Times-Picayune Publishing Co. v. United States
Opinion of the Court
delivered the opinion of the Court.
At issue is the legality under the Sherman Act of the Times-Picayune Publishing Company’s contracts for the sale of newspaper classified and general display advertising space. The Company in New Orleans owns and publishes the morning Times-Picayune and the evening States. Buyers of space for general display and classified
Testimony in a voluminous record retraces a history of over twenty-five years.
The Times-Picayune Publishing Company distributes the leading newspaper in the area, the Times-Picayune. The 1933 acquisition of the States did not include its plant and other physical assets; since the States’ absorption the Publishing Company has utilized facilities at a single plant for printing and distributing the Times-Picayune and the States. Unified financial, purchasing, and sales administration, in addition to a substantial
Each of these New Orleans publications sells advertising in various forms. Three principal classes of advertising space are sold: classified, general, and local display. Classified advertising, known as “want ads,” includes individual'insertions under various headings; general, also called national, advertising typically comprises displays by national manufacturers or wholesale distributors of brand-name goods; local, or retail, display generally publicizes bargains by local merchants selling directly to the public. From 1924 until the Morning Tribune’s demise in 1941, the Item Company sold classified advertising space solely on the unit plan by which advertisers paid a single rate for identical insertions appearing in both the morning and evening papers and could not purchase space in either alone. After the Times-Picayune Publishing Company acquired the States in 1933, it offered general advertisers an optional plan by which space combined in both publications could be bought for less than the sum of the separate rates for each. Two years later it adopted the unit plan of its competitor, the Item Co., Ltd., in selling space for classified ads. General advertisers in the Publishing Company’s newspapers were also availed volume discounts since 1940, but had to combine insertions in both publications in order to qualify for the substantial discounts on purchases of more than 10,000 lines per year. Local display ads as early as 1935 were marketed under a still effective volume
After the District Court at the outset denied the Government’s motion for partial summary judgment holding the unit contracts per se violations of § 1, the case went to trial and eventuated in comprehensive and detailed findings of fact:
On the basis of these findings, the District Judge held the unit contracts in violation of the Sherman Act. The contracts were viewed as tying arrangements which the Publishing Company because of the Times-Picayune’s “monopoly position” could force upon advertisers.
Injunctive relief was accordingly decreed. The District Court enjoined the Times-Picayune Publishing Company from (A) selling advertising space in any newspaper published by it “upon the condition, expressed or implied, that the purchaser of such space will contract for
The daily newspaper, though essential to the effective functioning of our political system, has in recent years suffered drastic economic decline. A vigorous and dauntless press is a chief source feeding the flow of democratic expression and controversy which maintains the institutions of a free society. Associated Press v. United States, 326 U. S. 1, 20 (1945); cf. Wieman v. Updegraff, 344 U. S. 183, 191 (1952); Burstyn, Inc. v. Wilson, 343 U. S. 495, 501 (1952). By interpreting to the citizen the policies of his government and vigilantly scrutinizing the official conduct of those who administer the state, an independent press stimulates free discussion and focuses public opinion on issues and officials as a potent check on arbitrary action or abuse. Cf. Grosjean v. American Press Co., 297 U. S. 233, 250 (1936); Near v. Minnesota, 283 U. S. 697, 716-718 (1931). The press, in fact, “serves one of the most vital of all general interests: the dissemination of news from as many different sources, and with
With its decision in International Salt Co. v. United States, 332 U. S. 392 (1947), this Court wove the strands of past cases into the law’s present pattern. There leases of patented machines for dispensing industrial salt were conditioned on the lessees’ purchase of the lessor’s salt. A unanimous Court affirmed summary judgment adjudicating the arrangement unlawful under § 3 of the Clayton Act and § 1 of the Sherman Act as well. The patents on their face conferred monopolistic, albeit lawful, market control, and the volume of salt affected by the tying practice was not “insignificant or insubstantial.” Id., at 396. Clayton Act violation followed as a matter of course from the doctrines evolved in prior “tying” cases. See also Standard Oil Co. of California v. United States, 337 U. S. 293, 304-306, 305, nn. 7-8. And since the Court deemed it “unreasonable, per se, to foreclose competitors from any substantial market,” neither could the tying arrangement survive § 1 of the Sherman Act. 332 U. S., at 396. That principle underpinned the decisions in the Movie cases, holding unlawful the “block-booking” of copyrighted films by lessors, United States v. Paramount Pictures, 334 U. S. 131, 156-159 (1948), as well as a buyer’s wielding of lawful monopoly power in one market to coerce concessions that handicapped competition facing him in another. United States v. Griffith, 334 U. S. 100, 106-108 (1948). From the “tying” cases a perceptible pattern of illegality emerges: When the seller enjoys a monopolistic position in the market for the “tying” product, or if a substantial volume of commerce in the “tied” product is restrained, a tying arrangement violates the narrower standards expressed in § 3 of
In this case, the rule of International Salt can apply only if both its ingredients are met. The Government at the outset elected to proceed not under the Clayton but the Sherman Act.
