FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411 (1990)

493 U.S. 411
110 S.Ct. 768
107 L.Ed.2d 851

FEDERAL TRADE COMMISSION, Petitioner,
v.
SUPERIOR COURT TRIAL LAWYERS ASSOCIATION.
SUPERIOR COURT TRIAL LAWYERS ASSOCIATION,
et al., Petitioners, v. FEDERAL TRADE COMMISSION.
Nos. 88-1198, 88-1393.
Argued Oct. 30, 1989.
Decided Jan. 22, 1990.

Syllabus

A group of lawyers in private practice who regularly acted as courtappointed counsel for indigent defendants in District of Columbia criminal
cases agreed at a meeting of the Superior Court Trial Lawyers Association
(SCTLA) to stop providing such representation until the District increased
group members' compensation. The boycott had a severe impact on the
District's criminal justice system, and the District government capitulated
to the lawyers' demands. After the lawyers returned to work, petitioner
Federal Trade Commission (FTC) filed a complaint against SCTLA and
four of its officers (respondents), alleging that they had entered into a
conspiracy to fix prices and to conduct a boycott that constituted unfair
methods of competition in violation of § 5 of the FTC Act. Declining to
accept the conclusion of the Administrative Law Judge (ALJ) that the
complaint should be dismissed, the FTC ruled that the boycott was illegal
per se and entered an order prohibiting respondents from initiating future
such boycotts. The Court of Appeals, although acknowledging that the
boycott was a "classic restraint of trade" in violation of § 1 of the Sherman
Act, vacated the FTC order. Noting that the boycott was meant to convey
a political message to the public, the court concluded that it contained an
element of expression warranting First Amendment protection and that,
under United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d
672, an incidental restriction on such expression could not be justified
unless it was no greater than was essential to an important governmental
interest. Reasoning that this test could not be satisfied by the application
of an otherwise appropriate per se rule, but instead requires the
enforcement agency to prove rather than presume that the evil against
which the antitrust laws are directed looms in the conduct it condemns,
the court remanded for a determination whether respondents possessed
"significant market power." Held:
1. Respondents' boycott constituted a horizontal arrangement among
competitors that was unquestionably a naked restraint of price and output
in violation of the antitrust laws. Respondents' proffered social
justifications for the restraint of trade do not make the restraint any less
unlawful. Nor is respondents' agreement outside the coverage of the
antitrust laws under Eastern Railroad Presidents Conference v. Noerr
Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, simply
because its objective was the enactment of favorable legislation. The
Noerr doctrine does not extend to horizontal boycotts designed to exact
higher prices from the government simply because they are genuinely
intended to influence the government to agree to the conspirators' terms.
Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 503, 108
S.Ct. 1931, 1939, 100 L.Ed.2d 497. Pp. 421-425.

2. Respondents' boycott is not immunized from antitrust regulation by
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73
L.Ed.2d 1215, which held that the First Amendment prevented a State
from prohibiting a politically motivated civil rights boycott. Unlike the
boycott upheld in Claiborne Hardware, the undenied objective of this
boycott was to gain an economic advantage for those who agreed to
participate. Id., at 914-915, 102 S.Ct., at 3426-3427. Pp. 425-428.
3. The Court of Appeals erred in creating a new exception, based on
O'Brien, supra, to the antitrust per se liability rules for boycotts having an
expressive component. The court's analysis is critically flawed in at least
two respects. First, it exaggerates the significance of the "expressive
component" in respondents' boycott, since every concerted refusal to do
business with a potential customer or supplier has such a component.
Thus, a rule requiring courts to apply the antitrust laws "prudently and
with sensitivity," in the Court of Appeals' words, whenever an economic
boycott has an "expressive component" would create a gaping hole in the
fabric of those laws. Second, the Court of Appeals' analysis denigrates the
importance of the rule of law that respondents violated. The court's
implicit assumption that the antitrust laws permit, but do not require, the
condemnation of price fixing and boycotts without proof of market power
is in error, since, although the per se rules are the product of judicial
interpretation of the Sherman Act, they nevertheless have the same force
and effect as any other statutory commands. The court also erred in
assuming that the categorical antitrust prohibitions are "only" rules of
"administrative convenience" that do not serve any substantial
governmental interest unless the price-fixing competitors actually possess
market power. The per se rules reflect a longstanding judgment that every
horizontal price-fixing arrangement among competitors poses some threat
to the free market even if the participants do not themselves have the
power to control market prices. Pp. 428-436.
272 U.S.App.D.C. 272, 856 F.2d 226 (CADC 1988), reversed in part and
remanded.
STEVENS, J., delivered the opinion for a unanimous Court with respect to
Parts I, II, III, and IV, and the opinion of the Court with respect to Parts V
and VI in which REHNQUIST, C.J., and WHITE, O'CONNOR, SCALIA,
and KENNEDY, JJ., joined. BRENNAN, J., filed an opinion concurring in
part and dissenting in part, in which MARSHALL, J., joined, post, p. 436.
BLACKMUN, J., filed an opinion concurring in part and dissenting in
part, post, p. 453.
Ernest J. Isenstadt, Washington, D.C., for F.T.C.

Willard K. Tom, Washington, D.C., for Superior Court Trial Lawyers
Ass'n, et al.
Justice STEVENS delivered the opinion of the Court.

1

Pursuant to a well-publicized plan, a group of lawyers agreed not to represent
indigent criminal defendants in the District of Columbia Superior Court until
the District of Columbia government increased the lawyers' compensation. The
questions presented are whether the lawyers' concerted conduct violated § 5 of
the Federal Trade Commission Act and, if so, whether it was nevertheless
protected by the First Amendment to the Constitution.1

2

* The burden of providing competent counsel to indigent defendants in the
District of Columbia is substantial. During 1982, court-appointed counsel
represented the defendant in approximately 25,000 cases. In the most serious
felony cases, representation was generally provided by full-time employees of
the District's Public Defender System (PDS). Less serious felony and
misdemeanor cases constituted about 85 percent of the total caseload. In these
cases, lawyers in private practice were appointed and compensated pursuant to
the District of Columbia Criminal Justice Act (CJA).2

3

Although over 1,200 lawyers have registered for CJA appointments, relatively
few actually apply for such work on a regular basis. In 1982, most
appointments went to approximately 100 lawyers who are described as "CJA
regulars." These lawyers derive almost all of their income from representing
indigents.3 In 1982, the total fees paid to CJA lawyers amounted to $4,579,572.

