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Companies often communicate with government agencies directly or through trade associations for a variety of reasons. But what happens when an adverse party tries to use comments made to the government or membership in an advocacy group as evidence in litigation?

Manufacturers facing product liability claims may be able to borrow a defense from the world of antitrust litigation to protect their lobbying efforts. Under the Noerr-Pennington doctrine, defendants sometimes can avoid liability for exercising their First Amendment right to petition or seek redress from the government. Since the doctrine was developed, courts have expanded its use outside of the antitrust context. We explore how this doctrine may be applied in product liability cases.

The Noerr-Pennington doctrine takes its name from two U.S. Supreme Court decisions involving the Sherman Antitrust Act.[1] In Eastern R.R. Presidents Conference v. Noerr Motor Freight, railroad companies petitioned Congress and state legislatures to pass legislation making it harder for trucking companies to enter the transportation industry.

The Court admitted that the goal blocking a potential competitor could lead to an improper restraint against trade under the Sherman Antitrust Act. All the same, the Court reasoned that the Sherman Act did not override the right to petition the government.[2] Since the defendants sought a lawful and protected means of influencing government decision making, their advocacy could not give rise to antitrust liability

Likewise, in United Mine Workers v. Pennington, a union and large mining company petitioned the Labor Department to raise the industrys minimum wage. Plaintiffs sued alleging that both organizations sought to price out smaller mining companies. The Court again held that the defendants lobbying sought a goal contrary to the Act, however, the First Amendment protected their advocacy. Specifically, the defendants exercised the freedom of association and the right to petition the government.[3]

The Supreme Court explored what activities are considered petitioning the government in California Motor Transport Company v. Trucking Unlimited. [4] It held that the Noerr-Pennington doctrine applied to appeals made to any government department legislative, executive, judicial, and administrative. Thus, two activities may fall under the protection of the doctrine: legislative lobbying[5] pertaining to a trade association that lobbies the government,[6] and filing litigation.[7]

One carve-out from the Noerr-Pennington doctrine is the sham exception. The Supreme Court has held that the doctrine does not apply to situations when the petitioner does not seek a governmental result, but rather merely uses the petitioning process to obstruct the other partys objectives.[8] If a party, for example, files a series of trivial lawsuits[9] or merely communicates with a government agency without an attempt to influence its decision making,[10] the doctrine might not apply.

Ultimately, the party opposing the application of the Noerr-Pennington doctrine bears the burden to show both objective and subjective reasons that an opposing partys government petition was a sham.[11]

Though the Noerr-Pennington doctrine emerged in the antitrust context, lower federal courts and state courts have applied the same principles to other types of claims, such as business interference[12] and common law tort claims.[13]

In line with this development, courts also have held that the Noerr-Pennington doctrine applies to claims arising in product liability suits. In Hamilton v. AccuTek, for example, the court granted summary judgment in favor of gun manufacturers for product liability and fraud claims in part because the manufacturers attempts to influence federal policies were lawful lobbying attempts.[14] Likewise, in In re Municipal Stormwater Pond, the court dismissed fraudulent misrepresentation or concealment claims against a coal tar sealant manufacturer because the Noerr-Pennington doctrine immunized its lobbying efforts before state and local governments.[15] In other cases, the Noerr-Pennington doctrine has been utilized to prevent admission of evidence of a manufacturers lobbying in products liability claims.[16]

These cases show that manufacturers can continue their advocacy efforts with some reassurance that their statements may not lead to future liability. There may be other applications of the doctrine. For example, manufacturers may wish to consider using Noerr-Pennington to exclude evidence of lobbying in all phases of litigation. In all cases, manufacturers should strategically consider the doctrine to challenge these claims.

[1] Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127 (1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965).

[2] Noerr, 365 U.S. at 140-41.

[3] Pennington, 381 U.S. at 670.

[4] California Motor Transport Company v. Trucking Unlimited, 404 U.S. 508, 509-10 (1972).

[5] Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499 (1988).

[6] Diaz v. Southwest Wheel, Inc., 736 S.W.2d 770 (Tex. App. 1987).

[7] Prof'l Real Estate Inv'rs, Inc. v. Columbia Pictures Indus., 508 U.S. 49, 60-61 (1993).

[8] City of Columbia v. Omni outdoor Advertising, Inc., 499 U.S. 365, 380 (1991).

[9] Kottle v. Nw. Kidney Ctrs., 146 F.3d 1056 (9th Cir. 1998).

[10] Litton Systems v. American Telephone & Telegraph Co., 700 F.2d 785 (2d Cir. 1983).

[11] Prof'l Real Estate Inv'rs, Inc., 508 U.S. at 60-61.

[12] Sierra Club v. Butz, 349 F.Supp. 934 (N.D. Cal 1972).

