Associated Press v. United States Tribune Co v. Same United States v. Associated Press

• Decision Date: 18 June 1945
• Docket Number: 58 and 59,Nos. 57,s. 57
• Parties: ASSOCIATED PRESS et al. v. UNITED STATES. TRIBUNE CO. et al. v. SAME. UNITED STATES v. ASSOCIATED PRESS et al
• Court: U.S. Supreme Court

326 U.S. 1

65 S.Ct. 1416

89 L.Ed. 2013

ASSOCIATED PRESS et al.

v UNITED STATES.

TRIBUNE CO. et al.

v. SAME.

UNITED STATES

v. ASSOCIATED PRESS et al.

Nos. 57, 58 and 59.

Argued Dec. 5, 6, 1944.

Decided June 18, 1945.

Rehearing Denied Oct. 8, 1945.

See 66 S.Ct. 6.

[Syllabus from pages 1-3 intentionally omitted] Mr. John T. Cahill, of New York City, for Associated Press.

Mr. Howard Ellis, of Chicago, Ill., for Tribune Co. and others.

Messrs. Charles B. Rugg, of Boston, Mass., and Wendell Berge, Asst. Atty. Gen., for the United States.

Mr. Justice BLACK delivered the opinion of the Court.^*

The publishers of more than 1200 newspapers are members of the Associated Press (AP), a cooperative association incorporated under the Membership Corporations Law of the State of New York, Consol.Laws c. 35. Its business is the collection, assembly and distribution of news. The news it distributes is originally obtained by direct employees of the Association, employees of the member newspapers, and the employees of foreign independent news agencies with which AP has contractual relations, such as the Canadian Press. Distribution of the news is made through interstate channels of communication to the various newspaper members of the Association, who pay for it under an assessment plan which contemplates no profit to AP.

The United States filed a bill in a Federal District Court for an injunction against AP and other defendants charging that they had violated the Sherman Anti-Trust Act, 26 Stat. 209, 15 U.S.C.A. §§ 1—7, 15 note, in that their acts and conduct constituted (1) a combination and conspiracy in restraint of trade and commerce in news among the states, and (2) an attempt to monopolize a part of that trade.

The heart of the government's charge was that appellants had by concerted action set up a system of By-Laws which prohibited all AP members from selling news to non-members, and which granted each member powers to block its non-member competitors from membership. These By-Laws, to which all AP members had assented, were, in the context of the admitted facts, charged to be in violation of the Sherman Act. A further charge related to a contract between AP and Canadian Press, (a news agency of Canada, similar to AP) under which the Canadian agency and AP obligated themselves to furnish news exclusively to each other. The District Court, composed of three judges, held that the By-Laws unlawfully restricted admission to AP membership, and violated the Sherman Act insofar as the By-Laws' provisions cloted a member with powers to impose or dispense with conditions upon the admission of his business competitor. Continued observance of these By-Laws was enjoined. The court further held that the Canadian contract was an integral part of the restrictive membership conditions, and enjoined its observance pending abandonment of the membership restrictions. The government's motion for summary judgment, under Rule 56 of the Rules of Civil Procedure,¹ was granted and its prayer for relief was granted in part and denied in part. 52 F.Supp. 362. Both sides have brought the case to us on direct appeal. 15 U.S.C., Sec. 29, 15 U.S.C.A. § 29; 28 U.S.C., Sec. 345, 28 U.S.C.A. § 345.

At this point, it seems advisable to pass upon the contention of the appellants that there were genuine disputes as to material facts and that the case therefore should have gone to trial. The only assignments of error made by the appellants in No. 57 (AP et al. v. United States), relating to this question are that the court erred 'In holding that there was no genuine issue between the parties as to any material fact' and 'In not entering summary judgment against the plaintiff.' This latter assignment is based on the premise that summary proceedings were properly utilized in the case. The appellants in No. 58 (Tribune Company and McComick v. United States) have one assignment of error to the effect that 'The defendants are entitled to a trial of genuine issues of fact unmentioned in the findings of the court but which if found for the defendants would render this holding unwarranted.' None of the appellants has pointed to any disputed facts essential to a determination of the validity or invalidity of the By-Laws and the contract. Admitting the existence of both the By-Laws and the contract, their answers and their affidavits in the summary proceedings defended the legality of the restrictive arrangements, but did not in any instance deny that non-members of AP were denied access to news of AP and of all of its member publishers by reason of the concerte arrangements between the appellants. Nor was it denied that the By-Laws granted AP members powers to impose restrictive conditions upon admission to membership of non-member competitors. The court below in making findings and entering judgment carefully abstained from the consideration of any evidence which might possibly be in dispute. We agree that Rule 56 should be cautiously invoked to the end that parties may always be afforded a trial where there is a bona fide dispute of facts between them. Sartor v. Arkansas Nat. Gas. Co., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967. There was no injury to any of the appellants as a result of the summary proceedings since, for reasons to be indicated, the restrictive arrangements which appellants admitted, were sufficient to justify summary action by the court at that stage of the case. In reaching our conclusion on the summary judgment question, we are not unmindful of the argument that newspaper publishers charged with combining cooperatively to violate the Sherman Act are entitled to have a different and more favorable kind of trial procedure than all other persons covered by the Act. No language in the Sherman Act or the summary judgment statute lends support to the suggestion. There is no single element in our traditional insistence upon an equally fair trial for every person from which any such discriminatory trial practice could stem. For equal—not unequal justice under law is the goal of our society. Our legal system has not established different measures of proof for the trial of cases in which equally intelligent and respon- sible defendants are charged with violating the same statutes. Member publishers of AP are engaged in business for profit exactly as are other business men who sell food, steel, aluminum, or anything else people need or want. See International News Service v. Associated Press, 248 U.S. 215, 229, 230, 39 S.Ct. 68, 69, 63 L.Ed. 211, 2 A.L.R. 293. All are alike covered by the Sherman Act. The fact that the publisher handles news while others handle food does not, as we shall later point out, afford the publisher a peculiar constitutional sanctuary in which he can with impunity violate laws regulating his business practices.

Nor is a 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' doctrine which courts have used to protect freedom to speak, to print, and to worship. That doctrine, as related to this case, provides protection for utterances themselves, so that the printed or spoken word may not be that subject of previous restraint or punishment, unless their expression creates a clear and present danger of bringing about a substantial evil which the government has power to prohibit. Bridges v. California, 314 U.S. 252, 261, 62 S.Ct. 190, 193, 86 L.Ed. 192. Formulated as it was to protect liberty of thought and of expression, 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 Sherman Act. Consequently, we hold that publishers, like all others charged with violating the Sherman Act, are subject to the provisions of the summary judgment 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 consider the validity of the By-Laws and the contract exclusively on the basis of their terms and the background of facts which the appellants admitted.

To put the issue into proper focus, it becomes necessary at this juncture to examine the By-Laws.

All members must consent to be bound by them. They impose upon members certain duties and restrictions in the conduct of their separate businesses. For a violation of the By-Laws severe disciplinary action may be taken by the Association. The Board of Directors may impose a fine of.$1000.00 or suspend a mem er and such 'action * * * shall be final and conclusive. No member shall have any right to question the same.'² 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 a 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 corporation in such regard shall be final and there shall be no right of appeal against or review of such action.'

These By-Laws, 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 member's district, the area of which shall be determined by the Board of Directors.'³ All members are prohibited from selling or furnishing their spontaneous news to any agency or publisher except to AP. Other By-Laws 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 non-member in advance of publication. The joint effect of these By-Laws is to block all newspaper non-members from any opportunity to buy news from AP or...