Sued for Speaking Out

If your client is sued based upon communications to a governmental body, your best defense to liability may be the Petition Clause to the First Amendment. The strength of your defense will depend upon which of two standards the Court applies to define tort liability under the clause - the Noerr-Pennington Doctrine or the actual malice standard.

by Aaron R. Gary

uppose you represent a group of citizens working together for urban renewal and beautification. A primary objective of the group is to rid the city of the visual blight of billboards. Your clients call you to happily report they have successfully convinced the city council to ban all billboards within the city limits. Perhaps you also represent the local newspaper which, seeing the economic benefit of eliminating a major competitor for the city's advertising dollar, heavily funded the citizens' group and actively sought action from the city council. Two days later, the citizens and the newspaper call you in a fury to report they have been sued by the largest billboard company in town. The lawsuit alleges a litany of business torts and statutory claims which, boiled down, assert that your clients have interfered with the plaintiff's business.

The infrequently discussed Petition Clause of the First Amendment, which encompasses broader petitioning activity than you may expect, is likely to be your clients' best defense. The strength of the defense will depend upon whether immunity is established under the very protective Noerr-Pennington doctrine or the less protective actual malice standard. To date, the U.S. Supreme Court has applied both standards in different contexts, but has failed to precisely define the appropriate application for each.

What is Petitioning Activity?

The First Amendment Petition Clause guarantees "the right of the people ... to petition the Government for a redress of grievances." Petitioning is considered to be any form of communication to a governmental body (whether legislative, executive, agency, or judicial), any request for governmental action, or any other attempt to influence public officials or influence the passage or enforcement of laws.¹ "The First Amendment guarantees defendants' right to attempt to enlist the government on their side of the dispute."²

Wisconsin cases have recognized that writing letters to the Veteran's Administration seeking assistance in obtaining medical services, demanding action from the Public Service Commission, and accessing the courts, are all forms of protected petitioning activity.³ Lobbying the legislature or executive branch for changes in business regulation, filing suit to enjoin an ex-employee from disseminating trade secrets, testifying at a zoning hearing, and complaining to law enforcement about suspected illegal conduct, are all forms of protected petitioning activity.⁴ Petitioning activity need not be politically motivated to be protected; it may be driven solely by a desire for personal or economic gain.

The petitioning activity of both individuals and businesses has been increasingly met with tort suits brought by the objects of the petitioning, often including claims for defamation and business torts. Those who have found themselves defending such suits include ordinary citizens, political activists, and such corporate giants as IBM, GM, and AT&T.⁵

What is the Noerr-Pennington Doctrine?

The Noerr-Pennington doctrine, derived from the antitrust cases of Eastern R.R. Presidents Conference v. Noerr Motor Freight and United Mine Workers of America v. Pennington, recognized federal antitrust immunity where the alleged anticompetitive conduct took the form of petitioning for governmental action.

In Noerr, trucking companies alleged and the trial court found that railroads had violated the Sherman Act by engaging in a vicious, corrupt, and fraudulent lobbying effort, which was deceptively conducted and motivated by an intent to destroy the truckers as competitors. The U.S. Supreme Court held that no violation of the Sherman Act "can be predicated upon mere attempts to influence the passage or enforcement of laws," and that attempts "to persuade the legislature or the executive to take particular action" will not give rise to antitrust liability.⁶

In Pennington, the Court reiterated, "Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose."⁷ The antitrust case of California Motor Transport Co. v. Trucking Unlimited rounded out the Noerr-Pennington doctrine, explicitly recognizing that Noerr's petitioning immunity applies regardless of which branch or department of government is petitioned.⁸

Immunity under the Noerr-Pennington doctrine is not absolute. Under the "sham exception," immunity is forfeited where the petitioning activity, viewed objectively, is a "mere sham."⁹ To overcome Noerr-Pennington immunity, a plaintiff must first show that, based upon an objective analysis and regardless of the defendant's subjective intent or purpose, the petitioning activity was objectively baseless; that is, the petitioning was not genuine and no reasonable person could have expected it to result in a favorable outcome or governmental action. If the plaintiff meets this burden, the plaintiff must then prove the defendant's subjective motivation and demonstrate that the petitioning was not made for any legitimate purpose, but was solely an attempt to misuse the governmental process to directly harm the plaintiff.¹⁰