Once granted that the volume of commerce affected was not “insignificant or insubstantial,”
The “market,” as most concepts in law or economics, cannot be measured by metes and bounds. Nor does the substance of Sherman Act violations typically depend on so flexible a guide. Section 2 outlaws monopolization of any “appreciable part” of interstate commerce, and by § 1 unreasonable restraints are banned irrespective of the amount of commerce involved. Lorain Journal v. United States, supra, at 151, n. 6; United States v. Paramount Pictures, supra, at 173; United States v. Yellow Cab Co., 332 U. S. 218, 225-226 (1947).
We do not think that the Times-Picayune occupied a “dominant” position in the newspaper advertising market in New Orleans. Unlike other “tying” cases where patents or copyrights supplied the requisite market control, any equivalent market “dominance” in this case must rest on comparative marketing data.
Yet another consideration vitiates the applicability of International Salt. The District Court determined that the Times-Picayune and the States were separate and distinct newspapers, though published under single ownership and control. But that readers consciously distinguished between these two publications does not necessarily imply that advertisers bought separate and distinct products when insertions were placed in the Times-Picayune and the States. So to conclude here would involve speculation that advertisers bought space motivated by considerations other than customer coverage; that their media selections, in effect, rested on generic qualities differentiating morning from evening readers in New Orleans. Although advertising space in the Times-Picayune, as the sole morning daily, was doubtless essential to blanket coverage of the local newspaper readership, nothing in the record suggests that advertisers viewed the city’s newspaper readers, morning or evening, as other than fungible customer potential.
The Publishing Company’s advertising contracts must thus be tested under the Sherman Act’s general prohibition on unreasonable restraints of trade. For purposes of § 1, “[a] restraint may be unreasonable either because a restraint otherwise reasonable is accompanied with a specific intent to accomplish a forbidden restraint or because it falls within the class of restraints that are illegal per se.” United States v. Columbia Steel Co., 334 U. S. 495, 522 (1948). Since the requisite intent is inferred whenever unlawful effects are found, United States v. Griffith, 334 U. S. 100, 105, 108 (1948); United States v. Patten, 226 U. S. 525, 543 (1913), and the rule of International Salt is out of the way, the contracts may yet be banned by § 1 if unreasonable restraint was either their object or effect. Although these unit contracts do not in
The record is replete with relevant statistical data. The volume discounts available to local display buyers were not held unlawful by the District Court, and the Government does not assail the practice here. That segment of advertising linage, by far the largest revenue producer of the three linage classes sold by all New Orleans newspapers,
Classified. — The Item Company, then publishing the Morning Tribune and the evening Item, utilized unit rates for classified advertising in its papers in the year the Times-Picayune Company absorbed the evening States. In 1933, the Item Company’s classified linage totaled 2.72 million, compared with the Times-Picayune Company’s total of 2.12 million.
At the end of that year the Item Company’s Morning Tribune suspended publication;
General Display. — Because the unit rate applicable to general display linage was instituted to become effective 1950, only one year’s comparative data are in the record. In 1949, general display linage in all New Orleans dailies
In that year, a reallocation of advertising accounts also took place.
The record’s factual data, in sum, do not demonstrate that the Publishing Company’s advertising contracts unduly handicapped its extant competitor, the Item. In the early years when four-cornered newspaper competition for classified linage prevailed in New Orleans, the ascendancy of the Publishing Company’s papers over their morning-evening competitor soon became manifest. With unit plan pitted on even terms against unit plan, over the years the local market pattern steadily evolved
Meanwhile the Item flourishes. The ten years preceding this trial marked its more than 75% growth in classified linage. Between 1946 and 1950 its general display volume increased almost 25%. The Item’s local display linage is twice the equivalent linage in the States.
