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The Associated Press Antitrust Suit: A Philosophical Clash over Ownership of First Amendment Rights

Published online by Cambridge University Press:  11 June 2012

Margaret A. Blanchard
Margaret A. Blanchard
Affiliation:
Margaret A. Blanchard is associate professor of journalism at the University of North Carolina at Chapel Hill.
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Abstract

In this article Professor Blanchard examines the Associated Press antitrust suit of the early 1940s in terms of its protagonists, Chicago newspaper leaders Robert McCormick and Marshall Field. The analysis avoids traditional antitrust terms and instead examines the suit as part of an effort by the federal government to use the antitrust law to implement a public-interest interpretation of the First Amendment. Professor Blanchard also looks at McCormick's attempt to obtain special legislation from Congress to void the Supreme Court's decision in favor of Field. She concludes that, although the government's efforts to use the First Amendment to force the news agency to serve a broader public interest were successful, the Associated Press emerged from the suit stronger than before the legal action.

Type
Research Article
Information
Business History Review , Volume 61 , Issue 1 , Spring 1987 , pp. 43 - 85
Copyright
Copyright © The President and Fellows of Harvard College 1987

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References

1 See Blanchard, Margaret A., “Press Criticism and National Reform Movements: The Progressive Era and the New Deal,” Journalism History 5 (Summer 1978): 33–37, 54–55Google Scholar.

2 See Chafee, Zechariah Jr., Government and Mass Communications (rprt., Hamden, Conn., 1965), 545–48Google Scholar.

3 Gaining membership in the Associated Press was extremely difficult. Of 603 original members in 1900, 278 were given protest rights. Associated Press member newspapers in the nation's twenty-five largest cities (except Newark, New Jersey) were able to keep potential competitors from gaining Associated Press service. In more than one hundred instances, protest rightys extended for a radius of 60 miles from the city of publication: in one case, protest rights extedned for 150 miles. Between 1900 and 1928, the Associated Press received one hundred applications for membership that were subject to existing protest rights; only six of these applications won the necessary four-fifths majority to obtain membership. In each sucessful case, the Associated Press member was not publishing directly in the city of the applicant, which was usually small. In 1928, the protest rule was changed to limit protests to publications in the same city and field. From 1929 to 1941, only four applications involving protest rights were submitted. None of the four won admission. Associated Press v. United States, 326 U.S. 1 (1945), Record, 25–27Google Scholar [hereafter cited as Record].

4 Schwarzlose, Richard A., “Harbor News Association: The Formal Origin of the AP,” Journalism Quarterly 45 (Summer 1968): 253–61CrossRefGoogle Scholar; Peter R. Knights, “The Press Association War of 1866–1867,” Journalism Monographs, Dec. 1967. During this struggle, one of the strongest voices against the dominance of the New York Associated Press was Joseph Medill of the Chicago Tribune, grandfather of Colonel Robert R. McCormick. Medill worked hard to form the Western Associated Press and to earn greater representation within the national organization, writing to fellow journalists: “The New York Association is a monopoly in the worst sense of the word…. It is one of the most pernicious and crushing monopolies that ever existed.” Gramling, Oliver, AP: The Story of News (New York, 1940), 73, 116–35Google Scholar.

5 Inter-Ocean Publishing Co. v. Associated Press, 184 Ill. 438, 36 N.E. 822 (1900). Inter-Ocean, a Chicago newspaper, wanted to maintain its AP membership and to use another news service as well. The Associated Press of Illinois suspended the publication from membership, and Inter-Ocean sued. Inter-Ocean defended its use of news from an additional service on the grounds that the other agency, Sun Printing & Publishing Association of New York City, provided information not available from the Associated Press–data necessary to fill the needs of Chicago readers. The Chicago newspaper did not provide its news to any competing agency.

In finding in favor of Inter-Ocean, the Illinois court said enforcement of the news agency's by laws would enable the agency “to designate the character of the news that should be published, and, whether true or false, there could be no check on it by publishing news front other sources.” Thus, the rules of the Associated Press of Illinois “would be powerful in the creation of a monopoly in its favor, and could dictate the character of news it would furnish, and could prejudice the interests of the public. Such a power was never contemplated in its creation, and is hostile to public interests.” 56 N.E. at 826. For details of the Illinois incident, see Gramling, AP, 149–54; Rosewater, Victor, The History of Cooperative News-Gathering in the United States (New York, 1930), 260–65Google Scholar.

6 “A. P. Attacked By Sun,” Editor and Publisher and journalist, 7 Feb. 1914, 649–50; Record, 116. Despite the statement from Attorney General Gregory, legal experts felt that the Associated Press was vulnerable to attack under antitrust laws in 1942. Not only had the news agency become more dominant, but the “attitudes, interpretations, and the nature of society had changed” in a way that was more conducive to antitrust litigation. Becker, Stephen, Marshall Field III (New York, 1964), 305Google Scholar; Swindler, William F., “The AP Anti-Trust Case in Historical Perspective,” Journalism Quarterly 23 (March 1946): 53.Google Scholar See also Rosewater, History of Cooperative News-Gathering, 301–3.

