February 1, Tuesday

 I received several comments about yesterday's rumor of Advertiser hiring. No one has any real knowledge of what is happening, or at least no one is admitting to insider knowledge, although many have heard bits and pieces from a variety of sources. The position in question may not be the one offered to a S-B section editor after all, according to a couple of people who stopped by my desk today, but we're all stumbling around in the dark, falling over each other and the swirling rumors. Everyone is anxious about the future, although some aspire to jobs next door while most of us have accommodated to the reality of getting on with our lives if, and when, the Star-Bulletin is finally folded.

The relatively sharp reaction to question of this one Advertiser position underscored a symptom of our current condition. We've managed to psychologically step back from the brink, protecting ourselves emotionally, and have been able to watch events of the past two months as if from a distance. But we're easily drawn back in when a specific personal situation is impacted, whether it is our own or a friends.

It is also interesting to note there's more than a bit of self-censorship reflected in our ongoing coverage of this battle, as we bite our collective tongues out of fear that our owners will react angrily at more aggressive coverage. Reporters are protected somewhat by the Guild contract, but we're collectively unwilling to put our management at risk of retaliation. Although the Guild takes an aggressive "us v. them" posture, I think most people in the newsroom like and respect our management, at least our local management. Rupert is another question altogether. When we expected to close within 45 days and had little to lose, we were all writing sharply and aggressively about the costs of monopoly and the benefits of editorial competition. Once a whisper of hope was introduced, we backed off, consciously or unconsciously, not wanting to put anyone at risk.

An interesting letter from the San Francisco Labor Council appeared on the newsroom bulletin board today. It isn't clear what exactly prompted it, although I commented earlier on the apparent contradiction between the labor position in San Francisco and here in Honolulu. Perhaps someone will let us know more about the context.

February 2, Wednesday

There have been unsung and unappreciated heroes in the continuing battle to save the Star-Bulletin. We may have the sense that there has been a spontaneous outpouring of community support, but unknown to most in the newsroom, supporters have been making the circuit of Honolulu's neighborhood boards to describe our situation and appeal for support. In school cafeterias and community libraries, they've been successful in convincing board members to cast their votes in our favor. This is the tedious but necessary side of organizing, and these folks deserve our thanks.

Below is just one example, as it appeared in the minutes of the November 4, 1999 meeting of the McCully-Moiliili Neighborhood Board. The person appearing on our behalf, Jean King, is a former Lt. Governor and member of the Legislature, and is one of the plaintiffs in the SOS lawsuit against Gannett and Liberty Newspapers.

Presentation on Saving The Honolulu Star Bulletin - Jean King, member of the Save Our Star-Bulletin (S.O.S.), stated that their main goal is educating the public through various Neighborhood Board meetings throughout the island to gather community support and in raising public awareness of the importance for Honolulu to have two viable daily newspapers. Jean King stressed the importance of having at least two daily newspapers for these reasons; a healthy democracy requires competition - for reporters not to be complacent but in being thorough, and in challenging differing news editorials. Jean King cited the Joint Operating Agreement and the Newspaper Preservation Act, which exempted the two newspapers from the Sherman Anti Trust Act - to prevent the establishment of monopolies. Jean King noted that the joint operating agreement between the Advertiser and Star-Bulletin expires in 2012. The decision by Gannett Pacific, owners of the Honolulu Advertiser and Rupert Phillips of Liberty Newspapers - owner of the Star Bulletin to shutting down the Star-Bulletin due to the fact that Phillips is only getting a 12%, not 26% return of his investment is a violation of the joint operating agreement. Jean King was pleased that the State Attorney General's office has taken legal action to stop the closure of the Honolulu Star- Bulletin, while the U.S. Justice Department has intervened as a friend of the court for S.O.S. The Courts have upheld the State's position. Gannett has appealed the decision to the 9th Circuit Court of Appeals in San Francisco, where it is now pending. Jean King distributed a petition to avert the shut down of the Honolulu Star-Bulletin.

Ka'apu moved and Aiona seconded to adopt the following resolution:

    WHEREAS, the Honolulu Star-Bulletin was scheduled to close on October 30, and

    WHEREAS, if the Honolulu Star-Bulletin is shut down, the Honolulu Advertiser will become Hawaii's only statewide newspaper, and

    WHEREAS, we benefit from two or more independent news and editorial voices our community; and

    WHEREAS, the closure of the Honolulu Star-Bulletin will result in the loss of over 110 jobs, along with hundreds of independent dealers and newspaper carriers;

    THEREFORE BE IT RESOLVED, that the McCully/Mo'ili'ili Neighborhood Board support the efforts to maintain more than one statewide daily newspaper continues to be published.