The record in this case thus does not disclose evidence from which demonstrably deleterious effects on competition may be inferred. To be sure, economic statistics are easily susceptible to legerdemain, and only the organized context of all relevant factors can validly translate raw data into logical cause and effect. But we must take the record as we find it, and hack through the jungle as best we can. It may well be that any enhancement of the Times-Picayune’s market position during the period of the assailed arrangements resulted from better
While even otherwise reasonable trade arrangements must fall if conceived to achieve forbidden ends, legitimate business aims predominantly motivated the Publishing Company’s adoption of the unit plan. Because the antitrust laws strike equally at nascent and accom
Similarly, competitive business considerations apparently actuated the adoption of the unit rate for general display linage in 1950. At that time about 180 other publishers, the vast majority of morning-evening owners, had previously instituted similar unit plans. Doubtless, long-tolerated trade arrangements acquire no vested immunity under the Sherman Act; no prescriptive rights
Consequently, no Sherman Act violation has occurred unless the Publishing Company’s refusal to sell advertis
In. our view, however, no additional circumstances bring this case within § 1. Though operating two constituent newspapers, the Times-Picayune is a single corporation, and the Government in the District Court abandoned a charge of unlawful concert among the corporate officers.
An insufficient showing of specific intent vitiates this part of the Government’s case. While the completed offense of monopolization under § 2 demands only a general intent to do the act, “for no monopolist monopolizes unconscious of what he is doing,” a specific intent to destroy competition or build monopoly is essential to guilt for the mere attempt now charged. United States v. Aluminum Co. of America, 148 F. 2d 416, 431-432 (1945); United States v. Griffith, 334 U. S. 100, 105 (1948); American Tobacco Co. v. United States, 328 U. S. 781, 814 (1946); Swift & Co. v. United States, 196 U. S. 375, 396 (1905). This case does not demonstrate an attempt by a monopolist established in one area to nose into a second market, so that past monopolistic success both enhances the probability of future harm and supplies a motivation for further forays. Cf. United States v. Griffith, supra; Swift & Co. v. United States, supra.
We conclude, therefore, that this record does not establish the charged violations of § 1 and § 2 of the Sherman Act. We do not determine that unit advertising arrangements are lawful in other circumstances or in other proceedings. Our decision adjudicates solely
D , Reversed.
On Sundays the Times-Picayune Publishing Company also distributes the Times-Picayune-States. Under the existing unit plan, general display advertisers alternatively may insert in a combination of either daily paper with the Sunday paper. Additionally, the Company’s unit plan for classified advertising excludes some advertising, known as “over-the-river” classified, placed from a small local area. As neither the parties nor the District Court attached any significance to these exceptions to the challenged unit rates for general display and classified advertising space in the Publishing Company’s daily papers, we mention them solely for completeness.
“Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal: . . ..” 15 U. S. C. § 1.
“Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, . . . .” 15 U. S. C. § 2.
“The several district courts of the United States are invested with jurisdiction to prevent and restrain violations of [this Act]; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations. . . .” 15 U. S. C. § 4.
The complaint named as defendants the Times-Picayune Publishing Company and four of its officers. Two of these individuals remain as parties in these appeals, one died after the appeals were filed, and the District Court dismissed the complaint as to another. For convenience we refer to the former parties defendant as the “Times-Picayune Publishing Company” or “Publishing Company.”
105 F. Supp. 670 (D. C. E. D. La. 1952).
15 U. S. C. (Supp. V) § 29. Probable jurisdiction was noted on November 10, 1952.
The printed record here comprises 1,644 pages of testimony and exhibits of various degrees of pertinence to the issues.
See R. 1252-1261.
Fdg. 31; cf. 105 F. Supp., at 678.
In the light of this Court’s broad interpretations of those relevant concepts, it is now beyond dispute that the activities challenged in this case are sufficiently “trade or commerce” relating to the interstate economy to fall under the wide sweep of the Sherman Act. Cf., e. g., Lorain Journal v. United States, 342 U. S. 143 (1951); United States v. National Assn. of Real Estate Boards, 339 U. S. 485 (1950); Mandeville Island Farms v. American Crystal Sugar Co., 334 U. S. 219 (1948); United States v. Frankfort Distilleries, 324 U. S. 293 (1945); United States v. South-Eastern Underwriters Assn., 322 U. S. 533 (1944); Wickard v. Filburn, 317 U. S. 111 (1942); Indiana Farmer's Guide Pub. Co. v. Prairie Farmer Pub. Co., 293 U. S. 268 (1934).
