Evening star., 1945-06-19

strains trade nor monopolizes it, nor
holds itself out to serve the pub
lie generally. into a public utility
because 1t furnishes q new sort OF
illumination-literary as contrasted
with physical-by pronouncing nat
that the interest of consumers-the
reading public-not that Of compet-
ing news agencies or newspaper
publishers-requires equal service to
all newspapers on the part Of AP
and that a court Of equity, in the
guise Of an injunction, shall write
the requisite regulatory statute.
This Is government by injunction
with a vengeance.
Moreover it is to make a new
statute by court decision. The
Sherman Act does not deal with
public utilities as such. They may
violate the act, as may persons en-
gagged in private business. But that
act never was intended and has
never before been thought to re-
quire private corporation, not
holding itself out to serve the pub
lie, whose operations neither were
intended to nor tended unreason-
ably to restrain or monopolize trade,
to fulfill the duty incident to q
public calling, of serving all appl-
cants on equal terms.
For myself, I prefer to entrust
regulatory legislation of commerce
to the elected representatives of
the people instead of freezing it in
the DEGREES Of courts less responsive
to the public will. I still believe
that "the courts are without au.
thority either to declare such policy
or, when 1t is declared by the leg
islature, to override it," (See foot
note 13.)
Unfit Instruments.
But more, the courts are UNIT
instruments to make and implement
such policy. A wise Judge has said
IN case brought by AP to redress
the alleged wrong of ms in "pirat-
ing APPS news (see footnote 40:
Courts are ill-equipped to make
the investigations which should pre-
cede determination Of the limi-
tatlons which should be set upon
any property right in news or of
the circumstances under which
news gathered by a private agency
should be deemed affected with a
public interest. Courts would be-
poWerless to prescribe the detailed
regulations essential to full enioy-
ment OF the rights conferred or To
introduce the machinery required
Tor enforcement of such regulations
considerations such as these should
iead us to decline to establish a
new rule OF law in the effort to re-
uress newly disclosed wrong al.
tnough the propriety of some rem.
eoy appears to be clear"
Inc considerations which led IA
the conclusion are persuasiveIv
STATED in the preceding pages Of
the cited opinion.
Inc opinion asserts that. what
ever the court below has said this
courc does not adopt its reasons
!of tne decree entered, but sustain.
lLs action upon the basis of "a.
stralnt and monopoly violative ~
a prohIbitory law. I think hon1-
ever tnls is too superficial a con,
cluslon. The fact remains as tn.
court below comedies, that the role
essayed is ordinarily Legislatures !"
(See footnote l5)
from now on AP is to orerats
uhoer the tutelage of the court r.
Is ordered to submit for approva1 .
revision OF its bylaws. and. unlas,
the court approves the changes :,
Is 10 oe restrained from contractin,
with its members that they shall moi
lsclose the news it furnishes anr
rom continuing its existing con.
tract relations with Canadian rev,
agency. both Of which are held in
ana OF themselves and apart from,
the alleged illegalities of the bv.
laws innocent and legal.
However, the bylaws NAV =.
amended, and whatever iudicis !
blessings may be given the new text
II Is certain that every refusal to
oeai with any newspaper will evoke
d Iresn exercise Of the judicial guar.
olansnlp. Lawful practices NAV h.
threatened with injunction. as the7
are IN the present decree, as a lever
10 compel obedience in some respect
'''ousaI important by the court.
Sees Regimentation.
The decree may well result not :,
1reer competition but in a mononolv
IN Ar or UP. or in some resulting
agency, and thus force full and com ,
p1eIe reglmentation of all news sery-
ice 10 the people of the Nation. The
oecree mere approved may well be
ana l think threatens to be. but a
llrSc step In the shackline OF tha
press, which will subvert the consti-
sutlonal freedom to print or to with
nolo' to print as and how ones rea-
son or ones interest dictates, When
that time comes, the state will be-
supreme and freedom of the state
VIII nave superseded freedom of ths
indlvldual to print, being RESPONSE
o!e before the law for abuse of ths
high privilege.
1t Is not protecting a freedom, but
Soi1AiiiAiis ~ 10 prescribe where and
now and under what conditions one
must 'mpart the literary product Of
ms thought and research This is
lettering the press, not striking off
its chains. VA
The existing situation with re-
spect to radio points the moral OF
What l have said. In that field Con.
gress has imposed regulation be-
cause, In contrast to the press. the
physical channels of communication
are limited, and chaos would result
from unrestrained and unreeulated
use OF such channels. But in inn
posing regulation, Congress has re-
trained from any restraint on own.
ershlp OF news or information or
the right to use it. And any rea,,-
iation OF this major source of in.
formation. in the light of the con-
stltutional guarantee of free speech
should be closely and jealousy ex-
amlned by the courts.
Court Goes Far Afield.
Inc court goes far afiefd in c,+