4

In 1974, the District created a Joint Committee on Judicial Administration with
authority to establish rates of compensation for CJA lawyers not exceeding the
rates established by the federal Criminal Justice Act of 1964. After 1970, the
federal Act provided for fees of $30 per hour for court time and $20 per hour
for out-of-court time. See 84 Stat. 916, codified at 18 U.S.C. § 3006A (1970
ed.). These rates accordingly capped the rates payable to the District's CJA
lawyers, and could not be exceeded absent amendment to either the federal
statute or the District Code.

5

Bar organizations began as early as 1975 to express concern about the low fees
paid to CJA lawyers. Beginning in 1982, respondents, the Superior Court Trial
Lawyers Association (SCTLA) and its officers, and other bar groups sought to
persuade the District to increase CJA rates to at least $35 per hour. Despite
what appeared to be uniform support for the bill, it did not pass. It is also true,
however, that nothing in the record indicates that the low fees caused any
actual shortage of CJA lawyers or denied effective representation to defendants.

6

In early August 1983, in a meeting with officers of SCTLA, the Mayor
expressed his sympathy but firmly indicated that no money was available to
fund an increase. The events giving rise to this litigation then ensued.

7

At an SCTLA meeting, the CJA lawyers voted to form a "strike committee."
The eight members of that committee promptly met and informally agreed "that
the only viable way of getting an increase in fees was to stop signing up to take
new CJA appointments, and that the boycott should aim for a $45 out-of-court
and $55 in-court rate schedule." In re Superior Court Trial Lawyers Assn., 107
F.T.C. 510, 538 (1986).

8

On August 11, 1983, about 100 CJA lawyers met and resolved not to accept
any new cases after September 6 if legislation providing for an increase in their
fees had not passed by that date. Immediately following the meeting, they
prepared (and most of them signed) a petition stating:

9

"We, the undersigned private criminal lawyers practicing in the Superior Court
of the District of Columbia, agree that unless we are granted a substantial
increase in our hourly rate we will cease accepting new appointments under the
Criminal Justice Act." 272 U.S.App.D.C. 272, 276, 856 F.2d 226, 230 (1988).

10

On September 6, 1983, about 90 percent 4 of the CJA regulars refused to accept
any new assignments. Thereafter, SCTLA arranged a series of events to attract
the attention of the news media and to obtain additional support. These events
were well publicized and did engender favorable editorial comment, but the
Administrative Law Judge (ALJ) found that "there is no credible evidence that
the District's eventual capitulation to the demands of the CJA lawyers was
made in response to public pressure, or, for that matter, that this publicity
campaign actually engendered any significant measure of public pressure." 107
F.T.C., at 543.5

11

As the participating CJA lawyers had anticipated, their refusal to take new
assignments had a severe impact on the District's criminal justice system. The
massive flow of new cases did not abate,6 and the need for prompt investigation
and preparation did not ease. As the ALJ found, "there was no one to replace
the CJA regulars, and makeshift measures were totally inadequate. A few days
after the September 6 deadline, PDS was swamped with cases. The handful of
CJA regulars who continued to take cases were soon overloaded. The overall
response of the uptown lawyers to the PDS call for help was feeble, reflecting
their universal distaste for criminal law, their special aversion for compelled
indigency representation, the near epidemic siege of self-doubt about their
ability to handle cases in this field, and their underlying support for the
demands of the CJA lawyers. Most of the law student volunteers initially
observed the boycott, and later all law student volunteers were limited (as they
usually are) to a relatively few minor misdemeanors" (footnotes omitted). Id., at
544.

12

Within 10 days, the key figures in the District's criminal justice system "became
convinced that the system was on the brink of collapse because of the refusal of
CJA lawyers to take on new cases." Ibid. On September 15, they handdelivered a letter to the Mayor describing why the situation was expected to
"reach a crisis point" by early the next week and urging the immediate
enactment of a bill increasing all CJA rates to $35 per hour. The Mayor
promptly met with members of the strike committee and offered to support an
immediate temporary increase to the $35 level as well as a subsequent
permanent increase to $45 an hour for out-of-court time and $55 for in-court
time.

13

At noon on September 19, 1983, over 100 CJA lawyers attended an SCTLA
meeting and voted to accept the $35 offer and end the boycott. The city
council's Judiciary Committee convened at 2 o'clock that afternoon. The
committee recommended legislation increasing CJA fees to $35, and the
council unanimously passed the bill on September 20. On September 21, the
CJA regulars began to accept new assignments and the crisis subsided.
II

14

The Federal Trade Commission (FTC) filed a complaint against SCTLA and
four of its officers (respondents) alleging that they had "entered into an
agreement among themselves and with other lawyers to restrain trade by
refusing to compete for or accept new appointments under the CJA program
beginning on September 6, 1983, unless and until the District of Columbia
increased the fees offered under the CJA program." Id., at 511. The complaint
alleged that virtually all of the attorneys who regularly compete for or accept
new appointments under the CJA program had joined the agreement. The FTC
characterized respondents' conduct as "a conspiracy to fix prices and to conduct
a boycott" and concluded that they were engaged in "unfair methods of
competition in violation of Section 5 of the Federal Trade Commission Act."7

15

After a 3-week hearing, the ALJ found that the facts alleged in the complaint
had been proved, and rejected each of the respondents' three legal defenses—
that the boycott was adequately justified by the public interest in obtaining
better legal representation for indigent defendants; that as a method of
petitioning for legislative change it was exempt from the antitrust laws under
our decision in Eastern Railroad Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); and that it was
a form of political action protected by the First Amendment under our decision
in NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73
L.Ed.2d 1215 (1982). The ALJ nevertheless concluded that the complaint
should be dismissed because the District officials, who presumably represented
the victim of the boycott, recognized that its net effect was beneficial. The
increase in fees would attract more CJA lawyers, enabling them to reduce their
caseloads and provide better representation for their clients. "I see no point," he
concluded, "in striving resolutely for an antitrust triumph in this sensitive area
when the particular case can be disposed of on a more pragmatic basis—there
was no harm done." 107 F.T.C., at 561.

