Superior Court Trial Lawyers Association v. Federal Trade Commission

ROBINSON, Bеfore SILBERMAN GINSBURG, Judges. Circuit D.H. by filed Opinion the Court for Judge D.H. GINSBURG. Circuit by opinion Circuit filed Concurring Judge SILBERMAN. GINSBURG, Judge: Circuit

D.H. a determi- upon to review We are called Trade Commission Federal by the nation Trial Superior Court petitioners, four individual Lawyers Association Perrotta, Kar- Ralph J. attorneys, member Koskoff, Addison Reginald G. E. en collectively (hereinafter Slaight, D. Joanne 5 of Federal SCTLA) Section violated Act, U.S.C. § Commission Trade in a participating organizing and (1982), “boycott” or to deal refusal concerted of Columbia forcing the District aimed compen- hourly increase represent indi- attorneys who paid to sation before cases in criminal defendants gent Superior Court. Columbia of District concluded Dis- Commission Baker, bar I. Donald competi- hac an “unfair method pro Appeals, constituted Court trict of Columbia requiring Court, an order whom with and entered vice, leave tion” special Rosenthal, from similar Wil- and desist Tom, E. cease Douglas K. petitioners Willard T. the reasons Denger, David For Snell, Michael L. in the future.1 B. lis conduct on the petition Miller were Shelledy below, grant Todd and W. we stated Commis- brief, petitioners. review, and remand part, had whether to determine sion Counsel, Isenstadt, Gen. Asst. Ernest I. for the necessary power market Bokat, Atty., G. F.T.C., whom Karen violate Section brief, respondent. F.T.C., on the findings deci in that numbered "I.D."‘and the Lawyers Associa Trial Superior 1. See re Cita "I.D.F. :-” to as Commission, referred will be sion tion, al., Opinion et record testimony and exhibits tions to as (1986), referred hereinafter F.T.C. 562 (JA) in this Appendix filed the Joint will refer Decision The Initial "FTC Decision.” parties. court to as Judge will be referred Law Administrative I. defendants. At least before the recent increase, origins rate of Columbia Criminal Justice The District case, any lawyer issue this who was Act, Ann. 11-2601—11-2609 D.C. Code §§ making practice interested full time (CJA Act) (1981 Supp.) pro- and 1987 CJA work could obtain a substantial case- private law- vides for the reimbursement regu- load in a matter of represent weeks.3 CJA appointed to indi- yers who are accept Of all gent variety criminal defendants.2 defend- lars CJA cases for a of rea- counsel, pay for ants who are unable previous sons. experi- Some them have attorneys appoint- represented by are 85% public ence in interest work and “cоnsider CJA; eight the another to ten ed under representation poor high- of the the [to be] by percent represented the Public De- are legal calling profession.” est of the I.D.F. (PDS), generally in more fender Service by 25. Some are motivated in interest cases, represented and the rest are serious litigation. accept ap- criminal And some (3-5%) by students and by year third law pointments under the CJA because there (under .5%). attorneys pro private bono legal jobs are no other available to them. 19, 20. 1.D.F. Id. good standing Any in of the member From 1970 until the fees Bar, who has a local address and D.C. per cases were set at hour CJA $30 number, telephone may register with the court, per time in and hour for other $20 appoint- the to receive CJA office of PDS time, subject a per to maximum of $1000 Appointments ments under the Act. felonies, per case for case for misde $400 (or, weekends, on made a Commissioner meanors, per appeals.4 and case for $1000 by Superior judge) compares who a compensation The maximum available to eligible a list of list of defendants with provided individual for services under lawyers have indicated their availabili- who $42,000per the Act was annum.5 In order ty by telephoning the office of CJA services, get paid attorney for CJA 7:45 a.m. and 8:15 a.m. that PDS between presiding judge a voucher to the submits day. part, For the most names on the two showing the amount and nature of the time up in simply lists are matched the order spent he or presiding she the case. The they appear until all the defendants judge authority has to reduce the provided appoint- have counsel. The been or, sought particularly discretion, amount difficult ing official exercises some how- ever, cases, assign lawyer complex to recommend out of turn on the case, complexity compensation basis of the Judge Chief over the maxi lawyer’s preferences, or the offi- known Very mum case limits. I.D.F. 27. few lawyer’s ability. cial’s assessment regulars actually CJA attained the annual salary; maximum one SCTLAmember esti lawyers registered More than 1200 average lawyer mated that the CJA made appointments. practice, In how- CJA $20,000 approximately year before the ever, go to a much appointments most n. boycott. I.D.F. 29 & 102. grouр approximately 100 smaller “CJA $4,579, paid lawyers District CJA a total regulars,” earn most or all I.D.F. who indigent by representing of their income they like

2. The Sixth to the U.S. Constitution rate increase "whether it or not.” Tes- Amendment prosecutions, provides timony all criminal the to have the “[i]n JA 161. of Perrotta enjoy right ... accused shall for his defence." In Ar Assistance of Counsel boycott, 4. At the time of the D.C.Code Ann. Hamlin, gersinger v. ll-2604(a) capped compensation at the hour- § (1972), Supreme Court held 32 L.Ed.2d 530 that 3006A(d)(2), ly established 18 U.S.C. § scale provision required pro that counsel be this the federal CJA statute. might vided defendant suffer a whenever the liberty. loss of Following boycott, the limit was increased $50,000. administratively 24; See I.D.F. 29. suggests 3. I.D.F. the record that the CJA regulars appointments after the received fewer membership list no reliable lawyers with fees of CJA level early as As associa- by-laws. among no written While and some of concern an issue became account, it did enforce year, kept a bank In that tion the bar. members pay in annual $30 Services that members Defense rule Criminal on the Report lawyers Com- were allowed to Joint All CJA Columbia dues. the District meetings vote Conference in SCTLA participate Judicial mittee (Unified) at 2-4. D.C. Bar I.D.F. elections. in SCTLA Circuit D.C. Report), concluded (Austern-Rezneck early efforts in- s Koskoff Perrotta inadequately com- attorneys were CJA with Chief several conversations cluded Report Austern-Rezneck pensated. Court, Superior D.C. Judge Moultrie tal- drove rates prevailing found Reid, Counsel to meeting with Herbert practice, CJA lawyers out ented strategy and a Barry, Marion Mayor D.C. do a to remained who encouraged those Branton, Dean of then Wiley session Id. cases. job on their adequate less than Chief University School. Law Howard therefore recom- report The at 78-79. Koskoff Perrotta and told Judge Moultrie to increased rates be the CJA that mended compen- in CJA thought an increase he that court, out of in or hour for time an $40 deserved, he declined but was levels sation a for misde- $800 maximum to a subject legis- pending to support give any public to felony case. for a $1000 and ease meanor that, legisla- if such ground the on lation the expressed belief report further might called be passed, his court were tion abso- the “represented] these rates Mr. legality. Reid its upon to determine hold necessary to and attract lute minimum cause, with their sympathy expressed also abil- assure their lawyers and good criminal Mayor the would them that told but representation effective render ity to urging the legislation without support the 84. Id. at clients.” 37-39. I.D.F. Judge Moultrie. Chief of re- rates Nonetheless, the in CJA that, was since there advised Dean Branton had the level from unchanged mained constituency, influential organized no re- Austern-Rezneck the when prevailed prospects the passage, its lobby for March in 1975. port was released the CJA law- poor unless were increase Study System the D.C. Report of the to attract “something dramatic did yers as Bar, reprinted D.C. Committee I.D.F. any relief.” get in order to attention Sess., Cong., 1st 98-34, 98th Print Senate Comm, (Horsky Report), Affairs on Govt’l Chairman D.C. Council In March necessary steps all recommended less ambitious a new and Mayor, introduced Court, the Clarke Superior by the “taken of $35 for a rate 5-128), (No. providing promptly raise bill D.C. Council and the This time ap- work. for CJA attorneys hour compensation levels of held of the Council Judiciary Act Justice Committee the Criminal pointed under witnesses, in- Aust- numerous by the at which hearing proposed levels least the SCTLA,vari- A at 213. representatives cluding Id. Committee.” ern-Rezneck PDS, Execu- was hourly groups, $50 rate increasing the local bar ous bill Council, Courts, it others but D.C. D.C. in the of the introduced Office then tive increase; with- no one end of at the in favor in committee died testified insofar except it hearing. I.D.F. against out testified Government D.C. Branch Executive 1982, petition- Meanwhile, September Indeed, funding it. about raised concerns lobbying began Koskoff Perrotta ers told staff the Council member in June a compensation CJA to increase effort money available nowas there Koskoff elected were who petitioners, Both levels. report was confirmed This bill. to fund President Vice President respectively Director, claimed who Budget city’s by the least spent fall of of SCTLA supported D.C. I.D.F. CJA cases. on their time 90% effort, next SCTLA’s principle. increase campaign, began their When 5-6. Appropria- Congressional to interest CJAof association informal was an on the granted tions Subcommittee District Co- unless we are a substantial in- funding in- in federal for a CJA hourly lumbia crease in our rate we will cease crease, rejected accepting for want of an initia- appointments new under the legislative from the tive either Criminal Justice Act. government.

judicial branch D.C. petition, placed which was on the Finally, August peti- Koskoff and Lawyers’ blackboard in the Lounge in Su- Addison, Secretary Reginald tioner Court, perior signed by a number of SCTLA, Mayor “buttonholed” attorneys. CJA August I.D.F. 48-49. On Building. corridor of the District Like 26, 1983, Perrotta sent a letter to 40 D.C. else, Mayor expressed everyone his law firms previously that had indicated a sympathy indicated that there was no but willingness pro work, urging to do bono money increase. I.D.F. 41-45. to fund an accept them not to during CJA cases boycott. I.D.F. 55. point, petitioners At this turned from lobbying legislation to increase their Beginning September all but a few wages organizing of further regulars stopped accepting the CJA new appointments being then CJA at the rates appointments. The SCTLA Strike Commit- Committee,” paid.6 They formed a “Strike actively sought tee publicize promptly agreed that a kits, by handing press organizing pick- out appointments only way the new CJA was lines, staging et and rallies. Several CJA get adopted to a rate as their increase and attorneys were interviewed on television goal per rate increases to hour for $55 activity and radio. designed This was “all court time and time. hour for other $45 general public to educate the the about Slaight designated Chairper- Petitioner was plight lawyers of the expecta- CJA the son of the Strike Other CJA Committee. tion that this would result in additional lawyers assigned of were the tasks inform- pressure on the District in- ing lawyers boycott, all CJA of the contact- crease fees.” I.D.F. 58. ing lawyers might supporters who act or impact The had a severe on the “strikebreakers,” soliciting support the justice system, criminal since there was no personnel, contacting courthouse off-setting cessation of law enforcement media. I.D.F. 47. Thus, activity. indigent defendants contin 11, 1983, August On SCTLAheld a meet- ued brought to be before the pro court in ing attorneys. attended about CJA ceedings required the services of a reported Koskoff and Addison on their un- lawyer. After days boy a few of the vote, lobbying By successful efforts. voice cott, swamped the PDS was with cases. lawyers accept resolved not to new response “uptown” of the bar to PDS’s September as of cases 6 if their rates had help inadequate call for to meet the Immediately been raised then. fol- lawyers, need for reflecting, the Adminis lowing meeting, this Perrotta and David (AU) found, Judge trative Law “their uni Hirsch, member, a Strike Committee draft- law, versal distaste for spe criminal petition declaring ed a that: compelled indigency repre cial aversion for