Discussion. Torigoe inquired about the State's position of possibly buying the Star-Bulletin with bonds. King stated that it is not the case. Heinrich, Steelquist and Chang stated that their respective Boards have already passed resolution expressing similar sentiments. D. Chun commented that due to advances in communication, the press has become the fourth branch of government by protecting the freedom of speech.

The motion carried unanimously.

Thanks to Jean, Richard Port, and others who have donated their time to speak out on our behalf.

Note: Repeat visitors can quickly reach the latest entry in this journal via my new "front end" at www.ilind.net.

February 3, Thursday

A well-placed source at the Federal Building in Honolulu reports that although the Star-Bulletin street sales box reappeared last month, "they don't put any papers in it." This remains unverified, but comes from a reputable source.

An electronic message went out to staff on Monday:

"Please don't read anything into the disappearance of the suggestion box from the Guild bulletin board (in the Star-Bulletin newsroom). It was a good idea in '63; today its a waste of space."

The message was from Burl Burlingame, our Guild rep, who ripped the suggestion box from the wall to make room for posting additional news items. Burl said the key has been missing for years and any "suggestions" that went in never came out. Peering into the slot while looking for tools to facilitate a break-in, he observed "some serious dust mites in there."

 

February 4, Friday

A PDF version of the January 2000 Guild Reporter containing their 3+ page spread of excerpts from this journal is now available online at the Guild's web site. It's a large file, 1.1 MB, so proceed with caution.

I don't know why I was surprised yesterday when Burl laid out a blunt assessment for another staffer, who was asking about the S-B's pension plan. "This is going to end with the Star-Bulletin being closed," he predicted. In his view, there's no way we're going to win a long-term victory, but we can make it a costly decision for Gannett and, in that way, perhaps contribute to a future victory elsewhere in the industry.

It's possible, even normal, to adopt a fuzzier view in day-to-day life, sort of pushing that question of the Star-Bulletin's ultimate life or death into the background in order to clear mental space for the necessary tasks of the moment, and a bit of a shock to be snapped back to a sobering clarity at unexpected moments like that.

 

February 5, Saturday

Gannett welcomed the Chinese year of the dragon yesterday afternoon. First the fortune cookies were passed out in our newsroom courtesy of Gannett/HNA ("Treasure good friends, they are priceless"), which elicited several barbed comments. Then we heard the firecrackers set off in the parking lot, followed by the drums signaling the arrival of the lion dancers.

Every year in recent memory, the lion has danced its way through the building, up and down the halls, helping us start the new year with luck and good fortune.

Actually, some say its a dragon. Others a lion. I think the lion is the smaller version, while the segmented dragon is usually a much bigger and more elaborate affair.

This year, in any case, we waited for Mr. Lion to appear, but it didn't. A few quick phone calls confirmed that it didn't visit the Advertiser newsroom either.

Perhaps there was some non obvious but practical reason they didn't make their way upstairs, but yesterday, at the end of a long week, it just seemed like another round of tackiness from our Gannett friends. My nonviolent, Quaker-leaning side wants to believe that this whole situation is as frustrating and upsetting to the Hawaii-based Gannetteers as it is to us, but my cynical reporter side just can't get in step.

February 6, Sunday

I was surprised to stumble across this little drawing while browsing through a list of web pages by members of the Hawaii Macintosh & Apple Users Society (HMAUS). Interestingly, 45% of visitors who stop by to read about the Star-Bulletin in this journal are Mac users. In any case, this cartoon is by Paul Minczer, and appears in a collection of drawings featuring Smokey the cat. I wonder if there's a drawing of Smokey enjoying the Star-Bulletin's extended life? Maybe its time to plant that idea with Paul....

Webmeister Blaine Fergerstrom send in this info after seeing Smokey's "Aloha" cartoon:

Paul has done a "birthday cartoon" with Smokey for Starbulletin.com every year since I started!

I add them to the Letters column on my anniversaries.