16

The ALJ's pragmatic moderation found no favor with the FTC. Like the ALJ,
the FTC rejected each of respondents' defenses. It held that their "coercive,
concerted refusal to deal" had the "purpose and effect of raising prices" and was
illegal per se. Id., at 573. Unlike the ALJ, the FTC refused to conclude that the
boycott was harmless, noting that the "boycott forced the city government to
increase the CJA fees from a level that had been sufficient to obtain an adequate
supply of CJA lawyers to a level satisfactory to the respondents. The city must,
as a result of the boycott, spend an additional $4 million to $5 million a year to
obtain legal services for indigents. We find that these are substantial
anticompetitive effects resulting from the respondents' conduct." Id., at 577.
Finally, the FTC determined that the record did not support the ALJ's
conclusion that the District supported the boycott. The FTC also held that such
support would not in any event excuse respondents' antitrust violations.
Accordingly, it entered a cease-and-desist order "to prohibit the respondents
from initiating another boycott . . . whenever they become dissatisfied with the
results or pace of the city's legislative process." Id., at 602.

17

The Court of Appeals vacated the FTC order and remanded for a determination
whether respondents possessed "significant market power." The court began its
analysis by recognizing that absent any special First Amendment protection, the
boycott "constituted a classic restraint of trade within the meaning of Section 1
of the Sherman Act."8 272 U.S.App.D.C., at 280, 856 F.2d, at 234. The Court
of Appeals was not persuaded by respondents' reliance on Claiborne Hardware
or Noerr, or by their argument that the boycott was justified because it was
designed to improve the quality of representation for indigent defendants. It
concluded, however, that "the SCTLA boycott did contain an element of
expression warranting First Amendment protection." 272 U.S.App.D.C., at 294,
856 F.2d, at 248. It noted that boycotts have historically been used as a
dramatic means of expression and that respondents intended to convey a
political message to the public at large. It therefore concluded that under United
States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), a
restriction on this form of expression could not be justified unless it is no
greater than is essential to an important governmental interest. This test, the
court reasoned, could not be satisfied by the application of an otherwise
appropriate per se rule, but instead required the enforcement agency to "prove
rather than presume that the evil against which the Sherman Act is directed
looms in the conduct it condemns." 272 U.S.App.D.C., at 296, 856 F.2d, at
250.

18

Because of our concern about the implications of the Court of Appeals' unique
holding, we granted the FTC's petition for certiorari as well as respondents'
cross-petition. 490 U.S. 1019, 109 S.Ct. 1741, 104 L.Ed.2d 179 (1989).

19

We consider first the cross-petition, which contends that respondents' boycott is
outside the scope of the Sherman Act or is immunized from antitrust regulation
by the First Amendment. We then turn to the FTC's petition.
III

20

Reasonable lawyers may differ about the wisdom of this enforcement
proceeding. The dissent from the decision to file the complaint so demonstrates.
So, too, do the creative conclusions of the ALJ and the Court of Appeals.
Respondents' boycott may well have served a cause that was worthwhile and
unpopular. We may assume that the preboycott rates were unreasonably low,
and that the increase has produced better legal representation for indigent
defendants. Moreover, given that neither indigent criminal defendants nor the
lawyers who represent them command any special appeal with the electorate,
we may also assume that without the boycott there would have been no
increase in District CJA fees at least until the Congress amended the federal
statute. These assumptions do not control the case, for it is not our task to pass
upon the social utility or political wisdom of price-fixing agreements.

21

As the ALJ, the FTC, and the Court of Appeals all agreed, respondents' boycott
"constituted a classic restraint of trade within the meaning of Section 1 of the
Sherman Act." 272 U.S.App.D.C., at 280, 856 F.2d, at 234. As such, it also
violated the prohibition against unfair methods of competition in § 5 of the FTC
Act. See FTC v. Cement Institute, 333 U.S. 683, 694, 68 S.Ct. 793, 800, 92
L.Ed. 1010 (1948). Prior to the boycott CJA lawyers were in competition with
one another, each deciding independently whether and how often to offer to
provide services to the District at CJA rates.9 The agreement among the CJA
lawyers was designed to obtain higher prices for their services and was
implemented by a concerted refusal to serve an important customer in the
market for legal services and, indeed, the only customer in the market for the
particular services that CJA regulars offered. "This constriction of supply is the
essence of 'price-fixing,' whether it be accomplished by agreeing upon a price,
which will decrease the quantity demanded, or by agreeing upon an output,
which will increase the price offered." 272 U.S.App.D.C., at 280, 856 F.2d, at
234. The horizontal arrangement among these competitors was unquestionably
a "naked restraint" on price and output. See National Collegiate Athletic Assn.
v. Board of Regents of Univ. of Okla., 468 U.S. 85, 110, 104 S.Ct. 2948, 2965,
82 L.Ed.2d 70 (1984).

22

It is, of course, true that the city purchases respondents' services because it has
a constitutional duty to provide representation to indigent defendants. It is
likewise true that the quality of representation may improve when rates are
increased. Yet neither of these facts is an acceptable justification for an
otherwise unlawful restraint of trade. As we have remarked before, the
"Sherman Act reflects a legislative judgment that ultimately competition will
produce not only lower prices, but also better goods and services." National
Society of Professional Engineers v. United States, 435 U.S. 679, 695, 98 S.Ct.
1355, 1367, 55 L.Ed.2d 637 (1978). This judgment "recognizes that all
elements of a bargain—quality, service, safety, and durability—and not just the
immediate cost, are favorably affected by the free opportunity to select among
alternative offers." Ibid. That is equally so when the quality of legal advocacy,
rather than engineering design, is at issue.

23

The social justifications proffered for respondents' restraint of trade thus do not
make it any less unlawful. The statutory policy underlying the Sherman Act
"precludes inquiry into the question whether competition is good or bad." Ibid.
Respondents' argument, like that made by the petitioners in Professional
Engineers, ultimately asks us to find that their boycott is permissible because
the price it seeks to set is reasonable. But it was settled shortly after the
Sherman Act was passed that it "is no excuse that the prices fixed are
themselves reasonable. See, e.g., United States v. Trenton Potteries Co., 273
U.S. 392, 397-398, 47 S.Ct. 377, 379-380, 71 L.Ed. 700 (1927); United States
v. Trans-Missouri Freight Assn., 166 U.S. 290, 340-341, 17 S.Ct. 540, 558-559,
41 L.Ed. 1007 (1897)." Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643, 647,
100 S.Ct. 1925, 1928, 64 L.Ed.2d 580 (1980). Respondents' agreement is not
outside the coverage of the Sherman Act simply because its objective was the
enactment of favorable legislation.

