Federal Trade Commission v. Superior Court Trial Lawyers Ass'n

Citations: 107 L. Ed. 2d 851; 110 S. Ct. 768; 493 U.S. 411; 1990 U.S. LEXIS 638; 58 U.S.L.W. 3468Docket: 88-1198

Court: Supreme Court of the United States; January 22, 1990; Federal Supreme Court; Federal Appellate Court

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A group of private lawyers, acting as court-appointed counsel for indigent defendants in the District of Columbia, initiated a boycott to demand increased compensation from the District government, significantly disrupting the criminal justice system. Following the resolution of their demands, the Federal Trade Commission (FTC) filed a complaint against the Superior Court Trial Lawyers Association (SCTLA) and its officers for engaging in a conspiracy to fix prices and conduct a boycott, violating Section 5 of the FTC Act. The FTC ruled that the boycott was illegal per se and prohibited future similar actions. However, the Court of Appeals acknowledged the boycott as a "classic restraint of trade" under the Sherman Act but vacated the FTC's order, citing First Amendment protections for political expression.

The court argued that the FTC must demonstrate substantial market power to justify antitrust laws against the boycott, as the boycott was partly expressive. The ruling held that the boycott was a horizontal agreement among competitors, constituting a naked restraint of trade, regardless of the social justifications or the aim of influencing government legislation. The antitrust laws apply even if the boycott's intent was to achieve favorable legislative changes, rejecting the Noerr doctrine's applicability to horizontal boycotts for economic gain. Furthermore, the Court distinguished this case from NAACP v. Claiborne Hardware, indicating that the SCTLA's boycott aimed at securing economic advantages rather than civil rights.

Lastly, the Court criticized the Court of Appeals for introducing a new exception to antitrust liability based on a perceived expressive component of the boycott, arguing that such a component exists in all concerted refusals to do business, thus undermining the clarity of antitrust enforcement.

A court rule mandating prudent and sensitive application of antitrust laws in cases involving economic boycotts with an expressive component would undermine the integrity of those laws. The Court of Appeals misinterpreted the antitrust laws by suggesting that price-fixing and boycotts could be condemned without proof of market power, overlooking that per se rules derived from the Sherman Act carry the same authority as other statutory mandates. The court incorrectly viewed these prohibitions as mere administrative conveniences that require market power to serve a substantial governmental interest. In fact, horizontal price-fixing arrangements inherently threaten free market principles, regardless of participants' market power.

In 1982, a group of lawyers collectively decided not to represent indigent defendants in the D.C. Superior Court until their compensation was increased. The case questions whether their actions violated Section 5 of the Federal Trade Commission Act and if they were protected by the First Amendment. The burden of providing competent representation for indigent defendants is significant, with approximately 25,000 cases annually requiring court-appointed lawyers. Most appointments go to about 100 regular CJA lawyers, who primarily rely on this income. In 1974, the District set compensation rates for CJA lawyers, capped at federal levels, which have remained a concern for bar organizations since 1975. Despite attempts to advocate for higher rates, including a proposed increase to $35 per hour, the bill has not passed.

The record indicates that low fees for Criminal Justice Act (CJA) lawyers did not lead to a shortage of lawyers or ineffective representation for defendants. In August 1983, during a meeting with SCTLA officers, the Mayor expressed sympathy but stated that no funds were available for fee increases. Following this, CJA lawyers formed a 'strike committee,' agreeing to stop accepting new appointments unless fees were raised to $45 for out-of-court and $55 for in-court work. On August 11, around 100 CJA lawyers resolved to cease accepting new cases after September 6 if no fee increase legislation was passed. By September 6, approximately 90 percent of CJA lawyers refused new assignments, significantly impacting the District's criminal justice system, which faced an overwhelming case load without sufficient legal representation. Despite media attention, the Administrative Law Judge found no credible evidence that public pressure influenced the District’s response to the lawyers' demands. Within ten days, key figures in the criminal justice system recognized an impending crisis due to the boycott and urged the Mayor to enact a bill for a $35 hourly rate. The Mayor agreed to support a temporary increase to $35 and a permanent increase to $45 and $55. On September 19, CJA lawyers voted to accept the $35 offer, leading to the Judiciary Committee's recommendation for the increase, which was unanimously passed by the city council on September 20. The crisis subsided when CJA lawyers began accepting new assignments the following day.

