FTC v. Superior Court Trial Lawyers Ass'n

U.S. Supreme Court FTC v. Superior Ct. TLA, 493
U.S. 411 (1990) Federal Trade Commission v. Superior
Court Trial Lawyers
Association Nos. 88-1198, 88-1393 Argued Oct. 30, 1989 Decided Jan. 22, 1990 493
U.S. 411 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT Syllabus A group of lawyers in private practice 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 § 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 future such boycotts. The Court of Appeals, although
acknowledging that the boycott was a "classic restraint of trade"
in violation of § 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, 391 U.
S. 367 , an incidental restriction on such expression
could not be justified unless it was no greater than was essential
to an important governmental interest. Reasoning that this test
could not be satisfied by the application of an otherwise
appropriate per se rule, but instead requires the
enforcement agency to prove rather than presume that the evil
against which the antitrust laws are directed looms in the conduct
it condemns, the court remanded for a determination whether
respondents possessed "significant market power." Page 493 U. S. 412 Held: 1. Respondents' boycott constituted a horizontal arrangement
among competitors that was unquestionably a naked restraint of
price and output in violation of the antitrust laws. Respondents'
proffered social justifications for the restraint of trade do not
make the restraint any less unlawful. Nor is respondents' agreement
outside the coverage of the antitrust laws under Eastern
Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127 ,
simply because its objective was the enactment of favorable
legislation. The Noerr doctrine does not extend to
horizontal boycotts designed to exact higher prices from the
government simply because they are genuinely intended to influence
the government to agree to the conspirators' terms. Allied Tube
& Conduit Corp. v. Indian Head, Inc., 486 U.
S. 492 , 486 U. S. 503 . 493 U. S. 421-425.

															2. Respondents' boycott is not immunized from antitrust
regulation by NAACP v. Claiborne Hardware Co., 458 U. S. 886 ,
which held that the First Amendment prevented a State from
prohibiting a politically motivated civil rights boycott. Unlike
the boycott upheld in Claiborne Hardware, the undenied
objective of this boycott was to gain an economic advantage for
those who agreed to participate. 458 U.S. at 458 U. S.
914 -915. 493 U. S. 425-428.

															3. 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 Page 493 U. S. 413 do not themselves have the power to control market prices. Pp. 493 U. S.
428 -436.

															272 U.S.App.D.C. 272, 856 F.2d 226 (CADC 1988), reversed in part
and remanded.

															STEVENS, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ.,
joined, and in Parts I, II, III, and IV of which BRENNAN, MARSHALL,
and BLACKMUN, JJ., joined. BRENNAN, J., filed an opinion concurring
in part and dissenting in part, in which MARSHALL, J., joined, post, p. 493 U. S. 436 .
BLACKMUN, J., filed an opinion concurring in part and dissenting in
part, post, p. 493 U. S.
453 Page 493 U. S. 414 Justice STEVENS delivered the opinion of the Court.

															Pursuant to a well-publicized plan, a group of lawyers agreed
not to represent indigent criminal defendants in the District of
Columbia Superior Court until the District of Columbia government
increased the lawyers' compensation. The questions presented are
whether the lawyers' concerted conduct violated § 5 of the Federal
Trade Commission Act and if so, whether it was nevertheless
protected by the First Amendment to the Constitution. [ Footnote 1 ] I The burden of providing competent counsel to indigent defendants
in the District of Columbia is substantial. During 1982,
court-appointed counsel represented the defendant in approximately
25,000 cases. In the most serious felony cases, representation was
generally provided by full-time employees of the District's Public
Defender System (PDS). Less serious felony and misdemeanor cases
constituted about Page 493 U. S. 415 85 percent of the total caseload. In these cases, lawyers in
private practice were appointed and compensated pursuant to the
District of Columbia Criminal Justice Act (CJA). [ Footnote 2 ]

															Although over 1,200 lawyers have registered for CJA
appointments, relatively few actually apply for such work on a
regular basis. In 1982, most appointments went to approximately 100
lawyers who are described as "CJA regulars." These lawyers derive
almost all of their income from representing indigents. [ Footnote 3 ] In 1982, the total fees
paid to CJA lawyers amounted to $4,579,572.

															In 1974, the District created a Joint Committee on Judicial
Administration with authority to establish rates of compensation
for CJA lawyers not exceeding the rates established by the federal
Criminal Justice Act of 1964. After 1970, the federal Act provided
for fees of $30 per hour for court time and $20 per hour for
out-of-court time. See 84 Stat. 916, codified at 18 U.S.C. § 3006A (1970 ed.). These rates accordingly capped the
rates payable to the District's CJA lawyers, and could not be
exceeded absent amendment to either the federal statute or the
District Code.

															Bar organizations began as early as 1975 to express concern
about the low fees paid to CJA lawyers. Beginning in 1982,
respondents, the Superior Court. Trial Lawyers Association (SCTLA)
and its officers, and other bar groups sought to persuade the
District to increase CJA rates to at least $35 per hour. Despite
what appeared to be uniform support for the bill, it did not pass.
It is also true, however, that nothing Page 493 U. S. 416 in the record indicates that the low fees caused any actual
shortage of CJA lawyers or denied effective representation to
defendants.

															In early August, 1983, in a meeting with officers of SCTLA, the
mayor expressed his sympathy but firmly indicated that no money was
available to fund an increase. The events giving rise to this
litigation then ensued.

															At an SCTLA meeting, the CJA lawyers voted to form a "strike
committee." The eight members of that committee promptly met and
informally agreed

															"that the only viable way of getting an increase in fees was to
stop signing up to take new CJA appointments, and that the boycott
should aim for a $45 out-of-court and $55 in-court rate
schedule." In re Superior Court Trial Lawyers Assn., 107 F.T.C.
510, 538 (1986).

															On August 11, 1983, about 100 CJA lawyers met and resolved not
to accept any new cases after September 6 if legislation providing
for an increase in their fees had not passed by that date.
Immediately following the meeting, they prepared (and most of them
signed) a petition stating:

															"We, the undersigned private criminal lawyers practicing in the
Superior court of the District of Columbia, agree that unless we
are granted a substantial increase in our hourly rate we will cease
accepting new appointments under the Criminal Justice Act."

															272 U.S.App.D.C. 272, 276, 856 F.2d 226, 230 (1988).

															On September 6, 1983, about 90 percent [ Footnote 4 ] of the CJA regulars refused to accept any
new assignments. Thereafter, SCTLA arranged a series of events to
attract the attention of the news media and to obtain additional
support. These events were well publicized and did engender
favorable editorial comment, but the trial examiner found that

															"there is no credible evidence that the District's Page 493 U. S. 417 eventual capitulation to the demands of the CJA lawyers was made
in response to public pressure, or, for that matter, that this
publicity campaign actually engendered any significant measure of
public pressure."

															107 F.T.C. at 543. [ Footnote
5 ]

															As the participating CJA lawyers had anticipated, their refusal
to take new assignments had a severe impact on the District's
criminal justice system. The massive flow of new cases did not
abate, [ Footnote 6 ] and the
need for prompt investigation and preparation did not ease. As the
trial examiner found,

															"there was no one to replace the CJA regulars, and makeshift
measures were totally inadequate. A few days after the September 6
deadline, PDS was swamped with cases. The handful of CJA regulars
who continued to take cases were soon overloaded. The overall
response of the uptown lawyers to the PDS call for help was feeble,
reflecting their universal distaste for criminal law, their special
aversion for compelled indigency representation, the near epidemic
siege of self-doubt about their ability to handle cases in this
field, and their underlying support for the demands of the CJA
lawyers. Most of the law student volunteers initially observed the
boycott, and later all law student volunteers were limited (as they
usually are) to a relatively few minor misdemeanors."

															107 F.T.C. at 544. (Footnotes omitted). Page 493 U. S. 418 Within 10 days, the key figures in the District's criminal
justice system "became convinced that the system was on the brink
of collapse because of the refusal of CJA lawyers to take on new
cases." Id. at 544. On September 15, they hand-delivered a
letter to the mayor describing why the situation was expected to
"reach a crisis point" by early next week and urging the immediate
enactment of a bill increasing all CJA rates to $35 per hour. The
mayor promptly met with members of the strike committee and offered
to support an immediate temporary increase to the $35 level as well
as a subsequent permanent increase to $45 an hour for out-of-court
time and $55 for in-court time.

															At noon on September 19, 1983, over 100 CJA lawyers attended a
SCTLA meeting and voted to accept the $35 offer and end the
boycott. The city council's Judiciary Committee convened at 2:00
p.m. that afternoon. The committee recommended legislation
increasing CJA fees to $35, and the council unanimously passed the
bill on September 20th. On September 21st, the CJA regulars began
to accept new assignments, and the crisis subsided. II The Federal Trade Commission (FTC) filed a complaint against
SCTLA and four of its officers (respondents) alleging that they
had

															"entered into an agreement among themselves and with other
lawyers to restrain trade by refusing to compete for or accept new
appointments under the CJA program beginning on September 6, 1983,
unless and until the District of Columbia increased the fees
offered under the CJA program." Id. at 511. The complaint alleged that virtually all of
the attorneys who regularly compete for or accept new appointments
under the CJA program had joined the agreement. The FTC
characterized respondents' conduct as "a conspiracy to fix prices
and to conduct a boycott" and concluded that they were engaged in
"unfair methods of competition Page 493 U. S. 419 in violation of § 5 of the FTC Act." [ Footnote 7 ]

															After a 3-week hearing, the Administrative Law Judge (ALJ) found
that the facts alleged in the complaint had been proven, and
rejected each of the respondents' three legal defenses -- that the
boycott was adequately justified by the public interest in
obtaining better legal representation for indigent defendants;
that, as a method of petitioning for legislative change, it was
exempt from the antitrust laws under our decision in Eastern
Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961); and that it was a form of political action protected by the
First Amendment under our decision in NAACP v. Claiborne
Hardware Co., 458 U. S. 886 (1982). The ALJ nevertheless concluded that the complaint should be
dismissed because the District officials, who presumably
represented the victim of the boycott, recognized that its net
effect was beneficial. The increase in fees would attract more CJA
lawyers, enabling them to reduce their caseloads and provide better
representation for their clients. "I see no point," he concluded,
"in striving resolutely for an antitrust triumph in this sensitive
area when the particular case can be disposed of on a more
pragmatic basis -- there was no harm done." 107 F.T.C. at 561.