Applying the Noerr-Pennington Doctrine

While the Noerr-Pennington doctrine initially arose in the context of federal antitrust claims, most states' courts (including Wisconsin, Illinois, Minnesota, Iowa, Michigan, California, and New York) and federal circuits (including the Seventh) have applied the doctrine to bar state tort and statutory claims. The Noerr-Pennington doctrine has been applied to claims for tortious interference with contract/business relations, defamation, civil rights violations, abuse of process, and intentional infliction of emotional distress.¹¹ The rationale for these decisions is that, although the Noerr-Pennington doctrine grew out of antitrust law, the doctrine is one of constitutional dimension which defines necessary protections for First Amendment petitioning activity, and therefore must be applied to all claims.¹² The Seventh Circuit and Wisconsin Court of Appeals have relied upon the Noerr-Pennington doctrine to analyze First Amendment petitioning rights in tort suits.¹³

Is Noerr-Pennington a Constitutional Doctrine?

If Noerr-Pennington is a constitutional doctrine, it should be applied equally to all claims implicating the First Amendment right to petition. If not, the doctrine should be limited to its federal antitrust origin.

In Noerr, the Supreme Court offered two bases for its holding. First, as a matter of statutory construction, Congress never intended the Sherman Act to target activity seeking legislation or law enforcement.¹⁴ Of particular importance, the Supreme Court stated, "Because of the view we take of the proper construction of the Sherman Act, we find it unnecessary to consider any of these other defenses" of the railroads, "including the contention that the activities complained of were constitutionally protected under the First Amendment."¹⁵ Second, as a matter of public policy, the concept of a representative democracy depends upon the right of citizens to make their views and wishes known to the government. Any law abridging the right of citizens to freely inform the government of their wishes would raise important constitutional questions, even if the citizens' intent was not admirable, but selfish or greedy.¹⁶

Subsequent Supreme Court cases provide mixed signals as to the foundation of Noerr. In California Motor Transport the Court reaffirmed the two bases for its decision in Noerr but also indicated that the decision rested upon the First Amendment right to petition and its corresponding immunity.¹⁷ In City of Columbia v. Omni Outdoor Adver. Inc. the Court strongly suggested that the Noerr-Pennington doctrine is grounded in the First Amendment right to petition, and applied Noerr-Pennington immunity to federal antitrust claims, but did not apply the doctrine to state statutory and tort claims.¹⁸ In FTC v. Superior Court Trial Lawyers Ass'n, the Court characterized Noerr as "interpreting the Sherman Act in the light of the First Amendment's Petition Clause."¹⁹ In NAACP v. Claiborne Hardware Co., a nonantitrust case involving tort and statutory claims, the Court effected its analysis of the First Amendment right to petition through a lengthy discussion of Noerr, and applied Noerr's holding to conclude that the activity at issue was protected by the First Amendment.²⁰

In the most significant Noerr-Pennington case since California Motor Transport, the Court in Real Estate Investors v. Columbia Pictures recognized the First Amendment underpinnings of the Noerr-Pennington doctrine while simultaneously calling it a "doctrine of antitrust immunity."²¹ The Court thereafter expressly opened the door to the possibility that the doctrine may extend beyond the scope of antitrust law, stating, "whether applying Noerr as an antitrust doctrine or invoking it in other contexts."²² The Court cited, among other cases, Bill Johnson's Restaurants Inc. v. NLRB, which applied a Noerr-Pennington type analysis to balance First Amendment Petition Clause concerns in a federal labor law case.²³

These cases strongly suggest a First Amendment basis for the Noerr-Pennington doctrine, and hint that the doctrine may be applied outside the antitrust context.

Can the McDonald Case be Reconciled?

