Federal Trade Commission v. Superior Court Trial Lawyers Association
Decided on Jan. 22, 1990; 493 US 411


A. Issues Discussed:  1st Amendment (press, speech, association)

B. Legal Question Presented: 

Did the lawyers' concerted conduct violate Section 5 of the Federal Trade Commission Act and, if so, was their behavior nevertheless protected by the First Amendment to the Constitution?

A. Background:

A group of private practice lawyers who regularly acted as court-appointed 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 Section 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 similar boycotts in the future. The Court of Appeals, although acknowledging that the boycott was a "classic restraint of trade" in violation of Section 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, an incidental restriction on such expression could not be justified unless it was no greater than was essential to an important governmental interest. The FTC appealed the holding of the Court of Appeals and the United States Supreme Court reviewed the case.
B. Counsel of Record:
Opposing Side
Ernest J. Isenstadt argued the cause for petitioner.  On the briefs were Acting Solicitor General Bryson, Acting Assistant Attorney General Boudin, Kevin J. Arquit, Jay C. Shaffer, and Karen G. Bokat.

Willard K. Tom argued the cause for respondents.   With him on the brief for the Superior Court Trial Lawyers Association were Donald I. Baker, David T. Shelledy, and Michael L. Denger. Douglas E. Rosenthal filed a brief for Ralph J. Perrotta.
C. The Arguments:
Opposing Side
Unavailable Unavailable 
Opposing Side
Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union, et al., by William Warfield Ross, Gerald P. Norton, John A. Powell, Arthur B. Spitzer, and Elizabeth Symonds; for the State of South Dakota, et al., by Roger A. Tellinghuisen, Attorney General of South Dakota, and Jeffrey P. Hallem, Assistant Attorney General; Robert K. Corbin, Attorney General of Arizona; Douglas B. Baily, Attorney General of Alaska; Richard D. Monkman, Assistant Attorney General; Duane Woodard, Attorney General of Colorado; Thomas P. McMahon, First Assistant Attorney General of Delaware; Charles M. Oberly III, Attorney General of Delaware; David G. Culley, Deputy Attorney General of Delaware; Warren Price III, Attorney General of Hawaii; Thomas J. Miller, Attorney General of Iowa; John R. Perkins, Deputy Attorney General Iowa; Robert T. Stephan, Attorney General of Kansas; John W. Campbell, Deputy Attorney General of Kansas; Mark S. Braun, Assistant Attorney General of Kansas; Frederic J. Cowan, Attorney General of Kentucky; James M. Ringo, Assistant Attorney General of Kentucky; William J. Guste, Jr., Attorney General of Louisiana; Anne F. Benoit, Assistant Attorney General of Louisiana; J. Joseph Curran, Jr., Attorney General of Maryland; Michael F. Brockmeyer and Ellen S. Cooper, Assistant Attorneys General of Maryland; Robert M. Spire, Attorney General of Nebraska; Dale A. Comer, Assistant Attorney General of Nebraska; Jim Mattox, Attorney General of Texas; Mary F. Keller, First Assistant Attorney General of Texas; Lou McCreary, Executive Assistant Attorney General of Texas; Allene D. Evans, Assistant Attorney General of Texas; Donald J. Hanaway, Attorney General of Wisconsin; Mark E. Musolf, Deputy Attorney General of Wisconsin; Kevin J. O'Connor and Matthew J. Frank, Assistant Attorneys General of Wisconsin; and for the National Association of Criminal Defense Lawyers by Rick Harris. Briefs of amici curiae urging affirmance were filed for the American Medical Association by Jack R. Bierig and Carter G. Phillips; and for the Washington Council of Lawyers, et al., by Andrew J. Pincus

"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.

The judgment of the Court of Appeals is accordingly reversed insofar as that court held the per se rules inapplicable to the lawyers' boycott."
Justice Vote: 9 Pro vs. 0 Con

  • Stevens, J. Pro (Wrote majority opinion)
  • Rehnquist, W. Pro (Joined majority opinion)
  • White, B. Pro (Joined majority opinion)
  • O’Connor, S. Pro (Joined majority opinion)
  • Scalia, A. Pro (Joined majority opinion)
  • Kennedy, A. Pro (Joined majority opinion)
  • Brennan, W. Pro (Wrote opinion concurring in part and dissenting in part)
  • Marshall, T. Pro (Joined Brennan’s opinion)
  • Blackmun, H. Pro (Wrote opinion concurring in part and dissenting in part)

The ACLU filed as amicus urging reversal; the Supreme Court reversed the ruling of the US Court of Appeals for the District of Columbia Circuit in a unanimous 9-0 vote, giving the ACLU an apparent win.