															The ALJ's pragmatic moderation found no favor with the FTC. Like
the ALJ, the FTC rejected each of respondents' defenses. It held
that their "coercive, concerted refusal to deal" had the "purpose
and effect of raising prices" and was illegal per se. Id. at 573. Unlike the ALJ, the FTC refused to conclude that the
boycott was harmless, noting that the

															"boycott forced the city government to increase the CJA fees
from a level that had been sufficient to obtain an adequate supply
of CJA lawyers to a level satisfactory to the respondents. Page 493 U. S. 420 The city must, as a result of the boycott, spend an additional
$4 million to $5 million a year to obtain legal services for
indigents. We find that these are substantial anticompetitive
effects resulting from the respondents' conduct." Id. at 577. Finally, the FTC determined that the record
did not support the ALJ's conclusion that the District supported
the boycott. The FTC also held that such support would not in any
event excuse respondents' antitrust violations. Accordingly, it
entered a cease-and-desist order

															"to prohibit the respondents from initiating another boycott . .
. whenever they become dissatisfied with the results or pace of the
city's legislative process." Id. at 602.

															The Court of Appeals vacated the FTC order and remanded for a
determination whether respondents possessed "significant market
power." The court began its analysis by recognizing that, absent
any special First Amendment protection, the boycott "constituted a
classic restraint of trade within the meaning of Section 1 of the
Sherman Act." [ Footnote 8 ] 8
272 U.S.App.D.C. at 280, 856 F.2d at 234. The Court of Appeals was
not persuaded by respondents' reliance on Claiborne
Hardware or Noerr, or by their argument that the
boycott was justified because it was designed to improve the
quality of representation for indigent defendants. It concluded,
however, that "the SCTLA boycott did contain an element of
expression warranting First Amendment protection." 272 U.S.App.
D.C. at 294, 856 F.2d at 248. It Page 493 U. S. 421 noted that boycotts have historically been used as a dramatic
means of expression and that respondents intended to convey a
political message to the public at large. It therefore concluded
that, under United States v. O'Brien, 391 U.
S. 367 (1968), a restriction on this form of expression
could not be justified unless it is no greater than is essential to
an important governmental interest. This test, the Court reasoned,
could not be satisfied by the application of an otherwise
appropriate per se rule, but instead required the
enforcement agency to "prove rather than presume that the evil
against which the Sherman Act is directed looms in the conduct it
condemns." 272 U.S.App.D.C. at 296, 856 F.2d at 250.

															Because of our concern about the implications of the Court of
Appeals' unique holding, we granted the FTC's petition for
certiorari as well as respondents' cross-petition. 490 U.S. 1019
(1989).

															We consider first the cross-petition, which contends that
respondents' boycott is outside the scope of the Sherman Act or is
immunized from antitrust regulation by the First Amendment. We then
turn to the FTC's petition. III Reasonable lawyers may differ about the wisdom of this
enforcement proceeding. The dissent from the decision to file the
complaint so demonstrates. So, too, do the creative conclusions of
the ALJ and the Court of Appeals. Respondents' boycott may well
have served a cause that was worthwhile and unpopular. We may
assume that the pre-boycott rates were unreasonably low, and that
the increase has produced better legal representation for indigent
defendants. Moreover, given that neither indigent criminal
defendants nor the lawyers who represent them command any special
appeal with the electorate, we may also assume that, without the
boycott, there would have been no increase in District CJA fees at
least until the Congress amended the federal statute. These
assumptions do not control the case, for it is Page 493 U. S. 422 not our task to pass upon the social utility or political wisdom
of price-fixing agreements.

															As the ALJ, the FTC, and the Court of Appeals all agreed,
respondents' boycott "constituted a classic restraint of trade
within the meaning of Section 1 of the Sherman Act." 272
U.S.App.D.C. at 280, 856 F.2d at 234. As such, it also violated the
prohibition against unfair methods of competition in § 5 of the FTC
Act. See FTC v. Cement Institute, 333 U.
S. 683 , 333 U. S. 694 (1948). Prior to the boycott, CJA lawyers were in competition with
one another, each deciding independently whether and how often to
offer to provide services to the District at CJA rates. [ Footnote 9 ] The agreement among the Page 493 U. S. 423 CJA lawyers was designed to obtain higher prices for their
services and was implemented by a concerted refusal to serve an
important customer in the market for legal services and, indeed,
the only customer in the market for the particular services that
CJA regulars offered.

															"This constriction of supply is the essence of 'price-fixing,'
whether it be accomplished by agreeing upon a price, which will
decrease the quantity demanded, or by agreeing upon an output,
which will increase the price offered."

															272 U.S.App.D.C. at 280, 856 F.2d at 234. The horizontal
arrangement among these competitors was unquestionably a "naked
restraint" on price and output. See National Collegiate
Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U. S. 85 , 468 U. S. 110 (1984).

															It is of course true that the city purchases respondents'
services because it has a constitutional duty to provide
representation to indigent defendants. It is likewise true that the
quality of representation may improve when rates are increased. Yet
neither of these facts is an acceptable justification for an
otherwise unlawful restraint of trade. As we have remarked before,
the

															"Sherman Act reflects a legislative judgment that ultimately
competition will produce not only lower prices, but also better
goods and services." National Soc. of Professional Engineers v. United
States, 435 U. S. 679 , 435 U. S. 695 (1978). This judgment

															"recognizes that all elements of a bargain -- quality, service,
safety, and durability -- and not just the immediate cost, are
favorably affected by the free opportunity to select among
alternative offers. Page 493 U. S. 424 Ibid. That is equally so when the quality of legal
advocacy, rather than engineering design, is at issue."

															The social justifications proffered for respondents' restraint
of trade thus do not make it any less unlawful. The statutory
policy underlying the Sherman Act "precludes inquiry into the
question whether competition is good or bad." Ibid. Respondents' argument, like that made by the petitioners in Professional Engineers, ultimately asks us to find that
their boycott is permissible because the price it seeks to set is
reasonable. But it was settled shortly after the Sherman Act was
passed that it

															"is no excuse that the prices fixed are themselves reasonable. See, e.g., United States v. Trenton Potteries Co., 273 U. S.
392 , 273 U. S. 397 -398 (1927); United States v. Trans-Missouri Freight Assn., 166 U. S.
290 , 166 U. S. 340 -341
(1897)." Catalano, Inc. v. Target Sales, Inc., 446 U.
S. 643 , 446 U. S. 647 (1980). Respondents' agreement is not outside the coverage of the
Sherman Act simply because its objective was the enactment of
favorable legislation.

															Our decision in Noerr in no way detracts from this
conclusion. In Noerr, we "considered whether the Sherman
Act prohibited a publicity campaign waged by railroads" and

															"designed to foster the adoption of laws destructive of the
trucking business, to create an atmosphere of distaste for truckers
among the general public, and to impair the relationships existing
between truckers and their customers." Claiborne Hardware, 458 U.S. at 458 U. S. 913 .
Interpreting the Sherman Act in the light of the First Amendment's
Petition Clause, the Court noted that

															"at least insofar as the railroads' campaign was directed toward
obtaining governmental action, its legality was not at all affected
by any anticompetitive purpose it may have had."

															365 U.S. at 365 U. S.
139 -140.

															It of course remains true that "no violation of the Act can be
predicated upon mere attempts to influence the passage or
enforcement of laws," id. at 365 U. S. 135 ,
even if the defendants' sole purpose is to impose a restraint upon
the trade of their competitors, id. at 365 U. S.
138 -140. But in the Noerr case, the alleged Page 493 U. S. 425 restraint of trade was the intended consequence of
public action; in this case the boycott was the means by
which respondents sought to obtain favorable legislation. The
restraint of trade that was implemented while the boycott lasted
would have had precisely the same anticompetitive consequences
during that period even if no legislation had been enacted. In Noerr, the desired legislation would have created the
restraint on the truckers' competition; in this case, the emergency
legislative response to the boycott put an end to the
restraint.

															Indeed, respondents' theory of Noerr was largely
disposed of by our opinion in Allied Tube & Conduit Corp.
v. Indian Head Inc., 486 U. S. 492 (1988). We held that the Noerr doctrine does not extend to
"every concerted effort that is genuinely intended to influence
governmental action." 486 U.S. at 486 U. S. 503 .
We explained:

															"If all such conduct were immunized, then, for example,
competitors would be free to enter into horizontal price agreements
as long as they wished to propose that price as an appropriate
level for governmental ratemaking or price supports. But see
Georgia v. Pennsylvania R. Co. 324 U. S.
439 , 324 U. S. 456 -463 (1945).
Horizontal conspiracies or boycotts designed to exact higher prices
or other economic advantages from the government would be immunized
on the ground that they are genuinely intended to influence the
government to agree to the conspirators' terms. But see Georgia
v. Evans, 316 U. S. 159 (1942). Firms
could claim immunity for boycotts or horizontal output restrictions
on the ground that they are intended to dramatize the plight of
their industry and spur legislative action." Ibid. IV The lawyers' association argues that, if its conduct would
otherwise be prohibited by the Sherman Act and the Federal Trade
Act, it is nonetheless protected by the First.Amendment rights
recognized in NAACP v. Claiborne
Hardware , Page 493 U. S. 426 458 U. S. 886 (1982). That case arose after black citizens boycotted white
merchants in Claiborne County, Miss. The white merchants sued under
state law to recover losses from the boycott. We found that the

															"right of the States to regulate economic activity could not
justify a complete prohibition against a nonviolent, politically
motivated boycott designed to force governmental and economic
change and to effectuate rights guaranteed by the Constitution
itself." Id. at 458 U. S. 914 .
We accordingly held that "the nonviolent elements of petitioners'
activities are entitled to the protection of the First Amendment." Id. at 458 U. S.
915 .

