recognizing that the term “person” in the Sherman Act included all entities, whether public or private, that “engaged in business whose activities might restrain or monopolize commercial intercourse among the states” and thus included both states and cities (internal quotation omitted)
How later courts described this case
- recognizing that the term “person” in the Sherman Act included all entities, whether public or private, that “engaged in business whose activities might restrain or monopolize commercial intercourse among the states” and thus included both states and cities (internal quotation omitted)
- noting that “[c]ases subsequent to Pennington have emphasized the possible constitutional infirmity in the antitrust laws that a contrary construction would entail in light of the serious threat to First Amendment freedoms that would have been presented”
- concluding that a municipality engages in state action when “the State authorized or directed [it] to act as it did”
- holding that the definition of “person” or “persons” liable under the antitrust laws clearly includes cities
Written by the judges who cited it.
The opinion
Mr. Justice Marshall,
concurring.
I agree with The Chief Justice, post, at 426-426, that any implied “state action” exemption from the antitrust laws should be no broader than is necessary to serve the State’s legitimate purposes. I join the plurality opinion, however, because the test there established, relating to whether it is “state policy to displace competition,” ante, at 413, incorporates within it the core of The Chief Justice’s concern. As the plurality opinion makes clear, it is not enough that the State *418 “desire[s] to insulate anticompetitive practices.” Ante, at 416. For there to be an antitrust exemption, the State must “impose” the practices “as an act of government.” Ibid. State action involving more anticompetitive restraint than necessary to effectuate governmental purposes must be viewed as inconsistent with the plurality’s approach.