This Article examines the Supreme Court's attempts to foster open markets by altering either the structure or the conduct of mass media enterprises." Structure and conduct are the two main determinants of market performance. Market structure "means those characteristics of the organization of a market that seem to exercise a strategic influence on the nature of competition and pricing within the market." Some characteristics of market structure include degree of buyer concentration, degree of seller concentration, degree of product differentiation, and entry conditions. Market conduct, on the other hand, comprises the practices, policies, and devices which firms employ in adjusting to changes in their markets. Structure can have an impact on conduct, and conversely, conduct can affect structure. Thus, when the Supreme Court addresses the structure of mass media enterprises, their conduct and performance can also be affected, and vice versa.
The total mass media marketplace includes such diverse media as newspapers, books, periodicals, recordings, broadcasting stations, and motion pictures. Enterprises in each medium compete not only against each other but also against enterprises in other media as well. This Article will discuss several media separately because conditions for entry, competitive practices, and other factors differ among mass communications industries. Moreover, the Supreme Court has formulated distinct first amendment standards for each medium it has confronted. This Article explores first whether the Court's antitrust decisions promote open market conditions for mass media. Second, this Article analyzes the important first amendment problems that are posed by such cases. Finally, this Article will argue that the Court should apply uniform antitrust and first amendment standards for all media.
William E. Lee,
Antitrust Enforcement, Freedom of the Press, and the "Open Market": The Supreme Court on the Structure and Conduct of Mass Media,
32 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol32/iss6/1