Learned Hand, J., in United States v. Associated Press, 52 F. Supp. 362, 372 (D. C. S. D. N. Y. 1943), aff’d, 326 U. S. 1 (1945).
Editor & Publisher 1952 International Yearbook Number, p. 17; Comment, Local Monopoly in the Daily Newspaper Industry, 61 Yale L. J. 948, 949 (1952), a comprehensive industry study. See also Ray, Economic Forces as Factors in Daily Newspaper Concentration, 29 Journ. Q. 31 (1952); Ray, Competition in the Newspaper Industry, 15 J. Marketing 444 (1951); Nixon, Concentration and Absenteeism in Daily Newspaper Ownership, 22 Journ. Q. 97 (1945).
American Newspaper Publishers Association, Newspaper Mortality Since 1929 (Bulletin No. 5203, July 27, 1950). Demise of individual newspapers occurred mainly through merger with other publications or outright suspension of publication.
61 Yale L. J., at 950.
Id., at 977. Some small dailies also derive income from miscellaneous sources such as job printing. In this case the District Court found that advertising and circulation accounted for approximately 98% of New Orleans newspapers’ total revenues. Fdg. 27.
Mass Communications (Schramm ed. 1949), 549; Printers’ Ink, August 8, 1952, p. 35. And see Borden, Taylor and Hovde, National Advertising in Newspapers, 33 et seq. (1946).
Fdg. 26.
Comparison between Bulletin, note 14, supra, at tables 2 and 3, and Editor & Publisher International Yearbook Numbers 1929 to 1953.
See Miller, Unfair Competition, 199 et seq. (1941); Lockhart and Sacks, The Relevance of Economic Factors in Determining Whether Exclusive Arrangements Violate Section 3 of the Clayton Act, 65 Harv. L. Rev. 913, 942 et seq. (1952); Note, 49 Col. L. Rev. 241, 246 (1949); of. Edwards, Maintaining Competition, 175-178 (1949); Watkins, Public Regulation of Competitive Practices in Business Enterprise, 220 et seq. (1940).
“Unfair methods of competition in commerce . . . are hereby-declared unlawful.” 15 U. S. C. § 45. In the Gratz case, decided on a point of pleading, the Court observed that the “complaint contains no intimation that Warren, Jones & Gratz did not properly obtain their ties and bagging as merchants usually do; the amount controlled by them is not stated; nor is it alleged that they held a monopoly of either ties or bagging or had ability, purpose or intent to acquire one.” 253 U. S., at 428. “All question of monopoly or combination,” therefore, was “out of the way.” Ibid.
United States v. United Shoe Machinery Co., 247 U. S. 32 (1918), is not relied on by the parties.
“It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods, wares, merchandise, machinery, supplies, or other commodities, whether patented or unpatented, for use, consumption, or resale within the United States ... or fix a price charged therefor, or discount from, or rebate upon, such price, on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods, wares, merchandise, machinery, supplies, or other commodities of a competitor or competitors of the lessor
That section relates to simple exclusive dealing arrangements, cf., e. g., Standard Oil Co. of California v. United States, 337 U. S. 293 (1949), not involved in this case, as well as to tying sales. For purposes of the Clayton Act, the requisite condition not to deal in the goods of another may be inferred from the practical effects of the tying arrangement. International Business Machines Corp. v. United States, 298 U. S. 131, 135 (1936); Thomson Mfg. Co. v. Federal Trade Commission, 150 F. 2d 952, 956 (1945); Signode Steel Strapping Co. v. Federal Trade Commission, 132 F. 2d 48, 52 (1942); Lord v. Radio Corp. of America, 24 F. 2d 565, 568 (1928). Cf. Federal Trade Commission v. Sinclair Refining Co., 261 U. S. 463, 473-474 (1923).
Affirming, per curiam, 80 F. 2d 641 (1935).
See also Signode Steel Strapping Co. v. Federal Trade Commission, 132 F. 2d 48, 54 (1942); Thomson Mfg. Co. v. Federal Trade Commission, 150 F. 2d 952, 958 (1945).