7 For a review of the foreign policy implications of the MeCormick-Field encounter, see Edwards, Jerome E., The Foreign Policy of Col. McCormick's Tribune: 1929–1941 (Reno, Nev., 1971), 195–206Google Scholar. The Tribune's front page on 4 Dec. 1941 screamed of “F.D.R.'S WAR PLANS” and detailed a military report calling for five million men for a final land offensive against Germany and its allies in Europe. Tebbel, John, An American Dynasty (New York, 1947), 159Google Scholar. The story led to an investigation of McCormick for treason; though that failed, the story virtually ensured the antitrust action once Field had signed the official complaint. Waldrop, Frank C., McCormick of Chicago (Englewood Cliffs, N.J., 1966), 257Google Scholar. See also Ickes, Harold L., The Secret Diary of Harold L. Ickes (New York, 1954), 3: 659–60Google Scholar.

The relationship between the two men was complex. Field's grandfather, Marshall Field I, loaned McCormick's grandfather, Joseph Medill, money to repurchase the Tribune in the 1870s. Gies, Joseph, The Colonel of Chicago (New York, 1979), 171Google Scholar. Both men moved in the same social circles, worked on some of the same municipal projects, and “nodded and spoke briefly at charity luncheons.” Becker, Marshall Field, 273. McCormick claimed to have had cocktails at Field's home just a few days before Field announced establishment of the Chicago Sun–although Field allegedly did not tell the colonel of plans for the newspaper, Cooper, Kent, Kent Cooper and the Associated Press (New York, 1959), 281Google Scholar. After the antitrust suit began, however, Field “became an anathema to the Colonel.” Morgan, Gwen and Veysey, Arthur, Poor Little Rich Boy (And How He Made Good) (Carpentersville, Ill., 1985), 374.Google Scholar The rivalry, interestingly, did not influence one aspect of their business relationship–Marshall Field & Company, Field's department store in Chicago, remained a major advertiser in McCormicks' Tribune.

8 The Field-McCormick confrontation was not the only one involved in the antitrust action. Eleanor Medill Patterson, McCormick's cousin, wanted AP services for her Times-Herald in Washington, D.C., and was blocked by the protest rights held by the Washington Post and the Washington Star. In fact, Kent Cooper, general manager of the Associated Press, claims that the U.S. Justice Department first explored antitrust action against the news-gathering cooperative at her insistence in late 1940. Cooper, Kent Cooper, 275–78. Eleanor Patterson's role in initiating the suit was confused after the action was brought, for she then “made a great public to-do out of her refusal to sign the formal antitrust complaint, as Field was quick to do.” One reason for her change of mind was that as war loomed she aligned more closely with McCormick and with her brother, Joseph Patterson, publisher of the New York Daily News, to oppose intervention. Waldrop, McCormick of Chicago, 258, 255. See also Gressley, Gene M., ed., Voltaire and the Cowboy: The Letters of Thurman Arnold (Boulder, Colo., 1977), 450–52.Google Scholar When the suit was actually brought, Eleanor Patterson's application for AP membership was part of the action. Most of the discussion, legal maneuvering, and rhetoric centered on the Field-McCormick encounter.

9 Record, 538. For a view of how Tribune reporters viewed the entrance of the Sun into the Chicago journalism field, see Wendt, Lloyd, Chicago Tribune: The Rise of a Great American Newspaper (Chicago, 1979), 617Google Scholar.

Field noted that McCormick and the Tribune Company also took advantage of tax laws, citing losses incurred when McCormick helped underwrite the early days of the New York Daily News, run by his cousin, Joseph Patterson; $14 million in losses incurred by Liberty Magazine from 1923 to 1931; $2 million in losses over seventeen months for the ill-fated Detroit Mirror; losses associated with the early days of WGN radio; losses connected with timber and paper investments in Canada; and losses from the Washington Times-Herald of Eleanor Patterson, another cousin who drew on her income from Tribune stock to finance her publication. “When The Tribune and its stockholders started and maintained publishing and business ventures in New York, Detroit, Canada and Washington, D.C.–it was assumed that such ventures were supported at the expense of their principals and not ‘subsidized’ by the government. The Tribune and its stockholders merely engaged in commendable free enterprise, the inalienable right of every American,” Field noted. Becker, Marshall Field, 291–92.

Field's efforts to win AP membership may have led to financial attack from another quarter as well. In 1944, after the district court ruled in his favor in the Associated Press suit, Congress passed the Dannaher Amendment to the nation's income tax regulations, which limited the losses an individual could claim from a “secondary business.” Although backed by the Treasury Department, debate on the floor of Congress at times referred to the “Marshall Field amendment,” indicating that Field's efforts to establish a liberal newspaper in Chicago may have engendered support for the tax revision. As the amendment moved through Congress, Field reorganized his holdings into Field Enterprises, Inc., thus avoiding its provisions. See Becker, Marshall Field, 241–48.

The Tribune itself admitted its connection with the Republican Party but claimed not to be a party organ, saying that the Tribune's “views are its own. No outside influence has ever dominated its thought and expression.” Quote from Thunderer of the Prairies, edited and published by the Chicago Tribune in 1944, in Gerald, J. Edward, The Press and the Constitution 1931–1947 (Minneapolis, Minn., 1948), 110–11.Google Scholar Field claimed the same type of political interest in his first-day editorial: “The Sun believes in the present national administration and will support it so long–and only so long–as it merits that trust.” Becker, Marshall Field, 287.

