Hillary Greene’s recent article Antitrust Censorship of Economic Protest, 59 Duke L. J. 1037-1104 (2010) has already attracted the attention of the blogosphere, where Antitrust and Competition Policy Blogger, Daniel Sokol, named her a top female antitrust scholar worldwide and where her work was featured on the First Amendment Law Professor Blog. This praise is no surprise. This article identifies a significant flaw in contemporary law and proposes a practical, easy to grasp step towards a solution.
Hillary’s beef is with the short shrift current antitrust law gives to free speech values in the context of expressive boycotts other than those aimed at influencing legislative or regulatory policy. The case that draws her initial ire is FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S.411 (1990). There the Court found that criminal defense lawyers in D.C. had committed a per santitrust violation when these attorneys stopped taking cases in protest against the low rates the D.C. government was paying for criminal defense work. The FTC sued the boycotters, and the Supreme Court treated the defendants essentially as if they were dividing up a market via price fixing. Hillary deserves great credit for spotting the contrast between the slim protection given to speech values in this case and the general rules within free speech doctrine affording considerable protection to expressive conduct.
What Hillary argues convincingly is that boycotts of this kind reflect a worthwhile American tradition of attempting to influence behavior via protest. One of the best features of her piece is her description of the ways that boycotts are a particularly effective form of protest. (“skin-in–the-game” sacrifice shows you are serious). To acknowledge the importance of such expressive boycotts, Hillary argues, courts should dispense with per se analysis and employ a modified rule of reason. Her approach would be invoked when the boycotters could demonstrate a meaningful effort to influence the target by appeal to public opinion. In such cases, antitrust plaintiffs would need to prove competitive harm to prevail. In cases where the boycotters’ market share is low such proof would be hard to obtain. Moreover, courts would develop over time certain quantitative thresholds (e.g. safe harbor for less than 10% market share) so that Hillary’s rule would be relatively easy to administer. It’s hard not to stand up and cheer when a scholar not only spots a place of significant inconsistency in the law but also suggests a way toward better judicial results.
Given Hillary’s passionate defense of boycotts, however, it’s hard to ignore the limited nature of her proposed remedy. In cases where the economic boycott does cause competitive harm to the target, perhaps there should still be room for a court to find the boycott’s contribution to free speech weighty enough to preclude antitrust condemnation. Hillary explains quite well why she cannot support absolute immunity from antitrust scrutiny for all expressive boycotts. Left to be fully explored is the question of whether the perils of balancing speech against loss to competition are so grave as to demand the more narrow minded focus on competitive harm that the article embraces. Also left for future work are the complexities arising from the article’s many fine examples involving patents. Reader sympathy for scientists protesting restrictions placed on use of a patented item stems from a traditional commitment to free speech but also from intuitive hostility to over use of the patent. Accordingly, one could argue that a rule of reason approach should be applied in these patent cases even without invocation of First Amendment concerns.
These quibbles aside, this article clearly makes an important contribution to a matter of considerable public significance. It is nice to see it getting some of the attention it deserves. Congratulations Hillary.