															The lawyers' association contends that because it, like the
boycotters in Claiborne Hardware, sought to vindicate
constitutional rights, it should enjoy a similar First Amendment
protection. It is, of course, clear that the association's efforts
to publicize the boycott, to explain the merits of its cause, and
to lobby District officials to enact favorable legislation -- like
similar activities in Claiborne Hardware -- were
activities that were fully protected by the First Amendment. But
nothing in the FTC's order would curtail such activities, and
nothing in the FTC's reasoning condemned any of those
activities.

															The activity that the FTC order prohibits is a concerted refusal
by CJA lawyers to accept any further assignments until they receive
an increase in their compensation; the undenied objective of their
boycott was an economic advantage for those who agreed to
participate. It is true that the Claiborne Hardware case
also involved a boycott. That boycott, however, differs in a
decisive respect. Those who joined the Claiborne Hardware boycott sought no special advantage for themselves. They were black
citizens in Port Gibson, Mississippi, who had been the victims of
political, social, and economic discrimination for many years. They
sought only the equal respect and equal treatment to which they
were constitutionally entitled. They struggled "to change a social
order that had consistently treated them as second class citizens."
458 U.S. at 458 U. S. 912 .
As we observed, the campaign was not Page 493 U. S. 427 intended "to destroy legitimate competition." Id. at 458 U. S. 914 .
Equality and freedom are preconditions of the free market, and not
commodities to be haggled over within it.

															The same cannot be said of attorney's fees. As we recently
pointed out, our reasoning in Claiborne Hardware is not
applicable to a boycott conducted by business competitors who
"stand to profit financially from a lessening of competition in the
boycotted market." Allied Tube Corp. v. Indian Head,
supra, at 486 U. S. 508 .
[ Footnote 10 ] No matter how
altruistic the motives of respondents may have been, it is
undisputed that their immediate objective was to increase the price
that they would be paid for their services. Such an economic
boycott is well within the category that was expressly
distinguished in the Claiborne Hardware opinion itself.
458 U.S. at 458 U. S.
914 -915. [ Footnote
11 ] Page 493 U. S. 428 Only after recognizing the well-settled validity of prohibitions
against various economic boycotts did we conclude in Claiborne
Hardware that "peaceful, political activity such as that found
in the [Mississippi] boycott" are entitled to constitutional
protection. [ Footnote 12 ] We
reaffirmed the government's "power to regulate [such] economic
activity." Id. at 458 U. S. 912 -913. This conclusion applies with special
force when a clear objective of the boycott is to economically
advantage the participants. V Respondents' concerted action in refusing to accept further CJA
assignments until their fees were increased was thus a plain
violation of the antitrust laws. The exceptions derived from Noerr and Claiborne Hardware have no application
to respondents' boycott. For these reasons, we reject the arguments
made by respondents in the cross-petition.

															The Court of Appeals, however, crafted a new exception to the per se rules, and it is this exception which provoked
the Page 493 U. S. 429 FTC's petition to this Court. The Court of Appeals derived its
exception from United States v. O'Brien, 391 U.
S. 367 (1968). In that case, O'Brien had burned
his Selective Service registration certificate on the steps of the
South Boston Courthouse. He did so before a sizable crowd and with
the purpose of advocating his antiwar beliefs. We affirmed his
conviction. We held that the governmental interest in regulating
the "nonspeech element" of his conduct adequately justified the
incidental restriction on First Amendment freedoms. [ Footnote 13 ] Specifically, we concluded
that the statute's incidental restriction on O'Brien's freedom of
expression was no greater than necessary to further the
Government's interest in requiring registrants to have valid
certificates continually available.

															However, the Court of Appeals held that, in light of O'Brien, the expressive component of respondents' boycott
compelled courts to apply the antitrust laws "prudently and with
sensitivity," 272 U.S.App.D.C. at 279-280, 856 F.2d at 233-234,
with a "special solicitude for the First Amendment rights" of
respondents. The Court of Appeals concluded that the governmental
interest in prohibiting boycotts is not sufficient to justify a
restriction on the communicative element of the boycott unless the
FTC can prove, and not merely presume, that the boycotters have
market power. Because the Court of Appeals imposed this special
requirement upon the Government, it ruled that per se antitrust Page 493 U. S. 430 analysis was inapplicable to boycotts having an expressive
component.

															There are at least two critical flaws in the Court of Appeals'
antitrust analysis: it exaggerates the significance of the
expressive component in respondents' boycott and it denigrates the
importance of the rule of law that respondents violated. Implicit
in the conclusion of the Court of Appeals are unstated assumptions
that most economic boycotts do not have an expressive component,
and that the categorical prohibitions against price fixing and
boycotts are merely rules of "administrative convenience" that do
not serve any substantial governmental interest unless the
price-fixing competitors actually possess market power.

															It would not much matter to the outcome of this case if these
flawed assumptions were sound. O'Brien would offer
respondents no protection even if their boycott were uniquely
expressive and even if the purpose of the per se rules
were purely that of administrative efficiency. We have recognized
that the Government's interest in adhering to a uniform rule may
sometimes satisfy the O'Brien test, even if making an
exception to the rule in a particular case might cause no serious
damage. United States v. Albertini, 472 U.
S. 675 , 472 U. S. 688 (1985) ("The First Amendment does not bar application of a neutral
regulation that incidentally burdens speech merely because a party
contends that allowing an exception in the particular case will not
threaten important government interests"). The administrative
efficiency interests in antitrust regulation are unusually
compelling. The per se rules avoid

															"the necessity for an incredibly complicated and prolonged
economic investigation into the entire history of the industry
involved, as well as related industries, in an effort to determine
at large whether a particular restraint has been unreasonable." Northern Pac. R. Co. v. United States, 356 U. S.
1 , 356 U. S. 5 (1958). If small parties

															"were allowed to prove lack of market power, all parties would
have that right, thus introducing the enormous complexities of
market definition Page 493 U. S. 431 into every price-fixing case."

															R. Bork, The Antitrust Paradox 269 (1978). For these reasons, it
is at least possible that the Claiborne Hardware doctrine,
which itself rests in part upon O'Brien, [ Footnote 14 ] exhausts O'Brien's application to the antitrust statutes.

															In any event, however, we cannot accept the Court of Appeals'
characterization of this boycott or the antitrust laws. Every
concerted refusal to do business with a potential customer or
supplier has an expressive component. At one level, the competitors
must exchange their views about their objectives and the means of
obtaining them. The most blatant, naked price-fixing agreement is a
product of communication, but that is surely not a reason for
viewing it with special solicitude. At another level, after the
terms of the boycotters' demands have been agreed upon, they must
be communicated to its target: "we will not do business until you
do what we ask." That expressive component of the boycott conducted
by these respondents is surely not unique. On the contrary, it is
the hallmark of every effective boycott.

															At a third level, the boycotters may communicate with third
parties to enlist public support for their objectives; to the
extent that the boycott is newsworthy, it will facilitate the
expression of the boycotters' ideas. But this level of expression
is not an element of the boycott. Publicity may be generated by any
other activity that is sufficiently newsworthy. Some activities,
including the boycott here, may be newsworthy precisely for the
reasons that they are prohibited: the harms they produce are
matters of public concern. Certainly that is no reason for removing
the prohibition.

															In sum, there is thus nothing unique about the "expressive
component" of respondents' boycott. A rule that requires courts to
apply the antitrust laws "prudently and with sensitivity" whenever
an economic boycott has an "expressive component" would create a
gaping hole in the fabric of those Page 493 U. S. 432 laws. Respondents' boycott thus has no special characteristics
meriting an exemption from the per se rules of antitrust
law.

															Equally important is the second error implicit in respondents'
claim to immunity from the per se rules. In its opinion,
the Court of Appeals assumed that the antitrust laws permit, but do
not require, the condemnation of price fixing and boycotts without
proof of market power. [ Footnote
15 ] The opinion further assumed that the per se rule
prohibiting such activity "is only a rule of administrative
convenience and efficiency,' not a statutory command." 272
U.S.App.D.C. at 295, 856 F.2d at 249. This statement contains two
errors. The per se Page 493 U. S. 433 rules are, of course, the product of judicial interpretations of
the Sherman Act, but the rules nevertheless have the same force and
effect as any other statutory commands. Moreover, while the per
se rule against price fixing and boycotts is indeed justified
in part by "administrative convenience," the Court of Appeals erred
in describing the prohibition as justified only by such concerns.
The per se rules also reflect a long-standing judgment
that the prohibited practices by their nature have "a substantial
potential for impact on competition." Jefferson Parish Hospital
District, 466 U.S. at 466 U. S. 16 .

															As we explained in Professional Engineers, the rule of
reason in antitrust law generates

															"two complementary categories of antitrust analysis. In the
first category are agreements whose nature and necessary effect are
so plainly anticompetitive that no elaborate study of the industry
is needed to establish their illegality -- they are " illegal per se. '" In the second category are agreements whose
competitive effect can only be evaluated by analyzing the facts
peculiar to the business, the history of the restraint, and the
reasons why it was imposed." 435 U.S. at 435 U. S.
692 .

															"Once experience with a particular kind of restraint enables the
Court to predict with confidence that the rule of reason will
condemn it, it has applied a conclusive presumption that the
restraint is unreasonable." Arizona v. Maricopa County Medical Society, 457 U. S. 332 , 457 U. S. 344 (1982).

															The per se rules in antitrust law serve purposes
analogous to per se restrictions upon, for example, stunt
flying in congested areas or speeding. Laws prohibiting stunt
flying or setting speed limits are justified by the State's
interest in protecting human life and property. Perhaps most
violations of such rules actually cause no harm. No doubt many
experienced drivers and pilots can operate much more safely, even
at prohibited speeds, than the average citizen. Page 493 U. S. 434 If the especially skilled drivers and pilots were to paint
messages on their cars, or attach streamers to their planes, their
conduct would have an expressive component. High speeds and unusual
maneuvers would help to draw attention to their messages. Yet the
laws may nonetheless be enforced against these skilled persons
without proof that their conduct was actually harmful or
dangerous.

															In part, the justification for these per se rules is
rooted in administrative convenience. They are also supported,
however, by the observation that every speeder and every stunt
pilot poses some threat to the community. An unpredictable event
may overwhelm the skills of the best driver or pilot, even if the
proposed course of action was entirely prudent when initiated. A
bad driver going slowly may be more dangerous than a good driver
going quickly, but a good driver who obeys the law is safer
still.