10 McCormick reportedly wanted a morning newspaper to compete with the Tribune, feeling that his publication would benefit from such an encounter. After the antitrust suit was launched, McCormick told Kent Cooper that he would have waived the Tribune's protest rights for AP membership had Field requested such action personally. Field went to the Justice Department instead, hardening McCormick's attitude. Just before the government action was pressed, other AP members asked McCormick to waive his protest rights. At this point, the colonel offered to waive his rights for the Chicago area if his AP colleagues would do likewise for their territories. The suggestion was dropped. Cooper, Kent Cooper, 280.

To keep possibly wavering colleagues in line, McConniek entered an application for membership for an afternoon daily in the Chicago area. The Tribune had no afternoon edition nor were there plans to start such a paper. After the vote excluding Field, the colonel admitted, “When the pressure was very severe upon the Chicago Tribune not to maintain its protest right it occurred to me it would be a good thing to have other members in Chicago which would not waive this right.…so if any action was to have been taken against me it would have to be taken against all and I didn't think that was likely.” Tebbel, An American Dynasty, 330.

11 Field, Marshall, Freedom Is More than a Word (Chicago, 1945), 136, 138, 140, 142.Google Scholar Field was losing money heavily on the Sun; some estimated his losses at $100,000 a week. The circulation front was bleak as well. The newspaper started out selling about 900,000 copies, but sales fell to less than one-fourth of that total after several weeks. By some estimates, Field lost $25 million before the Sun made a profit. Becker, Marshall Field, 297, 288, 395. The Sun was in such dire straits that several of McCormick's advisers suggested that he not block Field's AP membership and simply let Field drown in his bills. Waldrop, McCormick of Chicago, 246.

12 Adding to the confusion was the belief in newspaper circles that Franklin D. Roosevelt personally had requested the Justice Department to intervene on behalf of a friend in Chicago. Cooper, Kent Cooper, 278–80. See also Gies, Colonel of Chicago, 203–4. No doubt the president was interested in the suit and in helping Field. Roosevelt did specifically approve the justice Department's action. Biddle, Francis, In Brief Authority (Garden City, N.Y., 1962), 279.Google Scholar And, in another context, Interior Secretary Harold L. Ickes admitted that the president was “under tremendous obligations to Marshall Field for financial support during the recent [1940] campaign.” Ickes, Secret Diary, 478.

13 The bylaws committee recommended payment of a sum determined by the membership. The monetary formula was set at the 1942 meeting. The AP board of directors was not satisfied with the simple majority vote to override the protest rights recommended by the bylaws committee and suggested dropping the four-fifths vote required since AP's founding to a two-thirds vote. The bylaws committee prevailed on the vote requirement. See “Text of AP Amendments Proposed by Committee,” Editor & Publisher, 18 April 1942, 76; “AP Members to Act on Changes in By-Laws at N.Y. Meeting,” ibid., 7. In February 1943, members again considered the monetary compensation to be paid by applicants seeking memberships in fields where protest rights were involved. A study had shown a dramatic difference between the 10 percent of the total assessment figure and that for three times the current assessment. In Chicago, for instance, 10 percent of the total assessment from 1900 for morning newspapers came to $334,250.46; the total for three times the current assessment was $416,631.90. Members voted to have new applicants pay only 10 percent of the total assessment since 1900. Walter E. Schneider, “AP Members Ratify Rule of 10% from Applicants,” Editor & Publisher, 13 Feb. 1943, 3.

14 Walter E. Schneider, “Liberalized Admission Rules Urged in AP By-Law Revision,” Editor & Publisher, 28 March 1942, 5. Knight, interestingly, saw the bylaw reform dealing with the election of the board of directors as the most important change enacted by the Associated Press. John S. Knight, letter to author, 12 June 1975. The board was virtually self-perpetuating: no limits existed on the number of terms a member could serve, and many of the earliest members of the Associated Press could cast weighted votes in the elections for directors, thus, perhaps, slowing reform.

15 Walter E. Schneider, “AP, Facing U.S. Suit, Drops Right Of Protest; Chicago Sun Barred,” Editor & Publisher, 25 April 1942, 9–10. Although 971 votes were east, only 650 members were present. The other votes were cast by proxies, which had been earnestly sought by both McCormick and Field. Eleanor Patterson was also excluded from membership.

Colonel McCormick, recalling the “Gestapo” tactics of the FBI in visiting newspaper offices prior to the membership meeting, noted after the vote that “some of the members were so apprehensive they asked the ballots be burned so they could not fall into the hands of the FBI.” Tebbel, An American Dynasty, 330.

16 Record, 23. The Associated Press's involvement in interstate commerce was established in a 1937 U.S. Supreme Court decision, Associated Press v. National Labor Relations Board, 301 U.S. 103(1937). This case involved the right of an Associated Press employee to orgaize for the American Newspaper Guild. One of the arguments used by the AP was that the employee's activities overrode the impartiality necessary for a journalist. Justice Owen Roberts ignored that contention and issued a ruling that placed the business operations of the press within the scrutiny of federal courts: “The Associated Press is engaged in interstate commerce within the definition of the statute and meaning of Article I, §8 [the Commerce Clause] of the Constitution.” To set the groundwork for later litigation involving the business aspects of the news agency, he added, “The business of the Associated Press is not immune form regulation because it is an agency of the press.” 301 U.S. 103, 128, 132. The government used this supervisory role of the media's business operations in the antitrust suit as it attempted to become the protector of First Amendment rights from those within the press community who would abuse them.