The Federal Trade Commission (FTC) filed a complaint against SCTLA and four of its officers, alleging they conspired to restrain trade by agreeing not to compete for or accept new appointments under the Criminal Justice Act (CJA) program unless the District of Columbia increased CJA fees, effective September 6, 1983. The FTC claimed this conduct amounted to a conspiracy to fix prices and boycott, violating Section 5 of the Federal Trade Commission Act. After a three-week hearing, the Administrative Law Judge (ALJ) confirmed the allegations but dismissed the complaint, suggesting the boycott's effects were beneficial as it led to higher fees and better representation for indigent defendants. However, the FTC disagreed, stating the boycott raised prices and imposed substantial anticompetitive effects, costing the city an additional $4 million to $5 million annually for legal services. The FTC rejected the ALJ's finding of harmlessness and entered a cease-and-desist order against future boycotts.

The Court of Appeals vacated the FTC's order and remanded the case to evaluate whether the respondents held significant market power. It acknowledged that the boycott constituted a restraint of trade under the Sherman Act but recognized an element of expression that warranted First Amendment protection, noting that boycotts have historically been used to convey political messages. The court was not convinced by the respondents' defenses based on prior legal precedents but acknowledged the political aspect of their actions.

Under United States v. O'Brien, a restriction on expression must be essential to an important governmental interest and cannot rely on a presumption of harm. The court expressed concerns about a unique holding from the Court of Appeals, granting certiorari to both the FTC and respondents. The cross-petition argued that the respondents' boycott was either beyond the Sherman Act's scope or protected by the First Amendment. The court acknowledged differing opinions on the enforcement proceeding's wisdom but clarified that it would not assess the social utility or wisdom of price-fixing agreements.

Both the ALJ and the FTC concluded that the boycott constituted a clear restraint of trade under Section 1 of the Sherman Act and violated Section 5 of the FTC Act. Prior to the boycott, CJA lawyers competed independently, but the boycott aimed to raise prices through a concerted refusal to serve a crucial customer, which exemplified price-fixing. This horizontal arrangement was deemed a "naked restraint" on price and output.

Although the city has a constitutional obligation to provide representation to indigent defendants, and increased rates might enhance service quality, these factors did not justify the unlawful restraint of trade. The court reiterated that the Sherman Act is based on the principle that competition leads to lower prices and improved goods and services, emphasizing that all aspects of a transaction benefit from the freedom to choose among alternatives.

The quality of legal advocacy is as critical as engineering design when evaluating legality under the Sherman Act. Social justifications for a restraint of trade do not render it lawful, as the Act's policy prohibits assessing whether competition is beneficial. Respondents' argument—claiming their boycott is permissible due to setting reasonable prices—has been rejected in previous cases; the legality of fixed prices does not excuse anticompetitive behavior. The Sherman Act applies regardless of the intent to enact favorable legislation.

In the Noerr case, the Supreme Court addressed whether a publicity campaign aimed at harming the trucking business violated the Sherman Act, determining that efforts to influence legislation are not inherently illegal even if they have anticompetitive motives. However, in this context, the boycott aimed to secure legislation, resulting in a restraint of trade with anticompetitive effects, regardless of legislative outcomes.

Furthermore, the Noerr doctrine does not provide blanket immunity for all attempts to influence government action. The precedent established in Allied Tube & Conduit Corp. clarifies that not every concerted effort to influence the government is protected, particularly if it involves horizontal price agreements or conspiracies aiming for economic advantages through coercive means. Thus, the notion that firms could escape liability by framing their actions as efforts to prompt legislative change is fundamentally flawed.

