The basis of the Noerr-Pennington doctrine: statutory construction versus the first amendment

• Pages: 31-48

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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 That question 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.

1. See Stephen Calkins, Developments in Antitrust and the First

Amendment, The Disaggregation of Noerr, 57 ANTITRUST L.J. 327, 329

(1988) [hereinafter Disaggregation of Noerr] (“The root of the

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

whether the doctrine is founded on constitutional principles.”); see also

Michael Pemstein, The Basis for Noerr-Pennington Immunity: An

Argument That Federal Antitrust Law, Not the First Amendment, Defines

the Boundaries of Noerr-Pennington, 40 T. MARSHALL L. REV. 79, 82

(2014) [hereinafter The Basis for Noerr] (“The Supreme Court, however,

has not always been explicit about when, and to what extent, its Noerr-

Pennington holdings are based on the First Amendment right to petition,

and when, and to what extent, they are influenced by other non-

constitutional considerations, such as its interpretation of federal antitrust

statutes.”); 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 principal weakness of

the Noerr-Pennington line of cases is the Court’s failure to

unambiguously articulate the basis for exempting certain lobbying

from the reach of the antitrust laws.”).

32 The Noerr-Pennington Doctrine

A. The Right to Petition

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

grievances is a critical constitutional guarantee. This right has been

recognized going back to the Magna Carta and the English Parliament,2

and was guarded jealously by the American colonists. For example, the

Stamp Act Congress of 1765 stated: “[I]t is the right of the British subjects

in these colonies, to petition the king or either house of parliament.”3

The Dec larati on and Reso lves of the First Continental Congress, passed

in 1774, further echoed this sentiment, asserting that Americans “have a

right peaceably to assemble, consider their grievances and petition the King.

All proscriptions prohibiting proclamations, and commitments for the

same are illegal.”4

The right to petition is written into the very framework of U.S.

representative democracy. The First Amen dment to th e Constitution

guarantees that “Congress shall make no law . . . abridging the freedom

of speech, or of the press, or the right of the people peaceably to

assemble, and to petition the Government for a redress of grievances.”5

Moreover, the Supreme Court generally has considered the right to

petition as similar to the other First Amendment rights:

We start with the premise that the rights to assemble peaceably and

to petition for a redress of grievances are among the most precious of the

liberties safeguarded by the Bill of Rights, [and that] these rights . . . are

intimately connected, both in origin and in purpose, with the other

Firs t Am endm ent rights of free speech and free press. “All these, though

not identical, are inseparable.”6

2. Norman B. Smith, “Shall Make No Law Abridging . . .”: An Analysis of

the Neglected, But Nearly Absolute, Right of Petition, 54 U. CINN. L. REV.

1153 (1986); see also Borough of Duryea v. Guarnieri, 564 U.S. 379,

395 (2011) (explaining the common law roots of the right to petition the

sovereign).

3. Adderley v. Florida, 385 U.S. 39, 49-50 n.2 (1966) (Douglas, J.,

dissenting).

4. Id.

5. U.S. CONST. amend. I. An early Supreme Court discussion of the right of

assembly and petition appears in United States v. Cruikshank, 92 U.S.

542 (1876).

6. United Mine Workers of Am., Dist. 12 v. Ill. State Bar Ass’n, 389 U.S.

217, 222 (1967) (citing Thomas v. Collins, 323 U.S. 516, 530 (1945));