Vol 7 No 1 - Roger Williams University School of Law

motivating force.While antitrust or competition law may be seen by many tonow rest in the lap of economic analysis, there can be little doubtthat growing proprietary rights in digital architecture, such assoftware, which forms the basis of modern communication (formand content), are demanding that a diversity of communicationpathways be opened.195 The role of antitrust law in ensuringdiversity of information and knowledge (in the mould of the FirstAmendment) is clearly articulated in the following passage fromthe Associated Press case:The First Amendment, far from providing an argumentagainst application of the Sherman Act, here providespowerful reasons to the contrary. That Amendment restson the assumption that the widest possible disseminationof information from diverse and antagonistic sources isessential to the welfare of the public, that a free press is acondition of a free society. Surely a command that thegovernment itself shall not impede the free flow of ideasdoes not afford non-governmental combinations a refugeif they impose restraints upon that constitutionallyguaranteed freedom. Freedom to publish means freedomfor all and not for some. Freedom to publish isguaranteed by the Constitution, but freedom to combineto keep others from publishing is not. Freedom of thepress from governmental interference under the FirstAmendment does not sanction repression of that freedomby private interests.196This passage, which some might suggest is outdated and othersmight characterise as timeless, highlights that welfare of thepublic is a social and not just an economic issue and that private195. See, e.g., Microsoft, 87 F. Supp. 2d 30; Melway Publishing Pty. Ltd. v. RobertHicks Pty. Ltd. [2001] H.C.A. 13 (Austl.).196. Associated Press v. United States, 326 U.S. 1, 20 (1945); see also UnitedStates v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943). There, the districtcourt stated:Id.That interest [of the news industry to present a diversity of opinion] is closelyakin to, if indeed it is not the same as, the interest protected by the FirstAmendment; it presupposes that right conclusions are more likely to begathered out of a multitude of tongues, than through any kind ofauthoritative selection. To many this is, and always will be, folly: but wehave staked upon it our all.