Respondent highway carriers filed this civil action under § 4 of
the Clayton Act for injunctive relief and damages against
petitioner highway carriers charging that petitioners conspired to
monopolize the transportation of goods by instituting state and
federal proceedings to resist and defeat applications by
respondents to acquire, transfer, or register operating rights.
Respondents alleged that the purpose of the conspiracy was
"putting their competitors . . . out of business, of weakening
such competitors, of destroying, eliminating and weakening existing
and potential competition, and of monopolizing the highway common
carrier business in California and elsewhere,"
and deterring respondents from having free and unlimited access
to the agencies and the courts. The District Court dismissed the
complaint for failure to state a cause of action, but the Court of
Appeals reversed.
Held: While any carrier has the right of access to
administrative agencies and courts to defeat applications of
competitors for certificates as highway carriers, and its purpose
to eliminate an applicant as a competitor may be implicit in such
opposition, its First Amendment rights are not immunized from
regulation when they are used as an integral part of conduct
violative of the antitrust laws. If the allegations that
petitioners combined to harass and deter respondents from having
"free and unlimited access" to agencies and courts, and to defeat
that right by massive, concerted, and purposeful group activities
are established as facts, a violation of the antitrust laws will
have been demonstrated, and it is immaterial that the means used in
violation may be lawful. Pp.
404 U. S.
509-516.
432 F.2d 755, affirmed and remanded for trial.
DOUGLAS, J., wrote the opinion of the Court, in which BURGER,
C.J., and WHITE, MARSHALL, and BLACKMUN, JJ., joined. STEWART, J.,
filed an opinion concurring in the judgment, in which BRENNAN, J.,
joined,
post, p.
404 U. S. 516.
POWELL and REHNQUIST, JJ., took no part in the consideration or
decision of the case.
Page 404 U. S. 509
Opinion of the Court by MR. JUSTICE DOUGLAS, announced by MR.
CHIEF JUSTICE BURGER.
This is a civil suit under § 4 of the Clayton Act, 38 Stat. 731,
15 U.S.C. § 15, for injunctive relief and damages instituted by
respondents, who are highway carriers operating in California,
against petitioners, who are also highway carriers operating
within, into, and from California. Respondents and petitioners are,
in other words, competitors. The charge is that the petitioners
conspired to monopolize trade and commerce in the transportation of
goods in violation of the antitrust laws. The conspiracy alleged is
a concerted action by petitioners to institute state and federal
proceedings to resist and defeat applications by respondents to
acquire operating rights or to transfer or register those rights.
These activities, it is alleged, extend to rehearings and to
reviews or appeals from agency or court decisions on these
matters.
The District Court dismissed the complaint for failure to state
a cause of action, 1967 Trade Cas. � 72,298. The Court of Appeals
reversed, 432 F.2d 755. The case is here on a petition for a writ
of certiorari, which we granted. 402 U.S. 1008.
The present case is akin to
Eastern Railroad Conference v.
Noerr Motor Freight, 365 U. S. 127,
where a group of trucking companies sued a group of railroads to
restrain them from an alleged conspiracy to monopolize
Page 404 U. S. 510
the long-distance freight business in violation of the antitrust
laws and to obtain damages. We held that no cause of action was
alleged insofar as it was predicated upon mere attempts to
influence the Legislative Branch for the passage of laws or the
Executive Branch for their enforcement. We rested our decision on
two grounds:
(1) "In a representative democracy such as this, these branches
of government act on behalf of the people and, to a very large
extent, the whole concept of representation depends upon the
ability of the people to make their wishes known to their
representatives. To hold that the government retains the power to
act in this representative capacity and yet hold, at the same time,
that the people cannot freely inform the government of their wishes
would impute to the Sherman Act a purpose to regulate, not business
activity, but political activity, a purpose which would have no
basis whatever in the legislative history of that Act."
Id. at
365 U. S.
137.
(2) "The right of petition is one of the freedoms protected by
the Bill of Rights, and we cannot, of course, lightly impute to
Congress an intent to invade these freedoms."
Id. at
365 U. S.
138.
We followed that view in
United Mine Workers v.
Pennington, 381 U. S. 657,
381 U.S. 669-671.
The same philosophy governs the approach of citizens or groups
of them to administrative agencies (which are both creatures of the
legislature, and arms of the executive) and to courts, the third
branch of Government. Certainly the right to petition extends to
all departments of the Government. The right of access to the
courts is indeed but one aspect of the right of petition.