[13] Video Intl Prod., Inc. v. Warner-Amex Cable Comm., Inc., 858 F.2d 1075, 1084 (5th Cir. 1988).

[14] Hamilton v. Accu-Tek, 935 F. Supp. 1307, 1321 (E.D.N.Y. 1996).

[15] In re Mun. Stormwater Pond, No. 18-cv-3495 (JNE/KMM), 2019 U.S. Dist. LEXIS 227887, at *12 (D. Minn. Dec. 20, 2019).

[16] Eiser v. Brown & Williamson Tobacco Corp., 2005 Phila. Ct. Com. Pl. LEXIS 43, *20, 2005 WL 1323030.

Excerpt from:
Practice Pointer: How Manufacturers Can Protect Their Lobbying Efforts With the Noerr-Pennington Doctrine - JD Supra

A book about Motown Productions, the film and television arm of the legendary Motown Records; preservation of the traditional language and lifestyle of Yupik and Cupik Alaskan Native people; and research on how communities and insurance companies in Bermuda understand risk caused by rising sea levels and climate change are among the 245 projects across the country that are receiving new grants from the National Endowment for the Humanities.

The grants, which total $33.17 million, support historic collections, exhibitions and documentaries, humanities infrastructure, scholarly research and curriculum projects.

Among the 13 categories in which the grants were awarded, the most money $11 million went toward 23 infrastructure and capacity building challenge grants, which leverage federal funds to spur nonfederal support for cultural institutions.

Included in those were awards to the Bishop Museum in Honolulu, to make collections documenting Hawaiian and Pacific history and culture more accessible, and to the First Peoples Fund in Rapid City, S.D., to create outdoor classroom spaces for education programs about the Lakota cultural traditions at the Pine Ridge Reservations Oglala Lakota Artspace.

Thirty projects in New York state will receive $4.4 million in total funding, with $3.76 million going to 16 groups and individuals in New York City.

In Brooklyn, UnionDocs will get $644,525 for the production of a film about the First Amendment and the balance between free speech principles and other core values. (The project is titled Speaking Freely: The First Amendment and the Work of Preeminent Attorney Floyd Abrams and will be directed by Yael Melamede.)

In Long Island City, LaGuardia Community College will see $34,991 to create a liberal arts health humanities option with an interdisciplinary curriculum for undergraduates that focuses on the social, cultural and historical contexts of medical ethics, health and medicine.

And in Manhattan, the Lower East Side Tenement Museum will receive $400,000 to support guided tours exploring the lives of African Americans and Irish immigrants in 19th-century New York City. Women Make Movies, also in Manhattan, will receive $500,000 toward the production of a film that explores the life and work of the Caribbean writer Jamaica Kincaid. The movie, Jamaica Kincaid: Liberating the Daffodil, will be directed by Stephanie Black.

This crop of grants is the first round of funding from the agency under Shelly C. Lowe, the first Native American to lead the agency.

N.E.H. is proud to support these exemplary education, media, preservation, research and infrastructure projects, Lowe said in a statement. These 245 projects will expand the horizons of our knowledge of culture and history, lift up humanities organizations working to preserve and tell the stories of local and global communities, and bring high-quality public programs and educational resources directly to the American public.

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National Endowment for the Humanities Announces $33.17 Million in Grants - The New York Times

Clarksville, TN In December 1965, five Des Moines teenagers were kicked out of school for wearing armbands. The students slipped on black fabric strips that morning to protest the Vietnam War, and once their suspension made headlines, a few legal experts wondered about the teenagers freedom of speech.

A long court battle ensued, with the Tinker v. Des Moines Independent Community School District case eventually reaching the U.S. Supreme Court.In a landmark 1969 decision, the court ruled in favor of the students, with Justice Abe Fortas writing in his majority opinion, It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.More than 50 years later, with the First Amendment once again inspiring contentious political debates, a new book co-edited by Dr. Prentice Chandler, dean of Austin Peay State Universitys Eriksson College of Education, is taking a fresh look at the rights of students and teachers in the 21st century.

At the Schoolhouse Gate: Stakeholder Perceptions of First Amendment Rights and Responsibilities in U.S. Public Schools, is now available from Information Age Publishing as part of its Teaching and Learning Social Studies series.

It is clear that in order to prepare children for participation in a democracy, democratic ideals and practices should be a part of their education, Chandler said. It is not an add-on to democratic education; it is democratic education. And, this education unfolds in the context of political upheaval, racial inequity and economic uncertainty. The mission of our schools is to prepare young people for entry into the world as itisnot the one that we wish existed.

Under Chandlers leadership, the Eriksson College of Education has earned a national reputation for its innovation in teacher preparation and recruitment. In January, Austin Peay State University and the Clarksville-Montgomery County School System began offering the first federally registered apprenticeship program for teaching in the country.

