Eleanor Fox argues that the leading law firms should have immediately and collectively resisted President Donald Trump’s attacks. Strong, timely collective resistance may have helped staunch democratic backsliding and prevented normalization of repeated, speech-chilling demands. Doing so, however, the firms would have faced the risk of violating the antitrust laws. This article assesses antitrust’s treatment of political action and argues that the space for protected political action needs to be enlarged.
The Trump administration is in the midst of executing a grand plan to change the balance of ideology in America, to stamp out all criticism of the president, his policies, and his allies, and to do so in apparent disregard of the Constitution and the rule of law. President Donald Trump is putting under his thumb all institutions of governance, health, education, business, the system of justice, and civil society. The modus operandi is to chill speech that disagrees with him and legal action that could challenge him. If the president succeeds in flouting legal constraints, so might his successors.
We ought to be very worried for our democracy. Protection of our democracy is likely to require collective action in resistance, as Steven Levitsky, Lucan Way and Daniel Ziblatt argue in “How Will We Know When We Have Lost Our Democracy?” New York Times columnist David Brooks agrees: “It will take a concerted response to beat [the juggernaut] back.”
This article focuses on Trump’s attacks on the law firms. It imagines what an effective, timely response could have looked like; one that did not happen; and it analyzes antitrust obstacles and how they can be minimized.
The context
In the past few months, the Trump administration has come after law firms that have supported investigations against Trump and supported his political and ideological foes. The first law firm publicly targeted was Perkins Coie, expressly because of its representation of Hillary Clinton (representation that allegedly was “dangerous and dishonest”), her association with liberal billionaire philanthropist George Soros, and the firm’s concern with diversity, equity, and inclusion. The executive orders against Perkins Coie and subsequently against other firms threatened to ban their lawyers from federal buildings (including courthouses, which would have handicapped their ability to represent clients), and to end federal contracts with the firm and its clients. Perkins Coie chose to fight, as did Wilmer Hale, Jenner & Block and Susman Godfrey when they were targeted. Judges have ruled in favor of three of the four law firms, with the fourth lawsuit from Susan Godfrey still pending. Nevertheless, most other firms did not fight back; they agreed to devote tens of millions of dollars to pro bono work for the president’s causes and to cleanse themselves of diversity programs. In some cases, conciliatory firms have dropped their representation of groups disfavored by Trump, notably immigrants.
What might be or might have been a potentially effective collective response? On day one when Trump signed the executive order attacking Perkins Coie, the leading law firms would have announced a NATO-type agreement: “An attack on one is an attack on all.” They would have vowed to fight the unconstitutional executive orders, to support their hiring practices and choices of whom to represent, and they would have agreed not to solicit the clients or lawyers of any targeted firm for the duration of the attack.
But this hypothetical compact is likely to have been met with the president’s threat: “You do that and we’ll sue you in antitrust.”
Antitrust is, of course, only one small tool in the president’s arsenal to bring the big law firms under his sway, and the lawyers have more reasons than antitrust to submit to the president’s will. But still, antitrust can be an obstacle to the collective action we need, and it should not be an unnecessary one. More broadly, if readers think that the scope of this article is small, they should take it as a symbol; as a call to remove whatever barriers unnecessarily deter effective peaceful resistance to the forces that threaten to undermine rule of law and democracy.
In the spirit that all barriers matter, I reexamine the balance antitrust has struck between prohibitions against anticompetitive collective action and freedoms to engage in constitutionally related rights. The article concludes that the balance is insufficiently friendly to political speech and action and should be corrected.
The state of antitrust and political action today
Antitrust law prohibits combinations and conspiracies in restraint of trade. It prohibits, per se (on their face), agreements of competitors to raise prices, lower output, and divide markets. Group boycotts by competitors, as the imagined law firm “NATO” agreement might constitute, may fall into this category. Antitrust law also prohibits combinations that unreasonably harm competition.
There are two relevant exceptions. The first is the Noerr exception, derived from the 1961 case Eastern R. Conference v. Noerr Motors. The Noerr exception shields action to petition the government, including joint petitioning, even if it is designed to produce serious anticompetitive results. In Noerr itself, the Court shielded from antitrust liability a coalition of railroad companies that lobbied the government to keep the trucks off the fast roads. The Noerr exception exists to safeguard free speech, freedom of association, and the flow of information. As the Noerr Court observed, petitioning the government is “essential[ly] dissimilar[]” from illegal combinations such as price-fixing, and protecting petitioning is necessary to democratic government. Thus, under the principle of Noerr, law firms’ signing an amicus brief in support of a law firm targeted by an executive order is protected action.
But Noerr has limits.The limits were drawn in the 1990 case FTC v. Superior Court Trial Lawyers Association, which concerned lawyers representing indigent defendants in the District of Columbia. The lawyers were paid by the District’s legislature, the D.C. Council, and their fees were far below a fair market level; below the level sufficient to draw enough lawyers to the task, thus threatening the constitutional rights of the defendants for effective legal representation. The indigent defendants were an unpopular lot, and the D.C. Council refused to budge to humanize their fees. Advised that they would make no headway unless they called public attention to their plight, the D.C. lawyers called a strike and boycott to raise public awareness and thereby to nudge the D.C. Council to act. They agreed to accept no new cases until the fees were raised. The strategy worked. But the FTC sued the lawyers and held their boycott illegal.
