Times-Picayune Publishing Company v. United States/Dissent Burton

Mr. Justice BURTON, with whom Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice MINTON join, dissenting.

The majority opinion seeks to avoid the effect of United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236, and of International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20, by taking the position that the Times-Picayune does not enjoy a 'dominant position' in the general newspaper advertising market of New Orleans, including all three papers, as a single market. The complaint, however, is not and need not be dependent upon the relation of the Times-Picayune to that entire market.

The complaint is that the Times-Picayune enjoys a distinct, conceded and complete monopoly of acess to the morning newspaper readers in the New Orleans area and that it uses that monopoly to restrain unreasonably the competition between its evening newspaper, the New Orleans States, and the independent New Orleans Item, in the competitive field of evening newspaper advertising. Insistence by the Times-Picayune upon acceptance of its compulsory combination advertising contracts makes payment for, and publication of, classified and general advertising in its own evening paper an inescapable part of the price of access to the all-important columns of the single morning paper. I agree with the District Court that such conduct violates the Sherman Act under the circumstances here presented. See also, Fed.Rules Civ.Proc., 52(a), 28 U.S.C.A., 'Findings of fact shall not be set aside unless clearly erroneous * *  * ' and Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162. In view of the disposition made of this case by the majority, it is not necessary to discuss the terms of the decree.