Information

Justice Newspaper


In 1884 H. M. Hyndman the Social Democratic Federation (SDF), the first Marxist political group in Britain. Hyndman became editor of the SDF's weekly newspaper, Justice. Contributors to the journal included William Morris, Eleanor Marx, Tom Mann, John Burns, Henry Hyde Champion, Walter Crane and Edward Aveling.

Although circulation was always fairly small, Justice continued publication until 1925.


Justice News

The press serves a vital role in our democracy. 1 Its special place is reflected in the First Amendment, which “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.” 2

The principle that competing news sources best promote a free society dovetails with our antitrust laws, which rest on the “assumption that competition is the best method of allocating resources in a free market.” 3 The antitrust laws promote competition, which encourages businesses to lower costs, improve their products, and find ways to serve customers better. 4 The spur of competition is particularly sharp in industries experiencing technological change, where innovation and fresh ideas become essential to survival in the marketplace.

As it has in earlier eras, dynamic change marks the nation’s media industries and, in particular, the newspaper industry. The advent of the Internet has meant increased competition for readers and advertising dollars, and the economic downturn has exacerbated the impact of this competitive stress. These trends, in combination with other factors, have left many newspapers in perilous financial straits, with a few closing and others forced to undertake drastic cost cutting.

The fate of the newspaper industry is not just the parochial concern of industry participants and investors. Newspapers play a special role in furnishing high-quality news to our nation’s citizens. Today, newspapers make investments in news gathering unmatched by other media. 5 Many new sources of news and commentary are emerging, and the Internet has enabled the broader dissemination of news and analysis. Still, recent developments have caused a number of observers to fear that, if newspapers are unable to put themselves on stronger financial footing, and continue to cut back their coverage or shutter their doors, other media outlets will not fill the journalism gap. 6 If true, we as a society must be concerned as this industry struggles to find new business models to compete going forward.

Given the Antitrust Division’s involvement with the industry over time, I want to offer some perspective on competition issues in the newspaper industry as the industry negotiates this new economic environment. I will start by revisiting two earlier periods when newspapers were forced to adjust to new challenges—namely, radio and then television—and then turn to recent trends in the industry. Next, I will discuss the Division’s important role in preserving competition in the newspaper industry. Finally, I will conclude with an explanation of the Division’s method of analyzing mergers and collaborations in the newspaper industry, showing the flexibility that newspaper owners have under the antitrust laws to experiment with new strategies.

Looking forward, the core of my message is that the antitrust laws and the Antitrust Division have a limited—though critical—role to play as the newspaper industry looks for new, procompetitive business models that will allow high-quality journalism to flourish. It is impossible to predict the direction the industry will take and what a newspaper will look like in the future—if something resembling a newspaper as we know it today even exists in the future. It is not the province of the antitrust laws or the Antitrust Division to protect or preserve existing market structures, to anoint new business models, or to pick winners and losers. Rather, the antitrust laws and the Antitrust Division serve to ensure that parties do not use illegal means to disrupt the competitive process as it works itself out. For those considering new business models to meet to changing market realities, the Antitrust Division continues to welcome opportunities to clarify the requirements of the antitrust laws, as we did in last year’s business review letters to the Associated Press and MyWire Inc.

I. Transitions in the Newspaper Industry: Yesterday and Today

I want to start by reviewing how new technologies have impacted the newspaper industry, both in the past and the present. In the last century, newspapers saw some readers and advertisers migrate to radio and then to television, while, in this century, some readers and advertisers have departed for the Internet. In response to both developments, newspapers have made changes in order to maintain their appeal, offering new types of content, adjusting their formats, looking for new sources of revenue, and streamlining their operations, among other strategies. This is how the competitive process should work, with businesses adapting to changes in the marketplace in ways that benefit consumers. I want to offer thumbnails of these periods of transition in the newspaper industry to set the stage for a discussion of how the antitrust laws and the Antitrust Division safeguard this competitive process.

Today’s problems in the newspaper industry have precedent in the 1920s and 1930s, when broadcast radio developed into a national medium that provided an alternative news and advertising platform to the daily newspaper. 7 The emergence of broadcast radio roughly coincided with the Great Depression, leading to a period of declining circulation and advertising revenue for most newspapers. 8 In response, newspapers throughout the country began to differentiate their news product from radio’s news product. Many newspapers revamped their formats and content, offering more in-depth reporting of local and national news stories. 9 Newspapers began providing content not available on radio, including comic strips and weekend magazines. 10 By innovating, newspapers were able to compete effectively for subscriber and advertising revenue by addressing reader preferences for certain bundles of information, formatting, and publication cycles.

A response of a different character—one at least potentially raising antitrust concerns—was the “Biltmore Agreement,” an unwritten agreement between newspapers and the major radio networks. As described by one historian, the Biltmore Agreement “was a plan by which the broadcasters agreed to cease gathering their own news in exchange for a limited bulletin service to be provided by the wire services, with restrictions to prevent these news broadcasts from competing in any way with the newspapers.” 11 The parties did not formalize the agreement in writing because they feared antitrust scrutiny. 12 It appears that, at bottom, the Biltmore Agreement constituted a scheme among newspapers and radio stations to limit the ways in which they worked to attract readers and advertisers, a scheme to adjust to new market realities through collusion rather than innovation.

Almost immediately, the agreement broke down because many independent radio stations had not consented to it. New radio news services began to emerge to provide independent radio stations with news, and these services began to capture a larger share of advertising revenues than the newspapers and wire services complying with the agreement. Consequently, two of the larger news services, the United Press and International News Service, broke from the agreement and began to compete with the independent radio news services for the advertising revenues that could be earned by selling news to radio broadcasters. 13 It is the responsibility of antitrust to police such attempts to short circuit the competitive process.

The emergence of television broadcast networks in the 1950s again forced newspapers to change. Style, content, and news coverage evolved in response to changing reader demands. 14 Yet, notwithstanding that change, the growth of television contributed to the demise of many afternoon newspapers as people became accustomed to getting news in the evening in other ways. Specifically, as the former editor of the Wall Street Journal has put it, evening papers were “crushed by a phenomenon that can be summed up in two words: Walter Cronkite.” 15

Despite the emergence of television and radio as sources of news and advertising space, newspapers did not become obsolete. Indeed, they thrived from the innovation induced by the challenge of new media options. 16 Some newspapers changed long-held newspaper conventions and formats. For instance, USA Today began to use color newsprint and published “short, quick and to the point” stories similar to those featured on television. 17 Other newspapers began emphasizing feature stories and analysis pieces. 18 At the same time, computer systems and other new printing technologies made it possible for many newspapers to streamline their production processes and dramatically reduce costs. 19 These and other changes allowed newspapers to become highly profitable during the 1970s and 1980s. 20

In short, the newspaper industry has confronted technological advances in previous eras. Through the innovation induced by these challenges, newspapers adjusted and prospered.

Today, the newspaper industry faces another technological game—changer—the Internet. I know that I do not need to educate you on the changes occurring in media marketplaces, so I will not linger on this topic. However, I hope that a brief review of the challenges facing the newspaper industry will set the stage for a discussion of antitrust enforcement in the industry.

As discussed by many, 21 the advent of the Internet, along with other factors, has undermined the business model of many daily newspapers. 22 In recent decades, most daily newspapers have relied primarily on print advertising to support the cost of doing business, with approximately 70 to 80 percent of total revenue coming from a combination of national advertising, local advertising, and classified advertising. Circulation typically has generated most of the balance of daily newspaper revenue, and other revenue sources collectively have provided relatively small additional revenues.

Print advertising revenue, however, is eroding. Some of the decline is attributable to the current economic downturn, but much of it is attributable to a migration of both readers and advertisers to Internet sources. There has been a major shift in classified advertising from newspapers to websites like Craigslist and Monster. Likewise, national and local advertisers increasingly are utilizing the Internet and other options for their advertising needs.

Other factors have exacerbated the impact of the loss of print advertising revenue. Some readers are shifting from paid subscriptions to free online news sources, resulting in declining circulation. Additionally, some newspaper owners labor under heavy debt loads from recent acquisitions.

Online revenue has not offset these losses. Many newspaper owners offer their online content for free, having reasoned that they could attract more readers and thereby sell more advertising. Although online advertising dollars have grown steadily, online advertising rates are just a fraction of print advertising rates for several reasons, including the transient nature of online readership, the multitude of websites offering advertising opportunities, and the huge inventory of potential online advertising space.

These economic woes have had an impact on the production of high-quality journalism. Publishers have laid off reporters and other employees, closed domestic and foreign news bureaus, and cut back other expenditures. Some newspapers have sought bankruptcy protection, and still others have closed their doors. This has led some commentators to worry that these developments will lead to a deleterious reduction in the production of the high-quality journalism so important to our civic life.

We still see positive prospects for the industry. Demand for news remains strong, and significant demand from advertisers remains. Newspaper owners are experimenting with new business models and strategies, and commentators are proposing others. For example, publishers are proposing or implementing a variety of models for charging for access to online content, working to license their content for distribution on e-readers, cell phones, and other devices, exploring ways to monetize their online content better and to make online advertising more effective, cutting costs by outsourcing routine business functions, and partnering with other newspapers or emerging nonprofits to generate content. The breadth of these strategies is a testament to the vision and creativity of industry leaders, as well as to the seriousness of the challenges facing the industry.

Additionally, although many newspapers have scaled back their investments in journalism, new forms of news gathering and publishing have emerged, including start-up online news organizations and nonprofit organizations dedicated to investigatory reporting. For example, ProPublica, a nonprofit newsroom, published 138 investigatory stories in 2009, which were offered to traditional news publications free of charge. In 2010, one of its stories was awarded a Pulitzer Prize for investigatory reporting. Additionally, in a number of localities, projects devoted to local reporting have arisen, for example, the Voice of San Diego, a nonprofit online news source focusing on issues impacting the San Diego region, and MinnPost, a nonprofit journalism enterprise covering local issues in the Minneapolis/St. Paul area. These efforts have filled some of the gaps in local news reporting that were left by downsized newspaper newsrooms.

II. The Antitrust Division’s Protection of Competition in the Newspaper Industry

We at the Antitrust Division cannot predict which of these strategies, if any, will succeed in the crucible of the marketplace. We are agnostic about the particular business models that will prevail, trusting in the competitive process. I can say with confidence, however, the antitrust laws and the Division’s enforcement efforts will not hamstring publishers’ efforts to implement procompetitive strategies. In fact, in this period of transition, vigilant antitrust enforcement is imperative to ensure that anticompetitive conduct does not tip the market in a particular direction. In the balance of my remarks, I will discuss the importance of antitrust enforcement in the newspaper industry and illustrate the latitude that newspapers have under the antitrust laws to adapt to changing marketplace dynamics.

The Antitrust Division has a long history of enforcing the antitrust laws in the newspaper sector. Stated in general terms, the antitrust laws bar conduct that restrains competition and harms consumers by raising prices, restricting output, or reducing innovation. Among the conduct proscribed by the antitrust laws are agreements that restrain trade, mergers that pose a likelihood of competitive harm, and anticompetitive, unilateral acts that create or maintain a monopoly. A review of a few Antitrust Division cases in the newspaper industry, both historic and recent, will, I hope, illuminate important principles of law and illustrate the benefits of the antitrust laws for consumers and for the industry and economy as a whole.

Associated Press v. United States 23 confirmed the principle that newspapers, like other businesses, may not unreasonably restrain trade. In that case, the Department of Justice challenged Associated Press (or AP) by-laws restricting members from selling news to non-members and granting members the power to block non-member competitors from AP membership. The Supreme Court rejected the argument that newspapers are entitled to a “different and more favorable kind of trial procedure than all other persons covered by the [Sherman] Act,” 24 explaining that “[t]he First Amendment affords not the slightest support for the contention that a combination to restrain trade in news and views has any constitutional immunity.” 25 Newspapers, the Court found, are subject to the same legal standards as are other businesses: “All are alike covered by the Sherman Act.” 26 The Court went on to find that the relevant by-laws were “on their face . . . restraints of trade” that had “hindered and restrained the sale of interstate news to non-members who competed with members.” 27

The impact of radio on the media marketplace was at the center of another important Supreme Court decision, Lorain Journal Co. v. United States. 28 Between 1933 and 1948, the Journal newspaper held a monopoly over “the mass dissemination of news and advertising, both of a local and national character,” in Lorain, Ohio. 29 In 1948, that monopoly was threatened when the FCC licensed a new radio station in the Lorain area to broadcast music, news, and advertising. In response to this new entry, the Journal refused to accept advertisements from any Lorain business that also advertised on the radio station.