March 19, 1997
March 18, 1998
March 18, 1999

Hopefully, there will be one here, too!

http://starbulletin.com/2000/03/18/editorial/letters.html

I'm saving him a spot. =)

Aloha, Blaine

February 7, Monday

A Wall Street Journal story (Jan. 26, 2000) contributes a key detail about the recent move by Hearst Corporation to add production assets to its offer to sell the San Francisco Examiner. The Journal reports Hearst officials approached the Justice Department to discuss the idea of just closing the Examiner, citing an apparent lack of interest among potential buyers.

"The Justice Department, concerned that the Chronicle would then be left as the only major daily in San Francisco, told Hearst that the Examiner assets offered weren't sufficient for any buyer to keep the paper as a going concern," the Journal reported. The story also cited the Star-Bulletin legal battle as "potentially precedent-setting" and a complicating factor in the SF deal.

 

February 8, Tuesday

The week began with a staff message from Managing Editor Dave Shapiro announcing that assistant sports editor (and former editor) Paul Carvalho has resigned in order to accept a position next door at Gannett's Honolulu Advertiser.

"Paul is a class guy who represents everything good about the Star-Bulletin. We'll miss him," Shapiro wrote.

The news hit like a long anticipated slap. You knew it was coming, and it wasn't enough to knock you down, but it really did hurt. Paul becomes the first staffer to jump across the hall since the Star-Bulletin's planned closure was first announced. There have been other departures as people took more stable jobs, but none have been at the Advertiser.

It previously appeared that Gannett had withdrawn all job offers made to Star-Bulletin in order to comply with the broad terms of the preliminary injunction, which directed then to retain the "status quo". The conclusion of Judge Kay's decision reads as follows:

"From the date hereof and for the duration of this lawsuit, Defendants are hereby enjoined to preserve the status quo, including without limitation:

1. Defendants shall take no steps whatsoever to implement, or make any payments under, the Termination Agreement dated September 7, 1999, or any other agreement of like intent or effect;

2. Defendants shall take no steps that are contrary to, or inconsistent with, the stated purpose and intent of the Hawaii Joint Operating Agreement ó Amendment and Restatement of Mutual Publishing Plan Agreement of January 30, 1993 to produce high quality newspapers for their readers, improve acceptance for their advertisers, subserve public interest by maintaining the separate identities, individuality and editorial and news freedom and integrity of the Star-Bulletin and the Advertiser;

3. Defendants shall refrain from taking any actions that may cause any material adverse change in the business, including loss of subscribers and advertisers, or financial condition of the Star-Bulletin as a viable going concern.

Quiet debates raged all day over the meaning of Paul's move. Does it signal a change in the the interpretation of the limits of the injunction, thereby altering the legal landscape? If so, will Gannett now follow through on other offers that had been made, and by doing so begin the process of stripping away the human assets of the Star-Bulletin?

It is just too early to tell. Paul's offer apparently predated the closure announcement, so it may have a different status than the other offers which were predicated on our demise. But it is another unsettling moment in the ongoing cliffhanger.

Other news: I'm told that several University of Hawaii students have complained that they are no longer able to take advantage of a special half-price offer for Star-Bulletin subscriptions. Instead, they say, free Advertisers are being given out in the dorms on campus, but the Star-Bulletin deals are no longer available.

February 9, Wednesday

Yesterday was quiet. No news. Some continued murmurs about Carvalho's exit, but most of that has already been processed.

Today is the deadline for all parties to the Star-Bulletin case to submit their confidential settlement conference statements to the federal court in Honolulu, with a settlement conference to follow in a few days. Whether or not the outlines of a potential settlement emerge, this will give an indication of just how aggressive Gannett is going to be. More on this towards the end of the week, I expect.

I'm told the free Advertisers for the University dorms are part of the "newspapers in education" program. If true, it demonstrates how Gannett can even make use of nonprofit efforts to bolster its monopoly position.

The Guild's SOS web site has a good explanation of the whole street sales issue. Their headline, "Put the racks back, Jack", makes the point well. Check it out.

I was talking to one longtime Star-Bulletin reporter yesterday. I was surprised when she suggested that it won't be as personally devastating if and when Gannett eventually sets another date for the paper's closing. "It's like a death in the family," she said, pointing to the cycle of emotions from anger, depression, and grief, finally emerging into some form of reconciliation. We've been through it once and felt the pain, and she thinks we'll be better prepared the next time around.

I'm not so sure if we're now reconciled to our fate or in major denial of it.

February 10, Thursday

I received a wonderfully thoughtful, insightful, and supportive series of messages yesterday from Michele Dula Baum, former president of the Chattanooga Newspaper Guild Local 33164, who was among those who lost their jobs when the Chattanooga Times ceased publication and merged with its JOA partner at the beginning of 1999.

