United States v. Village Voice Media
UNITED STATES DISTRICT COURT
CITIZEN'S FOR VOLUNTARY TRADE
Pursuant to the Antitrust Procedures and Penalties Act. 15 U.S.C. § 16 (b)-(h) (Tunney Act), and the notice filed by the United States in the February 12, 2003, edition of the Federal Register, Citizens for Voluntary' Trade (CVT) respectfully submits the enclosed public comments in response to the proposed Final Judgment in the above-captioned case.
CVT is a national nonprofit association based in Washington. DC. CVT is organized to promote the public welfare by examining the enforcement of antitrust laws against private businesses and individuals. CVT's standing policy is to file comments in all Tunney Act proceedings brought by the United States under the antitrust laws.(1)
CVT has no financial interest in the outcome of this case, nor do we have any financial interest in any competitor of Village Voice Media or NT Media. These comments reflect the view of the Board of Directors of Citizens for Voluntary Trade and the individuals named below.
The proposed Final Judgment requires each defendant to divest newspaper assets to third parties approved by the United States. These third parties will then resume publication of newspapers previously closed by the defendants as part of what the government deemed a per se illegal market allocation agreement. The new publications will then take the place of newspapers closed as a result of the defendants' conduct, restoring competition to the marketplace.
Regardless of the alleged merits, the proposed Final Judgment is preempted by the First Amendment, which categorically prevents the United States from interfering with the free operation of the press.(2) Forcing a newspaper publisher to divest assets because it chooses to cease publication falls within the sphere of government conduct prohibited by the First Amendment. It is a form of compelled speech, no different in constitutional substance from censoring a newspaper for publishing unpopular opinions. Neither the facts alleged in the complaint nor the text of the antitrust laws can justify such a basic violation of the First Amendment. Even the most "anti-competitive" conduct is protected by the First Amendment.
For these reasons, the Court should reject entry of the proposed Final Judgment as inconsistent with the public interest, and dismiss the complaint with prejudice.
Dated: April 11, 2003
1. S. M. Oliva, the president of Citizens for Voluntary Trade, separately filed a brief amicus curiae with the district court on March 26, 2003, objecting to the execution of the proposed Final Judgment prior to a public interest determination by the court. The brief was accepted by the Court on April 3.
2. The First Amendment reads, in relevant part "Congress shall make no law. . .abridging the freedom of speech, or of the press."