by Mitch Kokai
Senior Political Analyst, John Locke Foundation
U.S. District Judge Denise Cote last week found Apple guilty of colluding with five book publishers in a conspiracy to set the price of e-books in its iBookstore a few bucks higher than Amazon’s typical $9.99 price.
The problem in the case is not merely how the judge ruled against competition between Apple and Amazon.com. The real issue, even though the publishers would not defend it for themselves, is whether sellers in a competitive market can set prices. That is a human right, a “right retained by the people,” in the words of the Ninth Amendment.
Congress and the judiciary have been eroding commercial rights since enactment of the Sherman Antitrust Act in 1890, but when the Apple case goes to the Supreme Court, it will give the justices a chance to repair the walls of economic freedom. They should say that the government has no power to force producers to charge a low price.
The case also presents an important opportunity for the high court to strengthen respect for the First Amendment: Beyond their simple economic rights, publishers enjoy special protection from government interference in the important civic business of distributing information and entertainment. The Supreme Court should declare the economic part of that right to be as much protected as the content part.