The A.P. in Court

In the days when the late William Allen White started his Emporia Gazette, all a newspaper publisher needed to set up shop was a hankering, a town to print in, and a shirtful of type slung over his back. How different and difficult the job is today was described in detail last week in a Supreme Court decision. The case grew out of the refusal of the Associated Press to sell an A.P. membership to Marshall Field's Chicago Sun. The court, by a 5-to-3 vote, found the great A.P. guilty of helping its member papers to choke off ambitious rivals.

Any new publisher who tries to compete with an established A.P. member has "a hard road to travel" before he gets into the A.P., "the chief single source of news for the American press," the court found. To get around antitrust laws, the A.P. incorporated itself under a New York state law which applies to hunting and fishing clubs. And, like such exclusive clubs, the A.P. practices the right of blackball. Once blackballed by a rival, an applicant's only recourse is to throw himself on the mercy of the A.P. membership, which is all too willing to logroll ("You vote against my rival, I'll vote against yours"). Once in the A.P., if the applicant has any exclusive news services of his own, he must let his A.P. competitor have them at the same rate. And to get his membership he must pay his rivals in the same town whopping assessments (in the York morning field, $1,432,000; in Chicago, $416,000).

Presumably, a new publisher could do without A.P., and take the United Press or International News Service instead. But U.P. and I.N.S. also make costly demands: in 26 U.S. cities, a new publisher would have to pay off heavily to his established rival--no matter which one of the three big wire services he bought. Said Justice Hugo Black (who wrote the majority decision): "The net effect is seriously to limit the opportunity of any new paper to enter these cities . . . and to frustrate the free enterprise system which it was the purpose of the Sherman Act to protect."

Collective Power. The court ruled that an A.P. member must no longer be allowed to keep out a competitor (although the A.P. membership as a whole will still be able to reject applicants). It also ordered the A.P. to loosen its airtight news-trading agreement with the Canadian Press. In doing so, the court majority paid its disrespects to the A.P.'s familiar plea that freedom of the press was at issue: "Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. ... [A publisher has no right to] a peculiar constitutional sanctuary in which he can with impunity violate laws regulating his business practices."

The majority opinion brushed aside the

A.P.'s contention that it was being penalized for being biggest & best: under the circumstances, said the court, an A.P. member's business success cannot be "attributed to individual 'enterprise and sagacity' [but] to that which really makes it possible--the collective power of an unlawful combination." In deciding what to do about it, the court was more vague. The A.P. was told to rewrite its bylaws, and get court approval for the changes. This, roared dissenting Justice Owen J. Roberts, puts the A.P. "under the tutelage of the court. . . . This is government by injunction with a vengeance. ... I think [this decree] threatens to be a first step in the shackling of the press."

The Next Step? The issue was big enough, and cloudy enough, to set five justices to writing separate opinions. It was even cloudier when the A.P. got through reporting it (the A.P. usually manages to be least intelligible when describing its own adversities). While other A.P. members puzzled over their next step, the Chicago Tribune's Colonel Robert R. McCormick galloped up with a plan. Said Colonel McCormick:

"The text of the decision reads in part: 'It is significant that when Congress has desired to permit cooperatives to interfere with the competitive system of business it has done so expressly by legislation.' The Supreme Court has pointed out our next step--we must go to Congress."

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