24

Our decision in Noerr in no way detracts from this conclusion. In Noerr, we
"considered whether the Sherman Act prohibited a publicity campaign waged
by railroads" and "designed to foster the adoption of laws destructive of the
trucking business, to create an atmosphere of distaste for truckers among the
general public, and to impair the relationships existing between truckers and
their customers." Claiborne Hardware, 458 U.S., at 913, 102 S.Ct., at 3425.
Interpreting the Sherman Act in the light of the First Amendment's Petition
Clause, the Court noted that "at least insofar as the railroads' campaign was
directed toward obtaining governmental action, its legality was not at all
affected by any anticompetitive purpose it may have had." 365 U.S., at 139140, 81 S.Ct., at 530-531.

25

It of course remains true that "no violation of the Act can be predicated upon
mere attempts to influence the passage or enforcement of laws," id., at 135, 81
S.Ct., at 528, even if the defendants' sole purpose is to impose a restraint upon
the trade of their competitors, id., at 138-140, 81 S.Ct., at 530-531. But in the
Noerr case the alleged restraint of trade was the intended consequence of public
action; in this case the boycott was the means by which respondents sought to
obtain favorable legislation. The restraint of trade that was implemented while
the boycott lasted would have had precisely the same anticompetitive
consequences during that period even if no legislation had been enacted. In
Noerr, the desired legislation would have created the restraint on the truckers'
competition; in this case the emergency legislative response to the boycott put
an end to the restraint.

26

Indeed, respondents' theory of Noerr was largely disposed of by our opinion in
Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 108 S.Ct.
1931, 100 L.Ed.2d 497 (1988). We held that the Noerr doctrine does not extend
to "every concerted effort that is genuinely intended to influence governmental
action." 486 U.S., at 503, 108 S.Ct., at 1938. We explained:

27

"If all such conduct were immunized then, for example, competitors would be
free to enter into horizontal price agreements as long as they wished to propose
that price as an appropriate level for governmental ratemaking or price
supports. But see Georgia v. Pennsylvania R. Co. 324 U.S. 439, 456-463[, 65
S.Ct. 716, 725-729, 89 L.Ed. 1051] (1945). Horizontal conspiracies or boycotts
designed to exact higher prices or other economic advantages from the
government would be immunized on the ground that they are genuinely
intended to influence the government to agree to the conspirators' terms. But
see Georgia v. Evans, 316 U.S. 159 [62 S.Ct. 972, 86 L.Ed. 1346] (1942).
Firms could claim immunity for boycotts or horizontal output restrictions on
the ground that they are intended to dramatize the plight of their industry and
spur legislative action." Ibid.
IV

28

SCTLA argues that if its conduct would otherwise be prohibited by the
Sherman Act and the Federal Trade Commission Act, it is nonetheless
protected by the First Amendment rights recognized in NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). That
case arose after black citizens boycotted white merchants in Claiborne County,
Mississippi. The white merchants sued under state law to recover losses from
the boycott. We found that the "right of the States to regulate economic activity
could not justify a complete prohibition against a nonviolent, politically
motivated boycott designed to force governmental and economic change and to
effectuate rights guaranteed by the Constitution itself." Id., at 914, 102 S.Ct., at
3426. We accordingly held that "the nonviolent elements of petitioners'
activities are entitled to the protection of the First Amendment." Id., at 915, 102
S.Ct., at 3426.

29

SCTLA contends that because it, like the boycotters in Claiborne Hardware,
sought to vindicate constitutional rights, it should enjoy a similar First
Amendment protection. It is, of course, clear that the association's efforts to
publicize the boycott, to explain the merits of its cause, and to lobby District
officials to enact favorable legislation—like similar activities in Claiborne
Hardware—were activities that were fully protected by the First Amendment.
But nothing in the FTC's order would curtail such activities, and nothing in the
FTC's reasoning condemned any of those activities.

30

The activity that the FTC order prohibits is a concerted refusal by CJA lawyers
to accept any further assignments until they receive an increase in their
compensation; the undenied objective of their boycott was an economic
advantage for those who agreed to participate. It is true that the Claiborne
Hardware case also involved a boycott. That boycott, however, differs in a
decisive respect. Those who joined the Claiborne Hardware boycott sought no
special advantage for themselves. They were black citizens in Port Gibson,
Mississippi, who had been the victims of political, social, and economic
discrimination for many years. They sought only the equal respect and equal
treatment to which they were constitutionally entitled. They struggled "to
change a social order that had consistently treated them as second class
citizens." Id., at 912, 102 S.Ct., at 3425. As we observed, the campaign was not
intended "to destroy legitimate competition." Id., at 914, 102 S.Ct., at 3426.
Equality and freedom are preconditions of the free market, and not
commodities to be haggled over within it.

31

The same cannot be said of attorney's fees. As we recently pointed out, our
reasoning in Claiborne Hardware is not applicable to a boycott conducted by
business competitors who "stand to profit financially from a lessening of
competition in the boycotted market." Allied Tube & Conduit Corp. v. Indian
Head, Inc., supra, at 508, 108 S.Ct., at 1941. 10 No matter how altruistic the
motives of respondents may have been, it is undisputed that their immediate
objective was to increase the price that they would be paid for their services.
Such an economic boycott is well within the category that was expressly
distinguished in the Claiborne Hardware opinion itself. 458 U.S., at 914-915,
102 S.Ct., at 3426-3427.11

32

Only after recognizing the well-settled validity of prohibitions against various
economic boycotts did we conclude in Claiborne Hardware that "peaceful,
political activity such as that found in the [Mississippi] boycott" are entitled to
constitutional protection.12 We reaffirmed the government's "power to regulate
[such] economic activity." Id., at 912-913, 102 S.Ct., at 3425-3427. This
conclusion applies with special force when a clear objective of the boycott is to
economically advantage the participants.
V

33

Respondents' concerted action in refusing to accept further CJA assignments
until their fees were increased was thus a plain violation of the antitrust laws.
The exceptions derived from Noerr and Claiborne Hardware have no
application to respondents' boycott. For these reasons we reject the arguments
made by respondents in the cross-petition.

