A legal doctrine conceived in ambiguity seldom achieves clarity with the passage of time. Such had been the experience with the Noerr-Penningon doctrine, the principal focus of this article. In its first Noerr-Pennington decision in 16 years, Allied Tube & Conduit Corp. v. Indian Head, Inc., the Supreme Court created new uncertainties. However, it also offered hope for resolution of some of the inconsistencies that have plagued the doctrine. It did this by distinguishing sharply between harm caused directly by petitioning activity (for which petitioners may be liable), and harm caused by requested government action (for which petitioners may not), and by recasting the "sham exception" as being narrower and less important than some courts had held. Whether Allied Tube will eventually lead Noerr-Pennington out of its "quagmire" remains to be seen.
This article will discuss Allied Tube, most of the recent Noerr-Pennington developments, and, for the issues raised by these developments, the implications of the Supreme Court's opinion. In addition, the paper will briefly consider two recent cases that struggle with the tension between competition policy and the first amendment, even though their outcomes did not turn on Noerr. In Superior Court Trial Lawyers Association v. Federal Trade Commission, the D.C. Circuit rebuffed an FTC challenge to a publicized "strike" by the attorneys who regularly accept court appointments to represent indigent defendants. The court ruled that the first amendment might protect the challenged activity even though Noerr did not. The second case, Michigan Citizens for an Independent Press v. Attorney General of the United States, interprets the Newspaper Preservation Act. That Act embodies a congressional balancing of concerns about concentration and the preservation of diverse reportorial and editorial voices. On August 8, 1988, Attorney General Meese issued a troubling decision applying that Act and approving a proposed Joint Operating Arrangement (JOA) between The Detroit News and the Detroit Free Press. A subsequent challenge to that opinion has been rejected by a district court and, as of this writing, is on appeal.
Antitrust and Trade Regulation | First Amendment | Law
Stephen Calkins, Developments in Antitrust and the First Amendment: The Disaggregation of Noerr, 57 Antitrust L. J. 327 (1988).