Homefinders of America, Inc. v. Providence Journal Co.
Decision Date | 22 April 1980 |
Docket Number | No. 79-1396,79-1396 |
Citation | 621 F.2d 441 |
Parties | 1980-1 Trade Cases 63,257, 6 Media L. Rep. 1018 HOMEFINDERS OF AMERICA, INC., Plaintiff, Appellant, v. PROVIDENCE JOURNAL COMPANY et al., Defendants, Appellees. |
Court | U.S. Court of Appeals — First Circuit |
Ralph J. Gonnella, Providence, R. I., for plaintiff, appellant.
Joseph V. Cavanagh, Jr., with whom Knight Edwards, John D. Deacon, Jr. and Edwards & Angell, Providence, R. I., were on brief, for defendants, appellees.
Before ALDRICH and BOWNES, Circuit Judges, KEETON, District Judge. *
This is an action under sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, brought initially by one Walker, a franchisee of Homefinders of America, Inc., against Providence Journal Co., publisher of a daily metropolitan newspaper. Homefinders later was joined as plaintiff, see Walker v. Providence Journal Co., 1 Cir., 1974, 493 F.2d 82, and is now the sole plaintiff remaining. Plaintiff alleges that on and after February 1, 1973, defendant unlawfully refused to run classified advertisements desired by Walker, causing him financial loss and ultimately to go out of business and preventing plaintiff from re-establishing a Rhode Island franchise. The case was tried to the court. After extensive findings the court dismissed the action. Homefinders of America, Inc. v. Providence Journal Co., D.R.I., 1979, 471 F.Supp. 416. We affirm.
In its brief, plaintiff makes two responses.
What percentage was fictitious is irrelevant. The testimony of the manager of defendant's classified advertising department was that the continual complaints, including some from the Better Business Bureau, were so numerous that they had to be specially channelled to him.
The general truth of defendant's objections plaintiff concedes.
Plaintiff apparently felt comfortable in this concession because of the general principle that an antitrust violator cannot set himself up as a regulator and justify his own conduct by asserting improper behavior by the injured party. See, e. g., Perma Life Mufflers, Inc. v. International Parts Corp., 1968, 392 U.S. 134, 138-40, 88 S.Ct. 1981, 20 L.Ed.2d 982; Fashion Originators' Guild of America, Inc. v. Federal Trade Comm'n, 1941, 312 U.S. 457, 467-68, 61 S.Ct. 703, 85 L.Ed. 949. We do not question this principle, but plaintiff over-applies it. Defendant is not permitted to act as a protector of the public, but it may protect its own property from direct injury. In this sense plaintiff's concession is suicidal. **
To disregard the many trees in the briefs of both parties and look at the forest, plaintiff is demanding that a newspaper, whose First Amendment rights in this area are not to be ignored, see post, publish advertisements whose misleading nature has drawn the justified criticism of its readers. The court found that the establishment of defendant's policy was motivated by customer complaints. The depth of that motivation establishes its relevancy. Although the district court findings erroneously dwelt in part on the propriety of defendant's conduct in protecting the public, the court also found that defendant's reasons for refusing the advertisements were to avoid being charged with participation in deceptive acts or practices, and "to maintain a quality advertising section for its readers." Homefinders, ante, 471 F.Supp. at 423. We could not label such findings plainly wrong; indeed, they seem plainly right.
The fact that defendant may have a monopolistic position does not mean that competitors, assuming plaintiff to be such, can require it to immolate itself. Monopoly or no, the Sherman Act is not aimed at reasonable conduct, and it is not unreasonable for a newspaper to refuse misleading advertising that offends its readers and could turn them away from its classified columns altogether. The quality of Walker's advertisements was even more directly damaging to defendant's reputation than is likely in the customary dilution case....
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