The First Amendment prohibits Congress from making any law respecting the freedom of the press. Taken literally, of course, there’s no such prohibition on the executive branch. Thus, it’s apparently okay for the Justice Department to directly control the operations of newspapers.As I discussed last year, the DOJ’s Antitrust Division has been trying to dissolve a joint operating agreement between the Charleston Daily Mail and the Charleston Gazette. The DOJ said it was dissatisfied with the editorial quality of the Mail under the agreement. After nearly three years of litigation, the newspapers surrendered and will sign a new series of operating agreements at gunpoint.
That’s not an exaggeration. The DOJ’s proposed order expressly states the newspapers “shall enter into, and abide by the terms of, the Amended and Restated” joint operating agreement. The new agreement cannot be modified or terminated without the DOJ’s written permission.
The DOJ order further states that, “The publication of the Charleston Daily Mail as a Daily Newspaper shall not be terminated unless it is a Failing Firm and the United States has given prior written approval.” Even if the paper fails, the DOJ order also dictates how the Mail’s assets must be disposed.
Finally, the DOJ order mandates a 50% discount for new subscriptions to the Daily Mail and prohibits the Gazette from matching any such discount.
So let’s recap: The United States Government has forced two “independent” newspapers to sign a contract governing their business and editorial operations, prohibits one newspaper from ceasing to publish daily, and fixes subscription prices for both newspapers. All to protect “competition.”
The DOJ order is still subject to a comment period and judicial review, but history suggests neither of these things will stand in the Antitrust Division’s path. (And just to be clear, this is coming from DOJ bureaucrats, not the political leadership; this case started in the Bush administration, and there’s been no significant policy change under the current regime.)