															So it is with boycotts and price fixing. [ Footnote 16 ] Every such horizontal arrangement
among competitors poses some threat to the free market. A small
participant in the market is, obviously, less likely to cause
persistent damage than a large participant. Other participants in
the market may act quickly and effectively to take the small
participant's place. For reasons including market inertia and
information failures, however, a small conspirator may be able to
impede competition Page 493 U. S. 435 over some period of time. [ Footnote 17 ] Given an appropriate set of circumstances
and some luck, the period can be long enough to inflict real injury
upon particular consumers or competitors. [ Footnote 18 ]

															As Justice Douglas observed in an oft-quoted footnote to his United States v. Socony-Vacuum Oil Co., 310 U.
S. 150 (1940), opinion,

															"Price-fixing agreements may or may not be aimed at complete
elimination of price competition. The group making those agreements
may or may not have power to control the market. But the fact that
the group cannot control the market prices does not necessarily
mean that the agreement as to prices has no utility to the members
of the combination. The effectiveness of price-fixing agreements is
dependent on many factors, such as competitive tactics, position in
the industry, the formula underlying pricing policies. Whatever
economic justification particular price-fixing agreements may be
thought to have, the law does not permit an inquiry into their
reasonableness. They are all banned because of their actual or
potential threat to the central nervous system of the economy." Id. at 310 U. S.
225 -226, n. 59. See also Maricopa County Medical
Society, 457 U.S. at 457 U. S. 351 ,
and n. 23.

															Of course, some boycotts and some price fixing agreements are
more pernicious than others; some are only partly successful, and
some may only succeed when they are buttressed by other causative
factors, such as political influence. But Page 493 U. S. 436 an assumption that, absent proof of market power, the boycott
disclosed by this record was totally harmless -- when overwhelming
testimony demonstrated that it almost produced a crisis in the
administration of criminal justice in the District and when it
achieved its economic goal -- is flatly inconsistent with the clear
course of our antitrust jurisprudence. Conspirators need not
achieve the dimensions of a monopoly, or even a degree of market
power any greater than that already disclosed by this record, to
warrant condemnation under the antitrust laws. VI The judgment of the Court of Appeals is accordingly reversed
insofar as that court held the per se rules inapplicable
to the lawyers' boycott. [ Footnote 19 ] The case is remanded for further proceedings
consistent with this opinion. [ Footnote 20 ] It is so ordered. [ Footnote 1 ]

															Section 5(a)(1) of the Federal Trade Commission Act, 38 Stat.
719, as amended, 15 U.S.C. § 45(a)(1), provides:

															"Unfair methods of competition in or affecting commerce, and
unfair or deceptive acts or practices in or affecting commerce, are
declared unlawful."

															The First Amendment to the Constitution provides:

															"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress
of grievances."

															[ Footnote 2 ]

															D.C.Code's §§ 11-2601-11-2609 (1981). In a small number of
cases, the indigent defendants were represented by third-year law
students or private counsel serving without compensation.

															[ Footnote 3 ]

															As the Administrative Law Judge noted:

															"Because of the nature of CJA practice -- its long hours away
from the office (assuming the CJA lawyer has an office), the
deadlines of Superior Court, and the problem of meeting deadlines
in other courts -- CJA regulars ordinarily do not take civil cases,
nor do they usually appear on the criminal side of the U.S.
District court." In re Superior Court Trial Lawyers Assn., 107 F.T.C.
510, 522, n. 54 (1986).

															[ Footnote 4 ]

															The trial examiner found that "at most" 13 of the CJA regulars
continued to take assignments. 107 F.T.C. at 542, n. 173.

															[ Footnote 5 ]

															It is not clear how much of this finding by the trial examiner
was accepted by the Federal Trade Commission. The Court of Appeals
suggested that the finding was implicitly rejected by the
Commission because not expressly accepted. See 272
U.S.App.D.C. at 297, 856 F.2d at 251. We do not rely upon the
finding, and need not decide whether the Commission did indeed
reject it. We note, however, that the Commission endorsed findings
attributing the District's eventual change of position to a crisis
resulting from the lawyers' exercise of power. 107 F.T.C. at 572
& n. 69. Those findings seem to embody the conclusion that the
reversal is not attributable to public pressure or publicity.

															[ Footnote 6 ]

															"During the period from September 6 to September 20, there was a
daily average of 63 defendants on the weekday lock-up list and 43
on the Saturday list." Id. at 543 n. 183.

															[ Footnote 7 ]

															Commissioner Pertschuk dissented from the decision to issue a
complaint on the ground that it represented an unwise use of the
FTC's scarce resources. He did not, however, disagree with the
conclusion that a violation of law had been alleged. 107 F.T.C. at
512-513.

															[ Footnote 8 ]

															Section I of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § I provides:

															"Every contract, combination in the form of trust or otherwise,
or conspiracy, in restraint of trade or commerce among the several
States, or with foreign nations, is declared to be illegal. Every
person who shall make any contract or engage in any combination or
conspiracy hereby declared to be illegal shall be deemed guilty of
a felony, and, on conviction thereof, shall be punished by fine not
exceeding one million dollars if a corporation, or, if any other
person one hundred thousand dollars, or by imprisonment not
exceeding three years, or by both said punishments, in the
discretion of the court."

															[ Footnote 9 ]

															The FTC found:

															""[T]he city's purchase of CJA legal services for indigents is
based on competition. The price offered by the city is based on
competition, because the city must attract a sufficient number of
individual lawyers to meet its needs at that price. The city
competes with other purchasers of legal services to obtain an
adequate supply of lawyers, and the city's offering price is an
element of that competition. Indeed, an acknowledgement of this
element of competition is implicit in the respondents' argument
that an increase in the CJA fee was necessary to attract, and
retain, competent lawyers.' If the offering price had not attracted
a sufficient supply of qualified lawyers willing to accept CJA
assignments for the city to fulfill its constitutional obligation,
then presumably the city would have increased its offering price or
otherwise sought to make its offer more attractive. In fact,
however, the city's offering price before the boycott apparently
was sufficient to obtain the amount and quality of legal services
that it needed."" 272 U.S.App.D.C. at 278, 856 F.2d at 232.

															The Court of Appeals agreed with this analysis:

															"The Commission correctly determined that the CJA regulars act
as 'competitors' in the only sense that matters for antitrust
analysis: They are individual business people supplying the same
service to a customer, and as such may be capable, through a
concerted restriction of output, of forcing that customer to pay a
higher price for their service. That the D.C. government, like the
buyers of many other services and commodities, prefers to offer a
uniform price to all potential suppliers does not alter in any way
the anti-competitive potential of the petitioners' boycott. The
antitrust laws do not protect only purchasers who negotiate each
transaction individually, instead of posting a price at which they
will trade with all who come forward. Nor should any significance
be assigned to the origin of the demand for CJA services; here the
District may be compelled by the Sixth Amendment to purchase legal
services, there it may be compelled by the voters to purchase
street paving services. The reason for the government's demand for
a service is simply irrelevant to the issue of whether the
suppliers of it have restrained trade by collectively refusing to
satisfy it except upon their own terms. We therefore conclude, as
did the Commission, that the petitioners engaged in a 'restraint of
trade' within the meaning of Section 1." Id. at 281, 856 F.2d at 235 (footnote omitted).

															[ Footnote 10 ]

															"In [ Claiborne Hardware, ] we held that the First
Amendment protected the nonviolent elements of a boycott of white
merchants organized by the National Association for the Advancement
of Colored People and designed to make white government and
business leaders comply with a list of demands for equality and
racial justice. Although the boycotters intended to inflict
economic injury on the merchants, the boycott was not motivated by
any desire to lessen competition or to reap economic benefits, but
by the aim of vindicating rights of equality and freedom lying at
the heart of the Constitution, and the boycotters were consumers
who did not stand to profit financially from a lessening of
competition in the boycotted market. Id. at 914-915. Here,
in contrast, petitioner was at least partially motivated by the
desire to lessen competition, and, because of petitioner's line of
business, stood to reap substantial economic benefits from making
it difficult for respondent to compete." Allied Tube & Conduit Corp., 486 U.S. at 486 U. S.
508 -509.

															[ Footnote 11 ]

															Respondents contend that, just as the Claiborne
Hardware boycott sought to secure constitutional rights to
equality and freedom, the lawyers' boycott sought to vindicate the
Sixth Amendment rights of indigent defendants. Claiborne
Hardware, however, does not protect every boycott having a
constitutional dimension. Indeed, insofar as respondents seek
immunity from prosecution on the basis of their good intent, their
theory of defense "is merely another variety of an age-old
argument." See United States v. Cullen, 454 F.2d 386, 392
(CA7 1971). Claiborne Hardware does not, and could not,
establish a rule immunizing from prosecution any boycott based upon
sincere constitutional concerns. Such an exemption would authorize
the government's contractors in nearly all areas to circumvent
antitrust law on the basis of their own theory of the government's
obligations.

															[ Footnote 12 ]

															"A nonviolent and totally voluntary boycott may have a
disruptive effect on local economic conditions. This Court has
recognized the strong governmental interest in certain forms of
economic regulation, even though such regulation may have an
incidental effect on rights of speech and association. See
Giboney v. Empire Storage & Ice Co., 336 U. S.
490 ; NLRB v. Retail Store Employees, 447 U. S.
607 (1980). The right of business entities to
'associate' to suppress competition may be curtailed. National
Society of Professional Engineers v. United States, 435 U. S.
679 (1978). Unfair trade practices may be restricted.
Secondary boycotts and picketing by labor unions may be prohibited,
as part of"

															"Congress' striking of the delicate balance between union
freedom of expression and the ability of neutral employers,
employees, and consumers to remain free from coerced participation
in industrial strife."

															" NLRB v. Retail Store Employees, supra, at 447 U. S.
617 -618 (BLACKMUN, J., concurring in part). See
Longshoremen v. Allied International, Inc., 456 U. S.
212 , 456 U. S. 222 -223, and n. 20
(1982)."

