PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 18-3112

_____________

SIMON CAMPBELL; PENNSYLVANIANS FOR UNION REFORM,

Appellants

v.

PENNSYLVANIA SCHOOL BOARDS ASSOCIATION; MICHAEL 

FACCINETTO, SOLELY IN HIS INDIVIDUAL CAPACITY; DAVID 

HUTCHINSON; SOLELY IN HIS INDIVIDUAL CAPACITY; OTTO W. VOIT, 

III, SOLELY IN HIS INDIVIDUAL CAPACITY; KATHY SWOPE, SOLELY IN 

HER INDIVIDUAL CAPACITY; LAWRENCE FEINBERG, SOLELY IN HIS 

INDIVIDUAL CAPACITY; ERIC WOLFGANG, SOLELY IN HIS INDIVIDUAL 

CAPACITY; DANIEL O'KEEFE, SOLELY IN HIS INDIVIDUAL CAPACITY; 

DARRYL SCHAEFER, SOLELY IN HIS INDIVIDUAL CAPACITY; THOMAS 

KEREK, SOLELY IN HIS INDIVIDUAL CAPACITY; AND LYNN FOLTZ, 

SOLELY IN HER INDIVIDUAL CAPACITY

______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No. 2-18-cv-00892)

District Judge: Honorable Jan. E. Dubois

______________

Submitted Under Third Circuit L.A.R. 34.1(a)

May 20, 2019

______________

Before: McKEE, SHWARTZ, and FUENTES, Circuit Judges.

(Filed: August 27, 2020)

Jacob C. Cohn

Eric C. Rosenberg

Ilan Rosenberg
2

Joshua Slavitt

Gordon Rees Scully Mansukhani

Three Logan Square

1717 Arch Street, Suite 610

Philadelphia, PA 19103

Mary Catherine Roper

American Civil Liberties Union of Pennsylvania

P.O. Box 60173

Philadelphia, PA 19102

Counsel for Appellants

David W. Brown

Craig D. Ginsburg

Michael I. Levin

Levin Legal Group

1800 Byberry Road

1301 Masons Mill Business Park

Huntingdon Valley, PA 19006

Counsel for Appellees

_______________________

OPINION

______________________

McKEE, Circuit Judge.

In this dispute over dueling claims to Noerr-Pennington 

immunity, Simon Campbell and his organization, 

Pennsylvanians for Union Reform (collectively, “Campbell”),

allege that the Pennsylvania School Boards Association and its 

Board Members (collectively, “PSBA”) violated Campbell’s 

civil rights by suing him in state court (the “State Suit”). That 

complaint asserted various tort claims against Campbell based 

on his persistent use of Pennsylvania’s Right to Know laws. 

According to PSBA’s State Suit allegations, Campbell’s 

relentless pursuit of information about PSBA, and his related 

conduct, was an abuse of the Right to Know statute intended 

solely to harass PSBA. At that time, Campbell defended 

against the State Suit by arguing his conduct was 
3

constitutionally protected under the Noerr-Pennington

doctrine.

Now Campbell sues, seeking damages under 42 U.S.C. 

§ 1983, alleging that the State Suit was intended as retaliation. 

PSBA defends against Campbell’s civil rights claims by itself 

invoking Noerr-Pennington. It argues the First Amendment 

shields its right to sue in state court. The District Court agreed 

with PSBA and granted its motion for summary judgment. 

We conclude that the District Court erred in requiring a 

heighted burden of proof on PSBA’s motives in bringing its

tort claims in state court. However, because we find that 

Campbell’s civil rights claim would fail under any standard of 

proof, we agree that PSBA is entitled to judgment as a matter 

of law and will therefore affirm.1

I.

Simon Campbell is an active and persistent user of the 

Pennsylvania Right to Know Law (“RTKL”), which permits 

citizens to obtain certain information from the state 

government and its agencies.

2 In recent years, he has submitted 

hundreds of requests to public school agencies across the 

Commonwealth. Many of the recipients are members of the 

PSBA. The PSBA is a non-profit association created by 

Pennsylvania’s school districts “to further the interests of 

public education and to provide assistance to public school 

entities.”3 A majority of school boards in the state are 

members, and the organization’s roots stretch back to the 19th

century.4

Campbell founded Pennsylvanians for Union Reform

(“PFUR”) in 2013 to “eliminate compulsory unionism in 

Pennsylvania while promoting transparency and efficiency in 

1 “We may affirm a district court for any reason supported by 

the record.” Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir.

2011) (citation omitted).

2 65 Pa. Cons. Stat. §§ 67.101 et seq. (2008).

3 App. at 1576.

4 Id. at 1589.
4

government for taxpayers.”5 In pursuing those goals, PFUR 

has energetically utilized the Commonwealth’s RTKL to 

obtain records from PSBA’s constituent school districts and 

other government entities. In the process, it has litigated cases 

that have expanded the reach of that law.

6

In March 2017, PFUR turned its attention to the PSBA

by sending RTKL requests to “most, if not all, public school 

agencies” in Pennsylvania.7 These requests sought contact 

information for district employees and union representatives. 

