By Eric Hübler Judges tell us what to do. Editorial writers tell us what to think. That said, you'd be hard-pressed to know just what to make of the June 28 decision by the U.S. Federal Court of Appeals in the Microsoft case if you read the editorial pages of major U.S. newspapers over the past week. The panel stopped an impending breakup of Microsoft ordered by Judge Thomas Penfield Jackson and remanded the case back to trial, removing Jackson from presiding over it.
At the same the, the Appeals Court also upheld the Justice Dept.'s core contention -- that Microsoft abused its monopoly powers in the PC operating-systems market. While it was a complex decision (see BW Online, 6/28/01, "The Colossus of Redmond: Stronger Than Ever?" and "The Microsoft Case Is Hardly Over", rarely has a court ruling been viewed in so many different ways on the editorial pages of America's newspapers.
The New York Times and Washington Post both seemed to think the decision was a victory for trustbusters at Justice, although the Times's editorial writers were more adamant about it than the Post's scribes.
"STAY ON THE CASE." The Times's basic message: Don't be fooled by Microsoft's claims of victory. To underscore the point, its editorial ran under the headline
"Microsoft's Core Illegalities" (registration required). The newspaper urged the Bush Justice Dept. to "stay on the case."
The Washington Post agreed. It said the ruling was almost entirely a victory for both Justice (as in the federal department) and for justice in general, albeit in a shorter and easier-to-read editorial. "Whether a problem exists" with Microsoft can no longer be in doubt, the Post said. The only question now is how
to solve it?
That sure isn't how The Wall Street Journal saw the decision. Same for The Seattle Times -- hometown paper for Microsoft in nearby Redmond. By focusing almost exclusively on the parts of the ruling that conflicted with what Judge Jackson had decided, the Journal editorial writers declared the Appeals Court verdict to be a "a home run" for Microsoft. The Journal urged the Bush Administration to just "yank" the case.
JUDICIAL MISHANDLING. In Seattle, the homies couldn't have agreed more, viewing negation of a breakup as total victory for Gates & Co. The Seattle Times editorial page saw the decision as a prelude to an outcome that Microsoft, Seattle, and the universe surely deserve: Leave Microsoft alone.
The Journal and Seattle Times focused almost entirely on the many ways in which the appeals judges said Jackson had mishandled the case, such as discussing his breakup decision and his opinions about Microsoft with reporters while the case was on appeal. Barely mentioned in their editorials was that Appeals Court judges agreed with both Justice and Judge Jackson on the trustbusters' biggest legal contention -- that Microsoft is an abusive monopolist.
That thought burned brightly in Silicon Valley, however. The hometown paper of many of Microsoft's archrivals, The San Jose Mercury News,
put it simply: Microsoft "violated antitrust laws." In its editorial on the decision, the Merc noted that the decision by the appeals panel was unanimous. And it named some of the Silicon Valley companies and products that it predicted would soon be squashed by Microsoft. The Mercury News urged the government not to go
CALL TO SETTLE. In Southern California, the Los Angeles Times was indeed a little more squishy on the findings of fact. Times editorialists called the breakup idea "loopy." But siding with Microsoft competitors, the paper said software developers should be able to "rewrite their code without looking over their shoulders." The Times called for an out-of-court settlement but a tough one.
Then again, The Denver Post -- my own employer -- which usually leans a tad to the left on its editorial pages, sounded like a clone of The Wall Street Journal, which rarely happens. It mocked the "jihad" against Microsoft and the "obstreperous" Judge Jackson. The Post said the whole case had been a mistake from the start, and it urged President Bush to make it go away.
So there we have it. The Appeals Court's unanimous split decision was a total victory, a total loss, a partial victory, or a partial loss for Microsoft and for Justice, which now should and should not settle the case on forgiving and unforgiving terms.
Can editorials be appealed? Hübler is a reporter for The Denver Post