															458 U.S. at 458 U. S.
912 .

															[ Footnote 13 ]

															"This Court has held that when 'speech' and 'nonspeech' elements
are combined in the same course of conduct, a sufficiently
important governmental interest in regulating the nonspeech element
can justify incidental limitations on First Amendment freedoms. . .
. [W]e think it clear that a government regulation is sufficiently
justified if it is within the constitutional power of the
Government; if it furthers an important or substantial governmental
interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incidental restriction
on alleged First Amendment freedoms is no greater than is essential
to the furtherance of that interest."

															391 U.S. at 391 U. S.
376 -377.

															[ Footnote 14 ] See 458 U.S. at 458 U. S.
912 .

															[ Footnote 15 ]

															In our opinion in Jefferson Parish Hospital District No. 2
v. Hyde, 466 U. S. 2 (1984),
we noted that

															"[t]he rationale for per se rules in part is to avoid a
burdensome inquiry into actual market conditions in situations
where the likelihood of anticompetitive conduct is so great as to
render unjustified the costs of determining whether the particular
case at bar involves anticompetitive conduct. See, e.g.,
Arizona v. Maricopa County Medical Society, 457 U. S.
332 , 457 U. S. 350 -351
(1982)." Id. at 466 U. S. 15 -16,
n. 25. The Court of Appeals overlooked the words "in part" in that
footnote, and also overlooked the statement in text that "there
must be a substantial potential for impact on competition in order
to justify per se condemnation." Id. at 466 U. S. 16 . As
the following paragraph from its opinion demonstrates, the Court of
Appeals incorrectly assumed that the per se rule against
price fixing is "only" a rule of administrative convenience:

															"The antitrust laws permit, but do not require, the condemnation
of price fixing without proof of market power; even the per
se rule, as the Commission acknowledges in its brief, is only
a rule of 'administrative convenience and efficiency,' not a
statutory command. FTC Brief at 39; see Jefferson Parish
Hospital Dist. No. 2 v. Hyde, 466 U. S. 2 , 466 U. S. 15 n. 25 (1984).
While the rule may occasionally be overinclusive, condemning the
ineffectual with the harmful, there is no known danger that
socially beneficial arrangements will be prohibited, for
price-fixing agreements rarely, if ever, have redeeming virtues. As
for the hapless but harmless, as Professor Areeda has noted,
defendants charged with conspiring to fix prices 'have little moral
standing to demand proof of power or effect when the most they can
say for themselves is that they tried to harm the public, but were
mistaken in their ability to do so.' VII P. Areeda, Antitrust Law �
1509 at 411 (1986)."

															272 U.S.App.D.C. at 295, 856 F.2d at 249.

															[ Footnote 16 ]

															"In sum, price-fixing cartels are condemned per se because the conduct is tempting to businessmen but very dangerous
to society. The conceivable social benefits are few in principle,
small in magnitude, speculative in occurrence, and always premised
on the existence of price-fixing power which is likely to be
exercised adversely to the public. Moreover, toleration implies a
burden of continuous supervision for which the courts consider
themselves ill-suited. And even if power is usually established,
while any defenses are not, litigation will be complicated,
condemnation delayed, would-be price-fixers encouraged to hope for
escape, and criminal punishment less justified. Deterrence of a
generally pernicious practice would be weakened. The key points are
the first two. Without them, there is no justification for
categorical condemnation."

															VII P. Areeda, Antitrust Law � 1509, pp. 412-413 (1986).

															[ Footnote 17 ] Cf. Markovits, The Limits to Simplifying Antitrust: A
Reply to Professor Easterbrook, 63 Tex.L.Rev. 41, 80 (1984)
(suggesting circumstances in which a firm that lacks market power
may nonetheless benefit from anticompetitive tactics).

															[ Footnote 18 ]

															"Very few firms that lack power to affect market prices will be
sufficiently foolish to enter into conspiracies to fix prices.
Thus, the fact of agreement defines the market."

															R. Bork, The Antitrust Paradox 269 (1978).

															[ Footnote 19 ]

															In response to the dissent, and particularly to its observation
that some concerted arrangements that might be characterized as
"group boycotts" may not merit per se condemnation, see post at 493 U. S. 452 ,
n. 9, we emphasize that this case involves not only a boycott but
also a horizontal price fixing arrangement -- a type of conspiracy
that has been consistently analyzed as a per se violation
for many decades. All of the "group boycott" cases cited in the
dissent's footnote involved nonprice restraints. There was likewise
no price-fixing component in any of the boycotts listed on page 12
of the dissenting opinion. Indeed, the text of the dissent
virtually ignores the price-fixing component of respondent's
concerted action.

															[ Footnote 20 ]

															On remand, the Court of Appeals should review respondents'
objections to the form of the order entered by the Commission. See 272 U.S.App.D.C. at 299, 856 F.2d at 253.

															Justice BRENNAN, with whom Justice MARSHALL joins, concurring in
part and dissenting in part.

															The Court holds today that a boycott by the Superior Court Trial
Lawyers Association (SCTLA or Trial Lawyers), whose members
collectively refused to represent indigent Page 493 U. S. 437 criminal defendants without greater compensation, constituted
conduct that was neither clearly outside the scope of the Sherman
Act nor automatically immunized from antitrust regulation by the
First Amendment. With this much I agree. [ Footnote 2/1 ] In Part V of its opinion, however, the
Court maintains that, under the per se rule, the Federal
Trade Commission (FTC) could find the boycott illegal because it might have implicated some of the concerns underlying the
antitrust laws. I cannot countenance this reasoning, which, upon
examination, reduces to the Court's assertion that, since the
government may prohibit airplane stunt-flying and reckless
automobile driving as categorically harmful, see ante at 493 U. S.
433 -434, it may also subject expressive political
boycotts to a presumption of illegality without even inquiring as
to whether they actually cause any of the harms that the antitrust
laws are designed to prevent. This non sequitur cannot
justify the significant restriction on First Amendment freedoms
that the majority's rule entails. Because I believe that the
majority's decision is insensitive to the venerable tradition of
expressive boycotts as an important means of political
communication, I respectfully dissent from Part V of the Court's
opinion. I The Petition and Free Speech Clauses of the First Amendment
guarantee citizens the right to communicate with the government,
and when a group persuades the government to adopt a particular
policy through the force of its ideas and the power of its message,
no antitrust liability can attach.

															"There are, of course, some activities, legal if engaged in by
one, yet illegal if performed in concert with others, but political
expression is not one of them." Citizens Against
Rent Page 493 U. S. 438 Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290 , 454 U. S. 296 (1981). But a group's effort to use market power to coerce the
government through economic means may subject the participants to
antitrust liability.

															In any particular case, it may be difficult to untangle these
two effects by determining whether political or economic power was
brought to bear on the government. The Court of Appeals
thoughtfully analyzed this problem and concluded, I believe
correctly, that there could be no antitrust violation absent a
showing that the boycotters possessed some degree of market power
-- that is, the ability to raise prices profitably through economic
means or, more generally, the capacity to act other than as would
an actor in a perfectly competitive market. The court reasoned
that

															"[w]hen the government seeks to regulate an economic boycott
with an expressive component . . . its condemnation without proof
that the boycott could in fact be anticompetitive ignores the
command of [United States v.] O'Brien that restrictions on
activity protected by the First Amendment be ' no greater than
is essential ' to preserve competition from the sclerotic
effects of combination."

															272 U.S.App.D.C. 272, 295, 856 F.2d 226, 249 (quoting United
States v. O'Brien, 391 U. S. 367 , 391 U. S. 377 (1968)) (emphasis in original). The concurring judge added that, if
the participants wielded no market power, "the boycott must have
succeeded out of persuasion and been a political activity." 272
U.S.App.D.C. at 300, 856 F.2d at 254 (opinion of Silberman, J.).
This approach is quite sensible, and I would affirm the Court of
Appeals' decision to remand the case to the FTC for a showing of
market power. A The issue in this case is not whether boycotts may ever
be punished under § 5 of the Federal Trade Commission Act, 15
U.S.C. § 45(a)(1), consistent with the First Amendment; rather, the
issue is how the government may determine which boycotts are illegal. Two well established premises Page 493 U. S. 439 lead to the ineluctable conclusion that, when applying the
antitrust laws to a particular expressive boycott, the government
may not presume an antitrust violation under the per se rule, but must instead apply the more searching, case-specific rule
of reason.

															First, the per se rule is a presumption of illegality.
[ Footnote 2/2 ] As Justice STEVENS
has written:

															"The costs of judging business practices under the rule of
reason, however, have been reduced by the recognition of per
se rules. Once experience with a particular kind of restraint
enables the Court to predict with confidence that the rule of
reason will condemn it, it has applied a conclusive presumption
that the restraint is unreasonable. As in every rule of general
application, the match between the presumed and the actual is
imperfect. For the sake of business certainty and litigation
efficiency, Page 493 U. S. 440 we have tolerated the invalidation of some agreements that a
full-blown inquiry might have proved to be reasonable. " Arizona v. Maricopa County Medical Society, 457 U. S. 332 , 457 U. S.
343 -344 (1982) (emphasis added; footnotes omitted). We
have freely admitted that conduct condemned under the per
se rule sometimes would be permissible if subjected merely to
rule-of-reason analysis. See Maricopa, supra, at 457 U. S. 344 ,
n. 16; Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U. S. 36 , 433 U. S. 50 , n.
16 (1977); United States v. Topco Associates, Inc., 405 U. S. 596 , 405 U. S. 609 (1972).

															Second, the government may not in a First Amendment case apply a
broad presumption that certain categories of speech are harmful
without engaging in a more particularized examination. [ Footnote 2/3 ] As the Court of Appeals
perceptively reasoned,

															"the evidentiary shortcut to antitrust condemnation without
proof of market power is inappropriate as applied to a boycott that
served, in part, to make a statement on a matter of public
debate."

															272 U.S.App. D.C. at 296, 856 F.2d at 250.

															"Government may not regulate expression in such a manner that a
substantial portion of the burden on speech does not serve to
advance its goals;"

															rather, government must ensure that, even when its regulation is
not content-based, the restriction narrowly "focuses on the source
of the evils the [State] seeks to eliminate." Ward v. Rock
Against Racism, 491 U. S. 781 , 491 U. S. 799 (1989). This is Page 493 U. S. 441 what it means for a law to be "narrowly tailored" to the state's
interest. See Board of Trustees of the State University of New
York v. Fox, 492 U. S. 469 , 492 U. S. 478 (1989); Frisby v. Schultz, 487 U.
S. 474 , 487 U. S. 485 (1988). "Broad prophylactic rules in the area of free expression
are suspect." NAACP v. Button, 371 U.
S. 415 , 371 U. S. 438 (1963).

