THE NEED FOR A GUARANTEED RIGHT OF ACCESS TI THE PRESS THROUGH ADVERTISING Thesis. for the flame of M . A. MICHIGAN STATE UNIVERSITY KENT RICHARDS. MIDDLETON 19:7 1. W23 Q 2 *3 M'Ihf‘ '1‘“ :l\(m"‘;wim1fl‘l # (bx-a ., . ‘ ’ 7 ' . ‘ n- V; _. ' M b. 1 . r ,3“ NJ ABSTRACT THE NEED FOR A GUARANTEED RIGHT OF ACCESS TO THE PRESS THROUGH ADVERTISING BY Kent Richards Middleton The First Amendment, which prohibits government interference with the press, was adopted in 1791, a time when newspapers were small and independent. Since that time, courts have interpreted the First Amendment to mean that publishers cannot be forced to print anything. This inter- pretation has been considered the best safeguard of a free press. Unlike early newspapers, modern media are frequently owned by large corporations and often are not competitive. It is not unusual for one corporation to publish all of the daily newspapers in a major American city. It has been argued that some points of View, perhaps unpOpular but still important to the community, cannot gain access to this press. Questions arise: do media conglomerates inhibit free speech, and, if so, should the First Amendment be re- interpreted to guarantee that all viewpoints in a community will find a public forum? If access to the media should Kent Richards Middleton be guaranteed by the government, how will the important press function of critic be protected from government con— trol? This thesis argues that there is an access problem in the press; that a guaranteed right of access to the press should be established; and that it can be done without im- pairing the editorial autonomy so important if the press is to be free to criticize a democratic government. This thesis argues that large, general circulation newspapers offer their advertising pages to the general public on a non- discriminatory,commercial basis, and should therefore be required to accept all lawful, paid, advertisements prof- fered to them. A partial solution based on market fairness, then, is proposed for a problem of free speech. Chapter I documents the nature of the access problem and reviews several proposed remedies--inc1uding a guaranteed right of reply, right to editorial space, as well as a right to advertising space--found in recent periodical literature. Chapter II reviews the major court cases involving newspaper advertising between the turn of the century and 1968. These cases, which are commercial for the most part, provide important legal background for the more recent First Amendment debate. During this period the courts refused to regulate newspapers as "public businesses" and refused to deal squarely with an increasingly prominent issue of abu- sive monopoly power. Kent Richards Middleton Professor Jerome Barron has analyzed court rulings which have expanded the public's First Amendment rights in broadcasting and in places of public gatherings. Barron uses these cases to argue by analogy for an expanded right of access to the press. His arguments, and judicial re- sponses to them, are presented in Chapter III. Chapter IV discusses the possibility of a statutory solution to the access problem, a solution which several courts have contended is necessary if newspapers are to be regulated at all. Antitrust statutes are rejected as un- workable, but a statute, requiring newspapers to accept all lawful advertisements, is recommended, providing it is general enough to leave the courts wide latitude in inter- pretation. Accepted by the faculty of the School of Journalism, College of Communication Arts, Michigan State University, in partial fulfillment of the requirements for the Master of Arts degree. QLKL/ TZMA41V¢4A7 ééjf Director of Thesis THE NEED FOR A GUARANTEED RIGHT OF ACCESS TO THE PRESS THROUGH ADVERTISING BY Kent Richards Middleton A THESIS Submitted to Michigan State University in partial fulfillment of the requirements for the degree of MASTER OF ARTS School of Journalism 1971 ACKNOWLEDGMENT S Thanks to Professor John Murray, who first make the author aware of the access issue during a graduate journalism class at Michigan State, and who, as thesis advisor, made several thoughtful suggestions on matters theoretical and mundane; to members of the staff of the American Civil Lib- erties Union in New York--A1an Reitman, associate director; Mrs. Beatrice Gelfand, staff associate; and Mrs. Carol Jennings, research librarian--for their ready willingness to discuss the access question and to search their files for information; to Fred S. Siebert, professor of communication at Michigan State, for reading the rough draft and making helpful suggestions; to Douglas Hoekstra, soon to be pro- fessor of urban politics in James Madison College at Michigan State, for several pointed questions that had to be answered; to Melissa Moog, for help in focusing issues and interpreting Turabian; and to Mrs. Paula Haughey, for the final printing. ii TABLE OF CONTENTS Chapter Page I. THE NEED FOR A GUARANTEED RIGHT TO BUY LE GAL ADVERT I S I NG O O O O O O O O O O O O O O 1 II. THE CONCEPT OF NEWSPAPERS AS "PUBLIC BUSINESSES" IN COMMERCIAL ADVERTISING CASES 0 O O O O O O O O O O O O O O I O O O O 29 III. LEGAL ANALOGUES FOR EXPANDED ACCESS, AND JUDICIAL RESPONSES . . . . . . . . . . . . . 58 IV 0 STATUTORY SOLUTION O O O O O O O O O O O O O O 90 APPENDIX . . . . . . . . . . . . . . . . . . . . . . . 101 BIBLIOGRAPHY O O O O O O O O O O O O O O O O O O O O O 105 iii CHAPTER I THE NEED FOR A GUARANTEED RIGHT TO BUY LEGAL ADVERTISING Commercial advertising, debates between political candidates, and adversary court procedures all attest to an American belief that from conflicting claims the average rational citizen can adequately determine the best product, the ablest leader and the guilty defendant. From diverse, often antagonistic views, in a free "market place of ideas," truth is believed to emerge. To insure that the American people would enjoy the free expression necessary for a healthy democracy the First Amendment to the U.S. Constitution was adopted in 1791, pro- hibiting the Congress from passing any law abridging free speech or press.1 Consistent with American laissez-faire 1The classical arguments for the value of free ex- pression are John Milton, Areopagitica: A Speech for the Liberty of Unlicensed Printing found in Areopagitica and of Education, and JEhn Stuart Mill, On Liberty (Baton Rouge: Thomas J. Moran's Sons). See also Justice Oliver Wendell Holmes' famous dissent in Abrams v. United States, 250 U.S. 616, 630 (1919). economics, the negative command of the First Amendment was considered the best safeguard for a free press at a time when newspapers were small and fragile enterprises.2 The economics of newspapers has changed markedly since 1791. "Newspapers in 97 per cent of the nation's 1,500 daily cities now enjoy a local 'monopoly,' and nearly half are owned by some group or national chain."3 Groups and chains control about 58 per cent of the total daily circu- lation and about 63 per cent of the Sunday circulation.4 With roughly 1,750 dailies in the United States, there are only about 45 cities with competing dailies.5 The cost is immense of entering the newspaper busi- ness on equal competitive terms with established papers. One estimate of the total cost for plant and equipment, not including land, for a newspaper of only 50,000 circulation, is $2.5-4.5 million.6 2Between 1690 and 1820, more than half of the Ameri- can papers expired before two years of existence. Charles S. Brigham, Histogytapd Bibliography of American Newspapers, 1690-1820, Vol. I’TWorcester, Mass.: American Antiquarian Society, 1947) p. xii. 3Raymond B. Nixon, "Trends in U.S. Newspaper Owner- ship: Concentration with Competition," Gazette, XIV (1968), 181. 4 5 Ibid., p. 191. Ibid., p. 184. 6Hearings before the Senate Subcommittee on Antitrust and Monopoly of the Committee on the Judiciary on S. 1312, The Failing Newspaper Act, 90th Cong., 1st sess., pt. 2, (1967), pp. 888-89. Estimates of costs for a newspaper with a circulation of 200,000 are $12-14 million; with a circula- tion of 500,000, $22—26 million. This growing consolidation of press ownership, indeed of all media ownership, has some advantages. Nixon writes that with the growth of circulation and the increased dependence of the press on advertising, the newspaper has lost much of its partisanship and has become a "general vehicle of infor- mation and opinion designed to serve all groups within its circulation area." Editors and publishers have become more aware of their "broad obligations to the public."7 Certainly modern newspapers are more objective and factual than during the days of the partisan post- Revolutionary press or at the end of the last century when the press was often sensational. Taking into account the number of national news magazines, specialized publications, radio and television, it is perhaps "clear that Americans have access to a larger and more diversified volume of mass communications than ever before."8 A wide variety of infor- mation is available for those who desire it. It remains that newspapers, however, with the pos- sible exception of the New York Times and Wall Street Journal are local, not national, in contrast to much of broadcasting. It is to a local newspaper, with its "natural monopoly," that a reader must turn "for detailed information about the place where he lives and works."9 # 7Nixon, "Trends in U.S. Newspaper Ownership," p. 183. 8 9 Ibid., p. 189. Ibid., p. 190. Nixon may be correct in stating that newspapers be- come less partisan because of their dependence on advertising, but a major danger in having a locality served by a single publishing company is that newspapers depend so very heavily on local advertising.10 Newspapers are therefore susceptible to the prejudices and pressures of powerful local adverti- sers. If a monopoly newspaper, willingly or not, reflects the narrowest interests of the city's powerful advertisers, then minority and dispossessed groups may be deprived of a most important channel of expression. There is evidence that the local press does not always do what it might to insure a free flow of divergent points of View. The ideas and beliefs of some legitimate groups are purposely denied access to some newspapers. Yet the courts consistently uphold the autonomy of newspapers and the rights of publishers, as private businessmen, to publish or not publish as they please.11 loKeith Roberts, "Antitrust Problems in the News- paper Industry," Harvard Law Review, LXXXII (December, 1968), 321. National brand name advertisers account for only about 20 per cent of newspaper advertising linage, while, in 1961, about 17 per cent of television's advertising was local. llMack v. Costello, 32 S.D. 511, 143 N.W. 950 (1913); Commonwealth v. Boston Transcript, 249 Mass. 477, 144 N.W. 400 (1924); In re Louis WohI, 504F.2d 254 (E.D. Mich. 1931); Shuck v. Carroll Daily Herald, 215 Iowa 1276, 247 N.W. 813 (I913); Popghkeepsie Buying Service v. Poughkeepsie News- a ers, 205 MiSc.’982, 131 N.Y.S. 2d 515 (Sp. Ct. I954); Gor on v. Worcester Telegram, 343 Mass. 142, 177 N.E.2d 586 (I961); Approved Personnel v. Tribune, 177 So.2d 704 (Fla. 1965); BIoss v. Federated Publications, 5 Mich. App. 74, An attorney in Winchester, Massachusetts, Herbert Lord, was urged in the pages of the Winchester B325 to drop an action against the Massachusetts Municipal Board of Selectmen. Lord sued the paper for refusing to print a letter from him which stated his position on the matter. The Massachusett's Supreme Court backed the paper's claim of complete editorial autonomy.12 In New York, the owner of a race horse was errone- ously accused by the State Racing Commission of illegally drugging his horse. The accusation was correctly reported by a wire service and printed in at least one New York news- paper. The government report was privileged; the government, the newspaper, and the wire service could not be sued for damages. Neither the paper nor the wire service was under any legal obligation to help repair the horse owner's damaged reputation.13 145 N.W.Zd 800 (1966) aff'd. 380 Mich. 485 (1968); Amal a- mated Clothing Workers of Americay; Chicago Tribune, 435 F.2d 470 (7tHLCir. 1970); Resident Participation of Denver v. Love, 322 F. Supp. 1100 (1971). 12Lord v. Winchesteg, 346 Mass. 764, 190 N.E.2d 875 (1963), cited in Jerome A. Barron, "Access to the Press-—A New First Amendment Right," Harvard Law Review, LXXX (June, 1967), 1669. 13Harriet F. Pilpel and Kenneth P. Norwick, "But Can You Do That?" Publishers' Weekly, May 25, 1970, p. 32 After the 1966 Biennial Conference of the American Civil Liberties Union (ACLU), the organization sent out letters to dissident and minority groups, as well as to pro- fessional journalists, asking for specific examples of access to the media being denied unjustly.l4 Several monopoly abuses were alleged. Jesse D. Scott, of Los Angeles, field director of the National Association for the Advancement of Colored People (NAACP), replied to the ACLU: Our news releases are sent to the City News Desk, in turn, they are placed on the wire service for all the media. Seldom, if ever, these releases are carried by any of the mass media. Neither the Los Angeles Times or the Herald Examiner carry releases on announcements of meetings, conferences and/or program positions... News items on minorities, in general, and the Negro in particular, are seldom seen in the Los Angeles Dailies.15 l4Trudy Hayden and Beatrice Gelfand, "Biennial Con- ference Resolutions #33-40 on Right of Access to the Mass Media," (typewritten memo to the national Board of Directors of the American Civil Liberties Union, ACLU national office, New York, June 4, 1969), pp. 1-2. Forty-seven letters were sent out and 18 returned, some suggesting that the media problem was not so much one of denied access as one of gen- erally imcompetent or biased coverage on a day-to-day basis. The Kerner Commission report concluded that the mass media do not accurately report the everyday reality of minority life. See Report of the National Advisorprommission on Civil Disorders, Otto—Kerner, Chairman (New York: Bantam Books, 1968) pp. 374-83. The ACLU is presently conducting a more thorough study of the access problem. 15Beatrice Gelfand and Alan Reitman, "1968 Biennial Conference Recommendations Concerning the Right of Access by Politically Dissident and Racial Minority Groups to the Com- munications Media," (typewritten memo to the Communications Media Committee of the National Office of the American Civil Liberties Union), ACLU national office, New York, May 7, 1969, p. 2. Marvin Wall, a staff member of the Southern Regional Council in Atlanta, Georgia, and a former newspaper man, wrote the ACLU: It is fair to say that the urban press, nowadays, pays more attention to news from the black community. I can recall when it was hard even to find the score on the sports page involving the predominantly black schools and colleges . . . In rural areas, I am sure that you would find many weekly newspapers which do not . . . print news pertaining to black people in the community. I am certain that a systematic study would turn up an overwhelming amount of evidence.16 One newspaper in West Virginia refused to carry birth and death notices of Negroes.l7 While some claim that minority groups are denied access to the press, or generally ignored, some aggressive dissident groups have been treated with hostility in news columns and pointedly rebuffed when access through paid ad- vertising was sought. Steve Kosokoff, of the War Resisters League of Portland, Oregon, reported to the ACLU through a New York colleague: 1. In 1967 we attempted to place an ad in the Oregonian (S. I. Newhouse owned, largest in state, etc.). The ad said, "We Won't Go" and had names of young men. Then it said "We support those who won't go" and had many more names. We came to the paper with money in hand. They refused to accept it. The publisher said, "I'll see all you yellow-bellied bastards in hell before I'll print that ad." ACLU was no help. 2. Two years ago when Alan Ginsberg was going to read here and do a peace rock dance thing the entertainment 161bid., p. 3. l7Ibid., p. 14. editor of the Oregonian was threatened with the 1053 of his job if he ever again mentioned Ginsberg or the 18 sponsoring group (Society for New Action Politics). The OEegonian is published by the Oregon Publishing Company, which publishes the only two general circulation newspapers in Portland.19 Marvin Wall reported that in Atlanta, which is also a monopoly newspaper city,:20 The hippies are treated like any other unpopular minority group. They are harrassed by police and their activities are covered with hostility by the press. Local peace groups have consistently had difficulties getting their activities publicized. The situation got so bad at one point that Joe Gross read aloud at a meeting addressed by Eugene Patterson the long list of fillers clipped from the Constitution. He was pointing out the amount of space dedicated to such trivia as contrasted with the news releases that had been sent in by peace groups. . . The big Viet Nam rally held at the stadium several years ago got second coming headlines and coverage in the Atlanta papers. There was an obvious pattern. Another group that asserts it is unjustly denied ac- cess to newspapers is the Mattachine Society of Washington, D.C., an organization that works for equal rights for homo- sexuals. In an unsolicited letter to the ACLU, the president of the society claimed that no papers in Washington would ac- cept the organization's paid advertisements. He wrote: laIbid., p. 3. 19Editor and Publisher International Yearbook, 1970 (New York: Editor and Publisher, 1970), p. 235. 20 Ibid., p. 86. 21Gelfand and Reitman, "Conference Recommendations," Our advertisements are dignified, conservative, infor- mational, non-commercial, . . . do not propose illegal action, nor are they in poor taste in any way (unless mere mention of the subject of homosexuality is consid- ered to be in poor taste). This ban on advertisements, the president continued, "means that an entire large group of citizens, and an entire law- fully-acting movement working on their behalf, are denied any access at all to the press.22 These examples of alleged abuses by newspapers are presented as a sample of the complaints against the press. In some instances the newspapers in question may have had good reasons for denying access. For example, a particular advertisement may have been illegal. But taken together, these examples illustrate that an access problem exists, although these examples do not define the scope of the problem. Charges of unfair denial of access to powerful gen- eral circulation newspapers are not new. For years the problem of monopoly power has been analyzed and remedies suggested. In a 1931 newspaper case, plaintiff charged that two Detroit newspapers together formed a monopoly in the evening news field. The court refused to force the news- papers to accept plaintiff's commercial advertisements.23 22Letter to the Board of Directors of the American Civil Liberties Union from the President of the Mattachine Society, ACLU national office, August 19, 1970. 23In re Louis Wohl, 50 F.2d 254 (E.D. Mich., 1931). 10 In a 1945 antitrust case, the Supreme Court of the United States asserted that the government may, at times, have an affirmative role to play in protecting the First Amendment guarantees for a free market place of ideas. "It would be strange indeed," the court said, if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. . . . That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is es- sential to the welfare of the republic, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combina- tions a refuge if they impose restraints upon that con- stitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some.24 While arguing that the government has an affirmative respon- sibility to promote the "widest possible dissemination of information," the court took the trouble to point out that it was not applying a "public utility" concept to the press.25' 24 20 (1945). 