First Amendment Protection for Unfair Labor Practices?

Reexamining the Noerr-Pennington Doctrine

The U.S. Supreme Court's decisions in Noerr and Pennington invoked the First Amendment to protect from antitrust liability the act of collectively petitioning legislatures and agencies for favorable regulations. Through what has become known as the Noerr-Pennington doctrine, courts have extended First Amendment protection for various other petition activities outside the antitrust context. Recently, the D.C. Circuit further expanded Noerr-Pennington when it held that the act of summoning the police was a direct petition to the government protected from unfair labor practice liability by the Noerr-Pennington doctrine. The practical result of the holding was that the employer’s otherwise unlawful intimidation of lawfully present union strikers could no longer be considered an unfair labor practice under the NLRA.

This Note argues that Noerr-Pennington is incompatible with, and contrary to, the purposes of the NLRA. Expansion of the doctrine into the labor law realm would constrain employees' § 7 rights, and would make lawful conduct that Congress intended to proscribe when it passed the NLRA.

The full text of this Note is available to download as a PDF.