Evening star., 1945-06-19

JUSTICE BLACK.
man Act. The fact that the pub
Usher handles news while other
handle food does not, as we shall
later point out. afford the publishel
a peculiar constitutional sanctuary
in which he can with impunity VIC.
late laws regulating his busines!
practices.
Nor is publisher who engages
in business practices made unlawful
by the Sherman Act entitled to a
partial immunity by reason Of the
clear and present danger" doc
trine which courts have used to
protect freedom to speak, to print,
and to worship. That doctrine, as
related to this case, provides pro-
lection for utterances themselves,
so that the printed or spoken word
may not be the subject of previous
restraint or punishment, unless
their expression creates a clear and
present danger of bringing about
substantial evil which the Gov
eminent has power to prohibit.
Bridges v. California, 314 U. S.
252, 26l.
Formulated as it was to protect
liberty of thought and of express
sion, it would degrade the clear
and present danger doctrine to
fashion from it a shield for business
publishers who engage in business
practices condemned by the Sher-
man Act.
Consequently, we hold that pub
fishers, like all others charged with
violating the Sherman Act, are SUBJ
ject to the provisions of the sum-
mary judgement statute. And that
means that such judgments shall
not be rendered against publishers
or others where there are genuine
disputes of fact on material issues.
Accordingly, we treat the cause as
did the court below, and will con-
slider the validity of the bylaws
and the contract exclusively on the
basis of their terms and the back
ground of facts which the appel
lants admitted.
Bylaws Examined.
To put the issue into proper TO-
Gus, it becomes necessary at this
Juncture to examine the bylaws.
All members must consent to be
bound by them. They impose upon
members certain duties and restric-
tions in the conduct of their sep
arate businesses. For a violation of
the bylaws severe disciplinary ac-
ton may be taken by the associa-
ton. The board of directors may
impose a fine of $1,000 or suspend a
member and such action = shall
be final and conclusive. No men,
ber shall have any right to question
the same" (See footnote D.
The offending member may also
be expelled by the members of the
corporation for any reason which
in its absolute discretion it shall
deem of such character as to be
prejudicial to the welfare of the
corporation and its members, or to
Justify such expulsion. The action
of the regular members of the cor
poration in such regard shall be
final and there shall be no right of
appeal against or review of such
action"
These bylaws, for a violation of
which members may be thus fined,
suspended or expelled, require that
each newspaper member publish the
AP news regularly in whole or in
part, and that each shall promptly
furnish to the corporation, through
its agents or employees, all the news
OF such members district, the area
OF which shall be determined by the
board of directors" (See footnote -
All members are prohibited from
selling or furnishing their sponta-
neous news to any agency or pub
Usher except to AP. Other bylaws
require each newspaper member to
conduct his or its business in such
manner that the news furnished by
the corporations" shall not be made
available to any nonmember in ad-
vance of publication. The joint
effect of these bylaws is to block
all newspaper nonmembers from any
opportunity to buy news from AP or
any Of its publisher members.
Member Admissions.
Admission to membership in Ar
thereby becomes a prerequisite te
obtaining AP news or buying news
from any one of its more than 1,20l
publishers. The erection of obstacles
to the acquisition of membership
consequently can make it difficult
If not impossible for nonmembers tt
get any of the news furnished by AT
or any of the individual members
of this combination of American
newspaper publishers. (See foot.
note a.
The bylaws provide very sim
pie and nonburdensome road fol
admission of a noncompeting ap-
plicant. The Board of Directors In
such case can elect the applicant
without payment of money or the
imposition of any other onerous
terms. In striking contrast are the
bylaws which govern admission ot
new members who do compete. His.
torically, as we'll as presently, appli-
cants who would offer competition
to old members have a hard roae
to travel. This appears from thu
following facts found by the Dis.
trict Court.
AP originally functioned as ar
Illinois corporation, and at tha,
time an existing member of tn.
association had an absolute vet,
power over the applications of I