PSBA’s attorney, Emily Leader, responded by advising 

member school districts that they were required to release 

publicly available information, but they did not have to provide 

PFUR with private data such as personal email addresses.8

PSBA later advised school districts that, although they were 

legally required to collate the requested information, they 

could simply make the results “available for pickup at the 

district offices,” rather than forwarding it to PFUR. It also

presciently informed its members that this relatively 

uncooperative approach might lead to litigation.9

When Campbell received copies of the PSBA’s legal 

guidance, he established a page on the PFUR website entitled 

“PSBA Horror” with a mocking photograph of PSBA 

Executive Director Nathan Mains. The photograph included a 

word bubble which read: “Taxpayers, thanks for the $226,000 

and the public pension! Now * * * * off, and drive to the school 

district if you want public records. And don't forget your check 

book.”10 Campbell had also requested PSBA’s tax returns. 

When Michael Levin, PSBA’s outside counsel, provided a link 

to those returns, Campbell caustically told Levin to “stay out 

of my business whenever I’m approaching one of your public 

5 Id. at 1587.

6 See, e.g., Reese v. Pennsylvanians for Union Reform, 173 

A.3d 1143 (Pa. 2017); Dep’t of Human Servs. v. 

Pennsylvanians for Union Reform, Inc., 154 A.3d 431 (Pa. 

Commw. Ct. 2017) (en banc). 7 App. at 1632.

8 Id. at 94-99.

9 Id. at 109-113.

10 Id. at 1546.
5

entity clients.” Levin responded by threatening to sue 

Campbell for defamation.11

Campbell soon poured gasoline on this burgeoning feud

by submitting a second wave of RTKL requests in May. 

Approximately 600 school boards across Pennsylvania 

received an identical 17-page request asking their respective 

districts to provide 27 different types of documentation 

regarding their relationship with PSBA.12 More than 240 of the 

school districts turned to PSBA for assistance in assembling

that information. This overwhelming stream of requests led

PSBA to adopt a policy of providing what it viewed as the 

minimum legally required response.

13 Levin also sent 

Campbell a demand that he take down the picture of Executive 

Director Mains. Campbell complied, but replaced it with an 

illustration of PSBA alongside a message similar to the original 

text.

14 Campbell also established a new website with his 

personal funds, www.psbahorror.com. He filled it with his 

anti-PSBA messaging through writing and videos he posted 

online.15

Nathan Mains eventually told PSBA’s legal team that 

he wanted to sue Campbell for damaging PSBA’s reputation.16

In June 2017, the PSBA Board voted unanimously to sue 

Campbell and the resulting state tort action was filed the 

following month alleging defamation, tortious interference 

with contractual relations, and abuse of process.17

PSBA’s then-president testified that the State Suit was 

filed to “stop” PFUR from “harassing districts with . . .

unreasonable request[s] [and] to stop defaming members of the 

organization.”18 Mains announced the suit in an email to all 

PSBA members.19 Later that year, Campbell and PFUR 

11 Id. at 1399-1401. 12 Id. at 124-26.

13 Id. at 1574, 1558.

14 Id. at 1403. 15 Id. at 1418, 1684.

16 Id. at 1684.

17 Id. at 780-831. 18 Id. at 1825.

19 Id. at 144.
6

removed all of the challenged content from their websites and 

stopped sending RTKL requests.20

In February 2018, as the State Suit proceeded, Campbell 

filed this action against PSBA and ten members of its board. 

His complaint alleges that PSBA’s State Suit was motivated by 

an improper desire to retaliate against him for proper RTKL 

requests in violation of his First Amendment rights. Campbell 

seeks injunctive relief, as well as compensatory and punitive 

damages.21

PSBA moved for summary judgment. Its motion 

advanced multiple arguments, but we must consider only the 

claim that Noerr-Pennington doctrine shields PSBA from 

liability for filing the State Suit. The District Court agreed with 

this position and held that both Campbell’s RTKL requests and 

PSBA’s subsequent state tort claims were protected under 

Noerr-Pennington.

22 The Court found that PSBA’s State Suit 

claims were objectively baseless. As we discuss later, this 

satisfied the first requirement for lifting Noerr-Pennington

immunity. However, the District Court held that there was not 

clear and convincing evidence that the suit was “subjectively 

baseless.” 23 Accordingly, the Court granted PSBA’s motion 

for summary judgment and dismissed Campbell’s civil rights 

claim without reaching the remaining contentions. This appeal 

followed.24

II.

We review this summary judgment decision de novo, 

mindful of the special care called for by these issues of “free 

20 Id. at 1984.

21 Id. at 56.

22 Campbell v. Penn. Sch. Bds. Assoc., 336 F. Supp. 3d 482, 

494 (E.D. Pa. 2018).

23 Id. at 504.

24 Because this is a civil rights case arising under the United 

States Constitution, the district court had jurisdiction under 28 

U.S.C. § 1331 and 28 U.S.C. § 1343(a). On appeal, we have 

jurisdiction under 28 U.S.C. § 1291.
7

expression.”25 As we noted at the outset, both sides seek shelter 

under Noerr-Pennington immunity. That doctrine shields 

constitutionally protected conduct from civil liability, absent 

certain exceptions.26 Specifically, the doctrine’s protective 

umbrella does not extend to “sham” suits, which seek to take 

advantage “of governmental process—as opposed to the 

outcome of that process—as an anticompetitive weapon.”27

The parties’ competing claims to Noerr-Pennington protection 

can more easily be resolved if we first examine the origins and 

history of the doctrine.

A) Origins of Noerr-Pennington

“The Noerr–Pennington doctrine takes its name from a 

pair of Supreme Court cases that placed a First Amendment 

limitation on the reach of the Sherman Act.”28 In Noerr,

29

railroad companies, fearful of the growing power of the 

trucking industry, sought to use their considerable resources to 

encourage adoption of laws and regulations that would 

encumber truckers. The truckers responded by suing the 

railroad companies for violation of the Sherman and Clayton 

Anti-Trust Acts.

