418 U.S. 241 (1974)
In the fall of 1972, appellee Pat Tornillo, Executive Director of the Classroom Teachers Association, was a candidate for the Florida House of Representatives.1 On September 20, 1972, and again on September 29, 1972, the Miami Herald published editorials critical of Tornillo's candidacy.2
Tornillo demanded that the newspaper print his verbatim replies defending the Classroom Teachers Association and its accomplishments for Dade County citizens.3 The Miami Herald declined to print the replies.4 Tornillo filed suit in Circuit Court, Dade County, seeking declaratory and injunctive relief plus actual and punitive damages in excess of $5,000, premised on Florida Statute § 104.38, which provides that a candidate assailed regarding personal character or official record may demand the newspaper print any reply free of cost, in as conspicuous a place and same type, without exceeding the space of the original charges, with failure to comply a first-degree misdemeanor.5
After an emergency hearing, the Circuit Court denied injunctive relief because, absent special circumstances, no injunction could properly issue against the commission of a crime.6 The court held that § 104.38 was unconstitutional as an infringement on the freedom of the press under the First and Fourteenth Amendments and dismissed the cause with prejudice.7 On direct appeal the Supreme Court of Florida reversed, holding the statute constitutional, and remanded for further proceedings.8
The United States Supreme Court postponed consideration of the question of jurisdiction to the hearing on the merits and reviewed the judgment of the Florida Supreme Court.9
Whether the judgment of the Florida Supreme Court is final for purposes of review by this Court under 28 U.S.C. § 1257?10
Under 28 U.S.C. § 1257 this Court may review a state supreme court judgment only when that judgment is final.11
Yes. The Supreme Court of Florida reversed the Circuit Court of Dade County and remanded the case for further proceedings not inconsistent with its opinion that Florida Statute § 104.38 is constitutional.12 Under the finality principles applied in North Dakota State Pharmacy Bd. v. Snyder's Stores, a remand that leaves no further adjudication of the federal question satisfies the statutory requirement for review.13
The judgment of the Florida Supreme Court is therefore final and the Supreme Court possesses jurisdiction to decide the constitutional question presented.14
Whether a state statute granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper violates the guarantees of a free press?15
The First Amendment forbids governmental compulsion upon a newspaper to publish material its editors would otherwise omit.16 Such compulsion intrudes upon editorial control, imposes financial and spatial costs, and risks chilling the vigor and variety of public debate by encouraging editors to avoid controversial coverage.17
Yes. Florida Statute § 104.38 commands the Miami Herald to print Tornillo's verbatim replies without charge, in equally conspicuous type and placement, and without exceeding the length of the original editorials.18 This requirement exacts printing and composition costs while displacing other material the newspaper might prefer to publish.19 Editors facing potential misdemeanor liability for noncompliance may choose to reduce political and electoral coverage rather than risk statutory penalties.20 The statute thereby regulates the core editorial functions of selecting content and determining treatment of public issues and candidates.21 No demonstration has been made that government may exercise such regulation over this process without violating the First Amendment guarantees of a free press.22
The statute operates as a direct command to publish rather than a mere prohibition on publication.23 Even when compliance imposes no net increase in total column inches, the forced allocation of space constitutes an impermissible intrusion.24 The compelled inclusion of particular content likewise intrudes into the editorial judgment that the First Amendment protects from governmental coercion.25
The Florida right-of-reply statute therefore violates the First Amendment and the judgment of the Florida Supreme Court must be reversed.26
Related opinions on this issue
Justice Brennan joined the opinion of the Court.27 As he understood it, the opinion addresses only right of reply statutes.28 The decision implies no view upon the constitutionality of retraction statutes affording plaintiffs able to prove defamatory falsehoods a statutory action to require publication of a retraction.29
Brennan thus sought to cabin the reach of the majority's reasoning, preserving the possibility that other compelled-publication remedies in the defamation arena might receive separate constitutional consideration.
Justice White concurred in the judgment. He stressed that the First Amendment erects a virtually insurmountable barrier against government tampering with news and editorial content before publication.30 A newspaper is not a public utility subject to reasonable governmental regulation of journalistic judgment.31
He observed that the decision leaves the press without the traditional libel remedy that previously allowed private citizens to vindicate reputation after publication of falsehoods.32 He expressed concern that the companion decision in Gertz v. Robert Welch, Inc. would further diminish that protection.33