See
Johnson v. Avery, 393 U. S. 483,
393 U. S. 485;
Ex parte Hull, 312 U. S. 546,
312 U. S.
549.
We conclude that it would be destructive of rights of
association and of petition to hold that group with
Page 404 U. S. 511
common interests may not, without violating the antitrust laws,
use the channels and procedures of state and federal agencies and
courts to advocate their causes and points of view respecting
resolution of their business and economic interests
vis-a-vis their competitors.
We said, however, in
Noerr that there may be instances
where the alleged conspiracy
"is a mere sham to cover what is actually nothing more than an
attempt to interfere directly with the business relationships of a
competitor and the application of the Sherman Act would be
justified."
365 U.S. at
365 U. S.
144.
In that connection, the complaint in the present case alleged
that the aim and purpose of the conspiracy was
"putting their competitors, including plaintiff, out of
business, of weakening such competitors, of destroying, eliminating
and weakening existing and potential competition, and of
monopolizing the highway common carriage business in California and
elsewhere."
More critical are other allegations, which are too lengthy to
quote, and which elaborate on the "sham" theory by stating that the
power, strategy, and resources of the petitioners were used to
harass and deter respondents in their use of administrative and
judicial proceedings so as to deny them "free and unlimited access"
to those tribunals. The result, it is alleged, was that the
machinery of the agencies and the courts was effectively closed to
respondents, and petitioners indeed became "the regulators of the
grants of rights, transfers and registrations" to respondents --
thereby depleting and diminishing the value of the businesses of
respondents and aggrandizing petitioners' economic and monopoly
power.
See Note, 57 Calif.L.Rev. 518 (1969).
Petitioners rely on our statement in
Pennington that
"
Noerr shields from the Sherman Act a concerted effort to
influence public officials regardless of intent or purpose." 381
U.S. at
381 U. S. 670.
In the present case, however,
Page 404 U. S. 512
the allegations are not that the conspirators sought "to
influence public officials," but that they sought to bar their
competitors from meaningful access to adjudicatory tribunals, and
so to usurp that decisionmaking process. It is alleged that
petitioners "instituted the proceedings and actions . . . with or
without probable cause, and regardless of the merits of the cases."
The nature of the views pressed does not, of course, determine
whether First Amendment rights may be invoked; but they may bear
upon a purpose to deprive the competitors of meaningful access to
the agencies and courts. As stated in the opinion concurring in the
judgment, such a purpose or intent, if shown, would be "to
discourage and ultimately to prevent the respondents from invoking"
the processes of the administrative agencies and courts, and thus
fall within the exception to
Noerr.
The political campaign operated by the railroads in
Noerr to obtain legislation crippling truckers employed
deception and misrepresentation and unethical tactics. We said:
"Congress has traditionally exercised extreme caution in
legislating with respect to problems relating to the conduct of
political activities, a caution which has been reflected in the
decisions of this Court interpreting such legislation. All of this
caution would go for naught if we permitted an extension of the
Sherman Act to regulate activities of that nature simply because
those activities have a commercial impact and involve conduct that
can be termed unethical."
365 U.S. at
365 U. S.
141.
Yet unethical conduct in the setting of the adjudicatory process
often results in sanctions. Perjury of witnesses is one example.
Use of a patent obtained by fraud to exclude a competitor from the
market may involve a violation of the antitrust laws, as we held in
Walker
Page 404 U. S. 513
Process Equipment v. Food Machinery & Chemical
Corp., 382 U. S. 172,
382 U. S.
175-177. Conspiracy with a licensing authority to
eliminate a competitor nay also result in an antitrust
transgression.
Continental Ore Co. v. Union Carbide &
Carbon Corp., 370 U. S. 690,
370 U. S. 707;
Harman v. Valley National Bank, 339 F.2d 564 (CA9 1964).
Similarly, bribery of a public purchasing agent may constitute a
violation of § 2(c) of the Clayton Act, as amended by the
Robinson-Patman Act.
Rangen, Inc. v. Sterling Nelson Sons,
351 F.2d 851 (CA9 1965).
There are many other forms of illegal and reprehensible practice
which may corrupt the administrative or judicial processes and
which may result in antitrust violations. Misrepresentations,
condoned in the political arena, are not immunized when used in the
adjudicatory process. Opponents before agencies or courts often
think poorly of the other's tactics, motions, or defenses and may
readily call them baseless. One claim, which a court or agency may
think baseless, may go unnoticed; but a pattern of baseless,
repetitive claims may emerge which leads the factfinder to conclude
that the administrative and judicial processes have been abused.