30 The case reached the Supreme Court, which

held that the railroads’ First Amendment rights to petition the 

government must override statutory limitations on 

anticompetitive behavior. The Court explained: “The right of 

petition is one of the freedoms protected by the Bill of Rights, 

and we cannot, of course, lightly impute to Congress an intent 

to invade these freedoms.”31 The Court soon extended this 

protection to efforts to influence executive action in 

25 Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 

499 (1984) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 

285 (1964)). 26 Prof'l Real Estate Invs., Inc. v. Columbia Pictures Indus.

(PREI), 508 U.S. 49, 56 (1993).

27 Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119, 123 

(3d Cir. 1999) (quoting PREI, 508 U.S. at 61 (emphasis in 

original)). 28 Hanover 3201 Realty, LLC v. Vill. Supermarkets, 806 F.3d 

162, 178 (3d Cir. 2015). 29 E.R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 

U.S. 127 (1961).

30 Id. at 129; see 15 U.S.C. § 1, and 15 U.S.C. § 15, 

respectively. 31 Noerr, 365 U.S. at 138.
8

Pennington.

32 There, the Court held that “efforts to influence 

public officials do not violate the antitrust laws even though 

intended to eliminate competition. Such conduct is not illegal . 

. .”33 The Court concluded that efforts to influence government 

action were protected from liability even if driven by an illicit 

intent.34

There was, however, one conceivable exception. In 

Noerr, Justice Black had observed in dicta that an ostensible 

petition which in reality “is a mere sham to cover what is 

actually nothing more than an attempt to interfere directly with 

the business relationships of a competitor” would not deserve 

protection.35 The Court subsequently established a carve-out

for such behavior. Noerr-Pennington protection does not 

extend to an objectively “[b]aseless suit [that] conceals an 

attempt to interfere directly with a competitor's business 

relationships, through the use [of] the governmental process—

as opposed to the outcome of that process—as an 

anticompetitive weapon.”36 This is referred to as the “sham” 

exception to Noerr-Pennington immunity.

B) The Sham Exception

“A classic example is the filing of frivolous objections 

to the license application of a competitor, with no expectation 

of achieving denial of the license but simply in order to impose 

expense and delay.”37 The difficulty, of course, comes in 

evaluating intent. 

We employ a two-part test to determine if the sham 

exception applies. First, the suit must be objectively baseless. 

“If an objective litigant could conclude that the suit is 

reasonably calculated to elicit a favorable outcome, the suit is 

immunized under Noerr . . . .”38 Whereas “sham litigation 

must constitute the pursuit of claims so baseless that no 

reasonable litigant could realistically expect to secure 

32 United Mine Workers of Am. v. Pennington, 381 U.S. 657 

(1965). 33 Id. at 670. 

34 Id.

35 Noerr, 365 U.S. at 144. 36 PREI, 508 U.S at 50 (third alteration in original) (emphasis, 

internal quotation marks, and citations omitted). 37 City of Columbia v. Omni Outdoor Advert., Inc., 499 U.S. 

365, 380 (1991). 38PREI, 508 U.S. at 60.
9

favorable relief.”39 The Supreme Court analogizes this inquiry 

to the common law tort of wrongful civil proceedings, which 

requires proof that the defendant (the plaintiff in the underlying 

action) lacked probable cause to bring that suit.40 Mere ill 

intent does not suffice: “a showing of malice alone will neither 

entitle the wrongful civil proceedings plaintiff to prevail nor 

permit the factfinder to infer the absence of probable cause.”41

Thus, if probable cause exists, our inquiry is at an end. 

However, the fact that a suit may lack any objective merit is 

not itself determinative. We must then inquire into the 

plaintiff’s subjective motivations for bringing suit.

42 We take 

this additional step to ascertain whether the actual motivation 

is to dragoon the “governmental process” itself into use as a 

competitive tool.43 In the economic realm, this often means 

examining “evidence of the suit’s economic viability.”44 The 

difficulty of proving subjective motivation obviously “places a 

heavy thumb on the scale” in favor of granting protection.45

Only if these objective and subjective tests are satisfied is 

Noerr-Pennington protection lost and the suit permitted to 

proceed.

The doctrine has now evolved well beyond its original antitrust 

confines.46 For instance, it shields constitutionally protected 

39 Id. at 62.

40 Id. at 63 (citing Stewart v. Sonneborn, 98 U.S. 187, 194 

(1879)); see also THOMAS M. COOLEY, A TREATISE ON THE 

LAW OF TORTS OR THE WRONGS WHICH ARISE INDEPENDENT 

OF CONTRACT 182 (1879) (“[T]here must be such grounds of 

belief as would influence the mind of a reasonable person, 

and nothing short of this could justify a serious and formal 

charge against another.”).

41 PREI, 508 U.S. at 63.

42 Id. at 60-61.

43 499 U.S. at 380 (emphasis omitted).

44 PREI, 508 U.S. at 61 (emphasis in original).

45 Hanover 3201 Realty, LLC, 806 F.3d at 180.

46 See Barnes Found. v. Township of Lower Merion, 242 F.3d 

151, 159-60 (3d Cir. 2001) (summarizing the growth of the 

doctrine into new fields of law).
10

protesters from civil suits.

