April 30, 2002
By Margie Burns
"There is nothing in the bill to prevent a refusal by
anybody to buy anything." - Senator John Sherman, discussing
his Antitrust Act,1890.
As President Bush's Attorney General, John Ashcroft may become
something of a student of American legal history. However,
his past job experience as an attorney general indicates disregard
of one of the clearer lessons from the history books: antitrust
prosecutions should not be used to stifle political speech.
While serving as Missouri's Attorney General, Ashcroft filed
a lawsuit in federal court in 1978 alleging that a National
Organization for Women-supported consumer boycott of Missouri
as a convention location was a "combination and conspiracy
in restraint of trade" violating antitrust laws. The background
to the case was the proposed Equal Rights Amendment to the
Constitution, which had been passed by both houses of Congress
and submitted to the states for ratification on March 23,
At the time of Ashcroft's lawsuit, the ERA had been ratified
by 35 states, with three more needed for ratification. In
Missouri, ERA ratification legislation had been introduced
twice in the state legislature, passing the state's House
once but defeated in the Senate both times. In 1975 the National
Federation of Business and Professional Women retained a consultancy
to advise on strategy. Under advice, the BPW passed a resolution
to boycott non-ratifying states as convention locations; similar
resolutions followed by other national organizations including
NOW. When the boycotts got underway in Missouri, some 200
organizations had joined in the movement by the time Ashcroft's
lawsuit was filed (and another 200 after the filing).
Ashcroft pursued his case, if you call it that, with a perseverance
worthy of a better cause. He lost in the U. S. court for the
Western District of Missouri. Swimming upstream against nineteen
detailed pages on background and law by District Judge Elmo
B. Hunter, he then appealed to the Eighth Circuit (where an
amicus attorney for the other side was Ruth Bader Ginsburg).
Losing in the Circuit Court -- which seems to have joined
zestily in a historical discussion -- he tried twice to get
a hearing from the Supreme Court but was denied.
As Judge Hunter's discussion makes clear, NOW was neither
the first initiator nor the sole organizer of boycotts supporting
the Equal Rights Amendment. When the Business and Professional
Women passed its boycott resolution, it was followed by the
League of Women Voters; the National Association of Women
Deans, Administrators and Counselors; the National Education
Association; the American Association of University Women;
and the American Political Science Association. More boycott
support followed in the late 70s including that of NOW, the
American Nurses Association, the National Council of Senior
Citizens and the American Home Economics Association.
Ashcroft sued NOW alone, however, and the District Court
noted the selective prosecution. Judge Hunter wrote that "The
national NOW organization did not become involved with this
movement until 1977" and that ERA boycotts had been coordinated
by at least 15 national organizations along with state and
local organizations and individuals. It looks as though Ashcroft
singled out NOW for reasons not entirely related to the merits
of antitrust law.
This was not just opposition to "abortion"; it was a broadside
against a raft of prominent women's groups. However, it also
targeted NOW specifically, with a targeted singling-out that
was probably tactical but fatally undermined the combine/conspire
allegation. Thus Ashcroft reinforced NOW's argument, accepted
by the district and circuit courts, that the boycott was political,
and also threw the case onto First Amendment territory, where
letters and phone calls urging that conventions be held only
in ERA-ratifying states become protected expression.
An odd conjunction: on February 21, 1979, the St. Louis Post-Dispatch
quoted unnamed "state officials" who called the boycott "taking
states as economic hostages, with ratification of the Equal
Rights Amendment as the ransom." The first takeover of the
US embassy in Iran had just occurred on Valentine's Day, 1979,
with 70 employees seized and held for over two hours (the
previous year, when filing the lawsuit, Ashcroft had characterized
the boycott as "economic tyranny)."
Ashcroft might have spared himself and his state the defeat,
had he focused on the unsavory historical precedents. There
had already been a lineup of attempts to turn antitrust legislation
against popular movements rather than against corporations.
Early labor union organizing was repeatedly attacked under
antitrust law, ultimately unsuccessfully. Segregationists
of the fifties and sixties attempted to sue the NAACP in the
same guise over civil rights boycotts of local businesses;
in NAACP v. Alabama, the court held repeatedly that freedoms
of speech and association could not be restricted by sweeping
injunctions from the state.
In fact, the Missouri case ended up contributing some legal
precedent against such attempts: Missouri v. the National
Organization for Women has been cited in opinions protecting
other boycotts, notably in Henry v. First National Bank (1979)
and the labor boycott in Adolph Coors Co. v. Wallace (1984).
Never say Ashcroft hasn't done anything for people's rights,
even without bra-burning vixens like Ginsburg around.
Cheerfully the appeals court picks up on this history, enumerating
"examples of political boycotts" from "the boycott of Florida
citrus products which was to protest against the Miami referendum
withdrawing protection for gay civil rights" to the Revolutionary
era colonists' boycott of British goods to protest the Stamp
Getting into the swing, two judges state that "One of the
more famous political boycotts occurred in Montgomery, Alabama,
to protest the racial segregation and discrimination on city
buses. There have been consumer boycotts on meat, supermarkets,
grapes, iced tea in cans, sugar or soft drinks, slacks, lettuce,
textiles, chocolate, Saran Wrap, Mexico, tuna, animal skins
and furs, Russian products and Japanese products."
And that's before the judges even get to the historic conversation
among senators passing the Sherman Antitrust Act:
Mr. Sherman: I desire to say distinctly that that [preventing
boycotts] is not my idea or the idea of any one of the committee.
Mr. George: I presume it is not.
Mr. Sherman: Nor do I believe it is a fair construction
of the bill.
The appeals court rebuff is again unequivocal: "We find Missouri's
focus on the facts of this case and not the district court's
misleading . . ."
What a loss to American prose it is, that William O. Douglas
never got a crack at this Ashcroft case. The record seems
clear that Ashcroft's motivation in pursuing the lawsuit,
with this kind of encouragement, was his own; neither the
St. Louis and Kansas City mayors nor the local convention
bureau endorsed it. The record remains to be clarified as
to whether the failing lawsuit reflects Ashcroft's stance
on women's organizations, on popular movements that use economic
tactics successfully, or on the First Amendment, as the St.
Louis Post-Dispatch editorialized at the time.
Nothing in the record indicates that Ashcroft felt impelled
to move on many antitrust fronts; in other words, his motivation
seems not to have been antitrust fervor. Mr. Ashcroft was
faced with the Boeing-McDonnell Douglas merger in 1997 and
with the failed Sprint-MCI WorldCom merger in 1999, both in
Missouri. St. Louis-based Boeing's merger was the largest
in aerospace history, but when the European Union objected
to the merger on grounds that Boeing could dominate the world's
aerospace market - which on the face of it doesn't sound like
an off-the-wall accusation - Ashcroft joined in a letter to
President Clinton criticizing not the merger but the EU. And
when the Justice Department blocked the huge telecommunications
merger of Sprint and MCI WorldCom, Ashcroft's response was
to call the blocking -- not the proposed merger -- "distressing."
Predictably, the Center for Responsive Politics lists Sprint
as Ashcroft's biggest contributor in 2000, and Boeing among
his top ten.
You can contact Margie Burns at email@example.com