25Ibid., p. 19. The court was making it clear that it did not consider the press to be a public utility, like a telephone or gas company. A public utility is one of several "public interest" businesses which can be regulated by the government, in whole or in part, and which are usually required to serve all customers without discrimination. Ford P. Hall, The Concept ongusiness Affected with a Public Interest, (Bloomington, Ind.: Principia Press, 1940), p. 61. PuBlic utilities usually are distinguished by the special privileges, such as eminent domain, granted to them by the state. Wolff Packing v. Court of Industrial Rela- tions of the State of Kansas, 262 U.S. 522, 67 L.Ed. 1103, 0 , 9 2 . A common carrier" is a public business Associated Press v. United States, 326 U.S. l, 11 Two years after the court in Associated Press v. United States mentioned affirmative government responsibili- ties to insure a press of divergent viewpoints, the pres- tigeous Commission on Freedom of the Press,26 frequently referred to as the Hutchins Commission, issued a report warning that monopolization of media was inhibiting the free market place of ideas. The commission urged media man- agers to open their channels of communication to a wider range of opinion.27 in which one agrees "for a specified compenstion to trans- port such property from one place to another for all persons that may see fit to employ him." Hall, Concept of a Public Business, pp. 102-03, quoting Gerhard and Hey v. Cattaraugus TSHHIfig‘Co., 241 N.Y. 413, 150 N.E. 500 (1926). see also Wolff Packing, 67 L.Ed. 1108. A broader, more elusive, con- cept is that of a business "affected with a public interest." To be so classified, a business must dedicate itself or hold itself out as a public interest business. Hall, Conce t of a Public Business, pp. 101-03 and Wolff Packing, 67 L.E . II08. . 26Members besides Robert M. Hutchins, chancellor of the University of Chicago, included Zechariah Chafee, Jr., of Harvard Law School; Harold D. Lasswell, Yale Law School; Archibald MacLeish, poet and former assistant secretary of state; Reinhold Niebuhr, Union Theological Seminary; and Arthur M. Schlesinger, Sr., history professor at Harvard. 27Commission on Freedom of the Press, A Frepand Regponsible Press (Chicago: University of Chicago Press, I947). A report authored by a single member of the Hutchins Commission presents a more detailed critique of the inade- quacies of traditional laissez-faire press operations. The author provided a philosophical rationale for viewing the press as imbued with a public interest responsibility. See William E. Hocking, Freedom of the Press: A Framework of Principle (Chicago: University of Chicago Press, 1947). Hocking argued that for man to have freedom, he must not only be unconstrained, but must also have the wherewithal to ex- ercise his freedom. To be free to speak, one must have a forum. p. 54. 12 Because of growing consolidation of media ownership, the commission said that to protect the press is no longer automatically to pro- tect the citizen or the community. The freedom of the press can remain a right of those who publish only if it incorporates into itself the right of the citizen and the public interest.28 The communications industry should remain a private business, the commission said, "but it is a business affected with a . . "29 public interest. The commission was not clear about exactly what should be done to make the press more representative of the divergent beliefs found in a given community. One suggestion was that media "accept the responsibilities of common car- 30 riers of information and discussion on a voluntary basis. Part of the responsibility of the press, the commission said, was in "maintaining the rights of citizens and the almost forgotten rights of speakers who have no press."31 The commission's suggestions were well-meaning, but not particularly strong by the time the commission explained the restrictions they would put on their recommendations. While the commission thought that the dispossessed should be 28Commission on Freedom of the Press, A Free and Responsible Press, p. 18. 29 Ibid., pp. 91-92. See above, note 25. 30Ibid., p. 92. See above, note 25. 311bid., p. 18. 13 represented in the media, it also thought that "some seekers for space are bound to be disappointed and must resort to pamphlets or such duplicating devices as will spread their 32 ideas to such public as will attend to them" The com- mission thought that the government might use the antitrust 1aws only "sparingly" to break up large media units.33 As for a guaranteed right of reply for those individuals and groups attacked in the press, the commission concluded that such an alternative should be "carefully considered in the future."34 The Hutchins Commission report was not a radical document. But it was important that such a prestigious group of men would argue that the laissez-faire market place of ideas was malfunctioning. The commission warned that either owners of monopoly media would make the media more responsible to a larger audience or, "of its own motion, the power of government will be used, as a last resort, to force it to be so."35 The effect of the Hutchins Commission report on the movement for a right of access to the press cannot be ac- curately assessed. However, discussion of the need for a 32 33 Ibid., p. 24. Ibid., p. 83. 34Zechariah Chafee, Jr., Governmept and Mass Communi- cations, A Report from the Commission on Freedom of the Press (Hamden, Conn.: Archon Books, 1965), p. 84. 35Commission on Freedom of the Press, A Free and Responsible Press, p. 80. 14 guaranteed right of access to the press, and the possibility of some affirmative government action to this end, has in- creased in the years since the commission's report. In 1950, a law review article by Richard C. Donnelly 36 that First Amendment freedom repeated Hocking's argument, is more than just the negative freedom from government con- trol. Donnelly argued that First Amendment freedom must embody a positive dimension, an insurance that the press is free and open.37 In 1956, James Russell Wiggins, then man- aging editor of the Washington Post, devoted a chapter of his book on the press to "The Right of Access to Means of Publishing,"38 Adding strength to the argument that a guaranteed right of access to newspapers should be established, was the United States Supreme Court decision in New York Times v. Sullivan, a decision that extended First Amendment protection to paid non-commercial advertisements.39 36See above, note 27. 37Richard C. Donnelly, "Government and Freedom of the Press," Northwestern University Law Review, XLV (March- April, 1950), 44:50. 38James Russell Wiggins, Freedom or Secrecy (New York: Oxford University Press, 1956), pp. 157-81. 39New York Times v. Sullivan, 276 U.S. 254 (1964). Commercial advertidements are not so protected. In Valentine v. Chrestensen, 316 U.S. 52 (1942), the court held that New York City officials could legally prohibit F. J. Chrestensen from distributing commercial handbills in the streets of the city: "This court has unequivocally held that the 15 In the Sullivan case, the Supreme Court held that a civil rights advertisement critical of southern law enforce- ment officials was protected under the First Amendment be— cause it communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought finan- cial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern. . . . That the Times was paid for publish- ing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold.40 Since the Sullivan decision, a newspaper is free to criticize and comment upon the conduct of public officials without fear of losing a libel suit, unless the publication is made with "malice."41 .This decision gave newspapers freedom to write with near impunity about public officials without any requirement that a public person be permitted to reply. Although the court had hoped in this decision to help open up newspapers to new ideas, the ruling added sig- nificant new immunities to the already great powers of the press. The court, in dictum, recognized the importance of access to newspapers through editorial advertising. "Any streets are proper places for the exercises of the freedom of communicating information and disseminating opinion and that, though the states and municipalities may appropriately regulate the privilege in the public interest, they may not unduly burden or proscribe its employment in these public thoroughfares. We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising." p. 54. 40 41 Ibid., p. 266. Ibid., p. 280. 16 other conclusion," the court said in its decision, "would discourage newspapers from carrying 'editorial advertise- ments' of this type, and so might shut off an important out- let for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities."42 The stated goal of the court is a familiar theme. The court wanted to preserve for democracy "debate on public issues" that is "uninhibited, robust, and wide-open."43 The American Civil Liberties Union entered the de- 44 Partici- bate over right of access to the press in 1966. pants in the ACLU's 1966 Biennial Conference requested the organization to study the policy issues raised by the ques- tion: "Given the complexity of modern society, does the government have an obligation to encourage and support af- firmatively means of securing freedom of expression?"45 The national ACLU has never taken an official stand supporting a particular legal right of access to the pri- vately owned press. A resolution adopted in 1966 by the union urges privately owned media to "voluntarily" open themselves to controversial advertising.46 42 43 Ibid., p. 266. Ibid., p. 270. 4Hayden and Gelfand, "Conference Resolutions #33- 40," p. 6. "In the main, the Union has adhered to the classic theory that diversity in speech is the natural out- growth of the free competition of a multitude of voices, unimpeded by government." 45Ibid., p. 1. For partial results, see above notes 14-22 and accompanying text. ' 46Ibid., p. 7. 17 The national ACLU does support government action to require publicly-owned or regulated facilities that sell advertising space to accept controversial non-commercial advertising.47 Some local chapters of the organization have argued in court for wider legal rights of access to the privately owned media.48 The most powerful arguments to be made for a guar- anteed right of access to monopoly media are those of Jerome A. Barron, professor in the School of Law of George Wash— ington University, Washington, D.C. Professor Barron's provocative article in the June, 1967, Harvard Law Review, urging an affirmative obligation on the part of government to guarantee that minority and dissident viewpoints get ac- cess to the media, has been noted in several court cases involving newspapers,49 50 and has inspired or been mentioned in several articles. 47Ibid., pp. 6-7. See Kissin er v. New York City Transit Authority, 274 F. Supp. 438 (S.D.N.Y. 1967) and Wirta v. Alameda-Contra Costa Transit District, 434 P.2d 982, 64 Cal. Rptr. 430 (1967). 48New York Times v._Sullivan, 376 U.S. 254 (1964); United Church of Christ v. Federal Communications Commission, 359 F.2d 994 (D.C.D.C. I966I; Zucker v. Panitz, 299 F. Supp. 102 (S.D.N.Y. 1969); Amalgamatéd Clothing Workers of America v. Chicago Tribune, 435 F.2d 470 (7th Cir. 1970?. 49See Lee v. Board of Regenpg of State Colleges, 306 F. Supp. 1097 (W.D. Wis. 1969); Zucker v. Panitz, 299 F. Supp. 102 (S.D.N.Y 1969); Resident Participation of Denver v. Love, 322 F. Supp. 11009T1971). 50See William M. Douberley, "Resolving the Free Speech-Free Press Dichotomy: Access to the Press through 18 Barron, like others before him, believes that the traditional negative interpretation of the First Amendment is not adequate. It is a "romantic" View of the First Amendment, Barron thinks, to believe that protecting the complete autonomy of publishers will preserve a market place of ideas in times of media conglomerates and single newspaper cities. Holding to a laissez-faire interpretation of the First Amendment, while monopolization of press ownership 51 The continues, becomes a "rationale for repression." First Amendment must be reinterpreted to include the public interest in access to media. Barron attributes no sinister motives to media man- agers, but he regrets their excessive concern with commercial matters. As businessmen, Barron thinks that media managers Advertising," University of Florida Law Review, XXII (Fall, 1969); William A. Resneck, "The Duty of Newspapers to Accept Political Advertising--An Attack on Tradition," Indiana Law Review, XLIV (Winter, 1969); Clifton Daniel, "Right of Ac- cess to Mass Media--Government Obligation to Enforce First Amendment?" Texas Law Review, XLVIII (March, 1970); Ben H. Bagdikian, "Right of Access: A Modest Proposal," Columbia Journalism Review, VIII (Spring, 1969); John D. Stevens, 1rPfoposal to ACLU: Newspapers Must Carry A11 Viewpoints," The Journalism Educator, XXIII (Fall, 1968); Gilbert Cran- berg,"New Look at the First Amendment," Saturday Review, Sept. 14, 1968; Ronald L. Bottini, "Access to the Press: A New Right?," Freedom of Information Center Report No. 216, Columbia Mo.: University of Missouri School of Journalism, March, 1969; "Free Press: Newspaper Discretion to Refuse Advertising in Monopoly Situation," Minnesota Law Review, LIII (1969). 51Jerome A. Barron, "Access to the Press--A New First Amendment Right," Harvard Law Review, LXXX (June, 1967), 1642. 19 program and print homogenized, non-controversial material to insure the largest, surest return on their investments.52 The lack of access to the media of divergent points of view results in serious consequences, Barron thinks. He suggests that some of the violent protests of the 1960's might not have taken place had the dissidents been allowed to voice their grievances and simultaneously vent their I O O 53 frustrations in mass media. "At some point," Barron says, "the newspaper must be viewed as impressed with a public service stamp and hence under an obligation to provide space on a non-discriminatory basis to representative groups in the community."54 Minority and dissident groups have a First Amendment right of access to the media, and the gov— ernment has an affirmative responsibility to insure that right. Barron is not entirely clear about what the govern- ment's role should be. He does not want the government to contribute its own information to the media in some 521bid., 1646. 53Ibid., p. 1647. There is truth to this assertion, considering mass media in general. However, the print media are probably not greatly responsible for creating frustration among some dissidents. To the extent that groups are poor and uneducated, the print media are little used for informa- tion. See V. 0. Key, Jr., Public Opinion and American Democracy, (New York: Alfred A. Knopf, 1961) p. 351. 54Ibid., p. 1666. 20 institutionalized way. He wants some kind of "governmen- tally-sponsored process for stimulating the interchange of ideas."55 Both judicial and legislative steps might be taken to insure a more participatory information process, Barron thinks. He argues that courts, under existing laws, could require newspapers to grant access to more divergent views on "public issues." A natural place to begin, he thinks, would be in the letters columns and advertising pages.56 Specifically, Barron has suggested that public persons who are attacked in the press be accorded a right to reply, and that there be established_a right to buy political advertise- ments.57 Barron has not set forth in any detail the form that a statutory solution to the problem might take, but he has suggested that a statute might, at least, require that denial of access not be "arbitrary."58 In discussing possible solutions to the access prob- lem, it is important not to forget the First Amendment pro- hibition against interference with the press. It is necessary that even monopoly newspapers retain editorial 55Jerome A. Barron, "An Emerging First Amendment Right of Access to the Media?" George Washington Law Review, XXXVII (March, 1969), p. 507. 56 Barron, "Access to the Press," p. 1667. 57Jerome A. Barron, "Access--The Only Choice for the Media?" Texas Law Review, XLVIII (March, 1970), p. 774. 58 Barron, "Access to the Press," p. 1670. 21 independence from government intervention. Large, powerful newspapers perhaps identify too closely sometimes with gov- ernment interests, but even so, it is important that the editorial autonomy remain intact. In times of great govern- ment deception, such autonomy would be the country's best safeguard. Of the various suggestions that have been made for expanding access to the press, only the right to buy non- commercial advertising would help in a limited way to di- versify the press and, at the same time, preserve the autonomy of the editorial departments, vis-a-vis the gov- ernment. All other solutions to the access problem—-access to the letters column, a right of reply, a right to editorial space--wou1d be constitutionally unsound and unac- ceptably cumbersome. Requiring access to free editorial space would be unmanageable. Sheer volume would make it impossible to require newspapers to print letters or replies from the thousands who might desire such a privilege. The New York Timgg received 37,719 letters in 1968, most of them ac- ceptable, of which it had space to print about 6 per cent.59 59Clifton Daniel, "Right of Access to Mass Media," p. 785. The Times can print at best about 10 per cent of the average 1,300,000 words of news material it receives each day. 22 On the other hand, requiring a newspaper to accept lawful advertisements provides the revenue for a paper to expand its news columns. If newspapers were required to accept letters and replies, the courts would be burdened with frequent liti- 60 It is doubtful that the gation over editorial decisions. courts should, or could, try to decide the subtle and the mundane editorial questions. Barron argues that if obscenity is of such consti- tutional importance as to require judicial interpretation, then certainly the courts have a function in guaranteeing the First Amendment right of free expression to groups unjustly denied access to media.61 Unfortunately, the chances of judges doing better than editors is not great. While‘the courts do have a right to establish definitions of obscenity, Justice Black has observed that on the obr scenity issue the Supreme Court is "helplessly struggling" 60Some of the questions which Barron thinks the courts capable of dealing with include: "What is a minority point of View? When shall such opinions be heard? Has some significant space been given to the controversy in the first place? Must every issue of the publication contain a reference to a particular controversy? Isn't it possible to reach saturation of a given subject? When is the deci- sion not to publish on a particular issue a 'news' decision and when is it a decision based on an effort to obstruct the opinion process?" "An Emerging First Amendment Right," p. 496. 61Ibid. 23 62 in a "qua ire." The likelihood that some administrative gm agency, like the Federal Communications Commission, could regulate access to the press successfully is also doubtful.63 The board of directors of the national office of the American Civil Liberties Union tabled, after consider- able debate, a resolution to support a guaranteed right of 64 It was decided that the outside interference with reply. editorial decision making powers would be too great. A participant in an ACLU Communications Media Committee dis- cussion noted that a right of reply might conceivable mean that a Republican newspaper could not consistently attack a Democratic paper, and vice versa.65 What makes a right to buy advertisements in news- papers an acceptable alternative, but not a right to edi- torial or letter space, is the commercial nature of adver- tising, even of editorial advertisements. While editorial 62Curtis v. Butts, 388 U.S. 130, 171. 63See Glen 0. Robinson, "The FCC and the First Amendment: Observations on 40 Years of Radio and Television Regulation," Minnesota Law Review, LXVII (November, 1967). 4Excerpt from Minutes of June 21-22 Board Meeting, "Discussion on Right of Access to the Mass Media," (New York: American Civil Liberties Union), p. 4. (Typewritten.) 65Gelfand and Reitman, "Conference Recommendations," p. 15. For more arguments against a right of reply, see Zechariah Chafee, Jr., Government and Mass Communications (Hamden, Conn.: Archon Books, 1965), and Gilbert Cranberg, "New Look at the First Amendment," Saturday Review, Sept. 14, 1968, pp. 236-37. 24 advertisements have First Amendment protection, and while the First Amendment goal of a robust debate is an important argument for requiring newspapers to accept editorial ad- vertisements, the fact remains that any advertisement enters a newspaper through the newspaper's business department, not its editorial department. And while the courts do not agree, it seems to this writer that large general circulation news- papers hold their advertising space out generally to the public and should be required to accept all lawful adver- tisements, not just editorial advertisements, without dis- . . . 66 crlmlnatlon. 