That may be a difficult line to discern and draw. But once it is
drawn, the case is established that abuse of those processes
produced an illegal result,
viz., effectively barring
respondents from access to the agencies and courts. Insofar as the
administrative or judicial processes are involved, actions of that
kind cannot acquire immunity by seeking refuge under the umbrella
of "political expression."
Petitioners, of course, have the right of access to the agencies
and courts to be heard on applications sought by competitive
highway carriers. That right, as indicated, is part of the right of
petition protected by the First Amendment. Yet that does not
necessarily give them immunity from the antitrust laws.
Page 404 U. S. 514
It is well settled that First Amendment rights are not immunized
from regulation when they are used as an integral part of conduct
which violates a valid statute.
Giboney v. Empire Storage
Co., 336 U. S. 490. In
that case, Missouri enacted a statute banning secondary boycotts,
and we sustained an injunction against picketing to enforce the
boycott, saying:
"It is true that the agreements and course of conduct here were,
as in most instances, brought about through speaking or writing.
But it has never been deemed an abridgment of freedom of speech or
press to make a course of conduct illegal merely because the
conduct was in part initiated, evidenced, or carried out by means
of language, either spoken, written, or printed. . . . Such an
expansive interpretation of the constitutional guaranties of speech
and press would make it practically impossible ever to enforce laws
against agreements in restraint of trade, as well as many other
agreements and conspiracies deemed injurious to society."
336 U.S. at
336 U. S.
502.
In
Associated Press v. United States, 326 U. S.
1, we held that the Associated Press was not immune from
the antitrust laws by reason of the fact that the press is under
the shelter of the First Amendment. We said:
"Surely a command that the government itself shall not impede
the free flow of ideas does not afford non-governmental
combinations a refuge if they impose restraints upon that
constitutionally guaranteed freedom. Freedom to publish means
freedom for all, and not for some. Freedom to publish is guaranteed
by the Constitution, but freedom to combine to keep others from
publishing is not. Freedom of the press from governmental
interference under the
Page 404 U. S. 515
First Amendment does not sanction repression of that freedom by
private interests."
Id. at
326 U. S. 20.
Accord, Citizen Publishing Co. v. United States,
394 U. S. 131,
394 U. S.
139-140.
Cf. Eastern States Lumber Assn. v. United
States, 234 U. S. 600.
The rationale of those eases, when applied to the instant
controversy, makes the following conclusions clear: (1) that any
carrier has the right of access to agencies and courts, within the
limits, of course, of their prescribed procedures, in order to
defeat applications of its competitors for certificates as highway
carriers; and (2) that its purpose to eliminate an applicant as a
competitor by denying him free and meaningful access to the
agencies and courts may be implicit in that opposition.
First Amendment rights may not be used as the means or the
pretext for achieving "substantive evils" (
see NAACP v.
Button, 371 U. S. 415,
371 U. S. 444)
which the legislature has the power to control. Certainly the
constitutionality of the antitrust laws is not open to debate. A
combination of entrepreneurs to harass and deter their competitors
from having "free and unlimited access" to the agencies and courts,
to defeat that right by massive, concerted, and purposeful
activities of the group are ways of building up one empire and
destroying another. As stated in the opinion concurring in the
judgment, that is the essence of those parts of the complaint to
which we refer. If these facts are proved, a violation of the
antitrust laws has been established. If the end result is unlawful,
it matters not that the means used in violation may be lawful.
What the proof will show is not known, for the District Court
granted the motion to dismiss the complaint. We must, of course,
take the allegations of the complaint at face value for the
purposes of that motion.
Walker
Page 404 U. S. 516
Process Equipment v. Food Machinery & Chemical
Corp., 382 U.S. at
382 U. S.
174-175. On their face, the above-quoted allegations
come within the "sham" exception in the
Noerr case, as
adapted to the adjudicatory process.
Accordingly, we affirm the Court of Appeals and remand the case
for trial.
So ordered.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the
consideration or decision of this case.
MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN joins,
concurring in the judgment.