The Court found that the newspaper’s conduct was an illegal attempt to monopolize under Section 2 of the Sherman Act. “Because of the Journal’s complete daily newspaper monopoly of local advertising in Lorain and its practically indispensable coverage of 99% of the Lorain families,” the Court found, the newspaper’s conduct forced “numerous advertisers to refrain” from advertising on the radio. 30 The Court determined that this conduct “reduced the number of customers available” to the radio station, “strengthened the Journal’s monopoly in that field,” and “tended to destroy and eliminate” the radio station altogether. 31

I have spoken before about the importance of Lorain Journal as precedent respecting Section 2 of the Sherman Act. 32 The decision is also noteworthy because it marks antitrust’s sensitivity toward competitive dynamics between newspapers and other media.

A third Division action reaching the Supreme Court concerned a joint operating agreement (or JOA) between newspapers in the same geographic area. The first JOA was formed in 1933, and, over the next 30 years, 27 additional JOAs were formed across the United States. 33 Although JOA terms vary, they generally allow newspapers to reduce costs through joint publishing and distribution operations. On the other hand, JOAs also raise significant competitive concerns since they can enable cartel-like pricing of newspaper advertisements and subscriptions.

In 1965, the Division challenged a JOA between the only daily newspapers in Tucson, Arizona. The JOA included provisions to set subscription and advertising rates jointly, to pool profits from the papers’ joint operations, and to preclude the owner of either paper from competing with the joint entity. In Citizen Publishing Co. v. United States, the Supreme Court agreed with the Antitrust Division that the JOA was a per se violation of the Sherman Act. 34

A year after the Citizen Publishing decision, Congress responded by passing the Newspaper Preservation Act (or NPA), which permits otherwise prohibited collective pricing in an effort to preserve editorial diversity. 35 The statute allows newspapers competing in the same geographic market to form JOAs that collectively set circulation and advertising rates if, among other things, they preserve separate editorial boards. 36 The NPA extended antitrust immunity to certain JOAs that had been formed before its passage. For new JOAs, Congress provided that a newspaper “in probable danger of financial failure” is eligible to enter into a JOA with a competing newspaper. 37

To this day, we continue to maintain our vigilance in the newspaper industry. Just last year, we settled litigation against two JOA newspapers in Charleston, West Virginia. 38 In this lawsuit, we alleged that the owners of the two newspapers violated the antitrust laws when they merged and took steps to shut down one of the papers in the JOA, the Daily Mail. 39 Before the Division stepped in, the parties had embarked on their plan by terminating newsroom staff at the Daily Mail, cutting the Daily Mail’s budget substantially, and reducing the Daily Mail’s promotions, among other things. Their actions harmed readers and advertisers in Charleston, resulting in, among other consequences, a reduction in the amount and quality of original content generated by the Daily Mail, the elimination of discounts, a reduction in the distribution area of the Daily Mail, and lower household penetration for advertisers in the Daily Mail. Had the plan succeeded, readers would have been deprived of a choice of daily newspapers and likely would have paid higher prices for a newspaper with less content and lower quality. 40 The Division’s lawsuit halted this plan, and, today, the residents of Charleston can choose between two newspapers with independent editorial voices.

As you likely are aware, some have called for an extension of antitrust immunity for news organizations. 41 These well-intentioned, but ultimately misguided, attempts to permit otherwise illegal behavior correctly have not been adopted. As I have stated previously, new legislative exemptions for specific industries should be avoided absent a clear and compelling reason why such an exemption is in the public interest, despite an obvious loss in consumer welfare. 42 Vigorous competition on the merits, protected by the antitrust laws, best serves the interests of consumers. I agree with the Antitrust Modernization Commission’s conclusion that departures from this maxim of our free enterprise system should be rare because they tend to benefit a small minority of economic actors at the expense of consumers in the form of higher prices, reduced output, lower quality, and reduced innovation. 43

The changes in consumer and advertiser trends that have convulsed the industry are not caused by antitrust enforcement, and limiting antitrust enforcement will not reverse those changes. Indeed, as I mentioned above, the industry currently enjoys an exemption from the antitrust laws through the NPA, yet many newspaper owners still face significant difficulties. In fact, that exemption may well have contributed to industry sluggishness in making difficult but necessary choices forced by changing market dynamics. 44 Any new exemption from the antitrust laws seems particularly inappropriate at this point—industry dynamism should be given a full opportunity to play out in the marketplace before any antitrust exemption is even considered.

It is possible that the calls for further immunity were prompted, in part, by the misperception that the antitrust laws hamstring newspapers as they attempt to meet new challenges in the marketplace. 45 To the contrary, courts and enforcers applying the antitrust laws undertake a flexible and nuanced inquiry that accounts for both the potential competitive harms and benefits of the conduct at issue and that considers recent and future industry developments, ensuring that conclusions reflect current market reality. The analysis does not rest on rigid categories or past conclusions, but rather involves a fact-intensive study of the conduct under scrutiny to determine whether it threatens harm to competition and consumers. Conduct that does no more than bring new products or services to market or help businesses operate more efficiently does not concern the antitrust laws. I hope that, after an explanation of our methods of analysis, you will appreciate that the antitrust laws pose no barriers to innovative, procompetitive strategies that newspaper owners devise.

I will first discuss potential newspaper mergers. In broad terms, the Division seeks to identify and challenge competitively harmful mergers—that is, mergers that create, enhance, or entrench market power or facilitate its exercise—while avoiding unnecessary interference with mergers that are competitively benign or neutral. 46

Normally, a crucial step in the Division’s analysis of a proposed merger is defining the relevant markets—an antitrust term of art—and determining whether the merging parties compete in any of those markets. Generally, a market is a group of products such that a hypothetical firm that was the only seller of those products in a geographical area could profitably impose a small but significant and non-transitory increase in price. 47 Defining a market can be particularly difficult in two-sided markets, an economic term describing a situation where a firm’s results in one market influence its results in another market. Newspapers, for instance, compete for both advertisements and readers. The number of readers who subscribe to a newspaper directly affects the amount advertisers are willing pay to advertise in the newspaper. Similarly, a robust set of advertisements attracts readers who value the information set forth in those advertisements. 48

When faced with a proposed merger of two or more newspapers, the Division collects and examines the facts to determine whether local daily newspapers, national daily newspapers, community newspapers, radio stations, television stations, or Internet sources belong in the same market on either side. In past investigations, the Division has concluded that non-newspaper media do not sufficiently constrain the pricing of newspaper advertisements, the pricing of newspaper subscriptions, or newspapers’ investments in news and editorial content, and thus are not in the same market. 49 That conclusion is perfectly consistent with the observation that newspapers have been losing subscription and advertising revenues to other media, as some degree of competition across market boundaries is the norm. Whether changes in technology and consumer preferences may lead to the conclusion that a relevant market should include sales of advertisements (or content) by both newspapers and other media remains something that should be analyzed on a case-by-case basis. 50

If the merging parties participate in a concentrated market, and the merger would increase the level of concentration in that market significantly, the merger potentially raises competitive concerns and often warrants scrutiny. 51 In our analysis, we consider evidence that the new entity would generate merger-specific efficiencies offsetting any potential harm posed by the increase in concentration. 52 For instance, in our statement addressing our decision to close an investigation of one fairly recent newspaper acquisition, the Division explained that any potential harm from the transaction was limited and offset by “large cost savings” anticipated from “combining . . . production and delivery systems.” 53

Finally, in assessing mergers, the Division does not seek to force competition where it is not possible. As I mentioned above, the NPA allows a newspaper “in probable danger of financial failure” to enter into a JOA with a competing newspaper. 54 In addition, parties can defend a merger, in the newspaper industry or in any other industry, on the ground that one of the merging parties is failing. In evaluating a failing-firm defense in the newspaper industry, the Division would determine whether the assets of the weaker newspaper, including its reportorial staff and innovative features, would exit the market if they were not acquired by the stronger newspaper. 55 Importantly, both the NPA and the failing-firm defense are consistent with a policy of competition. Both attempt, from the standpoint of consumers and the general welfare, to make the best of the situation where a newspaper cannot survive on its own, either by preserving that newspaper’s independent editorial voice or by keeping its assets in the marketplace. 56 Appropriately, these provisions are applied strictly and narrowly, so that the competitive process unfolds everywhere economic realities allow.

Briefly, I will mention a different kind of merger that is, appropriately in the view of the Department of Justice, disfavored under the Federal Communications Commission’s cross-ownership rule. In general, the rule prohibits a TV or radio station owner from owning a daily newspaper in the same community, although the bar does not apply if the FCC finds that the “public interest, convenience, and necessity would be served” by cross-ownership. 57 The rule serves to promote a diversity of viewpoints for our democracy. 58

Next, I will discuss potential non-merger collaborations among newspapers. In general, the antitrust laws afford companies considerable freedom to work with other companies, proscribing only conduct that harms competition and consumers. The courts and the Antitrust Division undertake a flexible, multi-factor inquiry into a joint venture’s overall competitive effect, asking whether the venture threatens competitive harm, whether it promises competitive benefits, and whether the benefits offset the harms. 59 Collaborations that enable newspapers to cut costs, improve service, or offer new or better content, all else equal, do not raise competition issues.

A couple of recent business review letters illustrate the Division’s agile approach to newspaper collaborations. Firms that are uncertain about the legality of proposed conduct can request a business review from the Antitrust Division. Upon receiving a request, the Division reviews the proposed conduct and may issue a letter stating its enforcement intentions. 60 This process allows firms to “avoid possibly costly litigation with the Justice Department and the business problems that arise when a company is involved in antitrust litigation with the government.” 61 Let me stress that we at the Antitrust Division are open to meeting with newspapers considering new strategies and new ways to compete, either through business reviews or otherwise.

Last year, the Division issued a business review letter with respect to a proposal by MyWire Inc. to develop and operate an Internet subscription news aggregation service called the Global News Service. 62 The Global News Service plans to aggregate and index news content from hundreds of major and local daily newspapers, television networks and stations, radio networks and stations, and magazines throughout the United States, creating a preferred content provider network. The network would provide a “related-item” content block that participating publishers would add to their websites and that would link to other preferred content provider stories on related topics. By clicking these hyperlinks, consumers would be able to browse among related free and fee-based material from different publishers’ websites.

In its business review letter, the Division announced that it had no present intention of challenging MyWire’s proposal because, among other things, (1) MyWire’s content agreements with participating publishers would be nonexclusive and would allow publishers to join competing online news aggregation services and (2) MyWire would operate independently of participating publishers by setting its own consumer subscription rates for access to all publishers’ fee-based content within the MyWire network. The Global News Service would benefit consumers by allowing them to access a broad network of related content without having to conduct separate online searches. Publishers also would benefit not only from increased traffic to their websites, but also from their share of the subscription revenues based upon consumer usage as well.

Last April, the Division issued a business review letter stating that the Division had no present intention of challenging a proposal by the Associated Press to develop and operate a voluntary news registry to facilitate the licensing and Internet distribution of news content created by the AP, its members, and other news originators. 63 The registry is now operating and consists of a centralized digital database containing news content from multiple content owners. It allows content owners to register and list individual items of news content that are coded in a standardized format, specify the uses others may make of that content, and detail the terms on which such content may be licensed.

The Division determined that the development and operation of the registry was not likely to reduce competition among news content owners because, among other things, content owners would be free to select which content to include or not include in the registry content owners would be allowed to offer registered news content outside of the registry without restriction, including joining competing Internet registry services and the registry would be open, on nondiscriminatory terms, to all owners and users of Internet news content. Moreover, the registry may provide procompetitive benefits by reducing transaction costs since content users could access the registry to determine quickly the licensing and use terms applicable to a specific content owner or to individual items of registered content. Additionally, the registry is able to digitally track and measure Internet use because registered news content is coded in a standardized digital format, thus providing content owners with valuable information, not currently available, about how their content is being used on the Internet. In short, the registry offers the promise of a new, efficient way for licensing and tracking news content over the Internet.

These business review letters illustrate the latitude publishers have as they meet the demands of the twenty-first century media marketplace. Collaborations that do not restrain competition unnecessarily pass muster under the antitrust laws, particularly if those collaborations promise efficiencies or other benefits.

As James Madison instructed, “To the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression.” 64 A free and independent press is just as central to our democracy today, and will be as important tomorrow, as it was in Madison’s time. Preserving that independence is of crucial importance, underscoring government’s need to act carefully as the industry finds its own ways to adapt to changing technologies and citizen needs.

I am committed to helping the industry find proconsumer economic models that preserve newspapers’ crucial civic functions, and the Antitrust Division looks forward to playing its proper role as the industry reinvigorates itself. The antitrust laws are flexible and adaptive, and do not stand in the way of procompetitive solutions to the challenges facing the newspaper industry. At the same time, it is important to note that government needs to tread lightly when dealing with newspapers because a news industry free from government management is important to our democracy.

Thank you for the opportunity to address you today.