SCTLA claims that its conduct, potentially in violation of the Sherman Act and the Federal Trade Commission Act, is protected under the First Amendment, citing NAACP v. Claiborne Hardware Co. In that case, a boycott by black citizens against white merchants was deemed protected because it was a nonviolent, politically motivated effort to achieve constitutional rights. SCTLA argues that its activities to promote a boycott and lobby for legislation are similarly protected. However, the FTC order specifically targets the concerted refusal of CJA lawyers to accept assignments until their compensation increases, which is aimed at securing an economic advantage for the participants. This is fundamentally different from the Claiborne Hardware boycott, which sought equal treatment rather than financial gain. The FTC maintains that the lawyers’ boycott is an economic boycott, which is not protected in the same manner as the political boycott in Claiborne Hardware. The precedent indicates that while peaceful political activities may be protected, economic boycotts intended to benefit participants financially remain subject to regulation. Thus, the lawyers' actions are deemed a violation of antitrust laws, and the defenses raised by SCTLA are rejected.

The Court of Appeals established a new exception to per se antitrust rules, originating from United States v. O'Brien, which involved a defendant burning his Selective Service registration to express antiwar beliefs. The Court affirmed his conviction, citing the government's interest in regulating the non-speech element of his conduct as a valid justification for incidental restrictions on First Amendment rights. 

In contrast, the Court of Appeals determined that boycotts with an expressive component require a more nuanced application of antitrust laws, asserting that the government must prove, rather than assume, that the boycotters possess market power to justify restrictions on their expressive conduct. This led to the conclusion that per se analysis should not apply to such boycotts.

The excerpt critiques the Court of Appeals' reasoning, identifying two main flaws: it overstates the importance of the expressive aspect of the boycott while undermining the significance of the violated legal rules. The assumptions underlying the Court of Appeals' conclusion suggest that most economic boycotts lack an expressive element and that the prohibitions against price fixing and boycotts are merely for administrative convenience, lacking substantial governmental interest unless market power is established.

Moreover, it argues that even if these assumptions were accurate, the O'Brien case would not protect the respondents’ boycott, as the government's interest in maintaining uniform antitrust rules can be compelling enough to satisfy the O'Brien standard. The text emphasizes that the efficiency of per se rules is crucial to avoid extensive and complicated economic investigations and that allowing exceptions could complicate antitrust enforcement significantly. Finally, it asserts that every concerted refusal to engage in business inherently has an expressive component, challenging the Court of Appeals' characterization of the boycott and the antitrust laws.

Competitors engaging in communication about their objectives and methods can lead to explicit price-fixing agreements, which should not be treated with leniency. After establishing their demands, boycotters communicate these to their targets, asserting that they will not conduct business until their conditions are met, a common characteristic of effective boycotts. Additionally, boycotters may seek public support, generating publicity that is not inherently part of the boycott itself; newsworthiness can arise from various activities, including those that are prohibited due to their public impact. Thus, the expressive component of a boycott does not grant it immunity under antitrust laws, and a court requirement for sensitivity in such cases would undermine these laws.

Moreover, the Court of Appeals incorrectly assumed that antitrust laws allow for price-fixing and boycott condemnation without evidence of market power, suggesting that the per se prohibition is merely an administrative convenience rather than a statutory requirement. However, the per se rules, as judicial interpretations of the Sherman Act, hold the same legal weight as statutory commands and are rooted in the understanding that such practices significantly harm competition.

Antitrust analysis follows two paths: one categorizes inherently anticompetitive agreements as illegal per se, while the other requires a detailed examination of specific business practices. Judicial experience can lead to a presumption that certain restraints are unreasonable. The per se rules serve a protective function similar to regulations on stunt flying or speeding, aimed at safeguarding public interest, even if not all violations result in harm.

