Advocacy or Antitrust? Competitive Engagement and Political Advocacy Under the First Amendment

Abstract

Fierce business competitors have to step lightly to avoid liability under expansive American antitrust law and Anglo-American ‘commercial interference’ torts. However, both federal and state courts have increasingly interpreted the American constitutional guarantee of the freedom to petition the government as shielding competitors who engage each other in political or legal contexts. In-house practitioners should be aware of the shifting boundaries of First Amendment protection of these activities and develop in-house best practices to ensure both compliance and encourage engagement. Competition law in the United States, primarily the Sherman Antitrust Act, 15 U.S.C. §§ 1-7, fosters fair competition in part by proscribing ‘anticompetitive behavior’. A set of Supreme Court cases, and their progeny in the lower courts, have clarified for business competitors that there can be no ‘anticompetitive behavior’—and thus no antitrust liability—in the political arena. At company headquarters, the relationships your regional offices build and maintain with local government and the local community can seem abstract. And it is probably good practice to leave local government and community affairs work to the local offices, who have requisite sensitivity and knowledge to deal with local law and regulations. Advocacy at the local level is key.