66Despite the United States Supreme Court's efforts to distinguish between commercial and non-commercial ad- vertisements (see above, note 39), it is doubtful that, for First Amendment purposes, a valid distinction can, or should, be drawn. There are many "commercial" advertisements of social value which deserve First Amendment protection. What about an advertisement for a political speech where admis— sion will be charged? What about an advertisement for a "socially important" movie. See Aldrich v. Times Mirror Co., 440 F.2d 133 (1971). Ben H. Bagdikian reIates that 1'for years, Consumers Union could not buy ads in newspapers because the magazine was considered hostile to the brand- name mystique." Letter from Bagdikian to Gilbert Cranberg, July 22, 1969, located in the files of the ACLU national office, New York. Even the civil rights advertisement in New York Times v. Sullivan, 276 U.S. 254 (1964), solicited financial support for the movement. The main value in making the distinction between editorial and commercial ad- vertisements is that the advertisements with the first amendment protection would seem to have a stronger claim to a right of access. So far, this has not proved to be true in court tests. See Amalgamated Clothing Workers of America v. Chicago Tribune, 435 F.2d 470 (7th Cir. 1970) and Resident Participation of Denver v. Love, 322 F. Supp. 1100971971). See William A. Resneck, "The Duty of News- papers," pp. 233-34, for arguments why newspapers should be required to accept editorial, but not necessarily commercial, advertisements. 25 The advertising department of any newspaper that claims to be objective is independent of the editorial de- partment, and probably separated physically. Newspapers recognized for quality want the advertising department separate so that the interests of powerful advertisers can- not influence the news content of the paper.67 The general business nature of a newspaper's ad- vertising function has been acknowledged in judicial de- cisions and statute. Courts have consistently upheld the right of newspapers to refuse advertisements, commercial or editorial,68 but the right of the private businessman to avoid making commercial contracts has figured much more heavily in these decisions than concerns for First Amend- ment freedoms. The Newspaper Preservation Act of 1970 assumed a distinction between editorial decisions and at least some of the advertising decisions of a newspaper. In the spirit of the market place of ideas, the policy goal of the Act was to maintain a newspaper press "editorially and 67Adolph Ochs, former publisher of the New York Times, purposely placed the advertising and news depart- ments on different floors so that the news department would not be influenced. "When The New York Times cares about what its advertisers think, a few executives have said, it will no longer be The New York Times," Gay Talese, The Kingdom and the Power TCIeveland: World Publishing—53., I969), PP. 74-75. 68See above, note 11. 26 and reportorially independent and competitive in all parts of the United States.69 To promote this end, the act allows newspapers in financial distress a partial exemption from the antitrust laws in order to participate in certain joint Operating agreements. Permissible joint operations do not include editorial or reportorial functions. The act does allow for joint solicitation of advertising and setting of rates, however.70 The business nature of the advertising function of a newspaper is further illustrated by an examination of the Editor and Publisher International Yearbook. There it can be seen that several large newspapers do not solicit all of their own advertising, but have it done through a hired agency, perhaps in another city. Newspapers also frequently advertise to the general public the market powers of their own advertising columns. Because newspapers in the United States are fre— quently monopolistic enterprises, offering advertising space generally to any lawful customer, newspapers should not be allowed to discriminate against a particular adver- tiser on the whim or the prejudice of the publisher. The First Amendment purpose in requiring newspapers to accept 6O 2 (1970). 70 Newspaper Preservation Act, 84 Stat. 466, Sect. Ibid., Sect. 3(2). 27 all lawful advertisements is the promotion of a more diver- sified press through editorial advertisements. But certainly many "commercial" advertisements are of great importance to the public welfare. In requiring newspapers to accept all lawful paid advertisements, some legal questions will emerge that will require adjudication. Requiring newspapers to accept free letters and replies could burden the courts with new and broad ranging editorial decision, but requiring newspapers to accept lawful advertisements would only require infre- quent litigation on borderline questions. The commercial and First Amendment issues involved in these cases--contracts, libel, obscenity, privacy, contempt--are issues which, for better or worse, the courts have already struggled with and have made considerable progress in defining legal limitations. As press ownership continues to consolidate in the United States, some expanded right of access is necessary. As alluring as a legal right to have replies and letters printed might be, constitutional prohibitions and practical operational considerations dictate against such a solution. The best way to help democracy to realize a genuine market place of ideas is to open up the advertising section of general circulation newspapers; these advertising sections are, or should be, held out to the general public, without discrimination. 28 It is important that individuals and groups who have been maligned in a paper, or who hold unpopular ideas, have some chance to communicate these ideas to the general public. The solution, a limited solution, which best preserves the editorial autonomy of publishers is to allow all lawful ideas to be presented in paid advertisements. CHAPTER II THE CONCEPT OF NEWSPAPERS AS "PUBLIC BUSINESSES" IN COMMERCIAL ADVERTISING COURT CASES American courts have been consistent in their hold- ings that privately owned newspapers can refuse without explanation public notices,1 legal commercial advertise— ments,2 and legal editorial advertisements.3 Even if one agrees with Barron,4 Resneck,5 and Douberley6 that papers lMack v. Costello, 32 S.D. 511, 143 N.W. 950 (1913); Commonwealth v. Boston Transcript, 249 Mass. 477, 144 N.W. 490 (1924). 21h re Louis Wohl, 50 F.2d 254 (E.D. Mich, 1931); Shuck v. Carroll Daily Hegald, 215 Iowa 1276, 247 N.W. 813 (1933); Pou hkee sie Bu in Service v. Pou hkee sie News- a ers, 205 Misc. 982, 131 N.Y.S.2d 515 (Sp.Ct. I954); J.J. Gor on v. Worcester Telegram Publishing Co., 343 Mass. iT2, 177 N.E.2d 586 (1961Y; Approved Personnel v. Tribune Co., 177 So.2d (Fla. 1965); Bioss v. FederateddPuBlications, 5 Mich. App. 74, 145 N.W.d2d 800 (1966) afde. 380 Mich. 485 (1968). Friedenberg v. Times Publishing, 170 La. 3, 127 So. 345 (1930). 3Amal amated Clothing Workers of America V. Chicago Tribune, 435 F.2d 470 (7th Cir. I970Y; ResidenEParticipa- tion of Denver v. Love, 322 F. Supp. 1199 (D. Colo. 1971). 4Jerome A. Barron, "Access to the Press--A New First Amendment Right," Harvard Law Review, LXXX (June, 1967). 5William A. Resneck, "The Duty of Newspapers to Ac- cept Political Advertising--An Attack on Tradition," Indiana Law Review, XLIV (Winter, 1969). 6 William M. Douberley, "Resolving the Free Speech-- 29 30 should be required to accept all lawful editorial, but not commercial, advertising, it is instructive to look at the legal notice and commercial advertising court cases before considering more recent editorial advertising cases. The earlier commercial and legal notice cases reveal why the courts have not regulated newspapers as public interest businesses.7 In the commercial advertising cases, the courts considered several of the legal criteria used to determine if a business is "affected" with a public interest. These criteria include concepts of "necessity," "holding out," and "monopoly," concepts that will be discussed in this chapter. As will be seen, the courts never considered very seriously the idea of a newspaper being regulated as a public business. In continually holding that newspapers are private businesses which can make advertising contracts independently, the courts actually ignored the important monopolization of press ownership since the turn of the century. To understand why the courts have continually re- fused to require newspapers to accept lawful Free Press Dichotomy: Access to the Press through Adver- tising," University of Florida Law Review, XXII (Fall, 1969). 7There is one exception to this rule which has never been followed by other courts. Uhlman v. Sherman, 22 Ohio N.P. (n.s.) 225 (C.P. Ct. Defiance County 1919). 31 commercial advertisements indiscriminately, one must under- stand the concept of being "affected," or "clothed with a public interest." Ford P. Hall, in a small but intelligent book, The Concept of a Business Affected with a Public Interest,8 writes that attempting to define a public interest business can be approached in two ways, economic or legal. In the former case, the most important question seems to be what businesses are sufficiently affected with a public interest to justify extensive governmental control? In the latter case, the important questions are, what businesses have already been placed in the public category, what legal guides are to be found by which one can determine the character of a business, and what are the constitutional limitations upon the power of control?9 Despite the fact that "judicial logic has sometimes played strange tricks in the world of economics," Hall be— lieves that "law, both in the form of statutes and judicial decisions, does represent the needs of mankind expressed possibly in more real terms than formal economic catego- . "10 rles. Hall's book is a legal analysis of the public in- terest concept, but he points out that good regulation of businesses requires that judges and legislatures be aware of the "economic or social significance of their actions or 8Ford P. Hall, The Concept of a Busipess Affected with a Public Interest (Bloomington, Ind.: The Pfincipia Press, 1940). 9Ibid., p. 2. lolbid., p. 4. 32 11 decisions." Hall quotes the dissenting opinion of former Justice Brandeis in the case of New State Ice Company v. Liebman [285 U.S. 262 (1932) ] as an example of this neces- sary awareness: . . . the business of supplying to others, for compen- sation, any article or service whatsoever may become a matter of public concern. Whether it is or not depends upon the conditions existing in the community affected. If it is a matter of public concern it may be regulated, whatever the business. The public's concern may be limited to a single feature of the business, so that the needed protection can be secured by a relatively slight degree of regulation. . . . On the other hand, the public concern about a particular business may be so pervasive and varied as to require constant and detailed supervision and a very high degree of regulation.12 Hall writes that all too often the courts and legis- latures are not aware of the broader implications of their decisions. It is questionable if the judges, in the cases where newspapers denied commercial advertisements, had much of a concern for the economic hardship caused advertisers or the rights of the public to information. The legal definition of a public interest business is fluid. But in a famous case, Wolff Packing Co. v. Court 13 of Industrial Relations of the State of Kansas, the United States Supreme Court attempted a definition. In the Wolff Packing Company case, the court held that a state 11 12 Ibid., p. 154. Ibid., p. 155. l3Wolff Packing Co. v. Court of Industrial Relations of the State of Kansas, 262 U.S. 522, 67 L.Ed. 1103 (i922). 33 administrative agency in Kansas violated the due process clause of the Fourteenth Amendment when it set wages in a non-monopolistic meat packing firm. The agency had acted under a Kansas statute establishing that a company that pre- pared food was affected with a public interest and therefore susceptible to regulation. In declaring that the Kansas agency's action was illegal, the U.S. Supreme Court set up three categories of businesses which can be legally regulated. The first cate- gory is that group of businesses that have special public grants or privileges--such as a railroad has rights of emi- nent domain granted by the state--which in turn imposes public obligations on the business.14 The second category of public interest business in— cludes occupations that have special obligations because of their public importance. For example, keepers of inns, cab 15 The public drivers and the operators of grist mills. interest classification of inn keepers, ferrymen and cabmen, apparently grew out of early common law and there is no particularly good reason why some of these businesses are still considered public today.16 The third category is the one into which newspapers would fall, if at all: 14 15 Ibid., p. 1108. Ibid. l6Hall, Concept of a Public Business, p. 8. 34 Businesses which, though not public at their inception, may be fairly said to have risen to be such, and have become subject in consequence to some government regu- lation. They have come to hold such a peculiar relation to the public that this is superimposed upon them. In the language of the cases, the owner, by devoting his business to the public use, in effect grants the public an interest in the use, and subjects himself to public regulation to the extent of that interest, although the property continues to belong to its private owner, and to be entitled to protection accordingly.17 The court went on to say that in nearly all cases in which a non-public business became clothed with a public interest, "the thing which gave the public interest was the indispen- sible nature of the service and the exorbitant charges and arbitrary control to which the public might be subjected without regulation."18 Hall lists several important factors used by courts to determine if a business is affected with a public interest. Included are the degree of monopoly, the necessity of the business to the public, the existence of special state pri- vileges such as eminent domain, the presence of an emergency, and whether a business has assumed a public interest by "holding out" its services to all indiscriminately.19 l7Wolff Packing Co. v. Court of Industrial Relations of the State of Kansas, 262 U.S. 522 67 L.Ed. 1103, 1108 TI922). 18Ibid., p. 1109. lgHall, Concept of a Public Business, p. 92. 35 From the judicial language on the "indispensible nature" of apublic business,20 the concepts of necessity and emergency are derived. A merchant dependent on news- papers for advertising, or a defense department official during a time of emergency, might consider newspapers to be public necessities worthy of regulation. A judge or legislature must ask if all or part of an enterprise should be regulated because of general public dependence or be- cause of special conditions. In the judicial language of "devoting" or "granting" a business to a public use lies the basis for the concept of "holding out."21 "In general, a statement or conduct on the part of a person engaged in a business are the important considerations" in deciding if a business is holding itself out to the public.22 "Conduct appears to be more persuasive than statement."23 Holding out is a kind of affirmative action on the part of a business to serve the public indis- criminately. Perhaps the most important business consideration for judges or legislatures trying to determine if a news— paper's advertising function should be regulated in the 20See above text accompanying note 18. 21See above, text accompanying note 17. 22Hall, Concept of a Public Business, p. 103. 231bid., p. 104. 36 public interest is the degree of monopoly enjoyed by the paper. This was the concern of the court in the Wolff Packing Company case, when it mentioned "exorbitant charges" and the ability of a business to exercise "arbi- trary control."24 Newspapers have not been charged with price abuses, but the arbitrary powers of monopoly papers to deny access to legitimate ideas is precisely the concern of critics such as Barron and the Hutchins Commission. It is doubtful if the criteria of eminent domain would ever be relevant in determining if a newspaper is vested with a public interest. It is difficult to imagine a newspaper, like a railroad, being given the right to condemn property for the public good.25 In considering the application to newspapers of the criteria for determining a public business, one must not forget the special protection afforded to the press by the First Amendment. No matter how much of a necessity, or how 24See above, text accompanying note 18. 2SIn a couple recent editorial advertising cases, however, it was argued unsuccessfully that the privilege accorded newspapers to distribute papers on the public side- walks constitutes a special relationship with the government which imposes on newspapers an obligation to serve all in- discriminantly. Amalgamated Clothipngogkers ofémerica v. Chica 0 Tribune, 307 F. Supp. 422 (N.D. Ill., E. D. 1969i, aff'd 435 F.2d 470 (7th Cir. 1970); Resident Participation of Denver v. Love, 322 F. Supp. 1100 (D. Colo. 1971). 37 a paper holds itself out to the general public, or how monop- olistic, the First Amendment protection against interference with freedom of the press must always be borne in mind. Any argument for imposing public responsibilities on the press in order to enhance the market place of ideas must be tem- pered by the First Amendment guarantees for an independent press. In the commercial advertising cases, public neces- sity played little role in judicial thinking. In Mack v. Costello,26 the publisher of the only paper in Clarion, South Dakota, refused to print notice of a petition made by Mack to the town's board of trustees. The petition requested the board to exclude Mack's land from the corporate limits of the town. The law prohibited the board from taking action on the request until public notice had been made in the newspaper that the petition was pending. The state supreme court held that the publisher, as a private businessman, could make or not make contracts with whom he pleased. The court talked about a newspaper as a necessity: It may be that the publishing of a newspaper is a quasi public business; but, if so, it is only because, from long experience, it is regarded as a public necessity. But as much might be said of the hardware or grocery business, and yet no one could contend that a grocer or hardware dealer could be compelled by mandamus to sell his wares if he preferred to keep them on the shelf.27 26Mack v. Costello, 32 5.0. 511, 143 N.W. 950 (1913). 27Ihid., p. 951. 38 The court was not thinking of grand schemes of robust debate, antagonism of ideas, the public's right to know or the harm that might be caused Mack. In the court's concern, and other courts' concern, for upholding the right of con- tract, the court could not think of the existence of the only newspaper in the city as a necessity. The right of private contract in the free enterprise system is the right of individual economic units to make free business choices, which will cause a business to thrive or wither in the market place. The market, and for the most part, the courts, were indifferent. Little mention, too, was made in the commercial ad- vertising cases of newspapers being regulated in the public interest during emergency conditions. The Massachusetts Supreme Court thought that the legislature might have au- thority to impose special obligations on newspapers in war time.28 A more important concern, from a legal point of view, in determining if a newspaper should be considered to be affected with a public interest and therefore regulated, is the concept of "holding out." 28Commonwealth v. Boston Transcript, 249 Mass. 477, 144 N.W. 400, 402 (I924). 39 29 30 31 In Wohl, Gordon, and Bloss, plaintiffs claimed that the newspapers refusing advertising were public interest businesses. The W221 case is apparently the first time in American law that a plaintiff asserted that a newspaper was affected with a public interest and should be required to accept a lawful advertisement. In this 1931 case, the Detroit News and Detroit EEEEE refused the commercial advertisements of Louis Wohl. Wohl claimed that together the two papers constituted a monopoly in the evening news field. This was the basis of his claim that they should be considered as affected with a public interest. In holding that the two papers were not affected with a public interest because they had not held themselves out to serve the general public indiscriminately, the court tried to explain the concept of holding out: Affirmatively, it means that a business or property, in order to be affected with a public interest, must be such or be so employed as to justify the conclusion that it has been devoted to a public use and its use thereby in effect ranted to the public. Negatively, it does not mean tgat a Business is affected with a public 29In re Louis Wohl, 50 F.2d 254 (E.D. Mich., 1931). 