What do we mean by government?

• Pages: 87-101

87

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. This chapter considers the question of what bodies

count as the government for Noerr-Pennington purposes.

A. The Government Includes Any Branch

The United States Supreme Court has recognized that petitioning of

the government includes any level of any branch of government:

legislative, executive, or judicial.1

The exemption for petitioning the government was first established

in Eastern Railroad Presidents Conference v. Noerr Motor Freight,2

which involved petitioning of state executive and legislative branches,

namely the Governor of Pennsylvania and the Pennsylvania legislature.3

In United Mineworkers of America v. Pennington,4 Noerr immunity was

extended to protect advocacy aimed at lobbying the federal executive

branch, particularly the U.S. Secretary of Labor.5 As the Supreme Court

succinctly explained in California Motor Transport Co. v. Trucking

Unlimited,6 Noerr logically covered administrative agencies, which are

“both creatures of the legislature, and the arms of the executive.”7

California Motor Transport extended Noerr to shield citizens’

efforts to influence the “third branch” of government—the judiciary.

1. See Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510

(1972); Mariana v. Fisher, 338 F.3d 189, 199 (3d Cir. 2003); Kottle v.

Nw. Kidney Ctrs., 146 F.3d 1056, 1060 (9th Cir. 1998).

2. 365 U.S. 127 (1961).

3. Id. at 135.

4. 381 U.S. 657 (1965).

5. Id. at 671.

6. 404 U.S. 508 (1972).

7. Id. at 510.