47 It has also been applied by this 

Court and other courts of appeals to bar § 1983 claims by state 

actors based upon constitutionally protected conduct.

48 That is 

the situation here.

C) Noerr-Pennington for State Actors

Nevertheless, Campbell urges a new rule. He suggests 

that state actors deserve less protection given their wide 

resources for combating falsities and special positions of 

public trust. He cites Gertz v Robert Welch, Inc. to support such 

a rule.49 There, the Supreme Court limited the reach of its 

“actual malice” libel standard to public figures, making it 

easier for private individuals to seek restitution.50 The Court’s 

analysis was influenced by the advantages public officials have 

in responding to libelous remarks, and by the “necessary 

consequences” of choosing to enter the public arena.51

It is true that in other contexts, restrictions on 

government speech have been subjected to different degrees of 

scrutiny under the First Amendment than the speech of private 

citizens.52 That variability is compounded here because there 

47 NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907-08 

(1982). 48 See Herr v. Pequea Township, 274 F.3d 109, 116-17 (3d 

Cir. 2001) (applying this rule, and summarizing similar 

holding across different circuits (citing Video Int’l Prod., Inc. 

v. Warner-Amex Cable Commc’ns., Inc., 858 F.2d 1075, 1084 

(5th Cir. 1988))).

49 Appellant’s Br. at 31 (citing Gertz v. Robert Welch, Inc., 

418 U.S. 323, 344-45 (1974)).

50 Gertz, 418 U.S. at 345. 51 Id. at 344.

52 See, e.g., Pleasant Grove City v. Summum, 555 U.S. 460, 

467-68 (2009) (“[I]t is not easy to imagine how government 

could function if it lacked this freedom. ‘If every citizen were 

to have a right to insist that no one paid by public funds 

express a view with which he disagreed, debate over issues of 

great concern to the public would be limited to those in the 

private sector, and the process of government as we know it 

radically transformed.’” (quoting Keller v. State Bar of Cal., 

496 U.S. 1, 12–13 (1990))); Garcetti v. Ceballos, 547 U.S. 

410, 424 (2006) (“When a public employee speaks pursuant 
11

is some confusion over Noerr-Pennington’s applicability to 

state actors. The Court of Appeals for the Fifth Circuit, for 

instance, found it axiomatic that “Noerr-Pennington protection 

does not apply to the government, of course, since it is 

impossible for the government to petition itself within the 

meaning of the first amendment [sic].”53

However, we have already declined to adopt that view.

In Mariana v. Fisher, we stated: “[w]e know of no Supreme 

Court or federal appellate case holding that Noerr-Pennington

cannot apply to government actors . . .”. 54 Indeed, it is difficult 

to envision how such a rule would operate. Stripping state 

actors of protection would expose them to an unreasonably 

increased risk of interference. It would uniformly tilt the 

playing field against them in arenas far removed from the Gertz

context. That public figures hold enhanced capabilities in 

responding to libel claims was crucial to the holding there. We 

are unconvinced that government defendants seeking NoerrPennington immunity receive similar benefits by virtue of their 

position. Moreover, the Supreme Court has been careful to 

extend rights to state actors in many fields, especially when 

they are acting as market participants.55 In some cases, the 

petitions of state actors will be “nearly as vital” as those of 

private individuals, given the representative role that public 

institutions play in democratic life.56 We therefore decline to 

adopt Campbell’s suggestion that PSBA is ineligible for 

Noerr-Pennington protection as a universal rule.

This does not, however, suggest that that NoerrPennington must necessarily be applied formulaically across 

to employment responsibilities . . . there is no relevant 

analogue to speech by citizens who are not government 

employees.”).

53 Video Int’l Prod., Inc., 858 F.2d at 1086.

54 338 F.3d 189, 200 (3d Cir. 2003); see also, Herr, 274 F.3d 

at 119 (predicting the Supreme Court would permit municipal 

governments to receive Noerr-Pennington protection).

55 See Dep’t. of Revenue of Ky. v. Davis, 553 U.S. 328, 339 

(2008) (describing the states freely entering the marketplace 

as level participants within the constitutional scheme).

56 Manistee Town Center v. City of Glendale, 227 F.3d 1090, 

1093 (9th Cir. 2000).
12

every field of law. Indeed, some courts confine the doctrine to 

the antitrust realm, while recognizing a broader immunity that 

arises from the Petition Clause itself.

57

D) Standard of Proof

A different approach outside of antitrust makes 

particular sense when we consider the necessary standard of 

proof. A standard of proof is more than a legal barrier. It is “the 

degree of confidence our society thinks [a fact finder] should 

have in the correctness of factual conclusions for a particular 

type of adjudication.”58 This standard may be allocated by 

Congress, or dictated by the Constitution, but where both are 

silent, “we must prescribe one.”59

In In re Wellbutrin XL Antitrust Litigation, we 

explained that the Supreme Court has “indicated that the 

plaintiff in an antitrust suit has the burden of proving . . . ‘both 

the objective and subjective components of a sham’” when 

applying Noerr-Pennington. 60 We also explained that, in 

doing so, the Supreme Court “was silent,” as to whether that 

burden had to be satisfied by “clear and convincing evidence, 

or [by a] preponderance of the evidence.”61 However, since our 

analysis in Wellbutrin did not require us to decide which 

standard of proof was required to avoid Noerr-Pennington

57 CSMN Invs., LLC v. Cordillera Metro. Dist., 956 F.3d 

1276, 1283 (10th Cir. 2020) (“In this circuit, this immunity 

extends beyond antitrust situations. But we refer to it as 

Petition Clause immunity, reserving the name, NoerrPennington, for antitrust cases.” (citation omitted)). 58 In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., 

concurring); see also id. at 371 (“Because the standard of 

proof affects the comparative frequency of . . . erroneous 

outcomes, the choice of the standard to be applied in a 

particular kind of litigation should, in a rational world, reflect 

an assessment of the comparative social disutility of each.”).