Dealing with a monopolization offense under Sherman Act § 2, a charge not raised or considered here, the Court in United States v. Griffith, 334 U. S. 100, 106-108 (1948), pointedly observed: “Anyone who owns and operates the single theatre in a town, or who acquires the exclusive right to exhibit a film, has a monopoly in the popular sense. But he usually does not violate § 2 of the Sherman Act unless he has acquired or maintained his strategic position, or sought to expand his monopoly, or expanded it by means of those restraints of trade which are cognizable under § 1. . . . [T]he use of monopoly power, however lawfully acquired, to foreclose competition, to gain a competitive advantage, or to destroy a competitor, is unlawful. ... If monopoly power can be used to beget monopoly, the Act becomes a feeble instrument indeed.” See also Levi, A Two Level Anti-Monopoly Law, 47 Northwestern U. L. Rev. 567, 580-585 (1952).
On oral argument here, the Government explanatorily referred to an early informal Federal Trade Commission opinion to the effect that advertising space was not a “commodity” within the meaning
The District Court in this case did not find the volume of commerce affected by the restraint, but determined solely that a substantial percentage of advertising accounts in New Orleans papers was restrained by the Publishing Company’s unit plan. Fdg. 30; cf. Fdg. 22. In view of our disposition of this case we may assume, though not deciding, that the Sherman Act’s substantiality test was met.
See also United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 224, n. 59 (1940); Gamco, Inc. v. Providence Fruit & Produce Bldg., 194 F. 2d 484 (1952); White Bear Theatre Corp. v. State Theatre Corp., 129 F. 2d 600 (1942).
“A patent, . . . although in fact there may be many competing substitutes for the patented article, is at least prima facie evidence of [market] control.” Standard Oil Co. of California v. United States, 337 U. S. 293, 307 (1949). Cf. id., at 303; Oxford Varnish Corp. v. Ault & Wiborg Corp., 83 F. 2d 764, 766 (1936); Miller, Unfair Competition (1941), 199; Lockhart and Sacks, note 20, supra, at 943-944; Note, 49 Col. L. Rev. 241, 243 (1949).
For every product, substitutes exist. But a relevant market cannot meaningfully encompass that infinite range. The circle must be drawn narrowly to exclude any other product to which, within reasonable variations in price, only a limited number of buyers will turn; in technical terms, products whose “cross-elasticities of demand” are small. Useful to that determination is, among other things, the trade’s own characterization of the products involved. The advertising industry and its customers, for example, markedly differentiate between advertising in newspapers and in other mass media. See, e. g., Frey, Advertising (2d ed. 1953), cc. 12, 15; Duffy, Advertising Media and Markets (2d ed. 1951), cc. 3, 4; Hepner, Effective Advertising, c. 20 (1949); Borden, Taylor and Hovde, National Advertising in Newspapers, passim (1946); Sandage, Advertising Theory and Practice (3d ed. 1948), cc. XX, XXI.
See tables, notes 37 and 39, infra.
Cf., e. g., situations where several competitors together controlling a large share of the market acting individually or in concert adopt an identical trade practice. See Federal Trade Commission v. Motion Picture Advertising Service Co., 344 U. S. 392 (1953); Signode Steel Strapping Co. v. Federal Trade Commission, 132 F. 2d 48, 54 (1942). And, obviously, if a producer controlling an even
In fact, a survey (R. 1484) in 1940 disclosed that 27.6% of States home carrier subscribers subscribed to the Times-Picayune by home carrier as well.
In International Salt, the lessor’s tying arrangement permitted the lessee’s purchase of the “tied” product in the open market whenever the lessor declined to match the going market price. That, this Court thought, “does not avoid the stifling effect of the agreement on competition. The [lessor] had at all times a priority on the business at equal prices.” 332 U. S., at 397. And the “block-booking” found unlawful in the Paramount case did not, of course, impose any express restrictions on licensees desiring to acquire additional films elsewhere. In fact, by specifying that a particular amount of the “tied” product be taken and that amount covers the buyer’s total requirements, a tying arrangement may achieve a result equivalent to total exclusion of other sellers without the formality of expressly saying so. See also note 23, supra.
See 61 Yale L. J., at 977, n. 162; note 43, infra.
These and the following classified advertising data are derived from the table below (R. 1448):
This record contains no evidence explaining the Morning Tribune’s demise. We must therefore assume that the Times-Picayune Publishing Company’s challenged trade practices are in no way linked to the suspension of that competing daily newspaper.
All general display advertising data are derived from the table below (R. 1450):
Data are derived from tables and graphs at R. 1453-1456.
See table at note 39, supra.
Media Records, 11 (1950).
