Many of you know about Miami Herald v. Tornillo (1974), in which the Supreme Court unanimously struck down on First Amendment grounds a requirement that newspapers publish replies to criticisms of candidates, and Red Lion Broadcasting Co. v. FCC (1969), in which the Court unanimously upheld a requirement that broadcasters broadcast replies to criticisms of identified people. (Red Lion also upheld the Fairness Doctrine, which applied to coverage of unpersonalized issues as well, but here I’m talking about the Court’s upholding the so-called Personal Attack Rule.) Some have suggested extending this to the Internet. And of course there have been many attempts to bar anonymous speech, online and elsewhere.
Well, a few months ago I came across the following proposal (some paragraph breaks added):
[L]ibelling (gross and malignant libeling) has become the crying sin of the nation and the times! … [T]he general prostitution of the liberty of the press; the overwhelming torrent of political dissention, the indiscriminate demolition of public characters; and the barbarous inroads upon the peace and happiness of private individuals … constitute in my mind a subject of the highest concern ….
The fatal consequences of this public malady begin already to appear. The press has lost its use as an instructor and a censor. Citizens of the same community are pledged to mutual hatred and persecution. All respect for the magistracy and the law is falling into derision. Good and wise men will soon abandon the field of public service. And with a fatality not uncommon in the history of nations, the avowed friends of a free representative government, are arming its real enemies with weapons for destruction….
[Discussion of the inadequacy of then-existing libel law omitted. -EV] I … suggest, that every printer who assails the character of a citizen should be compelled, if required, to publish the defence; that every printer and editor of a newspaper, or other periodical work, should register his name in some public office of the proper county, to be evidence of the fact of publication, upon trials at law; and that whenever a grand jury shall present a press, as a public nuisance, the printer and the editor should be bound in a recognizance with sureties for their future good behaviour, and the court authorized to suppress it for a limited time.
That’s from Pennsylvania Governor Thomas M’Kean, speaking on Dec. 4, 1806. (See N.Y. Spectator, Dec. 10, 1806, p. 2.) And here’s an interesting response as to the right of reply from a contemporaneous critic (Danville North Star, Feb. 17, 1807) — an argument that I don’t recall having seen before in debates about cases such as Tornillo and Red Lion, but that I imagine might well be relevant today, especially online:
But suppose, what is very likely, that the defence be a more gross libel than the original publication, where is then the “reparation to the feelings and fame of the injured individual?” An act containing such a compulsory clause ought to be denominated an act to encourage and promote, not an act to restrain and suppress, the crime of libelling.