# United States v. Associated Press

> District Court, S.D. New York · October 6, 1943 · 52 F. Supp. 362

URL: https://www.frixlaw.com/law-library/cases/9677986

## Case

- **Full name:** UNITED STATES v. ASSOCIATED PRESS Et Al.
- **Court:** District Court, S.D. New York
- **Decided:** October 6, 1943
- **Citations:** 52 F. Supp. 362; 1943 U.S. Dist. LEXIS 2156
- **Precedential status:** Published
- **Opinion:** Dissent by Swan
- **Judges:** Hand, Swan
- **Cited by:** 132 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9677986

## How later opinions describe it (automated extraction)

- noting that the interest protected by the First Amendment "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection"

## Opinion text

SWAN, Circuit Judge
(dissenting).
I regret that I am unable to concur in the decision of the court. Since my argument has not convinced my brothers, its validity is subject to grave doubt; nevertheless, I feel constrained to state briefly my reasons for differing with them.
This suit is founded upon alleged violations of the Anti-Trust Acts. The defendants are charged with having agreed to monopolize or unreasonably to restrain interstate commerce. It seems self-evident, and is not, I think, doubted by the majority opinion, that two newspapers might appoint a common agent to gather news and edit news reports for their common and exclusive use without running foul of the statutes. Such a case is thought to be differentiated from the present by the size and efficiency of the AP organization. I agree that what is true in small matters is not necessarily so in large matters; that difference in degree may produce difference in legal result. But to violate the antitrust law the combination, whatever its size, must tend to monopolize or to restrain unreasonably interstate trade. Clearly the provisions of AP’s by-laws as to admission of members have had no tendency to create a monopoly in news gathering — witness the growth of UP, INS, and other news gathering agencies. Nor is there proof that they have stifled competition between member newspapers and other newspaper owners or prospective publishers. Not a single instance has been adduced where a newspaper failed because it lacked an AP membership or was not started because the intending publisher could not obtain one. On the contrary, numerous papers have attained great success without such membership, What, then, is the ground for holding that the by-law provisions have resulted in an unreasonable restraint of trade either in news gathering or in newspaper publishing? Solely the court’s view that a news gathering organization as large and efficient as AP is engaged in a public calling, and so under a duty to admit “all ‘qualified’ applicants on equal terms.”
*376 The only authority advanced by the plaintiff in support of the proposition that news gathering is a public calling is a discredited decision in Inter-Ocean Pub. Co. v. Associated Press, 184 Ill. 438 , 56 N.E. 822 , 48 L.R.A. 568 , 75 Am.St.Rep. 184 . This litigation involved not the present AP, but an earlier Illinois corporation whose charter granted it a power of eminent domain. The decision is contrary to Matthews v. Associated Press of State of New York, 136 N.Y. 333 , 32 N.E. 981 , 32 Am.St.Rep. 741 , as was recognized in News Pub. Co. v. Associated Press, 190 Ill.App. 77 . It was explained in a later opinion by the Supreme Court of Illinois, People v. Forest Home Cemetery Co., 258 Ill. 36, 41 , 101 N.E. 219 , L.R.A. 1917B, 946 , Ann.Cas.1914B, 277, as resting upon the existence of the power of eminent domain. The Supreme Court of Missouri repudiated the doctrine of the Inter-Ocean case in State ex rel. Star Pub. Co. v. Associated Press, 159 Mo. 410 , 60 S.W. 91 , 51 L.R.A. 151 , 81 Am.St.Rep. 368 .
The business of gathering news is not one of those occupations which were recognized at common law as affected with a public interest AP has never held itself out as ready to serve all newspapers. Nor has it been granted the power of eminent domain or any other public franchise which might justify imposing the duty to serve all applicants without discrimination. If such a duty is to be imposed on news gathering agencies, I think it should be by legislative, rather than judicial, fiat. In Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co., 110 U.S. 667 , 4 S.Ct. 185 , 28 L.Ed. 291 , the question arose whether the Atchison was obliged to make joint traffic arrangements with the Denver & New Orleans on the same terms as it had granted to another connecting railroad. The court held that in the absence of appropriate legislation there was no such duty, saying at page 685 of 110 U.S., 4 S.Ct. at page 194, 28 L.Ed. 291 :
“Were there such a statute in Colorado, this case would come before us in a different aspect. As it is, we know of no power in the judiciary to do what the Parliament of Great Britian has done, and what the proper legislative authority ought perhaps to do, for the relief of the parties to this controversy.”
Again, in Express Cases, 117 U.S. 1 , 6 S.Ct. 542, 628 , 29 L.Ed. 791 , which held that the railroads need not in the absence of a statute furnish to all independent express companies equal facilities for doing an express business upon passenger trains, it was said ( 117 U.S. at page 29 , 6 S.Ct. at page 556 , 29 L.Ed. 791 ): “The regulation of matters of this kind is legislative in its character, not judicial.” The same thought was expressed by Mr. Justice Brandeis with respect to the very subject of news gathering in his dissenting opinion in International News Service v. Associated Press, 248 U.S. 215 , at page 267, 39 S.Ct. 68 , at page 82, 63 L.Ed. 211 , 2 A.L.R. 293 :