"I just wanted you to know that I've been where you are, and it does get better," Michele wrote.

"But reading your "Hawaiian Journal" stirred emotions I didn't know still existed. All over again, I felt the uncertainty, the stress, the fear, the backbiting, the pressure and the sheer despair of trying to do the best job I could to represent the interests of Guild-covered employees as our management took the money and ran. Once again, I felt the meaninglessness of that surreal job interview experience with the "new management across the street at the other paper," and the certain knowledge that there would be no job offer for me at the end of the road."

In Chattanooga, the company did not give full severance pay to staffers who were offered or accepted positions with the surviving paper. It sounds like there was a bitter battle over severance, but in the end the company's slightly modified proposal prevailed.

"While we thought we had a good case to demand full severance for all, we decided it wasn't worth the legal expense to fight," Michele says. "Besides, everyone was pretty drained by that time, and the company's final offer was accepted with only 1 dissenting vote."

She also reports that a year later, about half of those who were hired by the merged paper have moved on, and "nearly all" of those who weren't offered positions have found other work. Michele herself is freelancing and doing all right, but having trouble landing full time employment.

These excerpts aren't doing justice to Michele's writing, so I've posted the full text of her messages for readers who want to get their full flavor.

One difference between the Chattanooga situation and our own: Michele notes that her newspaper was never profitable, and would have been closed years earlier except for a personal and family commitment of the owners, who invested millions because newspapering is a vital business for the community. This is quite the opposite of our situation in Honolulu, where the question is not whether the operation is profitable, but whether it is profitable enough to feed Gannett's grossly exaggerated expectations.

February 11, Friday

In several separate hallway discussions yesterday, I noticed a distinction between staffers who would rather just have this settled one way or the other and get on with the rest of their lives, and others who would rather put up with the uncertainty in exchange for the ongoing paychecks as long as possible. I'm not sure which way I lean. I would like to win and see this newspaper survive, or be resurrected, for the long haul.

Anxiety increased as word circulated that attorney Alan Marx, whose union busting reputation has been described earlier in these pages, is flying out to take part in the settlement conference on behalf of Liberty Newspapers.

What does this mean, if anything? That was the question of the day on Thursday. It could mean reflect a purely formal requirement that the parties have someone present with the authority to negotiate a settlement, and the local counsel representing the Star-Bulletin don't have such authority. Alternately, his presence could indicate that negotiations are in fact serious and some movement is possible. Or it could, as some suggested, reflect a hard line posture by the newspapers' owners.

Of course, we're speculating without any direct evidence, which is a meaningless exercise, but that's the state of affairs.

Then we learned that Washington, D.C., attorney and antitrust specialist Don Baker is also flying in for the settlement conference to represent the Save Our Star-Bulletin plaintiffs, whose case has been consolidated with the state's antitrust suit. I incorrectly reported earlier today that it would be Baker's partner, W.Todd Miller, who would appear, but Miller contacted me this afternoon to set the record straight.

Baker's bio is impressive:

Donald I. Baker is a former Assistant Attorney General who, in 1994, established an independent practice in Washington specializing in antitrust and competition policy issues. His firm's efforts focus on joint ventures, mergers, licensing, network disputes and international transactions. At Baker & Miller, we tend to work closely, on a team basis, with corporate law departments and law firms in handling litigation, arbitrations, transactions and government investigations.

Mr. Baker is the only modern member of the career Antitrust Division staff to be appointed Assistant Attorney General in Charge of the Antitrust Division. He was a Trial Attorney and Section Chief (1966-1971), and Deputy Assistant Attorney General for Regulated Industries, Appeals and Foreign Commerce (1972-1975), before becoming Assistant Attorney General (1976-1977). He also has served as Professor of Law at Cornell Law School (1975-1978), and as a Washington partner of two major law firms (1978-1994).

Mr. Baker was educated at Woodrow Wilson School, Princeton University (A.B. cum laude 1957); Corpus Christi College, University of Cambridge (B.A. in Law 1959); and Harvard University (LL.B. 1961).

