Associated Press v. United States, 326 U.S. 1 (1945)

Associated Press v. United States, 326 U.S. 1 (1945)
Associated Press v. United States

By-laws of the Associated Press, a cooperative association engaged in gathering and distributing news in interstate and foreign commerce, prohibited service of AP news to nonmembers, prohibited members from furnishing spontaneous news to nonmembers, and empowered members to block membership applications of competitors. A contract between AP and a Canadian press association obligated both to furnish news exclusively to each other. Charging, inter alia, that the bylaws and the contract violated the Sherman Antitrust Act, the Government sought an injunction against AP and member publishers. Upon the Government's motion, the District Court rendered summary judgment.

1. The bylaws and the contract, together with the admitted facts, justified summary judgment. Rule 56 of the Rules of Civil Procedure. P. 326 U. S. 5.

2. Publishers charged with violating the Sherman Act are subject, no less than others, to the summary judgment procedure. P. 326 U. S. 7.

3. The bylaws, on their face, constitute restraints of trade and violate the Sherman Act. P. 326 U. S. 12.

(a) That AP had not achieved a complete monopoly is irrelevant. P. 326 U. S. 12.

(b) Trade in news carried on among the States is interstate commerce. P. 326 U. S. 14.

(d) Although true in a general sense that an owner of property may dispose of it as he pleases, he can not go beyond the exercise of that right and, by contracts or combinations, express or implied, unduly hinder or obstruct the free flow of interstate commerce. P. 326 U. S. 15.

(e) The fact that there are other news agencies which sell news, and that AP's reports are not "indispensable," can give AP's restrictive bylaws no exemption under the Sherman Act. P. 326 U. S. 17.

(f) The result here does not involve an application of the "public utility" concept to the newspaper business. P. 326 U. S. 19.

(g) Arrangements or combinations designed to stifle competition can not be immunized through a membership device which would accomplish that purpose. P. 326 U. S. 19.

(h) Application of the Sherman Act to a combination of publishers to restrain trade in news does not abridge the freedom of the press guaranteed by the First Amendment. Pp. 326 U. S. 19-20.

4. The decree of the District Court, interpreted as meaning that AP news is to be furnished to competitors of members without discrimination through bylaws controlling membership or otherwise, is not vague and indefinite, and is approved. P. 326 U. S. 21.

5. The District Court did not err in refusing to hold as a violation of the Sherman Act standing alone (1) the bylaws provision forbidding service of AP news to nonmembers, (2) the bylaws provision forbidding AP members from furnishing spontaneous news to nonmembers, or (3) the Canadian press contract; and the court was justified in enjoining their observance temporarily pending AP's abandonment of the bylaws provision empowering members to block membership applications of competitors. P. 326 U. S. 21.

6. The fashioning of a decree in an antitrust case, to prevent future violations and eradicate existing evils, rests largely in the discretion of the trial court. P. 326 U. S. 22.

7. The case having been presented on the narrow issues arising out of undisputed facts, it cannot be said that the District Court's decree should have been broader, and, if the decree in its present form should prove inadequate to prevent further discriminatory trade restraints against nonmember newspapers, the District Court's retention of jurisdiction of the cause will enable it to take appropriate action. P. 326 U. S. 22.

Appeals from a decree of a district court of three judges in a suit by the United States to enjoin alleged violations of the Sherman Act.

Emphasis mine. The salient point is that SCOTUS has held, at a given point of time in 1945, that the Associated Press was in violation of the Sherman AntiTrust Act. I am unaware of any subsequent SCOTUS holding to the contrary. That is, a lawyer representing the AP today would, in responding to a new charge of violating Sherman, presumably be on the defensive as representing an entity which was found guilty previously - and never held to have stopped being guilty - of violating the same law.

Note, however, that the charge under Sherman which the government lodged in 1944 (or earlier) alleged anticompetitive behavior towards journalists not members of the AP. Under Sherman, a different charge should and IMHO must be lodged against the AP - and its members, and against any and all competitive wire services and their subscribers/members.

Adam Smith asserted that "People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.” And the wire service - any and all wire services - constitute virtual meetings of the journalistic institutions which are members or subscribers to such.

