Chapter III. The Basis Of The Noerr-Pennington Doctrine: Statutory Construction Versus The First Amendment

• Pages: 31-44

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CHAPTER III

THE BASIS OF THE NOERR-PENNINGTON

DOCTRINE: STATUTORY CONSTRUCTION

VERSUS THE FIRST AMENDMENT

Whether the Noerr-Pennington doctrine is founded on First

Amendment grounds, on a limiting construction of the Sherman Act, or

on both remains unresolved.

1

The question, however, has important

implications both for development of the doctrine and for limitations

Noerr-Pennington potentially imposes on state law. This chapter

explores the roots of the Noerr-Pennington doctrine, what the case law

says about those roots, and the competing arguments for tying Noerr-

Pennington to the First Amendment or statutory principles.

A. The Right to Petition

The right to petition the government for action or the redress of

grievances has long been regarded as a critical constitutional guarantee.

This right has been recognized going back to the Magna Carta and the

1. See Stephen Calkins, Developments In Antitrust and the First Amendment,

The Disaggregatio n of Noerr, 57 ANTITRUST L.J. 327, 329 (1988) (“T he

root of the uncertainty [ in the Noerr-Pennington doctrine] is the failure to

decide whether the doctrine is founded on constitutional p rinciples.”)

[hereinafter Disaggregation of Noerr]; Daniel R. Fischel, Antitrust

Liability for Attempts to Influence Government Action: The Basis and

Limits of the Noerr-Pennington Doctrine, 45 U. CHI. L. REV. 80, 94 (1977)

(“[T]he principa l weakness of the Noerr-Pennington line of ca ses is the

Court’ s f ailure to unambig uously articul ate the basis for exempt ing

certai n lobbying from the reach of the antitrust laws”).