Press comment against the suit was naturally hostile. See “Associated Press Members Comment on U.S. Suit,” Editor & Publisher, 21 Nov. 1942, section two, API–40.

17 Record, 7–10.

18 Ibid., 10, 22, 36. Among the AP claims used by the government were: that the AP spent more money on its operations around the world than the other news agencies; that its membership of “persons representing every shade of economic, political, and religious opinion and every section of the country” was an asset in guaranteeing news without any political or sectional bias”; and that a great reservoir of goodwill had been built up by the Associated Press and its performance standards. Record, 18.

One way around existing protest rights was to purchase an AP membership from a newspaper that had gone out of business or that was not using the membership. Transfer prices, as indicated in the suit, were very high. Field had offered $250,000 to Hearst's Herald-American for its morning AP franchise. Hearst refused the offer, claiming that the membership was needed for his Sunday edition. Tebbel, An American Dynasty, 327. Many AP members carried their memberships on their corporate ledgers as assets of equally high value. So dominant was the Associated Press in the morning newspaper field that the Justice Department found that every morning newspaper with a circulation of 25,000 or more had access to AP service–except the Chicago Sun. Record, 19.

19 Walter E. Schneider, “AP Directors Meet to Plan Fight on U.S. Charge of Monopoly,” Editor & Publisher, 5 Sept. 1942, 3; “AP Will Fight Suit as Baseless in Fact–M'Lean,” ibid., 4. All eighteen members of the board and their newspapers were named as specific defendants in the suit. See “List of AP Board Members, Papers Named in Suit,” ibid., 33. All other members of the Associated Press were named as defendants as a class.

20 “A Statement by Marshall Field,” Editor & Publisher, 5 Sept. 1912, 18. An abbreviated version of the statement was carried as a news story. The condensation omitted Field's call for conversion of the news association into a common carrier, although it did cite Field's belief that news should be treated as a public utility to allow “men of moderate capital to embark upon the publication of newspapers without being choked to death at the outset by a monopolistic discrimination.” “Field Sees Great Stroke for Free Press in Suit,” ibid., 4; Tebbel, An American Dynasty, 331.

21 Tebbel, An American Dynasty, 331–32; “Says AP Board Defied Criminal Suit, “Editor & Publisher, 5 Sept, 1942, 5. Newspaper attitudes toward the government then reflected those of the business community, which was concerned about government intervention for the public good. Noted one commentator, “At [newspaper] trade association meetings, the good John Barleycorn gave way to the New Deal as the leading cause of hangovers, and the agents and provocateurs of special privilege who infested these meetings helped the publishers return home after each gathering with an aggravated sense of political and economic insecurity. “Gerald, The Press and the Constitution. 108 (emphasis included). McCormick's view of government intervention was shown in a series of newspaper articles that began running in the Tribune in January 1943. Written by William Fulton, the first article was headlined “Trace Attitude of New Dealers Toward Press: AP Suit Climax to Long Harassment.” Chicago Tribune, 11 Jan. 1943, 1, 10.

22 “Press Urges AP Suit Be Dropped by U.S. until War Has Ended,” Editor & Publisher, 31 Oct. 1942, 7, 35.

23 New York Times, 30 Aug. 1942, 42; Congressional Record, 77th Cong., 2d sess., 1942, 88, pt. 7: 8505.

24 New York Times, 27 Oct. 1942, 27; ibid., 10 Nov. 1942, 23. Attorney General Biddle came under increasing fire for not suspending the suit. Such criticism may have peaked in 1943 when he announced that the Department of Justice had postponed the trial of twenty-four antitrust cases and the investigation of two more for the duration of the war. See U.S. Department of Justice, Annual Report of the Attorney General of the United States—1943 (Washington, D.C., 1943), 14–15;Google Scholar New York Times, 28 Oct. 1942, 17.

25 Record, 116–17, 129–30. Use of the Chicago Daily News printing plant came via a bargain struck with Frank Knox, a Republican who was serving Roosevelt as Secretary of the Navy. John S. Knight bought the Daily News from Knox's estate in 1944 and continued (he printing agreement. In 1947, Field bought the Chicago Times—and its printing plant. Such a purchase had been suggested when Field first considered entering the Chicago market and, had he followed this suggestion, the Associated Press antitrust case might have been avoided. For a few months in late 1947 and early 1948, Field issued a tabloid edition of the Sun in the morning and of the Times in the afternoon. In March 1948, he combined the two into a tabloid morning newspaper, the Sun-Times. In 1959, after Field's death, Field Enterprises purchased the Chicago Daily News. See Becker, Marshall Field, 263–324.

26 Record, 120–21. The Associated Press had fought for the recognition of property rights in news when it challenged the right of International News Service to sell AP news under the INS logo in 1918. The U.S. Supreme Court found sufficient property value in news to stop INS from pirating AP copy. International News Service v. Associated Press, 248 U.S. 215 (1918). Justice Louis D. Brandeis dissented from that opinion, opening the way for development of the argument that news-gathering agencies might be clothed with a public interest that required them to serve all potential customers. A property right such as that sought by the Associated Press might exist, Brandeis suggested, if “under certain circumstances news-gathering is a business affected with a public interest.” News might be protected from appropriation “only if the gatherer assumed the obligation of supplying it, at reasonable rates and without discrimination, to all papers which applied therefor.” 248 U.S. at 267.