30J. J. Gordon v. Worcester Telegram Publishing Co., 343 Mass. 142, 177 N.E.2d 586 (1961). 31Bloss v. Federated Publications, 5 Mich. App. 74, 145 N.W.2d 866 (I966) aff'd. 386 Mich. 485 (1968). 40 interest merely because it is large or because the pub» lic are warranted in having a feeling of concern in respect to its maintenance.32 The words here are about the same as those used by the court in the Wolff Packinngompapy case to define the third cate— 33 gory of public interest business. The italicizing seems to emphasize the active nature of holding one's business out for public use. But adding emphasis with italics, like raising one's voice, helps little to explain a concept if the words do not change. Hall holds that the concept of holding out is usually used to determine if a business, already recognized as public, in fact holds itself out "to serve all indif- ferently to the limit of his capacity or dedicates his prOp- 34 erty to a public use." For example, a trucker who printed "Haul anything, anywhere--Long and short hauls" on his truck was determined to have held himself out as a common carrier.35 The problem of deciding if a newspaper is invested with a public interest because of holding out is more dif- ficult because newspapers have not "usually been recognized as public," nor have they wanted to be. It is a nationwide 321n re Louis Wohl, 50 F.2d 254, 256 (E.D. Mich., 1931); quoting Williams v. Standard Oil Co. of Louisiana, 278 U.S. 235, 49 S.Ct. 115, I16. 33See above, text accompanying note 17. 34Hall, Concept of a Public Business, p. 101. 351bid., p. 105. 41 practice for newspapers to claim the right to reject any advertisement for any reason.36 The question is, if by conduct, newspapers have in fact offered themselves, or at least their advertising space, as a medium for use by that part of the general pub- lic which is willing to pay the going advertising rates. The courts in the commercial advertising cases found no evidence of holding out, but there is little evidence that the courts gave the matter great consideration. Justice Paul Adams, of the Michigan Supreme Court, is one judge who would like to see the courts examine more closely the question of newspapers' holding out. In his dissent in Bloss v. Federated Publications, a case where the Michigan court upheld a lower court ruling that a monopoly newspaper could legally refuse to accept an ad- vertisement for an adult movie, Justice Adams wrote: "I would remand for a determination as to whether or not 12 £233 the defendant had conducted its newspaper business as a purely private one with no holding out to the public of its columns for advertising. . ."37 Newspaper adver- tising departments, with their physical separation from the editorial department, and their frequent use of professional 36Douberly, "Resolving the Free Speech--Free Press Dichotomy," p. 300. 37Bloss v. Federated Publications, 380 Mich. 485, 491 (1968). 42 agencies to solicit advertisements, do seem to hold them- selves out generally to lawful advertisers. Perhaps the most important business concept for courts or legislatures to weigh in determining if a business is affected with a public interest is the degree of monopoly. Whether a business can control prices unfairly or exercise arbitrary control should be considered carefully in deter— mining if all or part of a business should be regulated in the public interest. Monopoly became an increasingly prominent issue in the legal notice and commercial advertising cases between 1913 and 1966.38 It is perhaps strange that monopoly was not the most important issue considering the fact that, of the cases considered here, only the Boston Transcript case and the papers in the thl case were not monopoly presses in their respective cities. As the issue of monopoly be- came more prominent in the cases, the courts framed questions well, but they did not deal squarely with the economic fact of a growing monopoly press and its influence, for good or bad, on the economic market place or the market place of ideas. 39 the fact that the Cavour Clarion In the Mack case, was the only paper in town was mentioned, but was not made a 38See above, notes 1 and 2. 39Mack v. Costello, 32 S.D. 511, 143 N.W. 950 (1913). 43 distinctive part of the decision. Considering the judge's laissez-faire holding regarding the right of private busi- nesses to engage in contracts, there is no reason to presume that monopoly was considered an issue. The Wohl court,40 before which plaintiff charged that the two defendant newspapers formed a monopoly of eve- ning papers, dealt superficially with the monopoly issue. The court noted that the newspapers had not been granted any powers of eminent domain as had other monopoly businesses regulated in the public interest.41 This may well be an irrelevant distinction. A newspaper might have public in- terest functions without ever being accorded powers of emi— nent domain by the state. The W2 1 court also stated that defendant newspapers could be distinguished from an insurance company that had been regulated in the public interest because the insurance company was national while the newspapers were only of local importance.42 Presumably then, if there were only one in- formation medium in metropolitan Detroit, the court would not have considered the citizens of the area to be deprived of their right to an open press, because they were "local". The Wohl court did not deal adequately with whether a monopoly existed in Detroit evening newspapers and, if 4°In re Louis Wohl, 50 F.2d 254 (E.D. Mich., 1931). 42 41 Ibid., p. 257. Ibid., p. 256. 44 so, if publishing power was being abused. The holding of the court may well have been the best one, but one might wish that the court had shown more awareness of economic realities and their possible impact. In the Shggk case of 1933,43 the issue of monopoly was not presented. A clothes cleaner filed for damages re- sulting from lost advertising when the only paper in Carroll, Iowa, refused him advertising space without explanation. The judge cited authority on the strictly private nature of the newspaper business and, with curious analogies, ex- plained the danger of requiring a newspaper to take an ad- vertisement. The "newspaper business" is as private as that of the baker, grocer, or milkman, all of whom perform a service on which, to a greater or less extent, the communities depend, but which bears no such relation to the public as to warrant its inclusion in 44 the category of bu81nesses charged w1th the public use. Perhaps there was only one individual baker, grocer, milkman as well as newspaper in Carroll, Iowa in 1933, so they operated on equal terms. But in general this is a doubtful analogy. A single journalist might well parallel a baker, grocer or milkman and be easily expendable from the point of view of public need. A newspaper business, however, especially the only one in town, might more likely parallel 43Shuck v. Carroll Daily Herald, 215 Iowa 1276, 247 N.W. 813 (I933). 44 Ibid., p. 815. 45 a gristmill, a food processing plant, or a milk producers association. All of these institutions have considerable potential power over an area, especially if each is a monopoly in its own field. In Munn v. Illinois,45 the U.S. Supreme Court held that a monopoly gristmill could legally be regulated under state authority in the public interest. In Nebbia v. New York,46 the U.S. Supreme Court upheld the constitutionality of a state statute allowing for the regu~ lation of the price of milk. In this case, the milk in- dustry had not even been declared by the legislature to be a public interest business. The Shuck court's argument continued: If a newspaper were required to accept an advertisement, it could be compelled to publish a news item. If some good lady gave a tea, and submitted to the newspaper a proper account of the tea, and the editor of the news- paper, believing that it had no news value, refused to publish it, she, it seems to us, would have as much right to compel the newspaper to publish the account as would a person engaged in business to compel a newspaper to publish an advertisement of the business that that person is conducting.4 This analogy makes no distinction between commercial and non-commercial advertising, or between an advertisement and a news story. The overly broad language of the analogy would seem to be of little consequence except for the fact 45Munn v. Illinois, 94 U.S. 113 (1876). 46Nebbia V. New York, 291 U.S. 502 (1934). 47Shuck v. Carroll Daily Herald, 215 Iowa 1276, 247 N.W. 813, 815 (1933). 46 that other courts have quoted it for authority.48 One may well want to guard against the wholesale invasion of a news- paper's news columns, even of a monopoly paper as found in the Shggk case, but the court should have asked whether requiring a monopoly paper to treat all advertisers on equal terms would really be a threat to the editorial autonomy of the paper. It was not until 1961, in J. J. Gordon v. Worcester Telegram,49 that a court framed the monopoly newspaper ques- tion in precise terms for the first time, but then failed to answer it directly. Plaintiff was a real estate broker who had been advertising in the papers owned by the Worcester Telegram Publishing Comapny, the only publisher of daily papers of general circulation in the Worcester, Massachusetts, area. After the company declined to accept any more adver- tisements, Gordon went to court claiming that the papers were a "publicity utility" in the area and that it was an absolute necessity that he be allowed to advertise in them. The court stated the monopoly issue well: "Thus the question narrows to whether the publisher of a newspaper 48A roved Personnel v. Tribune Co., 177 So. 2d 704, 706 (Fla. 1965); Bloss v. Federated PubIlcations, 5 Mich. App. 74, 145 N.W.2d 800, 8049(1966). 49J. J. Gordon v. Worcester Telegram Publifihing Co., 343 Mass. 142, 177 N.E.2d 586 (1961). 47 who enjoys a virtual monopoly in a given area . . . may refuse to accept an advertisement if he sees fit to do so."50 In answer to the question, the court repeated the general rule about newspapers being private enterprises, not 51 affected with a public interest. The court then tried to answer whether a monopoly paper, in particular, was strictly a private business: Although the precise question here involved has not often been before the courts, the prevailing View in the few cases that have considered the question--and in our opinion the correct one--is that the publisher of a news- paper is under no obligation to accept advertising from all who may apply for it.52 For authority the court cited Shuck,53 54 Friedenberg v. Times Publishing Co., and Poughkeepsie Buying Service v. Poughkeepsie Newspapers.55 While the papers in Shuck and Popghkegpsie were themselves monopoly newspapers, in none of the three cases cited by the Gordon court was mo- nopoly an issue. All of the precedents cited by the Gordon 50 51 52 Ibid., p. 587. Ibid., p. 588. Ibid. SBShuck v. Carroll Daily Herald, 215 Iowa 1276, 247 N.W. 813 (I933). 54170 La. 3, 127 So. 345 (1930). Friedenberg was a case in which the Supreme Court of Louisiana upheId the le- gality of the Times Publishing Company's refusal to accept commercial advertisements because of plaintiff's past ad- vertising debts. 55205 Misc. 982, 131 N.Y.S.2d 515 (Sp. Ct. 1954). The only general circulation newspapers in Poughkeepsie, New York refused advertisements from a local merchant. The court denied relief to the merchant, arguing the private nature of the newspaper business. 48 court were decided in the context of private business rights to make contracts in a competitive economy. None of the precedents had made any distinction between monopoly and competitive newspapers, nor had they been concerned about the monopoly issue, though they had as much reason to be as had the Gordon court. By asking if a distinction might be made between monopoly and competitive newspapers, and then answering "no" by citing Shuck, Friedenberg and Poughkeepsie, the Gordon court officially brought monopoly newspapers into the main stream of common law rulings without ever examining the mo- nopoly issue. The chance of clothing a newspaper, or at least its advertising function, with a public interest was again bypassed. "The court in Gordon, by its failure to concern it- self with the presence of a monopoly enjoyed by the defend- 56 This is a ant, was in essence condoning its existence." far cry from Brandeis's admonition to decide, based on "the conditions existing in the community affected," if, and how much, regulation of a business the public interest re- quires.57 56Hurley D. Smith, "Torts--Newspapers--Publishers of a Newspaper Under No Obligation to Accept Advertising," Notre Dame Lawyer, XXXVII (May, 1962), 581. 57 See above, text accompanying note 12. 49 58 a 1965 case In Appgoved Personnel v. Tribune Co., in Florida, the monopoly newspaper issue was again squarely before a court. An employment agency which had been placing classified advertisements in the Tribune Company's Tampa Tribune and Tampa Times was told that no more advertisements would be accepted. No reason was given why Approved Person- nel could no longer advertise in Hillsborough County's only English language dailies, while competitors of the employ- ment agency were allowed to continue to place advertisements. The plaintiff alleged that the Tribune Company was exer- cising monopolistic practices in restraint of trade and sought injunctive relief. The Florida court, in holding that a monOpoly paper is a private business said, "The decisions appear to hold that even though a particular newspaper may enjoy a virtual monopoly in the area of its publication, this fact is neither 59 Monopoly has cer- unusual nor of important significance." tainly never been unusual in a case; it has appeared in several of them. But it is only because the courts failed to deal with the existence of monopoly and its potential or actual abuses, that monopoly has appeared to be of "little significance." 58177 So.2d 704 (Fla. 1965). 59Ibid., p. 706. 50 For authority, the Florida court quoted the tea analogy from Shpgk,60 quoted from Poughkeepsie where, as in Shggk, monopoly was not the issue,61 and quoted Gordon on the monopoly issue.62 With Gordon now being cited as authority, earlier cases can fade into the background. The holding that mo- nOpoly newspapers, like competitive papers, are private businesses, free of the obligations of public interest en- terprises, can become firmly entrenched in the law. The legal reasoning dealing with the flimsiest, most transcient city daily of decades ago continues in uninterrupted flow to be applied to the powerful mon0polistic newspaper empires of today, without judicial consideration of the economic changes. Perhaps the consistent holding that a newspaper is strictly private business is the best ruling and should not be altered. But at least it seems that the courts should reflect in their decisions an awareness of the economic realities of the cases they are deciding. One reason employed by some courts to avoid serious consideration of the monopoly issue was that there was no charge or evidence of antitrust violations on the part of 6O£pid.; See above, text accompanying note 47, 6l£pid., p. 707; See above, note 55. 62 note 52. Ibid., pp. 707-708; See above, text accompanying 51 63 the defendant newspapers. The court in Poughkeepsie stated that newspapers' reasons for rejecting an advertise- ment are immaterial "absent factual allegations connecting them with a duly pleaded fraudulent conspiracy or with fur- thering an unlawful monopoly."64 A secure monopoly business does not need to act in "conspiracy," however, so it is questionable if monOpoly newspapers could be successfully prosecuted under the antitrust laws. The general proposi- tion of creating antitrust legislation to break up newspaper ownership is discussed in Chapter IV. Another common claim used by the courts to explain their failure to deal directly with the monopoly question was that the responsibility to regulate a business in the public interest lies with the legislatures, not with the courts.65 In Approved Personnel the court virtually in— vited the plaintiff to petition the legislature for a 63Commonwealth v. Boston ngnscript, 249 Mass. 477, 144 N.W. 466 (I924); Poughkeepsie Buying Sepyice v. Pough- keepsie Newspapers, 205 Misc. 982, 131 N.Y.S.2d 515 (Sp. Ct. I954); J. J. Gorddn v. Worcester Telegram Publishing Co., 343 Mass. 142, 177 N.E.2d 586 (1961). 64Pou hkee sie Bu in Service v. Pou hkeepsie News- papers, 205 Misc. 982, I3I N.Y.S.2d 515, 518 (Sp. Ct. 1954). 65 Commonwealth v. Boston Transcri t, 249 Mass. 477, 144 N.W. 466 (1924); Shuck v. Carroll DainHerald, 215 Iowa 1276, 247 N.W. 813 (1933); Fiieddnbepgv. Times Publishing, 170 La. 3, 127 So. 345 (1936i; Poughkeepsie Buying Service v. Poughkeepsie Newspapers, 205 Misc. 982, 131 N.Y.S.2d 516 (Sp. Ct. 1954); Approved Personnel v. Tribune Co., 177 So.2d 704 (Fla. 1965). 52 change in the newspaper laws if he had a just complaint as it appeared he might.66 "As a rule," Hall writes, "the legislative branch of the government is the one which takes the initiative in de- termining that a business is public by imposing upon it 67 But clearly, courts have certain duties or regulations." an important negative power which could nullify a legisla- tive determination that a business is clothed with a public interest. In Mack v. Costello, the court did not invite the legislature to enjoin papers to publish public notices. It is "the plain duty" of the legislature, the court said, to find a way of publicizing notices "other than through the 68 columns of the newspapers." The Boston Transcript court declared a state statute requiring the publication of ad- 69 ministrative findings to be unconstitutional. In the Wolff Packing Company case, the U.S. Supreme Court claimed the right of review of the constitutionality of any regula- tion resulting from legislative determination that a business is affected with a public interest.70 66Approved Personnel v. Tribune Co., 177 So.2d 704, 709 (Fla. I965). 67Hall, Concept of a Public Business, p. 90. 68Mack v. Costello, 32 5.0. 511, 143 N.W. 950, 952 (1913). 69Commonwealth v. Boston Transcript, 249 Mass. 477, 144 N.W. 466 (1924). 70Wolff Packing Co. v. Court of Industrial Relations of the State of Kansas, 262 U.S. 522 67 L.Ed. 1103, 1109 '(I922). 53 Presumably a court, in exercising its right of re- view of a particular legislative regulation imposed on a public business, would consider the economic structure of the business in question and the public needs. This is what is asked of the courts when plaintiff advertisers, with com- mercial or editorial advertisements, seek judicial relief from monopoly abuses of newspapers. Besides having negative powers, courts can take af- firmative action on their own. While the initiative is usually left to the legislatures to declare a business in the public interest, "courts have sometimes declared a busi- ness to be public which had not previously been recognized 71 as such by the legislature." The public callings of cab- men, ferrymen and inn keepers developed out of early common 72 73 law. In Tallassee Oil and Fertilizer v. Holloway, the Alabama Supreme Court held that a near-monopoly cotton ginning business was affected with a public interest and could be prohibited by the court from requiring customers to sell their cotton seeds to the company as a condition for ginning their cotton. The only case in which a newspaper was held to be affected with a public interest was Uhlman v. Sherman, a 71Hall, Concept of a Public Business, p. 90. 721016., p. 8. 73200 Ala. 492, 76 So. 434 (1917). 