I do not charge that that cartel contrives to raise prices, tho that might be happening somewhere. But IMHO “the media” is nothing other than the journalism cartel which inevitably results from all those meetings. The violation of the Sherman AntiTrust Act which is perpetrated by all wire services is a political “conspiracy against the public.

It is a given that any particular newspaper (etc) has the right to espouse its preferred politics on its editorial page. I even assert that any particular newspaper (etc) has the right to promote its preferred politics in what it suggests is objective reportage.
But the” conspiracy against the public" is in plain sight. It is the propaganda campaign to the effect that journalism - journalism within the good graces of the cartel - is crucially important and “objective.” In fact of course, objectivity is a laudable goal but not a state of being. Any serious attempt at objectivity must begin with the humility to accept that objectivity doesn’t come naturally to anyone, journalist or not. The effect of the assumption of the objectivity of everyone else in your profession can only result in groupthink. Anyone who does not go along with the journalistic consensus on any given topic does not get along with it. And promptly has his career “pecked to death” by unanimous proclamation that the miscreant is “not a journalist, not objective.” The ”conspiracy against the public” is the abolition of ideological diversity in journalism.
The entertainment imperative means that journalism is about difficult-to-ignore bad news and, consequently, journalism is negative. Negative about society, and implicitly naive about what society’s opposite - government - can do/be. The conceit that journalism is objective - when instead it is knowingly negative - is the very definition of cynicism. Which explains why “objective" journalism naturally produces pro-socialist propaganda. That is to say, propaganda against the very limited constitutional government under whose aegis America’s judges and justices all sit. A newspaper or magazine here or there promoting such would be one thing. A cartel monopolizing the word “objective” - to similar effect, it monopolizes the use of labels like “liberal” and “progressive” as well - is illegitimate.
The original raison d’être of the wire services was the conservation of expensive telegraphy bandwidth in the widespread dissemination of news to the newspapers. But in the Internet era, telegraphy bandwidth is dirt cheap, and the wire services are therefore no longer “too big to fail.” The wire services have no legitmate and significant raison d'être which any court is bound to respect. Whether by an individual or by the DoJ, the wire services can and must be sued into oblivion. Or else their members and subscribers have to be dismissed as a mere front group for the cartel.

Objectivity is probably better defined here as a sincere effort to be, rather than a state of mind. It requires genuine and dispassionate inquisition of and challenges to assertions.

One problem is that far too many journalists are too damn stupid to know what questions to ask.

A few weeks ago I heard Cuomo’s press conference where he stated flatly that the state had 14,000 ventilators in storage, and that he needed 40,000, and that only 900 were in use. Nobody asked him about this for 3 days - until the 3rd day a ‘journalist’ said “there are reports that the state has 14,000 ventilators in storage what can you say about that”.

3 DAYS! And it wasn’t ‘reports’ that stated it. He stated it himself. And it took longer to challenge him on why he claimed he would need 40,000 when only 900 were in use and 14,000 were in storage. To be fair, he did explain why - he said the models indicated they would need 40,000 which we now know turned out to be wrong. Not only that, something around 80% of people on ventilators die - an indication that ventilators are not helpful at all, and possibly even harmful. But few challenge this assumption. Instead they are digging for evidence that HQC doesn’t work. And to be fair, it probably doesn’t work when you give it to people already on ventilators. Too late.

Anything for a click should be the new motto for journalists. Sensational headlines. Saw a headline recently that read “Laura Ingraham Bashes Trump”, and not a single word in the story about the headline at all.

When will SCOTUS get around to "fake news"?

IMHO they can - do that when they are given a case which allows them to reconsider New York Times Co. v. Sullivan.
Sullivan - a unanimous 1964 decision by the Warren Court - denies political officials and judges easy access to the courts when suing for libel. But it does so on the ground that
". . . libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment”
. . . and the conceit that the First Amendment has any impact at all is a claim that was novel in 1964. No court held that before 1964 because historically, it is well known that the Federalists who passed the First Amendment were not trying to make potentially controversial changes in anyone’s rights but were striving precisely in the opposite direction - they needed and wanted to suppress controversy over rights, and to that end they sought to guarantee that under the Constitution it would be difficult to change anyone’s rights.
And the people already had the right not to be libeled, and the Ninth Amendment indicates clearly that that right didn’t change. Not for the public at large, and not for officials.
JUSTICE SCALIA: THE 45 WORDS — AND ORIGINAL MEANING — OF THE FIRST AMENDMENT
confirms that Scalia thought Sullivan was bad law.
Sullivan is no imposition at all on Democrats; the “objective journalism” cartel defines “liberal” (and “progressive”) (shhh, don’t tell anyone) as meaning nothing other than “simpatico with the journalism cartel”) - so no “liberal” ever gets libeled. Some Republican official must sue for libel in the teeth of Sullivan.

compassion, this is good info. I'm sure that one way or another the corrupt press will eventually find a rope to hang themselves on. They are trying mighty hard.