Skilled drivers and pilots engaging in expressive conduct, such as painting messages or attaching streamers, can still be subject to legal enforcement without evidence of harm, due to per se rules justified by administrative convenience and the inherent threat their actions pose to public safety. The unpredictability of even proficient individuals can lead to dangerous situations, reinforcing the idea that law compliance is paramount for safety. Similarly, boycotts and price-fixing agreements among competitors threaten market dynamics, regardless of the size of the participants. Even small conspirators can disrupt competition, leading to potential consumer harm. Justice Douglas's commentary in United States v. Socony-Vacuum Oil Co. emphasizes that the effectiveness of price-fixing agreements is multifaceted, but such agreements are uniformly prohibited due to their threat to economic stability. While some arrangements may be less harmful, the underlying assumption that a boycott is harmless without proof of market power contradicts established antitrust principles. The Court of Appeals' decision regarding the applicability of per se rules to a lawyers' boycott is reversed, and the case is remanded for further proceedings. Justice Brennan partially concurs and dissents.

The Court concludes that the boycott by the Superior Court Trial Lawyers Association (SCTLA), in which members collectively refused to represent indigent criminal defendants unless compensated more, does not fall clearly outside the Sherman Act nor receive automatic immunity from antitrust regulation under the First Amendment. However, the Court's assertion that the Federal Trade Commission (FTC) could deem the boycott illegal under the per se rule is disputed, as it suggests that political boycotts can be presumed illegal without evidence of actual harm to competition. The dissent emphasizes the importance of expressive boycotts as a form of political communication protected by the First Amendment, asserting that no antitrust liability should attach when a group influences government policy through persuasive ideas rather than economic coercion. The dissenting opinion aligns with a prior Court of Appeals ruling, which stated that an antitrust violation requires proof of market power—defined as the ability to profitably raise prices or act differently from a perfectly competitive market. It argues that the government should not presume antitrust violations in expressive boycotts but rather employ a more detailed analysis, known as the rule of reason, to determine legality.

The per se rule establishes a presumption of illegality for certain business practices, as recognized by Justice Stevens, who notes that this rule enhances efficiency and certainty in legal proceedings despite the potential for misclassification of some reasonable agreements as unreasonable. This approach allows the Court to decisively condemn practices based on established experiences with specific restraints. However, in First Amendment cases, the government cannot broadly categorize types of speech as harmful without a detailed examination, particularly when such categorizations involve public debate. Regulations must be narrowly tailored to address specific evils, avoiding broad and indiscriminate restrictions on free expression. Previous rulings, such as in Speiser v. Randall, demonstrated that presumptions against individuals must not infringe on protected speech without a compelling state interest. Similarly, in The Florida Star v. B.J.F., the court emphasized the necessity of case-by-case evaluations rather than automatic liability for the publication of truthful information.

The FTC cannot apply a presumption of illegality through a per se rule without considering the specific factual context of the case. The effectiveness of the Trial Lawyers' boycott likely stemmed from the persuasive nature of their message rather than coercive economic actions. When a boycott aims to garner public support for legislation, it operates politically, particularly when directed at governmental entities. In this instance, demand for legal services under the Criminal Justice Act (CJA) is mandated by the Sixth Amendment, and the fulfillment of this demand is influenced by the political choices of local and federal officials.

The FTC's recognition of typical boycotts as mechanisms that create monopolistic entities is contrasted with the unique nature of this boycott, which may have influenced the District government to adjust compensation for lawyers through shifts in political attitudes rather than through supply restrictions. The Trial Lawyers' campaign highlighted the inadequacy of lawyer compensation, garnering public sympathy that encouraged officials to raise pay without fear of political backlash—an outcome not characterized by market power or cartel behavior. The Court of Appeals indicated that the boycott could have led to a rate increase by altering public perception, a point overlooked by the majority. The historical context shows that pre-boycott compensation rates for lawyers had been unreasonably low and stagnant despite significant inflation, further emphasizing the legitimacy of the Trial Lawyers' cause.