59 Herman & MacLean v. Huddleston, 459 U.S. 375, 389 

(1983). 60 868 F.3d 132, 148 n.18 (3d Cir. 2017) (internal quotation 

marks omitted) (quoting PREI, 508 U.S. at 61).

61 Id.
13

immunity, we did not answer that question.

62 Here, the District 

Court imposed the higher standard and required Campbell to 

prove the subjective component by clear and convincing 

evidence. 

As a general rule, the Supreme Court instructs that the

heightened clear and convincing standard is necessary “where 

particularly important individual interests or rights are at 

stake.”63 Nevertheless, “imposition of even severe civil 

sanctions that do not implicate such interests has been 

permitted after proof by a preponderance of the evidence.”64

Since Noerr-Pennington cases will necessarily involve 

constitutional rights, a clear and convincing standard initially 

seems appropriate. Indeed, many courts, including other circuit 

courts of appeals, have required that level of proof in patent 

disputes involving Noerr-Pennington immunity.65

62 Id. (“Because our decision in this case does not hinge on 

the standard of proof, we leave that question for another 

day.”).

63 Herman MacLean, 459 U.S. at 389.

64 Id. at 389–90. 65 See, e.g., Tyco Healthcare Grp. LP v. Mut. Pharm. Co., 

Inc., 762 F.3d 1338, 1345 (Fed. Cir. 2014) (“[T]he burden [is]

on the patent challenger to prove invalidity by clear and 

convincing evidence . . .”); Intell. Ventures I LLC v. Capital 

One Fin. Corp., 280 F. Supp. 3d 691, 708 (D. Md. 2017) 

(finding that the “exception to Noerr–Pennington immunity is 

narrow, ‘[g]iven the presumption of patent validity and the 

burden on the patent challenger to prove invalidity by clear 

and convincing evidence.’” (alteration in original) (quoting 

Tyco Healthcare Grp. LP, 762 F.3d at 1343)) aff'd, 937 F.3d 

1359 (Fed. Cir. 2019); Teva Pharm. USA, Inc. v. Abbott 

Labs., 580 F. Supp. 2d 345, 362 (D. Del. 2008) (“To invoke 

the ‘sham’ exception, a defendant must prove, by clear and 

convincing evidence, that a plaintiff's activities were not 

really efforts to vindicate its rights in court.”); In re Relafen 

Antitrust Litig., 346 F. Supp. 2d 349, 360 (D. Mass. 2004)

(observing that under patent law, “[p]laintiffs must establish 

the first, objective prong of the sham definition by clear and 

convincing evidence.”).
14

In the past, the Court of Appeals for the Federal Circuit 

has required clear and convincing proof in patent disputes.66

But patents raise a special set of concerns. Because of the 

innovation and commercial viability that they encourage, 

courts have afforded suits to enforce patents a presumption of 

good faith.

67 It naturally follows that a higher standard of proof 

is needed to overcome that presumption. The Court of Appeals 

for the Ninth Circuit explains, “[t]he road to the Patent Office 

is so tortuous and patent litigation is usually so complex,” that 

“no less than [c]lear, convincing proof of intentional fraud 

involving affirmative dishonesty” would suffice in patent 

cases.68

This case by contrast, arises in the § 1983 realm, and it 

necessarily reflects a different tension. A balance that makes 

sense in the patent or antitrust context holds less weight for 

civil rights litigants, and vice-versa. This is because antitrust 

disputes must generally strike a balance between First 

Amendment rights and statutory restrictions on 

anticompetitive behavior. Justice Black was unwilling in such

scenarios to “lightly impute to Congress an intent to invade” 

the First Amendment right to petition.

69 Here, by contrast, 

PSBA and Campbell both seek to vindicate their constitutional 

right to petition. Thus, we cannot simply transplant the 

standard of proof used to balance a statutory and a 

constitutional right in order to resolve this clash of matching 

constitutional ones. We are also reluctant to require a 

heightened standard of proof here since patent litigation 

involves a presumption of good faith.

70 No such presumption 

arises here.

71 Instead, we have a face-off between two identical 

66 See, e.g., Tyco Healthcare Grp. LP, 762 F.3d at 1345; C.R. 

Bard, Inc. v. M3 Sys., Inc., 157 F.3d 1340, 1369 (Fed. Cir. 

1998); Carroll Touch, Inc. v. Electro Mech. Sys., Inc., 15 F.3d 

1573, 1584 (Fed. Cir. 1993). 67 Handgards, Inc. v. Ethicon, Inc. (Handgards I), 601 F.2d 

986, 996 (9th Cir. 1979).

