Newspaper Preservation Act

Origin

The law was passed in response to a 1969 decision by the Supreme Court of the United States, Citizen Publishing Co. v. United States in which the Court invalidated a JOA between two Tucson newspapers, finding it in violation of antitrust laws. Justice William O. Douglas famously wrote for six members of the Court: “Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not.”

Congress responded less than a year later, after strong lobbying from the newspaper industry, with the Failing Newspaper Act, which eventually became the Newspaper Preservation Act. The law begins with a finding that “it is hereby declared to be the public policy of the United States to preserve the publication of newspapers in any city, community, or metropolitan area where a joint operating arrangement has been heretofore entered into because of economic distress or is hereafter effected” under the act. The act grandfathered existing JOAs (including the Tucson JOA that precipitated the original lawsuit) and set parameters for the creation of new ones. The law also permits the paired newspapers to engage in activities that would otherwise be antitrust violations, such as price fixing, profit pooling, and market control. At the same time, the stated purpose of the act is to foster competing voices in communities where two newspapers may not be commercially viable.

The Justice Department opposed the law, while many newspaper owners—particularly those engaged in current JOAs—supported it. The Hearst newspaper chain sent letters to the Nixon administration and to President Nixon directly, requesting the administration's support of the act. Several critics have suggested that Nixon's favorable treatment of the act was a result of a desire for positive press coverage (indeed, the administration reversed its original opposition). The act was signed into law in July 1970, and 22 JOAs were in effect at the time.

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