Mr. Baker has widely published writings on a broad range of antitrust and economic regulation subjects. He is co-author of two treatises, Baker & Brandel, The Law of Electronic Funds Transfer Systems (1980, 1988 and 1995) and Rowley & Baker, International Mergers - The Antitrust Process (1991 and 1995). He is Co-Chairman of the ABA International Section's Antitrust Committee, is a member of the ABA Antitrust Section's NAFTA Task Force, and the IBA Antitrust & Trade Law Committee (Secretary, 1989-93). He is a member of the Panel of Distinguished Neutrals (arbitrators, mediators, etc.), appointed by the CPR Legal Program to Develop Alternatives to Litigation and the Panel of Arbitrators of the American Arbitration Association. During the past three years, he has spoken on international competition issues in Luxembourg, Vienna, Berlin, Toronto, Florence, New Delhi, Lusaka, and Bangkok.

Mr. Baker's and his firm's current efforts include all aspects of antitrust counselling; representing complainants as well as targets (or merger parties) in various government investigations; a major arbitration in Toronto; and several private antitrust cases. He recently served as special advisor to the Anti-Monopoly Committee of Ukraine on competition policy for the financial sector and as an expert witness on comparative antitrust principles in the Color Film proceeding before the United States Trade Representative.

The involvement of Baker & Miller in the case is being funded by the Communications Workers of America, parent union of the Newspaper Guild.

Baker's appearance seems a good sign, both as a counter to Marx, but also as an indication that our case has the highest level of support from the international union, despite the small size of our Guild local.

February 12, Saturday

A gaggle of Gannettoids was sighted in the building over the last couple of days, white uncomfortable looking men unfamiliar with Hawaii's casual business dress norms. Whether they are all lawyers building up billable hours, or an attorney/bean counter combo, remains unclear.

But their presence did nothing to alleviate the simmering anxiety in the ranks that created rumors which quickly spread through the halls. When an unusual bout of spring cleaning hit the Advertiser, there was a while where we thought it might be a scheme to hide obscure materials from subpoenas issued in the discovery process. Turned out that complaints about air quality led to a generalized burst of cleaning directives. Makes sense, but so did the rumor.

I was also reminded that the "deadline" for bidders to emerge with offers to purchase the San Francisco Examiner expires Tuesday. An online search yesterday turned up no recent news. Are there any bidders? If not, what happens? When the deadline passes, can Hearst simply turn off the lights and call the movers? The questions were ostensibly about the Examiner, but you could see the echoes in people's faces as they sensed the implications for the Star-Bulletin.

February 13, Sunday

There's no news from those involved in yesterday's settlement conference, who were instructed not to comment by Magistrate Judge Barry Kurren after an all-day session. It is hard to say whether anything should be read into this, but it would appear to indicate discussions may be ongoing. If no possible grounds for settlement had emerged, a gag order like this wouldn't seem necessary. But whether this means we have grounds to worry isn't at all clear.

I did have an interesting conversation with retired Star-Bulletin scribe and longtime Guild activist Phil Mayer, who pointed out the difference between the Guild's position here and the posture with the Chronicle-Examiner JOA in San Francisco.

"We thought, damn the issues, it's a question of saving the paper," Phil said. "It's not just a question of jobs. if we save the paper, we should be able to save the jobs."

"The SF people went the other way. They've told me, if they save the jobs they don't give a damn if there is a second paper or not. That's a stupid strategic mistake and pretty goddamn greedy."

Our approach was shaped, in part, by the close relations with other unions, particularly the ILWU, that the Guild enjoys in Hawaii. The Guild has an office in the ILWU hall. This prevents the Guild from simply seeking a commitment from Gannett to preserve jobs held by Guild members.

They could come and say, 'we'll take care of the guild people. We'll double or triple the severance pay.' That's not good enough, after all of this. We're not in the money business. We're in the saving the newspaper business."

Phil predicts contract negotiations will take a back seat until the future of the Star-Bulletin is resolved.

"How can we get into negotiations with this hit man who is trying to destroy the paper," Phil said, referring to union-busting attorney Alan Marx, who represents S-B owner Rupert Phillips and his Liberty Newspapers Ltd. Partnership.

February 14, Monday

Check out what they're saying in San Francisco as the deadline for sale of the Examiner as a live newspaper nears.

Saturday's settlement conference was the topic of newsroom worries for today, but there's still no news of whether there was any "progress", or what that might mean for the Star-Bulletin.

A friend provided this shorthand description of the settlement conference process:

This is part of the normal process in all cases filed in federal court, and is built into the case calendar.

Each side submits a confidential settlement statement to the assigned magistrate judge. These typically lay out your theory of the case, including both the strong and weak points of your own case and that of the other side.