54 case decided by a common pleas court, which has never been 74 followed. Uhlman brought suit to enjoin Sherman and two other competing merchants from coercing the local newspaper publisher to refuse Uhlman's commercial advertisements. Uhlman also sought an injunction to restrain the publisher, Crescent Printing Co., from refusing his advertisements. In discussing the economic scope of a newspaper and the importance of the press in American life, the low court in Ohio dealt with the important criteria of monopoly, neces- sity and holding out that should be considered in determin- ing if a newspaper is clothed with a public interest: Newspapers in this country have become universal. They are now practically in every home. They give to the people daily the news from all quarters of the globe . . . They are favored by law, with the publishing at a liberal price of sheriffs' sales, financial reports of city and county officers, sales of county and municipal bonds, . . . rates of taxation, . . . and many other public notices of various kinds. These all add to the interests of the public in the business and serve to make it a success, and cause the public to depend on newspapers for knowledge of these matters of public concern which vitally affect every citizen and taxpayer. We believe that the growth and extent of the newspaper business, the public favors and general patronage re- ceived by the publishers from the public, and the gen- eral dependence, interest and concern of the public in their home papers, has clothed this particular business with a public interest and rendered them amenable to reasonable regulations and demands of the public.75 74Uhlman v. Sherman, 22 Ohio N.P. (n.s.) 225 (C.P. Ct. Defiance County 1919). 75Hall, Concept of a Public Business, pp. 41—42, quoting Uhlman v. Sherman. 55 While the court's social awareness was perhaps ad- mirable, its use of precedent was less sound, and the holding was ambiguous. "We do not intend to hold that a newspaper company may not reject some class or classes of advertising entirely," the court said. "We are of the opinion, however, that the rules should be reasonable and applicable to all persons in the same class."76 What the favored classes should be was not discussed. The Uhlman decision, written in 1919, has never been followed, but the reasoning in it is not dead. In 1966, Justice Adams of the Michigan Supreme Court renewed the argument for considering at least the advertising columns of a newspaper as being clothed with a public interest. In his dissent in Bloss v. Federated,77 Adams argued that it is within the proper judicial role for courts to consider the criteria of monopoly and holding out to determine if news- papers, particularly their advertising function, should be regulated. In making his argument Adams distinguished clearly between a newspaper news columns and advertising space. Certainly our decision should not be so broadly stated as to preclude future plaintiffs--politica1 candidates, commercial enterprises, governmental units--from the 76Uhlman v. Sherman, 22 Ohio N.P. (n.s.) 225, 234- 235 (C.P. Ct. Defiance County 1919). 77Bloss v. Federated Publications, 5 Mich. App. 74, 145 N.W.2d—800 (1966I3aff'd. 380 Mich. 485 (1968). 56 right to insist upon access to newspaper coverage upon equal terms where a newspaper controls the sole means of daily paid printed communication within a given area and the newspaper has held itself out generally to the public as affording such means of communication, subject to its rules and regulations. The issue in this case is not one of freedom of the press to control its news columns but, rather, the right of one person to have published in a newspaper paid advertising upon the same terms and conditions the newspaper has set for other like persons.78 Conclusion A review of the legal notice and commercial adver- tising cases from 1913 to 1968 Substantiates that the courts have consistently held that newspapers are private businesses which are free to make or not make contracts for advertising space. Courts relied heavily on the laissez-faire economic argument that private business must be independent. Even as the monopoly issue became more prominent in recent cases, judges did not evaluate the alleged monopoly of the defendant papers. By relying on cases which did not deal with monopoly, the courts brought monopoly newspapers under the same general rulings as competitive papers without ever giving fair weight to changes in economic conditions. Some courts claimed that they could not provide remedy, even if there were monopoly abuses, because no charges were brought under the antitrust laws or because regulation is strictly a legislative responsibility. 781bid., p. 491. 57 Regulation of public businesses is primarily a legislative responsibility, but the courts do have leeway for taking independent action to prevent an injustice. The courts' rulings in the commercial advertising cases may be the soundest for the American economy as well as for freedom of the press, but it is regrettable the courts paid little attention to the important criteria of monopoly, holding out and necessity to judge whether a newspaper should be clothed with a public interest. This might seem excusable if the courts had relied on First Amendment prohibitions against interference with the press. But First Amendment freedoms were not important considerations for the courts. The fact that the courts decided these cases on the grounds of private business contract, rather than First Amendment protections, emphasizes the commercial nature of newspaper advertising. Had the courts looked more closely at the newspapers in question, they would have found several monopoly news- papers on which advertisers as well as the general public depended. Had the courts wanted to, they could have decided if newspapers in fact do hold their advertising space out to the general public. CHAPTER III LEGAL ANALOGUES FOR EXPANDED ACCESS, AND JUDICIAL RESPONSES Between 1900 and 1968, several newspapers were in- volved in litigation over the rejection of advertising. While some of the newspapers concerned were monopolies in their communities, the central issue in these cases was not monopoly abuse nor First Amendment questions of robust de- bate. Courts showed more awareness of the existence of monopoly in more recent cases, but, in general, judges were concerned with the rights of private newspapers to refuse unwanted advertising contracts. It is only recently that litigation has been under- taken against allegedly monopolistic papers in the name of First Amendment freedoms. Several legal analogues, elab— orated by Jerome Barron in law review articles, have been argued in privately owned newspaper advertising cases in an attempt to open the papers up, usually to editorial adver- tisements. While continuing to hold that private newspapers can reject any and all advertising, the courts still are not facing squarely the First Amendment or monopoly issues, but 58 59 the argument for expanded access, in the name of free speech, has moved from the law review to the courtroom. The concern for robust debate is one legitimate reason for wanting to require newspapers to accept editorial advertising; a more practical, but less lofty goal, however, is to want to require newspapers to accept all legal adver- tising, editorial or commercial, on a non-discriminatory basis. Such a goal serves First Amendment purposes, and at the same time keeps the legal rationale in a commercial-- as well as equal rights--context where courts seem to feel more comfortable. When arguing for a legal right of access to the press, one has only to look to broadcasting for legal par- allels. Broadcasting has long been licensed and regulated in the "public interest." Broadcast regulation was initiated because the demand for use of the limited number of broad- cast channels was too great.1 Unlike newspaper publishers, broadcasters have legal obligations to present diversified points of view. The Federal Communications Act of 1934 required broadcasters to provide "equal time", if requested, to all legitimate po- litical candidates if time was given to one.2 Amended to 1Harold L. Nelson and Dwight L. Teeter, Law of Mass Communications (Minneola, N.Y.: Foundation Press, 1969), p. 407. 2 See, Red Lion Broadcasting v. Federal Communications Commission, 395 U.S. 367, 370 (1969), note I. 60 the Act in 1959 was the "fairness doctrine", which puts an affirmative responsibility on broadcasters "to afford rea- sonable opportunity for the discussion of conflicting views on issues of public importance."3 Two recent court cases have expanded the public in- terest concept of broadcasting. In what Jerome Barron con- siders "one of the most significant cases in public law in recent years," a federal circuit court held that responsible representatives of a community could contest a television license renewal before the Federal Communications Commis- sion.4 Previously, FCC regulations declared that only in- dividuals or groups which had been interfered with economi- cally or electrically had "standing" before the commission to contest a license renewal.5 The federal circuit court held that the United Church of Christ had standing before the commission to pro- test abuses by WLBT, TV in Jackson, Mississippi. Represent- ing the Negroes who make up 45 per cent of the population in the station's prime viewing area, the United Church of 3Ibid. 4Jerome A. Barron, "Access to the Press--A New First Amendment Right," Harvard Law Review, LXXX (June, 1967), 1664; discussion of foice 0; Communication of the United Church of Christ v. Federal Communications Commission,d359 F.2d 994 (D.C. Cir. 1966). 5Office of Communication of the United Church of Christ v. Feddral Communications Commission, 359 F.2d 994, I600 (D.C. Cif. 1966). 61 Christ charged that Negroes were given less television ex- posure than others on the station and that what exposure there was often was disrespectful.6 The federal court be- lieved that some "audience participation" must be allowed in license renewal proceedings.7 Barron writes of the decision: "Church of Christ marks the beginning of a judicial awareness that our legal system must protect not only the broadcaster's right to speak but also, in some measure, public rights in the com- munications process."8 Barron would like to see the public rights with regard to broadcasting extended to newspapers, but the court in Church of Christ was careful to distinguish between the need for regulation of limited broadcasting channels and the freedom to publish.9 "But can a valid distinction be drawn between news- papers and broadcast stations, With only the latter subject 10 For Barron, the existence to regulation?" Barron asks. of powerful monopoly newspapers and the fact that cities are served by more broadcast stations than newspapers makes the 6 7 Ibid., p. 998. Ibid., p. 1005. 8Barron, "Access to the Press," p. 1665. 9Ibid. Barron quotes the court: "A broadcaster seeks and is granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations. .A newspaper can be operated at the whim and caprice of its owners; a broadcast station cannot." 101016., p. 1666. 62 "limited channels" argument obsolete.11 He believes that newspapers deserve to be regulated as much as broadcasting. In a more recent broadcasting decision, the U.S. Supreme Court affirmed a lower court ruling upholding the constitutionality of the FCC's "fairness doctrine."12 The court held that stations must offer a chance for reply, without charge, to anyone who is "attacked" on the air. To Barron, Red Lion is not just a broadcast case. It is a media case. It represents a look at the first amendment in the light of new social realities of concentration of ownership and control in a few hands that has been produced by the twin developments of media oligopoly and techno- logical change. 3 Barron was impresSed by the court's interest in the public's right to a wide range of ideas rather than a single concern for the rights of broadcasters. "It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here," the court said.14 Barron would like to see the principle of fairness extended to newspapers. He recognizes that the fairness 111016. 12Red Lion Broadcasting v. Federal Communications Commission, 395 U.S. 367 (1969). 13Jerome A. Barron, "Access--The Only Choice for the Media?" Texas Law Review, XLVIII (March, 1970), 771. l4lpid. Here Barron quotes from Red Lion Broadcast- ing v. Federal Communications Commission, 395 U.S. 367, 390 II969). 63 doctrine has frequently worked unevenly in broadcasting,15 but this does not, in Barron's View, detract from the value of the goal of fairness. "What is necessary is not to point to the lack of a 'fairness' principle with regard to the legal responsibilities of newspapers but rather to point to the 'fairness' principle as a standard which should have some analogue in the press as well."16 The broadcasting analogue has been argued in one newspaper case, unsuccessfully, since Barron's discussion of it. Associate and Aldrich v. Times Mirror Co., plaintiff tried to get defendant newspaper company to print without alteration an advertisement for the film, The Killing of Sister George.17 A minor part of plaintiff's argument was that the fairness doctrine, as declared constitutional in Red Lion, should govern in a newspaper case. The court re- lied on the "limited channels" argument to distinguish be- tween the need to regulate broadcasting, but not newspapers.18 The courts think of "freedom of the press" as any- thing from the publication of the New York Times to the printing of handbills in a cellar. Powerful newspapers do 15Jerome A. Barron, "An Emerging First Amendment Fight of Access to the Media?" George Washington Law Review, XXXVII (March, 1969), 503. 16 Ibid., p. 504. 17Associates and Aldrich v. Times Mirror Co., 440 F.2d 133 (9Ih Cir. 1971). 18 Ibid., p. 136. 64 have much in common with network television, as Barron points out, but the fact remains that there are unlimited opportu— nities, with little capital, for starting a small newspaper and having it grow.19 Broadcasting, however, involves a considerable initial capital investment and, to date, a finite number of channels. ,Newspaper publishing should not be regulated by the government like broadcasting because the two are different. A right of reply is perhaps a good requirement for broad— casting, but it is too broad a requirement for newspapers. Newspaper editors should retain their powers of selection, even editors of monopoly newspapers. sWhat should be required of newspapers is that the part which they hold out generally to public use, their ad- ‘vertising function, should be accessable to all lawful ad- vertisers without discrimination. If the advertisement in question in Aldrich was not "obscene" under present laws, 19Clifton Daniel, of the New York Times, relates that Norman Mailer and Edwin Fanchdr, who started the Villa e Voice in the 1950's, began to turn a profit after investing only $70,000. In 1969 it had a circulation around 127,000. See Clifton Daniel, "Right of Access to Mass Media--Govern- ment Obligation to Enforce First Amendment?" Texas Law Review, XLVIII (March, 1970), 789. It has been estimated that 150,000 read American "counter-culture" newspapers like the Los Angeles Free Press and Detroit's Fifth Estate. See Edwin Diamond, "Multiplying Media Vices," CoIfimbia Jdurnal- ism Review, VIII (Winter, 1969-1970), 23. The dominant black newspapers of 25 years ago-—Pittsburgh Courrier, Chicago Defender and Baltimore Afro-AmefiCan--have been seriously Ehallenged for circulatidh by more militant papers like the Black Panther and Muhammed Speaks. See L. F. Palmer, Jr., n," Columbia Journalism Review, TrThe Black Press in Transitio IX (Spring, 1970), 31. 65 it is regrettable that the court did not require the news- paper to accept it. But plaintiff, as well as Professor Barron, is speaking too broadly in this writer's opinion, in arguing that a newspaper should accept a paid commercial advertisement because broadcasters must offer a free right of reply. Fairness as a principle is admirable for both broadcasting and publishing, but an editor cannot be regu- 20 A businessman, however, might be lated into "fairness." required to serve all lawful advertising customers equally. Barron has two other important analogues, besides broadcasting cases, supporting his argument that the press should be opened up to editorial advertising and right of reply. One legal trend Barron notes is an expanding right of public access to governmentally controlled property. Barron hopes that this concept of a public forum will ex- tend to private newspapers. The other legal trend cited by Barron is the blurring in some cases of the usual defi- nitions of private and public property. In these cases, courts allow the public exercise of First Amendment privi- leges on private property because the property has become like a public facility. Barron argues that privately owned monopoly newspapers should be considered public facilities. 2oIt is doubtful that a broadcaster can either. See Glen 0. Robinson, "The FCC and the First Amendment: Obser- vations on 40 years of Radio and Television Regulation," Minnesota Law Review, LXVII (November, 1967), 67-163. 66 Before presenting these cases, it is necessary to discuss the concept of "state action," because all of these cases are dependent on it. To overcome the newspaper editor's traditional right to refuse advertising, . . . "the most for— midable obstacle to be overcome is the state action concept of the Fourteenth Amendment. There must be either a cir- cuitous path around the concept, or the newspaper industry 21 To date, no must be shown to qualify under state action." circuitous path has been found, nor have courts come close to considering newspapers to act with any state authority. The Bill of Rights was established as a limitation on the powers of the federal government. Under the First Amendment, the federal government was prohibited from inter- fering with the operation of the press. The passage of the Fourteenth Amendment in 1868 extended to the residents of the individual states the "equal protection of the laws." State governments were thereby prohibited from proscribing individual freedoms which the federal government itself could not proscribe. However, "the prohibitions of the Fourteenth Amend- ment apply only to state action and not to conduct in the private sector."22 Therefore, if a private individual or 21William M. Douberley, "Resolving the Free Speech-- Free Press Dichotomy: Access to the Press Through Adver- tising," University of Florida Law Review, XXII (Fall, 1969), 311. 22Burton V. Wilmington Parking Authority, 365 U.S. 715, 721 (1961Y. 67 business violates the First Amendment rights of another in- dividual, the injured party cannot sue in federal court unless state action can be shown. Private conduct may be considered state action only when it is "so entwined with governmental policies or so impregnated with a governmental character as to become sub- ject to the constitutional limitations placed upon state 23 action." To claim that a privately owned newspaper has violated an advertiser's first amendment right of free ex- pression, the plaintiff must show that the newspaper's denial was largely attributable to the requirements of the government. To Barron, this requires a rather "rabid conception" of state action. He writes: A right of access to the pages of a monopoly newspaper might be predicated on Justice Douglas's open-ended 'public function' theory which carried a majority of the Court in Evans v. Newton, Such a theory would demand a rather rabid conception of 'state action', but if parks in private lands cannot escape the stigma of abiding 'public character,‘ it would seem that a newspaper, which is the common journal of printed communication in a 23Evans v. Newton, 382 U.S. 296 (1965) as quoted in Resident Participationngenver v. Love, 322 F. Supp. 1100, ‘1102 (D. Colo. 1971). The prohibition against individuals violating the constitutional rights of others "under color" of state authority was embodied in the Civil Rights Act of 1871: "Every person who, under color of any statute, ordi- nance, regulation, custom, or usage of any State or Terri- tory, subjects, or causes to be subjected, any citizen of the United States.. to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. (43, U.S.C.A., section 1983, p. 201). 68 community, could not escape the constitutional restric- tions which quasi-public status invites. . . . If mo— nopoly newspapers are indeed quasi-public, their refusal of space to particular viewpoints is state action abridg- ing expression in violation of even the romantic view of the first amendment.24 Barron does not discuss state action at great length, but he does rely on several cases involving state action as analogues for a guaranteed right of access to the press. Barron does not argue strongly that newspapers are imbued with state action, but, as Douberley says,25 the concept of state action is a formidable obstacle to expanded access to the press. In three recent cases where newspapers have refused editorial or commercial advertisements, plaintiffs have claimed the newspapers' action to be illegal state action in violation of the first and fourteenth amendments.26 While the courts,in their decisions, refute the state action claim, they do not examine the monopoly powers of the newspapers involved. The group of cases which appears to support a right of access to private newspapers is a group that expands the 24Barron, "Access to the Press," p. 1669. 