Evening star., 1945-06-21
The AP Decision

The majority opinion of the Su-
preme Court in the Associated Press
case is such a tangled maze OF
statements of fact, differences and
conclusions quoted words are
those of Justice Roberts-that it is
difficult if not impossible to identify
the real ground upon which the de-
ciSiOn is based. But if the ground
of the decision is obscure, its result
is apparent. The majority judges,
instead of saying what the law is,
have undertaken to say what they
think it should be-
This case had it's beginning when
the Department of Justice accused
the AP defendants of an agreement
to monopolize or unreasonably to re-
strain interstate commerce. Neither
the three Judge District Court, in
which the complaint was first heard,
nor the Supreme Court has made
any express finding that the AP is
guilty of either offense. Neverthe-
less, through a process of judicial
laW-making," the press association
is adjudged in violation of the anti
trust laws to the extent that its
membership requirements are in
fluenced by the competitive effect
on an existing member of the ad-
of
There was no charge that the AP
members acted with the purpose of
destroying competition. If that COM
plalnt is to be introduced into the
case at all, it must be inferred from
some of the vague Wordage of the
Supreme Court majority. There has
been no showing that the operations
of the AP must inevitably result, or
have resulted, in any undue or un-
reasonable restraint on the flow of
news. On the contrary, it was clear
ly shown that other press associa-
tlonS compete successfully with the
AP, and that number of individual
newspapers have been conspicuous
ly successful without the AP service.
Finally, there was no showing. and it
is not contended. that the AP has
monopoly on the sources of news
or that competitors are excluded
from access to the news.
In this situation lacking any of
the familiar bases for a finding of a
violation of the antitrust laws,
majority of the District Court fell
back on what appears to be the
theory that the operation of the AP
were clothed with a public interest"
which demands regulation. And
since Congress had not enacted
legislation to that end, the court, in
effect, assumed the legislative func-
ton by resort to an injunction
which compels the AP to revise it's
bylaws so that no considerable
will be given to competitive effect in
passing on applications for member
ship. 1t is this decree of the lower
court which has now been 10 tlfed by
the Supreme Court majority. but
which Chief Justice Stone and JUS
tice Roberts condemn as being
government by injunction with A
vengeance"
What ultimate effect the couit's
action will have on the AP cannot be
determined now On its face the rul-
ing is limited in scope. But the fact
remains that for the first time a
great news gathering and distribut-
ing agency, whose fairness is guar
anteed by the very nature of its Or
ganlzatlon. must revamp its men,
berShlp structure to conform. to the
notions of judges who cannot agree
among themselves as to what is
right and proper, and to the whims
of prosecutors in the Department of
Justice who advocated more strin-
gent restraints than the courts were
willing to impose
1t was against this BACKGROUND
that Justice Murphy, in a separate
dissenting opinion, recalled that
"the tragic history of recent years
demonstrates far too well how de-
spotic governments may interfere
with the press and sounded the
following warning: eff unsupported
assumptions and conjectrres as to
the public interest and competition
among newspapers are to warrant a
relatively mild decree such as this
one, they will also sustain unjust and
more drastic measures. The blue
print will then have been drawn for
the despot of tomorrow"