Michigan Citizens for Independent Press v. Thornburgh

PETITIONER: Michigan Citizens for Independent Press
RESPONDENT: Thornburgh
LOCATION: Cumberland County Central Booking

DOCKET NO.: 88-1640
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 493 US 38 (1989)
ARGUED: Oct 30, 1989
DECIDED: Nov 28, 1989

Thomas W. Merrill - on behalf of the Respondents
William B. Schultz - on behalf of the Petitioners

Facts of the case


Media for Michigan Citizens for Independent Press v. Thornburgh

Audio Transcription for Oral Argument - October 30, 1989 in Michigan Citizens for Independent Press v. Thornburgh

William H. Rehnquist:

We'll hear argument next in Number 88-1640, Michigan Citizens for an Independent Press v. Dick Thornburgh, Attorney General of the United States.

Mr. Schultz, you may proceed.

William B. Schultz:

Mr. Chief Justice, and may it please the Court:

This case seeks review of a decision former Attorney General Edwin Meese to grant a joint operating arrangement, or JOA, to the seventh and eighth largest newspapers in the country, the Detroit News and the Detroit Free Press.

The JOA would allow the papers to jointly set circulation and advertising prices.

It would also allow them to divide the Detroit market so that the Free Press would be the morning paper and the News would be the afternoon paper and they would publish a joint weekend edition.

Such an agreement would ordinarily violate the antitrust laws, but in 1970 Congress adopted the Newspaper Preservation Act which gave the Attorney General the authority to grant an antitrust exemption to newspapers in limited circumstances.

Petitioners' challenge is based on three arguments, each of which I will address.

The first is that the joint operating agreement here is not consistent with the purposes, structure and policies of the Newspaper Preservation Act.

Second, the record here does not support the Attorney General's finding that the Free Press was in probable danger of financial failure.

And third, the court of appeals erred in not applying the rule that antitrust exemptions must be narrowly construed.

Before I get to those legal issues, there are three critical facts that I would like to highlight that distinguish this case from every other JOA application.

Each of these facts was either adopted by the Attorney General or by the administrative law judge whose fact-findings the Attorney General accepted, and, therefore, they are established facts for purposes of the legal issues here.

William H. Rehnquist:

Mr. Schultz, we review this under an arbitrary and capricious standard?

William B. Schultz:

Your Honor, the factual issues would be reviewed under an arbitrary and capricious standard.

The legal--

William H. Rehnquist:

So when we're talking about facts are established by record, we're not quite in the same ball park as if you're appealing from a jury verdict or findings of a court.

William B. Schultz:

--Well, and these are facts about which I don't believe there is dispute.

They're facts that were--

William H. Rehnquist:

Well, but the overall standard of review is arbitrary and capricious, not supported by substantial record... evidence considered on the record as a whole.

William B. Schultz:

--That's correct.

It's arbitrary and capricious or otherwise--

William H. Rehnquist:

So you... you have a much greater burden to... to upset a determination here where you're just under the arbitrary and capricious standard.

William B. Schultz:

--Or otherwise not in violation of law.


William B. Schultz:

So on the factual issues it would be arbitrary and capricious.

On the legal issues it would be whether there's a violation of law.

The first of these critical facts is that the newspapers fought the competitive battle in Detroit to a virtual draw.

Those are their words as they described the competitive situation at the time they announced the JOA.

And this assessment establishes that the papers considered themselves to be competitive equals.