Evening star., 1945-06-19


JUSTICE ROBERTS.
or 90 have created an agenc!
which the Sherman Acts renders {
public utility. subject to regulation
Notwithstanding the guarantees O.
the First Amendment Of the Consti'
tuition.
Generalities In Opinion.
I am unable to determine OF
which of such possible grounds tn,
Judgment of illegality Is rested. TIL,
courts opinion blends and mingle'
statements of fact, inferences ane
conclusions, and quotations from
prior opinions wrested from theil
setting and context, in such fash.
ion that I find it impossible to de.
duce more than that orderly
analysis and discussion of fact.
relevant to any one of the possible
methods Of violation of the Sher.
man Act is avoided, in the view thai
separate consideration would dis.
close lack of support for any find.
ing Of specific wrong doing.
But the general principle thai
nothing added to nothing will moi
add up to something holds true
IN this case. 1t is tedious task
to separate the generalities thus
mingled in the opinion. but I car
only essay it by discussing one as.
pect of the case at time.
In limine, it should be remem-
bered that newspaper proprietors
who are members of AP are not, as
publishers, in the trade of buying
or selling news. Their business is
the publishing Of newspapers. Ir
this business they print inter ALA
news, editorial comment. special ar
tlcles, photographs, and advertise
ments.
1t has been held that a Joint
effort to obtain advertising to be
published in all the papers parties
to the arrangement, at special
rates, is not violation of the Sher-
man Act. (See footnote 81
1t has been repeatedly held BY
this court that the collection OF
information on behalf of the men,
bership Of an unincorporated as
sociation. and the furnishing of that
information for pay to such persons
as the association decides shall
share it, is not a violation of the
Sherman Act. (See footnote A.
l think this is not because the
exclusive right to use information
or news copy obtained differs some
what from property rights in tiles
or lumber or pipe or womens FASH
ions or motion picture film. think
it is because information gathered
as the result of effort, or OF COM
pensation paid the gatberer is pro-
tected as is property, until published
and that unauthorized publication
by another is a wrong redressible
in the same way as unauthorized
interference with ones rights in
tangible property.
In the very case Of AP, this court
has so held (see footnote 81, as has
the Attorney General of the United
States. (See footnote g. AS the
Attorney General has pointed out
this proposition is subject to the
qualifications that there must be
no purpose to destroy competition
or to monopolize, but with these
matters I shall deal hereafter.
No Allegation of Intent.
First-Are the members of the
AP acting together with the pur.
pose of destroying competition? J
have not discovered any allegation
In the complaint to that effect. The
court below has not made any such
finding. They deny any such pur.
pose or intent and yet, as I reac
passages in the courts opinion, II
Is now found, on this summary iudp.
ment record, without a trial, tina,
they are, and have been, actuated by
such an intent.
The opinion states IAN agree
ment or combination to follow a
course of conduct which will neces-
sarily restrain or monopolize a part
OF trade or commerce, may violate
the Sherman Act whether it be
wholly nascent or abortive on the
one hand, or successful on the
other"
I take this statement as suggest
ing the pleadings and proof dis
close without contradiction, that AP
and its members, agreed or COM
olned to restrain trade. There is
no such allegation in the complaint
and there is not, and cannot be
any finding on this record to SUM-
port the conclusion.
The cases cited in the opinion
OF agreements to boycott or to drive
competitors out of business or to
compel merchants to deal only with
members OF group are, as will
appear, inapposite to the case at
bar. The defendants say that they
merely keep for their own mem
oers' use that which their own
members activity and expenditure
has produced.
We must not confuse the intent
OF the members with the size of
their organization. These two mat
ters seem to be inextricably blended
IN the courts treatment of the case
but they differ in their nature and
as a basis for decision.
But, it may be urged, intent IS
TO be gathered from conduct, and
those whose actions have in fact
unduly restrained trade, will not be
heard to deny the purpose to ac-
complish the result Of their conduct
This is sound doctrine, ard it leads
TO an inquiry as to the actual i'm
position OF prohibited restraints.
Finding on Restraint.
Second-has the plan, and have
the operations of AP the inevitable
consequence Of restraining compete
tlon between news agencies or news
papers, or have they, and do they