(B) is the correct answer.

Issue: Whether the newspaper is constitutionally required to give candidates to public office equal
coverage.

Rule: The press possesses the same general freedoms that persons possess with regard to
speech. The press’s communications can be regulated either by content or context (remember
that with content based regulations, strict scrutiny will be applied), thus triggering the same First
Amendment analysis as applied to an individual’s right to free speech. The press has a greater
right in publishing matters of public concern. The press will not be sanctioned for publishing
matters of public concern as long as such information was obtained lawfully, and the person
speaking knew (for example in knowing that she was talking to the press) that she had a lower
expectation of privacy. Note that the rules regarding defamation as a constitutional matter are
most likely to be tested with regard to the press.

Analysis: Here, the newspaper has the right to publish its opinions about the candidates and there
is no constitutional requirement that the newspaper give equal coverage to both candidates. In fact,
any requirement to do so would be subject to strict scrutiny as it is a content-based restriction.
(Keep in mind that newspapers are not public forums; there is no requirement that they remain
viewpoint or subject matter neutral). Furthermore, the editorial about the second candidate does not
amount to defamation. For a public official or figure to recover damages in a defamation suit, the
public figure must show by clear and convincing evidence that the defendant made a defamatory
(false and injurious) statement with malice. An op-ed article that does not make any false and
injurious statements, and that was not written with malice is not defamation.

(B) is correct because newspapers are free to publish without government interference. The
freedom of the press, guaranteed by the First Amendment, gives newspapers the discretion to
choose what to publish as long as it is not defamatory.

(A) is incorrect because there is no such requirement under the First Amendment. In fact, the
First Amendment protects newspapers from such regulations.

(C) is incorrect because the viewpoint neutral rule applies to the regulation of speech in public
forums and a newspaper is not considered a public forum.

(D) is incorrect because nothing in the facts indicate the editorial was defamatory. To be
defamatory when the alleged defamation concerns a public figure, there must first be a false and
injurious statement and, in addition, the statement must have been made with malice