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Bates got the TORNILLO case wrong.

 


A little more than three years ago I wrote here about a book by Stephen Bates, of the University of Nevada, called AN ARISTOCRACY OF CRITICS (2020). It concerns a commission of intellectuals convened during the Second World War at the instigation of press maven Henry Luce to look into philosophical and practical questions concerning freedom of the press. 

The aristocracy issued a report in 1947, four years after its creation, entitled A FREE AND RESPONSIBLE PRESS. As the title implies, much of it is taken up with the responsibilities an institutional press must bear in order to earn its continued freedom.  

I'm writing about the Bates take on that report now because on another look at the book I've found an odd mistake. In his introduction (on p. 4) Bates mentions, in justifying his concern with the 1947 report, various indexes of its continuing influence through subsequent decades. One of these, "In a key First Amendment ruling, the Supreme Court quotes the commission's work and adopts its analytic approach."  

One has to follow the research note at the end of the book to see, but this references the TORNILLO case of 1974.

Yet Bates gets it wrong.  TORNILLO only cites the Luce Commission in order to dismiss its work as irrelevant. The Supreme Court was considering a Florida law that would have created a right-of-reply for the critics of the editorial positions of as newspaper.  SCOTUS struck that down as a violation of the first amendment. In arguments, the advocates of the constitutionality of the law had cited the 1947 report of distinguished philosophers. 

The Supreme Court (in a unanimous opinion) rejected the arguments of those it called the "access advocates."  So this works only in a very limited way as an example of the continuing influence of the 1947 report.  Influence enough to help inspire such a law and inspire its defenders -- not enough to carry the day.  The court certainly did not adopt the comission's "analytic approach." 

And, I have to say: that's good. 

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