68 Id.

69 Noerr, 365 U.S. at 138.

70 Handgards I, 601 F.2d at 996. 71 The Court of Appeals for the Second Circuit found such 

logic persuasive even within the antitrust realm, because 
15

interests. The collision produces “an undeniable tension.”72 It 

would be “intolerable [if] one constitutional right should have 

to be surrendered [or restricted] in order to assert another.”73

A heightened standard fails to account for those

fundamental constitutional rights, which here are advanced by 

both sides. As already noted, the District Court required 

Campbell to establish his First Amendment claim here by clear 

and convincing evidence. The patent context’s presumption of 

good faith formed the backdrop for that decision. The Court’s 

analysis rested in large part upon FTC v. AbbVie, Inc., which

involved an FTC action against a series of sham patent 

lawsuits.74 The district court in AbbVie relied heavily on the 

fact that the Court of Appeals for the Federal Circuit has 

adopted a clear and convincing standard of proof in patent 

litigation.

75

Instead of relying on patent law, we look to the relevant 

standard of proof for the constitutional claims being brought 

here. In Crawford-El v. Britton, the Supreme Court explicitly 

rejected efforts to impose a higher standard of proof on § 1983

litigants.76 There, a deeply divided en banc Court of Appeals 

for the D.C. Circuit had imposed a heightened clear and 

convincing standard of proof for adjudicating a claim under § 

1983. The court reasoned: “If a heightened standard of proof—

clear and convincing evidence—was a sound remedy in the 

area of public figure defamation, we think it is equally so in the 

cognate area of officer damage liability for constitutional torts

. . .”77

Noerr-Pennington itself represents a defensive mechanism for 

defendants: “by requiring a plaintiff to prove that a 

defendant's conduct was a sham, the Supreme Court has 

already struck a rough balance between the competing First 

Amendment and antitrust interests.” Litton Sys., Inc. v. Am. 

Tel. & Tel. Co., 700 F.2d 785, 813-14 (2d Cir. 1983). 72 Simmons v. United States, 390 U.S. 377, 394 (1968). 73 Id. 74 FTC v. AbbVie Inc., 329 F. Supp. 3d 98, 106 (E.D. Pa. 

2018).

75 See, e.g., Tyco Healthcare Grp. LP, 762 F.3d at 1345. 76 523 U.S. 574, 595-96 (1998).

77 Crawford-El v. Britton, 93 F.3d 813, 823 (D.C. Cir. 1996).
16

The Supreme Court disagreed. It rejected an across-theboard elevation of the standard of proof for civil rights claims. 

The Court cautioned that a higher standard of proof “carries a 

high cost” for “plaintiffs with bona fide constitutional 

claims.”78 The Court explained that Congress has shown itself 

perfectly capable of increasing the burden of proof in specific 

areas (for prison litigation, for example).

79 “Neither the text of 

§ 1983 or any other federal statute, nor the Federal Rules of 

Civil Procedure, provide any support for imposing the clear 

and convincing burden of proof on plaintiffs either at the 

summary judgment stage or in the trial itself.”80

E) The § 1983 Context

In 1871, Congress created what is now 42 U.S.C. § 1983

as a tool to combat racial discrimination.81 Today it is a

bulwark of liberty, permitting citizens to seek relief when the 

government, or its agents, wrong them.82 However, such 

plaintiffs must surmount several intentionally erected hurdles.

“To establish any claim under § 1983, a plaintiff must 

demonstrate that (1) the conduct at issue was committed by a 

person acting under the color of state law, and (2) the 

complained-of conduct deprived the plaintiff of rights secured 

under the Constitution or federal law.”83 These limitations

have been carefully adjusted in recent decades.

84 For instance, 

78 Crawford-El, 523 U.S. at 595-96. 79 Id. at 596-97. 80 Id. at 594; see also Herman & McLean v. Huddleston, 459 

U.S. 375, 390 (1983) (permitting a “preponderance of the 

evidence” standard for claims arising under federal “civil 

rights laws”). 81 See Wilson v. Garcia, 471 U.S. 261, 276-77 (1985) (“By 

providing a remedy for the violation of constitutional rights, 

Congress hoped to restore peace and justice . . . through the 

subtle power of civil enforcement.”).

82 Id. at 278 (finding § 1983’s protections “are contained in 

the Bill of Rights and lie at the base of all our civil and 

political institutions” (internal quotation marks omitted)).

83 Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 n.6 

(3d Cir. 2019). 84 See, e.g., Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 

694-95 (1978) (titrating the first requirement); Davidson v. 

Cannon, 474 U.S. 344, 347–48 (1986) (expanding the 

second).
17

municipal defendants receive the benefit of heightened fault 

standards, designed to avoid “open[ing] municipalities to 

unprecedented liability under § 1983.”85 Plaintiffs must 

contend with an individual state actor’s possible entitlement to 

different forms of immunity.86 In addition, only certain 

remedies are allowed.

87

A potential § 1983 litigant must therefore navigate an

obstacle course erected to protect against a flood of grievances

that could deter government actors from their duties.

88 Erecting 

yet another obstacle by requiring proof by clear and convincing 

evidence would threaten that careful legislative and judicial 

balance of competing priorities. The Supreme Court reached 

precisely this conclusion in Crawford-El. There, the Court 

reasoned that a heightened standard of proof in civil rights 

disputes, “lacks any common-law pedigree and alters the cause 

of action itself in a way that undermines the very purpose of § 

1983.”89

85 City of Canton v. Harris, 489 U.S. 378, 391 (1989). 86 Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)

(“Obviously, state officials literally are persons. But a suit 

against a state official in his or her official capacity is not a 

suit against the official but rather is a suit against the official's 

office.”).

87 Compare Edelman v. Jordan, 415 U.S. 651, 675–77 (1974)

(affording sovereign immunity to § 1983 claims for 

retrospective relief), with Hafer v. Melo, 502 U.S. 21, 31 

(1991) (permitting suits against state officials in their 

individual capacities).