We, sentation, undersigned private epidemic siege criminal the near of self- lawyers practicing Superior ability Court doubt about their to handle cases in Columbia, agree field, underlying support District of this and their for (1982), routinely provides “[n]othing 6. Petitioners used word "strike” to con- accept describe their concerted refusal to new tained antitrust laws shall be construed to however, suggested, operation cases. Petitioners have not forbid the existence and organizations, of labor ... “employees” meaning purposes within the instituted for the of mu- Act, (1982), Clayton help; organizations, 20 of § § 29 U.S.C. 52 tual ... nor shall such or thereof, granting injunctions which limits the "in the members be held or construed to be employer employees, illegal conspiracies case between an involving, ... combinations or in restraint of, trade, growing dispute out a concern- under the antitrust laws." We there- ing employment,” accept terms or conditions of or that FTC’s fore considered character- organization” "boycott,” SCTLA is a “labor within the action as a ization SCTLA’s as that Act, meaning parlance. of § 6 of the same 15 U.S.C. 17 term is used in antitrust § further $55 increase CJA fees lawyers.” I.D.F. the CJA demands of The next other time. $45 court 6 Mayor wrote to day, September 15, 1983, leader- the PDS September On sup- indicate his Rolark to Council-member letter ship sent hand-delivered the in- willingness to fund for and port and Council- Judge Moultrie Mayor, Chief Bill 5-128. Council costs of No. creased Judiciary Rolark, chaired who member Ro- and Councilmember Clarke Chairman of “the Committee, officials apprising these on an agreed expedite passage its lark now that has extremely serious situation afternoon, emergency basis. Later repre- legal respect to developed with meeting legislators appeared at two juve- indigents in criminal sentation attorneys they presented the where CJAof Superior cases delinquency nile propo- it proposal as “take it or leave $35 of Columbia.” District I.D.F. 63-65. sition.” PDS the resources letter noted that as of the point where to a “taxed had been held a September Cn longer no it can of next week beginning A City’s proposal. meeting to consider of assistance quantity this provide 100 CJA attor- the more than majority of continuing to system while justice criminal accept the of- neys in attendance voted representa- legal effective quality, render communicated After this fer. decision re- respect to assistance With tion.” office, the Ju- Rolark’s Council-member bar, private from members ceived reported convened and diciary Committee daily need noted that the PDS “[t]he the D.C. day, The next Bill No. 5-128. out indigent defendants representation unanimously. I.D. passed bill Council day) has (sometimes 80 such cases over 21, 1983, the CJA September On F. 66-68. re- depleted the seriously point this assign- began accepting new attorneys have vol- who private the bar sources of I.D.F. ments. 69. the leads help the court. This to unteered assistance that future to conclude Service II. at best.” problematic, this source is events, conclusion, urged the officials the FTC the letter of these In In the wake action petition alleging immediate course that the complaint “decide on an filed suggested conspiracy to fix situation” and in “a engaged the to address ers had unified your in boycott” declaration of viola public that and to conduct prices “[a] specific and No. Federal Com support 5 of the Trade 5-128] Section [Bill tion of would, we 45, Act, prohib effect its enactment efforts to which 15 U.S.C. § mission present the believe, to resolve in help greatly competition,” methods its “[u]nfair Judge Moul- 61. Chief I.D.F. situation.” of trade in violation cluding restraints PDS’s Mayor the (1982). to the Act, confirmed trie 1 See 15 U.S.C. § the Sherman system was justice criminal Institute, claim that the 333 U.S. v. Cement FTC point. 62. crisis I.D.F. approaching a 1010 92 L.Ed. 694, 68 S.Ct. to-an ALJ was referred (1948).7 The case PDS, the letter from response to the In hearing and an extensive conducted who meeting with sought had a Mayor and primari Relying initial decision. issued an Perrotta, that eve- Koskoff, and Addison decision then-recent ly the Commission’s support for express agreed to his ning. He Society, Medical Michigan State the matter noted No. and that Bill 5-128 peti rejected the (1983), AU F.T.C. legislation emergency up as taken could be was their that conduct contentions tioners’ 20. September signed on enacted and exempted from activity political- either introduc- agreed to Mayor support also First by Amendment laws antitrust bill, which would of a second tion legisla petitioning for a form it was. legislative process, through normal go ef- preboycott upon collective their nor alone "co- complaint upon petitioners’ is based solely by city government, persuade the [i.e., accept ercive, forts refusal deal concerted fees.” FTC argument, to raise force of increasing the Decision, purpose of cases] new at 573. 107 F.T.C. fees,” agreement upon "not CJA change, as such immune from obligation, fulfill its tive constitutional then liability under Eastern R.R. Pres antitrust presumably city would have in- Freight, v. Noerr Motor idents offering price creased its or otherwise Conference Inc., 127, 81 S.Ct. 5 L.Ed.2d sought to make its offer more attractive. (1961). The AU also concluded that fact, however, city’s offering price professionals as interest boycott before apparently was suffi- rights ensuring the Sixth Amendment cient to obtain the quality amount and jeopardized by not of their clients were legal services that it needed. exempt inadequate rates did CJA Id. at 570-71. Petitioners, who are “com laws; antitrust he charac from the petitors, entrepreneurs, selling individual contrary “simply terized the claim Columbia,” their services to the District of argument profes a restatement of “coercive, engaged had in a concerted re alone merits a total antitrust sional status fusal attempt to deal” in an to restrain rejected Gold exemption,” competition among Id. themselves. Bar, Virginia State U.S. farb pur Because their had “the (1975). 44 L.Ed.2d 572 pose raising prices, and effect” of the Com Nonetheless, the dismissed the AU Com- se, illegal mission concluded that it complaint “pragmatic on the mission’s ba- is, facially anticompeti- constituted a sis” that “there was no harm done.” This Id. at 572-75. Under the agreement. tive was itself based on the evi- observation altеrnative analysis, Rule of Reason (and showing “city dence officials Commission held that had failed to practically everyone else concerned with any “countervailing competitive establish justice system)” the criminal believed that justifications” boycott; rejected it prevailing “inadequate rates were suggestion “would re (i.e., constitutional) satisfy ‘political’ re- higher quality legal sult services” on the quirement representation” of effective ground that it was irrelevant under the lawyers unlikely that “the CJA were teaching of Society National of Profes higher achieve fees if continued to States, Engineers sional v. United rely political petitioning on communicative 55 L.Ed.2d 637 alone.” (1978). Id. at 576-77. appeal, On the Commission affirmed the The rejected Commission also the AU’s rejection petitioners’ AU’s defenses finding boycott the did not have an finding liability. but reversed his FTC anticompetitive effect, noting that the rate Decision, 107 F.T.C. 562-63. The Com- required increase city government the mission found that: spend an year additional to million $4 $5 city’s purchase legal of CPA servic- [T]he legal for CJA services. As for the AU’s indigents es for competition. is based on finding city supportive that “the of [was] price by city offered the is based on boycotters’ demands,” the the Commission competition, city because the at- must supported by found that it was not tract a sufficient of number individual record —which “shows that the District lawyers price. to meet its needs government increased the fees ... city purchasers competes with other that, when it was coerced” —and if even legal adequate services to obtain an proved, acquiescence support “the supply lawyers, city’s offering and the city some government members of the price is an competition. element of that [petitioners’] would not immunize the boy- Indeed, acknowledgement an of this ele- prices cott to increase from the antitrust competition implicit ment of laws.” Id. at 577-78. respondents’ argument that an increase peti- The Commission then considered the in “necessary attract, the CJA fee was retain, tioners’ claim that their im- activities were competent lawyers.” If the offering price by mune from the had antitrust laws virtue of not attracted a suffi- supply qualified lawyers willing cient the First Amendmеnt. The Commission accept assignments city CJA petitioners for the concluded that were not entitled law, ordinary lens of antitrust it consti- participants protections extended restraint of trade. tutes an unreasonable boycotts, because: political Instead, argue strenuously that con- program was boycott of the CJA [T]he analysis focuses atten- ventional antitrust competitors was among agreed upon tion on factors that are irrelevant competition for their to restrain designed peculiar services—where market The members economic benefit. direct requirements by demand is set sought to force con- explicitly of SCTLA by is set Sixth Amendment government in District from the cessions truly impor- legislature overlooks rather than buyer of services its role as —and by Amendment raised tant First issues policy maker. its role as a political context from which conduct and did their 583-89. Nor Id. at Thus, they argue general- this case arises. immunity estab- the antitrust fall within from antitrust ly that are immune in- action to for concerted in Noerr lished liability by Noerr-Penning- reason of the decision-making. fluence doctrine, applies to those who ton held, applies to ef- First, Noerr the FTC petition government to redress their would antieompetitivé forts to solicit they argue grievances; specifically, publicity, not through lobbying or action political activity protected at 589-95. boycott. Id. means of a coercive Noerr, notwithstanding under its coercive Second, anticompetitive effects element, designed it to influ- because was directly from boycott resulted legislation. In the passage ence the boycotters action the collective vein, apply if does not same even Noerr Noerr, independent not, from the as in legis- designed conduct to influence all restraint government: “The action of lature, necessary, in order to “then it is govern- government, was on the excessively trenching on First avoid (emphasis original). at 597 ment.” Id. interests, excep- create an Amendment policy no Finally, the FTC found reason nonviol- tion antitrust laws] [from antitrust liabili- granting immunity from an public expressive conduct on issues ent government rather ty simply because concern.” by the private party was harmed than a con- alternative, therеfore boycott. petitioners The Commission ar- a further As fact failing mere cluded that erred gue that “the Commission “[t]he only purchaser of CJA government, analysis as the market to undertake [their] services, protect target does not rule is They argue se power.” Id. at regulation.” of antitrust as a matter both inappropriate that, if analysis; and and of constitutional boycott was Having determined a Rule of Reason is remitted to the FTC and that of trade an unreasonable restraint can be “no antitrust violation analysis, then First Amend- protected it was not clearly record demon- “the found” because re- ment, an order the Commission entered power.” of market the absence strates desist petitioners to cease and quiring the activities, boycott-related from various impor- petitioners in one agree We with notify its members compelling to SCTLA apply must regard: the Commission tant decision, imposing the Commission’s this case facts of to the the antitrust laws duty a upon petitioners the individual First for the special a solicitude with in, changes- notify the Commission petitioners and rights of these Amendment year for a five legal practice nature of their them, who, engage in concerted like others period. agen- political their both to advance action at the welfare own economic da and their III. petition- government. Unlike expense of however, not that ers, from this we infer closely re- a number of Petitioners raise purchaser role as a decision, government, in its but FTC objections lated to the services, unprotected is left that, goods if their seriously dispute they not do Instead, we think it laws. by the antitrust through viewed properly can be conduct necessary and sufficient that petitioners deny those individual both do not prudently and applied agreed with sensi- among laws be themselves to withhold their instance, prudence tivity. In this such Columbia, services from the District of a prove sensitivity require that FTC that willing purchaser. agreement This power in economic a rele- petitioners had meeting made at the August SCTLA market, though showing even such a vant petition memorialized in the drafted required competitors when generally Perrotta, implemented through jointly refusing attempt price by to raise efforts of the Strike Cоmmittee. Nor is Otherwise, deal with a would-be customer. any there restraining competi doubt that much risk that the anti- simply there is too in tion the market for their services was penalize trust laws will be used those purposes one petitioners' con able, action, through collective who are duct. Both the ALJ and the Commission way political power in a that serves wield reflects, viz., clearly found the record what their economic interest. petitioners expected disrupt the administration of the Dis whether, first then We consider justice trict’s system; criminal to that end apart protec First from Amendment tried to entitled, lawyers dissuade non-SCTLA from may tion to which it be stead, taking CJA cases which is to violation antitrust Commission, say, competing them; laws. Like the we believe and in petitioners’ boycott resulting pressure constituted clas tended the to force the meaning sic restraint of trade within the of District to accede to their demand for in Agree Section 1 of the Sherman Act. compensation.8 creased among competing suppliers ments to re suggest Petitioners that this sort of tra- quantity prod strict the available of their ditional analysis antitrust should not be displace competition uct and thus tend to applied to what characterize as a “to- up prices. supply force This constriction of tally non-traditional market.” We are not “price-fixing,” is the essence of whether it however, liberty, suspend applica- accomplished by agreeing upon price, tion particular of the antitrust laws to mar- demanded, quantity which will decrease the might being kets that we view as “non-tra- by agreeing upon output, an which will prescribe ditional.” The antitrust laws See, e.g., increase the offered. Unit markets, competition seasons, in all in all Co., Socony-Vacuum ed States v. Oil except Congress may provide excep- 150, 218-23, 811, 841-44, Instead, apply tion.9 it is our task to (1940); L.Ed. 1129 United v. Tren States antitrust discriminating laws manner Co., ton Potteries 273 U.S. 397- responds peculiar characteris- 377, 378, 379-80, 71 L.Ed. 700 question, tics of the market as it is the (1927); American Column & Lumber Co. task of petitioners learned counsel for States, 377, 410-12, v. United identify any peculiarities of that market 114, 120-21, (1921); L.Ed. 284 San may require departure from the Ass’n, Racing Juan Inc. v. Asociacion de analysis. usual Rico, Inc., Jinetes de Puerto 590 F.2d 31 (1st Herе, Cir.1979). case, petitioners suggest this there no that one cannot room legally price-fixing” that there was a find “traditional doubt because “the agreement among sufficient ‘price-fixing’ the defendants has done been the D.C. services; supply City to restrict the of their through legislation.” Council In addi- finding (1922) (national pastime 8. The that the was intended to L.Ed. 898 not "com- city agreeing Kuhn, "coerce" the Act); into to a rate increase merce” within Sherman Flood v. claim, is not inconsistent with the 258, 282-84, 2112-13, 2099, 407 U.S. 92 S.Ct. 32 VI, discussed V in sections that their (1972) (acknowledging ‍‌‌‌​​​​​‌‌‌‌‌‌​‌​‌‌‌​‌​​​‌​‌​‌‌​​​​​‌‌‌‌‌‌​‌​‌​‌‍profes- infra L.Ed.2d 728 dramatizing actions also served aas means of "engaged sional baseball is in interstate com- opposition prevailing rates. leaving Congress any change merce” but the "aberration” established ball). Federal Base- Baltimore, 9. Federal Baseball Club Inc. v. Cf. League, National 259 U.S. 42 S.Ct. 66

