Chapter VI. What Do We Mean By 'Generally Immune'? The Exceptions To The Immunity

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CHAPTER VI

WHAT DO WE MEAN BY “GENERALLY IMMUNE”?

THE EXCEPTIONS TO THE IMMUNITY

Not all activities relating to “petitioning” the government—even

among those activities genuinely aimed at seeking some government

action—qualify for Noerr-Pennington protection. Instead, the Supreme

Court in Allied Tube & Conduit Corp. v. Indian Head

1

cautioned that

“the applicability of Noerr immunity varies with the context and nature

of the activity” at issue.

2

Noerr-Pennington is not a seamless blanket of

protection that covers all contact with the government. Courts,

commentators, and the Federal T rade Commission (FTC) have identified

holes or exceptions, or situations si mply not reached by the Noerr-

Pennington doctrine, based on the “source, context, and nature”

3

of the

particular circumstances in question. This chapter considers the

exceptions and exclusions from Noerr-Pennington protection.

A. The “Misrepresentation” or Corruption Exception

One possible area for exceptions to antitrust immunity for efforts to

influence the government can be found in those efforts that are tainted by

deception, corruption, or other misconduct. The Supreme Court has

made it clear that the First Amendment does not insulate one from claims

for libel, slander, and other intentional falsehoods.

4

But, from its

inception, the Noerr doctrine has never been circumscribed by a

universal exception for misconduct.

1. 486 U.S. 492 (1988).

2. Id. at 499.

3. Id.

4. See, e.g., McDonald v. Smith, 472 U.S. 479, 4 82-85 (1985); Garrison v.

Louisiana, 379 U.S. 64, 75 (1964).