In 1970, CJA lawyers earned approximately $7.80 per hour for out-of-court work and $11.70 for in-court work. By 1983, billing rates for private attorneys with 11 to 20 years of experience had risen to about $123 per hour, while those with less than two years earned $64 per hour. Attorneys under the Equal Access to Justice Act received $75 per hour, with potential upward adjustments. Testimony before Congress indicated that current CJA compensation rates often failed to cover the necessary overhead for appointed attorneys. Concerns about low CJA fees emerged as early as 1975, with the Austern-Rezneck Report stating that inadequate rates drove skilled attorneys away and resulted in subpar representation. The report recommended an increase to $40 per hour with caps of $800 for misdemeanors and $1,000 for felonies to ensure effective legal representation. In 1982, the Horsky Report echoed this recommendation. A proposed bill to raise the hourly rate to $50 was introduced but did not advance. In September 1982, SCTLA officials sought support for increased compensation, receiving sympathetic responses but no public endorsements from key figures. In March 1983, a revised bill proposing a $35 per hour rate for CJA lawyers was introduced.

A city council Judiciary Committee hearing revealed broad support for a bill to increase Compensation for Criminal Justice Act (CJA) rates, with no opposition voiced. Concerns were raised by the Executive Office of the District of Columbia Courts regarding funding. The Court of Appeals indicated that key city officials, including Mayor Barry, appeared sympathetic to the goals of boycotters, potentially supporting the boycott to strengthen the case for a rate increase. Evidence suggested that the Trial Lawyers’ campaign effectively influenced city officials to raise CJA compensation without public backlash, indicating their success stemmed from political rather than economic power. The majority opinion allows the Federal Trade Commission (FTC) to regulate expressive boycotts without requiring proof of market power or anticompetitive effects, which the dissent argues contradicts First Amendment protections. The dissent emphasizes that regulations must allow for ample alternative communication channels, asserting that the unique nature of boycotts as a form of political speech should exempt them from per se antitrust rules, as they are crucial for expressing dissent and garnering public support.

Boycotts have historically been significant in American political discourse, from early protests against the Stamp and Townsend Acts to modern movements such as the Montgomery bus boycott and efforts to ratify the Equal Rights Amendment. Recent boycott actions have targeted a variety of products and countries, underscoring their role in public expression. Legal precedents highlight that boycotts serve as a traditional means of communicating thoughts and addressing public issues, necessitating careful scrutiny of any restrictions imposed on them due to their expressive nature. The Court acknowledges that while boycotts contain an expressive component, this does not exempt them from antitrust scrutiny. However, it argues that political boycotts should not be condemned under the per se rule, a stance the dissenting opinion challenges. The dissent emphasizes that expressive boycotts, particularly those aimed at political or social change, are constitutionally protected activities. The dissent critiques the majority's viewpoint, arguing that the motivation behind a boycott does not diminish its expressive character, referencing the precedent set in NAACP v. Claiborne Hardware, where civil rights boycotts were recognized as political expression.

The Court acknowledges substantial media coverage of the boycott but argues that this does not negate its expressive nature. The SCTLA’s efforts to engage the public and government suggest a reliance on political persuasion rather than economic coercion. The Trial Lawyers' refusal to accept appointments effectively communicated their strong opposition to inadequate CJA compensation rates, illustrating their commitment and willingness to endure hardship for their cause. This form of protest, akin to hunger strikes, conveys deeper emotional messages than traditional forms of communication, highlighting the First Amendment's protection of expressive actions, including boycotts. Boycotts serve as crucial tools for marginalized groups lacking resources to advocate effectively, historically used for significant political movements. Concerns expressed by the majority about equating this boycott with typical economic boycotts are unfounded; the Trial Lawyers aimed to garner public support rather than exert market power. The distinction between boycotts targeting governmental entities versus private parties further underscores the unique nature of this case, reinforcing that the expressive intent differentiates it from other economically coercive boycotts.

