NOERR-PENNINGTON: SAFEGUARDING THE FIRST AMENDMENT RIGHT TO PETITION THE GOVERNMENT
Stuart N. Senator & Gregory M. Sergi1
The right to petition the government is guaranteed in the First Amendment: "Congress shall make no law . . . abridging the freedom . . . to petition the Government for a redress of grievances."2 The Noerr-Pennington doctrine3 exists to safeguard that right by conferring immunity on a wide variety of petitioning activitiesâincluding petitioning of the legislative, executive, and judicial branchesâfrom subsequent legal liability.4 While the Noerr-Pennington doctrine originated with immunity from claims under the Sherman Act, it extends much more broadly to confer immunity from many other legal claims premised on conduct involving protected petitioning activities.5
The scope of the Noerr-Pennington doctrine arises in a wide range of cases. For example, the issue has arisen recently with respect to cases involving: efforts to lobby local zoning boards;6 litigation over patents and copyrights;7 litigation in foreign jurisdictions;8 "serial" litigation;9 pre-suit demand letters;10 citizen petitions submitted to the U.S. Food and Drug Administration ("FDA");11 proceedings before the U.S. Commodity Futures Trading Commission ("CFTC");12 and challenges to the Master Settlement Agreement ending advertising litigation against tobacco companies.13 These recent cases present a number of recurring issues regarding the application of Noerr-Pennington.