Over the past three decades, anti-SLAPP statutes have become a familiar part of the litigator’s toolkit. When a lawsuit targets speech or petitioning activity, many lawyers instinctively reach for statutory anti-SLAPP protections and the procedural advantages they provide. In the process, however, an older, and often broader, defense has been pushed into the background: the Noerr-Pennington doctrine.
Noerr-Pennington remains one of the most effective civil defenses when faced with a claim arising from a party’s petitioning activity. Unlike many anti-SLAPP statutes, application of the doctrine does not hinge on whether the petitioning activity involves a matter of public concern. And to overcome application of the Noerr-Pennington doctrine, a plaintiff must prove that a defendant’s petitioning activity was both objectively and subjectively baseless.
In an era when courts frequently wrestle with the scope of anti-SLAPP statutes, the Noerr-Pennington doctrine continues to provide broad constitutional protection for genuine efforts to influence governmental action, even when the dispute is entirely private.
Constitutional Origins
The Noerr-Pennington doctrine traces its roots to two Supreme Court decisions: Eastern Railroad 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).
In Noerr, the Supreme Court held that railroads could not be subjected to antitrust liability for lobbying government officials to adopt legislation that would disadvantage competitors.[1] The Court reasoned that Congress could not have intended the Sherman Act to punish citizens for exercising their constitutional right to petition government.[2] Pennington reaffirmed and expanded that principle,[3] and California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 515 (1972), later extended the doctrine beyond legislative lobbying to administrative proceedings and litigation itself.
Although born in the antitrust context, the doctrine rests on broader constitutional principles. As the Supreme Court has explained, the rights “to assemble peaceably and to petition for a redress of grievances are among the most precious of the liberties safeguarded by the Bill of Rights.”[4] Because of those constitutional foundations, courts have extended the Noerr-Pennington doctrine far beyond antitrust claims.
Rhode Island courts have embraced that view. For example, in Hometown Properties, Inc. v. Fleming, 680 A.2d 56, 60 (R.I. 1996), the Rhode Island Supreme Court observed that Noerr-Pennington “takes precedence over common-law tort doctrines” and statutory causes of action. Likewise, in Pound Hill Corp. v. Perl, 668 A.2d 1260, 1264 (R.I. 1996), the court recognized the doctrine’s First Amendment roots and its role in protecting petitioning activity, but only when such petitioning is not a “sham.”
The Sham Exception
The limiting principle of the Noerr-Pennington doctrine is the so-called “sham exception” established by the Supreme Court in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993). In accordance with the exception, petitioning activity in the form of litigation loses First Amendment protection only if it is both objectively and subjectively baseless. Litigation is objectively baseless if “no reasonable litigant could realistically expect success on the merits.”[5] If there is any reasonable basis for the litigation, the analysis ends and immunity applies. “Only if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation.”[6] At that stage, the question is whether a defended used “the governmental process itself—as opposed to the outcome of that process—as” a weapon.[7] In other words, a party does not lose protection simply because it seeks a competitive advantage or hopes to harm a rival through lawful governmental action.
Anti-SLAPP Statutes and the Noerr-Pennington Doctrine are Not Interchangeable
The rise of anti-SLAPP statutes has caused many practitioners to overlook the Noerr-Pennington doctrine, but anti-SLAPP statutes and Noerr-Pennington are not interchangeable.
Many anti-SLAPP statutes focus on speech or petitioning relating to matters of public concern.[8] Courts applying those statutes often must determine whether the challenged activity involves public participation, public issues, or matters of societal importance.[9] If the dispute is purely private, anti-SLAPP protection may be unavailable.
While anti-SLAPP defenses are hamstrung by the public concern element, the Noerr-Pennington doctrine imposes no such requirement. Whether the party seeks a zoning variance, files an administrative complaint, initiates litigation, opposes a competitor’s permit application, or advocates for governmental action affecting only a handful of private actors, the constitutional protection remains the same. The inquiry is not whether the issue is newsworthy or politically significant; the inquiry is whether the conduct constitutes genuine petitioning activity.
That distinction is particularly important in commercial litigation. Businesses frequently engage in petitioning activity directed at courts, agencies, licensing boards, or regulatory bodies over disputes that have little public significance. Such disputes may fall outside the reach of anti-SLAPP statutes while remaining squarely within the protection of Noerr-Pennington.
The doctrine has also proven resistant to efforts to create broad motive-based exceptions. Courts have repeatedly held that allegations of improper intent, including claims that petitioning activity was retaliatory, do not by themselves defeat immunity. As the Fifth Circuit observed in Bayou Fleet, Inc. v. Alexander, 234 F.3d 852, 861–62 (5th Cir. 2000), the Supreme Court has never recognized a separate retaliation exception to the Noerr-Pennington doctrine.
Noerr-Pennington Remains a Potent Defense
Despite being overshadowed by anti-SLAPP statutes, the Noerr-Pennington doctrine remains a formidable defense. It is derived from the First Amendment itself, applies across a wide range of petitioning activities, and frequently can be asserted at the pleading stage.[10] Courts have also imposed substantial burdens on plaintiffs seeking to overcome the doctrine, requiring specific factual allegations supporting application of the sham exception. For businesses facing claims arising from their litigation efforts, administrative filings, lobbying efforts, or other petitioning conduct, the Noerr-Pennington doctrine deserves renewed attention.
[1] E. R. R. Presidents Conf., 365 U.S. at 145.
[2] Id. at 136–37.
[3] Pennington, 381 U.S. at 669.
[4] United Mine Workers of Am., Dist. 12 v. Illinois State Bar Ass’n, 389 U.S. 217, 222 (1967).
[5] Pro. Real Est. Invs., Inc., 508 U.S. at 60.
[6] Id.
[7] City of Columbia v. Omni Outdoor Advert., Inc., 499 U.S. 365, 366 (1991).
[8] E.g., R.I. Gen. Laws § 9-33-2.
[9] Sisto v. Am. Condo. Ass’n, Inc., 68 A.3d 603, 615 (R.I. 2013).
[10] United Food & Com. Workers Unions & Emps. Midwest Health Benefits Fund v. Novartis Pharms. Corp., 902 F.3d 1, 16 (1st Cir. 2018) (dismissing complaint for failure to plausibly allege facts that were merit the application of the sham exception).
About The Author
Colten H. Erickson
Colten is a member of Adler Pollock & Sheehan’s litigation department, where he focuses his practice on maritime law, financial services…