This statement is confidential, so that theoretically you can be more honest with the judge without disclosing essentials to the other side. You can tell the judge things you wouldn't put in a an open pleading. Then you usually put in your bottom line, what you believe it will take to settle the case, either in terms of dollars or other conditions.

Normally the settlement conference itself starts out with both sides appearing before the judge, laying out how they see the issues.

Then the judge plays "Kissinger diplomacy", shuttling back and forth between the parties as an active mediator. The judge usually pushes, testing both facts and legal theories, seeking to create movement. The judge will just go back and forth until you're exhausted, and sometimes cases will settle just because the attorneys are worn down.

Judges try hard to reach settlements because they don't want all these cases going to trial. If progress is being made, the judge will probably schedule another session. If the two sides agree on a potential settlement, they would go back and draft proposed language for possible approval. If they remain too far apart for any realistic chance of settlement, then it's on to trial.

Everything communicated during the settlement conference is covered Rule 408, and is not admissible in later proceedings to prove liability or damages. As a result, most judges prohibit the parties from publicly discussing the settlement conference.

We don't yet know what happened between the four sets of attorneys on Saturday, but clues can be expected to emerge before too much time passes.

 

February 15, Tuesday

I think everyone in the newsroom was quietly holding their breath today waiting for news from San Francisco, and there was an audible buzz when a wire story finally brought word that several potential purchases had emerged with offers to purchase the Examiner from the Hearst Corporation rather than letting the paper die. There is, of course, no direct link between their fate and ours, but we all dreaded seeing the last press run of another venerable newspaper. That would be an image cutting just too close to home.

Nothing was recorded in the federal court docket as of this afternoon that would indicate whether or not settlement hopes have been abandoned or are being actively pursued in the Star-Bulletin litigation. If a second round of settlement talks have been set, that fact has yet to hit the public record.

Meanwhile, according to the court approved calendar, Gannett and/or Liberty Newspapers has only until the end of this week if it intends to argue that the case is moot as a result of the lapsing of their deal to close the Star-Bulletin. Nothing has been filed yet.

All appears quiet, although we know there's a lot of behind-the-scenes turmoil.

More medicine for low blood pressure: Bob Rees' column in last week's Honolulu Weekly denounces the ACLU of Hawaii for its support of the Star-Bulletin. Rees, in typically shallow fashion, accuses the ACLU of "passing on an opportunity, however unpopular, to consider the First Amendment implications of the injunction."

To arrive at this conclusion, Rees fails to consider that the First Amendment's ability to shield the newspaper owners from antitrust laws has been carefully considered, and properly rejected. Rees refers to the 1944 U.S. Supreme Court case of Associated Press v. U.S., as if he has some piercing legal insights. What he fails to tell readers is that the case was cited and extensively argued by both sides in the legal tangle over the preliminary injunction that has kept the S-B in business. Had this fact penetrated his one-sided view, Rees might at least have acknowledged that it was the interpretation of the State and Save Our Star-Bulletin that prevailed not once or twice, but four times. First at the District Court and later when Judge Kay refused to reconsider his injunction, then when the 9th Circuit upheld the injunction, and then again when it turned down Gannett's appeal of the panel's ruling. 

To be honest, Rees should probably have also noted that the Justice Department also weighed in on the Star-Bulletin's side in a significant amicus brief.

Here's what Judge Kay's ruling of October 13, 1999 had to say about the Associated Press case:

Defendants also claim that any injunctive relief will necessarily violate their First Amendment rights to refrain from speaking or publishing. The Court finds the Supreme Court's decision in Associated Press v. United States, 326 U.S. 1 (1945), particularly instructive. In Associated Press, the Government sought to enjoin members of the Associated Press from prohibiting its members from selling news to non-members and granting each member powers to block its non-member competitors from membership. The Supreme Court affirmed an injunction issued by a three-judge panel. In doing so, the Supreme Court rejected the argument that the press is immune from the antitrust laws by virtue of the First Amendment, stating:

The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests. Associated Press, 326 U.S. at 20.

Thus, if the Court is correct that the State is likely to prove that Defendants have violated antitrust laws and that the Newspaper Preservation Act does not otherwise exempt them from antitrust scrutiny, then the Supreme Court's decision in Associated Press makes it clear that there is no First Amendment violation.

 Anyone wishing to read further can find the full text of the Associated Press case online.

 

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