Dr. Nancy C. Patterson, Bowling Green State University (BGSU) professor of education, co-edited the book with Chandler. Patterson, the recipient of BGSUs 2020 Professor of Teaching Excellence Award, is known on her campus as a staunch advocate for social studies education who seeks to constantly improve the middle childhood and young adult education curricula.

Her research focuses on democratic classroom and school pedagogies and structures, along with academic freedom and equity in assessment regimes.

The book is divided into three sections Foundations, Case Studies of Rights in Schools and Choices to Act and it features essays from leading education and legal scholars.

At the Schoolhouse Gate is available through the Information Age Publishing website or at Amazon.com.

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Austin Peay State University dean, Bowling Green professor release new book on First-Amendment rights in schools - Clarksville Online

By Dan Haggerty, WRAL anchor/reporter

Election season is upon us with the primary election set for May 17 and the general election held on Nov. 8.

With it, comes all kinds of advertisements from candidates running for political office.

Earlier this month, I received an email from a WRAL News viewer named James.

Hey Dan, Im a big fan of what you do with your pieces, James wrote. It would be nice to some of us viewers if WRAL could give us a 10 second heads up that a political ad is imminent so we can hit the MUTE button.

North Carolina famously loves its political ads. Sometimes, we run more than any other state, which is ironic considering many of us dont really care for them.

Los Angeles Times staff reporter Noah Bierman published a story in October 2020 entitled Everyone is sick of watching: Political ads overwhelm North Carolina.

As we approach next months primaries political ad spending has surged here boosted by outside groups which reminded my WRAL executive producer Ashley Talley of one of her favorite political ads.

The advertisement reads: Don't let out-of-state money buy your vote. Guess where the money came to pay for that ad? Out of state! Its actually kind of funny until you remember youre being manipulated by people vying for power.

To clarify for any reader, listener or viewer, here is something that I hope you already know. Political ads are allowed to mislead you. In fact, many of them are designed to do just that.

I recently met with Raleigh-based attorney Michael Weisel whose job it is to review ads before theyre published.

I asked Weisel the following question: Would you say that people making these ads often try to push the language as far as they possibly can before breaking the law?

Well, of course, breaking the law is sort of a fuzzy term too, right? Weisel said. Theres not a statute that says, Thou shall not lie.' Maybe exaggeration is an appropriate way of saying something.

I also asked Weisel whether people flat out lie in political ads

Well, certainly, they can and they have, he said.

When people have a problem with the lies, its explained in the First Amendment, in which free speech is protected. A candidate has free speech, meaning they can say anything they want.

However, if they say something thats factually and provably untrue, they can be sued in civil court for slander, but thats extremely expensive and very hard to prove.

Like Weisel said, Its fuzzy territory.

Free speech in general is not entirely free, like in ads. For instance, Coca-Cola cant say its new product dubbed Coke Eternal will make you live forever. This would be an example of deceptive language, which is regulated by the Federal Trade Commission. Its called Truth in Advertising.

University of North Carolina at Chapel Hill School of Law Professor William Marshall explained why speech is regulated when someone is selling products for profit and not someone selling ideas for power.

Political speech is different than commercial speech, Marshall said. Sometimes, figuring out the line between the two, as you can figure, might not always be that easy, but there is a basic difference in the way the court views restrictions on political speech as opposed to commercial speech.

Here we are, back to square one. Politicians can say whatever they want and youre tired of hearing it what can we do?

Another viewer named Les wrote an email to me.

Hey Dan, please work with the producers of WRAL to stop all these negative political ads, Les wrote.

Ah, the greedy TV stations. Why dont we just stop playing the political ads? Well, its because we cant, at least not entirely.

There are two types of political ads:

When it comes to candidate ads the rule is simple we cant say no. They can say anything they want and we must air it anything. They could literally make a commercial that says their opponent is a werewolf who kills cattle at night, and we would have to run it. The Federal Communications Commission has a rule that says broadcasters can't censor that content. Also, if a TV station sells airtime to one side, the station must also offer equal time to the other side.

However, PAC ads are different. A TV station doesnt have to air them, and we have lawyers look at them for potential legal issues.

Generally, those are the rules. However, the rules differ between networks and cable stations. For social media websites, and some sites like Twitter censor people, and other places dont. Its confusing.

There is not one set of rules across the board. Some people may feel there should be.

"Of course, then you get into censorship and the First Amendment, and I think we all believe, particularly these days, the First Amendment is a really important right, and the ability to criticize, Weisel said. I mean, one persons lie, which is not really a lie, is somebody elses truth.

One persons lie, which is not really a lie, is somebody elses truth. Thats politics, baby.