235 suppliers of it restrained for CJA whether tion, that the demand are told we by collectively refusing satisfy it product of “traditional trade is not the services generated is except upon because it their own terms.11 We there forces” market requirement conclude, Commission, Amendment as did the Sixth fore counsel make available petitioners engaged in a “restraint of ” otherwise who cannot defendants meaning criminal trade within the of Section 1. lawyer. sum: afford course, Of the Sherman Act con market price-fixed is a picture total [T]he only demns “unreasonable” restraints of takers, price suppliers are in which the v. Chicago trade. See Trade Board of (i.e., the creators of de- the consumers States, 246 U.S. 38 S.Ct. United third-party mand) nothing, and the pay 242, 244, (1918); L.Ed. 62 683 Standard Government) compul- is a (the D.C. payor States, 1, 60, 221 U.S. Oil Co. United competi- participant, not a sory market 502, 515, (1911). 55 L.Ed. 619 Deter S.Ct. carrier. tive insurance mining whether á restraint is unreasonable Reply 4. Pet. generally requires that it be examined in nothing any of this that But there particular industry on the context of departure from convention justify a would anticompeti operates, which it and that its cor analysis. Commission al antitrust any potential weighed against pro- be tive regulars the CJA rectly determined competitive justifications that can be Of sense that “competitors” act as Chicago fered on its behalf. See Board of analysis: They are matters for antitrust Tradе, 244. 246 U.S. at 38 S.Ct. at supplying the people business individual “Business, certainty litigation efficien customer, and as such to a same service however, agreements cy,” require that through re capable, a concerted may be always always or almost tend “that would output, forcing that custom striction competition and decrease out to restrict their service. pay higher price er to se, is, per that without put,” be condemned buyers government, like the That the D.C. analysis industry elaborate commodities, many services other proffered consideration of the even careful po all price uniform prefers to offer a for the restraint. Arizona v. justifications way not alter in suppliers does tential Soc., 457 U.S. Maricopa County Medical peti anti-competitive potential of the 2466, 2473, 332, 344, 73 L.Ed.2d do boycott.10 The antitrust laws tioners’ (1982); Music, Inc. v. Co Broadcast negotiate purchasers protect only who Inc., 441 Broadcasting System, lumbia individually, instead of each transaction 1551, 1562, 1, 19-20, they will trade price at which posting a (1979) (BMI). L.Ed.2d Nor should come forward. with all who petition concluded The Commission origin assigned to the any significance be price effort to raise ers’ concerted services; here the for CJA of the demand condem such se their service compelled by the Sixth merited may be District typically price-fixing A services, nation. purchase legal Amendment summarily under the Sherman disposed of compelled by voters to may there it because, Act, Supreme Court has as the rea paving services. The purchase street held, likelihood that hori consistently “the demand for a government’s for the son are output restrictions price and issue of zontal simply irrelevant to the service is Sons, Seagram Joseph E. & petitioners’ characterization We do not read (no (1951) -fixed,” defense “price services as 95 L.Ed. of the market for CJA is a suggest that the District of Columbia that wholesale price-fixing manufacturers i.e., "monopsonist,” near exclusive that it is the prices). purchasers fixed resale had is therefore ca- purchaser of their services and exerting power pable over the market lawyer work Any is free to decline individual paid The record would for their work. course; price, the Sher- unacceptable at an claim, petitioners support nor have not argued such a contracts, against combi- operates only man Act nations, (which surely would that it is a defense attempts conspiracies, thereat. and fail) boycott possessed of the that the victim monopsony power. Co. v. See Keifer-Stewart 236