27 For the role of the colonel's ancestor, Joseph Medill, in the development of the Associated Press of Illinois, see Gramling, AP, 60–63.

28 283 U.S. 697 (1931); see Blanchard, Margaret A., “Freedom of the Press and the Newspaper Code,” Journalism Quarterly 54 (Spring 1977): 40–49CrossRefGoogle Scholar; Record, 135.

29 Record, 138, 140–41. McCormick enjoyed drawing parallels between contemporary journalistic problems and difficulties encountered by the press in history. In fact, he wrote a book on the subject, The Freedom of the Press (New York, 1936)Google Scholar, in which he traced the evolution of that freedom from English experience. McCormick commented on items excluded from freedom of the press, such as fraud and libel, and added, “Nor does freedom of the press excuse restraint of trade, as shown by the verdicts of guilty against Wallace's Farmer and others.” McCormick, Freedom of the Press, 2. The case referred to, Indiana Farmer's Guide Publishing Co. v. Prairie Farmer Publishing Co., 293 U.S. 268 (1934), was widely cited during the Associated Press litigation as establishing precedent for holding journalistic enterprises subject to antitrust laws.

30 “AP Members Form Body to Fight Suit's Threat to Small Papers,” Editor & Publisher, 5 Dec. 1942, 5.

31 New York Times, 4 Dec. 1942, 27; ibid., 21 Dec. 1942, 20; Congressional Record, 77th Cong., 2d sess., 88, pt. 7: 9443, 9445. One group supporting the government's suit, according to Editor & Publisher, was the “ultra-liberal” National Lawyers Guild. See “Lawyers Guild Backs U.S. in AP Suit,” Editor & Publisher, 5 Dec. 1942, 5. The American Civil Liberties Union declined to enter the ease because the group saw no civil liberties issue involved. New York Times, 9 July 1943, 12.

32 New York Times, 10 Jan. 1943, 36; “Expediting Court Named for Trial of AP Suit,” Editor & Publisher, 16 Jan. 1943, 7.

33 Congressional Record, 78th Cong., 1st sess., 89, pt. 1: 305, 362, 997.

34 “More Legal Moves by U.S. Delay Start of AP Trial,” Editor & Publisher, 30 Jan. 1943, 5. Some queries raised interesting points. The government, for instanee, asked McCormick about his actions prior to the initial vote on Field's application and disecovered that McCormick's representatives were trying to obtain proxies against Field's application at the same time that the FBI was trying to find out what the colonel was doing to keep Field out of the AP. The responses also revealed that AP members received at least two proxy requests from McCormick because so many proxy forms were being distributed by various individuals that members were signing multiple forms, thus negating the form's value. Record, 490–551. For his part, McCormick tried to determine whether Field had requested Justice Department assistance befor or after his application for membership was rejected. Record, 80–86.

35 Walter E. Schneider, “Settlement of AP Case Hinted as Suit Moves Toward Trial,” Editor & Publisher, 8 May 1943, 7.

36 Walter E. Schneider, “U.S. Seeks Summary Judgment in Anti-Trust Suit Against AP,” Editor & Publisher, 29 May 1943, 5.

37 Record, 955–74. The Department of Justice also wanted the exclusive news-sharing pact between the Associated Press and its Canadian counterpart, the Canadian Press, declared illegal because its provisions kept non-AP members from obtaining news of Canada.

38 Record, 1415–1858, 1299–1314.

39 See Walter E. Schneider, “3-Judge Court Hears Opening Argument in Suit Against AP,” Editor & Publisher, 10 July 1943, 5, 48, 50; United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943).

40 Hand's comments have been termed “radical” by the authors of a leading mass media law textbook. For the first time, official voice was being given to the idea that “the real addressees of the First Amendment protection may not be the newspaper industry but the American public and its stake in as free a flow of information as possible,” Gillmor, Donald M. and Barron, Jerome A., Mass Communication Law: Cases & Comment, 4th ed. (St. Paul, Minn., 1984), 640Google Scholar. Although the comments may have been radical for legal decisions, the idea that the federal government should intervene in press operations to ensure a full and free flow of information to the public had been gaining increasing popularity with critics of media performance throughout the 1930s. The AP antitrust suit simply gave the judicial community an opportunity to put some of the critics' theories into action. For an overview of critics' suggestions, see Blanchard, “Press Criticism and National Reform Movements”; 52 F. Supp., at 374, 370.

41 52 F. Supp., at 375, 377.

42 For the Department of Justice's proposed judgment in the suit, see “Full Text of Proposed Judgment in AP Suit,” Editor & Publisher, 20 Nov. 1943, 10. The suggested judgment required the abolition of consideration of competitive potential when membership applications were voted on. The Justice Department also asked the court to retain jurisdiction to ensure that the bylaw changes were enacted and followed. Elisha Hanson, “Says AP Ruling Will Lead to Regulation of the Press,” Editor & Publisher, 13 Nov. 1943, 8; “Says AP Decision Will Affect Newspapers Value,” ibid., 27 Nov. 1943, 8.