“Courts are ill-equipped to make the investigations which should precede a determination of the limitations 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 enjoyment of the rights conferred or to introduce the machinery required for enforcement of such regulations.”
Similar views have been announced in cases involving stock exchanges, cotton warehouses, and stockyards. American Livestock Commission Co. v. Chicago Livestock Exch., 143 Ill. 210 , 32 N.E. 274 , 18 L.R.A. 190 , 36 Am.St.Rep. 385 ; Heim v. New York Stock Exch., 64 Misc. 529 , 118 N.Y.S. 591 ; Ladd v. Southern Cotton Press & Mfg. Co., 53 Tex. 172 ; Delaware, L. & W. R. Co. v. Central S. Y. & Transit Co., 45 N.J.Eq. 50, 17 A. 146 , 6 L.R.A. 855 , affirmed 46 N.J.Eq. 280, 19 A. 185 . And I find nothing in Nebbia v. People of State of New York, 291 U.S. 502 , 54 S.Ct. 505 , 78 L.Ed. 940 , 89 A.L.R. 1469 , to contradict this view. There the New York legislature had acted; it had set up elaborate administrative machinery to regulate the milk industry. The chief question for decision was whether enforcement of Section 312(e) of the statute, Agriculture and Markets Law, Consol. Laws N.Y. c. 69, denied the appellant the due process secured to him by the Fourteenth Amendment. In sustaining the legislation, Mr. Justice Roberts remarked that so far as due process is concerned a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose; and he added ( 291 U.S. at page 537 , 54 S.Ct. at page 516 , 78 L.Ed. 940 , 89 A.L.R. 1469 ) that “The courts are *377 without authority either to declare such policy, or, when it is declared by the legislature, to override it.”
In the case of a business which was not recognized as a public calling at common law, I believe it is sound policy to leave to the legislature to determine whether the public welfare requires that all applicants be served without discrimination. This is particularly true where the duty to serve all comers does not depend upon the mere nature of the occupation, but upon the fact that the particular business has reached ■such a state of size and efficiency as to give the persons whom it serves some competitive advantage over applicants whom it declines to serve. At once the question occurs to the mind whether UP, INS, the New York Times News Syndicate, or any of the other news gathering agencies must also serve all comers. The problem of when such a stage is reached is one of economic policy which should be settled by legislation, rather than having the answer plotted gradually by successive judicial decisions. Furthermore, although the decree we are to enter takes the form of an injunction, in substance we are assuming the legislative function of prescribing the terms and conditions upon which newspapers shall be admitted to membership. We do not, it is true, affirmatively order an amendment of the by-laws, but we give leave to apply for a lifting of the injunction after they have been amended. How the directors or members of AP are to determine in advance of adoption whether a proposed amendment will be satisfactory to the court I cannot see, unless we are in effect to supervise a revamping of the by-laws. Such revamping will require many changes in the present setup and will present many problems which I fear the court may be ill-equipped to decide.
Finally, the Anti-Trust Acts are not, in my opinion, a justification for imposing on AP the duty to serve without discrimination all newspaper applicants. The case principally relied upon by the plaintiff to show that the Sherman Act, 15 U.S.C.A. § 1 et seq., may be used to secure indiscriminate service to all comers is United States v. Terminal Railroad Ass’n of St. Louis, 224 U.S. 383 , 32 S.Ct. 507 , 56 L.Ed. 810 . In that opinion Mr. Justice Lurton pointed out that in ordinary circumstances a number of independent companies might lawfully combine for the purpose of acquiring terminals for their common, but exclusive, use, but by reason of the peculiar topographical situation the terminals acquired by the Association gave it control of every feasible means of railroad access to St. Louis; and the decision was based in large measure upon that fact ( 224 U.S. at page 405 , 32 S.Ct. at page 513 , 56 L.Ed. 810 ). Although the Government urged that the Association be dissolved, the court directed, on account of the obvious advantages of a unification of terminal facilities, that the defendants submit a plan of reorganization which should make the Association the bona fide agent and servant of every railroad line desiring to use its facilities. I do not regard the case as apposite to the situation at bar. As already pointed out, the Terminal Association had obtained a complete monopoly. But AP has no monopoly in news gathering. The most that the plaintiff can urge is that a newspaper which is excluded from AP membership “operates under a competitive disadvantage with AP members.” Even if this allegation of the complaint, which the answer denies, be accepted as proved despite the evidence that UP claims its service to be superior and many newspapers have preferred it, I think such handicap of competitors insufficient to establish a violation of the Anti-Trust Acts. The majority opinion intimates that in the case of ordinary goods it might not suffice, but holds that it does in the case of news reports. To my mind the nature of a news report, which is the intellectual product of him who makes it, points to the conclusion that he may choose to whom he will disclose it, rather than to the conclusion that he is under a duty to disclose it to all applicants.
For the foregoing reasons I am of opinion that the motion for summary judgment should be denied.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9677986. Public record. Not legal advice.