Nahmod Law

What is the Noerr-Pennington Doctrine and What Does It Have to Do with Section 1983?

The Noerr-Pennington Doctine and Section 1983

Under the Noerr-Pennington doctrine, which is informed by the First Amendment’s Petition Clause, “parties who petition the government for governmental action favorable to them cannot be prosecuted under the antitrust laws even though their petitions are motivated by anticompetitive intent.” Video Intern. Production, Inc. v. Warner-Amex Cable Communications, Inc., 858 F.2d 1075, 1084 (5th Cir. 1988). In the antitrust setting, this doctrine is based on two cases: Eastern R. R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and United Mine Workers of America v. Pennington, 381 U.S. 657 (1965).

Perhaps surprisingly, there may also be absolute immunity from section 1983 liability for private parties who petition governments for favorable treatment which is anticompetitive, just as there is Noerr-Pennington1 immunity from prosecution under the antitrust laws. As the Second Circuit explained in Hirschfeld v. Spanakos, 104 F.3d 16, 19 (2d Cir. 1997): “The Noerr immunity doctrine protects plaintiffs from damage claims based on the institution of a suit in certain situations. The doctrine originated in the antitrust area, but it has been extended to provide immunity from liability for bringing other suits.”

An Example from the Seventh Circuit

For example, the Seventh Circuit inTarpley v. Keistler, 188 F.3d 788 (7th Cir. 1999), applied Noerr-Pennington immunity in a case where the plaintiff, an unsuccessful candidate for a permanent position at a state hospital, sued state officials and officials of a political party alleging that they conspired against him to deny him the position (as well as a temporary position leading to the permanent one) because of his political affiliation and instead to give it to another, all in violation of the First Amendment. Ruling against the plaintiff on Noerr-Pennington grounds in connection with his claim against party officials regarding the temporary position, the Seventh Circuit determined that they were exercising their First Amendment right to petition the government to recommend one of their own party for the temporary position. “Making suggestions about whom to hire is a traditional form of political activity.”

Asserting that it was balancing plaintiff’s First Amendment rights against those of the party officials, the Seventh Circuit went on to say that it would not vindicate plaintiff’s First Amendment rights at the expense of the party officials who recommended that a party member be hired for the temporary position. It affirmed the district court’s grant of summary judgment for the party officials, distinguishing between plaintiff’s constitutional right not to be excluded from a public job because of his political affiliation under Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990) and the right of a citizen to recommend another for public employment.

Judge Ripple dissented, 188 F.3d at 797. He argued that based on the evidence before the court, this was not a case in which party officials simply advocated the hiring of someone other than plaintiff, but rather one in which they conspired with state officials to define and limit the pool of candidates for the temporary vacancy on party affiliation grounds. He also contended that the majority had no basis for preferring the alleged First Amendment right of the party officials to the well-established First Amendment right of the plaintiff.

The Sham Exception to Noerr-Pennington Immunity

However, there is a “sham” exception to Noerr-Pennington immunity. In an antitrust case with implications for section 1983 as well, the Supreme Court defined this “sham” exception when it declared in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, 508 U.S. 49, 113 S. Ct. 1920 (1993), that antitrust litigation will not be deprived of Noerr-Pennington immunity unless that litigation is objectively baseless. The Court elaborated:

“We now outline a two-part definition of ‘sham’ litigation. First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail. Only if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals ‘an attempt to interfere directly with the business relationship of a competitor’ … through the ‘use of the governmental process–as opposed to the outcome of that process–as an anticompetitive weapon.’ This two-tiered process requires the plaintiff to disprove the challenged lawsuit’s legal viability before the court will entertain evidence of the suit’s economic viability.”

After Professional Real Estate Investors, Inc, then, a plaintiff who alleges that the defendant instituted litigation violative of the antitrust laws and section 1983 will be confronted by the Noerr-Pennington immunity of the defendant unless the plaintiff can demonstrate that the defendant’s litigation was a sham within the meaning of the Court’s two-part test.

The “Sham” Exception Applied by the Ninth Circuit

For example, In Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 643 (9th Cir. 2009), the plaintiff, formerly a landowner, sued a representative of a school district and the law firm that represented it in an earlier eminent domain proceeding involving her property, alleging that they violated her constitutional rights by their acts that led to a much lower valuation of her property than was awarded her. Dismissing the plaintiff’s section 1983 claims, the district court found Noerr-Pennington immunity applicable because the challenged conduct was “incidental to First Amendment-protected petitioning activity.” It also found that plaintiff’s complaint did not fall within the sham exception to Noerr-Pennington “because [plaintiff] had not supported her position that defendants’ alleged intentional misrepresentations to the court ‘depriv[ed] the condemnation proceeding of its legitimacy.’” Reversing on this issue, the Ninth Circuit ruled that the sham exception to Noerr-Pennington immunity applied in this case. The plaintiff’s allegations as to intentional misrepresentations to the court through suppression of evidence were sufficient, and the district court erred in requiring “support” at the motion to dismiss stage.


Noerr-Pennington immunity may apply to protect section 1983 defendants whose challenged anticompetitive conduct is potentially protected by the Petition Clause of the First Amendment. Neverthless, this immunity may be lost if the defendants’ litigation was a sham with the meaning of the Supreme Court’s decision in Professional Real Estate Investors, Inc.

All in all, this can be quite arcane and unfamiliar to attorneys.

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Written by snahmod

April 13, 2021 at 10:01 am

Posted in Uncategorized

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