Federal Trade Commission v. Superior Court Trial Lawyers Association/Concurrence Brennan

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Concurring Opinions

Justice BRENNAN, with whom Justice MARSHALL joins, concurring in part and dissenting in part.

The Court holds today that a boycott by the Superior Court Trial Lawyers Association (SCTLA or Trial Lawyers), whose members collectively refused to represent indigent criminal defendants without greater compensation, constituted conduct that was neither clearly outside the scope of the Sherman Act nor automatically immunized from antitrust regulation by the First Amendment. With this much I agree. [1] In Part V of its opinion, however, the Court maintains that under the per se rule the Federal Trade Commission (FTC or Commissioner) could find the boycott illegal because it might have implicated some of the concerns underlying the antitrust laws. I cannot countenance this reasoning, which upon examination reduces to the Court's assertion that since the government may prohibit airplane stunt flying and reckless automobile driving as categorically harmful, see ante, at 433-434, it may also subject expressive political boycotts to a presumption of illegality without even inquiring as to whether they actually cause any of the harms that the antitrust laws are designed to prevent. This non sequitur cannot justify the significant restriction on First Amendment freedoms that the majority's rule entails. Because I believe that the majority's decision is insensitive to the venerable tradition of expressive boycotts as an important means of political communication, I respectfully dissent from Part V of the Court's opinion.

* The Petition and Free Speech Clauses of the First Amendment guarantee citizens the right to communicate with the government, and when a group persuades the government to adopt a particular policy through the force of its ideas and the power of its message, no antitrust liability can attach. "There are, of course, some activities, legal if engaged in by one, yet illegal if performed in concert with others, but political expression is not one of them." Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290, 296, 102 S.Ct. 434, 437, 70 L.Ed.2d 492 (1981). But a group's effort to use market power to coerce the government through economic means may subject the participants to antitrust liability.

In any particular case, it may be difficult to untangle these two effects by determining whether political or economic power was brought to bear on the government. The Court of Appeals thoughtfully analyzed this problem and concluded, I believe correctly, that there could be no antitrust violation absent a showing that the boycotters possessed some degree of market power that is, the ability to raise prices profitably through economic means or, more generally, the capacity to act other than as would an actor in a perfectly competitive market. The court reasoned that "[w]hen the government seeks to regulate an economic boycott with an expressive component . . . its condemnation without proof that the boycott could in fact be anticompetitive ignores the command of [United States v.] O'Brien that restrictions on activity protected by the First Amendment be 'no greater than is essential' to preserve competition from the sclerotic effects of combination." 272 U.S.App.D.C. 272, 295, 856 F.2d 226, 249 (1988) (quoting United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968)) (emphasis in original). The concurring judge added that if the participants wielded no market power, "the boycott must have succeeded out of persuasion and been a political activity." 272 U.S.App.D.C., at 300, 856 F.2d, at 254 (opinion of Silberman, J.). This approach is quite sensible, and I would affirm the Court of Appeals' decision to remand the case to the FTC for a showing of market power.

The issue in this case is not whether boycotts may ever be punished under § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1), consistent with the First Amendment; rather, the issue is how the government may determine which boycotts are illegal. Two well-established premises lead to the ineluctable conclusion that when applying the antitrust laws to a particular expressive boycott, the government may not presume an antitrust violation under the per se rule, but must instead apply the more searching, case-specific rule of reason.

First, the per se rule is a presumption of illegality. [2] As Justice STEVENS has written:

"The costs of judging business practices under the rule of reason, however, have been reduced by the recognition of per se rules. Once experience with a particular kind of restraint enables the Court to predict with confidence that the rule of reason will condemn it, it has applied a conclusive presumption that the restraint is unreasonable. As in every rule of general application, the match between the presumed and the actual is imperfect. For the sake of business certainty and litigation efficiency, we have tolerated the invalidation of some agreements that a fullblown inquiry might have proved to be reasonable." Arizona v. Maricopa County Medical Society, 457 U.S. 332, 343-344, 102 S.Ct. 2466, 2472-73, 73 L.Ed.2d 48 (1982) (emphasis added; footnotes omitted).