Any viewer curious about a specific ad can always check out the PolitiFact Truth Meter on WRAL.com.

Dan Haggerty is a reporter and anchor for WRAL. Hes won four regional Emmy awards for his anchoring and reporting in in Fort Myers, Florida; Cleveland; San Diego; Dallas; Portland, Oregon and Raleigh, North Carolina. He is proud to call the Triangle home.

Anyone who has an idea for In Depth with Dan can email him at dan@wral.com.

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Political ads are allowed to mislead you and are often designed to do so - WRAL News

Opinion: I sued and won when Arizona tried to ban boycotts on Israel. It's still a bad idea when applied to the firearms industry or (insert your issue here).

Mikkel Jordahl| opinion contributor

I received news with alarm last month thatHouse Bill2473 won passage in the Arizona House.It would ban state or local governments from granting contracts to companies unless they pledge that they wont boycott the firearms industry.

On March 29, the legislationpassedthe Senate Appropriations Committee, and is poised to pass the Senate.

The bill is based on a previous Arizona law that we challenged in court and was ruled unconstitutional.

In 2016, Arizona adopted legislation thatprohibitedthe state from contracting for services unless the contractor signed a certification that they wouldn't boycott Israel. The anti-boycott law (amended in 2019)was supportedby all Republicans and six Democrats in the ArizonaHouse.

My law practice hadbeen providing services to local Arizona government, such aslegally advising inmates in Coconino County.Not signing the certification would have endangered my livelihood.

I thoughtabout recent experiences visiting Israel and the West Bank. The structural discrimination of Palestinians that I witnessed amounted to apartheid, as has been recently confirmed byAmnesty International.

I believe in boycotting apartheid but I also believe in protecting Americans First Amendment rights.As an attorney, Ive sued Arizonafor my clientson multiple civil rights issues. So, instead of signing the pledge, I sued Arizona again this time as a plaintiff.

Boycotting is affirmed as a First Amendment rightby the U.S. Supreme Court.Its integral to our American story, from boycotting British teatotheMontgomery bus boycott.

The Supreme Court also long-prohibited awarding government contracts based on political speech.Consequently, states have been losing cases that challengedthese anti-boycott laws.

Inmy case, U.S. District Court JudgeDianeHumetewa banned enforcement of Arizonas law.Instead of addressing the laws unconstitutionality, however, Arizona legislators amended it to applyonly to companies with 10 or more employees and onlyto contracts of more than$100,000.

With this change, the Legislature succeeded in making my case moot.

Just Visions new documentary "Boycott" chronicles my story alongside others challenging their states anti-boycott laws. Participating in this documentary opened my eyes tothe funding pipeline from the Israeli government to evangelical and pro-Israel lobbying organizations.

It also revealed how the conservative American Legislative Exchange Council drafted this model bill for nationwide use; there are34states with laws penalizing individuals, companies or organizations' boycotts of Israel.

Its increasingly clear that Arizonas Israel anti-boycott law was a prelude to quell our rights on multiple issues.HB 2473 banning boycotts of gun makers uses almost precisely the same language as the law I challenged.

Theres legislation cropping up in Arizona and elsewhere, modeled after the Israel anti-boycott law, prohibitingbusinesses contracting with the state to require COVID-19 vaccinations.

This suppression extends beyond Arizona. Texas banned contracts with entities thatboycott firearmsand fossil fuels.There areat leasteight blatantly unconstitutional bills nationwide cutting the word Israel and pasting in other issues.

All of Arizonas House Republicansvoted forHB 2473. All Democrats voted against it.

I wonder, however, about those six Democrats who voted for the Israel anti-boycott law. Do they realize the extent to which supporting that law damaged our freedom of speech? Perhaps they thought our special relationship to Israel justified abrogating theFirstAmendment.

But there can be no sacred cows when it comes to constitutional rights. Those Democrats opened a Pandoras box of political patronage that may be imposed by whichever party wields power.

Republicans would be wise to remember that party power shifts; the same model legislation used to penalize boycotts of Israel and firearms today, could be used to punish contractors who boycott Planned Parenthood tomorrow.

This dangerous trend has no end.

If government contractors are required to sign away their free speech today, will government employees be required to sign it away tomorrow? Will Americans need to pass political litmus tests before receiving government assistance, or attending state universities? It smacks of despotism more than democracy.

Before the Senate votes onHB 2473, I hope my fellow Arizonans will join me in sending this message: Government has no business using their purse strings to silence us.The more they try, the louder well speak out.

MikJordahlis a practicing attorney in Arizona and a protagonist of the Just Vision film "Boycott." He was represented by the ACLU. Reach him atmikkeljordahl@yahoo.com.

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Why a bill to stop firearms industry boycotts could backfire for Republicans - The Arizona Republic