88 See Wyatt v. Cole, 504 U.S. 158, 167 (1992) (recognizing 

the “balance between compensating those who have been 

injured by official conduct and protecting government's 

ability to perform its traditional functions”); Harlow v. 

Fitzgerald, 457 U.S. 800, 816 (1982) (reflecting upon the 

“attempted balancing of competing values” inherent to 

inquiries into subjective intent).

89 Crawford-El, 523 U.S. at 595.
18

Accordingly, we have repeatedly held preponderance of 

the evidence to be the proper standard for § 1983 claims.

90 Our 

model jury instructions so instruct the District Courts.91 In 

imposing this heightened standard of proof where both sides 

sought to vindicate First Amendment rights, the District 

Court’s approach fails to appreciate the distinction between 

First Amendment rights and patent rights insofar as the NoerrPennington doctrine is concerned. Because there is no 

“[s]upport for imposing a clear and convincing burden of 

proof” on a § 1983 claim,

92 proof by a preponderance of the 

evidence remains the appropriate standard here.

III.

The District Court carefully inquired into Campbell’s 

claims and found they were not objectively baseless. 

Accordingly, the Court held that Campbell was entitled to 

Noerr-Pennington protection. The Court also reasoned that the 

actions that gave rise to PSBA’s state tort claims were 

obviously protected by the First Amendment, and PSBA’s suit 

90 See, e.g., Baloga, 927 F.3d at 752 (“To prevail on a First 

Amendment retaliation claim under 42 U.S.C. § 1983 . . . the 

government may avoid liability if it can show by a 

preponderance of the evidence that it would have taken the 

adverse action even in the absence of the protected conduct.”) 

(internal quotation marks omitted); Goodwin v. Conway, 836 

F.3d 321, 327 (3d Cir. 2016) (citing Wilson v. Russo, 212 

F.3d 781, 786-87 (3d Cir. 2000)); Reichley v. Penn. Dep’t of 

Agric., 427 F.3d 236, 244 (3d Cir. 2005) (“The plaintiffs have 

the burden of establishing liability under § 1983 by a 

preponderance of the evidence.”).

91 Third Circuit Court of Appeals Model Civil Jury 

Instruction 4.3 (2019) (“[Plaintiff] must prove both of the 

following elements by a preponderance of the evidence . . 

.”) (emphasis added). United States v. Petersen, 622 F.3d 196, 

208 (3d Cir. 2010) (“We have a hard time concluding that the 

use of our own model jury instruction can constitute error . . . 

.”).

92 Crawford-El, 523 U.S. at 594.
19

was therefore not objectively baseless.93 Nevertheless, the 

Court still afforded Noerr-Pennington immunity to the State 

Suit because Campbell had not produced clear and convincing 

evidence that PSBA’s state claims were “subjectively 

baseless.”

Our standard of review of that decision is de novo.

94 We 

will accept for the purposes of this appeal the District Court’s 

well-reasoned conclusion—drawing all inferences in 

Campbell’s favor at summary judgment—that Campbell’s 

RTKL related conduct was not baseless. Because the 

underlying activity was constitutionally protected,95 we also 

accept the District Court’s conclusion that PSBA’s State Suit

is objectively baseless, as the First Amendment protected all of 

Campbell’s alleged activities. Campbell’s activities here could 

not reasonably be construed as defamatory given his 

allegations and the plausible state actor status of PSBA.

96

93 The parties disagree about whether the District Court 

concluded that PSBA is a state actor. While that court 

properly reserved judgment on the question, it did determine 

that PSBA is at least a limited public figure and therefore had 

to establish Campbell’s actual malice in the State Suit for it 

not to have been objectively baseless. See U.S. Healthcare, 

Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 938-39 

(3d Cir. 1990) (discussing the factors relevant to classification 

as a limited public figure).

94 Viera v. Life Ins. Co. of N. Am., 642 F.3d 407, 413 (3d Cir. 

2011) (“We review a district court's grant of summary 

judgment de novo, applying the same standard the district 

court applied.”).

95 A fact that PSBA tacitly acknowledged by pleading “actual 

malice” in both its initial and amended complaints in the State 

Suit. App. 428, 699. Had it not been aware of its own public 

status, this heightened standard would not have been 

necessary for culpability.

96 The District Court detailed how each of Campbell’s actions 

against PSBA (including the insulting depiction of its 

Executive Director, Nathan Mains, on a website entitled 

“PSBA Horror”) had some factual basis, whether obtained 

through RTKL responses or other sources. Further, Mains and 

others at PSBA had constructive notice of their public status, 

introducing a high bar for defamation claims to succeed.
20

The dispositive question that remains is whether 

PSBA’s State Suit was also subjectively aimed at interfering

with Campbell’s constitutionally protected conduct.

We agree that Campbell cannot satisfy the subjective 

prong under the clear and convincing standard. He has failed 

to establish PSBA’s: (1) indifference to the outcome of the suit, 

(2) insufficient potential recovery to justify bringing the State 

Suit, or (3) that PSRB “decided to sue primarily for the benefit 

of collateral injuries inflicted through the use of legal 

process.”97 Campbell’s evidence amounts to PSBA’s

statements, conduct, and choice of attorneys. This evidence

does not speak to whether PSBA intended the process itself, 

rather than its outcome, to achieve its goals. This is not 

enough.