We have freely admitted that conduct condemned under the per se rule sometimes would be permissible if subjected merely to rule-of-reason analysis. See Maricopa, supra, at 344, n. 16, 102 S.Ct., at 2473, n. 16; Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 50, n. 16, 97 S.Ct. 2549, 2557, n. 16, 53 L.Ed.2d 568 (1977); United States v. Topco Associates, Inc., 405 U.S. 596, 609, 92 S.Ct. 1126, 1134, 31 L.Ed.2d 515 (1972).

Second, the government may not in a First Amendment case apply a broad presumption that certain categories of speech are harmful without engaging in a more particularized examination. [3] As the Court of Appeals perceptively reasoned, "the evidentiary shortcut to antitrust condemnation without proof of market power is inappropriate as applied to a boycott that served, in part, to make a statement on a matter of public debate." 272 U.S.App.D.C., at 296, 856 F.2d, at 250. "Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals"; rather, government must ensure that, even when its regulation is not content based, the restriction narrowly "focuses on the source of the evils the [State] seeks to eliminate." Ward v. Rock Against Racism, 491 U.S. 781, 799, and n. 7, 109 S.Ct. 2746, 2758, and n. 7, 105 L.Ed.2d 661 (1989). This is what it means for a law to be "narrowly tailored" to the State's interest. See Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 478, 109 S.Ct. 3028, 3033, 106 L.Ed.2d 388 (1989); Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 2501, 101 L.Ed.2d 420 (1988). "Broad prophylactic rules in the area of free expression are suspect." NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963).

In Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958), for example, we invalidated a state program under which taxpayers applying for a certain tax exemption bore the burden of proving that they did not advocate the overthrow of the United States Government. We held that the presumption against the taxpayer was unconstitutional because the State had "no such compelling interest at stake as to justify a short-cut procedure which must inevitably result in suppressing protected speech." Id., at 529, 78 S.Ct., at 1344. More recently, we determined that the First Amendment prohibits a State from imposing liability on a newspaper for the publication of embarrassing but truthful information based on a "negligence per se " theory. See The Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989). In language applicable to the instant case, we rejected "the broad sweep" of a standard where "liability follows automatically from publication," and we instead required "case-by-case findings" of harm. Id., at 539, 109 S.Ct., at 2612. Similarly, I would hold in this case that the FTC cannot ignore the particular factual circumstances before it by employing a presumption of illegality in the guise of the per se rule.

The Court's approach today is all the more inappropriate because the success of the Trial Lawyers' boycott could have been attributable to the persuasiveness of its message rather than any coercive economic force. When a boycott seeks to generate public support for the passage of legislation, it may operate on a political rather than economic level, especially when the government is the target. Here, the demand for lawyers' services under the Criminal Justice Act (CJA) is created by the command of the Sixth Amendment. How that demand is satisfied is determined by the political decisions of the Mayor, city council, and, because of the unique status of the District of Columbia, the Federal Government as well. As the FTC recognized, see In re Superior Court Trial Lawyers Assn., 107 F.T.C. 510, 572-574 (1986), a typical boycott functions by transforming its participants into a single monopolistic entity that restricts supply and increases price. See, e.g., FTC v. Indiana Federation of Dentists, 476 U.S. 447, 459, 106 S.Ct. 2009, 2018, 90 L.Ed.2d 445 (1986); National Collegiate Athletic Assn. v. Board of Regents of Univ. of Oklahoma, 468 U.S. 85, 109-110, 104 S.Ct. 2948, 2964-2965, 82 L.Ed.2d 70 (1984).

The boycott in this case was completely different: it may have persuaded the consumer of the Trial Lawyers' services-the District government-to raise the price it paid by altering the political preferences of District officials. Prior to the boycott, these officials perceived that at a time of fiscal austerity, a pay raise for lawyers who represented criminal defendants was not likely to be well received by the voters, whatever the merits of the issue. The SCTLA campaign drew public attention to the lawyers' plight and generated enough sympathy among city residents to convince District officials, many of whom were already favorably inclined toward the Trial Lawyers' cause, that they could augment CJA compensation rates without risking their political futures. Applying the per se rule to such a complex situation ignores the possibility that the boycott achieved its goal through a politically driven increase in demand for improved quality of representation, rather than by a cartel-like restriction in supply. The Court of Appeals concluded that "it [was] . . . possible that, lacking any market power, [the Trial Lawyers] procured a rate increase by changing public attitudes through the publicity attending the boycott," 272 U.S.App.D.C., at 297, 856 F.2d, at 251, or that "the publicity surrounding the boycott may have served . . . to dissipate any public opposition that a substantial raise for lawyers who represent indigent defendants had previously encountered." Ibid. [4] The majority is able to reach the contrary conclusion only by disregarding the long history of attempts to raise defense lawyers' compensation levels in the District and the virtually unanimous support the Trial Lawyers enjoyed among members of the bar, the judiciary, and, indeed, officials of the city government.