34

The Court of Appeals, however, crafted a new exception to the per se rules, and
it is this exception which provoked the FTC's petition to this Court. The Court
of Appeals derived its exception from United States v. O'Brien, 391 U.S. 367,
88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). In that case O'Brien had burned his
Selective Service registration certificate on the steps of the South Boston
Courthouse. He did so before a sizable crowd and with the purpose of
advocating his antiwar beliefs. We affirmed his conviction. We held that the
governmental interest in regulating the "nonspeech element" of his conduct
adequately justified the incidental restriction on First Amendment freedoms.13
Specifically, we concluded that the statute's incidental restriction on O'Brien's
freedom of expression was no greater than necessary to further the
Government's interest in requiring registrants to have valid certificates
continually available.

35

However, the Court of Appeals held that, in light of O'Brien, the expressive
component of respondents' boycott compelled courts to apply the antitrust laws
"prudently and with sensitivity," 272 U.S.App.D.C., at 279-280, 856 F.2d, at
233-234, with a "special solicitude for the First Amendment rights" of
respondents. The Court of Appeals concluded that the governmental interest in
prohibiting boycotts is not sufficient to justify a restriction on the
communicative element of the boycott unless the FTC can prove, and not
merely presume, that the boycotters have market power. Because the Court of
Appeals imposed this special requirement upon the government, it ruled that
per se antitrust analysis was inapplicable to boycotts having an expressive
component.

36

There are at least two critical flaws in the Court of Appeals' antitrust analysis: it
exaggerates the significance of the expressive component in respondents'
boycott and it denigrates the importance of the rule of law that respondents
violated. Implicit in the conclusion of the Court of Appeals are unstated
assumptions that most economic boycotts do not have an expressive
component, and that the categorical prohibitions against price fixing and
boycotts are merely rules of "administrative convenience" that do not serve any
substantial governmental interest unless the price-fixing competitors actually
possess market power.

37

It would not much matter to the outcome of this case if these flawed
assumptions were sound. O'Brien would offer respondents no protection even if
their boycott were uniquely expressive and even if the purpose of the per se
rules were purely that of administrative efficiency. We have recognized that 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. United States v. Albertini, 472 U.S. 675, 688, 105
S.Ct. 2897, 2906, 86 L.Ed.2d 536 (1985) ("The First Amendment does not bar
application of a neutral regulation that incidentally burdens speech merely
because a party contends that allowing an exception in the particular case will
not threaten important government interests"). The administrative efficiency
interests in antitrust regulation are unusually compelling. The per se rules avoid
"the necessity for an incredibly complicated and prolonged economic
investigation into the entire history of the industry involved, as well as related
industries, in an effort to determine at large whether a particular restraint has
been unreasonable." Northern Pacific R. Co. v. United States, 356 U.S. 1, 5, 78
S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). If small parties "were allowed to prove
lack of market power, all parties would have that right, thus introducing the
enormous complexities of market definition into every price-fixing case." R.
Bork, The Antitrust Paradox 269 (1978). For these reasons, it is at least
possible that the Claiborne Hardware doctrine, which itself rests in part upon
O'Brien,14 exhausts O'Brien's application to the antitrust statutes.

38

In any event, however, we cannot accept the Court of Appeals' characterization
of this boycott or the antitrust laws. Every concerted refusal to do business with
a potential customer or supplier has an expressive component. At one level, the
competitors must exchange their views about their objectives and the means of
obtaining them. The most blatant, naked price-fixing agreement is a product of
communication, but that is surely not a reason for viewing it with special
solicitude. At another level, after the terms of the boycotters' demands have
been agreed upon, they must be communicated to its target: "[W]e will not do
business until you do what we ask." That expressive component of the boycott
conducted by these respondents is surely not unique. On the contrary, it is the
hallmark of every effective boycott.

39

At a third level, the boycotters may communicate with third parties to enlist
public support for their objectives; to the extent that the boycott is newsworthy,
it will facilitate the expression of the boycotters' ideas. But this level of
expression is not an element of the boycott. Publicity may be generated by any
other activity that is sufficiently newsworthy. Some activities, including the
boycott here, may be newsworthy precisely for the reasons that they are
prohibited: the harms they produce are matters of public concern. Certainly that
is no reason for removing the prohibition.

40

In sum, there is thus nothing unique about the "expressive component" of
respondents' boycott. A rule that requires courts to apply the antitrust laws
"prudently and with sensitivity" whenever an economic boycott has an
"expressive component" would create a gaping hole in the fabric of those laws.
Respondents' boycott thus has no special characteristics meriting an exemption
from the per se rules of antitrust law.

41

Equally important is the second error implicit in respondents' claim to
immunity from the per se rules. In its opinion, the Court of Appeals assumed
that the antitrust laws permit, but do not require, the condemnation of price
fixing and boycotts without proof of market power.15 The opinion further
assumed that the per se rule prohibiting such activity "is only a rule of
'administrative convenience and efficiency,' not a statutory command." 272
U.S.App.D.C., at 295, 856 F.2d, at 249. This statement contains two errors. The
per se rules are, of course, the product of judicial interpretations of the Sherman
Act, but the rules nevertheless have the same force and effect as any other
statutory commands. Moreover, while the per se rule against price fixing and
boycotts is indeed justified in part by "administrative convenience," the Court
of Appeals erred in describing the prohibition as justified only by such
concerns. The per se rules also reflect a longstanding judgment that the
prohibited practices by their nature have "a substantial potential for impact on
competition." Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 16,
104 S.Ct. 1551, 1560, 80 L.Ed.2d 2 (1984).

42

As we explained in Professional Engineers, the rule of reason in antitrust law
generates

43

"two complementary categories of antitrust analysis. In the first category are
agreements whose nature and necessary effect are so plainly anticompetitive
that no elaborate study of the industry is needed to establish their illegality—
they are 'illegal per se.' In the second category are agreements whose
competitive effect can only be evaluated by analyzing the facts peculiar to the
business, the history of the restraint, and the reasons why it was imposed." 435
U.S., at 692, 98 S.Ct., at 1365.

44

"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." Arizona v. Maricopa
County Medical Society, 457 U.S. 332, 344, 102 S.Ct. 2466, 2473, 73 L.Ed.2d
48 (1982).