															In Speiser v. Randall, 357 U.
S. 513 (1958), for example, we invalidated a state
program under which taxpayers applying for a certain tax exemption
bore the burden of proving that they did not advocate the overthrow
of the United States Government. We held that the presumption
against the taxpayer was unconstitutional because the State had

															"no such compelling interest at stake as to justify a short-cut
procedure which must inevitably result in suppressing protected
speech." Id. at 357 U. S. 529 .
More recently, we determined that the First Amendment prohibits a
State from imposing liability on a newspaper for the publication of
embarrassing but truthful information based on a "negligence per se " theory. See The Florida Star v. B.J.F., 491 U. S. 524 (1989). In language applicable to the instant case, we rejected
"the broad sweep" of a standard where "liability follows
automatically from publication," and we instead required
"case-by-case findings" of harm. Id. at 491 U. S. 539 .
Similarly, I would hold in this case that the FTC cannot ignore the
particular factual circumstances before it by employing a presumption of illegality in the guise of the per
se rule. B The Court's approach today is all the more inappropriate because
the success of the Trial Lawyers' boycott could have been
attributable to the persuasiveness of its message, rather than any
coercive economic force. When a boycott seeks to generate public
support for the passage of legislation, it may operate on a political rather than economic level, especially
when the Government is the target. Here, the demand for lawyers'
services under the Criminal Justice Act (CJA) is Page 493 U. S. 442 created by the command of the Sixth Amendment. How that demand
is satisfied is determined by the political decisions of the Mayor,
City Council, and, because of the unique status of the District of
Columbia, the Federal Government as well. As the FTC recognized, see In re Superior Court Trial Lawyers Assn., 107 F.T.C.
510, at 572-574 (1986), a typical boycott functions by
transforming its participants into a single monopolistic entity
that restricts supply and increases price. See, e.g., FTC v.
Indiana Federation of Dentists, 476 U.
S. 447 , 476 U. S. 459 (1986); National Collegiate Athletic Assn. v. Board of Regents
of University of Oklahoma, 468 U. S. 85 , 468 U. S.
109 -110 (1984).

															The boycott in this case was completely different: it may have
persuaded the consumer of the Trial Lawyers' services -- the
District government -- to raise the price it paid by altering the political preferences of District officials. Prior to the
boycott, these officials perceived that at a time of fiscal
austerity, a pay raise for lawyers who represented criminal
defendants was not likely to be well received by the voters,
whatever the merits of the issue. The SCTLA campaign drew public
attention to the lawyers' plight and generated enough sympathy
among city residents to convince District officials, many of whom
were already favorably inclined toward the Trial Lawyers' cause,
that they could augment CJA compensation rates without risking
their political futures. Applying the per se rule to such
a complex situation ignores the possibility that the boycott
achieved its goal through a politically driven increase in demand
for improved quality of representation, rather than by a
cartel-like restriction in supply. The Court of Appeals concluded
that

															"it [was] . . . possible that, lacking any market power, [the
Trial Lawyers] procured a rate increase by changing public
attitudes through the publicity attending the boycott,"

															272 U.S.App.D.C. at 297, 856 F.2d at 251, or that

															"the publicity surrounding the boycott may have served . . . to
dissipate any public opposition that a substantial raise for
lawyers who represent indigent Page 493 U. S. 443 defendants had previously encountered." Ibid. [ Footnote 2/4 ]
The majority is able to reach the contrary conclusion only by
disregarding the long history of attempts to raise defense lawyers'
compensation levels in the District and the virtually unanimous
support the Trial Lawyers enjoyed among members of the Bar, the
judiciary, and, indeed, officials of the city government.

															As the Court appears to recognize, see ante at 493 U. S. 421 ,
pre-boycott rates were unreasonably low. City officials hardly
could have reached a different conclusion. After 1970, the Criminal
Justice Act set fees at $30 per hour for court time and $20 per
hour for out-of-court time, and, despite a 147 percent increase in
the consumer price index, compensation remained at those levels
until the boycott in 1983. Calculated in terms of 1970 dollars, at
the time of the boycott CJA lawyers earned approximately $7.80 per
hour for out-of-court time and $11.70 for in-court time. In
contrast, in 1983 the typical billing rate for private attorneys in
major metropolitan areas with 11 to 20 years of experience was $123
per hour, and the rate for those with less than two years of
experience was $64 per hour. See App. in No. 86-1465
(CADC), pp. 678-679, 807. Even attorneys receiving compensation
under the Equal Access to Justice Act, 28 U.S.C. §
2412(d)(2)(A)(ii) (1982 ed.), obtained fees of $75 per hour, with
the possibility of upward adjustments to still larger sums. The
Chairperson of the Judicial Conference Committee to Implement the
Criminal Justice Act testified before Congress that

															"generally, the present Criminal Justice Act compensation rates
do not even Page 493 U. S. 444 cover the appointed attorney's office overhead expenses related
to time devoted to representation of defendants under the Act."

															Criminal Justice Act: Hearings on H.R. 3233 before the
Subcommittee on Courts, Civil Liberties, and the Administration of
Justice of the House Committee on the Judiciary, 98th Cong., 1st
Sess., 22 (1983) (statement of Hon. Thomas J. MacBride). David B.
Isbell, then District of Columbia Bar president, warned that

															"unrealistic and unreasonable compensation rates have hampered
the D.C. CJA program in attracting and retaining significant
numbers of qualified criminal defense counsel." Id. at 306.

															The legal community became concerned about the low level of CJA
fees as early as 1975. The Report on the Criminal Defense Services
in the District of Columbia by the Joint Committee of the Judicial
Conference of the District of Columbia Circuit and the District of
Columbia Bar (the Austern-Rezneck Report) concluded that the
prevailing rates "drove talented attorneys out of CJA practice, and
encouraged those who remained to do a less than adequate job on
their cases." 272 U.S.App.D.C. at 275, 856 F.2d at 229. The
Austern-Rezneck Report recommended that CJA lawyers be paid $40 per
hour for time spent in or out of court, subject to a ceiling of
$800 for a misdemeanor case and $1,000 for a felony case. The
Report characterized this increase as

															"'the absolute minimum necessary to attract and hold good
criminal lawyers and assure their ability to render effective
representation to their clients.'" Ibid. (quoting Austern-Rezneck Report 84).

															In March 1982, the District of Columbia Court System Study
Committee of the District of Columbia Bar issued the Horsky Report,
which recommended the identical pay increase. See Senate
Committee on Governmental Affairs, Senate Print No. 98-34, 98th
Cong., 1st Sess. 69 (1983). Legislation increasing the hourly rate
to $60 was then introduced in the District of Columbia Council, but
the bill died in committee in 1982 without a hearing. Page 493 U. S. 445 In September, 1982, SCTLA officials began a lobbying effort to
increase CJA compensation levels. They met with Chief Judge
Moultrie of the District of Columbia Superior Court, Herbert Reid,
who was counsel to the Mayor, and Wiley Branton, then Dean of
Howard University Law School. Chief Judge Moultrie told SCTLA
representatives that he thought they deserved more money, but he
declined to provide them any public support on the ground that, if
an increase were implemented, his court might be called upon to
decide its legality. See 272 U.S.App.D.C. at 275, 856 F.2d
at 229. Reid informed them that the Mayor was sympathetic to their
cause, but would not support legislation without the urging of
Chief Judge Moultrie. Dean Branton advised that the SCTLA should do
" something dramatic to attract attention in order to get any
relief.'" Ibid. In March, 1983, District of Columbia Council Chairman David
Clarke introduced a new, less ambitious bill increasing CJA
lawyers' pay to $35 per hour. A wide variety of groups testified in
favor of the bill at a hearing held by the City Council's Judiciary
Committee, reflecting an overwhelming consensus on the need to
increase CJA rates. [ Footnote 2/5 ]
No one testified against the bill, though the Executive Office of
the District of Columbia Courts worried about how to fund it. The
Court of Appeals concluded that

															"Mayor Barry and other important city officials were sympathetic
to the boycotters' goals, and may even have been supportive of the
boycott itself," id. at 297, n. 35, 856 F.2d at 251, n. 35, and that
certain statements by the Mayor could be interpreted

															"as encouraging the [Trial Lawyers] to stage a demonstration of
their political Page 493 U. S. 446 muscle so that a rate increase could more easily be justified to
the public." Id. at 298, n. 35, 856 F.2d at 252, n. 35.

															Taken together, these facts strongly suggest that the Trial
Lawyers' campaign persuaded the city to increase CJA compensation
levels by creating a favorable climate in which supportive District
officials could vote for a raise without public opposition, even
though the lawyers lacked the ability to exert economic pressure.
As the court below expressly found, the facts at the very least do
not exclude the possibility that the SCTLA succeeded due to
political rather than economic power. See id. at 297, 856
F.2d at 251. The majority today permits the FTC to find an
expressive boycott to violate the antitrust laws without even
requiring a showing that the participants possessed market power or
that their conduct triggered any anticompetitive effects. I believe
that the First Amendment forecloses such an approach. II A The majority concludes that the Trial Lawyers' boycott may be
enjoined without any showing of market power because

															"the government's interest in adhering to a uniform rule may sometimes satisfy the O'Brien test even if making
an exception to the rule in a particular case might cause no
serious damage." Ante at 493 U. S.
430 (citing United States v. Albertini, 472 U. S. 675 (1985)) (emphasis added). The Court draws an analogy between the per se rule in antitrust law and categorical proscriptions
against airplane stunt-flying and reckless automobile driving. See ante at 493 U. S.
433 -434. This analogy is flawed.

