First Amendment Standing, and Government Pressure on Newspaper Not to Publish Letters to the Editor

Novotny v. Tripp County (8th Cir. Dec. 19, 2011) says the following:

[Viewing] “the evidence and the inferences that may reasonably be drawn therefrom in the light most favorable to the nonmoving party[,]” … Novotny had a “long history of hostility” with his Uncle Virgil Novotny (Virgil) and with Roger Turnquist, Virgil’s neighbor and political ally. Virgil was a member of the Tripp County Commission, and Turnquist was a member of the Tripp County Weed Board. Novotny was openly critical of the Tripp County Commission, writing letters to the local newspaper and speaking at commission meetings. Virgil approached the local newspaper and ordered it to stop publishing Novotny’s letters. Virgil advised the newspaper editor that if the newspaper continued to publish Novotny’s letters, Tripp County would use another newspaper for the publication of legal notices….

Novotny’s First Amendment claim is based on his allegation that Virgil threatened to vote to withdraw county publication business from the newspaper if it continued to publish Novotny’s letters to the editor. The district court granted appellees’ motion for summary judgment on this claim because the court found no evidence that Virgil was acting on behalf of the county when he issued his ultimatum. The trial court further concluded that, even if Virgil was an agent of the county, any potential damage claim would belong to the newspaper.

In his appeal, Novotny argues that the district court erred in its First Amendment analysis. However, we find no error in the district court’s conclusion that Novotny failed to establish a violation of his First Amendment rights. At oral argument, Novotny’s counsel conceded that an individual does not possess a constitutional right to require that a privately owned newspaper publish his letter to the editor. Indeed, a contrary rule would infringe upon the right of the newspaper itself to decide what content it includes on its own editorial page. Accordingly, any potential First Amendment claim arising from Virgil’s threats to the newspaper belong to the newspaper and not to Novotny. See Warth v. Seldin, 422 U.S. 490, 499 (1975). We agree with the district court that Novotny has failed to establish standing to pursue any First Amendment claim. Therefore, the dismissal of Novotny’s First Amendment claim was proper.

I don’t think that’s right, given Bantam Books v. Sullivan, a 1963 Supreme Court case. In Bantam Books, a government agency threatened bookstores with possible prosecution if they carried books published by Bantam Books; here, a government agency allegedly threatened a newspaper with possible loss of government business if it carried letters written by Novotny. The two situations strike me as similar for standing purposes; perhaps there might be a substantive difference, for instance if a court concludes that loss of government business based on what a newspaper publishes is substantively permissible under the First Amendment. But from the perspective of standing to litigate these substantive First Amendment questions, the two cases seem similar.

And here is what Bantam Books said about standing (paragraph breaks added):

Appellants’ standing has not been, nor could it be, successfully questioned. The appellants have in fact suffered a palpable injury as a result of the acts alleged to violate federal law, and at the same time their injury has been a legal injury. The finding that the Commission’s notices impaired sales of the listed publications, which include two books published by appellants, establishes that appellants suffered injury. It was a legal injury, although more needs be said to demonstrate this. The Commission’s notices were circulated only to distributors and not, so far as appears, to publishers. The Commission purports only to regulate distribution; it has made no claim to having jurisdiction of out-of-state publishers. However, if this were a private action, it would present a claim, plainly justiciable, of unlawful interference in advantageous business relations. It makes no difference, so far as appellants’ standing is concerned, that the allegedly unlawful interference here is the product of state action.

Furthermore, appellants are not in the position of mere proxies arguing another’s constitutional rights. The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication, and the direct and obviously intended result of the Commission’s activities was to curtail the circulation in Rhode Island of books published by appellants.

Finally, pragmatic considerations argue strongly for the standing of publishers in cases such as the present one. The distributor who is prevented from selling a few titles is not likely to sustain sufficient economic injury to induce him to seek judicial vindication of his rights. The publisher has the greater economic stake, because suppression of a particular book prevents him from recouping his investment in publishing it. Unless he is permitted to sue, infringements of freedom of the press may too often go unremedied. Cf. NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 459.

Change “publisher” to “letter writer,” “distributor” to “newspaper,” “economic stake” to “personal stake,” and “book” to “letter,” and Bantam Books seems pretty close to this case on the standing question. Or am I missing something?

UPDATE: Note that El Dia, Inc. v. Rossello (1st Cir. 1999) held that withdrawing government advertising from a newspaper based on the newspaper’s views was indeed unconstitutional, though one can certainly imagine plausible arguments to the contrary. But my point in this post is simply that the court didn’t even reach this question — it avoided it by saying that Novotny had no standing to make the First Amendment argument, and that, I think, is not correct given Bantam Books.

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