As the Court appears to recognize, see ante, at 421, preboycott rates were unreasonably low. City officials hardly could have reached a different conclusion. After 1970, the CJA set fees at $30 per hour for court time and $20 per hour for out-of-court time, and, despite a 147 percent increase in the Consumer Price Index, compensation remained at those levels until the boycott in 1983. Calculated in terms of 1970 dollars, at the time of the boycott CJA lawyers earned approximately $7.80 per hour for out-of-court time and $11.70 for in-court time. In contrast, in 1983 the typical billing rate for private attorneys in major metropolitan areas with 11 to 20 years of experience was $123 per hour, and the rate for those with less than two years of experience was $64 per hour. See App. in No. 86-1465 (CADC), pp. 678-679, 807. Even attorneys receiving compensation under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(2)(A)(ii) (1982 ed.), obtained fees of $75 per hour, with the possibility of upward adjustments to still larger sums. The Chairperson of the Judicial Conference Committee to Implement the Criminal Justice Act testified before Congress that "generally, the present Criminal Justice Act compensation rates do not even cover the appointed attorney's office overhead expenses related to time devoted to representation of defendants under the Act." Criminal Justice Act: Hearings on H.R. 3233 before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 98th Cong., 1st Sess., 22 (1983) (statement of Hon. Thomas J. MacBride). David B. Isbell, then District of Columbia Bar president, warned that "unrealistic and unreasonable compensation rates have hampered the D.C. CJA program in attracting and retaining significant numbers of qualified criminal defense counsel." Id., at 306.

The legal community became concerned about the low level of CJA fees as early as 1975. The Report on the Criminal Defense Services in the District of Columbia by the Joint Committee of the Judicial Conference of the District of Columbia Circuit and the District of Columbia Bar (Austern-Rezneck Report) concluded that the prevailing rates "drove talented attorneys out of CJA practice, and encouraged those who remained to do a less than adequate job on their cases." 272 U.S.App.D.C., at 275, 856 F.2d, at 229. The Austern-Rezneck Report recommended that CJA lawyers be paid $40 per hour for time spent in or out of court, subject to a ceiling of $800 for a misdemeanor case and $1,000 for a felony case. The Report characterized this increase as " 'the absolute minimum necessary to attract and hold good criminal lawyers and assure their ability to render effective representation to their clients.' " Ibid. (quoting Austern-Rezneck Report 84).

In March 1982, the District of Columbia Court System Study Committee of the District of Columbia Bar issued the Horsky Report, which recommended the identical pay increase. See Senate Committee on Governmental Affairs, Senate Print No. 98-34, 98th Cong., 1st Sess. 69 (1983). Legislation increasing the hourly rate to $50 was then introduced in the District of Columbia Council, but the bill died in committee in 1982 without a hearing.

In September 1982, SCTLA officials began a lobbying effort to increase CJA compensation levels. They met with Chief Judge Moultrie of the District of Columbia Superior Court, Herbert Reid, who was counsel to the Mayor, and Wiley Branton, then Dean of Howard University Law School. Chief Judge Moultrie told SCTLA representatives that he thought they deserved more money, but he declined to provide them any public support on the ground that if an increase were implemented, his court might be called upon to decide its legality. See 272 U.S.App.D.C., at 275, 856 F.2d, at 229. Reid informed them that the Mayor was sympathetic to their cause but would not support legislation without the urging of Chief Judge Moultrie. Dean Branton advised that the SCTLA should do " 'something dramatic to attract attention in order to get any relief.' " Ibid.