The government possesses unique options not available to private parties, particularly in this case where a boycott targeted a legislative body capable of ending it by mandating pro bono representation for indigent defendants by all District Bar members. The effectiveness of such a boycott likely stems from political influence rather than market power. The Court's apprehension regarding the per se rule's relevance is unfounded, as there has been a trend toward employing rule-of-reason analysis in group-boycott cases. The distinction between per se and rule-of-reason analysis is often blurred, requiring context-specific inquiries into market conditions to substantiate anticompetitive behavior assumptions. The nature of the Trial Lawyers' campaign is expressive, setting it apart from typical antitrust-targeted boycotts. Justice Blackmun, while concurring in part and dissenting in part, expresses skepticism about the necessity of a remand for fact-finding on the market power of the Superior Court Trial Lawyers Association. He notes that the boycott was directed at governmental entities that could easily nullify it by enforcing pro bono representation. Attorneys have obligations as officers of the court, not only driven by ethical considerations but also by enforceable legal mandates. Consequently, the Trial Lawyers' boycott lacked substantial economic power, unable to coerce the District through supply restrictions in legal services.

The Trial Lawyers' boycott forced the government to choose between breaking the boycott or accepting a rate increase, influenced more by political considerations than economic ones. Public opinion favored the boycott, making enforcement unpopular, and District officials may have been inclined to support the rate increase publicly, viewing it as a politically advantageous "emergency." The Trial Lawyers lacked market power, as their success depended on political persuasion rather than economic leverage. The judgment affirmed the application of United States v. O'Brien to disallow a per se rule against the boycott but reversed the remand to the FTC for a market power assessment. The excerpt references the Federal Trade Commission Act, which prohibits unfair competition and deceptive practices, and the First Amendment, which protects free speech and assembly. Additionally, it notes that only a few indigent defendants were represented by third-year law students or pro bono private counsel, while regular CJA lawyers typically do not handle civil or certain criminal cases due to their demanding schedules. The ALJ reported that only a limited number of CJA regulars continued to accept assignments, a finding that may not have been fully endorsed by the FTC. The FTC acknowledged that the District's change in position was driven by a crisis linked to the lawyers' actions, rather than public pressure. Commissioner Pertschuk dissented regarding the use of FTC resources for a complaint but did not dispute the allegation of a legal violation.

Contracts, combinations, or conspiracies that restrain trade or commerce across states or with foreign nations are deemed illegal. Individuals or entities engaging in such illegal agreements can be charged with a felony, facing fines up to one million dollars for corporations and up to one hundred thousand dollars for individuals, or imprisonment for up to three years, or both, as determined by the court. 

The Federal Trade Commission (FTC) found that the city's procurement of Criminal Justice Act (CJA) legal services for indigents is based on competitive pricing, requiring the city to attract enough lawyers to meet its needs. The city competes with other legal service purchasers, and its pricing reflects this competition. An increase in the CJA fee was deemed necessary to retain competent lawyers, indicating that the city's previous pricing was adequate to secure the needed legal services. 

The Court of Appeals supported this view, agreeing with the FTC that CJA regulars act as competitors in an antitrust context, as they provide the same service and could collectively raise prices through output restrictions. The preference of the D.C. government to offer a uniform price does not mitigate the anti-competitive nature of the boycott by CJA lawyers. Moreover, the origin of demand for legal services—whether due to constitutional obligations or voter demands—does not affect the legality of a collective refusal to supply services on their own terms. Ultimately, it was concluded that the petitioners engaged in a "restraint of trade" as defined by Section 1 of the antitrust laws. Additionally, the First Amendment was noted to protect nonviolent boycotts aimed at achieving social justice, as established in the Claiborne Hardware case.

Boycotters aimed to assert constitutional rights of equality and freedom rather than to harm competition or gain financially from the boycott, distinguishing their intentions from those of the petitioner, who was partially motivated by a desire to reduce competition for economic gain. The respondents claimed their boycott was akin to the Claiborne Hardware boycott, which sought to uphold constitutional rights, but it is clarified that not all boycotts with constitutional motivations are protected. The ruling emphasized that protecting boycotts based solely on intent would undermine antitrust laws and allow circumvention of regulations by claiming constitutional concerns. The court recognized the government's strong interest in regulating economic conditions, even when such regulations impact free speech and association rights. It was noted that a nonviolent boycott could disrupt local economies, and regulations could limit business associations aimed at suppressing competition. The court also reiterated that when a combination of speech and nonspeech elements exists, the government can impose regulations on the nonspeech aspects if they further important governmental interests without suppressing free expression.

