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In a representative democracy, government must protect the rights of its citizens to express ideas, to voice grievances, and to seek to influence government. The first Amendment safeguards these fundamental political rights from government intrusion. In a free market economy, government must protect trade and commerce from activities and influences that lead to increased concentrations of economic power or that otherwise tend to restrain competition. The antitrust laws, specifically the Sherman Act, seek to safeguard the competitive process from restrictive trade practices. Conflict arises when efforts to influence government threaten to undermine competition.

Nowhere is the clash between First Amendment values and competition policy more evident than in the case of economic boycotts undertaken for political ends. This is especially true in the case of boycotts in which the participants are motivated by both political and economic concerns, so called “mixed-motive” boycotts. This tension was apparent in the recent case of FTC v. Superior Court Trial Lawyers Ass’n (SCTLA). In this case, the Supreme court held a boycott of court-appointed representation by a group of private criminal defense lawyers in the District of Columbia to be a per se violation of section 1 of the Sherman Antitrust Act and section 5 of the Federal Trade Commission Act.

I disagree with the SCTLA decision and will argue that the Court erred in its threshold determination that the boycott violated the Sherman Act. I begin with the assertion that, in resorting to a per se analysis, the Court applied the wrong analytic method. I contend that, despite the economic aspects of the SCTLA boycott, there was a sufficient expressive dimension to the conduct to warrant a more in-depth analysis than that engaged in by the Court. Applying a rule of reason analysis to the SCTLA facts, I conclude that the boycott was protected by the First Amendment and assert that, in reaching its conclusion to the contrary, the Supreme Court failed to strike an adequate balance between constitutional values and antitrust concerns. Finally, I propose a new method for balancing First Amendment interests and competition policy in boycott cases in which political and economic interests intersect. Determinations of the validity of First Amendment claims in such cases should be based not on appraisals of the primacy of one motive over the other, but on the expressive content and political context of the boycott activity. A “totality of the circumstances test” should be substituted for the “motivation test” applied by the SCTLA Court.

Publication Citation

34 Ariz. L. Rev. 709 (1992)