43 Record, 2630–34. The Associated Press had submitted a proposed judgment as well. Its proposal was longer than that of the Justice Department and dealt with the agency's perception of certain facts–among them that some newspapers had been founded and prospered without AP service and that, although the Associated Press served 81 percent of the daily morning newspapers with 96 percent of the circulation, the United Press was used by 40 percent of the morning papers with 64 percent of the circulation. Both items apparently sought to dispell the notion of AP indispensability to a successful newspaper operation. See “AP Submits Judgment Proposal to Court in Anti-trust Suit,” Editor & Publisher, 8 Jan. 1944, 5–6, 40, 42, 44.

44 Record, 2629.

45 “AP to Appeal Summary Judgment to High Court,” Editor & Publisher, 22 Jan. 1944, 5; “Col. McCormick's Statement,” ibid., 5.

46 Brief for the Associated Press, 109; Brief of the American Newspaper Publishers Association as amicus curiae; George A. Brandenburg, “AP Members Vote to Fight Federal Control of News,” Editor & Publisher, 29 April 1944, 13–14. During these years, the major editors' organization, the American Society of Newspaper Editors (ASNE), formally discussed the ease only once. In 1943, the ASNE passed a resolution saying members were “unalterably opposed to efforts to bring news-gathering organizations “under power of Congress to regulate commerce.” Problems of Journalism, Proceedings of the American Society of Newspaper Editors, 1943, 48–52. No action was taken on the resolution. The years surrounding the AP case were filled with ASNE efforts to promote worldwide freedom of information, giving rise to speculation that the editors did not see the antitrust action as a threat to freedom of information at home. See Blanchard, Margaret A., Exporting the First Amendment: The Press-Government Crusade of 1945–1952 (New York, 1986)Google Scholar.

47 For oral arguments, see Butler, James J., “Questions from Bench Enliven Debate on AP,” Editor & Publisher, 9 Dec. 1944, 9, 60Google Scholar; “Cahill States the Case,” ibid., 9. The oral arguments apparently led the news service to expect a favorable decision. This assessment was based on the tenor of questioning from the bench and on what observers perceived to be a division of opinion among the justices. Robert U. Brown, “Shop Talk at Thirty,” ibid., 80; “Supreme Court Rules Against the AP, 5–3,“ ibid., 23 June 1945, 5, 50. Parties to the suit voiced some concern immediately after the oral arguments that the Supreme Court would send the case back to the lower court to be tried on its merits. Both the Department of Justice and the Associated Press asked that the Court not take such action. “Supreme Court Asked to Rule on AP Issues,” ibid., 23 Dec. 1944, 61.

48 326 U.S. 1, 7.

49 Ibid., at 20.

50 Ibid., at 24.

51 Ibid., at 28–29.

52 Ibid., at 46.

53 Ibid., at 59.

54 The legal community also was confused by both court rulings. A sampling of law review articles on the subject reveals both praise for holding that the Associated Press was violating antitrust law and derision for the invention of new antitrust doctrine. See Notes, “News Dissemination and Restraint of Trade,” Illinois Law Review 38 (Nov.–Dec. 1943): 221–25Google Scholar; Notes, “United States v. Associated Press,” University of Pennsylvania Law Review 92 (Dec. 1943): 209–10CrossRefGoogle Scholar; Recent Decisions, “Anti-Trust–Exclusion from Membership Corporation for Competitive Reasons Violative of Sherman Act, Columbia Law Review 44 (March 1944): 256–62CrossRefGoogle Scholar; Recent Cases, “Monopolies and Combinations—Sherman Anti-Trust Act—Enforcement of Restrictive By-Laws by Large Press Association Held to be a Violation of the Sherman Act,” Loyola Law Review 2 (June 1944): 192–94Google Scholar; Small, Benjamin F., “Anti-Trust Laws and Public Callings: The Associated Press Case,” North Carolina Law Review 23 (Dec. 1944): 1–24Google Scholar; Recent Decisions, “Sherman Anti-Trust Act. By-Laws of Cooperative Imposing Conditions on Admission to Membership as Effecting Restraint of Trade,” Virginia Law Review 31 (Spring 1945): 954–59CrossRefGoogle Scholar; Notes and Comments, “The Associated Press Case,” Indiana Law Journal 21 (Jan. 1946): 221–23Google Scholar; Notes, “Press Associations and Restraint of Trade,” Yale Law Review 55 (Feb. 1946): 428–39CrossRefGoogle Scholar; Recent Decisions, Michigan Law Review 44 (Fall 1946): 677–80CrossRefGoogle Scholar; Comments, “Monopoly-Restraint of Trade,” Iowa Law Review 31 (March 1946): 432–36Google Scholar; Editorial Notes. “The Sherman Act and News Cathering Agencies,” George Washington University Law Review 14 (April 1946): 461–79Google Scholar; Lewin, John Henry, “The Associated Press Decision—An Extension of the Sherman Act?” University of Chicago Law Review 13 (April 1946): 247–65CrossRefGoogle Scholar; Comment, Howard Ellis, “Paradoxes of the Associated Press Decision—A Reply,” Ibid. (June 1946): 471–76.