25See above, text accompanying note 21. 26Amal amated Clothing Workers of America v. Chicago (tribune, 435 F.2d 470 (7th Cir. 1970); Resident Participa- 1zion.of Denver v. Love, 322 F. Supp. 1100 (19717: Associates a’fid Aldrich v. Times Mirror Co., 440 F.2d 133 (9th Cir. 71971). 69 right of access to public places and publications that had not previously been open for public expression. In Kissinger v. New York City Transit Authority, the federal district court ruled that a municipal transit authority could not, through its hired advertising agency, refuse anti- war advertisements for its subway stations simply because 27 they were "entirely too controversial." The private ad- vertising agency's refusal to accept the advertisements was considered a "state action" by the court because the transit authority was created by the New York State Legislature as a "public benefit corporation."28 Barron recognizes that this case depended on a con— 29 cept of state action, but he thinks it significant that the 27Kissin er v. New York City_Transit Authority, 274 F. Supp. 438, 44% (S.D.N.Y. 1967). Two similar cases in which courts ruled that public transportation agencies that offered advertising space could not arbitrarily refuse to accept controversial political advertisements are Wirta v. Alameda-Contra CostaTransit District, 434 P.2d 982, 64 Cal. Rptr. 430 (1967) and HiITSide CommunityChurch v. City of Tacoma, 455 P.2d 350 (wash. I969YT7 In Wirta, a group of Women for Peace were denied permission to post anti-war ad- vertisements in publicly operated motor coaches. The Calif- ornia court ruled that the transit authority, "having opened a forum for the expression of ideas by providing facilities for advertisements on its busses, cannot for reasons of ad- Ininistrative convenience decline to accept advertisements expressing opinions and beliefs within the ambit of First Amendment protection." pp. 984-985. The transit authority had refused the advertisements on the ground that it took no political advertisements except during election campaigns. 28Kissinger v; New York City Transit Authority, 274 F. Supp. 438, 441 (S.D.N.Y. 19675. 29Barron, "An Emerging First Amendment Right," p. 489. 70 private advertising company which represented the transit authority was named as defendant with the authority. "For one thing," Barron writes, "if the New York Advertising Company is a private company, then it is the first time in American law where a court has suggested that a private or- ganization has a constitutional duty not to deny freedom of expression to those with whom it deals."30 It is appealing to think of a newspaper advertising department as analogous to the advertising agency in Kissinger. Unfortunately the judicial distinction is clear. The private advertising agency was acting in the name of a transit authority created by the state and supported by public funds. The important point of the case, however, is not whether the advertising firm was public or private, but the fact that the public subway could not refuse a lawful ad- vertisement because of its political content. By analogy, it would seem reasonable to prohibit a private newspaper, which holds its advertising space out generally to all cus- tomers, from discriminating against lawful, but perhaps un- popular advertisements, if state action is present or not. Barron suggests further that the Kissinger decision may presage the development in the subways of an affirmative obligation, such as that imposed on broadcasters, to seek conflicting points of view. 3oIbid. 71 The significance of Kissinger is the court's indication that merely abandoning controversy might not satisy the subway's constitutional obligation; the court raised without deciding the question of whether public entities such as the Transit Authority have an affirmative obli- gation to facilitate presentation of controversial public issues.3 It seems unlikely to this writer that any company, private or public, would ever be required to seek paid advertise- ments representing divergent points of view. In another state action case, Wolin v. Port of New 32 the federal district court held that York Authority, Wolin had the First Amendment right to distribute antiwar literature in the New York City Port Authority Terminal, 33 "property essentially dedicated to public use." The court pointed out that the terminal was designated by the state legislatures "in all respects for the benefit of the people of the states of New York and New Jersey. . . . " Evidence of the public nature of the building includes the fact that its securities are tax exempt, the terminal's main concourse is lined with public shops and services, and thousands of pedestrians pass through it everyday.34 Barron sees in Wolin an awareness on the part of the court of the realities of changing living patterns. The court considered the bus terminal to be much like a street, 311bid., p. 490. 32268 F. Supp. 855 (S.D.N.Y. 1967), aff'd. 392 F.2d 83 (2nd Cir. 1968). 33Ibid., 268 F. Supp. 859 (S.D.N.Y. 1967). 34Ibid., 268 F. Supp. 860 (S.D.N.Y. 1967). 72 with the same rights for expression attendant. "This ap- proach recognizes that the scope of permissable uses of governmentally controlled facilities for the expression of opinions must be broadened if the First Amendment is to be relevant to the mass transportation realities of urban life."35 Also significant to Barron was the appeals court's recognition that it is sometimes important for protest to have a forum "where the relevant audience may be found."36 Barron thinks, "The Second Circuit's concern that dissent or protest have an audience is an important and novel devel- 0pment in first amendment case law." Barron recognizes the existing legal difference between a public forum and a pri- vate newspaper, but he thinks that once the concern for access is recognized by the courts, judicial decisions expanding right of access will spread beyond public forums.37 The concepts of a "public forum" and "relevant audience" may eventually extend to privately owned news- papers as the concepts are now being applied to a broader range of governmentally controlled property. The author of this paper would hope that if they are extended it would not 35Barron, "An Emerging First Amendment Right," p. 490. 36Ibid., p. 491. Hundreds of soldiers on leave, who presumably might have been interested in Wolin's literature, passed through the terminal every day. 37Ibid. 73 be beyond a requirement that newspapers accept lawful ad- vertisements indiscriminately. It is doubtful that these concepts could surmount the state action barrier to be ap- plied to private newspapers, but they have already been extended to newspapers supported by state supported insti- tutions which did meet the state action test. In 1969, two plaintiffs managed in federal courts to require newspapers published by state-supported institutions to print editorial advertisements. In Zucker v. Panitz,38 and Lee v. Board of Regents of State Colleges,39 plaintiffs brought suit claiming violation of First and Fourteenth Amendment rights and denial of civil rights under section 1983 of the Civil Rights Act of 1871.40 Zucker concerns a high school newspaper in New Rochelle, New York which had been barred by the principal from accepting an antiwar advertisement from a student group. Board of Regents involves refusal of the newspaper of the Whitewater branch of the Wisconsin State Univeristy System to publish a paid antiwar advertisement. In ruling for the plaintiffs, both federal courts cited Wirta and 41 Kissinger for support. Both judges were aware of Barron's 38299 F. Supp. 102 (S.D.N.Y. 1969). 39 40 41 306 F. Supp. 1097 (W.D. Wisc. 1969). See above, note 23. See above, note 27 and accompanying text. 74 Harvard Law Review article,42 and both thought that news- papers published by state supported-educational institutions were clearly "forums" for expression that should be open to widely divergent views.43 In restricting their rulings to the educational environment, the courts seemed to be apply- ing the "relevant audience" concept set forth in Wolin v. 44 Port of New York Authority. These decisions on school newspapers might well have much broader implications however, as Barron points out. The only student newspaper in a high school does not occupy a very different role in terms of community de- pendencies and expectations than does the only daily newspaper in a community. The daily press is also meant to serve an educational function in its role as supplier of information to the public. Surely the only newspaper 42Zucker v. Panitz, 299 F.Supp. 102,104 (S.D.N.Y. 1969); Lee v. Board of Regents of State Colleges, 306 F. Supp. 1 , 0 W.D. WiSc. 1969). 43Zucker v. Panitz, 299 F.Supp. 102,105 (S.D.N.Y. 1969); Lee v. Board of Regents_gf State Collgges, 306 F.Supp. 1097,1101 (W.D. Wisc. 1969). The court in Re ents said: "As a campus newspaper, the Royal Purple constitutes an im- portant forum for the dissemination of news and expression of opinion. As such a forum, it should be open to anyone who is willing to pay to have his views published therein-- not just to commercial advertisers." 44See note 36 above and accompanying text. An earlier case which helps to muddy the waters regarding pub- lications of state-supported institutions is Avins v. Rut ers, the State University of New Jersey, 385 F.2d 151 (3rd Cir. 1967), in which the federal appeals court upheld the right of the editor of the Rutgers Law Review to refuse publication of an article submitted to him. In Avins state action was not brought forth as an issue, though it is clear that the plaintiff based his claim on the fact that the law review was published by a state- supported university and was therefore "a public 75 in a city can be assigned quasi—public status for the purposes of providing access for banished ideas by way of advertisement and right of reply.4 Barron's willingness to impose a right of reply upon private newspapers is perhaps too great a departure from traditional constitutional interpretations of a free press. Imposing a right of reply on private newspapers would also place an unworkable editorial burden on the courts. But requiring privage newspapers "to be open to anyone who is willing to pay to have his views published therein--not just to com- mercial advertisers"--would promote robust debate without interfering with editorial independence. .While the concept of right of access has expanded in buildings and newspapers supported by public funds, there has been no parallel extension of the right to publish com- mercial or non-commercial advertisements in privately owned instrumentality in the columns of which all must be allowed to present their ideas . . ." (Avins, p. 152). The judge ruled that even in a publication of a state—supported institution editorial decisions of selection must be made. The editors of the law review were within their legal rights declining the plaintiff's article. (p. 153) "The right to freedom of speech," the court said, "does not open every avenue to one who desires to use a particular outlet for expression." The fact that the publication in this case was a law review instead of a newspaper, and that the material submitted was an article instead of a paid advertisement, perhaps distinguishes this case from Board of Regents and Zucker. But certainly editors of state-supported newspapers have editorial functions analogous to those of the editor of a law review. It would perhaps have made issues clearer had the judges in Zucker and Board of Regents attempted to establish a definite distinctiOn. 5Barron, "Access--the Only Choice?" p. 777. 76 newspapers. To date the cases which expand public access to governmentally controlled property--Kissinger, Wolin, Zucker, and Board of Regents--have not been employed by the plaintiffs in any cases in an attempt to force the acceptance of paid advertisements by privately owned papers. Another analogue used by Barron to argue for an ex- panded access to the press is the "blurring" of the distinc- tion between privately owned property and publicly owned property.46 Cases from this argument have been used unsuc- cessfully in an attempt to force newspapers to accept edi- 47 torial advertisements. In Marsh v. Alabama the United States Supreme Court held that the main street of a company owned town had the same function for the dissemination of ideas as the business section of a municipality where streets have always been 48 The court said legal places in which to propagate ideas. that it was a violation of a Jehovah's Witness' First Amend- ment rights of expression for a company policeman to block her from handing out literature on the town's main street. Even though the Jehovah's Witness was blocked by a private 46Barron, "An Emerging First Amendment Right," p. 494. 47 Amal amated Clothin Workers of America v. Chicago Tribune, 435 F.2d 470 (7th Cir. 1970); Resident Participa- tion of Denver v. Love, 322 F.Supp. 1100 (1971). 48 Marsh v. Alabama, 326 U.S. 501, 508 (1946). 77 company, the federal court had jurisdiction under the state action concept because the company policeman arrested her under authority of an Alabama trespassing law. The court said: Whether a corporation or a municipality owns or possesses the town the public in either case has an identical in- terest in the functioning of the community in such man— ner that the channels of communication remain free. The court continued: When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mind- ful of the fact that the latter occupy a preferred po- sition. In Marsh the conflict was the same as in newspaper cases: should private rights of property prevail over those of the first amendment? If one thinks of the First Amendment in affirmative terms, as actively assuring a robust debate, then the language in Marsh can be easily used in arguing for an expanded right of access. A more recent case, in which the supreme court re- lied on Marsh v. Alabama, is Amalgamated Food Employees Union, Local 590 v. Logan ValleyPlaza.51 The court said that a shopping plaza is suburbia's business block, and that the state's trespass laws could not be used to block the exercise of First Amendment rights. Barron sees in this 49Ibid., 507. 5°Ibid., 509 51391 U.S. 308 (1968). 78 52 decision, as he did in Wolin, a recognition by the court of changing economic and social patterns. The growth of monopoly newspapers is a part of this change. What is truly significant about Logan Valley is that it represents a confrontation between modern land use and the first amendment . . . in Logan Valley the Court at- tempts to point out the significance which the shopping center has acquired in American life. The Court rea- soned that in the automobile-centered suburb, the shop- ping center is a focal point for the community, so that access to its parking lot may be indispensible to secure access to the community. The blurring of what is 'private' and what is 'public' which has come to char- acterize so much of our life, eventually may create an access-oriented approach to first amendment values which will endow any natural or obvious forum in our society with responsibilities for stimulating the communication of ideas.53 - In two recent cases, Amalgamated Clothing Workers of 54 America v. Chicago Tribune and Resident Participation of Denver v. Love,55 Marsh and Logan Valley have been cited in a futile attempt to require publication of lawful editorial advertisements. The first judicial feedback to Barron's ideas concerning privately owned media are found in these cases. The judge in the L923 case took considerable time to reject Barron's arguments directly. In Clothing Workers, the union brought suit against the Chicago Tribune Company, the Chicago American Publishing 52See above, text accompanying note 35. 53Barron, "An Emerging First Amendment Right," pp. 493—494. 54435 F.2d 470 (7th Cir. 1970). 55322 F.Supp. 1100 (1971). 79 Company, and Field Enterprises, together the publishers of the four major Chicago dailies of general circulation. The papers,apparently acting independently, refused to publish a union advertisement protesting the sale of imported clothing at Marshall Fields department store. The union claimed that refusing to publish was a state action which abridged the union's First Amendment right of free expression and Fourteenth Amendment right to equal protection under the laws. Field Enterprises, publisher of the Chicago Sun- Times and the Chicago Daily News, refused to publish the editorial advertisement on the ground that it does not print advertisements that name others unless the named parties consent.56 The Tribune said that the advertisement was re- jected under a section of the paper's advertising accept- ability guide which provides for rejecting any advertisement which "reflects unfavorably on competitive organizations, institutions or merchandise," or that is "misleading." Ultimately the paper "reserves the right to reject any ad- vertising which,in its opinion, is unacceptable."57 In an attempt to argue that the newspapers' refusal was a "state action," the union tried to establish a close relationship between the papers and the government. The 56Amalgamated Clothing Workers of America v. Chicago Tribune, 435 F.2d 470,473 (7th Cir. 1970). 57Ibid. 80 union noted that an Illinois statute exempts several cate- gories of newspaper employees.including reporters, from jury duty. Illinois law also obligates newspapers to publish certain legal notices, such as notice of elections and muni- cipal ordinances. State statute excludes newsprint and ink from use taxes. A Chicago city ordinance restricts newsstands on public streets to the sale of papers published in the city of Chicago, giving the newspapers, the union argued, special market privileges. The union also argued that the newspapers have special government privileges in being allowed to use rooms in public buildings specifically desig- nated for news gathering purposes. The union also claimed that the four newspapers,all making the same decision not to publish, formed a monopoly of Chicago's general distri- bution papers. As supporting precedent, the union cited Marsh v. Alabama, and Amalgamated Food Employees Union, Local 58 590 v. ngan Valley Plaza, among others. The circuit court in distinguishing away Marsh and Logan Valley, reverted to the now familiar language of what constitutes "holding out" a business to the public use, and reiterated the basic right of private businesses to make contracts. The sidewalks and streets of a company town or a shop- ping center bear little analogy to the printing press, its product, and the distribution system of a newspaper 58Ibid., P. 473-474. 81 publisher. Unlike the company town or the shopping center, none of the defendants has consented to unre- stricted access by the general publiE to its advertising columns or pages. Such access is a matter of private contract. Nor in the publication of its newspapers has any of the defendants assumed the performance of a public function which carries with It a concomitant obligation to each member of the general public.59 The owners of the company town and the shopping cen- ter might be surprised to know that they "consented to un- restricted access by the general public." The fact that these owners had members of the general public arrested for exercising their First Amendment rights would seem to indi- cate they did not willingly consent to an unrestricted use of their property. Willingly or not, however, the owners of the town and plaza did consent to a general public access. Publishers of large, general circulation newspapers who hold their advertising sections out to the public, have also consented to a general public access. Besides denying the relevance of the judicial au- thority cited by the union, the court in Clothing Workers refuted each claim made by the union that the newspapers have a special relationship with the government, giving the papers a mantel of state action. The newspapers' exemption from newsprint and ink use taxes was admitted by the court to be a "state involvement" in the newspaper business, but it does not provide evidence of actual state participation 59£21§,. P- 475, (emphasis added). 