Free Markets and Free Speech: Understanding the Limits of the Noerr-Pennington Doctrine

Based in First Amendment principles, the Noerr-Pennington doctrine immunizes parties petitioning the government from antitrust liability, even when such petitioning may be considered anticompetitive. Within the doctrine exists a narrower “sham exception” which eliminates Noerr-Pennington antitrust immunity when petitions are merely shams meant to interfere with a competitor’s business. The Supreme Court has examined the sham exception in two cases which have produced differing standards for when and how to apply it. As a result, circuit courts have had to grapple with this uncertainty and a circuit split has developed as they have disagreed on the proper approach to applying the sham exception.\nThis Comment proposes that the Supreme Court revisit its Noerr-Pennington jurisprudence and clarify the scope under which immunity shall attach. Furthermore, this Comment advocates for the adoption of a new “holistic evaluation” rule akin to the rule of reason in which patterns of lawsuits are evaluated, not on their individual chance of success, but collectively based on intent. As part of this inquiry, this Comment argues that courts should analyze whether the legitimate gains a party stands to win from such lawsuits (i.e. damages) is less than the anticompetitive effects of bringing those lawsuits (i.e. litigation costs and attorney fees) such that the lawsuits, collectively, should not enjoy Noerr-Pennington antitrust immunity.