For the average daily newspaper of greater than 100,000 circulation, a 1951 industry survey revealed the following typical percentage sources of total revenues (Editor & Publisher, April 12, 1952, p. 74):
Local display. 37.24%
General display. 16.98%
Classified advertising.'. 14.60%
Circulation . 29.47%
A 3% decline in classified advertising, accounting for 14.6% of total revenues, and a 2% loss in general display, responsible for 16.98% of revenues, would amount to a total revenue loss of .78%. Compare Federal Trade Commission v. Morton Salt Co., 334 U. S. 37 (1948), where the composition of a buyer’s inventory necessitated protection against competitive harm in the purchasing of even a fractional part of his stock in trade. Id., at 49.
The record does, in fact, contain evidence demonstrating that the Times-Picayune Publishing Company’s milline rates (cost to advertisers of one agate line per million circulation) ranged roughly from $2.14 to $1.96, co'mpared to the Item’s corresponding rates from $2.96 to $2.58. R. 296, 1115. Moreover, though no inference necessarily flows from that fact, the Item changed ownership at least twice in the past twenty years.
R. 1127-1129. Cf. Borden, Taylor and Hovde, National Advertising in Newspapers, 461-462 (1946). Obviously, equivalent economies flow from voluntary unit insertions.
But cf. id., at 461-464; Nixon, Concentration and Absenteeism in Daily Newspaper Ownership, 22 Journ. Q. 97, 110-113 (1945), for advertisers' reactions to unit rates.
The Government places much emphasis on a memorandum prepared by the Publishing Company’s advertising representatives, referring to the Company's adoption of the unit plan as one way “to eliminate to a great extent the deleterious selling on the part of our evening contemporary which in the long run is not to the best interests of the manufacturer.” As pointed out by the District Court, however, the author of the memorandum explained that “in a number of cases . . . the advertising agencies favored the compulsory or unit rate, because once an agency had made its selection or its recommendation of media to the advertiser, the agency could resist any pressure brought to make a change in media by pointing to the unit rate as making such change impossible.” 105 F. Supp., at 675-676. That explanation accords with prevailing agency practices and attitudes. See Borden, Taylor and Hovde, National Advertising in Newspapers, 207-212 (1946).
See, generally, Comment, Refusals to Sell and Public Control of Competition, 58 Yale L. J. 1121 (1949).
And see United States v. Klearflax Linen Looms, 63 F. Supp. 32 (1945). “[I]f all the newspapers in a city, in order to monopolize the dissemination of news and advertising by eliminating a competing radio station, conspired to accept no advertisements from anyone who advertised over that station, they would violate §§ 1 and 2 of the Sherman Act. [Citing cases.] It is consistent with that result to hold here that a single newspaper, already enjoying a substantial monopoly in its area, violates the 'attempt to monopolize’ clause of § 2 when it uses its monopoly to destroy threatened competition.” Lorain Journal v. United States, 342 U. S. 143, 154 (1951).
Compare Timken Roller Bearing Co. v. United States, 341 U. S. 593, 598, 606 (1951); Nelson Radio & Supply Co. v. Motorola, 200 F. 2d 911, 914 (1952); United States v. Lorain Journal, 92 F. Supp. 794, 799-800 (1950).
Dissenting Opinion
with whom Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Minton join, dissenting.
The majority opinion seeks to avoid the effect of United States v. Griffith, 334 U. S. 100, and of International Salt Co. v. United States, 332 U. S. 392, by taking the position that the Times-Picayune does not enjoy a “dominant position” in the general newspaper advertising market of New Orleans, including all three papers, as a single market. The complaint, however, is not and need not be dependent upon the relation of the Times-Picayune to that entire market.
The complaint is that the Times-Picayune enjoys a distinct, conceded and complete monopoly of access to the morning newspaper readers in the New Orleans area and that it uses that monopoly to restrain unreasonably the competition between its evening newspaper, the New Orleans States, and the independent New Orleans Item, in the competitive field of evening newspaper advertising. Insistence by the Times-Picayune upon acceptance of its compulsory combination advertising contracts makes payment for, and publication of, classified and general advertising in its own evening paper an inescapable part of the price of access to the all-important columns of the single morning paper. I agree with the District Court that such conduct violates the Sherman Act under the circumstances here presented. See also, Fed. Rules Civ. Proc., 52 (a), “Findings of fact shall not be set aside, unless clearly erroneous . . .” and Lorain Journal Co. v. United States, 342 U. S. 143. In view of the disposition made of this case by the majority, it is not necessary to discuss the terms of the decree.
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