98

As we have explained, the District Court’s clear and 

convincing standard imposed too high of a burden on 

Campbell. We nevertheless will affirm the District Court’s 

grant of summary judgment to PSBA because Campbell’s 

evidence here is insufficient to strip PSBA of NoerrPennington immunity even under the less onerous 

preponderance standard.

IV.

Under that lesser standard, Campbell’s evidence needed 

to demonstrate by a preponderance of the evidence that PSBA

intended the State Suit as “use of governmental process—as 

opposed to the outcome of that process” as a “weapon.”99 We 

consider the evidence he offers: first, the statements of PSBA 

and its members before filing the suit, and second, the manner 

in which PSBA pursued the suit.

A) PSBA’s statements

Campbell argues strongly that PSBA’s own words 

reveal its motivation in bringing the State Suit “was all about 

protecting [PSBA’s] members” and making Campbell’s 

alleged “harassment of school districts stop.”100 He argues that 

97 PREI, 508 U.S. at 65.

98 Noerr, 365 U.S. at 139.

99 PREI, 508 U.S. at 50 (emphasis in original). 100 App. at 1497, 1510-11.
21

PSBA was motivated to “tak[e] legal action on behalf of its 

membership.”101 He claims his incessant flood of RTKL 

requests was causing difficulties for the targeted school 

districts, and PSBA intended its suit as a mechanism to 

terminate his RTKL requests. Campbell points to statements 

from Nathan Mains that PSBA was developing “a significant 

response” as proof that the organization sought to squelch his 

activities.102 He argues that the appreciation of grateful school 

districts after Campbell’s requests ceased proves that this was 

PSBA’s objective in filing the State Suit.103

Indeed, PSBA did sue Campbell to get him to stop his 

RTKL-related conduct and PSBA never attempted to disguise 

or deny that objective. It criticized Campbell’s prolific use of 

the RTKL requests in its filings before the District Court. In 

one such filing, PSBA argued: “Campbell is using the RTKL 

as if he were back in London standing atop his soapbox in Hyde 

Park.”104 Campbell argues that when he continued filing RTKL 

requests, PSBA amended its complaint to add his new 

activities in a further effort to silence him.105

B) PSBA’s actions

Second, Campbell argues that PSBA used the legal 

process to punish him. He claims the attempt to punish him 

began before filing the State Suit, when PSBA demanded that 

he remove the parody of Nathan Mains and desist from further 

“defamatory” statements.106 Then, when the State Suit was 

filed, PSBA’s attorneys requested Campbell retain documents 

from the past seven years. But there is nothing punitive about 

asking an opposing party to preserve documents relevant to 

litigation, and we will not here attempt to erect some kind of 

time restriction on such a request. Moreover, Campbell’s 

argument that such a request was intended to be punitive is 

laden with irony given the voluminous records requests 

Campbell has repeatedly directed at school boards across the 

state.

101 App. at 312.

102 App. at 140.

103 App. at 155, 163.

104 ECF No. 18 at 15.

105 Appellant’s Br. at 53.

106 App. at 138.
22

Finally, Campbell claims PSBA’s motives were laid 

bare by its distribution of the State Suit complaint to its 

members, though it contained claims that were later discounted 

as untrue, and by PSBA’s settlement demand that Campbell 

stop attacking PSBA and its staff.107

C) Analysis

At summary judgment, we are charged with viewing

Campbell’s evidence “in the light most favorable to the party 

opposing summary judgment, and resolv[ing] all reasonable 

inferences in that party’s favor.”108 Yet even under this 

deferential standard, we cannot discern a single quantum of 

evidence, amidst the mountain of facts that Campbell provides, 

that would support a conclusion that PSBA aimed to use the 

process of the suit, as opposed to a successful outcome, to 

accomplish its objective: ending Campbell’s RTKL onslaught. 

We readily agree that PSBA’s eagerness to achieve this goal

radiates from each incident he complains of. However, that 

does not prove that the suit itself, as opposed to prevailing on 

the merits, was PSBA’s subjective motivation.

Indeed, the record indicates that PSBA wanted

Campbell to stop overwhelming its members with RTKL 

requests and that it filed the State Suit in hopes of 

accomplishing that goal. The fact that PSBA readily accused 

Campbell of defamation, that it sought to terminate his

activities, and that it celebrated its progress in achieving that 

goal simply fails to satisfy the subjective prong, even by a 

preponderance of the evidence. 

PSBA’s leadership harboring personal animus against 

Campbell does not establish that the State Suit was subjectively 

baseless. If animus alone were the test, it would readily devour 

the rule, since litigation is rarely sparked by feelings of warmth 

and amity. The protection of Noerr-Pennington immunity

cannot be swept away by simple dislike.

Accordingly, Campbell simply cannot satisfy the

subjective prong by a preponderance of the evidence. Because 

this case must be decided on the record before us at summary 

107 App. at 173-74, 303-04, 1484-86.

108 Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).
23

judgment, “[w]e need not remand to the District Court to 

consider it in the first instance.”109

V.

For the reasons set forth above, we will affirm the

District Court’s grant of summary judgment.

109 In re Ben Franklin Hotel Assocs., 186 F.3d 301, 306 (3d 

Cir. 1999) (citing Chase Manhattan Bank, N.A. v. Am. Nat'l 

Bank & Tr. Co., 93 F.3d 1064, 1072 (2d Cir. 1996) (“An 

appellate court has the power to decide cases on appeal if the 

facts in the record adequately support the proper result . . .”)).