Miami Herald v. Tornillo: Freedom of Speech for Whom?
Painting Constitutional Law, Forthcoming
14 Pages Posted: 17 Oct 2019
Date Written: October 16, 2019
This piece is part of a forthcoming volume entitled Painting Constitutional Law, which pairs artist Xavier Cortada’s series of paintings, “May It Please the Court,” with commentary on each case represented in the series. Cortada’s painting The Miami Herald Publishing Company v. Tornillo depicts a pair of hands clutching a crumpled newspaper. The reader is otherwise invisible to us, hidden behind the newspaper that occupies the canvas. The newspaper pages are in full, dazzling color, and they are covered with mouths—bright red lips, wagging tongues, caught midsentence, talking all at once. The effect is that of a colorful cacophony. Whose mouths are these? Are they speaking as one, or in many different voices?
This visual depiction of Miami Herald v. Tornillo gets to the heart of the case. Whose voices get to speak in the newspaper? Who decides that question? Should the media represent a diversity of voices and viewpoints? Or is media access controlled by media owners? Tornillo asked the Supreme Court to decide these questions as a matter of First Amendment law. In doing so, the Court confronted two different visions of the First Amendment: one based in equality, which mandated media access for multiple voices, and one based in liberty, which protected the media from interference, including access by third parties. Rarely has the Supreme Court faced such a stark choice between First Amendment paradigms, and rarely has it stated its view of the First Amendment as clearly. How the issue came to the Court, and what the Court said about it, are stories of constitutional and media history. They also involve two larger-than-life Florida figures, Pat Tornillo and the Miami Herald. Without them, this particular issue may never have come to the Supreme Court, at least not in this particularly stark way.
Keywords: First Amendment, freedom of speech, freedom of press, media law, constitutional law, constitutional theory
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