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In Federal Trade Commission v. Superior Court Trial Lawyers Association, 493 U.S. 411 (1990), a unanimous Supreme Court held that the First Amendment freedom of speech clause does not extend to private lawyers boycotting an established practice of supplying the government with reduced-price legal services in order to increase their profits.

Defense attorneys boycotted practice of providing reduced-fee legal services

The Federal Trade Commission brought this lawsuit against the Superior Court Trial Lawyers Association (SCTLA) because collectively the District of Columbia’s defense attorneys decided to boycott the practice of providing reduced-fee legal services to indigent clients in the District, and the boycott quickly strained the justice system and the Public Defender Service.

The SCTLA entered a counterpetition of certiorari to the Supreme Court, where the lawyers argued that the boycott was a form of free speech in which they were expressing dissatisfaction with a government policy. The FTC countered that the SCTLA violated antitrust laws, because the boycott was not a vehicle of free speech; rather, it was a way in which to increase individual monetary gain and profit.

Court said First Amendment did not protect attorney boycotts for monetary gain

Justice John Paul Stevens, who wrote the Court’s majority opinion, defined the issue as “whether lawyers’ concerted conduct, which was defined as boycotting, violated [section] 5 of the Federal Trade Commission Act and, if so whether it was nevertheless protected by the First Amendment to the Constitution.”

The Court disagreed. By a vote of 6-3, it ruled that the First Amendment offered no protection to individuals who decided to boycott a system of reduced-fee legal services to indigent clients for sheer monetary gain that violated established antitrust laws.

Other provisions related to this question of constitutionality included the District of Columbia Criminal Justice Act and Section 1 of the Sherman Act. The Court also had to look to precedent set by United States v. O’Brien (1968) and NAACP v. Claiborne Hardware Co. (1982).

This article was originally published in 2009. Myra Enos was a student at Muskingum University. Walter Huber is a Professor and Chair of the Department of Political Science and Criminal Justice at Muskingum University. He serves as the Director of the University’s Center for Regional Planning and Development.

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