															It is beyond peradventure that sometimes no exception
need be made to a neutral rule of general applicability not aimed
at the content of speech; "the arrest of a newscaster for a traffic
violation," for example, does not offend the First Amendment. Arcara v. Cloud Books, Inc., 478 U.
S. 697 , 478 U. S. 708 (1986) (O'CONNOR, J., concurring). Neither do restrictions Page 493 U. S. 447 on stunt-flying and reckless driving usually raise First
Amendment concerns. [ Footnote 2/6 ]
But ever since Schneider v. State, 308 U.
S. 147 (1939), we have held that, even when the
Government seeks to address harms entirely unconnected with the
content of speech, it must leave open ample alternative channels
for effective communication. See Rock Against Racism, 491
U.S. at 491 U. S.
802 -803; Frisby, 487 U.S. at 487 U. S.
483 -484; Clark v. Community for Creative
Non-Violence, 468 U. S. 288 , 468 U. S. 293 (1984); Metromedia, Inc. v. San Diego, 453 U.
S. 490 , 453 U. S. 552 (1981) (STEVENS, J., dissenting in part); Heffron v.
International Society for Krishna Consciousness, Inc., 452 U. S. 640 , 452 U. S. 648 (1981). Although sometimes such content-neutral
regulations with incidental effects on speech leave open sufficient
room for effective communication, application of the per
se rule to expressive boycotts does not. The role of boycotts
in political speech is too central, and the effective alternative
avenues open to the Trial Lawyers were too few, to permit the FTC
to invoke the per se rule in this case.

															Expressive boycotts have been a principal means of political
communication since the birth of the Republic. As the Court of
Appeals recognized,

															"boycotts have historically been used as a dramatic means of
communicating anger or disapproval and of mobilizing sympathy for
the boycotters' cause."

															272 U.S.App.D.C. at 294, 856 F.2d at 248. From the colonists'
protest of the Stamp and Townsend Acts to the Montgomery bus
boycott and the National Organization for Women's campaign to
encourage ratification of the Equal Rights Amendment, boycotts have
played a central role in our Nation's political discourse. In
recent years there have Page 493 U. S. 448 been boycotts of supermarkets, meat, grapes, iced tea in cans,
soft drinks, lettuce, chocolate, tuna, plastic wrap, textiles,
slacks, animal skins and furs, and products of Mexico, Japan, South
Africa, and the Soviet Union. See Missouri v. National
Organization for Women, Inc., 620 F.2d 1301, 1304, n. 5 (CA8), cert. denied, 449 U.S. 842 (1980); Note, 80 Colum.L.Rev.
1317, 1318, 1334 (1980). Like soapbox oratory in the streets and
parks, political boycotts are a traditional means of "communicating
thoughts between citizens" and "discussing public questions." Hague v. CIO, 307 U. S. 496 , 307 U. S. 515 (1939) (opinion of Roberts, J.). Any restrictions on such boycotts
must be scrutinized with special care in light of their historic
importance as a mode of expression. Cf. Perry Education Assn.
v. Perry Local Educators' Assn., 460 U. S.
37 , 460 U. S. 45 (1983).

															The Court observes that all boycotts have "an expressive
component" in the sense that participants must communicate their
plans among themselves and to their target. Ante at 493 U. S. 431 .
The Court reasons that this expressive feature alone does not
render boycotts immune from scrutiny under the per se rule. Otherwise, the rule could never be applied to any boycotts or
to most price-fixing schemes. On this point I concur with the
majority. But while some boycotts may not present First Amendment
concerns, when a particular boycott appears to operate on a
political rather than economic level, I believe that it cannot be
condemned under the per se rule. [ Footnote 2/7 ] The Court disagrees, and maintains that
communication Page 493 U. S. 449 of ideas to the public is a function not of a boycott itself,
but rather of media coverage, interviews, and other activities
ancillary to the boycott and not prohibited by the antitrust laws. See ante at 493 U. S. 426 .
The Court also notes that other avenues of speech are open, because
"[p]ublicity may be generated by any other activity that is
sufficiently newsworthy." Ante at 493 U. S. 431 .
These views are flawed.

															First, we have already recognized that an expressive boycott
necessarily involves "constitutionally protected activity." NAACP v. Claiborne Hardware Co., 458 U.
S. 886 , 911 (1982). That case, in which we held that a
civil rights boycott was political expression, forecloses the
Court's approach today. In Claiborne Hardware, Justice
STEVENS observed that "[t]he established elements of speech,
assembly, association, and petition, though not identical, are
inseparable'" when combined in an expressive boycott. Ibid. (citation omitted). I am surprised that he now finds
that the Trial Lawyers' boycott was not protected speech. In this
case, as in Claiborne Hardware, "[t]hrough the exercise of
the[ir] First Amendment rights, petitioners sought to bring about
political, social, and economic change." Ibid. The Court
contends that the SCTLA's motivation differed from that of the
boycotters in Claiborne Hardware, see ante at 493 U. S.
426 -427, because the former sought to supplement its
members' own salaries rather than to remedy racial injustice. Even
if true, the different purposes of the speech can hardly render the
Trial Lawyers' boycott any less expressive. Next, although the Court is correct that the media coverage of
the boycott was substantial, [ Footnote
2/8 ] see ante at 493 U. S. 414 ,
this Page 493 U. S. 450 does not support the majority's argument that the boycott itself
was not expressive. Indeed, that the SCTLA strove so mightily to
communicate with the public and the government is an indication
that it relied more on its ability to win public sympathy and
persuade government officials politically than on its power to
coerce the city economically. But media coverage is not the only,
or even the principal, reason why the boycott was entitled to First
Amendment protection. The refusal of the Trial Lawyers to accept
appointments by itself communicated a powerful idea: CJA
compensation rates had deteriorated so much, relatively speaking,
that the lawyers were willing to forgo their livelihoods rather
than return to work.

															By sacrificing income that they actually desired, and thus
inflicting hardship on themselves as well as on the city, the
lawyers demonstrated the intensity of their feelings and the depth
of their commitment. The passive nonviolence of King and Gandhi are
proof that the resolute acceptance of pain may communicate
dedication and righteousness more eloquently than mere words ever
could. A boycott, like a hunger strike, conveys an emotional
message that is absent in a letter-to-the-editor, a conversation
with the mayor, or even a protest march. Cf. Cohen v.
California, 403 U. S. 15 , 403 U. S. 26 (1971) (First Amendment protects "not only ideas capable of
relatively precise, detached explication, but otherwise
inexpressible emotions as well"). In this respect, an
expressive Page 493 U. S. 451 boycott is a special form of political communication. Dean
Branton's advice to the Trial Lawyers -- that they should do
"something dramatic to attract attention" -- was sage indeed.

															Another reason why expressive boycotts are irreplaceable as a
means of communication is that they are essential to the "poorly
financed causes of little people." Martin v. Struthers, 319 U. S. 141 , 319 U. S. 146 (1943). It is no accident that boycotts have been used by the
American colonists to throw off the British yoke and by the
oppressed to assert their civil rights. See Claiborne Hardware,
supra. Such groups cannot use established organizational
techniques to advance their political interests, and boycotts are
often the only effective route available to them. B Underlying the majority opinion are apprehensions that the Trial
Lawyers' boycott was really no different from any other, and that
requiring the FTC to apply a rule-of-reason analysis in this case
will lead to the demise of the per se rule in the boycott
area. I do not share the majority's fears. The boycott before us
today is readily distinguishable from those with which the
antitrust laws are concerned, on the very ground suggested by the
majority: the Trial Lawyers intended to and in fact did
"communicate with third parties to enlist public support for their
objectives." Ante at 493 U. S. 431 .
As we have seen, in all likelihood the boycott succeeded not due to
any market power wielded by the lawyers, but rather because they
were able to persuade the District government through political
means. Other boycotts may involve no expressive features, and
instead operate solely on an economic level. Very few economically
coercive boycotts seek notoriety, both because they seek to escape
detection and because they have no wider audience beyond the
participants and the target.

															Furthermore, as the Court of Appeals noted, there may be
significant differences between boycotts aimed at the government
and those aimed at private parties. See 272
U.S.App.D.C. Page 493 U. S. 452 at 296, 856 F.2d at 250. The government has options open to it
that private parties do not; in this case, for example, the boycott
was aimed at a legislative body with the power to terminate it at
any time by requiring all members of the District Bar to represent
defendants pro bono. If a boycott against the government
achieves its goal, it likely owes its success to political rather
than market power.

															The Court's concern for the vitality of the per se rule, moreover, is misplaced, in light of the fact that we have
been willing to apply rule-of-reason analysis in a growing number
of group-boycott cases. See, e.g., Indiana Federation of
Dentists, 476 U.S. at 476 U. S. 458 -459; Northwest Wholesale Stationers,
Inc. v. Pacific Stationery & Printing Co., 472 U.
S. 284 , 472 U. S.
293 -298 (1985); National Collegiate Athletic
Assn., 468 U.S. at 468 U. S. 101 ; Broadcast Music, Inc. v. Columbia Broadcasting System,
Inc., 441 U. S. 1 , 441 U. S. 9 -10
(1979) (criticizing application of per se rule because
"[l]iteralness is overly simplistic and often overbroad").
[ Footnote 2/9 ] We have recognized
that

															"there is Page 493 U. S. 453 often no bright line separating per se from Rule of
Reason analysis. Per se rules may require considerable
inquiry into market conditions before the evidence justifies a
presumption of anticompetitive conduct." National Collegiate Athletic Assn., supra, at 468 U. S. 104 ,
n. 26.

															In short, the conclusion that per se analysis is
inappropriate in this boycott case would not preclude its
application in many others, nor would it create insurmountable
difficulties for antitrust enforcement. The plainly expressive
nature of the Trial Lawyers' campaign distinguishes it from
boycotts that are the intended subjects of the antitrust laws.

															I respectfully dissent.

															[ Footnote 2/1 ]

															I join Parts 1, 11, 111 and IV of the Court's opinion, although,
as discussed further infra, I do not agree that the
unreasonableness of the pre-boycott rates of compensation and the
fact that the Trial Lawyers enjoyed no other effective means of
making themselves heard are irrelevant to the proper analysis. Compare ante at 493 U. S.
421 -422.