In March 1983, District of Columbia Council Chairman David Clarke introduced a new, less ambitious bill increasing CJA lawyers' pay to $35 per hour. A wide variety of groups testified in favor of the bill at a hearing held by the city council's Judiciary Committee, reflecting an overwhelming consensus on the need to increase CJA rates. [5] No one testified against the bill, though the Executive Office of the District of Columbia Courts worried about how to fund it. The Court of Appeals concluded that "Mayor Barry and other important city officials were sympathetic to the boycotters' goals and may even have been supportive of the boycott itself," id., at 297, n. 35, 856 F.2d, at 251, n. 35, and that certain statements by the Mayor could be interpreted "as encouraging the [Trial Lawyers] to stage a demonstration of their political muscle so that a rate increase could more easily be justified to the public." Id., at 298, n. 35, 856 F.2d, at 252, n. 35.

Taken together, these facts strongly suggest that the Trial Lawyers' campaign persuaded the city to increase CJA compensation levels by creating a favorable climate in which supportive District officials could vote for a raise without public opposition, even though the lawyers lacked the ability to exert economic pressure. As the court below expressly found, the facts at the very least do not exclude the possibility that the SCTLA succeeded due to political rather than economic power. See id., at 297, 856 F.2d, at 251. The majority today permits the FTC to find an expressive boycott to violate the antitrust laws, without even requiring a showing that the participants possessed market power or that their conduct triggered any anticompetitive effects. I believe that the First Amendment forecloses such an approach.

The majority concludes that the Trial Lawyers' boycott may be enjoined without any showing of market power because "the government's interest in adhering to a uniform rule may sometimes satisfy the O'Brien test even if making an exception to the rule in a particular case might cause no serious damage." Ante, at 430 (citing United States v. Albertini, 472 U.S. 675, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985)) (emphasis added). The Court draws an analogy between the per se rule in antitrust law and categorical proscriptions against airplane stunt-flying and reckless automobile driving. See ante, at 433-434. This analogy is flawed.

It is beyond peradventure that sometimes no exception need be made to a neutral rule of general applicability not aimed at the content of speech; "the arrest of a newscaster for a traffic violation," for example, does not offend the First Amendment. Arcara v. Cloud Books, Inc., 478 U.S. 697, 708, 106 S.Ct. 3172, 3178, 92 L.Ed.2d 568 (1986) (O'CONNOR, J., concurring). Neither do restrictions on stunt flying and reckless driving usually raise First Amendment concerns. [6] But ever since Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939), we have held that even when the government seeks to address harms entirely unconnected with the content of speech, it must leave open ample alternative channels for effective communication. See Rock Against Racism, 491 U.S., at 802-803 [109 S.Ct., at 2760]; Frisby, 487 U.S., at 483-484, 108 S.Ct., at 2500-2501; Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3067, 82 L.Ed.2d 221 (1984); Metromedia, Inc. v. San Diego, 453 U.S. 490, 552, 101 S.Ct. 2882, 2915, 69 L.Ed.2d 800 (1981) (STEVENS, J., dissenting in part); Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 648, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981). Although sometimes such content-neutral regulations with incidental effects on speech leave open sufficient room for effective communication, application of the per se rule to expressive boycotts does not. The role of boycotts in political speech is too central, and the effective alternative avenues open to the Trial Lawyers were too few, to permit the FTC to invoke the per se rule in this case.

Expressive boycotts have been a principal means of political communication since the birth of the Republic. As the Court of Appeals recognized, "boycotts have historically been used as a dramatic means of communicating anger or disapproval and of mobilizing sympathy for the boycotters' cause." 272 U.S.App.D.C., at 294, 856 F.2d, at 248. From the colonists' protest of the Stamp and Townsend Acts to the Montgomery bus boycott and the National Organization for Women's campaign to encourage ratification of the Equal Rights Amendment, boycotts have played a central role in our Nation's political discourse. In recent years there have been boycotts of supermarkets, meat, grapes, iced tea in cans, soft drinks, lettuce, chocolate, tuna, plastic wrap, textiles, slacks, animal skins and furs, and products of Mexico, Japan, South Africa, and the Soviet Union. See Missouri v. National Organization for Women, Inc., 620 F.2d 1301, 1304, n. 5 (CA8), cert. denied, 449 U.S. 842, 101 S.Ct. 122, 66 L.Ed.2d 49 (1980); Note, 80 Colum.L.Rev. 1317, 1318, 1334 (1980). Like soapbox oratory in the streets and parks, political boycotts are a traditional means of "communicating thoughts between citizens" and "discussing public questions." Hague v. Committee for Industrial Organization, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.). Any restrictions on such boycotts must be scrutinized with special care in light of their historic importance as a mode of expression. Cf. Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983).

