable interpretation of a statute which removes it farthest from constitutional infirmity." Tornillo v. Miami Herald Publ'g Co., 287 So.2d 78, 85 (Fla.1973), rev'd, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) (concluding statute even so interpreted was constitutionally infi......
  • Request a trial to view additional results
13 cases
  • State v. Mayhew, No. 43575
    • United States
    • United States State Supreme Court of Florida
    • December 19, 1973
    ...865 (1959); Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1965); Tornillo v. The Miami Herald Publishing Company, Fla., 287 So.2d 78, filed July 18, 1973. Pursuant to the requisites of due process, the statute in question sub judice is sufficiently explicit to withstand t......
  • State v. Aiuppa, No. 44264
    • United States
    • United States State Supreme Court of Florida
    • May 1, 1974
    ...197 (Fla.1969); Hancock v. Sapp, 225 So.2d 411 (Fla.1969); Rich v. Ryals, 212 So.2d 641 (Fla.1968); Tornillo v. Miami Herald Pub. Co., 287 So.2d 78 5 Ervin v. Peninsular Tel. Co., 53 So.2d 647 (Fla.1951). 6 Fla.Const., art. II, § 3, F.S.A. 7 State v. Barquet, 262 So.2d 431 (Fla.1972); State......
  • Burnsed v. Seaboard Coastline R. Co., No. 43651
    • United States
    • United States State Supreme Court of Florida
    • February 6, 1974
    ...(Fla.1969); Hancock v. Sapp, 225 So.2d 411 (Fla.1969); Rich v. Ryals, 212 So.2d 641 (Fla.1968); Tornillo v. Miami Herald Publishing Co., 287 So.2d 78...
  • Morris v. State, No. 1D99-4286.
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2001
    ...that reasonable interpretation of a statute which removes it farthest from constitutional infirmity." Tornillo v. Miami Herald Publ'g Co., 287 So.2d 78, 85 (Fla.1973), rev'd, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) (concluding statute even so interpreted was constitutionally infi......
  • Request a trial to view additional results

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