1. I am grateful to Frank Blethen (The Seattle Times), Jim Brady (formerly with The Washington Post), Nicholas Lemann (Columbia University), Bernie Lunzer (The Newspaper Guild-Communications Workers of America), Michael Porter (Harvard University), Clay Shirky (New York University), Ben Scott (formerly with Free Press), and Paul Starr (Princeton University) for sharing their perspectives on the newspaper industry with me. These remarks do not reflect confidential information obtained in, and are not intended to bear upon, any matter in which the Antitrust Division is presently involved.

2. Associated Press v. United States, 326 U.S. 1, 20 (1945).

3. Nat’l Soc’y of Prof’l Eng’rs v. United States, 435 U.S. 679, 695 (1978).

4. See N. Pac. Ry. Co. v. United States, 356 U.S. 1, 4 (1958) (“The Sherman Act was designed to be a comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade. It rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conductive to the preservation of our democratic political and social institutions.”).

5. See, e.g., Clay Shirky, Newspapers and Thinking the Unthinkable (Mar. 13, 2009), available at http://www.shirky.com/weblog/2009/03/newspapers-and-thinking-the-unthinkable/ (“Print media does much of society’s heavy journalistic lifting, from flooding the zone—covering every angle of a huge story—to the daily grind of attending the City Council meeting, just in case. This coverage creates benefits even for people who aren’t newspaper readers, because the work of print journalists is used by everyone from politicians to district attorneys to talk radio hosts to bloggers.”).

6. See, e.g.,Steve Coll, Statement at Hearing on the Future of Journalism Before the Subcomm. on Communications, Technology, and the Internet, S. Comm. on Commerce, Science, and Transportation, 111th Cong. 4 (May 6, 2009), available at http://commerce.senate.gov/public/?a=Files.Serve&File_id=0330b270-52b7-4938-9d81-c55318a4194d (“But even the most optimistic practitioners of the new journalistic models tend to accept that a world in which Web-based publishers or aggregators could afford, for example, to simultaneously fund and operate professional journalism bureaus in Baghdad, Kabul, Islamabad, Europe and Asia is simply not foreseeable at present.”).

7. See Gwenyth L. Jackaway, Media at War: Radio’s Challenge to the Newspapers, 1924–1939 84 (1995).

10. Roger Fidler, Mediamorphosis: Understanding New Media 70 (1997).

11. Jackaway, supra note 7, at 27.

14. See William R. Lindley, Newspapers in the Twentieth Century, in History of the Mass Media in the United States: An Encyclopedia 455–56 (Margaret Blanchard ed., 1998).

15. Paul E. Steiger, Read All About It: How Newspapers Got into Such a Fix, and Where They Go from Here, Wall St. J., Dec. 29, 2007, at A1 see also Charles Romeo, Russell Pittman & Norman Familant, Do Newspaper JOAs Charge Monopoly Advertising Rates?, 22 Rev. Indus. Orgs. 121, 122 (2003).

16. See Jackaway, supra note 7, at 84–85.

17. See William R. Lindley, 20th Century American Newspapers: In Content and Production 45 (1993).

19. Randy Reddick, Newspaper Competition, in History of the Mass Media in the United States: An Encyclopedia 440, 441 (1998).

20. Fidler, supra note 10, at 130.

21. My discussion of the current state of the newspaper industry draws on a wealth of resources, including the reporting of a number of newspapers, data made available by the Newspaper Association of America, and a number of studies by academics, industry experts, and foundations.

22. It bears emphasis that generalizations about the newspaper industry, including the ones made in my remarks, should be read with a degree of caution. There are approximately 1,400 daily newspapers in the United States, and they face different challenges and opportunities.

32. Christine A. Varney, Assistant Attorney Gen., U.S. Dep’t of Justice, Vigorous Antitrust Enforcement in this Challenging Era, Address Before the U.S. Chamber of Commerce 9–11 (May 11, 2009), available at http://www.usdoj.gov/atr/public/speeches/245711.pdf.

33. John C. Busterna & Robert G. Picard, Joint Operating Agreements: The Newspaper Preservation Act and its Application 2–3 (1993).

35. Newspaper Preservation Act, Pub. L. No. 91-353, 84 Stat. 466 (1970) (codified as amended at 15 U.S.C. §§ 1801–04). At the time, the Antitrust Division opposed the NPA’s passage. See Maurice E. Stucke & Allen P. Grunes, Why More Antitrust Immunity for the Media Is a Bad Idea, 105 Nw. U. L. Rev. 115, 122 (2010).

38. Motion in Support of Entry of Final Judgment, United States v. Daily Gazette Co., 2010-2 Trade Cas. ¶ 77,105 (S.D. W. Va. 2007)(No. 2:07-0329), available at http://www.justice.gov/atr/cases/f259100/259105.pdf.

39. Complaint, United States v. Daily Gazette Co., 2010-2 Trade Cas. ¶ 77,105 (S.D. W. Va. 2007)(No. 2:07-0329), available at http://www.justice.gov/atr/cases/f223400/223469.pdf.

40. Competitive Impact Statement at 9–12, United States v. Daily Gazette Co., 2010-2 Trade Cas. ¶ 77,105 (S.D. W. Va. 2007)(No. 2:07-0329), available at http://www.justice.gov/atr/cases/f254300/254310.pdf.

41. See, e.g., Tim Rutten, Setting the Price of a Free Press, L.A. Times, Aug. 22, 2009, at A27 Bruce W. Sanford & Bruce D. Brown, Laws That Could Save Journalism, Wash. Post, May 16, 2009, at A15.

42. Christine A. Varney, Assistant Attorney Gen., U.S. Dep’t of Justice, Antitrust Immunities, Remarks as Prepared for the American Antitrust Institute’s 11th Annual Conference 1–2 (June 24, 2010), available at http://www.justice.gov/atr/public/speeches/262745.pdf cf. Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 231 (1979) (“It is well settled that exemptions from the antitrust laws are to be narrowly construed.” (citations omitted)).

43. Antitrust Modernization Comm’n, Report and Recommendations 335 (2007), available at http://govinfo.library.unt.edu/amc/report_recommendation/chapter4.pdf.

44. Cf. Stucke & Grunes, supra note 35, at 123 (“It is hard to characterize the NPA as a success in terms of aiding smaller newspapers, preventing abuse, or significantly improving newspaper quality.”). It is worth noting that some commentators have questioned the efficacy of the NPA. Courts have commented on the NPA’s “inartful drafting,” Reilly v. Hearst Corp. 107 F. Supp. 2d 1192, 1203 (N.D. Cal. 2000) see also Mich. Citizens for an Indep. Press. v. Thornburgh, 868 F.2d 1285, 1291 (D.C. Cir. 1989) (“The exact meaning of the linguistically imprecise phrase ‘probable danger of financial failure’ is not apparent from the statute or the legislative history.”) Newspaper Guild v. Levi, 539 F.2d 755, 761 (D.C. Cir. 1976) (“Careful draftsmanship would have undoubtedly produced a provision whose language less ambiguously indicates the intended result.”), and the NPA has proven difficult for courts and litigants to administer, John S. Martel & Victor J. Haydel, Judicial Application of the Newspaper Preservation Act: Will Congressional Intent Be Relegated to the Back Pages, 1984 B.Y.U. L. Rev. 123, 125–26 (1984) (“Despite the apparent simplicity of the NPA’s language, the task of deciding what it means and of applying the Act’s criteria to specific situations has not been easily accomplished.”). Additionally, some have pointed out that the NPA appears to be only a temporary expedient, extending the lives of troubled papers but ultimately not staving off failure. Over the years, many JOAs have dissolved, usually resulting in one daily newspaper remaining in a specific geographic area, Leonard Downie Jr. & Michael Schudson, The Reconstruction of American Journalism 74 (2009), and, today, only a handful of JOAs remain.

45. See, e.g., James M. Moroney III, Testimony at Hearing on the Future of Journalism Before the Subcomm. on Communications, Technology, and the Internet, S. Comm. on Commerce, Science, and Transportation, 111th Cong. 7 (May 6, 2009) (“Congress should provide critical assistance to newspapers by acting quickly on legislation that would provide newspapers with a limited antitrust exemption to experiment with innovative content distribution and cost savings arrangements.”) Save the News: We’re Not Looking for a Bailout or a Handout. Just a Hand., Hous. Chron., May 11, 2009, at B9 (agreeing that Congress should grant newspapers “a limited antitrust exemption that would allow them to share ideas and investigate collaborative new business models”).

46. See generally U.S. Dep’t of Justice & Fed. Trade Comm’n, Horizontal Merger Guidelines § 1.0 (rev. ed. 2010), available at http://www.justice.gov/atr/public/guidelines/hmg-2010.pdf.

48. See Times-Picayune Publ’g Co. v. United States, 345 U.S. 594, 610 (1953) (“But every newspaper is a dual trader in separate though interdependent markets it sells the paper’s news and advertising content to its readers in effect that readership is in turn sold to buyers of advertising space.”).

49. Cf. Cmty. Publishers, Inc. v. Donrey Corp., 892 F. Supp. 1146, 1156–57 (W.D. Ark. 1995), aff’d 139 F.3d 1180 (8th Cir. 1998) (explaining that the “weight of case authority confirms the court’s almost intuitively correct definition of the [product] market” as local daily newspapers and collecting cases).

50. Cf. Cmty. Publishers, Inc. v. DR Partners, 139 F.3d 1180, 1184 (8th Cir. 1998) (“We also recognize that trial records could be made in a case of this sort that would persuade the fact-finder the product market is in fact broader than just local daily newspapers.”).

51.See generally U.S. Dep’t of Justice & Fed. Trade Comm’n, supra note 46, § 5.3.

53. U.S. Dep’t of Justice, Antitrust Div., Statement of the Department of Justice Antitrust Division on Its Decision to Close Its Investigation of MediaNews Group Inc.’s Acquisition of the Contra Costa Times and San Jose Mercury News, at 2 (July 31, 2006),available at http://www.usdoj.gov/atr/public/press_releases/2006/217465.pdf

55. See generally U.S. Dep’t of Justice & Fed. Trade Comm’n, supra note 46, at § 11 Carl Shapiro, Deputy Assistant Attorney Gen., U.S. Dep’t of Justice, Competition Policy in Distressed Industries, Address Before the ABA Antitrust Symposium on Competition as Public Policy 20–22 (May 13, 2009), available at http://www.usdoj.gov/atr/public/speeches/245857.pdf.

56. See, e.g., Hawaii ex rel. Anzai v. Gannett Pac. Corp., 99 F. Supp. 2d 1241, 1248–49 (D. Haw. 1999) Romeo, Pittman & Familant, supra note 15, at 123–25.

58. See 2006 Quadrennial Regulatory Review – Review of the Commissions, 23 F.C.C.R. 2010, 2038–39 (Feb. 4, 2008) (finding that the cross-ownership rule is “necessary to guard against an elevated risk of harm to the range and breadth of viewpoints that may be available to the public” (internal quotation marks omitted)).

59. See generally Fed. Trade Comm’n & U.S. Dep’t of Justice, Antitrust Guidelines for Collaborations Among Competitors (2000), available at http://www.ftc.gov/os/2000/04/ftcdojguidelines.pdf.

60. See generally 28 C.F.R. § 50.6. A few caveats are in order. The Division considers requests only with respect to proposed business conduct, not ongoing business conduct. 28 C.F.R. § 50.6(2). At its discretion, the Division may refuse to consider a request, 28 C.F.R. § 50.6(3), and, after a review, may decline to pass on the request or may take any other action it considers appropriate, 28 C.F.R. § 50.6(8). Finally, a business review letter states only the enforcement intention of the Division as of the letter’s date, and the Division remains free to bring whatever action or proceeding it subsequently comes to believe is required by the public interest. 28 C.F.R. § 50.6(9).

61. Green v. Kleindienst, 378 F. Supp. 1397, 1399 (D.D.C. 1974).

62. Letter from Christina A. Varney, Assistant Attorney Gen., U.S. Dep’t of Justice, to Charles E. Biggio, Esq. (Feb. 24, 2010), available at http://www.justice.gov/atr/public/busreview/255624.pdf.

63. Letter from Christine A. Varney, Assistant Attorney Gen., U.S. Dep’t of Justice, to William J. Baer, Esq. (Mar. 31, 2010), available at http://www.justice.gov/atr/public/busreview/257318.pdf.

64. James Madison, Report on the Resolutions, in VI THE WRITINGS OF JAMES MADISON 389 (Galliard Hunt, ed., 1906).


History of the Arkansas Democrat-Gazette

The history of Arkansas' newspaper, the Arkansas Democrat-Gazette, begins in the wilderness at Arkansas Post.

At a clearing in those dense woods the Arkansas Gazette was born in 1819, at a simple frontier time when Arkansas was still a young territory, not yet a state.

Half a century later the Arkansas Democrat came into being, born of the turbulent politics of the defeated, war-ruined South.