They have already paid a price for attacking Trump unjustly. CNN's numbers are down. And we learned two days ago that the stock value of Gannett (USA Today) is down 95% -- partly due to the virus impact on its advertising, but seeing the poor quality of the paper at my local library, I suspect the decline has occurred over a few years.

Nonetheless I take issue with Adam Smith's assertion that "People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public."

Here are some points to consider:

The Scottish economist Adam Smith (1723-1790) lived long before the establishment of modern corporations, industries, and typewriters (1860) that helped reporters compose their stories.
In the modern world, colleagues in the same trade meet once or twice a year at conferences, seminars, and trade shows. Each year I attend a massive 6,000 person trade show, International Telecom Week (Atlanta), where people all over the world come to meet for a few easy at the price of $550 for admission, plus travel and hotel expenses. Tons of partnerships are formed -- and (God forbid) some beer and wine "merriment" occurs :-).
Competitors often engage in "coopetition". It's not so much a conspiracy but a practical understanding that it often makes economic sense to make peace in certain areas — but battle like hell for any uncontested territory and new opportunities.
Now as as an industry journalist, I occupy a tiny niche in the huge tech industry. Yet I fiercely try to protect my little rice bowl. Likewise, my colleagues in the business cover the same overall market, but specialize in sectors that have carved out for themselves.
So I'm not so sure there's a strong parallel to what the New York-to-Washington press does in covering national news for consumer and citizen consumption.
The trade press that covers industry gets its money from companies who serve very specific customers and professionals with a needs for common solutions. The national press is more geared to pleasing the Fortune 500, particularly those firms reaching out to consumers.
One good guy to read for a historical view of Journalism is H. L. Mencken, perhaps the finest and most prolific pundit and newspaper reporter America every produced. The interesting thing about Mencken at the same time he was the leading columnist in the country, he also was the country's foremost literary critic. This was a guy with Trumpian stamina!
One essay I lightly edited and posted on FR was Vox Populi, a devilishly-fun-to-read analysis of the American political scene back in 1922.

Thank you very much for launching a full-bore critique of my point. I need challenges such as yours to refine my opinion and attempts at persuasion.

