Amdt1.7.10.3 Labor and Antitrust Regulation of Media

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Just as newspapers and other communications businesses are subject to nondiscriminatory taxation, they are entitled to no immunity from the application of general laws regulating their relations with their employees and prescribing wage and hour standards. In Associated Press v. NLRB,1 application of the National Labor Relations Act to a newsgathering agency was found to raise no constitutional problem. The Court explained that “[t]he publisher of a newspaper has no special immunity from the application of general laws,” and noted that the federal law did not interfere with “the impartial distribution of news.” Similarly, the Court has found no problem with requiring newspapers to pay minimum wages and observe maximum hours.2

In another case, the Court rejected a First Amendment challenge to using antitrust laws to break up restraints on competition in the newsgathering and publishing field.3 The Court suggested that antitrust regulation could serve First Amendment purposes—protecting press freedom by promoting “the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.” 4 Thus, both newspapers and broadcasters, as well as other such industries, may not engage in monopolistic and other anticompetitive activities free of the possibility of antitrust law attack,5 even if such activities might promote speech.6

301 U.S. 103, 132 (1937). back
Okla. Press Pub. Co. v. Walling, 327 U.S. 186 (1946). back
Associated Press v. United States, 326 U.S. 1, 7, 20 (1945). back
Id. at 20. back
Lorain Journal Co. v. United States, 342 U.S. 143 (1951) (refusal of newspaper publisher who enjoyed a substantial monopoly to sell advertising to persons also advertising over a competing radio station violated antitrust laws); United States v. Radio Corp. of Am., 358 U.S. 334 (1959) (FCC approval no bar to antitrust suit); United States v. Greater Buffalo Press, 402 U.S. 549 (1971) (monopolization of color comic supplements). See also FCC v. Nat’l Citizens Comm. for Broad., 436 U.S. 775 (1978) (upholding FCC rules prospectively barring, and in some instances requiring divesting to prevent, the common ownership of a radio or television broadcast station and a daily newspaper located in the same community). back
Citizen Publ’g Co. v. United States, 394 U.S. 131 (1969) (pooling arrangement between two newspapers violated antitrust laws; First Amendment argument that one paper will fail if arrangement is outlawed rejected). In response to this decision, Congress enacted the Newspaper Preservation Act to sanction certain joint arrangements where one paper is in danger of failing. 84 Stat. 466 (1970), 15 U.S.C. §§ 18011804. back