45

The per se rules in antitrust law serve purposes analogous to per se restrictions
upon, for example, stunt flying in congested areas or speeding. Laws
prohibiting stunt flying or setting speed limits are justified by the State's interest
in protecting human life and property. Perhaps most violations of such rules
actually cause no harm. No doubt many experienced drivers and pilots can
operate much more safely, even at prohibited speeds, than the average citizen.

46

If the especially skilled drivers and pilots were to paint messages on their cars,
or attach streamers to their planes, their conduct would have an expressive
component. High speeds and unusual maneuvers would help to draw attention
to their messages. Yet the laws may nonetheless be enforced against these
skilled persons without proof that their conduct was actually harmful or
dangerous.

47

In part, the justification for these per se rules is rooted in administrative
convenience. They are also supported, however, by the observation that every
speeder and every stunt pilot poses some threat to the community. An
unpredictable event may overwhelm the skills of the best driver or pilot, even if
the proposed course of action was entirely prudent when initiated. A bad driver
going slowly may be more dangerous than a good driver going quickly, but a
good driver who obeys the law is safer still.

48

So it is with boycotts and price fixing.16 Every such horizontal arrangement
among competitors poses some threat to the free market. A small participant in
the market is, obviously, less likely to cause persistent damage than a large
participant. Other participants in the market may act quickly and effectively to
take the small participant's place. For reasons including market inertia and
information failures, however, a small conspirator may be able to impede
competition over some period of time.17 Given an appropriate set of
circumstances and some luck, the period can be long enough to inflict real
injury upon particular consumers or competitors.18

49

As Justice Douglas observed in an oft-quoted footnote to his United States v.
Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940),
opinion:

50

"Price-fixing agreements may or may not be aimed at complete elimination of
price competition. The group making those agreements may or may not have
power to control the market. But the fact that the group cannot control the
market prices does not necessarily mean that the agreement as to prices has no
utility to the members of the combination. The effectiveness of price-fixing
agreements is dependent on many factors, such as competitive tactics, position
in the industry, the formula underlying pricing policies. Whatever economic
justification particular price-fixing agreements may be thought to have, the law
does not permit an inquiry into their reasonableness. They are all banned
because of their actual or potential threat to the central nervous system of the
economy." Id., at 225-226, n. 59, 60 S.Ct., at 846, n. 59.

51

See also Maricopa County Medical Society, 457 U.S., at 351, and n. 23, 102
S.Ct., at 2476, and n. 23.

52

Of course, some boycotts and some price-fixing agreements are more
pernicious than others; some are only partly successful, and some may only
succeed when they are buttressed by other causative factors, such as political
influence. But an assumption that, absent proof of market power, the boycott
disclosed by this record was totally harmless—when overwhelming testimony
demonstrated that it almost produced a crisis in the administration of criminal
justice in the District and when it achieved its economic goal—is flatly
inconsistent with the clear course of our antitrust jurisprudence. Conspirators
need not achieve the dimensions of a monopoly, or even a degree of market
power any greater than that already disclosed by this record, to warrant
condemnation under the antitrust laws.
VI

53

The judgment of the Court of Appeals is accordingly reversed insofar as that
court held the per se rules inapplicable to the lawyers' boycott.19 The case is
remanded for further proceedings consistent with this opinion.20

54

It is so ordered.

55

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

56

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.

57

* 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.

58

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.
A.

59

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.

60

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

61

"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).

62

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).

63

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).

64

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.
B

65

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).

66

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.

67

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.

68

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).

69

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.

70

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.

71

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.

72

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.
II
A.

73

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 433434. This analogy is flawed.

74

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 483484, 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.

75

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).

76

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 pricefixing 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.

77

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 426427, 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.

78

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.

79

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.

80

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.
B

81

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.

82

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.

83

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, 15561557, 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.

84

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.

85

I respectfully dissent.

86

Justice BLACKMUN, concurring in part and dissenting in part.

87

Like Justice BRENNAN, I, too, join Parts I, II, III, and IV, of the Court's
opinion. But, while I agree with the reasoning of Justice BRENNAN's dissent, I
write separately to express my doubt whether a remand for findings of fact
concerning the market power of the Superior Court Trial Lawyers Association
(SCTLA or Trial Lawyers) would be warranted in the unique circumstances of
this litigation. As Justice BRENNAN notes, the Trial Lawyers' boycott was
aimed at the District's courts and legislature, governmental bodies that had the
power to terminate the boycott at any time by requiring any or all members of
the District Bar—including the members of SCTLA—to represent indigent
defendants pro bono. Attorneys are not merely participants in a competitive
market for legal services; they are officers of the court. Their duty to serve the
public by representing indigent defendants is not only a matter of conscience,
but is also enforceable by the government's power to order such representation,
either as a condition of practicing law in the District or on pain of contempt.
See Powell v. Alabama, 287 U.S. 45, 73, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932)
("Attorneys are officers of the court, and are bound to render service when
required" by court appointment); see also United States v. Accetturo, 842 F.2d
1408, 1412-1413 (CA3 1988); Waters v. Kemp, 845 F.2d 260, 263 (CA11
1988).*

88

The Trial Lawyers' boycott thus was a dramatic gesture not fortified by any real
economic power. They could not have coerced the District to meet their
demands by brute economic force, i.e., by constricting the supply of legal
services to drive up the price. Instead, the Trial Lawyers' boycott put the
government in a position where it had to make a political choice between
exercising its power to break the boycott or agreeing to a rate increase. The
factors relevant to this choice were political, not economic: that forcing the
lawyers to stop the boycott would have been unpopular, because, as it turned
out, public opinion supported the boycott; and that the District officials
themselves may not have genuinely opposed the rate increase, and may have
welcomed the appearance of a politically expedient "emergency."

89

I believe that, in this unique market where the government buys services that it
could readily compel the sellers to provide, the Trial Lawyers lacked any
market power and their boycott could have succeeded only through political
persuasion. I therefore would affirm the judgment below insofar as it invokes
the United States v. O'Brien 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672
(1968), analysis to preclude application of the per se rule to the Trial Lawyers'
boycott, but reverse as to the remand to the FTC for a determination of market
power.

1

Section 5(a)(1) of the Federal Trade Commission Act, 38 Stat. 719, as
amended, 15 U.S.C. § 45(a)(1), provides:
"Unfair methods of competition in or affecting commerce, and unfair or
deceptive acts or practices in or affecting commerce, are declared
unlawful."
The First Amendment to the Constitution provides:
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances."