anticompetitive generally sufficient tive expelled one of its members for per se rule with justify application of the failing comply with a rule. The Court inquiry special out into the characteristics cooperative noted that “such arrangements National Colle would particular industry.” of a ‘designed seem to be to increase giate Regents, Atheletic Ass’n v. Board efficiency economic and render markets ” 85, 21, 2948, 2960, more, 468 100 n. 104 less, U.S. S.Ct. rather than competitive’ be (1984) (NCAA); see Marico 82 L.Ed.2d 70 permit cause “the participating retail pa County, 457 351, at 102 S.Ct. at ..., ers to achieve economies of scale 2476-77; BMI, 19-20, 441 U.S. at 99 S.Ct. ready also access to a stock of ensure[] 1562; Engineers, at goods 435 U.S. might otherwise be unavailable Professional 692, at 98 at S.Ct. 1365.12 295, 105 on short notice.” 472 U.S. at S.Ct. BMI, (quoting 20, 2620 441 U.S. at recognize application We of the 1562). Moreover, S.Ct. at pur “[w]holesale per se rule to horizontal agreements, in chasing cooperatives must establish and en cluding boycotts, increasingly has become force reasonable rules order to function rigid years. less in recent develop This effectively.” Id. Accordingly, mere “[t]he ment was discussed in detail in Rothery allegation of a concerted refusal to deal Storage Lines, & Van Co. v. Atlas Van per trigger rule, does not suffice” to se Inc., 210, (D.C.Cir.1986). 792 F.2d 223-29 “because not all concerted refusals to deal Supreme There we observed that several predominantly anticompetitive.” Id. cases, United v. notably, Court most States 298, 472 U.S. at 105 S.Ct. at 2621. Associates, Topco 596, 405 U.S. 1126, (1972), 31 L.Ed.2d 515 and United Supreme manifestly Court’s height Sealy Corp., States 388 U.S. ened concern with the effect per se (1967), 18 L.Ed.2d 1238 insofar rule on efficiency economic is not suffi they appeared cient, as to hold however, horizon put beyond this case per tal restraint se was a violation grasp of sec Rothery noted, of that rule. As regarded tion “must effectively Court’s recent cases have all exаmined the overruled” more recent per decisions. economic se rule in the wisdom of the BMI, Rothery, 792 F.2d at 226. 441 U.S. at context of horizontal restraints that were 1551; NCAA, 99 S.Ct. at 468 U.S. at “ancillary” integration to “an of the eco 2948; 104 S.Ct. at and Northern Wholesale parties nomic activities of the ap Stationers, Inc. v. Stationers & pealed] capable of enhancing group’s Pacific Co., Printing Rothery, 792 F.2d at 229. efficiency.” (1985), decidedly Here, contrast, L.Ed.2d have short petitioners have ad per ened reach se rule. vanced no claim that cases, first two of these the Court declined ancillary necessary larger, to some co apply the rule arrange to horizontal operative permitted venture that them to affecting price ments quantity, or in each operate efficiently. Instead, more restrain reversing appeals’ case the court ing “literal competition raising price and thus approach” price-fixing the raison ground on the d’etre boycott. Nothing challenged practices may “the intervening the two Terms of the Su BMI, redeeming competitive preme virtues.” suggests qualify need to our 1557, 1559; U.S. at 99 S.Ct. at Rothery (as observation in Judge Taft NCAA, 100-04, 468 U.S. at outset), S.Ct. at had seen from the “a naked hori Indeed, Stationery, 2959-61. restraint, zontal one that does accompa Pacific again the Court ny reversed the lower integration, court’s a contract pur can have no se analysis, “group boy pose this time of a other than restricting output and rais cott” purchasing coopera ing prices, wholesale illegal per and so is se.” Id. illegal “per The conclusion petition. that a restraint is The issue of whether the Commission " may se mean not that the court will not prove power" must “market “effect" on any justification consider support offered in the facts of this case is discussed in section infra may it but also that it be condemned without VI. any proof that it had an adverse effect on com- [spilling protest milk to Pipe dent farmers Addyston (citing States United Cir.1898), support gas- aff’d, government price levels Co., (6th 85 F. 271 and] & Steel [closing operators protest to L.Ed. oline station regulations limiting markup].” (1899)). price actions aim to consumer wel- Such benefit efficiency is not the Perhaps economic by offsetting a “market failure due to fare naked otherwise in which an only garb According petition- to government action.” respectable in a civi made can be restraint ers, frequently mar- “governments distort to Petitioners seek society, however. lized by setting prices, rationing, regulat- kets the Sixth in the mantle of wrap themselves competitive pricing ing prices Amendment, the constitutional when —because produce ‘politicallyunacceptable’ re- would invoked, arewe clients are rights of their told, case, “competi- sults.” In this we argument disregard their indisposed to unacceptable to pricing” politically tive require or would it is novel merely because , of the under- the D.C. Government because exception to the acknowledge a new us to . (and taxpaying vot- lying antipathy of the Efficiency may indeed be per rule. se indigent ing) public rights defend- logic of the intrinsic to the only rationale antipathy induced the District exempting horizontal ants. This laws a antitrust If the too to set the CJA rates at a level per from se condemnation. restraint right representation to provide Sixth Amendment integrity of the low to effective it, though, not per- we should requires by the Since mandated Constitution. counsel a constitutional acknowledging politically unlikely from to alter this shrink suasion was per se rule. result, the reach of the limitation on constitutionally dubious popular but us from per rule bar available, does the se only Nor means coercion signifi potentially evaluating novel and necessary to raise boycott, was collective For, Areeda Professor defense. cant “competitive” prevailing rates to the ordinarily noted, mean do not has “[c]ourts price. from future themselves preclude entirely is free Although the matter not which thoughts about new matters doubt, “competitive interpret the we VII P. previously been considered.” not argument to mean either the price” in this ¶ 1510a at Areeda, Antitrust Law willingly pay price that defendants would Moreover, considering petitioner’s (1986). indigent, if were for counsel enmesh justification does not threaten amount, surely a lesser or at least what analysis.” industry in an “elaborate us an ade- necessary to call forth price 435 U.S. at Engineers, Professional legal representatiоn supply of quate Engi 98 S.Ct. at 1365. Professional constitution- quality sufficient secure in neers, Supreme example, Court assistance counsel. right to effective al non-ef dulged in a limited evaluation validity proffered by the de of this ficiency justification Before we evaluate rule, ultimately pause Although against fendant. se defense we safety rationale rejected premise the defendant’s fundamental briefly discuss a displacing per viz., se condemnation rely, upon petitioners 693-95, analysis, Reason see id. legal Rule for CJA hourly -rate increasing the 1366-67, hardly give can we quality rep- improve the would services upon argument based shrift to an shorter indigent defendants. The resentation right counsel. ‍‌‌‌​​​​​‌‌‌‌‌‌​‌​‌‌‌​‌​​​‌​‌​‌‌​​​​​‌‌‌‌‌‌​‌​‌​‌‍the constitutional challenged as- seriously this has not FTC at- has the SCTLA sumption, but neither fol- argument proceeds as Petitioners’ relation- establishing the much to tended really pro- boycott was SCTLA’s lows: and the ship between it assumes situa- responding to “a failure’ ‘market test easy lawyering. It of CJA quality brought the D.C. Government’s tion increase imagine enough protests pricing scheme.” Such inflexible for each case compensation ceiling on “are in pricing policies against government representation since to better lead would peo- by picturesque ‘small carried out fact devote more able to attorneys would indepen- ple’ the Jeffersonian tradition — to each case fear hours without of being quality pool of attorneys of willing to efforts; payment for their denied this take on CJA work. The leaders of the if ceiling be true case would was a boycott quite reasonably expected significant constraint number of cases. significant that a rate increase would in- ceiling compensation was, on But at attorneys duce more to take on CJA cases. best, boycott. a minor reason for the As Indeed, regulars some CJA opposed the noted, petition major pur- the SCTLA just for that expec- reason.17 This pose obtaining was “a sub- tation and fear fully realized. There stantial increase in hourly rate.” [the] has been a substantial increase in the num- immediately It is not attorneys clear whether in- ber of willing cases, to take CJA creasing hourly paid regu- to rate CJA corresponding and a decrease—it is not wоuld quality lars increase the of the ser- clear whether voluntary or involuntary—in they provide.13 vices The record is not of regulars.18 caseloads the old It is entirely point. barren on this Some wit- lawyers inferable that the newly attracted suggested higher hourly nesses that rates CJA work hourly the increased rates attorneys enable would take on fewer had been able to earn more in other types thus, provide cases and perhaps, to better practice of they than could in CJA work service because their attention would be under the pre-boycott schedule; rate inso- fragmented.14 hand, less On the other one lawyers far as respond pecuniary incen- of the leaders of the SCTLA testi- tives, opposed compensa- other fied that the possi- rates made it increased they may tions work, derive from their it is him pay support ble for services suppose reasonable to lawyers at- that, turn, enabled him to take on more tracted to CJA higher work at the rates surely cases.15 But it is fond for us to were, terms, in market lawyers. (Of better speculate whether produce increased fees course, possible it is representation clients; more or less effort behalf of on of indigent criminal defendants that hu- economists have been unable to determine manitarian ideological instincts or zeal con- priori wages effect of increased on tribute more to quality representa- of work,16 the trade-off between leisure and tion than the lawyers talents of that are and can hardly purport we to do so on the brought only by out higher wages; still, basis of a developed record with other even altruists must feed family often questions principally in mind. respond, so margin, at the to increased It why incentives.) is easier increasing to see noted, CJA And as the AU while might improve quality rates legal of “a dramatic transformation in quality services, however, when one indigency practice considers the is unlikely,” in- effect of the rate increase on the size and creased provide rates might an incentive Virginia Pharmacy Virginia 886-88, 13. State Bd. Testimony 15. See Addison at JA Cf. 254- Council, Inc., Consumer Citizens 56. (1976) L.Ed.2d See, e.g., 16. P. Economics at (rejecting 579-80 advertising by a claim that Samuelson, ban (10th 1976); ed. A. Alchian &W. pharmacists Allen, necessary quality to ensurе Universi- ty (1964). Economics at 462-64 noting ‘‘[tjhere is no claim that the advertising any way prevents cutting ban in Testimony (“As 17. See of Perrotta at JA 498 pharmacist of corners who is so inclined. fact, a matter interesting things one pharmacist That likely to cut corners in stoppage about the work ... was that there advertising event. The effect the ban has people, fringe people, were some competence in terms of on him is competi- to insulate him from against who were skill it for open way tion and to him make a reason, precisely they felt that there substantial, excessive, perhaps profit even competition would be more and would service.") in addition providing an inferior up getting cases.”) end fewer See, e.g., Testimony Cheryl D. Stein at Testimony (100- of Perrotta at JA 161 446; 473; Testimony Slaight JA JA lawyers daily call in for cases whereas 40- cf. Testimony (increased increased; Perrotta JA 60 did so before were lawyers rates respect judges). get not”). fewer cases like "whether it or poten- Exceptions to the Sherman Act for lawyers dedicated CJA more tially dangerous goods and services longer period practice for a remain repeal tantamount to a would be suggest These factors I.D.F. 72. of time. complex economy, the statute. In our likely to CJA services quality of may items that cause serious number of degree indeterminate in some improved be automobiles, almost harm is assume, for will endless — and we by rate increase a foods, components, heavy drugs, aircraft discussion, is so. that this present the others, cause equipment, and countless whether such must next consider We pub- to individuals or to the harm serious justify, petitioners’ quality can in increase defectively made. The large lic at if that it concluded The Commission boycott. indirectly protect the judiciary cannot upon not, primarily relying could Profes by conferring public against this harm case, Court Engineers. that the sional monopoly privileges on manufactur- the Society’s in “can provision the a considered ers. effectively prohibited ethics” that on of 695-96, 98 Id. at at We need S.Ct. 1367. In its bidding by its members. competitive legal representation of hardly defective add under defense, Society suggested that the list of defendant to the court’s a criminal justified the canon the Rule of Reason goods services. potentially harmful and to en “competitive pressure offer because sure, limited makes a more To be possible at the lowest services gineering quality of their servic- claim the regarding of the adversely quality affect price would Society of by advanced the es than that endanger public thus engineering,” and Engineers: Petitioners here Professional 4362. 98 S.Ct. U.S. at at safety. 435 assumption that that usual claim the only relationship accepted posited the The Court goods produce and competition will “better that quality, and the risk price and between apply where the market does services” that, result, in the absence noted could but distorting influence subject to the price is always canon, could purchaser of the process,” particular- “political of the advantages of price forego the to choose pur- the ly inapplicable polity where improve the bidding in order competitive seg- agent the least influential chasing for product, and an individual quality of the indigents accused of society, ment of inde could professional services seller of theory is difficulty this with crimes. bidding work. for from pendently refrain however, one when immediately apparent, at 1366. The Id. at a claim court is to how a evaluate considers canon Society’s ethical found the therefore failed to ar- process political the had competi The ban unreasonable. be price.” No doubt “competitive at rive the “views of bidding imposed the seller’s tive sell people who most business competition on the the costs benefits they opinion that are of the marketplace,” conflicted entire only if the public the serve better could in the embodied judgment legislative the in- were goods or services price of pro competition Act “will Sherman may also be able Many of them creased. prices, but better also duce not lower by kept down the price is to show at Id. at goods and services.” by pressure” exerted “political force opposing interests —such group with some medi- by provide defend- advanced Doctors who argument taxpayers. Medicaid Engineers constitut- to benefiсiaries ants in cal services Professional Court, to show example, may “a able ed, Supreme be program, in words of the for set policy of rates of the basic reimbursement frontal assault on fall below Id. Act.” at federal Sherman servic- medical high quality unique they charge engineers were far For the market, competitive plausible es. being least posit able treatment skimp in their systematically quality, relationship between Moreover, patients as result. Medicaid competition. and the elimination product the rates show that they may be able As the Court noted: participating reimbursement of doctors are rights clients, i.e., tutional of their that the unwillingness held down of taxpay- pre-boycott paid rates were did not respond sympathetically elicit constitutionally ers the medi- required minimum indigent. Regardless legal cal level of needs assistance for the accused.19 evidence, however, recognize legislature We how conclusive their may required judicial to alter its pass spending is not licensed level of judg- branch order to rights grounded upon, adequacy ment accommodate expendi- If, example, Constitution. political polit- authorized tures branches process ical results conditions of confine- government except in those rare cases ment satisfy that do not (of standards below) which more where there is a Eighth Amendment, may courts constitutionally mandated standard that steps order remedial that in effect require the minimum sets level of service that the the to devote re- additional provide. must state prison sources to the system. In such may Petitioners choose to call it a cases, the provision constitutional estab- political process “market failure” when the lishes a standard which the court can responds less to the demands of the evaluate the of political choices the branch- although it seems to be more of a weak— there, note, es. Even we a court would tautology description than a call it —but ordinarily have reason to specific order a will, what one position courts are in no level expenditure, since it can instead determine whether such a “failure” has specify the condition to be achieved and occurred, remedy much less to it hand leave it to fulfill that out ing exemptions the Sherman Act. way condition in the most economical it can prepared Nor are we admittedly to take the find. manageable more responsible but even less they Since argued have not point, the simply course of permitting all coercive however, we need not decide the novel boycotts government. Congress aimed at a question contract, combination, whether a surely did governments not mean to leave conspiracy would otherwise be so suppliers vulnerable to extortion the unlawful restraint of trade under the Sher- goods the and services need. man may justified Act be on ground the is, then; general There no exception to Pro that it necessary was to vindicate the con- Engineers for restraints of trade fessional rights stitutional of others.20 Counsel for prices aimed at through political set petitioners acknowledged argu- at oral process. ment before the pre- Commission that the emphasizing point, petition- Without boycott level of adequate services was ers have suggested at times boy- that their secure the Sixth rights Amendment of their cott was necessary to the consti- vindicate clients. See 107 F.T.C. at 587.21 put 19. Petitioners into the record a government, letter from the three branches of not with a the Director of the suppliers' Administrative Office of the cartel." FTC Brief at 35-36 n. 35 Speaker United States (citing Guild, Courts to the FTC, Originator's Fashion Inc. v. 7, 1983) (April 457, 467-68, House urging, 703, 707-08, on behalf of the 312 U.S. States, Judicial pas- (1941)). Conference of United L.Ed. 949 sage legislation increasing case maxi- authorizing adjust mum the Conference to specifically 21. The Commission found hourly rate for work done under the federal quality representation before the was CJA, observing "increasing version of the "adequate under Sixth Amendment standards.” Judiciary concern all levels Federal support See 107 F.T.C. at of this find delay may significantly that further ... erode ing, it cited to the decision of the ALJ at I.D.F. quality legal services which the Sixth but the ALJ there concluded that "[o]n Amendment to the Constitution mandates.” record, finding the basis of this no definitive Resp.Exh. JA 672. performance can be made about the of CJA lawyers handling except caseloads position The Commission collectively they takes large observe that move a vol justified would not be through even if "denial of ume of cases the District’s criminal rights rampant" Sixth Amendment justice system”; since quality of uneven remedy “the for such an would still doing evil lie with and have diverse motivations CJA protection of the First true, American comes within the amicus may