Together they dominated the newspaper landscape of Arkansas for more than a century. Today they survive and thrive as one -- the oldest continuously published newspaper west of the Mississippi

The front page of the Gazette from 1819.

The first days of the Arkansas Democrat-Gazette go back to the moment when William E. Woodruff, the young founder of the Arkansas Gazette, landed at Arkansas Post accompanied by his printing press. He had made an arduous journey in flatboats down the Cumberland, Ohio, and Mississippi Rivers, changing to a dugout canoe for the final upstream leg to the rustic capital of the new territory.

Soon after Woodruff's arrival, the first territorial Legislature met. There was an abundance of news and official business to be printed.

Woodruff's training and equipment were up to date and up to the task. As Henry Bullen wrote in the Gazette's centennial edition in 1919: "There were larger plants in New York City, but the presses and types they used were of exactly the same style and size as the press and types used by . . . William E. Woodruff in Arkansas Post in 1819."

After two years in the humid, mosquito-infested village, Woodruff moved his Gazette to Little Rock in 1821, following the relocation of the territorial capital there. Through the pages of his newspaper he worked tirelessly to promote new settlement in Arkansas. By 1836, when Arkansas gained the statehood for which the Gazette had energetically campaigned, its population exceeded 50,000. Woodruff could boast of 1,800 Gazette subscribers and $30,000 in advertising, subscription and printing debts owed to him.

Consistent with the regional enthusiasms of the day, the Gazette campaigned for Texas independence from Mexico and, in turn, annexation to the United States.

It supported the Mexican War (1846-48), adding its voice to the call for volunteers from Arkansas.

The 1840s in Arkansas were a time of wild financial speculation followed by a hard crash, and the Gazette's finances suffered along with those of the state.
Starting in 1836, the Gazette went through a series of changes leading to co-partnerships and three sales to other owners. In 1850, Woodruff repurchased it but meanwhile, in 1846, he had established a competing newspaper which he called the Arkansas Democrat. During the 1850s Woodruff's two papers were united under the name Arkansas State Gazette and Democrat, but in 1859 he simplified that to Arkansas State Gazette, echoing the one he had chosen more than 40 years before.

When Union soldiers captured Little Rock on Sept. 10, 1863, the Gazette suspended publication, remaining silent until May 1865. Federal authorities commandeered its presses and used them for their own purposes.

Woodruff's short-lived Arkansas Democrat has no direct connection to today's Arkansas Democrat-Gazette. A different Arkansas Democrat arose during Reconstruction and its aftermath. First called The Liberal, then The Journal, then The Chronicle, and finally The Evening Star, the newspaper had passed through several hands and several editors by 1875.

Then, on April 11, 1878, Col. J.N. Smithee, an Arkansan who had served in the Confederate Army, acquired the newspaper, named it the Arkansas Democrat, and took aim on the state's lucrative printing contracts.
He also immediately launched an attack upon the Gazette over the issue of the repudiation of the state debt. The Gazette struck back, implying that the name Democrat was merely a cover for a resurgent Republican Party.

Later that year Smithee engaged in a shoot-out at the corner of Markham and Main streets in Little Rock with Maj. John A. Adams, a part-owner of the Gazette.
Neither man was wounded seriously, although Smithee was hit by two bullets. But soon Smithee was compelled to dispose of his newspaper when the board of printing commissioners implicated him in a conflict of interest because of his other job as state land commissioner. In September 1878, former Arkansas Gazette editor James Mitchell and his partner Gen. W.D. Blocher, former owner of the Gazette, bought the Democrat from Smithee.

In a remarkable twist of fate suggesting how inbred the newspaper business must have been during this era, the controversial Smithee was named president of the Arkansas Gazette a few years later.

During Mitchell's first year with the Arkansas Democrat, he successfully backed J.D. Walker for Congress against R.W. Johnson, who happened to be the brother of the editor of the Arkansas Gazette. This was perceived as a great victory for the Democrat and increased its business immensely.

K. August Engel,
President and General Manager of the Democrat

In the 20th century, both newspapers came under the dominance of two men -- J.N. Heiskell at the Gazette, and K. August Engel at the Democrat.
After James Mitchell died in 1902, the ownership of the Democrat changed hands three times. In 1926, K. August Engel, who had been born in Luckenbach, Texas, in 1889, and who had joined the Democrat as business manager in 1911, acquired a major interest and became the newspaper's president and general manager.

Engel controlled the paper for the next 42 years, leading it through a period of great growth. In 1930 he acquired the YMCA building at Capitol Avenue and Scott Street and turned it into a modern newspaper plant. He gained a reputation as a hard-working, shrewd businessman who insisted on running his business on a cash basis. A bachelor, he lived in a hotel a few blocks from the Democrat building.

He took an active part in the editorial process, even to the point of reviewing proofs of editorials and news pages.

Under Engel, the Democrat urged reforms at the state hospital, improved election laws, revision of property tax assessments, municipal ownership of city waterworks, improved education and a four-year college for Little Rock.

In 1954, the University of Arkansas at Fayetteville awarded Engel an honorary degree, stating: "You have kept free the news columns of the Arkansas Democrat that they might report in an objective manner the events of the world . . . you have been a faithful watchman for the people and the public good."

Engel died on Jan. 8, 1968. His nephews, Marcus George and C.S. Berry, were appointed editor and publisher, respectively. The Gazette had this to say about Engel the day after his death: "Except for its occasional ventures in sensational, topical news articles -- a penchant shared by most afternoon newspapers -- the Democrat during Engel's tenure was austere in its makeup and treatment of general news."

The first half of the 20th century also saw the Gazette consolidating leadership that would carry it to a position of eminence. In 1902, the Gazette Publishing Co. was reorganized and John Netherland Heiskell, a Tennessean by birth, became president and editor-in-chief. He held these positions for 70 years until his death in 1972 at the age of 100. When Heiskell bought the Gazette, its circulation was about 6,000 when he died, it was more than 100,000.

The Gazette's circulation had reached 100,000 in the 1950s, then dipped to 83,000 because of its editorial policy during the 1957 integration crisis in Little Rock. The Gazette took a strong editorial stand against Gov. Orval E. Faubus' attempts to prevent integration of Central High School. The Gazette was awarded two Pulitzer Prizes in 1958 -- one for meritorious public service and the other to its executive editor, Harry Ashmore, for editorial writing.

Long before 1957, a highlight of Heiskell's career had been his sustained opposition to Jeff Davis, a turn-of-the-century Arkansas governor and United States senator. The colorful Davis, a stem-winding stump speaker who was unrelated to the Confederate president of the same name, often attacked both Little Rock newspapers. On one occasion he said, "I see the Gazette agent out there in the audience giving out that old red harlot, the Arkansas Gazette. I had rather be caught with a dead buzzard under my arm, or a dead polecat." Another time he regaled his listeners with a story about his young son: "If I find that boy is a smart boy, I will go and make a preacher out of him if I find he is not so smart a boy, I am going to make a lawyer out of him if I find he has not a bit of sense upon earth, I am going to make an editor out of him and send him to Little Rock to edit the Arkansas Democrat."

When Davis died suddenly in 1913, Heiskell, in a sweet bit of irony, was appointed by Gov. George Donaghey to fill his old rival's vacant Senate seat. Heiskell's term lasted only three weeks, so his maiden Senate speech was also his farewell speech. "Maybe we should have more of that in the Senate," said Heiskell, who gained a reputation as a wit through the years.

A few months before Heiskell's death in 1972, the Gazette opened a new production building at Fourth and Byrd streets in Little Rock. The architecturally notable Gazette building at Third and Louisiana had also been erected during Heiskell's tenure as editor, being dedicated in 1908.

Hugh B. Patterson became publisher of theGazette in 1948.

Hugh B. Patterson, J.N. Heiskell's son-in-law, who had been the Gazette's business manager, became publisher in 1948. He was elected president of the company in 1970.

Soon afterward, change came to the Democrat. In 1974 Marcus George and C.S. Berry sold the newspaper for $3.7 million to the Palmer group, headed by Walter E. Hussman. His son, 27-year-old Walter E. Hussman Jr., became the Democrat's new publisher.

What happened in Little Rock in the next several years mirrored trends in the newspaper industry all across the country. Five hundred cities had boasted separately owned, competing newspapers in 1923. By 1953 only 90 cities did. By 1974, when the Palmer group purchased the Democrat, such competition survived in just 34 cities.

At the start of the 1960s, the two Little Rock newspapers had been neck-and-neck in circulation. In the first quarter of 1960, the Democrat's daily circulation was 88,890, narrowly ahead of the Gazette's 88,152. Owners of the two newspapers on numerous occasions discussed a joint printing plant, but plans always fell through because of disagreements over where to locate the plant and because of the impossibility of printing both Sunday newspapers.

Most of the newspapers that were dying off in America were circulated in the afternoon. Reflecting this trend, circulation at the Democrat declined substantially throughout the 1960s and 1970s.

By 1974, the numbers were stark: Gazette circulation was 118,702 Democrat circulation was 62,405. In addition, the Democrat had only about a fourth of the total newspaper revenue in the market.

For three years after 1974, the Hussmans responded by pursuing a strategy of reducing operating costs and focusing subscription efforts in the city zone.

This effort was not enough to reverse circulation and advertising trends, so in 1977 Walter E. Hussman Jr. sought a joint operating agreement with the Gazette. Both the specific offer and the basic concept of a joint operating agreement were rejected by Hugh Patterson at the Gazette.

Hussman concluded he had two options: Either to close the Democrat or to make a commitment to vigorous competition.

He chose the latter. A hotly competitive 13-year newspaper war ensued.

In late 1978, the Democrat began an extensive effort to expand its news and classified advertising in order to become the state's largest newspaper.

Included was a free want ad program that more than tripled the size of the paper's classified section. The Democrat became the only Arkansas newspaper ever to publish more than one million classified advertisements in a single year.

In 1979, the Democrat switched to all-morning publication -- one of the first newspapers of its size to do so. The transition was done in steps. In January, the paper began publishing a morning edition seven days a week in addition to its evening papers. This late deadline morning paper was initially only for circulation outside Pulaski County. The Democrat published its last evening editions on Oct. 7.

Since then, the number of afternoon newspapers has declined by 432, while the number of morning newspapers has increased by 234. In 1980 there was more afternoon circulation than morning circulation for American newspapers but today there is 2.5 times as much morning as afternoon circulation.

Also in 1979, John Robert Starr, former Arkansas bureau chief of the Associated Press, became managing editor of the Democrat. The news staff was doubled in size and the news space increased more than 50 percent.

As a result of these vigorous new policies, readership increased dramatically.
Circulation totals showed that the Democrat was the fastest growing newspaper in the United States during 1980.

Across town at the Arkansas Gazette, 1981 saw big changes too. Robert R. Douglas, Gazette managing editor since 1972, announced his resignation in July and was named chairman of the department of journalism at the University of Arkansas. Hugh Patterson remained as publisher while his son, Carrick H. Patterson, was named the Gazette's managing editor.

At the Democrat, the changes continued. Dozens of new reporters, editors and photographers had been hired in an effort to ensure the most thorough local news coverage possible. In 1982 the newspaper inaugurated the use of color, using offset lithography printing presses the Gazette followed in 1987.

Two other significant developments that would affect the course of the competition occurred in the 1980s. First, the Gazette filed a federal antitrust suit against the Democrat in 1984. Second, the Gannett Corp., the nation's largest newspaper chain, bought the Gazette in 1986.

The suit accused the Hussman enterprises of trying to put the Gazette out of business. The Democrat responded that it was only trying to remain competitive, and that none of its practices were intended to run the Gazette out of business.

A federal jury in the court of U.S. District Judge William R. Overton rendered its verdict on March 26, 1986. The Democrat was found innocent of all the allegations leveled against it by the Gazette.

Just a few months later, on Oct. 30, the newspaper war's biggest bomb was dropped: Gannett was coming to Little Rock. The Heiskell-Patterson family sold the Arkansas Gazette to Gannett on Dec. 1, 1986.

Wehco Media Inc., the parent company of the Arkansas Democrat, was the largest media company in Arkansas. But Gannett was the largest in the country. Wehco's annual revenues at the time were about $60 million Gannett's were $2 billion.

Gannett also acquired a built-in daily circulation lead when it arrived in Little Rock: 131,020 for the Gazette, 78,302 for the Democrat.

Within five years the Democrat had closed the gap: Gazette daily circulation was 134,027 the Democrat's, 133,753. On Sunday the Democrat was substantially ahead, 241,361 to 225,326.

Each year, Gannett was suffering increased financial losses with the Gazette, with losses of more than $29 million in its last year of ownership.

Throwing in the towel, Gannett closed the Gazette after publishing a final edition on Oct. 18, 1991. Later that day the Democrat purchased all the assets, including the subscription list of the Gazette, and renamed the combined newspaper the Arkansas Democrat-Gazette the next day.

