Why a lawsuit against The Belmont Voice is likely to run afoul of the First Amendment right not to publish

Last Thursday I was taking part in an event at Belmont Books when several members of The Belmont Voice’s board walked in. The bookstore was hosting a conversation with Endicott College journalism professor Lara Salahi and me to mark the publication of her new book, “News-Academic Partnerships: The Great Experiment Powering Local Journalism’s Comeback.”

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The folks from the Voice had hoped to be there at the start; instead, they were meeting to discuss what to do about a lawsuit filed against the Voice by an independent U.S. Senate candidate who was demanding that the nonprofit weekly cover his campaign. The lawsuit, filed by Belmont resident Shiva Ayyadurai, claims that the Voice is discriminating against him because he is a “Brown-skinned, ‘Low-Caste’ Indian immigrant,” and that the editor, Jesse Floyd, failed to make good on a promise to cover his bid to defeat Democratic Sen. Ed Markey.

News of the lawsuit was broken last Wednesday by Adam Gaffin of Universal Hub. Adam’s got a must-read follow-up, too. The Voice’s board, in a letter to readers, says:

This is a baseless, frivolous lawsuit that we expect will be resolved quickly. Unfortunately, it is also a costly distraction from the work of putting out this newspaper. As you know, The Belmont Voice is a nonprofit organization, with a small staff and an all-volunteer board of directors. Even a frivolous lawsuit costs us valuable time and money in the form of legal fees.

I have not immersed myself in the court documents, which Gaffin links to. Rather, I want to emphasize that the First Amendment guarantees not just the right to publish but also the right not to publish. The Supreme Court ruled on that issue in 1974 in Miami Herald Publishing Co. v. Tornillo.

Pat Tornillo, a candidate for the Florida state legislature, demanded a right to respond when he was criticized in two Miami Herald editorials. One big difference between Ayyadurai’s case and Tornillo’s is that Florida actually had a law on the books granting political candidates the right to respond to press criticism. Thus, at least under state law, this was a slam dunk for Tornillo.

The Supreme Court, though, unanimously overturned the Florida law as being incompatible with the First Amendment. The decision, written by Chief Justice Warren Burger, put it this way:

[T]he Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a new paper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public official — whether fair or unfair — constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.

But wait. What about the equal-time rule? After all, as recently as 2024, NBC granted airtime to Donald Trump at a NASCAR event and an NFL game to balance an appearance by Kamala Harris on “Saturday Night Live.” The answer, of course, is that the FCC’s equal-time rule pertains only to broadcasters.

The legal theory is that over-the-air TV and radio stations are using scarce, publicly owned broadcast frequencies, which means that they may be regulated in the public interest. NBC is not a TV station, obviously, but its programming is carried by TV stations, some of which it owns. The equal-time provision is fading away given that TV content carried over cable and satellite — not to mention the internet — is beyond the FCC’s reach.

The relevant case is Red Lion Broadcasting v. FCC, a unanimous 1969 decision in which the Supreme Court upheld the FCC’s authority but nevertheless anticipated the day when the equal-time rule would become technologically outmoded. Justice Byron White wrote:

The rapidity with which technological advances succeed one another to create more efficient use of spectrum space, on the one hand, and to create new uses for that space by ever-growing numbers of people, on the other, makes it unwise to speculate on the future allocation of that space….

In view of the scarcity of broadcast frequencies, the Government’s role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and ruling at issue here are both authorized by statute and constitutional.

All of this is only tangentially related to Ayyadurai’s lawsuit against The Belmont Voice, but it underscores the principle that news organizations are free under the First Amendment to cover or not cover the news as they see fit. Even in the case of over-the-air television and radio, broadcasters have wide discretion in their news programming. Note that the Harris-Trump matter concerned entertaining programming, which is treated differently.

And by the way, Ayyadurai isn’t the only candidate running against Markey. The other contenders are John Deaton, a Republican, and Joe Tache of the Socialism and Liberation Party.

U.S. District Court Judge Allison Burroughs is scheduled to hold a hearing on Ayyadurai’s lawsuit this morning, according to Gaffin.

Follow-up: Judge Burroughs dismissed Ayyadurai’s case at this morning’s hearing, but told him that he could try his luck in state court. Adam Gaffin reports.