It be Amendment. Capital the National Fund of Civil Liberties was reluctant suggests, that Area IV: demonstrating that evidence introduce malpractice legal committed its members We next consider 'whether Surely would have less regular basis. may on a immune from the Act as Sherman example, peti- though. For required, constitution been an exercise per case argued that the have rights speak petition could tioners al inherently inadequate to allow ceiling griev government for the redress of cases with- in some Supreme assistance Relying upon for effective Court’s ances. embarrass- exposing themselves Presidents Con out decisions Eastern R.R. argued They Inc., could likewise Freight, ment. v. Noerr Motor ference representation low-paid (1961), quality 5 L.Ed.2d 464 minimum Co., falls below constitutional v. Claiborne Hardware NAACP by referring to inviting criticism without 73 L.Ed.2d tried, instead of pleaded cases (1982), petitioners argue that non statistics jurisdictions, and conduct, other comparison including suppliers’ boy violent accomplished counsel cott, pas indices as designed solely such other to influence the spur of incentive. under the legislation, protected could devise from the sage of pursued the Instead, they simply not have In the proscriptions of the antitrust laws. references occasional argument, alternative, and their petitioners argue that the Com their underpinnings of mission, minimum, to the constitutional must “create an at a garnish parsley to much designed are but so conduct exception for non-violent Thus, we (i.e., have made. arguments issues of public the issues to dramatize us, upon a boy- it comes to group this case as decide to a broader than interest by peti- support, themselves).” and that does not record cotters seek, finding a that do not tioners who Noerr, of á number plaintiffs systematic vio- rates resulted pre-boycott association, trade operators and their truck Sixth Amendment. lations of the group railroads had con- alleged that long-distance monopolize the far, spired to hold that thus we To summarize conducting publicity freight re business boycott was an unlawful SCTLA encouraging adop- campaign aimed at “pro-competi no of trade. Since straint practices enforcement and law is, justification tion of laws no justification, that tive” trucking business. purposes of the destructive that is consistent with The Court at 525. at de U.S. laws, offered its has been antitrust reasons, clear, “the thought for two it fense, has barrier and no constitutional more prohibit two or Act does not properly Sherman interposed, the could been together in an associating persons violation of Sec as a se be condemned legislature or persuade the attempt to Act, it also unless 1 of the Sherman tion functioning pro adversarial proper work; corps fair still has its that “the CJA and having on as cannot be relied that the trial ‘hangers-on’ who take as cess share of courthouse misdemeanors) just v. Wash See Strickland (usually produced a result.” possible many cases as 668, 686, 104 S.Ct. investigation, ington, expectation without in the (1984). Advising a client particular needs preparation, for the 80 L.Ed.2d or concern out, clients, bargained-plea will occa plead accept offer of a cases will second-guessing judicial charges rigorous of inef over even less hassles with Bar Council sion living of habeas seeks a writ representation avoided as a later will be when the defendant fective claiming of coun collecting assistance corpus, CJA fees.” ineffective out is scratched therefore, follow, apodictically, not sel. It does of criminal rate of reversals Nor can the low lawyers had city’s CJA fees for that "[i]f grounds, upon on Sixth Amendment convictions competent counsel inadequate elicit been drew, sup provide substantial which the FTC con history of criminal of reversals indigents, a finding. A convic port for the Commission’s grounds would Amendment on Sixth victions despite may the substandard affirmed tion performance at inadequacy.” 107 F.T.C. signalled that have deter the court of counsel unless performance "so undermined this mines that particular executive to take action with re- regulate ed to the former but not thе lat- spect produce law that would a re- ter. SCTLA argues that teaching “the monopoly.” straint or a Id. at 81 S.Ct. Noerr is that right petition is of First, at 529. the Court stressed the desir- importance sufficient genuine efforts ability, representative democracy, in a legislature to influence the subject are not allowing interested parties to make their laws, to the antitrust process even if in the government: views known to the ancillary result in anticompetitive ef- fects in the marketplace hold that the that would retains the other- [To] wise constitute

power representative to act in an antitrust capac- this violation.” hold, Since the time, SCTLA ity yet clearly at the same effort to legislative influence the people process, cannot inform the qualifies asserts that it impute “political of their wishes would Sher- activity” exempt regulate, from the purpose man Act a Sherman Act. busi- activity, political activity, pur- ness but In evaluating petitioners’ argument, we pose which would no basis whatev- note first nothing in Noerr sug- itself er legislative history of the Act. gests that,- by distinguishing between Second, at Id. 81 S.Ct. at 529. and “political” “business” activity, Court noted that: Court intended to remove from the reach of the Sherman right Act all conduct petition that is one of the free aimed obtaining protected by legislation. Indeed, doms Bill favorable Rights, cannot, course, Noerr court lightly specifically distinguished we impute to between Congress lobbying boycotts. an intent to invade these free Collective persuade efforts to legislature doms. or the particular action, executive to take Id. at response 530. In Court said: charge that the railroads had intended very bear any little if resemblance to the publicity their campaign to hurt the truck- normally combinations held violative of directly by ers damaging goodwill Act, the Sherman combinations ordinarily public, customers and of the express characterized implied or Court held that injury” such “direct agreement understanding or merely was “an incidental effect of the participants jointly give up will campaign railroads’ govern- to influence freedom, trade help or one another to 143, mental action.” Id. at 81 at S.Ct. 532. away take the trade freedom of others prohibitions of the Sherman Act would through the use price- of such devices as applicable only if a publicity campaign fixing agreements, boycotts, market-divi- ostensibly influencing gov- directed toward agreements, sion and other similar ar- ernmental action awere “mere sham.” Id. rangements. 144, at 81 S.Ct. at 533.22 136, 365 (citations U.S. at 81 S.Ct. at 529 Petitioners would boy- assimilate their omitted). protected cott to the lobbying activity con- Noerr, ground sidered in on the guided Noerr, Were we solely by there Noerr distinguished fore, Court broadly between we would be accept disinclined to activity” “political “business activity,” expansive immunity claim pet advanced and held that the Act Sherman was intend- Happily, itioners.23 any lingering doubt 22. The result in Noerr was extended government in United sire “genuine.” to influence the was 657, Pennington, Mine Workers v. 381 U.S. 669- See Bottling Sacramento Coca-Cola Co. v. 1585, 1593-94, 14 Chauffeurs, L.Ed.2d Helpers 626 & Teamsters Local No. (1965), anticompetitively to (9th motivated Cir.1971) (Noerr efforts to 440 F.2d 1099 influence "threats, administrative action. Pennington apply do intimi measures”); dation and other coercive Westbor Indeed, lower ough Girardeau, City Cape courts declined to inter Mall v. 693 F.2d pret suggested by petition (8th (Noerr Noerr Cir.1982) fashion 746 apply does not Thus, immunity ers. lobbying Noerr lobbying accompanied by has been denied to illegal efforts or actions); efforts that use undesirable Exploration methods fraudulent also see Woods regard without participants' Producing America, whether the de & Co. v. Co. Aluminum inter liability restraint is immune from antitrust the overbreadth about “ Supreme resolved if it is ‘incidental’ to a valid effort pretation decision in Allied Tube & influence Id. at governmental action.” recent Court’s — Head, Inc., Noerr, Corp. v. Indian (quoting at Conduit 532). U.S. —, repeatedly 100 L.Ed.2d S.Ct. at The Court Tube addressed Allied (1988). anti stressed that not all efforts to secure competitors immunity protection available action merit under trust Noerr; instead, from the mar agree validity to exclude rival of such ef- who “[t]he forts, of Noerr standard-setting process applicability by using the and thus the ket immunity, private organization, there the Nation varies with the context and na- of a 1936; Id. 108 S.Ct. at activity.” ture Fire Association.24 al Protection see also id. at 1939. These two factors— evaluating claim respondent’s course however, to Noerr immunity, Court set context and nature —determine whether the dеtermining appropriately general approach conduct at issue is more char- forth a “political activity falls acterized collective conduct within with a com- whether reach of Noerr. impact,” mercial immune from antitrust lia- Noerr, bility under or as “commercial activ- protection,” scope “The [Noerr’s] ity political impact,” must be source, wrote, “depends ... on the evaluated “under the standards of conduct context, anticompetitive and nature of the Id. set forth in the antitrust laws.” Id. at issue.” restraint 1941, 1942. First, re- concerning the source of the Tube, Here, as Allied straint, a court must consider it is the restraint as whether i.e., issue, governmental private boycott, plainly valid resulted the result of former, urging private, governmental, rather than ac- action. If the “those Thus, enjoy absolute immu- tion. the conduct is immune under governmental action for the anticom- Noerr only if it influ- nity liability from antitrust valid effort action,25 latter, Id. governmental which turns on petitive If the ence restraint.” (5th 1971) (Noerr against Organization for Women all F.2d Cir. National 1296-98 conspiracy supply Equal Rights protect false does not states that had not ratified agency). Amendment). to a information cases have considered A small number of Tube, largest producer 24. the nation’s Allied protects boycotts competitors whether Noerr wires, conspired with steel conduit for electrical influencing governmental action. The aimed at majority parties plastic other to exclude the interested have concluded that of these decisions competitor, its Indian conduit manufactured Head, v. North Dakota it does not. See United States Hospital D.1986) the conduit market. To from electrical 1028, Ass’n, (D.N. F.Supp. 640 1040-43 end, "packed” Allied Tube the 1980 annual this meeting by competing hospitals (agreement the National Fire Protection Associa- deny a contractual the Indian Health Service new members whose func- tion with 155 discount); price Metropolitan v. COMPACT against proposal to include tion was to vote (M.D. Government, F.Supp. 1572-73 594 approved type plastic as an of electrical conduit Tenn.1984) (agreement among black architec Association’s 1981 National Elec- conduit in the negotiate jointly public tural firms to on plan The was successful and Indian tric Code. Pennsylvania-Delaware Ass’n, projects); Ser Osborn v. entirely product a sub- was excluded Head’s F.Supp. vice Dealers Station 499 jurisdictions adopted the stantial number of (D.Del.1980)(agreement among gasoline 557-58 directly Code into law. Re- National Electric covery customers until dealers to cease all sales to sales Indian Head increased); was based the gasoline retail maximum lawfully product its could be used Soc., lost where Michigan 101 F.T.C. In re State Medical stigma used because of the but was not obtaining (1983) among (agreement compet 296-301 approval. Code ing state Medicaid reim doctors increase by threatening depar collective bursement rates suggests apply, that for Noerr ticipation). 25. Allied Tube But see Crown Central Petroleum (M.D.Pa. Waldman, F.Supp. must also be "incidental” to Corp. the restraint v. 486 759 governmental This 1980) action. (boycott by gasoline at effort to influence requirement retailers aimed situations, as in both increasing prices exempt is aimed at maximum retail Tube, Noerr). influ- where efforts to Noerr and Allied See also from the antitrust laws under Women, "direct” harm to cause Organization ence the Missouri v. National Inc., (Sherman marketplace in addition to (8th Cir.1980) competitors Act 620 F.2d 1301 governmental resulting action. from harm applicable is not to a convention Hardware, re- Claiborne the Court “commercial” or primarily it was whether judgment against versed a state tort in nature. “political” National Association for the Advancement Tube, conduct Allied relevant Unlike People large and a number of of Colored political context— place in a did take here boy- participated in a individuals who had weighs in fa- legislative arena —which merchants in Coun- cott of white Claiborne to Noerr immunity petitioners’ claim vor of ty, Mississippi, from 1966 1939; 1936-37, id. at See boycott. achieving at a score of was aimed n. 11. The nature of also id. at 1941 see Justice,” in- specific for Racial “Demands however, strongly counsels activity, cluding claims on the state as such basic refus- immunity. Concerted against Noerr public desegregation schools and re- by competitors cannot be als to deal facilities, jury duty, selection of blacks traditionally “activity has garded hiring рolicemen, as well and the black caution,” id. extreme regulated been afterthought employ- as an demand for the Noerr, at (citing 365 U.S. at 1940 and cashiers in all ment of blacks as clerks 899-900, Id. 531), “activity that local stores. at 102 S.Ct. at or as S.Ct. at ‘bear[s] that the meet- 3418. The Court concluded to the any resemblance combina- little if picketing ings, speeches, and nonviolent normally held violative of Sher- tions ” “political support used to were Noerr, Id. (quoting man Act.’ expression” “ordinarily entitled to Moreover, 529). at at protection the First and Fourteenth under per- efforts to “confine itself to did not 907-08, Id. at 102 S.Ct. at Amendments.” suade”; instead, “organized it and orches- then considered whether Court concerted effort to restrict trated” a “strong governmental interest in cer- See marketplace. supply of services regulation,” includ- tain forms of economic id. ing regulation entities who as- of business Although boycott thus seems to have justified suppress competition,” sociate “to nature, petitioners, cit- been commercial in ordinarily protected an intrusion on activi- ing Supreme Court’s decision 911-12, Id. ty. at 3425. Dis- Co., Hardware NAACP Claiborne tinguishing political and economic between L.Ed.2d 1215 acknowledging the state’s activity, and (1982), maintain that it was nonetheless latter, power regulate broad activity” (variously re- “political indeed discussed Noerr at some length, not- “political petitioning,” “efforts ferred to as ing the similarities and differences both political pressure,” and even as it and the facts in to mobilize between the facts before Noerr: theatre”).26 “political cases, regulation protected under Sherman supra n. 24. In such See generated among defendants’ efforts to com court must ensure that the Act has intense interest legislative a "mere influence action are not literature mentators. The relevant Hurwitz, includes actually attempt Processes, is sham” to cover what Abuse Governmental of competitor’s directly with a business Noerr, interfere relationships. Amendment and the Boundaries First case, however, boycott In this (1985); Kennedy, Politi 74 Geo. L.J. 111-16 government solely pur- at the as a was aimed Act, Boycotts, and the First cal the Sherman services, goods and there is no chaser of Note, Amendment, (1982); A 55 S.Cal.L.Rev.983 boyсott allegation that the caused the District Boy Non-Commercial Market Power Test for distinguishable any marketplace that is harm Note, cotts, (1984); NOW or 93 Yale L.J. 523 by petitioners’ efforts to from the harm caused Liability Noncom Never: Is There Antitrust government induce the District compensation. to raise (1980); Boycotts?, Colum.L.Rev. 1317 mercial Comment, 80 It therefore makes little sense to Boycotts the Sherman Protest Under boycott ask whether the is "incidental” to Note, (1980); Act, Political 128 U.Pa.L.Rev. 1131 government. defendant's efforts to influence the Amendment, Boycott Activity and the First 91 Instead, question simply whether the relevant Bird, (1978); see also Sherman Harv.L.Rev. 659 it is a "valid” effort to influence Concerted Limitations on Noncommercial Act action. 247; Coons, Deal, L.J. 1970 Duke Refusals Non-Commercial Purpose Act De as a Sherman possibility boycotts organized