"We survived the greatest competitive onslaught in the newspaper business," Hussman said at the time.

Since the Gazette closed in 1991, competing newspapers have also closed in Dallas, Pittsburgh, San Antonio and Tulsa, further reducing the short list of competitive newspaper cities in America. In April 1992, Paul Greenberg, the Pulitzer Prize winning writer from Pine Bluff, was chosen to be the Democrat-Gazette's editorial page editor.

On June 23, 1992, less than a year after the long newspaper war ended, John Robert Starr retired as managing editor of the Democrat-Gazette and Griffin Smith, jr., was named executive editor. One week later Smith appointed Robert Lutgen to be the newspaper's managing editor. Lutgen was succeded as Managing Editor by David Bailey, who was promoted from City Editor, on Dec. 23, 1998.

The Democrat-Gazette's circulation for the first quarter of 2006 was 180,661 daily and 275,991 Sunday. As one of the few remaining statewide newspapers in the United States, with circulation in all 75 Arkansas counties, the Democrat-Gazette has higher circulation than newspapers in many larger cities, such as the Memphis Commercial-Appeal with 161,956.

It also has substantially higher circulation than newspapers in cities about the same size as Little Rock, such as the Shreveport (La.) Times (58,450) and the Jackson (Miss.) Clarion-Ledger (95,403). In fact, measured by penetration in the City Zone -- which consists of the metropolitan area inside Pulaski County -- the Democrat-Gazette's Sunday penetration (total circulation divided by occupied households) is the highest in the nation: 68.55 percent.

As Arkansas' newspaper looks ahead to its third century, the Democrat-Gazette aims to continue building, in the great tradition of its predecessors, a fair, thorough, and courageous newspaper of which all Arkansans can be proud.

Copyright © 2021, Arkansas Democrat-Gazette, Inc.

This document may not be reprinted without the express written permission of Arkansas Democrat-Gazette, Inc.

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Missouri Newspaper Confronts and Apologizes for its History of Racially Biased Reporting

The Kansas City Star, a newspaper based in Kansas City, Missouri, published an extensive analysis of its past reporting this week, acknowledging and apologizing for its history of reinforcing and perpetuating racial bias, discrimination, and violence.

“[The Star] disenfranchised, ignored and scorned generations of Black Kansas Citians,” the editorial reads. “It reinforced Jim Crow laws and redlining. Decade after early decade it robbed an entire community of opportunity, dignity, justice and recognition.”

For nearly 140 years The Star has covered local, regional, and national news for millions of readers, earning the newspaper eight Pulitzer prizes . But The Star acknowledged that, since its founding, it has disproportionately covered news about white citizens, omitting most stories about Black achievements as well as coverage of the widespread violence committed against Black Americans.

The few stories that did center around Black people portrayed them in dehumanizing and undignified ways, reinforcing the myth of racial difference and contributing to the presumption of dangerousness and guilt that Black people are forced, to this day, to navigate.

“When Black people were written about, they were cast primarily as the perpetrators or victims of crime, advancing a toxic narrative,” The Star wrote. “Other violence, meantime, was tuned out. The Star and The Times wrote about military action in Europe but not about Black families whose homes were being bombed just down the street.”

As part of its acknowledgment, The Star outlined a six-part plan, enacted in the wake of George Floyd’s killing, to help the newspaper confront and learn from its history of racism. Two of the newspaper’s recent projects—an examination of the lack of trust in police in communities of color and an investigation into the systemic racism within the Kansas City Fire Department— are part of The Star’s plan to produce more coverage about and for Black Kansas City residents, who represent nearly a third of the city’s population.

The newspaper has also committed to hiring a more diverse team, continuing to educate its staff on the paper’s history of racism with thorough examinations of past coverage, and making its content freely accessible to the local communities it admits it has historically failed to serve.

The Kansas City Star is one of numerous newspapers and media outlets that have come forward in recent years to publicly examine and acknowledge their role in shaping dangerous racial myths and stereotypes.

Among the others is The Montgomery Advertiser , which apologized in 2018 for failing to acknowledge and honor countless victims of racial terror lynchings.

Following a visit to EJI’s National Memorial for Peace and Justice , The Advertiser wrote: “There are thousands of names on the memorial of people we don’t know enough about. […] We didn’t take the time to learn who they were and tell their stories, and we take responsibility for our predecessors’ negligence.”

In the wake of tragedy, from racial terror lynchings to police killings, comes the need for reflection—a reconciliation with the past and the responsibility we bear in the present—which is crucial for finding a way forward.

In its own reflection , The Kansas City Star encouraged other local businesses to follow suit and “come forward and own their history as well, tell their stories, get the poison out—for the sake of the community and their employees.”


Early Women’s Rights Activists Wanted Much More than Suffrage

This may sound odd coming from a scholar of women’s history and a newly minted legislator, but I think we’ve heard enough about women’s suffrage.

When New York State recently marked the 100th anniversary of its passage of women’s right to vote, I ought to have joined the celebrations enthusiastically. Not only have I spent 20 years teaching women’s history, but last year’s Women’s March in Washington, D.C. was one of the most energizing experiences of my life. Like thousands of others inspired by the experience, I jumped into electoral politics, and with the help of many new friends, I took the oath of office as a Dutchess County, New York legislator at the start of 2018.

So why do women’s suffrage anniversaries make me yawn? Because suffrage—which still dominates our historical narrative of American women’s rights�ptures such a small part of what women need to celebrate and work for. And it isn’t just commemorative events. Textbooks and popular histories alike frequently describe a �ttle for the ballot” that allegedly began with the famous 1848 convention at Seneca Falls and ended in 1920 with adoption of the 19th Amendment to the U.S. Constitution. For the long era in between, authors have treated “women’s rights” and “suffrage” as nearly synonymous terms. For a historian, women’s suffrage is the equivalent of the Eagles’ “Hotel California”: a song you loved the first few times you first heard it, until you realized it was hopelessly overplayed.

A closer look at Seneca Falls shows how little attention the participants actually focused on suffrage. Only one of their 11 resolutions referred to “the sacred right to the elective franchise.” The Declaration of Sentiments, written by Elizabeth Cady Stanton and modeled on the U.S. Declaration of Independence, protested women’s lack of access to higher education, the professions and “nearly all the profitable employments,” observing that most women who worked for wages received 𠇋ut scanty remuneration.”

Elizabeth Cady Stanton and Susan B. Anthony. (Credit: GraphicaArtis/Getty Images)

Emancipation for Women

Most of all, the Declaration protested coverture, the legal doctrine that treated a married woman’s possessions, wages, body and children as property of her husband, available for him to use as he pleased. Coverture gave husbands total control𠅏rom finances and place of residency to wife-beating and marital rape. A wife, as Stanton wrote, was 𠇌ompelled to promise obedience to her husband, he becoming, to all intents and purposes, her master.”

In using such language, pre-Civil War women’s-rights advocates of course referenced an even more extreme form of oppression, racial slavery, the legal basis for which also rested on men’s control over women. Partus sequitur ventrem—the legal doctrine that “progeny follows the womb”—perpetuated slavery across the generations by assigning infants at birth to their mothers’ owners. (Notoriously, those owners had sometimes fathered the children they claimed as property.) Though mentioned briefly at Seneca Falls, slavery received far more emphasis at the first national women’s-rights convention, held at Worcester, Massachusetts in 1850. “The cause we are met to advocate,” Worcester delegates declared, “𠉫ids us remember the million and a half of slave women at the South, the most grossly wronged and foully outraged of all women and in every effort for an improvement in our civilization, we will bear in our heart of hearts the…trampled womanhood of the plantation, and omit no effort to raise it to a share in the rights we claim for ourselves.”

These women never saw suffrage as their only goal or even their main one. The combined injustices of marital coverture, racism, economic oppression and sexual violence were more central to their vision.

Indeed, the 19th Amendment wasn’t a global fix. Passed in the Jim Crow Era, it did little to expand political rights for African-American women in the South, who remained disfranchised until the later civil rights movement. White Southern suffragists, in fact, argued that their states should ratify the amendment because only white women would be enfranchised𠅊nd their votes could help bolster white supremacy. In the South, especially, some white women who worked for the vote went on to advocate restrictive anti-immigrant legislation or even join the Ku Klux Klan.

Beyond suffrage, 19th-century American feminists worked more broadly for what they often called “women’s emancipation.” The heroes of that movement include not only Stanton and Susan B. Anthony but also Harriet Jacobs and Frances Watkins Harper, who testified against slavery—including the sexual exploitation of enslaved women and the legal denial of their right to protect their children. After Emancipation, racial-justice activism continued with the leadership of such women as Mary Church Terrell, leader of the National Association of Colored Women and a co-founder of the National Association for the Advancement of Colored People. Such women always treated racial justice and women’s rights as interlinked goals.

Zitkala-Sa, Native American author and lecturer, 1926. (Credit: Bettmann Archive/Getty Images)

Historians of women’s rights have also devoted much attention lately to the American West. There, removal of native peoples was accompanied by widespread rape of native women as well as sexual exploitation of desperate, often starving, indigenous wives and mothers whose plight was as harrowing as that of any refugee today. In some places (like California, as Stacey Smith shows in her haunting book Freedom’s Frontier), white conquerors undertook the long-term enslavement of indigenous women and children. This history, long soft-pedaled in textbooks, calls our attention to feminist heroes like Paiute activist Sarah Winnemucca and Dakota author Zitkala-Sa.

While American women have never been a unified political force, some began early to work across race and class lines to address shared issues. Before the Civil War, abolitionist women helped build the first cross-racial American movement for social justice. As early as 1848, when Seneca Falls delegates called for access to education and professional careers, working-class women had already launched fights for fair, equal wages and workplaces free of sexual harassment.

Tenement house residents in New York, 1899. This illustration appeared in the book �rkness and Daylight: Lights and Shadows of New York Life’ by Helen Campbell. (Credit: Interim Archives/Getty Images)

The Power of Personal Testimony

Women in these movements sometimes marched, but that was just one arrow in their activist quiver. Personal testimony also played a powerful role in advancing women’s rights. (“Testimony, testimony is the great desideratum,” abolitionist Theodore Weld advised the sisters Angelina and Sarah Grimké, exiles from South Carolina who could speak from personal experience about the horrors of slavery that they witnessed.) In the late 1800s, labor leaders such as Leonora Barry and Eva Valesh interviewed women workers to expose conditions they faced on the job. Journalist Helen Campbell conducted similar investigations in tenement districts, publishing women’s household budgets to show affluent readers what challenges their poorer sisters faced. Author Dorothy Richardson went undercover to work in dangerous and low-paid industries and reported her experiences in The Long Day, published in 1905.

Most courageous were the anti-lynching investigations of African-American journalist Ida B. Wells, who in the 1890s and early 1900s undertook a one-woman crusade to expose the causes of racial violence in the South. Wells proved again and again that lynchings were not precipitated by rape, as Southern apologists claimed, but by whites’ insistence on keeping the political and economic upper hand𠅊nd sometimes by their anger at consensual interracial relationships.

On the all-important issues of marriage and coverture, both women and men engaged in direct action. Feminists Lucy Stone and Henry Blackwell issued the most famous “marriage protest” at their wedding on March 1, 1855, publicly rejecting the fundamental unfairness of Massachusetts marriage law. “While we acknowledge our mutual affection,” they wrote, 𠇋y publicly assuming the relationship of husband and wife,” they vowed to uphold a “great principle” by rejecting all “such of the present laws of marriage, as refuse to recognize the wife as an independent, rational being, while they confer upon the husband an injurious and unnatural superiority, investing him with legal powers which no honorable man would exercise, and which no man should possess.”

Portrait of American journalist, suffragist and progressive activist Ida B. Wells, circa 1890. (Credit: R. Gates/Hulton Archive/Getty Images)

R. Gates/Hulton Archive/Getty Images

Putting Sex in the Conversation

Given the diverse struggles for women’s emancipation, can we find a coherent way to tell this history that doesn’t overemphasize the fight for the vote? One approach is to reflect on sex and reproduction—issues that suffragists rarely discussed, since only “respectable” women could make claims to civic authority. By the tenets of 19th-century domesticity, such “ladies” could exercise political influence because of their piety, purity and devotion to motherhood and the home. Any hint of sexuality stigmatized women and discredited the causes they worked for. (Given how Hillary Clinton’s presidential campaign was tainted even by her husband’s infidelities, this seems to be an continuing problem.)

The dilemma wasn’t so obvious in the decades before the Civil War, when “marriage guides” and other information on sexual pleasure and fertility control circulated fairly widely. Charles Knowlton’s Fruits of Philosophy, the first American birth-control manual, went through dozens of editions after its publication in 1832. Among married couples in the Northeast and parts of the Midwest, abortion became so widely practiced that doctors estimated one in three pregnancies was ending in abortion, obtained through both surgeries and mail-order abortifacient drugs. Lecturers gave talks on family limitation as April Haynes shows in her book Riotous Flesh, women in Northeastern towns and cities formed “physiological societies” to share information about sexuality, pregnancy and childbirth (though their curriculum included stern warnings about the dangers of masturbation). Many women viewed this as part of their broader campaign for women’s rights.

