The Noerr-Pennington Doctrine

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, discuss and interpret the Noerr-Pennington Doctrine. The Noerr-Pennington Doctrine originated as a shield against antitrust liability and provides that concerted efforts to petition the government that would otherwise be illegal may nonetheless be protected by the First Amendment's Petition Clause when certain criteria are met. Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988). While the Supreme Court has intimated that the Noerr-Pennington doctrine may cover some lawsuits by unions or employers that are "reasonably based," BE & K Constr. Co. v. NLRB, 536 U.S. 516, 536, 122 S.Ct. 2390, 153 L.Ed.2d 499 (2002), it has exempted from such protection those employer lawsuits that are preempted by the NLRA or - as here - have an "objective that is illegal under federal law." Bill Johnson's Rests., Inc. v. NLRB, 461 U.S. 731, 737 n.5, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983); Diamond Walnut Growers, 53 F.3d at 1089. The Noerr-Pennington doctrine does not encompass the latter lawsuits because an employer's First Amendment rights "cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied in Section] 7 and protected by Section] 8(a)(1)" of the NLRA. NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); White v. Lee, 227 F.3d 1214, 1236-37 (9th Cir. 2000) (explaining that an employer's "unfair labor practice under the NLRA does not receive full First Amendment protection" because employees' associational rights limit the reach of Noerr-Pennington in the NLRA context); NLRB v. Associated Gen. Contractors of Cal., Inc., 633 F.2d 766, 772 n.9 (9th Cir. 1980) (holding employer conduct that "would otherwise be protected" under the First Amendment "may be regulated if necessary to protect substantial rights of employees or to preserve harmonious labor relations in the public interest"). United Nurses Associations of CA v. NLRB, 871 F. 3d 767 (9th Cir. 2017).