In the
Noerr case, [
Footnote 1] this Court held, in a unanimous opinion
written by Mr. Justice Black, that a conspiracy by railroads to
influence legislative and executive action in order to destroy the
competition of truckers in the long-haul freight business was
wholly immune from the antitrust laws. [
Footnote 2] This conclusion, we held, was required in
order to preserve the informed operation of governmental processes
and to protect the right of petition guaranteed by the First
Amendment. [
Footnote 3] Today
the Court retreats from
Noerr, and, in the process,
tramples upon important First Amendment values. For that reason, I
cannot join the Court's opinion.
In
Noerr, the defendants were joined together in an
effort to induce legislative and executive action. Here,
Page 404 U. S. 517
so the complaint alleges, the defendants (petitioners) have
joined to induce administrative and judicial action. The difference
in type of governmental body might make a difference in the
applicability of the antitrust laws if the petitioners had made
misrepresentations of fact or law to these tribunals, or had
engaged in perjury, or fraud, or bribery. [
Footnote 4] But, contrary to implications in the
Court's opinion, there are in this case no allegations whatever of
any such conduct on the part of the petitioners. And, in the
absence of such conduct, I can see no difference, so far as the
antitrust laws and the First Amendment are concerned, between
trying to influence executive and legislative bodies and trying to
influence administrative and judicial bodies.
NAACP v.
Button, 371 U. S. 415;
Brotherhood of Railroad Trainmen v. Virginia Bar, 377 U.S.
l;
United Mine Workers v. Illinois State Bar Assn.,
389 U. S. 217;
United Transportation Union v. State Bar of Michigan,
401 U. S. 576.
The Court concedes that the petitioners'
"right of access to the agencies and courts to be heard on
applications sought by competitive highway carriers . . . is part
of the right of petition protected by the First Amendment."
Yet, says the Court, their joint agreement to exercise that
right "does not necessarily give them immunity from the antitrust
laws."
Ante at
404 U.S.
513. It is difficult to imagine a statement more totally at
odds with
Noerr. For what that case explicitly held is
that the joint exercise of the constitutional right of petition is
given immunity from the antitrust laws.
While disagreeing with the Court's opinion, I would
Page 404 U. S. 518
nonetheless remand this case to the District Court for trial.
The complaint contains allegations that the petitioners have:
"1.
Agreed jointly to finance and to carry out and
publicize a consistent, systematic and uninterrupted program of
opposing, 'with or without probable cause and regardless of the
merits,' every application, with insignificant exceptions, for
additional operating rights or for the registration or transfer of
operating rights, before the California PUC, the ICC, and the
courts on appeal."
"2.
Carried out such agreement (a) by appearing as
protestants in all proceedings instituted by plaintiffs and others
in like position or by instituting complaints in opposition to
applications or transfers or registrations; (b) by establishing a
trust fund to finance the foregoing, consisting of contributions
monthly in amounts proportionate to each defendant's annual gross
income; (c) by publicizing and making known to plaintiffs and
others in like position the foregoing program."
Under these allegations, liberally construed, the respondents
are entitled to prove that the real intent of the conspirators was
not to invoke the processes of the administrative agencies and
courts, but to discourage and ultimately to prevent the respondents
from invoking those processes. Such an intent would make the
conspiracy
"an attempt to interfere directly with the business
relationships of a competitor, and the application of the Sherman
Act would be justified."
Eastern Railroad Conference v. Noerr Motor Freight, 365
U.S. at
365 U. S.
144.
It is only on this basis that I concur in the judgment of the
Court.
[
Footnote 1]
Eastern Railroad Conference v. Noerr Motor Freight,
365 U. S. 127.
[
Footnote 2]
See also United Mine Workers v. Pennington,
381 U. S. 657,
381 U.S. 669-671.
[
Footnote 3]
This conclusion, the Court held, was a corollary of our
decisions in
United States v. Rock Royal Co-operative,
307 U. S. 533, and
Parker v. Brown, 317 U. S. 341,
holding that, when a monopoly or restraint of trade is the result
of valid governmental action, there cannot be an antitrust
violation.
[
Footnote 4]
In
Noerr, the Court emphasized that the defendants'
"unethical" conduct did not affect their antitrust immunity for
jointly exerting pressure on the Legislative and Executive
Branches, 365 U.S. at
365 U. S. 141.
See, however,
Walker Process Equipment v. Food
Machinery & Chemical Corp., 382 U.
S. 172.