55 “Special Meeting of the Board Is Called,” Editor & Publisher, 23 June 1945, 5, 73. The AP board maintained that the ruling was confusing and impossible to implement. Part of this confusion stemmed from the order to rewrite the membership application bylaws. The AP was told to do this, but the news agency was not told what language the Court would find acceptable. “‘We Must Go to Congress’ Says Colonel McCormick,” Editor & Publisher, 23 June 1945, 6. McCormick was not the only journalist seeking congressional relief from judicial intrusion. David Lawrence of United States News, another conservative fearful of government influence on the press, told members of the American Society of Newspaper Editors in 1944 that the First Amendment had become outdated. Since court decisions had brought the business of journalism under the jurisdiction of the commerce clause of the Constitution, “all publishing enterprises are subject to the antitrust laws, the minimum wage and maximum hours laws, and to all other statutes relating to collective bargaining or other labor union activities.” To remove the press from such supervision, Lawrence proposed a new constitutional amendment: “The grant, sale or lease of any facilities, licenses or privileges by the United States to the press, to radio broadcasting, to television, or to any other medium of public expression shall not vest in the Congress or in any executive agency or in the several States the power to limit, restrict or regulate the contents of any printed publication, radio program, or creative work emanating from any medium of public expression except as any of these media may offend against the common law governing fraud, obscenity or libel, or except as acts of treason are committed and punishable under Article III, Section 3.” Problems in Journalism, Proceedings of the American Society of Newspaper Editors, 1944, 80, 93; “‘Real Freedom Is Won’ Says Marshall Field,” Editor & Publisher, 23 June 1945, 7.

56 “AP Explores Every Avenue of Relief from Court Rule, “ Editor & Publisher, 30 June 1945, 5, 63.

57 “Text of Associated Press Petition to Supreme Court, “ Editor & Publisher, 8 Sept. 1945, 71; “AP Contends Court Order Harms Small Newspapers,“ Ibid., 7; Associated Press v. United States, 326 U.S. 802 (1945); “AP Takes Steps to Comply with Court Edict, “ Editor & Publisher, 13 Oct. 1945, 7.

58 “McCormick Proposes AP Petition to Congress,” Editor & Publisher, 24 Nov. 1945, 16; Congressional Record, 79th Cong., 1st sess., 91. pt. 8: 10673. The language simply amended the Sherman Act to exempt “the activities and operations of mutual news-gathering cooperatives.” Digest of Public Bills, 79th Cong., lst sess. (Washington, D.C., 1946), 282Google Scholar.

59 Robert Lasch, letter to author, 1 June 1975. Lasch was chief editorial writer for Field's Chicago Sun. Mason, a member of the House since 1937, served the twelfth congressional district of Illinois. Although an actual connection between the two is difficult to find, Mason and McCormick were, at the least, philosophical soulmates. Mason's maiden speech on the floor of the House attacked President Roosevelt's plan to add justices to the Supreme Court. The Illinois representative opposed the New Deal, lend-lease, membership in the United Nations, and foreign aid. His obituary termed him a “long-time crusader for the conservative cause.” New York Times, 30 March 1965, 39. For a complete text of H.R. 6301, see Hearings before the House Subcommittee II on the Judiciary, To Amend Antitrust Laws Relative to Exempting Mutual News Gathering Agencies, 79th Cong., 2d sess., 1946, 2.

60 “Field's Letter on Application,” Editor & Publisher, 1 Dec. 1945, 68; “McCormick Statement on Seconding Motion,” Ibid., 68. For a fuller discussion of the membership meeting, see Jerry Walker, “Field Gets Associate Status As AP Votes New By-Laws,” Ibid., 7–8; “Report of AP Directors to Special Meeting,” ibid. 70, 72. For the new bylaws, see “Text of New AP By-Laws Ratified by Membership,” Ibid., 66–68.

61 Walker, “Field Gets Associate Status As AP Votes New By-Laws,” 8.

62 “Lifting of AP Injunction Is Under Study,” Editor & Publisher, 22 Dec. 1945, 16; Jerry Walker, “AP Members Explore Asset Loss for Tax Deductions,” Ibid., 15 Dec. 1945, 7, 92. The trade journal suggested proceeding carefully because the IRS was likely to question such deductions. No follow-up stories appeared on this topic, so whether newspapers tried taking this tax deduction and how successful they were are unknown. “Court Orders ‘Stay’ in AP Injunction,” Ibid., 2 Feb. 1946, 16.

63 Congressional Record, 79th Cong., 2d sess., 92, pt. 2: 1789.

64 “McCormick Asks AP to Petition Congress,” Editor & Publisher, 6 April 1946, 62; S. J. Monchak, “AP Members Hear Cooper in ‘News Exchange’ Plea,” Ibid., 27 April 1946, 13, 148. Members were told, for example, that the AP had spent almost $475,000 thus far to fight the antitrust action. S. J. Monehak, “McCormick Resolution Backed by Publishers,” Ibid., 12.

65 Monchak, “McCormick Resolution,” 12; Robert McLean, letter to author, 8 Aug. 1975.

66 New York Times, 23 April 1946. 16. The Times said that Knight's motion was defeated 45–117. Editor & Publisher reported that the motion was tabled. Monchak, “McCormick Resolution,” 12; Mark Ethridge, interview with author, Moncure, N.C., 29 May 1975.

67 Monchak, “McCormick Resolution” 12; Digest of Public Bills, 79th Cong., 2nd sess. (Washington, D.C., 1946), 92Google Scholar.