The Court observes that all boycotts have "an expressive component" in the sense that participants must communicate their plans among themselves and to their target. Ante, at 431. The Court reasons that this expressive feature alone does not render boycotts immune from scrutiny under the per se rule. Otherwise, the rule could never be applied to any boycotts or to most price-fixing schemes. On this point I concur with the majority. But while some boycotts may not present First Amendment concerns, when a particular boycott appears to operate on a political rather than economic level, I believe that it cannot be condemned under the per se rule. [7] The Court disagrees and maintains that communication of ideas to the public is a function not of a boycott itself but rather of media coverage, interviews, and other activities ancillary to the boycott and not prohibited by the antitrust laws. See ante, at 426. The Court also notes that other avenues of speech are open, because "[p]ublicity may be generated by any other activity that is sufficiently newsworthy." Ante, at 431. These views are flawed.

First, we have already recognized that an expressive boycott necessarily involves "constitutionally protected activity." NAACP v. Claiborne Hardware Co., 458 U.S. 886, 911, 102 S.Ct. 3409, 3424, 73 L.Ed.2d 1215 (1982). That case, in which we held that a civil rights boycott was political expression, forecloses the Court's approach today. In Claiborne Hardware, Justice STEVENS observed that "[t]he established elements of speech, assembly, association, and petition, 'though not identical, are inseparable' " when combined in an expressive boycott. Ibid. (citation omitted). I am surprised that he now finds that the Trial Lawyers' boycott was not protected speech. In this case, as in Claiborne Hardware, "[t]hrough the exercise of the[ir] First Amendment rights, petitioners sought to bring about political, social, and economic change." Ibid. The Court contends that the SCTLA's motivation differed from that of the boycotters in Claiborne Hardware, see ante, at 426-427, because the former sought to supplement its members' own salaries rather than to remedy racial injustice. Even if true, the different purposes of the speech can hardly render the Trial Lawyers' boycott any less expressive.

Next, although the Court is correct that the media coverage of the boycott was substantial, [8] see ante, at 414, this does not support the majority's argument that the boycott itself was not expressive. Indeed, that the SCTLA strove so mightily to communicate with the public and the government is an indication that it relied more on its ability to win public sympathy and persuade government officials politically than on its power to coerce the city economically. But media coverage is not the only, or even the principal, reason why the boycott was entitled to First Amendment protection. The refusal of the Trial Lawyers to accept appointments by itself communicated a powerful idea: CJA compensation rates had deteriorated so much, relatively speaking, that the lawyers were willing to forgo their livelihoods rather than return to work.

By sacrificing income that they actually desired, and thus inflicting hardship on themselves as well as on the city, the lawyers demonstrated the intensity of their feelings and the depth of their commitment. The passive nonviolence of King and Gandhi are proof that the resolute acceptance of pain may communicate dedication and righteousness more eloquently than mere words ever could. A boycott, like a hunger strike, conveys an emotional message that is absent in a letter to the editor, a conversation with the mayor, or even a protest march. Cf. Cohen v. California, 403 U.S. 15, 26, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971) (First Amendment protects "not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well"). In this respect, an expressive boycott is a special form of political communication. Dean Branton's advice to the Trial Lawyers-that they should do "something dramatic to attract attention"-was sage indeed.

Another reason why expressive boycotts are irreplaceable as a means of communication is that they are essential to the "poorly financed causes of little people." Martin v. Struthers, 319 U.S. 141, 146, 63 S.Ct. 862, 865, 87 L.Ed. 1313 (1943). It is no accident that boycotts have been used by the American colonists to throw off the British yoke and by the oppressed to assert their civil rights. See Claiborne Hardware, supra. Such groups cannot use established organizational techniques to advance their political interests, and boycotts are often the only effective route available to them.

Underlying the majority opinion are apprehensions that the Trial Lawyers' boycott was really no different from any other, and that requiring the FTC to apply a rule-of-reason analysis in this case will lead to the demise of the per se rule in the boycott area. I do not share the majority's fears. The boycott before us today is readily distinguishable from those with which the antitrust laws are concerned, on the very ground suggested by the majority: the Trial Lawyers intended to and in fact did "communicate with third parties to enlist public support for their objectives." Ante, at 431. As we have seen, in all likelihood the boycott succeeded not due to any market power wielded by the lawyers but rather because they were able to persuade the District government through political means. Other boycotts may involve no expressive features and instead operate solely on an economic level. Very few economically coercive boycotts seek notoriety both because they seek to escape detection and because they have no wider audience beyond the participants and the target.