26. The that (1962). fense, may Nw. U.L.Rev. ‍‌‌‌​​​​​‌‌‌‌‌‌​‌​‌‌‌​‌​​​‌​‌​‌‌​​​​​‌‌‌‌‌‌​‌​‌​‌‍705 "political" purposes expressive 56 conduct

245 Cir.1979), disputed major purpose that a phase It is not an earlier litigation over boycott). boycott this case was to influence Claiborne in Like the governmental action. railroads Petitioners read Claiborne Hardware as Noerr, petitioners clearly holding in foresaw boycotts that aimed at influencing political process directly are —and intended—that the mer- “First Amendment activity” that is not covered the anti- injury chants would sustain economic as trust laws.27 clearly As reflected in the campaign. a result of their Unlike the quotation above, however, intended the de- case, however, pur- railroads that termination in Claiborne Hardware that petitioners’ campaign was not pose boycott “political activity” was not legitimate destroy competition. Peti- simply based on ground the broad that the sought rights tioners to vindicate sought by blacks boycott “to influ- equality and freedom that lie at the Instead, ence action.” heart of the Fourteenth Amendment it- Supreme reemphasized in Allied right regulate self. States to Tube, Claiborne Hardware rests activity justify economic could not a com- findings that nonviolent, plete prohibition against po- boycott by any was not motivated litically boycott designed motivated competition desire to lessen reap or to governmental change force economic economic benefits but the aim of vin- rights guaranteed by and to effectuate dicating rights equality and freedom the Constitution itself. Constitution, at the heart of the lying at 3426. Because Id. boycotters and the were consumers who “ suggestion [partici- there was ‘no profit did financially not stand to from a lessening pants boycott] competition boycotted the Claiborne were in market. competition with the white or businesses parochial arose from eco- 1941; 108 S.Ct. at see also Roberts v. Unit- ” interests,’ nomic the Court held that the 609, 636, Jaycees, ed States (1984) nonviolent elements of the were S.Ct. 82 L.Ed.2d 462 (O’Connor, J., concurring).28 protection entitled to the of the First Amendment. Id. at S.Ct. at 3426 Claiborne Hardware thus makes the (quoting approving Judge the words of for the motivation a crucial Henry Ainsworth in determining First National factor in whether it constitut- Clarksdale, (5th protected “political” activity. F.2d Bank ed Before considering impact cargoes arriving Claiborne Hard- handle from destined for the note, defense, protest ware on the Noerr we Soviet Union in order to the invasion of matter, preliminary Afghanistan. as a The Court stated it has that while Claiborne Hardware involved state law tort of mali- consistently rejected secondary claim business, nothing cious interference with a picketing labor unions in violation of opinion suggests apply the Court’s that it would 8(B)(4) the National Labor Relations § [of analysis allegedly different conduct activity protected under the First Act] violates the federal the con- antitrust laws. To (Citations omitted.) Amendment. It would trary, Claiborne Hardware’s discussion of Noerr designed seem even clearer that conduct suggests analysis the Court believed its to communicate but to coerce merits still less equally applicable would be in Sherman Act consideration under the First Amendment. context. 456 U.S. at 102 S.Ct. at 1664-65. The Court many ways ”[t]here also noted politically is clear It that not even motivated may its members ex- a union and individual boycotts enjoy protection First Amendment foreign policy press opposition their to Russian against sanctions under all circumstances. In infringing upon rights without the of others.” Longshoremen's International Ass'n Allied In Id. at 102 S.Ct. at 1665. ter., Inc., 72 L.Ed. Hardware the Court referred to In Claiborne (1982) (ILA ), proposition regula- 2d 21 a case decided less than ILA for the that economic Hardware, important three months Claiborne the before furtherance of an or substan- tion in rejected, paragraph, in a brief the claim tial interest is not unconstitutional politically secondary boycott merely that a effect on motivated because it has an incidental a labor union was entitled to First Amend First Amendment freedoms. See 458 U.S. protection. Longshoremen ment had refused to 102 S.Ct. at 3425. hourly rate we will cease Commission, argued that increase in our petitioners the the appointments under accepting in order “to new undertaken boycott was their was indigent Act.” No reference counsel for Criminal Justice effective more obtain plight their A of their Sixth clients. in furtherance made the defendants during prepared by 107 F.T.C. at 584. the rights.” “press kit” Amendment disagreed; arguing it found that does include a statement strike The Commission program was un- of the CJA rates are inconsistent with boycott that the current “the improve the economic well-be- representation, but the dominant dertaken effective statement, competitors (the ing participants of these materials theme at 582. Family services.” Id. Division Trial for CJA market brochure from Association, newspa- in this do briefs court and several Lawyers While finding, ar- challenge articles) perception this lawyers’ the trial specifically per is it, is contradicts which implicitly underpaid. Nor were gument were con- sufficient, getting First Amendment an in this much concerned with boycotters finding. text, ceiling, initiate our review the case which increase in the directly more related to would seem to be political and eco- Distinguishing between representation their quality of the task, daunting even for is a nomic motives hourly We clients than rate. received asking only reviewing which is court by the that the sole issue raised also note by the affixed the characterization whether compensation un- boycott participants was in record. supportable of fact is finder CJA; boycott had the been motivat- der the determining difficulty of an- The inherent quality of primarily by concern with the ed compound- subjective motivation other’s in all like- representation, the record would may motives under- the actor’s ed where sugges- at least some other lihood contain Nonetheless, the ob- standably mixed. be thought repre- how SCTLA tions about surrounding the con- jective circumstances indigent be defendants could sentation of primary give important clues as to duct improved. it, which case was motive behind this economic than not. clearly enough more Thus, sincerity questioning the without (and members other knowl of the SCTLA organized by was The SCTLA witnesses) interested who edgeable but less purpose of competitors for the immediate quality concern for the about their testified paid for increasing were rates, representation existing under the that the services. The claim finding boy the FTC’s we affirm (at ultimately) least motivated primarily by economic cott motivated “political” concern— important way group recognize that a self-interest. We representation quality available influencing govern boycott aimed be treated indigent accused—should may both selfish ment motivated light more skepticism in obvi- concerns, may by selfless two participants.29 ous economic benefit single participant. Acc in a be united even Moreover, contemporaneous con- record government’s ommodating the interest any political for the firms that motive activity to the regulating harmful economic distinctly secondary to the eco- strike was engage joint politi right of its citizens to one; announcing petition nomic the SCTLA requires action us to determine simply cal example, asserted boycott, As predominates. granted motivation Claiborne we are a substantial that “unless Note, (1980); Boycott fact, Political dis Rev. commentators who have most Amendment, exemption Activity Act for First 91 Harv.L. Sherman cussed "non-commercial” boycotts "political” (1978); Kennedy, or Political see also Rev. scope analysis all Act, from the of their excluded Boycotts, Amendment, First The Sherman boycotts organized by competitors business (1982) S.Cal.L.Rev. increasing profits. their own See aimed at Note, ("One properly important factor in characteriz Liability NOW or Never: Is there Antitrust ing particular mixed-motive Boycotts?, 80 Noncommercial Colum.L.Rev. gain flowing presence economic absence of Comment, (1980); Protest 1319 & n. 16 boycotters.”). Act, Boycotts U.Pa.L. Under the Sherman illustrates, Hardware aimed at government influence the agree securing rights minority conspirators’ the civil does terms. But see Geor Evans, gia v. essentially “political” 316 U.S. 159 lose its character S.Ct. [62 not (1942). 86 L.Ed. Firms goals jobs one could claim merely because of its 1346] — immunity boycotts for or horizontal out improve local stores —could the economic put ground restrictions on the they that participants.30 of some of situation are intended to plight dramatize the Similarly, boycott organized by competi industry spur legislative action. price they get tors order increase Immunity might even be claimed for anti- paid for their services does not lose its competitive mergers on theory that solely “economic” character because the they give the merging corporations add purchased service is political ed clout. (or quality per and the of that service is (parallel S.Ct. 1938-39 citations omit- be) haps accurately, more should a matter ted); see also id. at 1941 n. 10. Tube, See Allied public concern. indicates, passage at 1938. As this S.Ct. the anticom- petitive implications petitioners’ pro- The economic motivation for the posed extension of Noerr are far-reaching. appro- us to conclude that it is leads most More than one-fifth gross national priately activity as “commercial described product purchased by government enti- political impact.” Accordingly, awith we ties money legislative with derived from reject petitioners’ position that all non-vio- appropriations;31 immunizing all non-vio- boycotts influencing legis- lent aimed at boycotts lent affecting aimed at legisla- process lative are immune from the anti- process tive would free the businesses that required sup- trust laws. It is neither nor compete supply must now this tremen- ported by the relevant decisions of the Su- dous “lobby” demand instead to in- Indeed, dicta in Allied Tube preme Court. prices they creases in the receive collec- strongly suggests that Noerr does ex- tively withholding production. Petitioners’ indistinguishable tend to restraints from suggestion immunity be limited to the one before us: boycotts “designed pub- those to dramatize agree petitioner’s cannot We abso lic issues” would offer little relief. the Noerr doctrine position lutist protectionist arguments that national se- every immunizes concerted effort that is curity depends upon supply a domestic genuinely govern intended to influence everything boots and foodstuffs and else mental action. If all such conduct were army an virtually any uses illustrates that then, example, competi immunized industry perhaps could invoke its issue — tors would be free to enter into horizon is, own welfare —that as would price agreements tal long as as require, group “of to a interest broader propose appro wished to as an boycotters than the themselves.” This is priate governmental ratemaking level for the stuff of which economic chaos is made Georgia price supports. or But see political in countries that tolerate coercive Co., Pennsylvania R. by industry, 456- action and from which the 716, 725-29, country Sherman Act has shielded this 89 L.Ed. [65 1051] century. (1945). almost a conspiracies boy Horizontal or designed higher prices cotts exact V. advantages other from the economic would be immunized economic Our conclusion such ground genuinely boycotts categorically intended are not immune from goal, quality representation pro- Even this which could be characterized attention on isolation, indigent defendants or on the criminal as vided to "economic” when viewed in is more justice system in the of Columbia. appropriately part comprehen- District viewed as equality pub- sive effort to achieve racial Census, contrast, County. By lic life of Statistical Claiborne 31. See U.S. Bureau of the above, (108th noted States: at 410 SCTLA's demand for increased Abstract of the United 1987). larger part CJA fees was not of a effort to focus ed. 248 Moreover, however, the “factual context” of the laws, does not con-