Two events in the 1870s sharply curtailed such open conversations. First, suffrage activists like Susan B. Anthony and Elizabeth Cady Stanton made a temporary but ill-fated alliance with glamorous 𠇏ree love” advocate Victoria Woodhull during her moment of national celebrity in the 1870s. Stanton, in particular, was smitten by Woodhull’s bold libertarian attack on marriage. “Governments,” Woodhull declared, “might just as well assume to determine how people shall exercise their right to think𠉪s to assume to determine that they shall not love, or how they may love, or that they shall love.” She topped this with a ringing declaration of her own sexual freedom: “Yes, I am a Free Lover. I have an inalienable, constitutional and natural right to love whom I may… to change that love every day if I please, and…neither you nor any law you can frame have any right to interfere.”


History of the US justice system

There are nearly 700,000 law enforcement officers working in the United States. Their efforts have put 2.3 million people in America’s 3,134 local jails, 1,833 state prisons, 1,772 juvenile correction facilities, 110 federal prisons, and 218 immigrant detention facilities. Although the United States has less than 5% of the world’s population, nearly one in four people incarcerated in the entire world are languishing in American prisons.

Most federal law enforcement is organized under two massive and sprawling agencies. The Department of Justice includes the FBI, DEA, ATF, U.S. Marshal Service, Bureau of Prisons, and the Office of the Inspector General. The Department of Homeland Security oversees the Secret Service, Coast Guard, TSA, ICE, and Customs and Border Protection. That’s on top of the 18,000 local and state police departments that enforce the laws in America’s neighborhoods and on its streets and highways.

Today’s criminal justice system would be unrecognizable to early Americans, who lived in a world where law enforcement and the courts were informal and highly localized operations. In many cases, “justice” was dished out by townspeople who could be deputized with police powers by a lone sheriff or constable. Sometimes, justice was a violent and highly personal affair—even the aristocracy settled scores with formal pistol duels that were sanctioned by policy or custom.

Today, few topics are more heated and controversial than that of criminal justice. The American justice system provides due process and protections that are unheard of in much of the world. However, there are now—and have always been—gaping disparities in how those protections are applied based on factors like race and income. The legacy of decisions made by men in white wigs in the 18th century triggered civil unrest across the country in 2020.

Using a variety of historical and news sources, as well as government reports and data from advocacy groups, Stacker identified 50 critical moments in the history of the American justice system. The following is a condensed account of nearly 400 years of America’s attempts to protect its citizens, punish its criminals, and maintain social order through the enforcement of laws.

Boston was the first American city to organize community-based patrols known as night watches. New York and Philadelphia followed suit in 1658 and 1700. Sometimes backed up by professional constables, a group of volunteers walked and rode horses around town, looked for suspicious or unfamiliar people, and warned citizens of danger.

Before the Revolution, there was no unified American justice system. Each colony had its own laws, codes, punishments, procedures, and court systems. The Founding Fathers used the drafting of the Constitution as an opportunity to provide uniform laws and rights.

Prior to the 18th century, virtually all criminal sentences involved either fines, execution, or gruesome tortures like flogging, branding, and cutting off noses and ears. Primitive jails were built, but only to hold suspects awaiting trial or sentence—incarceration was not a punishment in and of itself. As an increasingly sensitive public grew weary of gory corporal punishments and frequent executions, prison time began to emerge as an alternative approach.

The first slave patrols were organized in South Carolina in 1704 and became an integral part of antebellum Southern society. Organized groups patrolled forests and roads looking for runaways, illegal gatherings, and contraband—but their primary purpose was to instill terror and deter slave revolts. After the Civil War, police departments and sheriffs’ offices across the South were modeled on slave patrols, and their ranks were frequently populated with former slave patrollers.

The protections American citizens can expect in the criminal justice system were put into writing in 1791 with the adoption of the Bill of Rights. The first 10 amendments to the Constitution guarantee specific rights and freedoms for the individual and set the rules for due process in the application of the law. They also, however, leave a lot open to interpretation with strikingly subjective language, particularly the Eighth Amendment, which forbids the state from imposing “excessive bail,” “excessive fines,” and “cruel and unusual punishment.”

In the 1820s, wardens at Auburn Prison in New York and Eastern State Penitentiary in Pennsylvania began experimenting with techniques to reform prisoners instead of merely punishing them. The experiments included complete silence and near-total isolation with no contact with the outside world and virtually no communication with guards or other inmates. The other two ingredients were hard work under the threat of corporal punishment and intense study of the Bible during long hours of silence and solitude.

In 1838, Boston created America’s first full-time professional police department. New York City, Chicago, New Orleans, Cincinnati, Philadelphia, and Baltimore soon followed, and by the 1880s, every major city had a municipal police force.

In 1857, the fledgling NYPD adopted a new technique that would change law enforcement forever. Police began photographing the city’s very worst known criminals and compiling their pictures in a special book to help victims identify potential suspects. The book was called the “Rogues’ Gallery.”

The 13th Amendment outlawed slavery “except as a punishment for crime whereof the party shall have been duly convicted.” It was a glaring loophole that directly tied a person’s most basic rights to their status in the criminal justice system. Through peonage, convict leasing, chain gangs, and prison plantations, Southern states would soon use the 13th Amendment to criminalize former enslaved people back into slavery.

After the Civil War, shell-shocked Southern whites introduced “Black Codes” to legally subjugate the millions of former slaves now roaming free, voting, going to school, and even running for office. The restrictive laws—applying only to African Americans—criminalized virtually every aspect of Black life and ensured that nearly every African American was in perpetual violation of the law. Any who were deemed troublesome, rebellious, dangerous, lazy, or even discourteous could be arrested for Black Code violations—most commonly vagrancy—and returned to slavery through the convict-leasing system.

From the Civil War through World War II, law enforcement in Southern states arrested and convicted tens of thousands of African Americans who had committed no real crime and leased them to farming and industrial operations as slave labor. Virtually any Black person who wasn’t working for a white man could be charged with vagrancy, convicted in corrupt local courts, levied unpayable fines, and then forced to perform hard labor until the fine was paid off by the companies that leased them—or they died. They toiled in terrible conditions in mines and on farms, and since they came cheap and were easy to replace, their lives and bodies were much less valuable than even those of their enslaved ancestors.

After the Civil War, a new breed of cops and criminals became legends in rugged and violent outpost towns that sprung up around railroad stops in the American West. Famed outlaws like Billy the Kid, Butch Cassidy, and Jesse James tried to stay a step ahead of iconic lawmen like Wyatt Earp and Seth Bullock in towns like Tombstone, Arizona, Deadwood, North Dakota, and Abilene, Texas.

Few symbols are more synonymous with the Wild West than the ‘Wanted’ posters that law enforcement used to seek the public’s help in catching criminals. Allan Pinkerton, founder of the famed Pinkerton Detective Agency, used such a poster for the first time in a kidnapping case in 1874. They would spring up all over the country, often advertising monetary bounties and—for the very worst outlaws—the qualifying statement of “dead or alive.”

In the 1880s, famous and controversial NYPD Chief Detective Thomas F. Byrnes expanded the Rogues’ Gallery concept as part of his pioneering innovations in police work. Instead of just photographing the very worst known criminals, he ordered his officers to take front and side-profile pictures of everyone they arrested. It was the first use of universal booking photos, which would make up the first law enforcement database.

On Aug. 6, 1890, a convict named William Kemmler was executed in New York in the world’s first use of the electric chair. Although the terrifying new device looked like something out of the Inquisition, its proponents promised it would be a quick, painless, and humane alternative to old-world executions. It was not, and Kemmler writhed in agony for several minutes as his body burned from the inside out as horrified spectators watched.

Once the public learned of the brutal violence and rampant corruption that defined the convict-leasing system, Southern governments were pressured to regain control of the convicts they had been renting out. They achieved this by organizing them into chain gangs of slave laborers who did the backbreaking work of improving the South’s dilapidated infrastructure. Vagrancy and other Black Code violations kept the chain gangs full, and conditions were often as terrible as they were in the convict-leasing system.

At the turn of the 20th century, prison farms like the infamous Parchman Penitentiary in Mississippi began springing up across the South as an alternative to convict leasing and chain gangs. Malnourished, exhausted, and terrified convicts picked cotton and plowed fields under the threat of the whip, often on the exact same plantations where their ancestors toiled as enslaved people—and the conditions weren’t much different. To save money on guards, wardens bribed the most violent and feared prisoners, or “trustees,” to control inmates, many of whom died from heat exhaustion, disease, malnutrition, gunshots, beatings, medical neglect, and shackle poisoning.

In 1910, a Chicago man named Thomas Jennings was convicted of murdering a man in his home. Fingerprints Jennings left behind on a freshly painted railing were used to help convict him at trial. It is the first known conviction based on fingerprint evidence in the American justice system.

In 1920, the 18th Amendment banned the production, sale, importation, and consumption of alcohol in the United States. Much like the war on drugs that would follow, Prohibition gave rise to a far deadlier and more organized breed of criminals and put law enforcement on steroids. Consumption never waned, and when Prohibition was repealed 13 years later, alcoholism was still there.

Al Capone was the most famous gangster of the Prohibition era, but he was hardly the only one. The cartel kingpins of their time, gangsters like Capone accumulated enormous wealth and power through the illegal alcohol trade. They enforced their will and defended their turf with a level of violence that would have been excessive even by the standards of the Wild West outlaws who came before.

The FBI was formed in 1908 to unify law enforcement at the federal level in what had become a sprawling, continental country. The agency came into its own in 1924 when J. Edgar Hoover was appointed as its head. He would reign—arguably as the most powerful man in America—for nearly a half-century until 1972 and go down as the most controversial and effective lawman in history.

During the Depression, a brazen and deadly new brand of criminals emerged, one very different from organized crime syndicates like those headed by Al Capone. Freelance gangsters like Bonnie and Clyde, John Dillinger, “Machine Gun” Kelly, and “Baby Face” Nelson went on cross-country crime sprees, robbing banks, taking hostages, and killing police and civilians alike. Using Thompson submachine guns, Browning Automatic Rifles, bulletproof vests, and fast, powerful, V-8 cars, they surprised and overwhelmed local law enforcement everywhere before zooming off to the next jurisdiction.

Every cop show on television traces its roots to “Dragnet,” which began as a radio program in the 1940s before moving to television in 1951. It spawned the police procedural genre, one of the most successful and enduring in television history. The courteous, level-headed, and diligent Joe Friday’s pursuit of “just the facts” also provided excellent PR for the Los Angeles Police Department and law enforcement in general.

1960 signaled the start of an unprecedented increase in crime that would continue for decades before peaking in the 1990s. The rise of drugs, crime, gangs, and violence terrified the nation and resulted in harsh policies that would militarize law enforcement and fill America’s prisons. Between 1960-1970, crime rates soared by 126% before rising by another 64% between 1970-1980.

In March 1965, President Lyndon Johnson declared a “war on crime” and presented Congress with legislation that would forever change the nature of the American justice system. The Law Enforcement Assistance Act established a federal role in local law enforcement, including police, prisons, and the courts. Among other things, it created a channel that continues to transfer military weapons and equipment from the defense sector to local law enforcement to this day.

Everyone who has ever seen “Law and Order” knows that cops have to read suspects their Miranda rights at the time of their arrests. In 1966, the Supreme Court threw out the rape and kidnapping convictions of a man named Ernesto Miranda. The police violated Miranda’s rights, the Court concluded, by interrogating him until he confessed without informing him of his rights to remain silent and to have an attorney present during questioning.

In 1970, the federal Racketeering Influenced and Corrupt Organizations (RICO) statute gave law enforcement a powerful new weapon in fighting organized crime. It was always hard to lock up crime bosses who rarely did any dirt themselves, but RICO allowed law enforcement to charge people just for being part of an ongoing criminal enterprise. It gained fame when then-U.S. Attorney Rudy Giuliani used it to convict John Gotti, the last true don of the New York City mafia, in 1992.

In 1971, Mississippi’s infamous Parchman Farm Penitentiary was the last remnant of old-world slavery in the United States. Underfed, tormented, mostly Black prisoners toiled for 15-hour days under the threat of the lash and violent “trustee” inmates who had total power over their lives and bodies. Finally, that year a court ruled that Parchman’s system of penal slavery and the tortures used to maintain it were cruel and unusual punishment—even if they didn’t violate the 13th Amendment.

