Antitrust and the Constitution

• Author: Christopher L. Sagers
• Pages: 57-74

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CHAPTER IV

ANTITRUST AND THE CONSTITUTION

In certain contexts the U.S. Constitution directly limits the scope of

antitrust. In order for antitrust enforcement to be constitutional in any

given case, it must be within Congress’s power under the Commerce

Clause, and it must not violate a party’s constitutional rights.

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While

interstate commerce issues are now comparatively rare,

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civil rights

issues arise fairly often, especially concerning free expression and the

press.

Constitutional issues are not always reached in cases in which they

might have been implicated. Sometimes they are avoided through special

judge-made rules of statutory construction. Specifically, the

“immunities” for political conduct reflect concern for constitutional

values, but they may not themselves be required by the Constitution.

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As

discussed elsewhere in this book, those rules protect private participation

in the political process,

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the actions of state governments,

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and private

persons acting pursuant to state policies.

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Because the judge-made rules

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. Criminal antitrust also implicates individual rights issues, insofar as

criminal antitrust defendants have the same criminal procedure rig hts as

other defendants. Those rights will not be discussed here because they are

rights held by criminal defendants generall y and do not go to the scope of

antitrust.

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. This issue is discussed in Chapter II.A.

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. Whether the political immunities are rules of statutory construction or are

themselves rules of constitutional law has been the subject of some

controversy. The issue is discussed in Chapter V.B.

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. The Noerr-P ennington immunity, which protects political “petitioning,”

is discussed in Chapter V.

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. The Parker or “state action” immunity, which pro tects actions of state

governments from antitrust liability, is discussed in Chapter VI.

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. The P arker immunity has been extended to protect the actions of private

persons from antitrust liability when they act pursuant to a “clearly

articulated” s tate government policy to displace competition that is

“actively supervised” by the state itself. Cal. Retail Liquor Dealers Ass’n

A Handbook on the Scope of Antitrust

58

tend to be more limiting of antitrust than would be the Constitution itself,

they usually prevent direct consideration of the constitutionality of

antitrust.

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Where constitutional issues going to the scope of antitrust are

directly reached, they ordinarily involve a defendant’s rights under the

First Amendment. These issues most commonly involve rights of free

expression or the press, as discussed in Chapters IV.A.1 and IV.A.2.

Cases also occasionally arise involving religious freedom, as discussed in

Chapter IV.A.3.

A. Antitrust, Expression, and Free Association

The First Amendment protects a range of expressive conduct. By its

terms it protects “speech,”

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“petition [of] government for . . . redress of

grievances,”

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and “peaceabl[e] . . . assembl[y].”

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In practice,

contemporary courts hold each of these specifically enumerated

protections to constitute essentially one, unified right of expression.

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v. Midcal Aluminum, Inc., 445 U.S. 97 (1980). This Midcal immunity is

discussed in Chapter VI.A.

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. But see, e.g., FTC v. Super. Ct. Trial Lawyers Ass’n, 493 U.S. 411, 424-

28 (1990) (first finding antitrust not precluded by Noerr-P ennington

immunity, and then considering whether antitrust l iability would

nevertheless violate the First Amendment).

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. “Congress shall make no law . . . abridging the freedo m of speech . . . .”

U.S. CONST., Amend. I.

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. “Congress shall make no law . . . abridging . . . the right of the peop le . . .

to petition the government for a redress of grievances.” U.S. CONST.

amend. I.

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. “Congress shall make no law . . . abridging . . . the right of the people

peaceably to assemble . . . .” U.S. CONST. amend. I.

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. Under that unitary right o f expression, antitrust and other content-neutral

economic regulator y laws violate the First Amendment only where they

impose a burden on speech that fails the relatively permissive test of

United S tates v. O’Brien, 391 U.S. 367 (1968). See, e.g., Turner Broad.

Sys., Inc. v. FCC, 512 U.S. 622, 661 -62 (1994) (characterizing the “must-

carry” provisions of the Cable Television Consumer Protection and

Competition Act, which required cable operators to carry some local

broadcast content, as “content -neutral” limits subject only to intermediate

scrutiny under O’Brien). Specifically, s uch a burden must “ further[] an

important or substantial govern mental intere st” and must be “no greater

than is essential to the further ance of that interest.” O’Brien, 391 U.S. at

376-77. See generally RODNEY A. SMOLLA & MELVILLE B. NIMMER,