Furthermore, as the Court of Appeals noted, there may be significant differences between boycotts aimed at the government and those aimed at private parties. See 272 U.S. App.D.C., at 296, 856 F.2d, at 250. The government has options open to it that private parties do not; in this suit, for example, the boycott was aimed at a legislative body with the power to terminate it at any time by requiring all members of the District Bar to represent defendants pro bono. If a boycott against the government achieves its goal, it likely owes its success to political rather than market power.

The Court's concern for the vitality of the per se rule, moreover, is misplaced, in light of the fact that we have been willing to apply rule-of-reason analysis in a growing number of group-boycott cases. See, e.g., Indiana Federation of Dentists, 476 U.S., at 458-459, 106 S.Ct., at 2017-2018; Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 293-298, 105 S.Ct. 2613, 2618-2622, 86 L.Ed.2d 202 (1985); National Collegiate Athletic Assn., 468 U.S., at 101, 104 S.Ct., at 2960; Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 9-10, 99 S.Ct. 1551, 1556-1557, 60 L.Ed.2d 1 (1979) (criticizing application of per se rule because "[l]iteralness is overly simplistic and often overbroad"). [9] We have recognized that "there is often no bright line separating per se from Rule of Reason analysis. Per se rules may require considerable inquiry into market conditions before the evidence justifies a presumption of anticompetitive conduct." National Collegiate Athletic Assn., supra, at 104, n. 26, 104 S.Ct., at 2961, n. 26.

In short, the conclusion that per se analysis is inappropriate in this boycott case would not preclude its application in many others, nor would it create insurmountable difficulties for antitrust enforcement. The plainly expressive nature of the Trial Lawyers' campaign distinguishes it from boycotts that are the intended subjects of the antitrust laws.

I respectfully dissent.


^1  I join Parts I, II, III, and IV of the Court's opinion, although, as discussed further infra, I do not agree that the unreasonableness of the preboycott rates of compensation and the fact that the Trial Lawyers enjoyed no other effective means of making themselves heard are irrelevant to the proper analysis. See ante, at 421-422.

^2  I disagree with the Court that the government's interest in employing the per se rule here is a substantial one. The per se rule's conceded service of the goals of administrative efficiency and judicial economy cannot justify its application to activity protected by the First Amendment. "[T]he First Amendment does not permit the State to sacrifice speech for efficiency." Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781, 795, 108 S.Ct. 2667, 2676, 101 L.Ed.2d 669 (1988). See also Schneider v. State, 308 U.S. 147, 161, 164, 60 S.Ct. 146, 150, 152, 84 L.Ed. 155 (1939). Insofar as the per se rule is thought warranted by a speculation that even relatively small boycotts or those without market power might nonetheless inflict some measure of economic harm, see ante, at 434-436, the rule can be applied in ordinary antitrust cases where First Amendment freedoms are not implicated. In such cases, " '[t]he conceivable social benefits [of the conduct under scrutiny] are few in principle, small in magnitude, [and] speculative in occurrence.' " Ante, at 434, n. 16 (quoting 7 P. Areeda, Antitrust Law ¶ 1509, pp. 412-413 (1986)). But where an expressive boycott is at issue, the same cannot be said; the First Amendment establishes that the social benefits involved are not "small in magnitude" or "speculative in occurrence." Hence, even if it were possible that a boycott without market power might cause anticompetitive effects-a dubious proposition, since by definition market power is the ability to alter prices-the government still should be required to proceed under the rule of reason and demonstrate that such effects are actually present in the case sub judice.

^3  In United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), the Court held: "[W]hen 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental restrictions on First Amendment freedoms. . . . [W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Id., at 376-377, 88 S.Ct., at 1678-1679.

^4  The Court quotes the finding of the FTC Administrative Law Judge (ALJ) that there was no evidence that the District government's decision to raise CJA compensation rates responded to the Trial Lawyers' campaign or to public pressure generally. See ante, at 416-417. The majority, however, conveniently omits the Court of Appeals' answer to this finding by the ALJ: "[T]he Commission did not reach the question and rejected the ALJ's findings except insofar as it expressly adopted them." 272 U.S.App.D.C., at 297, 856 F.2d, at 251. By implication, therefore, the Commission rejected the trial examiner's finding on this point.

