CITY OF NORTH MUSKEGON ET AL. v. BRIGGS
No. 84-1230
C. A. 6th Cir.
473 U.S. 909
Drawing distinctions between the permissible and the forbidden in this area is difficult, and the posture of this case—a jury verdict overturned by the District Court but reinstated on appeal—creates an additional layer of complexity, since each court below took a different view of what facts were relevant. Nonetheless, this case raises several substantial questions of antitrust law and policy, including what constitutes forcing power in the absence of a large share of the general market, whether market power over “locked in” customers must be analyzed at the outset of the original decision to purchase, and what effect should be given to the existence of a copyright or other legal monopoly in determining market power.
At stake is more than the resolution of this single controversy or even the clarification of what may seem at times to be a collection of arcane legal distinctions. In the highly competitive, multibillion dollar a year computer industry, bundling of software and hardware, or of operating systems and central processing units, is somewhat common, and any differentiated product is especially attractive to some buyers. The reach of the decision in this case is potentially enormous, and as the United States strongly urges us to do, I would grant certiorari to address the substantial issues of federal law presented.
Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.
JUSTICE WHITE, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, dissenting.
In 1977, respondent Briggs, then a married police officer separated from his wife, maintained an intimate relationship with a woman married to another man, and moved into an apartment
Respondent sued, claiming that his discharge amounted to an unlawful violation of his civil rights. 563 F. Supp. 585 (WD Mich. 1984). The District Court and Court of Appeals for the Sixth Circuit rejected the argument that respondent‘s activities were prohibited by state statutes forbidding adultery and lewd and lascivious cohabitation. Those courts also found that respondent‘s fundamental right of sexual privacy was infringed. Respondent was awarded $35,000 in compensatory damages, and this award was upheld on appeal. 746 F. 2d 1475 (1984).
The decision below stands in marked contrast to that issued by another Federal Court of Appeals. In Shawgo v. Spradlin, 701 F. 2d 470 (1983), cert. denied sub nom. Whisenhunt v. Spradlin, 464 U. S. 965 (1983), the Fifth Circuit held that unmarried police officers could be disciplined for cohabiting with each other. Despite that in Shawgo there was no allegation of violation of state law, the Court of Appeals there ruled that any right to privacy implicated was qualified and was overridden by the governmental interests at stake in running a police department.
The difference between the approaches of these two federal courts is evidence of a broader disagreement over whether extramarital sexual activity, including allegedly unlawful adulterous activity, is constitutionally protected in a way that forbids public employers to discipline employees who engage in such activity. Compare, e. g., Baron v. Meloni, 556 F. Supp. 796 (WDNY 1983); Suddarth v. Slane, 539 F. Supp. 612 (WD Va. 1982); Johnson v. San Jacinto Junior College, 498 F. Supp. 555 (SD Tex. 1980), with Baker v. Wade, 553 F. Supp. 1121, 1140 (ND Tex. 1982); New York v. Onofre, 51 N. Y. 2d 476, 487, 415 N. E. 2d 936, 940 (1980), cert. denied, 451 U. S. 987 (1981); Drake v. Covington County Board of Education, 371 F. Supp. 974, 978–979 (MD Ala. 1974) (three-judge court).
This case presents an important issue of constitutional law regarding the contours of the right of privacy afforded individuals for sexual matters. It is an issue over which courts are divided, and I would grant certiorari to address it squarely.