Antitrust, UCL and Privacy

Competition: Spring 2014 Vol. 23, No. 1

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THE SUPREME COURT IN BOROUGH OF DURYEA V GUARNIERI SIGNALS A RETREAT FROM PRE’S BROAD DEFERENCE TO THE RIGHT TO PETITION

By Chris O’Connell1

I. INTRODUCTION

This spring marks the twenty-first anniversary of the U.S. Supreme Court’s decision in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. ("PRE"),2 a seminal case determining when one can sue one’s competitor without antitrust scrutiny. The PRE Court, faced with an allegation that an anticompetitive lawsuit violated the Sherman Act,3 posited that a lawsuit is a petition to the judicial branch of government, protected by the First Amendment’s Petition Clause.4 Because of this constitutional protection, the PRE Court held that only in narrow circumstances could a lawsuit against one’s competitors be exposed to antitrust scrutiny.

Two decades later, the Court in its most recent right to petition case, Borough of Duryea v. Guarnieri,5 cast doubt on this critical First Amendment rationale. In Borough of Duryea, the Court limited the right of public employees to sue their employers in light of the substantial competing public interests that had to be balanced against those fostered by the Petition Clause.6 Furthermore, PRE’s own author, Justice Thomas, declared in an opinion concurring in the judgment: "I seriously doubt that lawsuits are ‘petitions’ within the original meaning of the Petition Clause of the First Amendment."7 While this does not necessarily portend the death knell for PRE’s First Amendment immunity for competitor litigation, it does demonstrate the evolving views of the justices on the scope of the Petition Clause, which invites a reappraisal of PRE’s basic holdings and approach. This article concludes that Borough of Duryea represents a rejection of an absolute deference to the right to petition and that its more nuanced approach to that right necessitates a recalibration of PRE’s broad First Amendment immunity for firms that sue competitors.

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