In June 1971, President Richard Nixon declared a “war on drugs” and referred to drug use as “public enemy number one.” In the ensuing half-century, the unwinnable war has cost $1 trillion, filled America’s prisons, dispensed harsh sentences for non-violent drug-related offenses, and given rise to cartels in Latin America that put Al Capone’s crime syndicate to shame.

The last flogging sentence ever handed down by a court in the United States was carried out in Delaware’s New Castle County Workhouse on June 16, 1952. Like countless others before him all over the country, the prisoner was tied to a wooden post and whipped by a prison warden with 20 heavy lashes on his bare back. In 1972, Delaware became the last state in the U.S. to outlaw the once-familiar whipping post.

The 1960s-1980s saw a disturbing increase in cases that involved two or more victims killed by the same person in separate incidents that followed a pattern. Serial killers captured the public’s imagination and gave rise to a new kind of police work that involved psychology and science as much as stakeouts and handcuffs. In 1972, the FBI launched its Behavioral Science Unit to profile, track, identify, and arrest serial killers.

In 1972, the Supreme Court ruled in Furman v. Georgia that the death penalty constituted cruel and unusual punishment. It was a complicated and narrow ruling, however, and applied only to a few specific cases. Although it temporarily voided 40 death penalty statutes, it was not a precedent-setting ruling and would soon be overturned.

The Supreme Court reinstated the death penalty with Gregg v. Georgia in 1976, just four years after it ordered a moratorium. The following year, convicted murderer Gary Gilmore was executed by firing squad in Utah.

Constitutionally speaking, it was neither cruel nor unusual to shoot, hang, electrocute, or gas convicted criminals to death, but the gory nature of executions led to calls for something more humane. In 1977—the same year Gary Gilmore was tied to a chair and shot to death by local police officers behind an abandoned prison cannery—Oklahoma became the first jurisdiction in the world to approve execution by lethal injection. In 1982, Charles Brooks was the first convict to die that way.

On July 11, 1979, gangsters from Columbian cocaine cartels engaged in a brazen daylight shootout at a mall in Miami, which had become the cocaine import capital of America. The so-called ”Cocaine Cowboys” incident made it clear that a new and ruthless breed of criminals without borders was at work in the United States. Local police were unprepared and outgunned, and a supersized federal law enforcement response soon descended on South Florida and its overseas cocaine suppliers.

The 1984 Comprehensive Crime Control Act eliminated parole in the federal system and established mandatory minimum-sentencing guidelines. Harsh sentences with no consideration of mitigating factors escalated the already stark rise in America’s prison population that began in the 1970s. Incarceration rates soared from 100 per 100,000 residents in the middle of the 20th century to 760 per 100,000 at its peak in 2008.

The emergence of DNA forensics gave investigators on both sides of the criminal justice system a powerful new tool. DNA evidence has helped secure countless criminal convictions and also helps organizations like the Innocence Project secure the release of the many people who are wrongly convicted.

By the late 1980s, the drug war had swelled America’s prison population to unprecedented levels—a cartoonishly disproportionate number of inmates were Black or Latino, and virtually all of them were poor. In response to the crack epidemic, new legislation mandated long, harsh prison sentences for even simple possession of crack, even if there was no intent to distribute. Penalties for the powder cocaine that white suburban users tended to prefer were not enhanced.

In 1991, a group of white Los Angeles police officers were videotaped brutally beating motorist and criminal suspect Rodney King in footage that quickly spread around the country and the world. For many poor minorities in L.A., the images were nothing new—but now that mainstream America could see it with their own eyes, change for the better seemed within reach. Their acquittal the following year triggered nationwide outrage and an explosion of long-simmering anger that sparked the 1992 Los Angeles Riots.

In 1992, federal law enforcement officers engaged in an 11-day siege at the remote Idaho home of a wanted man named Randy Weaver in an incident known as Ruby Ridge. Several people were killed in the standoff, including a U.S. Marshal and Weaver’s wife and young son. The incident inspired radical, violent, and often heavily armed anti-government militants to unify in what would become the American militia movement.

Less than a year after Ruby Ridge, federal law enforcement once again found itself in a tense standoff with heavily armed radicals who didn’t recognize the authority of the federal government. The siege at David Koresh’s Branch Davidian compound in Waco, Texas, started with a deadly gunfight and ended with a fire that killed dozens of Branch Davidians, including children and pregnant women.

So-called “three strikes” laws were yet another heavy-handed response to soaring crime rates with designs to keep career criminals off the streets. Many low-level offenders, however, received life sentences for relatively minor crimes because they’d had previous trips through the system. The Violent Crime Control and Law Enforcement Act of 1994 extended the three-strikes policy to the federal system.

On April 19, 1995, a baby-faced white military veteran named Timothy McVeigh planted a truck bomb at the Alfred P. Murrah Federal Building in Oklahoma City. The blast destroyed the building and killed 168 people, including 19 children, in the worst domestic terrorist attack to that point in American history. Citing Ruby Ridge and Waco as his inspiration, McVeigh represented a new brand of white, homegrown, anti-government terrorism that continues to grow to this day.

On Jan. 25, 1996, Delaware added another gory record to criminal justice history. That day, a convicted murderer named Billy Bailey had his sentence of being “hanged by the neck until dead” carried out in front of an audience. It was the last execution by hanging in American history.

Civil asset forfeiture is the antithesis of the most basic protection of the American justice system: due process. The system allows law enforcement to seize money, cars, jewelry, and other property on the mere suspicion that it was gained through criminality without probable cause or a warrant. The system—which moves the burden of proof from the state to the accused—netted law enforcement $29 billion between 2000-2014 alone.

Thousands of civilians and 72 police officers were killed in the terrorist attacks of Sept. 11, 2001, and 71 of them died inside the World Trade Center. It was the deadliest day in the history of American law enforcement.

In 2002, the Supreme Court ruled in Atkins v. Virginia that it was unconstitutional to execute people with intellectual disabilities on the grounds that it constituted cruel and unusual punishment. The states, however, were left to determine who exactly qualified as intellectually disabled.

In the 2014 Riley v. California case, the Supreme Court ruled that warrantless searches of digital devices like smartphones during arrests were unconstitutional. Since today’s devices now contain personal and private information like the kind specifically mentioned in the Fourth Amendment, scrolling through a suspect’s phone was not the same as searching his pockets or car.

Many cities are now experimenting with alternatives to a bail system that keeps poor people in jail while awaiting trial but allows the more affluent to go free until their court dates arrive. About 500,000 people are currently awaiting trial in jail—most for low-level offenses—simply because they can’t afford bail. All of them are presumed innocent.

Reforms have put an end to convict leasing, chain gangs, and slave plantations dressed up as prisons, but the legacy of the 13th Amendment is alive and well. Most prisons still rely on inmate labor to function and—as authorized by the 13th Amendment—work is usually compulsory. Inmate labor is now coerced mostly through the threat of lost privileges instead of the whip, but prison workers still have virtually no rights or protections and, as of 2017, earned between 86 cents and $3.45 per day.


Chapter 3. Barry Bingham Sr. at the helm

With his father still in England but ailing (he would die the next year of Hodgkin&rsquos lymphoma), Barry Bingham Sr. took over the newspaper, but in an unusual triumvirate that would preside for nearly three decades. Mark Ethridge ran the news side of the paper while Lisle Baker Jr. presided over the business.

That left Bingham free to set policies, including one that required running every letter to the editor not deemed libelous. He also launched an op-ed page that offered a wide range of views.

Few papers published a higher percentage of indignant letters, Creason later wrote, including many that &ldquorip the hide off owner, editors or staff members.&rdquo

Bingham made no bones about offending readers or advertisers.

Five years after he took over from his father, on Easter Sunday morning, readers found a full-page ad for the National Committee for Planned Parenthood that said the "first key to national health is birth control.&rdquo Bingham&rsquos name was on the top of a list of sponsors.

When angry readers canceled their subscriptions, he gave them their money back but wrote in an editorial that "those objecting to the paper's conduct seem to think a newspaper should not have an opinion which a number of readers do not like. This would mean that a newspaper would have no opinion at all. And having no opinions at all,&rdquo he wrote, &ldquois equivalent to having no principles.&rdquo

"Bingham Sr. liked bragging about excellence more than bragging about profits, which is what most newspaper owners talk about on the golf course,&rdquo Tifft and Jones wrote in "The Patriarch." &ldquoHe also seriously believed that his newspapers should lead public opinion, not just reflect it."

Before the word &ldquoenvironmentalism&rdquo was coined, Bingham&rsquos leadership put the Courier Journal at the forefront of protecting the land.

The newspaper launched the Tom Wallace Farm Forestry Award (named for the then- editor of the Louisville Times) to recognize achievement in reforestation and created a Farm Incentive Program aimed at raising living standards of farm families. By the newspaper&rsquos 100th anniversary, more than 2.5 million people had competed for the $5,000 in prizes offered annually.

The company's reputation for public service ironically rose up to bite it in 1949 when it tried to sell the family-held WHAS Radio, Creason wrote. The Federal Communications Commission refused to OK the sale, saying the company's record for public service was too valuable to risk losing the station to another owner.

The Courier Journal&rsquos most prolonged environmental crusade was its two-decade battle against unregulated strip mining, which despoiled mountains, streams and forests. The newspaper's aggressive reporting and editorials finally produced tough federal legislation and brought the newspaper its fourth Pulitzer Prize, in 1967, for public service.

But it was in the field of civil rights that the Courier Journal took its strongest stand, pressing for integrated schools, equal job opportunities, open housing and other measures, Tifft and Jones wrote in "The Patriarch."

Within days of the Supreme Court's landmark Brown v. Board of Education decision in 1954 that segregation of public schools was unconstitutional, the papers began crusading for peaceful enforcement of the law. Bingham Sr. served on a mayoral committee to smooth the path for integrated facilities, making dozens of visits to theaters and restaurants to try to persuade owners to open their doors to blacks.

But while the newspapers supported civil rights, Bingham Sr. and his wife, Mary, affectionately referred to the large staff of blacks at Melcombe, their estate, as "our dear nigs," according to "The Patriarch." Mary notoriously insisted on draining the pool after one of her sons invited a black boy to swim in it, journalist Marie Brenner wrote in &ldquoHouse of Dreams: The Bingham Family of Louisville.&rdquo

And through 1942, the newspaper ran a cartoon called "Hambone Says" that portrayed African-Americans with stereotypical drawings, used stereotypical diction and the N-word.

Although the Louisville papers hired their first black reporter in 1961, black people continued to be banned from wedding photos and society columns in the women&rsquos section. And the papers insisted on calling Muhammad Ali by his given name, Cassius Clay, for six years after he adopted his Muslim moniker in 1964.

Bingham Sr. had other shortcomings. He involved himself and his paper in politics and government in a way that would make modern-day editors blush. Like his father, Bingham Sr. thought it was wrong for a publisher to run for office, but he saw nothing wrong with palling around with presidential candidate Adlai Stevenson on a worldwide fact-finding trip. "It didn't seem strange or peculiar," he said later to Tifft and Jones, admitting it would have evoked a furor later.

In 1959, he asked John Ed Pearce to assist Wilson Wyatt, the newspaper&rsquos outside counsel, in his campaign for governor, while Pearce remained on the staff as an editorial writer. When Wyatt lost to Bert Combs, Combs persuaded Bingham to let Pearce serve on a state board to oversee expansion of the parks. Staff members protested that it was a conflict of interest.

Pearce also wrote speeches for Combs, which Pearce later realized was a mistake. &ldquoI thought I was obeying my publisher,&rdquo he wrote in his memoirs. &ldquoBut in small ways the paper suffered, in that readers had but one more reason to suspect it was guilty of a conflict of interest.&rdquo

Combs&rsquo adversary, Happy Chandler, would say: &ldquoPearce will write him a speech and Combs will stumble through it and Pearce will race back to Louisville and write an editorial about what a fine speech it was. You could say it is the shortest double play in history: Pearce to Combs to Pearce.&rdquo

But the newspaper was on the brink of a new era. Mary and Barry&rsquos firstborn son, Worth, a dashing Harvard graduate who had served three years in the Navy, was being groomed to run it. He prepped first as a reporter in Minneapolis and San Francisco before joining the Courier Journal&rsquos Washington bureau, then returned home to Louisville to apprentice as assistant to serve the publisher.

On July 12, 1966, driving to the beach on Nantucket Island with his wife, Joan, and daughter Clara, he had placed an 8-foot surfboard across the width of the car, sticking out the windows on both sides. One end hit a parked car and the board swung around and hit Worth in the back, killing him instantly. He was 34.

He was the second son to die tragically. Two years earlier, Jonathan had climbed a utility pole to tap electricity at Melcombe, to light up a barn for a reunion of his old Cub Scout troop. When he tried to make the connection, he was electrocuted. He was 22 and the youngest of five children &mdash three boys and two girls.


