Antitrust Exemptions for Private Requests for Governmental Action: A Critical Analysis of the Noerr-Pennington Doctrine

Section 1 of the Sherman Act makes it unlawful for persons to engage in a "combination ... or conspiracy, in restraint of trade." A variety of undertakings by persons seeking legislative action, judicial relief, administrative agency activity, or action by the executive branch of government may result in governmental steps which restrain competitors or diminish competition. Indeed, the very act of seeking governmental intervention, even if unsuccessful, may have adverse competitive effects. Similarly, "monopolization or attempts to monopolize," proscribed by section 2 of the Sherman Act, might actually be advanced by governmental activities or by an individual merely seeking governmental assistance. Other provisions of the antitrust laws may also involve or be advanced by governmental intervention and private requests for such assistance.Although such conduct may raise competitive concerns, petitions by individuals or groups of individuals for governmental action or intervention implicate other important political and constitutional values. In Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., the seminal decision dealing with the interface of antitrust prohibitions and the right to seek governmental relief, the Supreme Court identified the various reasons why private requests for such action are generally immunized from challenge under the antitrust laws. First, permitting an antitrust action to be predicated on private requests for governmental action would impair the government's ability to function. In a representative democracy, the government is acting on behalf of its citizens and must know what they believe would best serve their interests. Therefore, it is important that these channels of communication be kept open and encouraged. Second, prohibiting private requests would raise serious constitutional questions. The first amendment protects freedom of speech and the right to petition governmental officials. Even if Congress had sought to limit these constitutional rights when it enacted the Sherman Act in 1890, the permissibility of this purpose would be doubtful. Third, the Noerr Court inferred a contrary legislative intent. Congress did not want to extend the antitrust laws to reach conduct of a distinctly political nature.On the other hand, reconciliation of these potentially conflicting values -- freedom to compete versus freedom of association and freedom to petition the government does not require that all prayers for governmental action be immunized. Implicit in the notion that persons must be free to seek governmental action is the understanding that improper means will not be used to deny that same right to others. Furthermore, when appeals for government action are based on falsehoods or assert frivolous claims, the petitioner is not truly attempting to exercise the "right of petition." Therefore, the Court has recognized that the antitrust laws will not be displaced when persons are merely using their right to petition as a subterfuge to prevent others from having access to government officials or to prevent the government from taking any action. Similarly, certain forms of obtaining governmental action, such as bribery of a public official, perjury of witnesses, or active fraud, are so far removed from accepted channels as to fall outside the described immunity.Having sketched the broad contours of these competing sets of values, however, certain problems in application of these principles arise. The first problem is a practical one, which involves difficult factual determinations. When is the defendant's conduct a mere sham of true governmental petitioning? When is the activity so far beyond the pale of accepted methods of seeking official relief that the antitrust laws ought to continue to apply? The second problem involves the articulated reconciliation of these values, and the conceptual inconsistencies that arise. As will be discussed below, the Noerr Court suggested that the defendant's intent was irrelevant. It held that the antitrust laws would not apply even if the defendant could reasonably anticipate that its conduct would injure competitors; the right to petition prevailed over the adverse competitive impact. Given this statement, it is difficult to understand why this right would not also prevail in the sham petition situation. Therefore, subsequent decisions have looked to the defendant's intent in determining the availability of this immunity. Additionally, although the individual right to petition deserves protection, it is not equally clear that the first amendment and its associated values require that persons be allowed to act jointly in a "combination or conspiracy" to seek such relief, nor why the immunity should extend to activities ancillary to the basic petitioning process. The first amendment yields to antitrust norms in other areas. For example, price fixing is unlawful per se, even if it is the result of "speech" between the parties to the agreement. The Court need not have concluded that concerted political speech, even of an anticompetitive nature, is entitled to broad immunity.This Article will assess the present state of the law in this area, focusing on judicial attempts to resolve these thorny questions. Part I summarizes the development of the Noerr-Pennington doctrine and subsequent judicial limitations. Part II considers the applicability of the Noerr-Pennington doctrine to various agencies. Part III discusses whether certain methods of petitioning the government fall outside the exemption and the extent to which that exemption is dependent on the type of governmental body being petitioned. Part IV focuses on the most frequently litigated exception, the sham petition. Part V analyzes the special problems posed by these cases and proposes suggestions for resolution.