Adam Smith did indeed publish that quote - the full quote is actually
People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices. It is impossible indeed to prevent such meetings, by any law which either could be executed, or would be consistent with liberty and justice. But though the law cannot hinder people of the same trade from sometimes assembling together, it ought to do nothing to facilitate such assemblies; much less to render them necessary. - Wealth of Nations
over a century before the 1890 passage of the one-page (essentially) Sherman Anti-Trust Act. FTM, the AP predates Sherman by roughly 40 years (I’m not clear how the typewriter enters into the discussion, but whatever. Mark Twain was, I’m sure you know, financially supporting work on the development of the typewriter long after the Civil War).
In the post-Sherman milieu in which we live, trade shows and limited cooperation are SOP, but we also have an SEC mandated to keep the "conspiracy against the public, or in some contrivance to raise prices” phenomenon under control. And as " It is impossible indeed to prevent such meetings, by any law which either could be executed, or would be consistent with liberty and justice" suggests, “~~a policeman’s~~ ^{_the SEC’s_} lot is not a happy one.” There’s no shortage of controversy over SEC action or inaction.
OTOH in the case of pre-1945 anticompetitive behavior by the AP, there is scant to no benefit to the public, or “coopetition” involved. But the anticompetitive behavior of the “objective journalism” cartel of which I complain is so effective that it has been the very air we breathe. I confess to have been taken in by it, to substantial extent, until I was nearing forty.
Long after that time, I was saying on FR that various news outlets were like the New York Yankees and the Boston Red Sox. On one hand they are very competitive on the playing field. OTOH they cooperate most enthusiastically on hiring umpires, and when it comes to promoting the idea that the outcomes of the games actually matter. The comparison is IMHO apt. In that sense the wire service-mediated “objective journalism” cartel is like the MLB, and The New York Times is like the Yankees. The threat of being denoted “not a journalist, not objective” is a threat, not of ejection from a single game but of disqualification from playing at all. Ever.
In that sense a Rush Limbaugh is not on the baseball field at all, more like a soccer player. The game the “objective journalism” cartel plays is actually sophistry, and (perforce) the game of their antagonists is (in the etymological sense) philosophy. The Sophist claims superior wisdom, and if you allow them to get away with it, their argument will go, “I am wise and you are not. Therefore I am right and you lose the argument.” The Philosopher interrupts by saying, “I don’t claim to be wise, but I do love wisdom. Here are the facts and logic which seem to me to justify my claims and policy preferences. Spare me your claims of superiority - put up facts and logic in support of your claims and policy preferences.”
It is at this point that the issue of The New York Times Co. v. Sullivan comes into play. The “objective journalism” cartel is uniquely situated to devastate people by libeling them to the ruination of their reputation. I emphatically agree with Scalia’s point that Sullivan is bad law. Further, I assert that Sullivan empowers the Sophists in the “objective journalism” cartel, which is hostile to the very constitutional, limited government under whose aegis American courts all sit. Our philosophers desperately need the ability to force the sophists to drastically moderate their intemperate “fake news."
I agree that trade press is a different playing field entirely. When it comes to profit and loss, political correctness is a non-starter. It is not where I expect to see an AP byline. I don’t perceive much of a threat to your rice bowl in my attack on the AP (et. al.). Pundit tho you be, IMHO you are on the sidelines - and as a FReeper you are at liberty to join me.

I said, "It is at this point that the issue of The New York Times Co. v. Sullivan comes into play."

Under the unanimous 1964 New York Times Co. v. Sullivan Ruling by the Warren Court, the press is (politically speaking) all freedom and no responsibility. Writing for the Court, Justice Brennan asserted that
". . . libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment”
But - surprising, but obviously true - the conceit that the First Amendment affected libel law at all was an entirely novel ruling in 1964.

The ratification of the Constitution was a close-run thing. It only was achieved by the Federalists after they answered the criticism of the Antifederalists that the Constitution lacked a bill of rights with a pledge to promptly insert one by amendment.

American rights, following English custom, were a matter of common law. That is, it was organic and, as such, no comprehensive listing of them existed then (or, FTM, now). Thus, assaying to compose such was a fool’s errand. But the Federalists solved the dilemma with Amendment 9 The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
That is a catchall which, by itself, would have included all the rights alluded to in the first eight amendments.
So what are the rights enumerated in first eight amendments actually? They are the rights which tyrants had historically denied. Thus, politically,the rights of most concern.

But - most obviously in the First and Second Amendments - the enumerated rights are not all precisely defined within the BoR. What is “the” freedom of the press? What is “the” right to keep and bear arms?

The RKBA not only means the right to have a gun, it means the right to have ammunition and, safely, to practice. But no one has suggested that the RKBA entails the right to shoot out the windows of your least favorite politician - let alone make an attempt on the lives of Steve Scalise and his baseball teammates. Writing for SCOTUS, Scalia did a lot of homework to produce the Heller decision. What did he research? “The” RKBA as it existed in 1788.

Likewise, “the” freedom of the press does not entail the unrestricted right to print porn. Who seriously thinks that 1A would not have been controversial - would have been at all certain of ratification - if it had been seen to have that effect? And the arbitrary destruction of peoples’ reputations - libel - was illegal in 1788 and remained so after the ratification of 1A. The meaning of “the” in both 1A and 2A obviously entails historical context.