Racial Justice in America: A deeper look

Racial justice protests in America have existed for centuries, yet the nation has not fully reconciled with a violent and racist history that continues to impact communities of color to this day. Berkeley News will take a deeper look through a “Racial Justice in America” series. (Photo courtesy of UC Berkeley Bancroft Library)

You see it on your social media feed: Videos of police called to investigate a Black person for doing something as simple as swimming in a pool, sitting at a café, sleeping in their car or going for a morning jog.

You see it in the racial makeup of your typical American prison and in the homogenous white population of a suburban Bay Area neighborhood. You see it in the lack of polling stations in communities of color and in the typical skin color of the political candidates on their ballots.

And, you see it in the monuments that represent Confederate leaders and slave owners throughout the country, and in the very halls and buildings at UC Berkeley named after white men who advocated and defended anti-Blackness.

Systemic racism is part of the very foundation of America, from the violent colonial conquests of indigenous lands to state-sponsored slavery that fueled the country’s burgeoning economy.

America, though, has yet to fully reconcile with its racist past, despite generations of social movements rallying against the nation’s violent foundations. Earlier this year, the death of George Floyd has once again sparked public outrage toward systemic racism and provided proof for those who didn’t know the deadly price of institutions built from white supremacy.

But today, we see a growing movement of people joining racial justice protests around the country. Protests that represent an angst and cynicism toward a system that many feel has oppressed people of color and their communities for far too long.

UC Berkeley’s Office of Communications and Public Affairs will seek to make sense of American racism through a new “Racial Justice in America” series. The Berkeley News editorial team will probe some of the world’s best minds in fields of study including social welfare, public health, education, history and law.

The series will aggressively explore the history of white supremacy and racism that is being manifested in every facet of American society.

“We find ourselves in a moment that demands deep introspection, a profound soul-searching that transcends the horrific slayings of Breonna Taylor, George Floyd and Ahmaud Arbery,” said Roqua Montez, Berkeley’s executive director of communications and media relations. “Ultimately, it’s about rectifying the very real, very pervasive and very perverse conditions that led to these killings and the violent deaths of so, so many more before them.

“To move forward, we as Americans have to dismantle these violent systems — systems that enforce inequality with a brutal efficiency — and build more just, equitable systems.”

How America and its institutions were created matters.

This is our history. It’s not anti-American to teach it. It’s incredibly American.”

“This is our history,” said Denise Herd, a Berkeley professor of public health who is also associate director of the campus’s Othering and Belonging Institute. “It’s not anti-American to teach it. It’s incredibly American. I think there are a lot of people who are interested in working on racial justice issues right now, so there’s an urgency to talk about this and to write about it, and there should be, because everybody needs to really understand this history in order to tackle its contemporary effects.”

The series will also illuminate research by Berkeley scholars, including studies examining why older, unarmed Black men who suffer from mental illness are particularly vulnerable to violence during police encounters, or the psychological dynamics of racism.

While tackling anti-Blackness will be a priority for the new series, the impact of racism on all people of color will be presented, including the stories of indigenous women and girls who have gone missing near oil pipeline camps and studies about the disproportionate impact of COVID-19 on Native populations.

Berkeley students, faculty and staff activism will also be covered, including a profile on performance studies professor Angela Marino, who runs a theatre on campus to build community among people of color.

New courses that examine the role of race in our democratic systems will be analyzed, such as an African American studies and public policy class focused on the racial inequalities that exist in the U.S. Constitution and how they continue to impact American elections.

Berkeley historians will help us to recognize America’s checkered past, including through a feature story on a new documentary about the 1921 Tulsa Race Massacre being worked on by a Berkeley faculty member.

“If we are at all serious about ending racism, we must have a precise and clear-eyed comprehension of what it is we are ending,” said Berkeley history professor Waldo Martin, who also teaches courses in African American studies. “In turn, our multi-leveled and multi-pronged efforts to achieve the destruction of racism must be guided by that comprehension.”

The Berkeley News series follows campuswide initiatives that encourage increased campus programs to explore social justice and racism. Additional Berkeley efforts include reforms to the campus police department an examination of proposals to unname particular campus buildings, on the heels of denaming the Berkeley Law building and new scholarships for students of color that help to increase diversity on campus.

Chancellor Carol Christ said that members of the Berkeley community have a responsibility to do what they can to confront and vanquish racism and racial injustice.

“While American democracy was founded on the principles of equal rights, justice and opportunity, those ideals have not been realized for all. We have failed to destroy the plagues of racism and anti-Blackness in the present day,” Christ said. “The combination of Berkeley’s excellent academic resources and our community’s long-standing dedication to making the world a better place means we are uniquely positioned — and motivated — to propel societal change. We have an opportunity, an opportunity that must not be squandered.”


The Republican president who called for racial justice in America after Tulsa massacre

It was just three days after the horrific violence in Tulsa, where hundreds of African Americans had been killed and the city’s segregated black neighborhood — including 35 square blocks of prosperous businesses — had been destroyed by rampaging whites. Some buildings had even been firebombed from planes.

President Warren G. Harding spent the weekend worrying over how to respond to the massacre. Finally, he decided to accept a commencement invitation from Lincoln University in Pennsylvania, the nation’s first degree-granting historically black institution.

He would use that moment in 1921 to seek healing and harmony — and several months later in Alabama, he would go much further with daring remarks about equality.

That was how a Republican president addressed racially fraught events nearly a century ago.

“Despite the demagogues, the idea of our oneness as Americans has risen superior to every appeal to mere class and group,” Harding declared. “And so, I wish it might be in this matter of our national problem of races.”

Few people could have missed the symbolism of Harding’s June 6 visit to Lincoln, Pa., near the small town of Oxford, about five miles north of the Maryland border. The university had been founded as the Ashmun Institute in 1854 but changed its name after the Civil War in tribute to the assassinated president. Early on, it was known as “the Black Princeton.”

Harding wanted to acknowledge the searing anguish of Tulsa — the city where President Trump held a controversial rally Saturday night — not just for African Americans there but also across the nation. He also wanted to praise and honor Lincoln alumni who had been among the more than 367,000 black servicemen to fight in the Great War. One Lincoln graduate led the 370th U.S. Infantry, the “Black Devils.” Col. F.A. Denison was the sole black commander of a regiment in France.

The return of so many black veterans from the First World War was in fact one of the catalysts for the country’s increasing racial tensions from 1919 to 1921, with many whites threatened by the black veterans’ newfound status and authority, to say nothing of the competition they posed in the job market.

In Tulsa, Army veterans were among the African Americans who sought to protect their homes and businesses from the white mobs — although newspaper accounts largely and falsely blamed the city’s black population for the upheaval. It would be decades before the true scope and causes of the massacre were analyzed and understood.

Harding and his four-car caravan set off before dawn on that Monday, heading southwest from Valley Forge, Pa., where he and the first lady had been guests at a farmhouse owned by Sen. Philander Knox. When the entourage arrived at the campus, it stopped in front of a granite arch that had recently been erected in memory of “Lincoln men” who had fought and died in the war.

According to the university newspaper, the visit represented “the high-water mark in the history of the institution.” Harding spoke extemporaneously in the sun-dappled setting, addressing the graduating class as “my fellow countrymen.” He was there not just for their commencement but also to help dedicate the arch, and his words reflected a theme he sounded repeatedly during his presidency: that African American servicemen had paid through service and sacrifice for the nation to “make the world safe for democracy.” They were due.

Then he turned to two of the day’s most controversial subjects.

He called education critical to solving the issues of racial inequality, but he challenged the students to shoulder their shared responsibility to advance freedom. The government alone, he said, could not magically “take a race from bondage to citizenship in half a century.”

He also spoke briefly about Tulsa and offered up a simple prayer: “God grant that, in the soberness, the fairness, and the justice of this country, we never see another spectacle like it.”

The fact that Harding chose a black university to make his only comments about the catastrophe spoke volumes about his intentions.

After he concluded, eyewitnesses reported, he congratulated every graduate individually “and shook hands with each one of them.”

That fall Harding became the first president to go into the Deep South since the Civil War. And in a speech that the city of Birmingham, Ala., thought would help celebrate its semicentennial, he instead veered dramatically.

Before a crowd of 100,000 — blacks and whites separated by a fence — he made a full-throated case for political, economic and educational equality among the races. He only stopped short of advocating for social equality. “Let the black man vote when he is fit to vote and prohibit the white man voting when he is unfit to vote,” Harding proclaimed.

Half of his audience erupted in cheers. The other half was thunderstruck. Some whites openly booed and hissed. A Mississippi congressman in attendance denounced Harding’s words as “a blow to the white civilization of America.”

The nation’s 29th president died less than two years later, collapsing with a heart attack after a grueling speaking tour through the West and up into the Alaska Territory. For decades, his record on racial equality — a core belief — remained largely unexplored.

“No majority shall abridge the rights of a minority,” he stressed when accepting his party’s nomination in 1920. “I believe the Negro citizens of America should be guaranteed the enjoyment of all their rights, that they have earned their full measure of citizenship bestowed, that their sacrifices in blood on the battlefields of the republic have entitled them to all of freedom and opportunity, all of sympathy and aid that the American spirit of fairness and justice demands.”

But America was not ready then, and today’s protests and counterprotests reveal the progress still to be made. Almost a century ago, Harding asked Congress to pass an anti-lynching bill. The latest attempt just weeks ago was thwarted by another Republican, Sen. Rand Paul (Ky.).


Unmarked grave part of Spokane’s justice history

There’s an open area behind the main office at Greenwood Memorial Terrace, back by the hillside and beyond the upright headstones, where an unmarked grave contains the remains of Charles Brooks, the first man officially hanged in Spokane.

The site is unmarked because at the time of the execution – Sept. 6, 1892 – no one came forward to pay for a marker. It will remain unmarked, according to Duane Broyles, president of the Fairmount Memorial Association, Greenwood’s parent company, because they don’t want to attract disrespectful curiosity seekers to the site.

Certainly, other men were hanged before Brooks back in Spokane’s early days – perhaps the most well-known of whom was Chief Qualchan of the Yakama Tribe, by Col. George Wright in September 1858. But Brooks holds the distinction of being the first of four men officially executed by legal hanging in Spokane County – not that he probably appreciated the distinction.

Late in the 19th century, the death penalty was carried out at the local level under the guidance of the sheriff of the county in which the crime took place. But not long after the fourth hanging in Spokane in 1900, state law mandated that executions take place at the state penitentiary at Walla Walla.

The story of the murder committed by Brooks was detailed in the newspaper. Brooks, a 62-year-old black man, was convicted of shooting his estranged wife, Christine Dohlman, 27, a Swedish immigrant, on Havermale Island in downtown Spokane on July 5, 1891.

There is quite a bit of speculation in the printed story – that Brooks wanted to marry a white woman, that Dohlman was a gold digger who wanted to wed a rich man and that after marrying Brooks and learning he wasn’t wealthy, she left him. He allegedly stalked her she rejected him and, finally, he shot her, the story goes. After he was convicted, appeals of the death sentence were rejected and the execution proceeded.

His public execution was quite the event. About 150 formal invitations – engraved and looking very much like today’s wedding invitations – were issued, and more than 1,000 people attended. Reporting was extensive, with accounts noting that Brooks made lengthy remarks, requested and was given a Prince Albert coat to wear for the occasion and that he shook hands with all those assembled on the scaffold. There were prayers and hymns and then the hanging took place.

In his book “Life Behind the Badge: The Spokane Police Department’s Founding Years, 1881-1903,” historian Tony Bamonte provides detail of this and the other three executions by hanging. Chinese immigrant Gin Pong was convicted of the March 14, 1896, hatchet murder of fellow immigrant Lee Tung and was hanged for it on April 30, 1897. Area farmer George Webster was convicted of killing his wife’s boss, Lize Aspland, in May 1897, and was hanged in 1900.

The first three executions occurred on the Spokane County Courthouse grounds. The fourth, that of Edward Mayberry, who was convicted of killing Alice Vivian on the Colville Indian Reservation, took place in 1917 at Fort George Wright – because both parties were part Indian and the case fell under federal jurisdiction.

Brooks, Webster and Mayberry are buried at Greenwood Pong’s burial site is not known.

A fifth man, H.D. Smith, was set to be hanged for killing Spangle farmer John Wyatt, but escaped while waiting for the outcome of an appeal in 1895. He is said to have jumped into the fast-flowing Spokane River and been rescued from the water by a fisherman who responded to the shouts of law enforcement officers who were closing in. Realizing he had been caught, Smith took out a knife and killed himself, thus beating the hangman, according to the historical account.

Though unmarked, Brooks’ grave is still a landmark in its own way – an invisible spot denoting the first official hanging in the county, a violent crime followed by a violent end for the criminal.

The cemetery grounds that hold his and the remains of the others looks so tranquil, indeed peaceful, a stark contrast to the events that brought them there.

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