^5  Groups testifying in favor of the bill included the SCTLA, District of Columbia Bar, D.C. Chapter of the National Lawyers Guild, Public Defender Service, D.C. Chapter of the Washington Psychiatric Society, Family Law Association, National Capitol Area Chapter of the American Civil Liberties Union, and National Center of Institutional Alternatives. See App. in No. 86-1465 (CADC), pp. 800-801.

^6  Even the criminal law, however, provides procedural safeguards to ensure that laws are not applied in an overbroad fashion to punish activity protected by the First Amendment. The defendant in a criminal trial is always able to raise the defense that the law is unconstitutional as applied to him. See, e.g., Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Application of the per se rule in the instant case denies the Trial Lawyers even this opportunity.

^7  If a boycott uses economic power in an unlawful way to send a message, it cannot claim First Amendment protection from the antitrust laws, any more than a terrorist could use an act of violence to express his political views and then assert immunity from criminal prosecution. Thus, if a cartel in a regulated industry inflicts economic injury on consumers by raising prices in order to communicate with the government, it still would be subject to the per se rule. The instant case is different: there is a genuine question whether the SCTLA boycott involved any economic coercion at all. That is why a showing of market power is necessary before the boycott can be condemned as an unfair method of competition.

^8  The lawyers actively courted press coverage of their strike. They set up "picket lines," distributed press kits, and granted interviews; the media, both local and national, responded. No fewer than 19 newspaper articles regarding the boycott appeared in the Washington Post, Washington Times, USA Today, and New York Times. The Washington Post's editorial page endorsed the boycott, opining that "[i]t is simply unfair that these fees have remained unchanged during a period when median income in the area has risen over 180 percent." Washington Post, Sept. 8, 1983, p. A20, col. 1. The New York Times reported that "[t]he unusual thing about the lawyer's . . . job action is that almost no one disagrees with their argument." N.Y. Times, Sept. 1, 1983, p. B10, col. 3. United States District Judge Harold H. Greene wrote that the Trial Lawyers "should receive the modest increase they have requested." Washington Post, Sept. 12, 1983, p. A13, col. 2. Even the Economist of London carried a story on the boycott. Sept. 17, 1983, p. 25. Nor was coverage limited to the print media. Local television and radio stations aired numerous reports of the boycott, and an account of the Trial Lawyers' plight appeared on the CBS Morning News. See App. in No. 86-1465 (CADC), pp. 921, 923, 925, 937, 949.

^9  Although "group boycotts" often are listed among the types of activity meriting per se condemnation, see, e.g., Silver v. New York Stock Exchange, 373 U.S. 341, 348, 83 S.Ct. 1246, 1252, 10 L.Ed.2d 389 (1963); White Motor Co. v. United States, 372 U.S. 253, 259-260, 83 S.Ct. 696, 699-700, 9 L.Ed.2d 738 (1963); Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 212, 79 S.Ct. 705, 709, 3 L.Ed.2d 741 (1959); Northern Pacific R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958); Associated Press v. United States, 326 U.S. 1, 12, 65 S.Ct. 1416, 1420, 89 L.Ed. 2013 (1945); Fashion Originators' Guild of America, Inc. v. FTC, 312 U.S. 457, 465-468, 61 S.Ct. 703, 706-708, 85 L.Ed. 949 (1941), we have recognized that boycotts " 'are not a unitary phenomenon.' " St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 543, 98 S.Ct. 2923, 2930, 57 L.Ed.2d 932 (1978). In fact, " 'there is more confusion about the scope and operation of the per se rule against group boycotts than in reference to any other aspect of the per se doctrine.' " Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S., at 294, 105 S.Ct., at 2619 (quoting L. Sullivan, Law of Antitrust 229-230 (1977)). We have observed that "the category of restraints classed as group boycotts is not to be expanded indiscriminately, and the per se approach has generally been limited to cases in which firms with market power boycott suppliers or customers in order to discourage them from doing business with a competitor." FTC v. Indiana Federation of Dentists, 476 U.S., at 458, 106 S.Ct., at 2018. These considerations provide additional reason to analyze the instant case with great care, because the Trial Lawyers' boycott is certainly sui generis.

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