2

3

D.C.Code §§ 11-2601—11-2609 (1981). In a small number of cases, the
indigent defendants were represented by third-year law students or private
counsel serving without compensation.
As the Administrative Law Judge (ALJ) noted:
"Because of the nature of CJA practice—its long hours away from the
office (assuming the CJA lawyer has an office), the deadlines of Superior
Court, and the problem of meeting deadlines in other courts—CJA
regulars ordinarily do not take civil cases, nor do they usually appear on
the criminal side of U.S. District court." In re Superior Court Trial
Lawyers Assn., 107 F.T.C. 510, 522, n. 54 (1986).

4
5

6

The ALJ found that "at most" 13 of the CJA regulars continued to take
assignments. 107 F.T.C., at 542, n. 173.
It is not clear how much of this finding by the ALJ was accepted by the
Federal Trade Commission (FTC or Commission). The Court of Appeals
suggested that the finding was implicitly rejected by the Commission
because not expressly accepted. See 272 U.S.App.D.C. 272, 297, 856 F.2d
226, 251 (1988). We do not rely upon the finding, and need not decide
whether the Commission did indeed reject it. We note, however, that the
Commission endorsed findings attributing the District's eventual change of
position to a crisis resulting from the lawyers' exercise of power. 107
F.T.C., at 572, and n. 69. Those findings seem to embody the conclusion
that the reversal is not attributable to public pressure or publicity.
"During the period from September 6 to September 20, there was a daily
average of 63 defendants on the weekday lock-up list and 43 on the
Saturday list." Id., at 543, n. 183.

7

8

Commissioner Pertschuk dissented from the decision to issue a complaint
on the ground that it represented an unwise use of the FTC's scarce
resources. He did not, however, disagree with the conclusion that a
violation of law had been alleged. 107 F.T.C., at 512-513.
Section 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1,
provides:
"Every contract, combination in the form of trust or otherwise, or
conspiracy, in restraint of trade or commerce among the several States, or
with foreign nations, is declared to be illegal. Every person who shall
make any contract or engage in any combination or conspiracy hereby
declared to be illegal shall be deemed guilty of a felony, and, on
conviction thereof, shall be punished by fine not exceeding one million
dollars if a corporation, or, if any other person, one hundred thousand
dollars, or by imprisonment not exceeding three years, or by both said
punishments, in the discretion of the court."

9

The FTC found:
" '[T]he city's purchase of CJA legal services for indigents is based on
competition. The price offered by the city is based on competition,
because the city must attract a sufficient number of individual lawyers to
meet its needs at that price. The city competes with other purchasers of
legal services to obtain an adequate supply of lawyers, and the city's
offering price is an element of that competition. Indeed, an
acknowledgement of this element of competition is implicit in the
respondents' argument that an increase in the CJA fee was 'necessary to
attract, and retain, competent lawyers.' If the offering price had not
attracted a sufficient supply of qualified lawyers willing to accept CJA
assignments for the city to fulfill its constitutional obligation, then
presumably the city would have increased its offering price or otherwise
sought to make its offer more attractive. In fact, however, the city's
offering price before the boycott apparently was sufficient to obtain the
amount and quality of legal services that it needed.' " 272 U.S.App.D.C., at
278, 856 F.2d, at 232.
The Court of Appeals agreed with this analysis:
"The Commission correctly determined that the CJA regulars act as
'competitors' in the only sense that matters for antitrust analysis: They are
individual business people supplying the same service to a customer, and
as such may be capable, through a concerted restriction on output, of
forcing that customer to pay a higher price for their service. That the D.C.
government, like the buyers of many other services and commodities,
prefers to offer a uniform price to all potential suppliers does not alter in
any way the anti-competitive potential of the petitioners' boycott. The
antitrust laws do not protect only purchasers who negotiate each
transaction individually, instead of posting a price at which they will trade
with all who come forward. Nor should any significance be assigned to the
origin of the demand for CJA services; here the District may be compelled
by the Sixth Amendment to purchase legal services, there it may be
compelled by the voters to purchase street paving services. The reason for
the government's demand for a service is simply irrelevant to the issue of
whether the suppliers of it have restrained trade by collectively refusing to
satisfy it except upon their own terms. We therefore conclude, as did the
Commission, that the petitioners engaged in a 'restraint of trade' within the
meaning of Section 1." Id., at 281, 856 F.2d, at 235 (footnote omitted).

10

11

"In [Claiborne Hardware] we held that the First Amendment protected
the nonviolent elements of a boycott of white merchants organized by the
National Association for the Advancement of Colored People and
designed to make white government and business leaders comply with a
list of demands for equality and racial justice. Although the boycotters
intended to inflict economic injury on the merchants, the boycott was not
motivated by any desire to lessen competition or to reap economic benefits
but by the aim of vindicating rights of equality and freedom lying at the
heart of the Constitution, and the boycotters were consumers who did not
stand to profit financially from a lessening of competition in the boycotted
market. Id., at 914-915, 102 S.Ct., at 3426-3427. Here, in contrast,
petitioner was at least partially motivated by the desire to lessen
competition, and, because of petitioner's line of business, stood to reap
substantial economic benefits from making it difficult for respondent to
compete." Allied Tube & Conduit Corp., 486 U.S., at 508-509, 108 S.Ct.,
at 1941.
Respondents contend that, just as the Claiborne Hardware boycott sought
to secure constitutional rights to equality and freedom, the lawyers'
boycott sought to vindicate the Sixth Amendment rights of indigent
defendants. Claiborne Hardware, however, does not protect every boycott
having a constitutional dimension. Indeed, insofar as respondents seek
immunity from prosecution on the basis of their good intent, their theory
of defense "is merely another variety of an age-old argument." See United
States v. Cullen, 454 F.2d 386, 392 (CA7 1971). Claiborne Hardware
does not, and could not, establish a rule immunizing from prosecution any
boycott based upon sincere constitutional concerns. Such an exemption
would authorize the government's contractors in nearly all areas to
circumvent antitrust law on the basis of their own theory of the
government's obligations.

