Chapter V. What Do We Mean By Government?

• Pages: 77-90

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CHAPTER V

WHAT DO WE MEAN BY GOVERNMENT?

Petitioning activity must be directed toward the government. While

the case law is clear that petitioning immunity applies to any branch of

government, the line between governmental and quasi-governmental

entities can be blurry. Li kewise, while First Amendment rights to

petition would seemingly extend only to U.S. entities, the petitioning of

foreign bodies is becoming increasingly important. The question of what

bodies count as the government for Noerr-Pennington purposes is

considered in this chapter.

A. The Government Is Any Branch

The U.S. Supreme Court has recognized that petitioning of the

government includes any branch of government—legislative, executive,

or judicial—at all levels.

The exemption for petitioning the government was first established

in Eastern Railroad Presidents Conference v. Noerr Motor Freight,

1

which involved petitioning of state executive and legislative branches,

namely the Governor of Pennsylvania and the Pennsylvania legislature.

In United Mineworkers of America v. Pennington,

2

Noerr immunity was

extended to protect advocacy aimed at lobbying the federal executive

branch, particularly the U.S. Secretary of Labor. As the Supreme Court

succinctly explained in California Motor Transport Co. v. Trucking

Unlimited,

3

Noerr logically covered administrative agencies “both

creatures of the legislature, and the arms of the executive.”

4

1. 365 U.S. 127 (1961).

2. 381 U.S. 657 (1965).

3. 404 U.S. 508 (1972).

4. Id. at 510.