the antitrust boycott suggests partici- petitioners’ claim that clusively resolve the SCTLA entitled to First specific boycott pants message intended to communicate a protection. While state regarding prevailing Amendment CJA rates and tions on First Amendment but L.Ed.2d 672 nal preme Court’s decision United pressive conduct in the context greater generality. The Court held speech element can ernmental duct,” are combined in the same in participants’ First Amendment nomic “when Claiborne This First Amendment greater state’s may legitimatеly limited lest the cotts, 102 O’Brien, government’s prosecution S.Ct. regulation, interest ‘speech’ than is essential scope interest (1968). Hardware, 3425, U.S. “sufficiently important laid down standards incidental in which was authority maintaining competition. regulate economic justify incidental limita- its burning a draft derives ‘nonspeech’ That regulating in regulation limitation on eco- 88 S.Ct. restriction of the 458 U.S. at freedoms.” 391 case concerned to further course of con- from the acknowledged freedoms be regulate of a crimi- States v. elements the non- must be of far card, gov- boy- 912, Su- ex- publicize provides that: prevailing press See cated rallies. cles and television stories that not reported coverage sponded with a ers. that this justified pression of free Amendment freedoms is no tional the incidental restriction on ment’s interest is essential furthers [A] Given that the First kits and by aspects Petitioners power message CJA rates were ^[1] at 230. The media re- supra petitioners’ claims that interest; if it is within the constitu- organizing picket number important the furtherance of that is unrelated to the regulation is “strike” actively was understood expression; Government; Amendment is but ^[3] boycott, newspaper by handing also courted media inadequate. or substantial if the alleged greater sufficiently and [4] served lines and O’Brien govern- ^[2] impli- First than sup- only arti- oth- if it out if interest. U.S. at 88 S.Ct. at 1678-79. ion.32 We base this with the factual context ture of the with a sion curiam) (the Washington, which it was protected expression). warranting First Amendment 2729-30, peace We think it clear did contain an element appellants’] display of a United States symbol 41 L.Ed.2d undertaken.” attached holding on “the na activity, and environment As for the “na 409-10, to it is a form (1974) Spence combined expres protect flag (per See United States v. 2d 515 ment’s interest competition late tion of the first three test important doubts that [1] constitutional 391 U.S. poses commerce, (1972) (“[The few power problems. “important antitrust nor that preservation prohibiting antitrust Topco parts of the 1126, 1135, Congress laws lie within the at 1679. No one ^[2] or substantial.” Associates, restraints on laws] of economic seriously 31 L.Ed. Applica O’Brien govern are as regu free-enterprise system freedom and our activity,” boycotts note that

ture of the we Rights protection the Bill of is to the of our histоrically used as a dramatic been freedoms.”). personal fundamental Peti communicating anger disap means of suggested tioners have not that this inter proval mobilizing sympathy for the and of any way suppres Publish est is “related to” the cause. See Costello boycotters’ Rotelle, expression, sion of free or even that ing Co. v. 670 F.2d (D.C.Cir.1981) staple bring decision to this case (boycotts are “a of Commission’s economic, activity”). inspired by hostility political, as well as content ques- The Commission did not address this fied incidental restriction on the policies underly- tion because it found that the ing 107 F.T.C. at First Amendment freedoms. See (including the federal antitrust laws 594-95. price fixing boycotts) justi- se condemnation of

249 inadequa tervailing procompetitive boycotters’ speech justifications about for rates. cy facially anticompetitive boycott. the CJA of context, however, O’Brien also In this permit, The antitrust laws but do not expression restriction on requires that the require, price fixing the condemnation of greater “no than is essential” further be proof power; without of market even the protecting interest government’s per se rule, as the Commission acknowl- argues competition. The Commission brief, edges only in its is a rule of “admin- O’Brien part this test it has satisfied efficiency,” istrative convenience and not a it has left SCTLA and the-other because statutory 39; see command. FTC Brief at speaking out petitioners free to continue Hospital Parish Dist. No. 2 v. Jefferson Hyde, 466 U.S. change, pro collectively legislative for 15 n. 104 S.Ct. agreeing collectively to only hibited (1984). n. 1560 80 L.Ed.2d 2 While the i.e., their trade to re surrender freedom — overinclusive, may occasionally rule be con- boycott. boycott But had new the since the demning harmful, the ineffectual with the it, expressive side to this is a restraint danger socially there is no known ben- O’Brien, stand, per speech on that can arrangements prohibited, eficial will be can that it is essen if the Commission show price-fixing ever, agreements rarely, if policies tial in order to vindicate the redeeming hap- virtues. As for the antitrust laws. harmless, less but as Professor Areeda has regard, challenges the In this noted, charged conspiring defendants failure to determine that the Commission’s prices standing to fix “have little moral boyсott participants power,” had “market proof power demand of or effect when the is, ability profitably price. raise say most can is themselves requirement generally power The market public tried harm but were that the laws do serves to ensure antitrust ability mistaken in their to do so.” VII P. arrangements not interfere with business AREEDA, ANTITRUST LAW at 111509 actually any ‍‌‌‌​​​​​‌‌‌‌‌‌​‌​‌‌‌​‌​​​‌​‌​‌‌​​​​​‌‌‌‌‌‌​‌​‌​‌‍exert detrimen that could not (1986). 411 competition. tal effect on The Commission regulate When seeks to inquire power market did not into SCTLA’s expressive with' an an economic per theory proceeded insofar as it on a of however, component, its condemnation course, se illegality, of because the chief proof without could fact per se rule is to condemn reason for the ignores the antitcompetitive command price-fixing agreements among and kindred activity pro- ’Brien that restrictions O competitors having poten without to make First Amendment be “no tected tially time-consuming and difficult factual preserve greater than essential” Ry. determinations. See Northern Pacific competition from the sclerotic effects States, v. 1, 5, Co. United 78 356 U.S. S.Ct. Button, also NAACP v. combination. See per 514, 518, (1958). 2 L.Ed.2d 545 On 328, 340, 415, 438, 83 S.Ct. agreements, se illegality price fixing see (“Broad (1963) prophylactic L.Ed.2d 405 supra 237-38; see also FTC Indiana expression in the area of free rules Dentists, Fed’n suspect.”). suggests Commission (1986); Socony- 90 L.Ed.2d 445 O’Brien, noting that the Court we misread Oil, Vacuum 310 U.S. at n. upheld government’s re- in that case (“[A] conspiracy prices at 845 n. to fix ability express straint on the defendant’s it violates 1 of the Act is not though § card, burning himself his draft because conspirators established that had “legitimate and substan- draft cards are a accomplishment means available functioning aid in the tial administrative objective_”). Nor did the Commis system.” 391 U.S. at registration] power sion when it ana [the look for market Similarly, at 1679. lyzed the SCTLA under Rule here, urges Reason; condemnation approach under that it was not se, power, is a regard to market without necessary proceed for it to further in the admin- legitimate aid no coun and substantial once it determined that there were ¡station grievances. Where the True redress of one’s laws. antitrust right of this say that administra- measure constitutional do not enough, and we justify stake, an inci- оf a on the may never it is not too much burden convenience tive conduct; expressive require prove it rather on to that restriction dental contrary against in the context of which presume the that the evil is to than O’Brien maintain an to raise and in the effort Act is directed looms Congress’s the Sherman international con- period of army during a it condemns. This latter considera- conduct evidentiary only that the apply boycott hold to a obviously We flict. tion would without condemnation against private participants to antitrust in the shortcut directed inappropriate as power is market of proof market. served, part, in to boycott that applied to public matter of on a a statement make VI. Primus, 436 U.S. In re See debate. boycott participants market Had the 56 L.Ed.2d 434, did, says they power? The Commission (“Where expression or asso- political (1978) although it defined the relevant has never issue, has not toler- this Court is at ciation petitioners’ share market or estimated the often imprecision that degree of the ated Indeed, petitioners respon- both of it. regulation of the characterizes power suggest that market issue dent the affairs.”). of commercial conduct in their favor on the should be resolved argues requir- also Commission the record. existing of basis power in this case ing showing of market arguments warrant a brief SCTLA’s analy- effectively away do with se will suggests It that the dramatic comment. if, hys- the somewhat altogether, as in sis lawyers in the number of vol- increase us, “price-fixing is argued to terms terical following the unteering to take cases CJA merely the ‘speech’ because deemed to be boycot- increase rate demonstrates engage in such they claim must price-fixers power, only very had market ters short-run effective- in order to communicate conduct availability any had if all. prophecy target....” This ly with their suppliers quickly who will sub- alternative reach of our deci- overestimates the greatly existing or increase stitute into a market sion, placement in a suspect, its as we from price response in to a small in- production brief, fully the Commission to its footnote is, course, highly relevant to crease First, determination our understands. Suppliers question powеr. of market boycott an element SCTLA contained in respond included will so should be simply on expression not based protected suppliers, Other of the market.33 definition they needed to petitioners’ claim that larger respond only to a increase that will communi- engage order to in enter, may longer to price in or that take instead, effectively; it is based cate pose important an may nonetheless re- environment” “factual context and power straining exercise of effect on the undertaken, includ- incumbents, may also market therefore appeal to ing petitioners’ efforts active meaning assessing relevant be public support of their demand for to concerning facts such market shares. The regard, a raise. In this entry in the wake of new as occurred they called it. Sec- like the “strike” clear in increase are ond, above, CJA far as noted our evaluation us, however, record should before conduct not unaffected in the first in- event be evaluated First Amendment special concern of the by the Commission.34 petition government for stance efforts to lasting percent price magnitude five increase one feet of a Both the increase Justice, Merger Department year. See U.S. length time allowed for considered and the 2.11, (1984). 2.2 §§ Guidelines entry may vary depending new on the reason being the context of the market is In defined. suggestion, Contrary the record to SCTLA’s mergers, example, Department of Justice contrasting starkly inferences. We admits note, by examining generally the ef- defines markets attorneys example, re- the CJA notes, provide also that the District had to indigent counsel for defend- option persuading forcing ants”; other city government “forced attorneys replace them. There are obvi- increase the CJA fees from a level that had the, drawbacks, however, govern- ous been sufficient to adequate sup- obtain an power of its ment’s coerce certain ply use lawyers of CJA to a level satisfactory provide citizens services to others. to the [petitioners].” 107 F.T.C. at 577. fact, funds ran In when CJA out agree We that in typical commercial attempt conscript attorneys repre- context, findings these generally wоuld indigent sent defendants encountered more than support sufficient for the conclu- any event, strenuous resistance. sion arrangement that an had an actual group in a engages supply disrupting that detrimental effect competition. The boycott against should not assumptions normal regarding cause and ordinarily permitted against be defend effect in an economic market cannot be ground an antitrust suit on the transplanted political wholesale into the extraordinary failed to use its arena, however. There are reasons to powers pressure to relieve the economic pause inferring power before market brought against had it. political detrimental effects when power may explanatory be the more variable. conceding

Without need demon- power, strate market ar- Commission surely Power of some sort was exercised: gues findings regarding that its the effect city approved The council a CJA rate in sufficient to show that refused, long crease it had two weeks into petitioners power. had market The Com- disrupted system the court argument mission’s is based on FTC v. generated significant publicity. Per Dentists, Indiana Federation haps the rate increase would have followed (1986), 90 L.Ed.2d 445 just swiftly boycotters as if the simply had Supreme where the held that “[s]ince stopped accepting appointments, exerting purpose inquiries into market power their raw market under a shroud of power definition and market is to deter- conspiratorial possi silence. But it is also arrangement po- mine whether an has the that, lacking any power, market peti ble genuine tential for adverse effects on com- procured by chang tioners a rate increase petition, ‘proof of actual detrimental ef- public ing through publicity attitudes fects, output’ such as a reduction can attending boycott. boycott may inquiry obviate the need for an into market engendered significant public pres have power, ‘surrogate which is but a for detri- sure; not, the ALT found it did but ” mental effects.’ Id. 106 S.Ct. at 2019 question Commission did reach the AREEDA, (quoting P. ANTITRUST LAW rejected findings except the AU’s insofar ¶ (1986)). 1511 at 429 expressly adopted it them. See I.D.F. 58; publicity “actual detrimental effects” cited n. 4. F.T.C. Or the findings surrounding boycott may Commission include its have served boycott “dramatically only the SCTLA dissipate public opposition reduced supply lawyers city’s lawyers repre to the CJA a substantial raise for who program”; “adversely indigent city’s previously affected the sent defendants had enc ability obligation to meet its constitutional ountered.35 price unlikely ceived a rate increase of 75% for out-of-court a rise in restore market time, i.e., substantially competitive equilibrium, time and to a of 17% for in-court lower Thus, may price. post-increase entry generally above the 5% increase Department used re- availability supra-competitive defining flect the re- of Justice in un- markets entrants, resulting rationing merger guidelines. turns for new supra der the addition, See n. 33. In lawyers. assumption production cases substi- may power tution serves as a check on market problematic through Mayor Barry when the is set 35. The record demonstrates that legislation. petitioners city sympa repeatedly important As not- and other officials were ed, legislatively prices boycotters' goals may even determined tend to be thetic to "sticky” supply supportive so that an caused itself. See increase in have been judgment. particular, we do not mean conclude that were to if one

