Taking free newspapers vs. buying them up

[Volokh, Eugene]

        Bill is quite correct to point out that I'm usually a big believer
in creative hypos; let me briefly try to explain why I think this particular
hypo doesn't, in my view, prove its point.

        First, let's make clear again that we're talking about whether the
conduct is reprehensible, and perhaps also whether a university should ban
it.  I think Bill and I agree that it wouldn't be unconstitutional for the
university to ban it; that the newspaper distributors could fit it in within
existing theft law if they prominently mark the papers as "first two copies
per customer free, subsequent copies 25 cents each"; and (probably) that the
rule of lenity counsels against interpreting criminal laws at least as
already punishing this conduct in the absence of a specific rule or a
specific notation.  In any event, that's beyond the scope of this post.

        Now to the "reprehensibility" question; here's my take on the
situation:

        1.  Taking a whole bunch of free papers to destroy them is indeed
reprehensible, for three reasons:  (A)  It does physically stop others from
reading the material (in a way that, as I'll explain shortly, buying does
not quite).  (B)  It inflicts uncompensated damage on the newspaper
publisher (and whether or not this damage is recognized as illegal, it is
reprehensible).  (C)  It violates an implicit understanding that the papers
are distributed for free precisely on a "we're distributing them free so you
can read them" basis.  (For instance, I take it that we'd all agree that
someone who takes all the copies of the newspaper in order to make money by
reselling them to the recycling center, is behaving badly, among other
things because he's violating the understanding on which the papers are
being distributed.)

        Again, I'm not here saying that this combination of factors itself
makes the conduct illegal, though I do think that it makes it outlawable --
I'm just saying that it makes it reprehensible.

        2.  Now say that someone buys up all copies of an offensive book and
then burns them.  I think neither of the three factors above are present
here.  First, a savvy publisher will recognize that after the copies are
bought up, there's still a market for readers of the book -- if it printed
10,000 copies hoping to get 10,000 buyers, and instead the copies were
bought and burned, there are still 10,000 buyers out there willing to
reading the book.  Thus, a smart publisher will just print another run of
the book.  Second, this conduct actually helps the publisher rather than
hurts it.  And third, precisely because the price of the book more than
covers the cost to the publisher, there's no violation of an implicit
understanding there -- the publisher is saying "buy a book and use it for
whatever purpose, we're happy so long as we get our money," not "take one
for free with the understanding that you'll read it."  So as to this sort of
situation -- and I suspect also as to the concert, though the scheduling and
promotion dynamics might sometimes make that different -- Bill's hypo
doesn't affect our understanding of the basic principles.

        3.  Of course, between these two poles is a large zone of speech
that is paid for both by sales and by advertising -- most newspapers qualify
as that.  If a college newspaper prints 5,000 copies of a newspaper and
sells them for 10 cents each, and someone spends $500 to destroy them all,
the college newspaper might well have lost money on the transaction, because
its advertisers might well insist on having their payments refunded.  This
is even more so if the newspaper is also partly subsidized by the school.

        Thus, the destruction of the papers may indeed keep people from
reading what the newspaper has to say, since the newspaper might not have
the money to keep reprinting the offending stories.  In example 2 above (the
published book), the book publisher can just keep printing books until the
buyers-and-burners get exhausted, and the normal readers will get a chance
to buy them.  In the partly-advertising-supported/partly-subsidized
newspaper case, the publisher might end up folding first.  Likewise, the
buying and destruction of the papers inflicts an uncompensated harm on the
publisher (though less than the harm inflicted by the destruction of the
free papers).

        So I think that in this situation, the buying up of the papers is
indeed reprehensible -- we just might not at first think of it simply
because this conduct, being expensive for the buyers-and-burners, virtually
never happens.  Because the conduct virtually never happens, we don't have a
really educated intuition on it, so our first reaction ("It's just buying,
that's OK") is particularly likely to be mistaken, especially since it might
be influenced by situation #2 above, which seems similar (there's buying in
both contexts) but is actually different (the buying in situation #2
compensates the publisher and makes reprinting possible, while the buying in
situation #3 doesn't).  And because the conduct virtually never happens,
it's also harder to figure out the implicit understanding with which the
newspapers are distributed.

        So that's why I think the buying-up-the-papers hypo is
unilluminating:  It's not just that it's virtually unheard of, but rather
that its rarity means that few people have much of a reliable intuition
about it, and that it's hard to figure out the implicit understanding behind
the distribution of the bought-but-also-advertising-supported/subsidized
material.

        In any event, setting aside the intuitions and even in some measure
(at least as to item 3), the implicit understanding, I think -- though of
course I may well be wrong -- that the above responds to Bill's hypo.

        Also, now that I think about it, I think the
take-the-papers-to-resell-them-for-recycling hypo may itself be sufficient
to demonstrate that the newspaper seizers are doing something they shouldn't
be doing (unless you think that it's just fine to take free papers and
resell them for recycling).

        Eugene

Bill Funk writes:

> When I asked what was reprehensible about buying the entire press run of a
> newspaper to deny others the ability to see it, the only response I saw,
> from Eugene, was that this hasn't proved to be a practical problem and is
> self-correcting in terms of financial ability.  But Eugene is the master
> of hypotheticals that seem unrealistic but which by shifting the focus of
> the question perhaps make us question our premises.  If it's wrong to deny
> others the ability to see what's in a free newspaper by destroying all the
> copies, because of free speech principles, as opposed to other principles
> or laws, it should be equally wrong for someone with wealth to purchase
> all the newspapers or all the seats in a performance in order to deny
> others the ability to consider them.
>
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