So you knew all along that exercising rights entailed responsibilities, and neither 1A nor 2A change the fact that that is as true with a printing press as it is with a gun.
And you know that ". . . libel . . . must be measured by standards that satisfy the First Amendment” - and the entire Sullivan decision as precedent against libel suits by (Republican, since Democrats don’t get libeled) officials - is balderdash.
The bullet points above follow from a Scalia speech I heard on youTube tho, unfortunately, I didn’t have the presence of mind to make a note of the link. But JUSTICE SCALIA: THE 45 WORDS
— AND ORIGINAL MEANING —
OF THE FIRST AMENDMENT
says in part that
in Times v. Sullivan, Scalia said the Supreme Court, under Justice Earl Warren, “… simply decided, ‘Yes, it used to be that … George Washington could sue somebody that libeled him, but we don’t think that’s a good idea anymore.’”

On the New York Times vs. Sullivan case, I found a great story by Justice Clarence Thomas (February 2019.

SMGFan referenced an MSN/CNN link which is now a broken link.
http://freerepublic.com/focus/f-news/3729004/posts

However, I found the The New York Times story on the same subject and it’s a good read.
https://www.nytimes.com/2019/02/19/us/politics/clarence-thomas-first-amendment-libel.html

I have an interest in this whole subject area, and before reading your comments in the last month, I was entirely unaware of the change of libel laws in 1964 (by the Warren Supreme Court) and its impact on what we are seeing played out in the Fake News scandering with impunity.

I would like to help produce an interactive webpage that will help educated FReepers by framing the issues and giving links.

Love to work with you and others on developing something like this.

The Complete Perversion of the Law

But, unfortunately, law by no means confines itself to its proper functions. And when it has exceeded its proper functions, it has not done so merely in some inconsequential and debatable matters. The law has gone further than this; it has acted in direct opposition to its own purpose. The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime, in order to punish lawful defense.

Bastiat

I never seriously doubted that, after his experience with Anita Hill’s testimony, Justice Thomas would look at Sullivan with a jaundiced eye.
The issue seems to be how to preserve the freedom of speech while suppressing libel. It’s interesting that freedom of speech and freedom of the press are both enumerated separately, and also that pro-freedom of the press judgements tend to say that “money is speech.”
My own perspective is that “speech” is free - all you need is your mouth and a soap box, and the cost of a soap box is de minimus. “Presses,” OTOH, were things that not everyone could afford. Deliberate lying on a soapbox - slander - is bad . . .
“The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests.” ― Alexander Hamilton
. . . but deliberate lying via money spent on technology - libel - is worse.
“Presses” were the product of “science and the useful arts.” And that is, strictly, true of web sites - and mimeograh machines and photocopiers, as well as radio and TV stations.
Since the enumerated powers of Congress explicitly include " To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,” it’s clear to me that “freedom of the press” is properly read as covering products of " progress of science and useful arts” applied to the objective of the literal press - i.e., to the propagation of the opinions and beliefs of the owner (or renter) of a press.
That logic would justify classify the use of any technology to knowingly promote a lie the same - as libel. And it has to say that libel can certainly be perpetrated online by search engines classifying, for instance, Prager U. videos as pornographic. But posting slander to FR - knowingly lying on FR with evil intent - would be evil and would not, we all are confident, be knowingly condoned by Jim Robinson.
The “objective journalism” cartel knowingly - systematically and very powerfully - promotes falsehoods on a routine basis. It redefines words such as “objective” and “liberal” and “progressive” - yes, and “conservative” to make the articulation of patriotic (as the founders would have understood the term) thought. There just has to be a way of drawing a bright line between such, on the one hand, and this discussion (for example) on the other. Certainly it should be possible to do so without doing as much violence to “original intent” as Sullivan does.
sophist 1542, earlier sophister (c.1380), from L. sophista, sophistes, from Gk. sophistes, from sophizesthai "to become wise or learned," from sophos "wise, clever," of unknown origin. Gk. sophistes came to mean "one who gives intellectual instruction for pay," and, contrasted with "philosopher," it became a term of contempt. Ancient sophists were famous for their clever, specious arguments. philosopher O.E. philosophe, from L. philosophus, from Gk. philosophos "philosopher," lit. "lover of wisdom," from philos "loving" + sophos "wise, a sage." "Pythagoras was the first who called himself philosophos, instead of sophos, 'wise man,' since this latter term was suggestive of immodesty." [Klein] philosophy A fondness or love for wisdom that leads to searches for it; hence, seeking a knowledge of the general principles of elements, powers, examples, and laws that are supported by facts and the existence of rational explanations about practical wisdom and knowledge.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.