The Legal Structure of American Freedom and the Provenance of the Antitrust Immunities

Abstract

It is a reflection of the subtle relationship between legal doctrine and the larger social context it regulates that, on occasion, some humble point of mere theory proves to be the lynchpin of a serious social problem. Often the most pernicious aspect of such a situation will be the very obscuriyy that causes courts to overlook it. That is emphatically the case with the issue addressed in this paper. Confusion persists over the seemingly academic question whether the so-called "Noerr-Pennington" or "petitioning" immunity, a doctrine in antitrust law which protects persons from being sued when they seek action from their government is: (1) a construction of the antitrust statutes, or (2) an application of a First Amendment right which is said to protect the "petition of government for redress of grievances." The prevalent view, driven mainly by dicta in one Supreme Court opinion, is that the immunity is a direct application of the First Amendment. However, the problem is usually either ignored or said to be academic at best. In fact, this issue is terribly significant. Mistakes here necessarily confuse other First Amendment doctrines, in ways that most observers do not take the time to consider, and ultimately infect the larger legal theory of American political freedom. The paper argues that the immunity should be understood as a rule of statutory construction, or else a range of negative consequences follow, including most significantly a serious donation of public political power into private hands. The contrary argument has nothing going for it but good intentions and a scattered collection of ambiguous dicta.

Keywords: Antitrust, immunity, standard setting, petition, first amendment, slapp, pring, canaan

JEL Classification: K21, L40