82 in the business, the court said. The exemption from jury duty for newspapermen likewise does not involve state par- ticipation in the business. The exemption is perhaps a benefit to the newspaper businesses, but its purpose is so that the general public will not be deprived of newspaper- men's uninterrupted services.60 The state may require that newspapers publish certain notices, but the court pointed out that the state has no 61 The court did stake in the profits from those notices. not mention, and might have, that there are cases upholding the right of newspapers to refuse to publish notices even when publication is required by statute.62 The court said that the special privileges given to newspapers for use of the streets in distributing papers is not so much to benefit the papers as for public convenience. The number of papers that could be sold is restricted to keep public sidewalks from becoming cluttered. Press facil- ities in public buildings are also for the public welfare-- to help insure that the public gets the news fast--rather than for the advantage of newspapers.63 60 61 Ibid., p. 477. Ibid. 62See Commonwealth v. Boston Transcript, 249 Mass. 477, 144 N.E. 400 (1924) and Mack v. Costello, 32 S.D. 511, 143 N.W. 950 (1913). 63Amalgamated Clothing Workers of America v. Chicago Tribune, 435 F.2d 470, 478 (7th Cir. 1970). 83 On the monopoly issue, the circuit Court pointed.out that none of the defendant publishers have a monopoly posi- tion in the Chicago metrOpolitan.area. In fact, they have a relatively high degree of competition the court thought. No charge of concerted action was made by the plaintiff; "there was no individual 'monopoly power' and there was no exercise of monOpoly power by means of combination."64 It was evidently coincidence that all four major papers refused the same editorial advertisements critical of a major adver- tiser. The seventh circuit also took the time to respond to briefs of amici guriae that argued for establishing a right of access for editorial advertisements. The court refuted the claim that First Amendment guarantees require a news- paper to serve as a public forum. The court said that the First Amendment is to protect the rights of the private publisher: It is urged by amici curiae that the privilege of First Amendment protection afforded a newspaper carries with it a reciprocal obligation to serve as a public forum, and if a newspaper accepts any editorial advertising it must publish all lawful editorial advertisements tendered to it for publication at its established rates. We do not understand this to be the concept of freedom of the press recognized in the First Amendment. The First Amendment guarantees of free expression, oral or printed, exist for all--they need not be purchased at the price amici would exact. The Union's right to free speech' does not give it the right to make use of defendant's printing presses and distribution systems without defend- ant's consent. 64Ibid., p. 477. 651bid., p. 478. 84 The court's rebuttal to the access argument is con— sistent with a long chain of commercial advertising cases. The First Amendment protects the independence of the indi- vidual publisher, big or small; the First Amendment does not imply any affirmative obligations for access to a forum. Another recent case involving the rejection of an editorial advertisement, Resident Participation of Denver v. Love,66 is an even more direct refutation of the Barron thesis. The two defendants were the Denver Post and the Denver Publishing Company which publishes the Rocky Mountain Newg. Lgye was argued in a manner similar to Clothing Workers and judged by the federal district court in much the same way. Plaintiffs submitted advertising copy to the two newspapers critical of a food company that owned controlling interest in a company that planned to construct a plant for cutting up the carcasses of animals. Plaintiffs warned in the editorial advertisement that odor and dirt from the plant would make living in the area very unpleasant. After some question of the legality of the editorial advertisements, plaintiffs submitted modified advertisements that resolved the legality problem. When the newspapers refused to accept these advertisements, plaintiffs sought an injunction, claiming that the newspapers' refusal was a state action in violation of plaintiffs' First Amendment rights. 66322 F.Supp. 1100 (1971). 85 As in Clothing Workers, plaintiffs argued that the papers had a special relationship to the state (Colorado) and the the city (Denver). Specifically, the Resident Par- ticipation organization cited statutes requiring that legal notices be published; they pointed out the exemption of editors and reporters from jury duty; and a provision of the Denver Municipal Code which allows newspapers to put vending machines on public property was mentioned. Plaintiffs claimed that the separately owned newspapers had a monopoly on papers in the Denver area. For supporting authority, plaintiffs cited Logan Valley, Marsh, Terry v. Adams and others.67 The district court denied, as did the court in Clothing Workers, that the specific claims of a special re- lationship between the newspaper and the government estab- 68 lished the requisite state action. Confident that the alleged tie of the papers to the government was disposed of, the court then turned directly to the access issue: Plaintiffs' alternative contention, while considerably less precise, better expresses what the complaint against defendant newspapers is actually about. Plain- tiffs argue that newspapers ought to have a duty to 67Ibid., p. 1102. Terry v. Adams, 345 U.S. 461 (1953) was a case where whites refused participation to Ne- groes in a private election primary which, in effect, se- lected the winner of the later public primary. The United States Supreme Court held that the state of Texas had a legal responsibility to insure that citizens were not denied their lawful right to vote. By passively sitting by, the state was permitting an illegal state action. 681bid., pp. 1102-1103. 86 provide reasonable space for citizens to express their views because in Denver, as elsewhere, newspapers exer- cise 'monopoly control in an area of vital public con- cern.‘ This does not mean, we take it, that defendants are monopolies within the meaning of the antitrust laws, since no violation of those laws is alleged, but rather that the soapbox has yielded to radio and the political pamphlet to the newspaper. . . . However, the fact that defendants control a method of reaching a large audience and that this is a matter of importance to us all does not mean defendants' conduct should be considered gov- ernment conduct and the cases which plaintiffs cite do not support such a proposition.69 With its concern for state action, the court neglects any real assessment of the power of these two separately owned newspapers. The area of "vital public concern" turns out not to be the free flow of ideas through newspapers, but whether newspapers fall within the legal category of state action. In rejecting the appropriateness of Margh or ngan Valley to the case, the court in Lgyg proposed and rejected, without discussion, the idea that newspapers hold their ad- vertising space out to the public generally. The court said that neigher Marsh nor Logan Valley even remotely resembles the case before us. Plaintiffs do not argue, nor do we believe they could, that defend- ant newspapers hold their columns open to the Bublic or perform a function of governmental character.7 In distinguishing away Terry v. Adams,71 the Love court, like the Clothing Workers court, rejected the idea that the government has an affirmative responsibility to impose re- quirements on publishers in the name of the First Amendment: 69 70 Ibid., p. 1104. Ibid. 71See above, note 67. 87 Clearly defendant newspapers are not engaged in an enter- prise which is ultimately the responsibility of govern- ment to regulate or carry out. Nor can we discover in any legislative inaction evidence which suggests that Colorado has permitted newspapers to emasculate the first amendment, for while it is obvious that the fifteenth amendment prohibits racial discrimination in voting, it is not equally clear, even assuming state action, that the first amendment prohibits newspapers from refusing advertisements, at least as long as the refusal has a reasonable basis.72 The last clause is curious. After upholding the traditional interpretation of the First Amendment, the court throws a curve. What constitutes a "reasonable basis" for refusing advertisements would be interesting to know. Adding this last clause seems to be an admission by the court that in some circumstances, judicial remedy might be warranted where an advertisement is rejected for publication. For the court to reject the idea that government has an "ultimate" responsibility to regulate a newspaper, and then to imply that a paper might not be legally free to refuse an advertisement on an "unreasonable" basis, does little to clarify the issues. Finally, the court in Love turned directly to Barron's Harvard Law Review article, and pointed out the chasm which exists between his proposals and the realities of state action. 72Resident Participation of Denver v. Love, 322 F. 1100, 1105 (1971). 88 We note, however, that while Professor Barron spends considerable space exploring a statutory solution to this problem, he devotes much less attention to consti- tutional arguments and but one paragraph to the problem of state action, which we find insurmountable. Professor Barron simply concludes, without noticeable explanation, that newspapers can be subjected to the 'constitutional restrictions which quasi-public status invites.‘ As desirable as this might be, we are unable in good faith to reach it.73 In the Clothing Workers case and the Love case, the state action requirement proved insurmountable. Because of this requirement, legal, but critical viewpoints, which might have-been of value to the community, were squelched in both Chicago and Denver. The fact that the newspapers in these two cities exerted a monopoly power when they acted in agreement, and the faCt that the advertisements in ques- tion would have First Amendment protection if printed, made no difference to the courts. The power of city newspapers to protect the establishment from embarrassment, should not include the right to reject lawful messages in that section of the newspaper which is for sale in the marketplace, the advertising section. Conclusion In the most recent legal attempts to require pri- vately owned newspapers to accept editorial advertisements, the important issues of monopoly and rights to a forum have 73Ibid. 89 been largely lost in concern over the legal concept of state action. Pertinent legal analogues have been argued in an attempt to open privately owned newspapers to editorial ad- vertising, but to no avail. Because of the state action hurdle and because of long legal precedent, the courts have not been moved. If a partial solution to the access problem is to be found, it will not be wholly based on free speech arguments, nor on charges of monopoly abuses. The solution will have to take into consideration the fact that all newspaper ad- vertising is commercial in the sense that it is purchased, and the courts' persistent concern for commercial contract rights will have to be honored. A requirement that news- papers accept all lawful advertisements would be a partial solution. First Amendment ideals would be served, and courts would be demanding no more of newspapers than that they treat all advertisers indiscriminantly, a demand that the courts should make on all commercial enterprises anyway. CHAPTER IV STATUTORY SOLUTION The courts, in holding that newspapers are private businesses that can not be required to accept advertisements, have not weighed adequately in their decisions the public dependence on the advertising columns of large, often monop- olistic, dailies. The courts' concern with the right of contract of private businesses, and more recently with the concept of state action, has barred any remedy for adver- tisers, commercial or editorial, who are arbitrarily denied access to the press. A frequent claim of the judges in advertising cases is that they lack statutory authority to make requirements of the press. Some courts suggested that they might have ruled against a monopoly newspaper if some illegal restraint of trade had been proven under the antitrust laws.1 A more 1Commonwealth v. Boston Transcript, 249 Mass. 477, 144 N.E. 400 (1924); Pou hkee sie Bu in Service v. Pou h- keepsie Newspapers, 205 MlSC. 982, E31 N.Y.S.2d 515 (Sp. Ct. 1954); Gordon v. Worcester Telegram, 343 Mass. 142, 177 N.E. 2d 586 (1961); ChICago Joint Board, Amalgamated Clothing Wgrkersgf America v. Chicago Trihune, 307F._Supp. 422 (n. D. 111., E. D. 19691, afde 435 F.2d 470 (7th Cir. 1970); Resident Participation of Denver v. Love, 322 F. Supp. 1100 (D. Colo. 1971). 90 91 general reference to statutes made by the courts was simply that it was the responsibility of the legislature, not the court, to regulate a business in the public interest. One considers the possibility of a statutory regu- lation of newspapers with great reservation. The First Amendment prohibition against congressional interference with the independence of the press, and the powerful parti- san pressures on individual legislators, are good reasons why legislatures, in general, should not try to interfere with the press. Zechariah Chafee warns against any broad attempt to regulate the press: There are basic objections to any idea that the press should be part of a general scheme of controlled enter— prise, even if that is to be the fate of commodity busi- nesses. Liberty of the press would vanish if the government should assume 'constructive responsibility' for working out a comprehensive plan for each communi- cations industry, or if Congress should set up a com- mission to do for the press what the Interstate Commerce Commission does for railroads.3 The judiciary, rather than the legislature, says Thomas I. Emerson, is the "chief institution of the state capable of 2Friedenberg v. Times Publishin Co., 170 La. 3, 127 So. 345 (1930); In re Louis Wohl, 50 F. d 254 (E.D. Mich., 1931); PoughkeepSIe Buying Service v. ngghkeepsie News- papers, 205 Misc. 982, 131 N.Y.S.2d 515 (Sp. Ct. 1954); AE— prove Personnel v. Tribune Co., 177 So.2d 704 (Fla. App. Tst DIEt. 1965). 3Zechariah Chafee, Jr., Government and Mass Communi- cations, A Report from the Commission on Freedom of the Press (Hamden, Conn.: Archon Books, 1965), p. 594. 92 affording the necessary degree of legal support for a system of free expression."4 Any proposed statutory solution to the access problem must not attempt to establish a "general scheme" for control- ling the press. Whether a legislature tried to open up the press to more divergent views through the enactment of anti- trust laws or through some other statutes, the legislation must be focused on the specific functions of a newspaper that are to be regulated. But the legislation must also be broad enough to allow the courts to apply the access prin- ciples realistically, case by case. To date, statutes have not been used to any great extent to regulate the press. The antitrust laws have been used in a few important cases in which press powers were used coercively in restraint of trade. In Associated Press v. United States,5 the U.S. Supreme Court declared unconsti- tutional wire service by-laws that allowed members of the Associated Press to block membership of competitor newspa- pers. In Lorain Journal v. United States,6 a monopoly news- paper was held in violation of the Sherman Antitrust Act 4Thomas I. Emerson, Toward A General Theory of the First Amendment, Vintage Books (New York: Random House, 1963), p. 31. 5Associated Press v. United States, 326 U.S. l (1945). 6Lorain Journal v. United States, 342 U.S. 143 (1951). 93 when it refused to accept local advertisements from adver- tisers who bought time on a competing radio station. Several suggestions have been made as to how certain press practices might be attacked under existing antitrust laws in an effort to make newspapers more diverse,7 but in general, antitrust laws are poor instruments for increasing access to the press. It is doubtful that the antitrust laws could even serve their primary function we11--to insure eco- nomic competition--with regard to newspapers.8 The Commission on Freedom of the Press warned that the antitrust laws are so vague that they could "be very dan- gerous to the freedom and the effectiveness of the press."9 Zechariah Chafee did not think the Sherman Antitrust Act was a fit instrument for the delicate work of making the press give the news and Opinions which our society needs. How can we recommend it for that purpose when its suita- bility for controlling the cruder traffic in steel and beef and chemicals is far from proved after half a cen- tury. 7See Keith Roberts, "Antitrust Problems in the News- paper Industry," Harvard Law Review, LXXXII (December, 1968), 8See Richard J. Barber, "Newspaper Monopoly in New Orleans: The Lessons for Antitrust Policy," Louisiana Law Review, XXIV (April, 1964), 503-554, and Thomas E. Humphre , "The Newspaper Preservation Act: An Ineffective Step in the Right Direction," Boston College Industrial and Com- mercial Law Review, XII (April, 1971)? 937-954. 9Commission on Freedom of the Press, A Report from the Commission, A Free and Responsible Press (Chicago: Uni- versity of Chicago Press, 1947), p. 85. 10Chafee, Government and Mass Communication, p. 592. 94 Professor Barron says that "antitrust law operates too in- directly in assuring access to be an effective device."11 Antitrust laws are not suitable tools for opening up the press, and there is little likelihood anyway, that Con- gress would pass new antitrust legislation in an attempt to promote access. Congress recently passed an act exempting newspapers from some requirements of the existing antitrust law.12 Whether the Newspaper Preservation Act will help preserve independent editorial voices as it is intended, or whether it will merely make it easier for powerful pub- lishers to consolidate control in a particular area, remains to be seen. But Congress is loosening, not tightening, reg- ulation of newspapers under antitrust laws. If an acceptable statutory solution is to be found to the access problem, as some courts insist is the only way, it will have to be out— side the antitrust field. One rather ambitious statutory proposal for opening up newspapers to non-commercial advertising was debated by the American Civil Liberties Union. In response to a di- rective from the national board of directors, the Communi- cations Media and the Free Speech Association committees of the ACLU prepared a draft statute along with a legal llJerome A. Barron, "Access to the Press—-A New First Amendment Right," Harvard Law Review, LXXX (June, 1967), 1654. 12 Newspaper Preservation Act, 84 Stat. 466 (1970). 95 rationale--based on Barron--for the right of access theory.13 The statute was rejected by the Communications Media Commit- tee, and it was voted that further study of the access prob- lem was necessary.14 There was a long, unresolved debate in the ACLU com- mittee meetings on whether a statute should be like a public accomodations statute,15 prohibiting the refusal of adver— tising because of the "race, color, creed, sex or political belief" of the advertiser, or whether a statute should also prohibit the refusal of advertisements because of "facts, 0 I o o o o 16 opinions, ideas, beliefs, or assertions expressed therein." l3"Legislative Proposal and Supporting Legal Analy- sis on Right of Access to Media Theory," (typewritten memo from the national office to the Free Speech/Association Committee and Communications Media Committee of the American Civil Liberties Union, New York, August 22, 1969), p. 1. See Appendix for full draft statute. 14"Report on Communications Media Committee Discus- sion on Legislative Proposal and Supporting Legal Analysis on the Right of Access to the Media," (typewritten memo from the national office to the board of directors of the Ameri- can Civil Liberties Union, New York, September 25, 1969), p. 4. 15Such a statute would prohibit discrimination on the same grounds as existing public accomodations statutes. For example, the Public Housing Act of 1968 makes it illegal to discriminate in the sale or rental of housing on the basis of "race, color, religion, or national origin." 82 Stat. 83, Pub. Law 90-284, Apr. 11, 1968, sec. 804. 16"Legislative Proposal and Supporting Legal Analy- sis," p. 3. This optional wording is from article II of the draft statute. 