Reilly's right to sue

The "standing" argument keeps activists out in the cold -- and monopolies flush
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EDITORIAL One of the more effective ways the courts have kept activists out in the legal cold over the years is to deny them what's known as "standing" — the right to sue. You want to fight the government in court over the destruction of a wilderness area? First you have to prove that you'll be damaged by the logging or mining or development — and until relatively recently, unless you personally owned land or a business in the immediate vicinity, you were out of luck. You want to sue to force San Francisco to abide by federal law and create a public power system? No can do: individual citizens have no standing to sue over violations of the Raker Act. Only the secretary of the interior or the city attorney can do that — and neither one has been willing to do so in half a century.

Some of the most important advances in public-interest law have been expansions of the right of standing — the right of individuals to sue over major political issues when the government agencies that are supposed to be watchdogs have failed to do their jobs. But now the two big newspaper chains that dominate the Bay Area want to deny that right to real estate investor Clint Reilly.

In filings March 16, the Hearst Corp. and MediaNews Group sought to get Reilly's suit against the monopolization of the local newspaper market thrown out of court. The grounds? Reilly is, well, just a citizen. Just a reader of the papers and someone who buys ads in them. Just someone who will suffer the untold damage of losing diversity in media voices in the community. Someone who, the monopolist lawyers say, has no standing to sue.

The problem, of course, is that the government agencies that clearly have standing to try to block two publishing barons from conspiring to end newspaper competition in the Bay Area — the attorneys general of the United States and California — have refused to do anything except smile and look the other way while Hearst and MediaNews go about their diabolical business. So if an individual like Reilly has no right to go to court, then there will be no legal obstacle to the barons' plans.

The obvious legal answer, of course, is that the judge in the case, Susan Illston, must toss out this specious argument, allow the suit to continue, and get to the serious legal issues at stake.

The case is obvious: the people who will be injured most by the elimination of newspaper competition are the readers, the citizens, the political activists ... the public. And if a member of the public can't sue to stop it, there's not a lot of hope for justice.

In fact, as Joe Alioto, the attorney for Reilly, points out, the Sherman and Clayton antitrust laws were specifically written to allow individuals to sue over monopolistic practices, "because the authors of those laws didn't trust the government to control monopolies."

But the real message here is that the new California AG, Jerry Brown, can't simply follow in his predecessor's lead and ignore the clear antitrust implications of the MediaNews and Hearst deals. Is Reilly the only one who will stand up against the publishing barons? Where are you, Jerry? *

PS Where is the US attorney's office, which was so quick to put Josh Wolf in jail, when the real lawbreakers in the publishing business are making millions by eliminating competition?

PPS The San Francisco Chronicle's story on the filing, by Bob Egelko, didn't quote Reilly or Alioto in response. And Reilly's legal response is under court seal — thanks to Hearst and MediaNews, which have demanded that all documents remain secret. If the media barons don't justify that secrecy to the court by March 28, the records will be opened. If not, we will continue our so-far-successful court battle to open the records.