12

13

14

"A nonviolent and totally voluntary boycott may have a disruptive effect
on local economic conditions. This Court has recognized the strong
governmental interest in certain forms of economic regulation, even
though such regulation may have an incidental effect on rights of speech
and association. See Giboney v. Empire Storage & Ice Co., 336 U.S. 490
[69 S.Ct. 684, 93 L.Ed. 834 (1949) ]; NLRB v. Retail Store Employees,
447 U.S. 607 [100 S.Ct. 2372, 65 L.Ed.2d 377 (1980) ]. The right of
business entities to 'associate' to suppress competition may be curtailed.
National Society of Professional Engineers v. United States, 435 U.S. 679
[98 S.Ct. 1355, 55 L.Ed.2d 637 (1978) ]. Unfair trade practices may be
restricted. Secondary boycotts and picketing by labor unions may be
prohibited, as part of 'Congress' striking of the delicate balance between
union freedom of expression and the ability of neutral employers,
employees, and consumers to remain free from coerced participation in
industrial strife.' NLRB v. Retail Store Employees, supra, at 617-618 [100
S.Ct., at 2378-2379] (BLACKMUN, J., concurring in part). See
Longshoremen v. Allied International, Inc., 456 U.S. 212, 222-223, and n.
20 [102 S.Ct. 1656, 1662-1663, and n. 20, 72 L.Ed.2d 21 (1982) ]." 458
U.S., at 912, 102 S.Ct., at 3425.
"This Court has held that when '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 limitations 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." 391 U.S., at 376-377, 88 S.Ct., at 1678-1679.
See 458 U.S., at 912, 102 S.Ct., at 3425.

15

In our opinion in Jefferson Parish Hospital District No. 2 v. Hyde, 466
U.S. 2, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984), we noted that "[t]he rationale
for per se rules in part is to avoid a burdensome inquiry into actual market
conditions in situations where the likelihood of anticompetitive conduct is
so great as to render unjustified the costs of determining whether the
particular case at bar involves anticompetitive conduct. See, e.g., Arizona
v. Maricopa County Medical Society, 457 U.S. 332, 350-351 [102 S.Ct.
2466, 2476-2477, 73 L.Ed.2d 48] (1982)." Id., at 15-16, n. 25, 104 S.Ct.,
at 1559-1560, n. 25. The Court of Appeals overlooked the words "in part"
in that footnote, and also overlooked the statement in text that "there must
be a substantial potential for impact on competition in order to justify per
se condemnation." Id., at 16, 104 S.Ct., at 1560. As the following
paragraph from its opinion demonstrates, the Court of Appeals incorrectly
assumed that the per se rule against price fixing is "only" a rule of
administrative convenience:
"The antitrust laws permit, but do not require, the condemnation of price
fixing without proof of market power; even the per se rule, as the
Commission acknowledges in its brief, is only a rule of 'administrative
convenience and efficiency,' not a statutory command. FTC Brief at 39;
see Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U.S. 2, 15 n. 25
[104 S.Ct. 1551, 1560 n. 25, 80 L.Ed.2d 2] (1984). While the rule may
occasionally be overinclusive, condemning the ineffectual with the
harmful, there is no known danger that socially beneficial arrangements
will be prohibited, for price-fixing agreements rarely, if ever, have
redeeming virtues. As for the hapless but harmless, as Professor Areeda
has noted, defendants charged with conspiring to fix prices 'have little
moral standing to demand proof of power or effect when the most they can
say for themselves is that they tried to harm the public but were mistaken
in their ability to do so.' VII P. Areeda, Antitrust Law ¶ 1509 at 411
(1986)." 272 U.S.App.D.C., at 295, 856 F.2d, at 249.

16

"In sum, price-fixing cartels are condemned per se because the conduct is
tempting to businessmen but very dangerous to society. The conceivable
social benefits are few in principle, small in magnitude, speculative in
occurrence, and always premised on the existence of price-fixing power
which is likely to be exercised adversely to the public. Moreover,
toleration implies a burden of continuous supervision for which the courts
consider themselves ill-suited. And even if power is usually established
while any defenses are not, litigation will be complicated, condemnation
delayed, would be price-fixers encouraged to hope for escape, and
criminal punishment less justified. Deterrence of a generally pernicious
practice would be weakened. The key points are the first two. Without
them, there is no justification for categorical condemnation." 7 P. Areeda,
Antitrust Law ¶ 1509, pp. 412-413 (1986).

17

18

19

20

1

Cf. Markovits, The Limits to Simplifying Antitrust: A Reply to Professor
Easterbrook, 63 Texas L.Rev. 41, 80 (1984) (suggesting circumstances in
which a firm that lacks market power may nonetheless benefit from anticompetitive tactics).
"Very few firms that lack power to affect market prices will be sufficiently
foolish to enter into conspiracies to fix prices. Thus, the fact of agreement
defines the market." R. Bork, The Antitrust Paradox 269 (1978).
In response to Justice BRENNAN's opinion, and particularly to its
observation that some concerted arrangements that might be characterized
as "group boycotts" may not merit per se condemnation, see post, at 452,
n. 9, we emphasize that this case involves not only a boycott but also a
horizontal price-fixing arrangement—a type of conspiracy that has been
consistently analyzed as a per se violation for many decades. All of the
"group boycott" cases cited in Justice BRENNAN's footnote involved
nonprice restraints. There was likewise no price-fixing component in any
of the boycotts listed on pages 447-448 of Justice BRENNAN's opinion.
Indeed, the text of the opinion virtually ignores the price-fixing
component of respondents' concerted action.
On remand, the Court of Appeals should review respondents' objections to
the form of the order entered by the Commission. See 272 U.S.App.D.C.,
at 299, 856 F.2d, at 253.
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

3

4

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.
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.
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

6

7

8

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.
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.
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.
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.
This Court's recent decision in Mallard v. United States District Court, for
Southern Dist. of Iowa, 490 U.S. 296, 109 S.Ct. 1814, 104 L.Ed.2d 318
(1989), is not to the contrary. In that case, the Court held that a particular
federal statute, 28 U.S.C. § 1915(d), authorizing the District Court to
"request" that an attorney represent an indigent litigant, does not give the
court power to require an unwilling attorney to serve. The Court expressed
no opinion on "whether the federal courts possess inherent authority to
require lawyers to serve." 490 U.S., at 310, 109 S.Ct., at 1823. Indeed, by
way of background, the Court discussed numerous state and federal
statutes that do empower the courts to compel attorneys to serve. Id., at
302-308, 109 S.Ct., at 1818-21.