Per se rules in antitrust law are established to prevent the extensive investigation of market conditions in cases where anticompetitive conduct is highly likely, rendering such inquiries unjustifiable. The Court of Appeals failed to recognize critical nuances, particularly the requirement for a substantial potential impact on competition to justify per se condemnation. While the per se rule against price fixing is often viewed as a matter of administrative efficiency, it is not merely a convenience; it serves to deter harmful practices without necessitating proof of market power. Price-fixing agreements are rarely beneficial and pose significant risks to society. The courts prefer to categorically condemn price-fixing to avoid the complications and delays that arise from proving market power, which could weaken deterrence against such conduct. The text emphasizes that the existence of a price-fixing agreement itself defines market dynamics, as firms lacking market power are unlikely to engage in detrimental conspiracies. Furthermore, the case at hand involves both a horizontal price-fixing arrangement and a boycott, the latter of which has been analyzed separately in previous cases involving non-price restraints.

No price-fixing element was present in the boycotts referenced in Justice Brennan's opinion, which largely overlooks this aspect of the respondents' actions. On remand, the Court of Appeals is instructed to evaluate the respondents' objections regarding the Commission's order. While the author agrees with Parts I-IV of the Court's opinion, they contest the irrelevance of the compensation rates prior to the boycott and the lack of other avenues for the Trial Lawyers to express their concerns. They also dispute the substantiality of the government's interest in applying the per se rule in this context, arguing that First Amendment protections should not be sacrificed for administrative efficiency. The author notes that while speculation about economic harm from boycotts can justify the per se rule in typical antitrust cases, expressive boycotts should be analyzed under the rule of reason, requiring proof of actual anticompetitive effects. They reference the O'Brien case, which allows for incidental restrictions on speech when a government interest is substantial and unrelated to suppressing free expression. Furthermore, the author highlights that the FTC's Administrative Law Judge found no evidence linking the government’s decision on compensation rates to the Trial Lawyers' campaign, a point that the majority opinion overlooks by neglecting the Court of Appeals' response to the ALJ's findings.

The Commission implicitly rejected the trial examiner's findings regarding the SCTLA boycott. Various organizations supported the bill, including the SCTLA, D.C. Bar, National Lawyers Guild, and others. Criminal law offers procedural safeguards against overbroad applications of laws that could infringe on First Amendment rights, allowing defendants to claim unconstitutionality as a defense. The per se rule's application in this case restricts the Trial Lawyers' opportunity to argue this point. If a boycott employs economic power unlawfully to communicate with the government, it cannot invoke First Amendment protections, similar to how a terrorist cannot use violence for political expression without facing legal consequences. However, there is uncertainty regarding whether the SCTLA boycott involved economic coercion, necessitating proof of market power before deeming it an unfair competitive method. The lawyers actively sought media coverage for their strike, resulting in extensive reporting, including endorsements from major publications like the Washington Post and New York Times. Despite the general condemnation of group boycotts, the document notes that boycotts are complex and should not be treated as a singular type of activity.

The excerpt addresses the complexities surrounding the per se rule against group boycotts within antitrust law, noting significant confusion about its scope compared to other aspects of the per se doctrine. It highlights that the classification of group boycotts should not be expanded broadly and is typically limited to situations where firms with market power boycott suppliers or customers to deter competition. The excerpt emphasizes the necessity for careful analysis in the current case involving a unique boycott by Trial Lawyers, distinguishing it from precedents. It references the Court's decision in Mallard v. United States District Court, clarifying that while the case involved the limits of a federal statute regarding attorney representation of indigent litigants, it did not address the inherent authority of federal courts to compel attorney service. The Court examined various statutes that do enable courts to require attorney service, providing context for its ruling.