Even re- and time solely suggest as a that the exhaustive the rates city increased supply of attor- consuming market definition exercise to the decrease sponse appointments, it accept necessary CJA willing merger litigation neys is endemic to more that without context; not follow still would in this if the Commis- or desirable power. The re- market had petitioners approach, it should use it. sion has a better cases lawyers to take CJA supply of duced irony of our Nor' are we unaware distinction be- an economic reflect would to evidence of remitting the Commission mar- and the other market the CJA tween it can a case where market structure services, which would lawyers’ kets from the point of actual effects to evidence hypothesis, or it power market support the indirect boycott. evidence is Structural reflect the success could instead of mar- inferior to direct evidence and thus among oth- campaign persuasive SCTLA’s еvi- power, it is the best available ket but in the same market lawyers who were er affecting market dence in most cases struc- political sympathy also were but ture, merger In cases in- such as cases. specifically found that the AU them. The anticompetitive conduct volving allegedly “uptown” lawyers response of the “feeble” hand, the Commission would on the other due, part, help for the PDS’s call to normally concern itself with issues of de- underlying support for the “their to share, definition, market market lawyers.” I.D.F. 60. the CJA mands of As to be drawn therefrom. we inferences however, did not the Commission Again, however, seen, peculiar facts on the have adopt did not upon point, pass case, those in which are unlike of this finding. relevant Dentists, “proof of Indiana Federation of in infer- difficulties such inherent Given effects, as reduc- detrimental such actual the “effects” ring power market the need output,” tion of cannot “obviate boycott, the Commission petitioners’ power,” inquiry into market unless for an to evidence may need to examine structural reject the can with confidence the court power, market if degree of determine the prod- possibility that the effects were This will re- any, petitioner wielded. that simply rough and tumble uct a rele- define quire that the Commission make municipal politics. If the FTC can all services that includes vant “market” course, it need not showing, of then that peti- for the that are effective substitutes rely after market evidence on structural likely avail- to be tioners’ services and are all. signifi- The time. able within a reasonable of the market petitioners’ share cance If the Commission determines light then assessed thus defined can be significant power, petitioners havé market to the exercise of other factors relevant how much need to determine also it will power. market justify to power is sufficient market boycott. expressive an condemnation of in- power” its “market form that impres first apparently This is matter of issue remand is an quiry should take on Clearly, First Amendment con- expert sion. that is the Commission’s best left to 63; Mayor’s “knowing 37, 38, 43, 45, 50, wink” that the at 560. Commission 107 F.T.C. I.D.F. example, immunity petitioners meeting August on the if At a confer cannot Mayor September did, fact, Barry, they power who was aware have market deadline, explained emer the District’s strike city. See Soco the detriment of the exercised to gency legislative representa process to Oil, ny Nonetheless, U.S. at Vacuum you "[y]ou have to tives and told them do what mayor’s could also be remarks do, to do.” See I.D.F. and I will do what I have petitioners encouraging to interpreted Indeed, Mayor that “the the AU concluded political stage muscle of their a demonstration fully merited ... believed that an increase easily could more a rate increase so that city brought about unless the but could not be public. demonstration justified Such a emergency dem was confronted with an actual onstrating peti laws if the offend the antitrust would not lawyers importance CJA to ability any actually to exert lacked tioners sys justice of the criminal administration city. pressure on the significant economic agree We with the tem." 107 F.T.C. at 559. by expressive implicated boycotts cerns re- less of motivation, the actor’s and that the quire not be condemned if their FTC’s task is to determine whether such a ability competition insignificant. technique to harm has employed. been Only expressive boycott an poses agree I with the majority that observing significant competition threat warrants that SCTLA set out govern to influence laws, condemnation under the antitrust as mental activity hardly completes analy an “unreasonable restraint of trade.” sis. A supplier government that uses its course, power market recognize,

We proof government that even influence the pay higher price petitioners significant goods market could have no claim to power conclusively immunity. does not antitrust See Maj. demonstrate op. 250-51; Areeda & D. I P. that their Turner, succeeded because it was ¶ 206 (1978). On the persuasive. coercive rather than other Antitrust Law Balanced hand, members of industry that en against First Amendment gaged in a successful writing letter cam rights speak petition govern- and to paign government to influence pass leg ment, however, protect is the need to effectively islation increasing profit government, purchaser, as a from the eco- margins would part have taken protected pressure suppliers nomic acting in con- рolitical activity. See Eastern R.R. Presi approach today cert. The we have outlined dents v. Noerr Freight, Motor Conference pro- intended to afford Inc., 5 L.Ed.2d tection of the Sherman Act without in- (1961). difficulty case, in this fringing degree upon avoidable petitioners where directed at rights First Amendment of those whose expressive could be either —which petition goes beyond pure redress determining coercive —is they whether in speech boycott. to take the form of a prevailed fact political because of appeal or might. commercial VII. I do not believe the answer lies in the We therefore vacate the order entered majority’s analysis petitioners’ subjec the Commission and remand the ease for motivation, tive Supreme nor proceedings further consistent with this compel Court’s cases that sort of examina opinion. disposition, view of this we tion. Allied Tube does draw a distinction need petitioners’ not now consider the con- activity between commercial political with tention that the Commission’s order is over- impact political activity with commer ly reasonably broad and not related to the impact. cial 108 majori S.Ct. at 1941. The purposes

remedial According- of the Act. 249-50, ty however, at appears equate ly, petition granted part for review is in political altruism, activity with requiring part. and denied in petitioners have the Sixth Amendment So ordered. interests of primarily their clients in mind they if successfully are to claim SILBERMAN, Judge, Circuit engaging political in speech. setting concurring: of reimbursement publicly ap levels for I fully concur comprehen- in the court’s pointed issue, political defense counsel is a opinion, except sive for its reliance on the though, self-interest does Lawyer’s Trial commercial I motivation. strip speech political of its charac that, minimum, think it say fair to at a activity ter. The protected held to be in mixed, their motivation I do not Noerr designed to harm truckers and think it necessary or in desirable this case help 142-44, the railroads. 365 at U.S. 81 impulses determine which of the two 532-33; see also United Mine S.Ct. at Rather, predominates. my it is 657, view that Pennington, Workers v. 381 U.S. 667- Supreme 70, Court’s cases 1585, 1592-93, hold that certain 85 14 S.Ct. L.Ed.2d 626 techniques traditionally proscribed may (1965). Similarly, the Court Allied Tube in themselves be used to characterize acknowledged lobbying conduct to remove political regard- commercial rather than chlo Claiborne Hardware polyvinyl although boycotters, threat” of “competitive protected, injuring private parties, 108 S.Ct. at did not aim at de- could be ride conduit in Claiborne stroying “legitimate boycotters competition,” 458 U.S. and even the Hardware, and that in Allied majority draws at 102 S.Ct. at from which Tube the Court observed “the test, obviously seeking boycotters were the motivation See not stand prof- them. were consumers did legislation who beneficial (app.), financially lessening competi- 102 S.Ct. at 3437 it from a at boycotted tion market.” 108 S.Ct. at (app.). added). words, (emphasis In other test as difficulty with the motivation regardless boycotters’ psycho- exact sharply illustrated majority uses it motivation, logical using were not Hardware Claiborne comparing technique generally thought that is to work Longshoremen’s Associa International injury, activity market so the can char- International, Inc., Allied tion v. political. acterized as (1982) 72 L.Ed.2d (“ILA ”). boycotts I proper cases involved think the distinction Both between enterprises political activity in order to private commercial commercial must pressure longshoremen objective cases bring political such as this one—where the —the rates) (raising regardless Af protesting the Soviet invasion of is the same were boycotters originating Clai ghanistan considerations —turn on the while employed borne Hardware means sought eliciting governmen to vindicate cer rights. response. outset, tain Amendment Yet tal As I said at the if one Fourteenth government qua Hardware boycott’s gets way Claiborne nonviol one’s from the legislator protected by political persuasive were held to be because of ent elements Amendment, ness, longshore liability. using the First while the there is no But mar government qua power claims were dis ket to coerce the men’s First Amendment 226-27, id. at paragraph, missed in a economic actor creates a distortion of the brief 1664-65, despite apparent political process. market and the Since acceptance by purely polit potential has the either persuadе the Court coerce, however, see id. boycott, only proxy ical or to motivation of the we 222-26, political have for whether 102 S.Ct. at 1662-64. Motivation SCTLA relied on then, power, in the sense of the absence of desire or commercial the crucial element Tube, enrichment, nature,” Allied personal cannot be de of the “context and 1942, ease, protected degree at speech terminant of what as 108 S.Ct. of this is the political. power they enjoy. act market If If it were —since we all have none, interests— must succeeded some attention to our economic out persuasion activity. Noerr immunity political seldom invoked. and been a could be power, if But there is market one must Hardware sure, empha- Claiborne To assume, purposes, for antitrust it came into purpose boycotters’ sized that play primarily and that action,” at “influence commercial. 914, 3426, and Allied Tube 102 S.Ct. at Court, Hard- referring approach I think this Claiborne offers a reconcilia- ware, ILA, tion of Claiborne Hardware boycotters’ described the motivation hold- lacking any competition ings surely satisfactorily as “desire to lessen cannot be benefits,” reap explained Supreme or to in terms of the economic 108 S.Ct. at Court’s telling policy political objectives 1941. But I ad- think it is more views Claiborne Hardware ILA Court called that distinguished boy- vanced.1 because, railroads, Noerr designed unlike the cott “conduct not to communicate give greater suggest 1. It is true that that the Court would defer- the Claiborne Hardware Court regulation drawing appro- boycotters seeking described the "to effectu- ence to federal itself,” rights guaranteed by priate ate balance with the First Amendment. the Constitution Nevertheless, ap- juxta- 458 U.S. at posed Claiborne Hardware does not S.Ct. at objection right pear boycotts protest against only to me to be limited regulate activity. might practices. states to economic This unconstitutional to coerce.” 456 U.S. at but added). (emphasis appears It longshoremen’s

Court was troubled traditionally prohibited

use of the second- boycott,

ary see 456 U.S. at ability but not with the petitioners actually Hardware

Claiborne competition in

to reduce the market for

groceries reap Similarly, that benefit. emphasized

the Court Allied Tube standard-setting process “in- there power.” the exercise market

volve[d]

108 S.Ct. at 1941. If the Hard- Claiborne boycotters ‍‌‌‌​​​​​‌‌‌‌‌‌​‌​‌‌‌​‌​​​‌​‌​‌‌​​​​​‌‌‌‌‌‌​‌​‌​‌‍put had forth the same

ware but, consumers,

demands rather than had suppliers electricity

been the three users, private I likely

think it the Court would have fo- analysis clearly

cused its more on factors power

such as available alternative sources short, power.

—in the indicia of market agree majority

I therefore with the inquire power.

the FTC must into market “normally activity

A the sort of Act,” Noerr,

held violative of the Sherman

365 U.S. at 81 S.Ct. at but if it has and is undertaken communicative element power, pri- it

without market cannot be a activity.

marily commercial HALL,

Sydney Appellant, O. FORD, A. et al.

Claude

No. 87-7138. Appeals,

United States Court

District of Columbia Circuit.

Argued Feb. Aug.

Decided

Case Details

Case Name: Superior Court Trial Lawyers Association v. Federal Trade Commission

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 26, 1988

Citation: 856 F.2d 226

Docket Number: 86-1465

Court Abbreviation: D.C. Cir.