Prior to 1985 the Supreme Court had infrequently addressed the First Amendment Petition Clause in relation to state tort law, and had never attempted to set forth a coherent doctrinal framework such as that applied to Speech Clause cases (although the Court had relied upon the Noerr-Pennington doctrine in analyzing the tort-related Petition Clause issues in Claiborne Hardware). In 1985 the Court decided McDonald v. Smith, which remains the only Supreme Court case directly setting forth the scope of First Amendment Petition Clause immunity in a defamation action.

In McDonald, the defendant was sued for defamation after he sent letters to the President opposing the plaintiff's application for appointment as U.S. Attorney. While the letters constituted protected petitioning activity, the Supreme Court held that the Petition Clause did not confer absolute immunity, and that the appropriate standard of immunity was the actual malice test of New York Times Co. v. Sullivan; that is, tort liability may be imposed if the defendant knew the statement was false or acted with reckless disregard of its truth or falsity.²⁴

The Court offered two bases for its decision. First, the Court suggested that the 140-year-old case of White v. Nicholls precluded any other result. While the White case is strikingly similar in facts, the Court's reliance upon it in determining the scope of constitutional Petition Clause immunity is puzzling because White involved only a common law defamation privilege.²⁵ The Court's reliance upon White is also puzzling since White pre-dates (by 119 years) the Supreme Court's first acknowledgment that common law defamation claims implicate First Amendment values.²⁶ Second, the Court equated First Amendment petitioning interests and speech interests: "The right to petition is cut from the same cloth as the other guarantees of [the First] Amendment, and is an assurance of a particular freedom of expression."²⁷ By characterizing petitioning as merely a form of speech, the Court ignored that the core of petitioning is not expressing one's ideas, but rather is securing governmental action which, unlike public speech, cuts to the heart of the relationship between citizen and sovereign.

The importance of petitioning activity is not limited to the political arena.²⁸ For example, a communication to law enforcement typically lacks political or expressive value and does not "promote the free exchange of ideas," but is valuable as a means of securing a response.²⁹ Public speech forming the "marketplace of ideas" is not comparable to a specific request by an aggrieved citizen that the government remedy a perceived wrong, important only to that citizen. "The fact that a grievance may not arouse sufficient public concern to generate political support makes the individualized exercise of the right to petition all the more important."³⁰ The separate textual guarantees in the constitution of speech and petition also suggest that the two are not identical. In addition, there are safeguards inherent in petitioning that are lacking in speech: the message is not broadly disseminated; the message is received by a governmental agency, which reviews the message and is presumed competent to evaluate the merits of the message; and the subject of the message, or opposing interests, generally have the opportunity to respond and present their own viewpoint.

Two years prior to McDonald, the Supreme Court suggested in Bill Johnson's Restaurants that petitioning and speech are not synonymous: "Just as false statements are not immunized by the First Amendment right to freedom of speech, baseless litigation is not immunized by the First Amendment right to petition."³¹ This language, along with the authority cited, could be read to support application of the Noerr-Pennington doctrine to define Petition Clause immunity, and application of the New York Times actual malice standard to define Speech Clause immunity. Such an interpretation would be supported by Claiborne Hardware. It also would comport with decisions describing the concern in petitioning cases as the danger of baseless, harassing, or oppressive use of petitioning. ³²

McDonald is a perplexing case. It refers to Noerr-Pennington cases as "decisions interpreting the Petition Clause in contexts other than defamation."³³ As the McDonald case was litigated in the lower courts, the District Court and the Court of Appeals recognized the potentially competing constitutional standards of the Noerr-Pennington sham exception and the New York Times actual malice standard, the unsettled nature of the Petition Clause right, and the conflict among federal circuit decisions.³⁴ The McDonald case reached the Supreme Court screaming for an exposition of the scope and nature of Noerr-Pennington immunity. The Supreme Court offered none. The Court failed to explain why the scope of the Petition Clause is different in defamation cases than antitrust cases, and failed to explain why it rejected the Noerr-Pennington doctrine in favor of the newly applied "actual malice" standard for petitioning cases involving defamation.³⁵

Importance of Which Standard is Applied

Why should litigants care whether the "sham exception" of the Noerr-Pennington doctrine or the actual malice standard governs the scope of immunity for petitioning activity? The significance of the distinction is twofold.

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