															[ Footnote 2/2 ]

															1 disagree with the Court that the government's interest in
employing the per se rule here is a substantial one. The per se rule's conceded service of the goals of
administrative efficiency and judicial economy cannot justify its
application to activity protected by the First Amendment. "[T]he
First Amendment does not permit the State to sacrifice speech for
efficiency." Riley v. National Federation of the Blind of North
Carolina, 487 U. S. 781 , 487 U. S. 795 (1988). See also Schneider v. State, 308 U.
S. 147 , 308 U. S. 161 , 308 U. S. 164 (1939). Insofar as the per se rule is thought warranted by
a speculation that even relatively small boycotts or those without
market power might nonetheless inflict some measure of economic
harm, see ante at 493 U. S. 434 -436, the rule can be applied in ordinary
antitrust cases where First Amendment freedoms are not implicated.
In such cases, "[t]he conceivable social benefits [of the conduct
under scrutiny] are few in principle, small in magnitude, [and]
speculative in occurrence." Ante at 493 U. S. 434 ,
n. 15 (quoting VII P. Areeda, Antitrust Law � 1509, pp. 412-413
(1986)). But where an expressive boycott is at issue, the same
cannot be said; the First Amendment establishes that the social
benefits involved are not "small in magnitude" or "speculative in
occurrence." Hence, even if it were possible that a boycott without
market power might cause anticompetitive effects -- a dubious
proposition, since by definition market power is the ability to
alter prices -- the government still should be required to proceed
under the rule of reason and demonstrate that such effects are
actually present in the case sub judice. [ Footnote 2/3 ]

															In United Slates v. O'Brien, 391 U.
S. 367 (1968), the Court held that

															"when 'speech' and 'nonspeech' elements are combined in the same
course of conduct, a sufficiently important governmental interest
in regulating the nonspeech element can justify incidental
restrictions on First Amendment freedoms. . . . [W]e think it clear
that a government regulation is sufficiently justified if it is
within the constitutional power of the Government; if it furthers
an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest." Id. at 391 U. S.
376 -377.

															[ Footnote 2/4 ]

															The Court quotes the FTC trial examiner's finding that there was
no evidence that the District government's decision to raise CJA
compensation rates responded to the Trial Lawyers' campaign or to
public pressure generally. See ante at 493 U. S.
416 -417. The majority, however, conveniently omits the
Court of Appeals' answer to this finding by the trial examiner:
"[T]he Commission did not reach the question and rejected the ALJ's
findings except insofar as it expressly adopted them." 272
U.S.App.D.C. at 297, 856 F.2d at 251. By implication, therefore,
the Commission rejected the trial examiner's finding on this
point.

															[ Footnote 2/5 ]

															Groups testifying in favor of the bill included the SCTLA,
District of Columbia Bar, D.C. Chapter of the National Lawyers
Guild, Public Defender Service, D.C. Chapter of the Washington
Psychiatric Society, Family Law Association, National Capitol Area
Chapter of the American Civil Liberties Union, and National Center
of Institutional Alternatives. See App. in No. 86-1465
(CADC), pp. 800-801.

															[ Footnote 2/6 ]

															Even the criminal law, however, provides procedural safeguards
to ensure that laws are not applied in an overbroad fashion to
punish activity protected by the First Amendment. The defendant in
a criminal trial is always able to raise the defense that the law
is unconstitutional as applied to him. See, e.g., Texas v.
Johnson, 491 U. S. 397 (1989). Application of the per se rule in the instant case
denies the Trial Lawyers even this opportunity.

															[ Footnote 2/7 ]

															If a boycott uses economic power in an unlawful way to send a
message, it cannot not claim First Amendment protection from the
antitrust laws, any more than a terrorist could use an act of
violence to express his political views and then assert immunity
from criminal prosecution. Thus, if a cartel in a regulated
industry inflicts economic injury on consumers by raising prices in
order to communicate with the government, it still would be subject
to the per se rule. The instant case is different: there
is a genuine question whether the SCTLA boycott involved any
economic coercion at all. That is why a showing of market power is
necessary before the boycott can be condemned as an unfair method
of competition.

															[ Footnote 2/8 ]

															The lawyers actively courted press coverage of their strike.
They set up "picket lines," distributed press kits, and granted
interviews; the media, both local and national, responded. No fewer
than 19 newspaper articles regarding the boycott appeared in the
Washington Post, Washington Times, USA Today, and New York Times.
The Washington Post's editorial page endorsed the boycott, opining
that "[i]t is simply unfair that these fees have remained unchanged
during a period when median income in the area has risen over 180
percent." Washington Post, Sept. 8,1983, p. A20, col. 1. The New
York Times reported that "[t]he unusual thing about the lawyer's .
. . job action is that almost no one disagrees with their
argument." N.Y. Times, Sept. 1, 1983, p. B10, col. 3. U.S. District
Judge Harold H. Greene wrote that the Trial Lawyers "should receive
the modest increase they have requested." Washington Post, Sept.
12, 1983, p. A13, col. 2. Even the Economist of London carried a
story on the boycott. Sept. 17, 1983, p. 25. Nor was coverage
limited to the print media. Local television and radio stations
aired numerous reports of the boycott, and an account of the Trial
Lawyers' plight appeared on the CBS Morning News. See App.
in No. 86-1465 (CADC), pp. 921, 923, 925, 937, 949.

															[ Footnote 2/9 ]

															Although "group boycotts" often are listed among the types of
activity meriting per se condemnation, see, e.g.,
Silver v. New York Stock Exchange, 373 U.
S. 341 , 373 U. S. 348 (1963); White Motor Co. v. United States, 372 U.
S. 253 , 372 U. S.
259 -260 (1963); Klor's, Inc. v. Broadway-Hale
Stores, Inc., 359 U. S. 207 , 359 U. S. 212 (1959); Northern Pacific R. Co. v. United States, 356 U. S. 1 , 356 U. S. 5 (1958); Associated Press v. United States, 326 U. S.
1 , 326 U. S. 12 (1945); Fashion Originators' Guild of America, Inc. v.
FTC, 312 U. S. 457 , 312 U. S.
465 -468 (1941), we have recognized that boycotts "'are
not a unitary phenomenon." St. Paul Fire & Marine Ins. Co.
v. Barry, 438 U. S. 531 , 438 U. S. 543 (1978). In fact,

															"'there is more confusion about the scope and operation of the per se rule against group boycotts than in reference to
any other aspect of the per se doctrine.'" Northwest Wholesale Stationers, Inc. v. Pacific Stationery
& Printing Co., 472 U. S. 284 , 472 U. S. 294 (1985) (quoting L. Sullivan, Law of Antitrust 229-230 (1977)). We
have observed that

															"the category of restraints classed as group boycotts is not to
be expanded indiscriminately, and the per se approach has
generally been limited to cases in which firms with market power
boycott suppliers or customers in order to discourage them from
doing business with a competitor." FTC v. Indiana Federation of Dentists, 476 U.
S. 447 , 476 U. S. 458 (1986). These considerations provide additional reason to analyze
the instant case with great care, because the Trial Lawyers'
boycott is certainly sui generis. Justice BLACKMUN, concurring in part and dissenting in part.

															Like Justice BRENNAN, I, too, join Parts I, II, III and IV of
the Court's opinion. But, while I agree with the reasoning of
Justice BRENNAN's dissent, I write separately to express my doubt
whether a remand for findings of fact concerning the Trial Lawyers'
market power would be warranted in the unique circumstances of this
case. As Justice BRENNAN notes, the Trial Lawyers' boycott was
aimed at the District's courts and legislature, governmental bodies
that had the power to terminate the boycott at any time by
requiring any or all members of the District Bar -- including the
members of SCTLA -- to represent indigent defendants pro
bono. Attorneys are not merely participants in a competitive
market for legal services; they are officers of the court. Their
duty to serve the public by representing indigent defendants is not
only a matter of conscience, but is also enforceable by the
government's power to order such representation, either as a
condition of practicing law in the District, or on pain of
contempt. See Powell v. Alabama, 287 U. S.
45 , 287 U. S. 73 (1932) ("Attorneys are officers of the court, and are bound to
render service when required" by court appointment); see also
United States v. Accetturo, 842 F.2d Page 493 U. S. 454 1408, 1412-1413 (CA3 1988); Waters v. Kemp, 845 F.2d
260, 263 (CA11 1988). * The Trial Lawyers' boycott thus was a dramatic gesture not
fortified by any real economic power. They could not have coerced
the District to meet their demands by brute economic force, i.e., by constricting the supply of legal services to
drive up the price. Instead, the Trial Lawyers' boycott put the
government in a position where it had to make a political choice
between exercising its power to break the boycott or agreeing to a
rate increase. The factors relevant to this choice were political,
not economic: that forcing the lawyers to stop the boycott would
have been unpopular, because, as it turned out, public opinion
supported the boycott; and that the District officials themselves
may not have genuinely opposed the rate increase, and may have
welcomed the appearance of a politically expedient "emergency."

															I believe that, in this unique market where the government buys
services that it could readily compel the sellers to provide, the
Trial Lawyers lacked any market power, and their boycott could have
succeeded only through political persuasion. I therefore would
affirm the judgment below insofar as it invokes the O'Brien analysis to preclude application of the per
se rule to the Trial Lawyers' boycott, but reverse as to the
remand to the FTC for a determination of market power.

															* This Court's recent decision in Mallard v. United States
District Court, 490 U. S. 296 (1989), is not to the contrary. In that case, the Court held that a
particular federal statute, 28 U.S.C. § 1915(d), authorizing the
District Court to "request" that an attorney represent an indigent
litigant, does not give the court power to require an unwilling
attorney to serve. The Court expressed no opinion on "whether the
federal courts possess inherent authority to require lawyers to
serve." 490 U.S. at 490 U. S. 310 .
Indeed, by way of background, the Court discussed numerous state
and federal statutes that do empower the courts to compel attorneys
to serve. Id. at 490 U. S.
302 -308.

Summary: In FTC v. Superior Court Trial Lawyers Association, the US Supreme Court ruled that a group of lawyers' boycott of court appointments to represent indigent defendants was a violation of antitrust laws, despite their arguments of social justification and political expression. The Court found that the lawyers' agreement to fix prices and conduct a boycott was a naked restraint of price and output, and that they lacked genuine economic power, relying instead on political persuasion to succeed. The Court also highlighted attorneys' duty to serve the public and represent indigent defendants as officers of the court.