96 As Arthur Bonfield, professor of law at the Univer- sity of Iowa, points out, it is different to prohibit dis- crimination because of qualities of the advertiser, such as race or religion, and to prohibit discrimination because of the opinions and beliefs contained in an advertisement. Professor Bonfield writes that Public accomodations statutes already say that news- papers cannot discriminate in such sales [of advertise— ments] based on the religious belief of the potential adVertiser. It is not muéh of an extension to say that they cannot discriminate because of the political belief of the potential advertiser.17 As a practical matter, then, establishing a public— accomodations-type access statute, prohibiting discrimina- tion based on race, religion and sex, would be redundant. °It would also be impossible to enforce. Under such a statute, a publisher could, for example, refuse an advertisement be- cause of racial prejudice but claim only that the content of the advertisement was unacceptable. ' If a statute is to be passed to cpen up newspapers to a wider range of ideas in accordance with First Amendment goals, the statute must prohibit discrimination against legal advertisements which contain "facts, opinions, ideas, beliefs, or assertions" with which a publisher might disagree. Bear- ing in mind the First Amendment protection for editorial 17Letter from Arthur E. Bonfield to Gilbert Cranberg, September 5, 1969, found in files of the national office of the ACLU, New York. 97 advertisements as opposed to "commercial" advertisements,18 one might consider a statute requiring a newspaper to accept only editorial advertisements. However, the general offer- ing to the public of advertising space by large, metropolitan newspapers, and the general public dependence on this adver- tising space for commercial and ideational information, make the distinction between commercial and non-commercial adver- tisements unnecessary.19 What is needed, if indeed an access statute must be legislated, is a rule requiring that large newspapers treat all legal advertisers on an equal basis. Such a rule might take the form of section 763 of the Restatement of Torts: One who engages in a business which carries with it a duty to serve without discrimination and on proper terms all who request his service and who without legal ex- cuse refuses to serve another is liable to the other for the harm caused thereby. . . va newspapers were required to sell advertising to all on an equal basis, then it would be necessary , it has been suggested, to remove some responsibility publishers now have for libelous or unlawful material printed in their papers.21 This suggestion is countered with the phrase in 18See New York Times v. Sullivan, 376 U.S. 254 (1964). 91n many advertisements the distinction between com- mercial and non-commercial would be impossible to make. See Chapter II. 20Restatement of Torts, sec. 763, 1939. 21William M. Douberley, "Resolving the Free Speech- Free Press Dichotomy: Access to the Press Through 98 the Restatement, "without legal excuse." A newspaper should be required to serve all advertisers indiscriminately, ex- cept for those who present a publisher with a legal excuse for refusing an advertisement. Under such a statute, news- papers would retain legal responsibility for what is printed; a publisher could reject an advertisement that extended be- yond the newspaper's own legal boundaries. A statute, embodying the Restatement's broad prin- ciple of non-discrimination, and legislated to apply only to a newspaper's advertising function, would have the advantage of allowing the courts to establish the dynamics of the ac- cess policy on a case by case basis.22 The courts would have responsibility for judging if advertisements were un- justly denied because of a publisher's claim that they ex- ceeded the paper's own legal latitude in the areas of libel, obscenity, privacy, contempt or fraud. Advertisers would seldom want to go to court over rejected advertisements that bordered on illegality. News- papers would seldom want to risk the time and expense of Advertising," University of Florida Law Review, XXII (Fall, 1969), 317; William A. Resneck,thhe Duty of Newspapers to Accept Political Advertising--An Attack on Tradition," Indiana Law Review, XLIV (Winter, 1969), 235. In Farmers -Educational and Cooperative Union v. WDAY, 360 U.S. 525 (1959), the Supreme Court held that a broadcaster was immune from liability for defamatory political statements that FCC regulations prohibited the station from censoring. 22 See above, text accompanying note 4. 99 litigating over advertisements it refused simply because it disagreed with the message contained. Some well-meaning publishers with prejudiced readers might welcome the re- quirement that controversial legal advertisements be pub- lished. When controversies occasionally emerged between publishers and potential advertisers, the courts would be working with subtle questions, but the issues would be fa- miliar to the courts, and workable guidelines have already been established. Another advantage of a statute worded like the Re- statement is that it would allow the individual who is denied access for a lawful advertisement to take his com- plaint to court, himself, for remedy. There would be no necessity to prove state action, and no problem of estab- lishing legal standing before the court.23 Conclusion It would perhaps be best if legislatures did not have to involve themselves in any attempts to increase ac- cess to the press. The smoothest, safest method for expand- ing access would be for the courts to recognize the growing consolidation of newspaper ownership; to admit that the 23"Legislative Proposal and Supporting Legal Analy- sis," p. 7. For a discussion of the problem of establishing standing to contest a broadcasting license renewal see Office of Communication of the United Church of Christ v. Federal Commuhications CommiSsion, 359 F.2d 994 (D.C. Cir. 1966). 100 public is dependent on the advertising space in these papers for diverse points of view as well as for information about commercial products; and to declare that large, general cir- culation newspapers offer their advertising space generally to all lawful customers, and therefore cannot discriminate against some. The courts have not been willing to acknowledge changing economic conditions, to admit to a public depend- ence on the monopoly press, nor to make any requirements on newspapers in the public interest. Instead, the courts have concerned themselves with private contracts and state action, arguing that if monOpoly is the problem, then either a charge of an antitrust violation should be made or the legislature should take responsibility to place public interest obliga- tions on newspapers. It has traditionally been up to legislative initia- tive to declare businesses to be affected with a public interest and to regulate them in whole, or in part. But the courts can take initiative if there is no remedy at law. If the courts will not exercise any initiative, then perhaps a general statute is needed, a statute that requires that newspapers accept all lawful advertisements, but a statute that leaves the courts their rightful role of interpreting the contours of legality. APPENDIX (Note: APPENDIX LEGISLATIVE PROPOSAL FOR RIGHT OF ACCESS THEORY AMERICAN CIVIL LIBERTIES UNION, NEW YORK For explanation of bracketed sections see footnotes.) I For the purpose of this statute a) [news]* publication shall be defined as any [printed or published newspaper, in whatever form and by whatever name called]* [publication]* which appears four or more times per year and which has an average circulation of not less than copies per issue, calculated as including subscriptions, single copies sold, copies sold for retail distribution and copies distributed free of charge or which accounts for more than % of the circulation of all the [news]* publications in the same language which are.distri- buted in a given market, defined as morning daily, evening daily, weekly or Sunday in a given area, de- fined with reference to standard metropolitan area, political subdivision, population, geographic unit, etc., in which a given [news]* publication competes for readers, advertising revenues, etc., or *[News] publications [printed or published newspapers, in whatever form and by whatever name called] ‘ VS. [publication] In both the Biennial Conference and the Communications Media Committee's versions of Recommendation #33, reference is made simply to "publications" or "publications of general circulation." Do the Committees desire to confine the statute to newspapers? 101 102 in which it has a monopoly. The circulation Of a [news]* publication owned, published or written by a person, firm, group or corporation which also owns, publishes or writes one or more other [news]* pub- lications in the same market shall, for the purposes of this definition, include the circulation of such other [news]* publication or publications. Publica- tions which are written or published primarily for a religious purpose other than financial support of a religious organization are exempt from the operations of this statute; b) terms and conditions of advertisement or publication shall include price, space, arrangement, location, commencement and period of insertion; c) [advertising shall not include non-ideational com- mercial advertising except where such advertising is for matter which is protected by the First Amendment to the Constitution.]** II No [news]* publication distributed tO the public for the purpose, in whole or in part, Of commercial profit, or which is in general circulation, shall, by reason, in whole or in part, express or implied, Of the race, color, creed, sex, or [political belief]** of the person, firm, group, or corporation submitting an advertisement or advertisements, or the [facts, Opinions, ideas, beliefs, or assertions ex- pressed therein]** a) refuse to accept for publication or refuse to pub- lish any advertisement or advertisements or discrim- inate as to the terms and conditions of publication or advertisement; *Ibid. **a) [political belief] [or facts, Opinions, ideas, beliefs, or assertions expressed there. The Board discussion on June 21, 1969 reflected a clear difference of opinion as to whether the statute should operate on political, as well as on racial, credal and sexual discrimination. If the Committees choose to submit a narrower, purely-public-accomodations type statute, the brack- eted words should be stricken. 103 b) refuse to accept for publication or refuse to publish any advertisement or make or adhere to any contract for the publication of advertisements on or accom- panied by any condition, agreement or understanding, express or implied, that the person, firm, group, or corporation shall restrict, alter, cut or edit the content of the advertisement or advertisements, or shall allow the content to be restricted, altered, cut or edited by the [news]* publication or by any third party; c) cancel, terminate, refuse to renew or in any manner impair any contract, agreement, or understanding in- volving the publication Of advertisements, between said [news]* publications and any person, firm, group, or corporation. III Any [news]* publication covered by this statute shall continue to have the power to choose not to publish adver- tising or notices, or to determine the total amount Of adver- tising or notices which it will print. IV NO [news]* publication distributed to the public for the purpose, in whole or in part, of commercial profit, or which is in general circulation, or which accepts notices, obituaries, announcements and other items of information submitted by individuals or groups shall refuse to accept for publication or refuse to publish any announcement, notice, Obituary or other item of information submitted by individuals or organizations for publication or discrimin- ate as to any terms or conditions of publication where the reason Of such refusal or discrimination is, in whole or in b) Definition of advertising in Article I (c). Presumably, if the Committee chooses the narrower, purely public-accomodations-type statute, it will wish it to apply to commercial as well as non- commercial advertising, and would strike the limit- ing definition of advertising in Article I(c). 104 part, express or implied, the race, color, creed, sex or [political belief]** Of the person, firm, group, or corpo- ration submitting the notice, Obituary, announcement or other item of information [or the facts, opinions, ideas, beliefs and assertions expressed therein].** *Ibid. **Ibid. BIBLIOGRAPHY BIBLIOGRAPHY Books Brigham, Clarence S. Histor and Bibliography of American Newspapers, l690-I820. VOI. I. Worcester, Mass.: American Antiquarian Society, 1947. Emerson, Thomas I. Toward alGeneral Theory of‘the First Amendment. Vintage Book. New Yofk: Random House, 1940. Gerald, J. Edward. The Social Reeponsibility of the Press. Minneapolis: University of Minnesota Press, 1963. Gillmor, Donald M., and Barron, Jerome A. Mess Communica- tion Law: Cases and Comment. St. Pauiii West Pub- liShing Co., 1969. Hall, Ford P. The Concept of a Business Affected with a Ptblic Interest. Bloomington, Ind]: Principia Press, 1940. Mill, John Stuart. On Liberty. Baton Rouge, La.: Thomas J. Moran's Sons. Milton, John. Areepagitica. Areepagitica and Of Education. Edited By George H. Sahine. New York: Appleton- Century-Crofts, 1951. Nelson, Harold L., and Teeter, Dwight L. Law of Mass Commu- nications. Mineola, N. Y.: Foundation Press, 1969. Talese, Gay. The Kingdom and the Power. Cleveland, Ohio: World Publishing Co., 1969: Wiggins, James Russell. Freedom or Secrecy. New York: Oxford University Press, 1956. 105 106 Articles Bagdikian, Ben H. "Right Of Access: A Modest PrOposal." Columbia Journalism Review, VIII (Spring, 1969), m- T3 0 Barber, Richard J. "Newspaper Monopoly in New Orleans: The Lessons for Antitrust Policy." Louisiana Law Review, XXIV (April, 1964), 503-554. Barrett, John C., and Frampton, Mary Louise. "From the FCC's Fairness Doctrine to Red Lion's Fiduciary Principle." Harvard Civil Rights-Civil Liberties Law Review, V_(January,’i970), 89-103. Barron, Jerome A. "Access--the Only Choice for the Media?" Texas Law Review, XLVIII (March, 1970), 766-782. . "Access to the Press--A New First Amendment Right." Harvard Law Review, LXXX (June, 1967), 1641-1678. . "An Emerging First Amendment Right of Access to the Media?" George Washington Law Review, XXXVII (March, 1969), 4879509. Cox, Archibald. "The Supreme Court, 1965 Term." Harvard Law Review, LXXX (November, 1966), 91-122. Cranberg, Gilbert. "New Look at the First Amendment." Saturdepreview, September 14, 1968, pp. 236-237. Daniel, Clifton. "Right of Access to Mass Media--Government Obligation to Enforce First Amendment?" Texas Law Review, XLVIII (March, 1970), 783-790. Diamond, Edwin. "Multiplying Media Vices." Columbia Jour- nalism Review, VIII (Winter, 1969-70), 22-26. Donnelly, Richard C. "Government and Freedom of the Press." Northwestern University Law Review, XLV (March- April, 1950), 31-56. Douberley, William M. "Resolving the Free Speech-Free Press Dichotomy: Access to the Press Through Advertising," University of Florida Law Review, XXII (Fall, 1969), 293-320. "Free Press: Newspaper Discretion to Refuse Advertising in Monopoly Situation." Minnesota Law Review, LIII (1969), 853-863. 107 Horning, R. Allen. "The First Amendment Right to a Public Forum." Duke Law Review, XII (October, 1969), 931-957. Humphrey, Thomas E. "The Newspaper Preservation Act: An Ineffective Step in the Right Direction." Boston College Industrial and Commercial Law Review, XII (April, 1971), 937-954? N.W.H. "Recent Legislative Proposals to Classify Newspapers and Magazines as Public Utilities and to Regulate Them Accordingly." Virglnia Law Review, XVII (May, 1931), 705-709. Nixon, Raymond B. "Trends in U.S. Newspaper Ownership: Concentration with Competition." Gazette, XIV (1968), 181-193. Note, "Vindication of the Reputation of a Public Official." Harvard Law Review, LXXX (June, 1967), 1730-1756. Pilpel, Harriet F., and Norwick, Kenneth P. "But Can You DO That?" Publishers' Weekly, May 25, 1970, p. 32. Resneck, William A. "The Duty of Newspapers to Accept Po- litical Advertising--An Attack on Tradition." Indiana Law Review, XLIV (Winter, 1969), 222-241. Roberts, Keith. "Antitrust Problems in the Newspaper In- dustry." Harvard Law Review, LXXXII (December, 1968), 319-366. Robinson, Glen 0. "The FCC and the First Amendment: Obser- vations on 40 Years of Radio and Television Regula- tion." Minnesota Law Review, LXVII (November, 1967), 67-173. Smith, Hurley D. "Torts--Newspapers--Publishers of a News- ‘paper Under No Obligation to Accept Advertising." Notre Dame Lawyer, XXXVII (May, 1962), 575-581. Stevens, John D. "Proposal to ACLU: Newspapers Must Carry All Viewpoints." Journalism Educator, XXIII (Fall, 1968), 22-24. ' Cases Abrams v. United States, 250 U.S. 616, 63 L. Ed. 1173 (1919). 108 Amalgamated Food Emplgyees Union, Local 590 v. Logan Valley Plaza, 391 U.S. 308 (I968). Approved Personnel v. Tribune Co., 177 So.2d 704 (Fla. App. lst Dist. I965). Associated Press v. United States, 326 U.S. l (1945). Associates andAldrich v. Times Mirror CO. 440 F.2d 133 ((9th Cir. 1971). Avins v. Rutgers. 385 F.2d 151 (3rd Cir. 1967). Bloss v. Federated Publications, 5 Mich. App. 74, 145 N.W. 2d 800 (1966), aff'd 380 Mich. 485 (1968). Brass v. North Dakota, 153 U.S. 391, (1894). Budd v. New York, 143 U.S. 517 (1892). Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). Chicage Joint Boarthmalgamated Clothing Workers Of America v.4Chica O Tribune, 307 F. Supp. 422 (N.D. IlI., E. D. I969), aff'd 435 F.2d 470 (7th Cir. 1970). Commonwealth v. Boston Transcript, 249 Mass. 477, 144 N.E. 400 (1924). Curtis v. Butts, 388 U.S. 130 (1967). Dennis v. United States, 341 U.S. 494 (1951). Farmers Educatlonal and COOperative Union Of America v. WDAY, 360 U.S. 525 (1959). Friedenberg v. Times Publishing, 170 La. 3, 127 SO. 345 (1930). German Alliance Ins. v. Lewis, 233 U.S. 389 (1913). Gordon v. Worcester Telegram, 343 Mass. 142, 177 N.E.2d 586 (1961). In re Louis Wohl, 50 F.2d 254 (E.D. Mich., 1931). Inter-Ocean Publishing v. Associated Press, 56 N.E. 822 (Sp. Ct., III. 1900). Kissinger v. New York City Transit Authority, 274 F. Supp. 438 (S.D.N.Y. 1967). 109 Lee v. Board of Regents of State Colleges, 306 F. Supp. 1097 (W.D. Wis. 1969). Lorain Journal v. United States, 342 U.S. 143 (1951). Lord v. Winchester Star, 346 Mass. 764, 190 N.E.2d 875 (1963). Mack v. Costello, 32 S.D. 511, 143 N.W. 950 (1913). Marsh v. Alabama, 326 U.S. 501 (1946). Munn v. Illinois, 94 U.S. 113 (1876). National Union Fire Ins. v. Wanberg, 260 U.S. 71, (1922). Nebbia v. New York, 291 U.S. 502 (1934). New York Times v. Sullivan, 376 U.S. 254 (1964). News Publishing v. Associated Press, 114 Ill. App. 241 (lst Dist., Chicago 1904). Office of Communication Of thegnited Church Of Christ v. Federal Communications Commission, 359 F.2d 994 (U.C. Cir. 1966). Poughkeepsie Buying Service v. Poughkeepeie Newspapers, 205 Misc. 982, 131 N.Y.S.Zd 515 (Sp. Ct. 1954). Red Lion Broadcasting v. Federal Communications Commission, 395 U.S. 367 (1969). Resident Participation of Denver v. Love, 322 F. Supp. 1100 (D. Colo. 1971). Shuck v. Carroll Daily Herald, 215 Iowa 1276, 247 N.W. 813 (I933). State ex. rel. Star Publishing v. Associated Press, 60 S.W. 4—-7 91 (Mo. Sp. Ct. 1900). Tallassee Oil and Fertilizer v. Holloway, 200 Ala. 492, 76 So. 434 (1917). Uhlman v. Sherman, 22 Ohio N. P. (n.s.) 225 (C.P. Ct. De- fiance County 1919). Wirta v. Alameda;Contra Costa Transit District, 434 P.2d 982, 64 Cai} Rptr. 430 (19677. 110 Wolff Packing CO._y. Court Of Industrial Relations of the State of Kansas, 262 U.S. 5227 (I922). Wolin v. Port of New York Authorit , 268 F. Supp. 855 (S.D. N.Y. 1967), aff'd. 392 F.2 83 (2nd Cir. 1968). Zucker v. Panitz, 299 F. Supp. 102 (S.D.N.Y. 1969). Statutes Civil Rights Act Of 1871. United States Code Annotated, Vol. XLII (1970). Federal Communications Act. United States Code, Vol. XLVII (1958). Newspaper Preservation Act. Statutes at Large. LXXXIV (1970). U.S. Constitution. Amendments I and XIV. Reports Bottini, Ronald L. "Access to the Press: A New Right?" Freedom of Information Center Report No. 216., Columbia, Mo.: University of Missouri School of Journalism, March, 1969. Chafee, Zechariah, Jr. Government and Mess Communications. A Report from the Commission on FreedOm of the Press. Hamden, Conn.: Archon Books, 1965. Commission on Freedom of the Press. A Report from the Commission. A Free apg Responsible Press. Chicao: University Of Chicago Press, 1947. Hocking, William E. Freedom of the Press: A Framework of Principle. A Report from the Commission on EEEedom of the Press. Chicago: University Of Chicago Press, 1947. Report of the Nationa1_Advisory Commission on Civil Dis- orders. Otto Kerner, chairman. New York: Bantam Books, 1968. 111 Unpublished Material American Civil Liberties Union, National Office. Inter- office Communications, 1968—1970. (Typewritten.) Miscellaneous Editor and Publlsher International Yearbook, 1970. New York: Editor and Publisher, 1970. Restatement of Torts., 1939. U.S. Congress. Senate. Committee on the Judiciary. Anti- trust and Monopoly. Hearin s before the subcommith tee on Antitrust and Monopon of the Committee on the Judiciary on S. 1312, The Failing Newspaper Act, 90th Cong., lst sess., 1967. ”111111 1111117111711 (3