Tilting at Windmills

What did the anti-JOA lawsuit produce? A couple of laughs.

The fight against the Denver dailies' joint operating agreement ended not with a bang, but with a snicker. Or maybe two.

The second such bit of mirth took place on April 12, day two of a hearing before U.S. District Judge John Kane, who had been asked to issue a temporary restraining order against three key results of the JOA: the combined classified section running in both the Denver Post and the Rocky Mountain News, the split weekend editions (the News gets Saturday, the Post gets Sunday), and elevated advertising rates. As American Furniture Warehouse magnate Jake Jabs, who funded the challenge, was ranting about the evils of the pact from the witness stand ("It was crazy time...There should have been an investigation"), Kane put his hand to his cheek to block his expression from Jabs's view and chuckled quietly to himself. You didn't have to be a legal expert to know that was a bad sign -- and a few hours later, Kane smacked down the plaintiffs' arguments like an especially irritating horsefly, even going so far as to hint that he might sanction Jabs and company if they attempted to darken his doorway with their arguments again. Even Jabs, who testified repeatedly that he didn't understand the papers' new rate cards, could read between those lines. Less than 24 hours later, he gloomily announced that he was dropping the suit.

Just as telling, though, was the initial guffaw, which took place the previous day during the presentation by Ryan Ross, a freelance journalist and former Westword staffer who, through doggedness and wile, had managed to attach himself to Jabs's efforts despite lacking the financial resources normally required to bring an action before the federal bench. Unlike the other parties in the case, who were motivated mainly by money (the desire to pay less or collect more), Ross was driven by his belief that the people of Denver would be poorer if the JOA were allowed to stand. In an attempt to illustrate his contention, he displayed two newspaper bundles: one a week's worth of editions from just before the agreement went into effect, the other from afterward. He then pointed out with a flourish that the former stack weighed 20.4 pounds and the latter tipped the scales at just 15.3 pounds -- meaning that we, the readers of Denver, are losing out on 5.1 pounds of news and information per week.

The gallery watching the proceedings, made up mostly of reporters from the very papers that were defendants in the matter, responded to this clumsy bit of theater with unmuffled cackles -- and why not? There are few things more embarrassing than a failed Perry Mason moment. But this reaction was also an acknowledgement that, in the overall scheme of things, Ross didn't matter, because he wasn't powerful enough to matter. Joint operating agreements are by their very nature political: Had Congress not passed the exemption-filled Newspaper Preservation Act of 1970, many JOA provisions would be blatantly illegal. As such, the only opponents who count are those with enough clout to make things politically uncomfortable -- collective business interests rather than lone wolves, as Jabs was perceived to be, or public officials like Denver mayor Wellington Webb, whom the dailies were able to co-opt early on. And how has Webb been repaid for his support? Rates for city notices required by law to be printed in newspapers have more than doubled, forcing Webb's staff to look for alternatives to the News and the Post. Thanks, your honor -- now, pony up.

Considering all that, Ross was easy to dismiss despite the moral high ground he occupied. His passionate, energetic performance before an indulgent Judge Kane recalled Jimmy Stewart filibustering in the populist classic Mr. Smith Goes to Washington -- but if Ross had collapsed in exhaustion, papers fluttering to the floor around him à la Stewart, no one would have cared. In Hollywood myth, the little guy makes all the difference. In reality, he's usually a speed bump.

If Ross and Jabs failed to make a lasting dent, however, they managed to provide some temporary discomfort for several court attendees at the heart of it, including Alan Horton, an executive with E.W. Scripps, the News's parent company, Denver Newspaper Agency head Kirk MacDonald, and Dean Singleton, de facto owner of the Post, who was heard to grouse at one point about the hardness of the wooden benches provided for spectators.

But their keister pain was likely soothed by momentum, which was on their side from the start. Judge Kane occasionally exhibited a certain uneasiness with the muscle being displayed by the News-Post juggernaut, noting that "when you're able to pay for this stable of lawyers, it becomes apparent that this is more a sport of kings than polo is." Likewise, his decision included the comment that "one and a half newspapers is better than one," indicating that he didn't regard the JOA to be a panacea. But he also sharply chastised Jabs's lawyers, Thomas McMahon and Patricia Bangert, for "personally and individually" naming Attorney General Janet Reno, who approved the JOA, as a defendant in the lawsuit; snapped at McMahon when he tried to bolster his line of reasoning by citing an unpublished decision; and repeatedly muzzled Jabs on the grounds that many of his remarks were founded on hearsay -- which they indisputably were.

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