FTC v. Superior Court Trial Lawyers Ass’n

493 U.S. 411 (1990)


The burden of providing competent counsel to indigent defendants in the District of Columbia is substantial. Lawyers in private practice were appointed and compensated pursuant to the District of Columbia Criminal Justice Act (CJA). In 1982, most appointments went to approximately 100 lawyers who are described as 'CJA regulars.' These lawyers derived almost all of their income from representing indigents. In 1982, the total fees paid to CJA lawyers amounted to $4,579,572. Bar organizations began as early as 1975 to express concern about the low fees paid to CJA lawyers. D and its officers, and other bar groups sought to persuade the District to increase CJA rates to at least $35 per hour. At a D 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.' About 100 CJA lawyers met and resolved not to accept any new cases after September 6. They even signed a petition. D arranged a series of events to attract the attention of the news media and to obtain additional support. The handful of CJA regulars who continued to take cases were soon overloaded. Within 10 days, the key figures in the District's criminal justice system 'became convinced that the system was on the brink of collapse. 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. The CJA lawyers attended a D meeting and voted to accept the $35 offer and end the boycott. P filed a complaint against D alleging an agreement to restrain trade. P characterized Ds' conduct as a conspiracy to fix prices and to conduct a boycott. The ALJ found that the facts alleged in the complaint had been proved. It rejected 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; and that it was a form of political activity protected by the First Amendment. The ALJ 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. P refused to conclude that the boycott was harmless. P entered a cease-and-desist order 'to prohibit Ds from initiating another boycott. The Court of Appeals vacated the order and remanded. It concluded that 'the boycott did contain an element of expression warranting First Amendment protection.' It concluded that 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 required P to 'prove rather than presume that the evil against which the Sherman Act is directed looms in the conduct it condemns.' P appealed.