Community Communications v. City of Boulder: An Intergovernmental Paradox

Abstract

American public policy has always demanded some degree of fairness and openness in activities of both the public and private sectors. The federal antitrust laws' and the federal civil rights laws2 each represent an embodiment of this policy. The antitrust laws are designed to regulate private activity, while the civil rights laws serve as an essential check on overreaching by federal, state, and local governments. The federal antitrust laws, as complemented by state enactments,3 represent a model of public policy in favor of the free market, supporting the proposition that competition in all things ultimately will lead to the best and most appropriate allocation of private resources. Indeed, the Sherman Act has been described as the Magna Carta of free enterprise.4 The federal civil rights laws, finally, demand that public officials and entities act in ways that are fair and open and that promote the public good. This includes the concept that there should be a fair allocation of public resources if the public welfare is to be served. A premise of this article is that the antitrust laws were designed to place restraints on private sector activities which closely and carefully parallel the constitutional and statutory checks traditionally placed on public activities. This premise is quite simple: neither government wielding its police power nor private business wielding the power created by the flow of wealth will be allowed to distort the American society or economy to the point that fundamental principles of fairness and equality are compromised.5 A second premise of this article is that the period of substantial scrutiny of local government actions under the federal antitrust laws, 1978-85, demonstrated the inappropriateness of the application of private sector regulation to governmental activity. In addition, this scrutiny exacerbated age-old intergovernmental tensions concerning the allocation of power between states and their local governments.