68 Hearings of the House Subcommittee II on the Judiciary. To Amend Antitrust Laws Relative to Exempting Mutual News Gathering Agencies, 79th Cong., 2d sess., 1946, 4, 7 [hereafter cited as House Hearings 1946]. The news story carried by the New York Times on the first hearing session was headlined “AP Asks Freedom from Trust Law,” New York Times, 24 May 1946, 17. Ethridge's fears about the public being unable to seperate the total Associated Press from the small group of members seeking the legislation apparently extended to insiders in the news business as well.

69 House Hearings 1946, 13, 16.

70 Ibid., 20.

71 Ibid., 22–23. Noah Mason credited Dear with providing the initial inspiration for his legislation. The source was an editorial that Dear wrote on 23 October 1945, about two weeks after the Supreme Court rejected the AP's petition for a rehearing and about a month before the Associated Press membership meeting to change the group‘s bylaws. The editorial, first introduced into the record by Senator Albert W. Hawkes, Republican of New Jersey, called for congressional action to protect news-gathering agencies from antitrust interference. See Congressional Record, 79th Cong., 1st sess., 91, pt. 13; A4701–2.

Some of the confusion over government requirements for publication and use of the press as a propaganda vehicle may have come from a battle that the Associated Press and United Press were fighting about the same time with the U.S. State Department, which was attempting to establish a peacetime government information service. The Associated Press and United Press refused to participate in the program, fearing the taint of propaganda and government intervention in the news selection process. See Blanchard, Exporting the First Amendment, 99–154.

72 Blanchard, Exporting the First Amendment, 27, 29.

73 Congressional Record, 80th Cong., 1st sess., 93, pt. 1: 44; “Publisher Group Meets April 21 on Mason Bill,” Editor & Publisher, 19 April 1947, 28; Jerry Walker, “Anti-Trust Exemption Urged for Exclusivity,” Ibid., 26 April 1947, 12, 97. The News Publishers Association picked up some formal recognition from the American Newspaper Publishers Association (ANPA), when the ANPA Federal Laws Committee told members how to join the News Publishers Association. “800 Newspapers Favor Mason Bill,” Ibid., 48.

74 Hearings before the House Subcommittee II on the Judiciary, To Amend the Antitrust Laws Relative to News-Gathering Agencies, 80th Cong., 1st sess., 4, 17.

75 Ibid., 17–27.

76 Ibid., 29–35.

77 Ibid., 37–42.

78 Ibid., 43–47.

79 Ibid., 49–60.

80 Ibid., 62–68. Chafee had tried writing a letter to the editor about the initial antitrust suit in 1943. After his letter was refused by the New York Times, New York Herald Tribune, and Washington Post, it was published in the Providence Journal. Some opponents of the Associated Press membership provisions contended that Chafee's letters usually were prized by newspapers; the difficulties encountered in publishing this particular letter rested in its content. In the letter, Chafee took no stand on the suit itself, commenting instead on “the unsoundness of the prevailing opinion that liberty of the press will be promoted by the retention of the present barriers against the admission of new members to the AP. On the contrary, it is these by-laws which abridge liberty of the press.” See Becker, Marshall Field, 307.

81 “Mason Bill Opposed,” Editor & Publisher, 17 May 1947, 9. The vote was three to one, with two members absent. “The Mason Bill, Editor & Publisher, 28 June 1947, 42. The trade journal denounced the chair of the House Judiciary Committee because he “opposes the Mason Bill, [and] has refused to bring the bill to a vote.” This was an interesting change in view, for Earl Michener, Republican of Michigan, the Judiciary Committee chair, was the first House member to condemn the bringing of the antitrust suit from the House floor in 1942.

82 Ethridge, interview with author, 29 May 1975.

83 Lasch, letter to author, 1 June 1975.

84 Ethridge, interview with author, 29 May 1975. This involved the enactment of the Newspaper Preservation Act in 1970, 15 U.S.C. 1801–1804, to overturn the Supreme Court decision in Citizen's Publishing Co. v. United States, 394 U.S. 131 (1969).

85 Attorney General Biddle said that he left office “well satisfied that I had had a hand in removing from the otherwise free American press—the greatest press in the world—this impediment to its most complete, democratic effectiveness. Biddle, In Brief Authority, 280.

86 McLean, letter to author, 8 Aug. 1975.

87 Commission on Freedom of the Press, A Free and Responsible Press (Chicago, 1947), 80Google Scholar. For a discussion of the Hutchins Report and other contemporaneous criticism of the press, see Margaret A. Blanchard, “The Hutchins Commission, the Press and the Responsibility Concept.” Journalism Monographs graphs, May 1977. About the same time. United States diplomats were arguing for the American concept of freedom of the press before various United Nations bodies, including a special international conference on freedom of information concerns in Geneva, Switzerland. One of the primary arguments focused on the financial status of American journalism and on the way in which certain conservative publishers controlled the American press system. See Blanchard, Exporting the First Amendment.

88 In late 1947, McCormick notified the committee nominating persons for election to the Associated Press board of directors that he did not wish to stand for re-election. He was renominated anyway but withdrew his name from consideration prior to the 1948 membership meeting. See “McCormick Is Not Candidate for Reelection, Editor & Publisher, 11 Oct. 1947, 38; “AP Reelects McLean; Knight Goes on Board,” Ibid., 24 April 1948, 13.