By Bruce B. Brugmann
And so there it was, buried today in the business pages of the Chronicle/Hearst, the Contra Costa Times/Singleton, and the San Jose Mercury News/Singleton, the latest major development in one of the great buried stories of our time in the local daily press.
Editor and Publisher, the trade magazine for newspapers, got this major story right: Its online head read, "S.F. Judge Blocks Hearst/MediaNews Collaboration," and its strong lead made the key point: "In a victory for a local businessman seeking to overturn a complex San Francisco Bay Area newspaper deal between Hearst Corp. and MediaNews Group Inc., a federal judge Tuesday issued a preliminary injunction blocking the chains from collaborating on joint distribution or advertising sales of their papers."
This was an important ruling in the Clint Reilly/Joe Alioto antitrust case, which stands as the only real impediment to the Hearst/Singleton deal that would destroy daily competition and impose regional monopoly in the Bay Area.
(See Guardian stories and previous blogs.)
But the ruling and the coverage by burial by the Hearst/Singleton press illustrates a major problem with the case: the publishers, who are normally hollering about the government suppression of documents and government manipulation of the news, this time got the documents sealed and so only their side of the story is getting out. Hearst/Singleton got a stringent protective order that gives them essentially unreviewable discretion to control the documents in the case. (Alioto presumably agreed to the order to get an early trial date).
Here's how this works: Hearst/Singleton designate any document they are producing in discovery as "secret."Alioto cannot contest that under the order, nor is there any dispute mechanism by which he can challenge it. If Alioto wants the document, he has to accept it under the protective order. Then, if he wants to file it with the court, he has to do so under seal. And, under the protective order, the judge has no discretion and must appeal the seal order. Alioto's brief is also sealed, if it references the sealed document. This was the case with the critical April 26, 2006 letter from Hearst to Singleton that outlined an agreement to explore joint national and internet adversiting sales as well as joint distribution.
The judge has referenced and quoted the letter and stated in her preliminary injunction order that the letter "is in the form of a potentially binding agremeent" and indicates the two companies have "expressed the desire, if not the intent," to collaborate in the Bay Area. Yet the letter is under seal, as is another letter the judge has quoted and a whole batch of obviously explosive discovery documents which Alioto got under discovery.
The letter is a publisher document and is not under seal and they can talk about it if they want to. After all, if they want to disclose their own secrets, it is up to them. Thus: the publishers have crafted a protective order that gives them control of the documents, gives the court no power to control its own filings, and no way for anyone to challenge any secret designations. The effect is that the Riley/Alioto filings are secret, the publishers filings are public, the public gets only one side of the story. And then the Hearst/Singleton papers put its side out in wimpy little stories buried in their business sections with wimpy little heads. (Example: today's Chronicle head, "Hearst-MediaNews ruling extended." Now there's a rouser.) And there is no explanation of how the publishers rigged the protective order to promote their side of the story and muzzle Alioto.
All of this amounts to a terrible precedent for Hearst and Singleton and their chain allies (McClatchy, Gannett, Stephens) to be setting in federal court against the free press, the First Amendment, and open government.
Repeating: Thank the Lord for Reilly and Alioto. And where the hell are the federal antitrust attorneys (they are still mucking about, pledging folks to secrecy and then asking softball questions)? And where the hell are outgoing Attorney General Bill Lockyer (who seems cowed by the case and is busy chasing those dread pre-texters in the Hewlett-Packard board room)? And where the hell is incoming Attorney General Jerry Brown (who has announced he is going to continue to live in Oakland under the heavy thumb of Singleton's Oakland Tribune and his galaxy of East Bay papers, without making a peep to date)? B3
P.S. l: I am not blaming the reporters nor their editors for their patriotic Hearst First and Singleton First coverage. They have the unenviable assignment of covering the monopoly moves of their publishers in New York and Denver that are aimed at savaging their own papers and their own staffs and their own communities. It is not, let us stipulate, a fun job. I hope they are keeping detailed diaries. B3
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