The lawyers appealed. The D.C. Court of Appeals, in an opinion by Judge Douglas Ginsburg, reversed the FTC’s decision. He held that the lawyers’ strike and boycott were imbued with an expressive element, and the expressive element required more sensitive treatment than per se illegality afforded. Then the FTC appealed to the Supreme Court, and it won. Reversing the Circuit Court, the Supreme Court condemned the boycott as illegal per se. Rejecting Noerr protection, it held that Noerr protects petitioning the government to harm competition, but not harming competition to petition the government. Thus was crafted a narrow view of the right to petition.
We now turn to the second exception from antitrust, political boycott, which is the main subject of this article.
Boycotts by competitors of competitors, buyers, or suppliers are generally illegal per se in violation of Section 1 of the Sherman Act. Are political boycotts an exception? We focus on the two Supreme Court cases that most clearly set the parameters: NAACP v. Claiborne Hardware Co. (1982), and FTC v. Superior Court Trial Lawyers Association, discussed above for its narrowing of the Noerr exemption.
In the civil rights “wars” of the 1960s, Black citizens of Claiborne County, Mississippi, boycotted the shops of the white merchants. They harmed some businesses of white merchants, and the merchants sued for damages for violation of state tort and antitrust law. The trial court found liability. The Supreme Court had a different view. It held that, for the nonviolent aspects of their conduct, the boycotters were protected by the First and Fourteenth Amendments and were not liable under either tort law or antitrust law. The Court said:
[T]he purpose of petitioners’ campaign was not to destroy legitimate competition. Petitioners sought to vindicate rights of equality and of freedom that lie at the heart of the Fourteenth Amendment itself. 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.
Later, in Superior Court Trial Lawyers, the Supreme Court drew a finer line. As noted, the lawyers had agreed not to accept new cases until their fees were raised. Their strike was designed to raise prices: the fees they themselves would receive. Distinguishing the case from Claiborne Hardware, the Court said of the trial lawyers: “[T]he undenied objective of their boycott was an economic advantage for those who agreed to participate. […] Those who joined the Claiborne Hardware boycott sought no special advantage for themselves.”
This, essentially, is the state of U.S. antitrust law on political versus commercial boycotts. Under Superior Court Trial Lawyers, collective protesters cannot claim First Amendment protection or antitrust exemption when they seek “special advantage for themselves.”
Recent developments seek to make use of Superior Court Trial Lawyers’ wedge in the door at the antitrust/speech interface. The Trump administration and its allies seek to apply antitrust to media, advertisers and platforms for allegedly discriminating against conservative views by collective action or abuse of market power. X Corp.’s complaint against Global Alliance for Responsible Media (GARM), the Trump FTC’s Request for Public Comments Regarding Technology Platform Censorship, and the FTC’s newly opened investigation against Media Matters are some examples.
Weaker antitrust duties, stronger constitutional protections
Two relevant trends have occurred since the Supreme Court decided Superior Court Trial Lawyers. First, the Supreme Court continues to shrink the per se rule, giving a more sympathetic look to agreements that may not have harmed the market. Second, the Supreme Court has expanded the space for protected corporate speech, and it has ruled that the government has no proper role in coercing a rebalance of ideologies.
These two trends suggest that the Supreme Court may now be ready to rebalance antitrust prohibitions and political action freedoms. The Court may be ready to accept the analysis of Judge Douglas Ginsburg for the D.C. Court of Appeals in Superior Court Trial Lawyers.
On the antitrust side, the rule of per se illegality for certain collaborations is the major obstacle to sufficient space for collective political action. There was a time when per se treatment was broad, expanding, and sacred. The per se rule stretched beyond its core (paradigmatically, price fixing). This breadth and sanctity have been eroded. If conduct is clearly price fixing by rivals or its equivalents, the per se rule is still strong and clear. But in cases in which the conduct is not rivals’ price-fixing, the Supreme Court has given pause. Maybe there was no real threat to the market, and maybe the conduct had value.
Judge Douglas Ginsburg’s opinion in Superior Court Trial Lawyers (which as noted has been reversed)would reject per se condemnation in cases laced with expressive elements. His careful reasoning may lay the groundwork for taking political collective action out of the per se category, giving political action no less regard than commercial action.
On the constitutional side, Citizens United (2009) expanded the scope for corporate political speech. Corporate political campaign spending is now protected speech. Prior restraint of corporate political speech is entitled to strict scrutiny (very sympathetic regard) before it is condemned. Strict scrutiny means that, to survive a challenge, the restriction must further a compelling government interest and must be narrowly tailored to protect that interest.
Moody v. NetChoice (2024) expands the deference to speech. Moody involved Texas and Florida statutes forbidding or regulating content moderation by private media—statutes apparently motivated by concern about deplatforming conservative speech. Relevant to contemporary executive orders that would steer the speech and representation offered by universities and lawyers, the Supreme Court said:
In case after case, the Court has barred the government from forcing a private speaker to present views it wished to spurn in order to rejigger the expressive realm.[…] However imperfect the private marketplace of ideas, here was a worse proposal—the government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others.
The decreasing scope of the per se rule, the increasing protection for political speech, and the confirmed impropriety of government intervention to change the balance of viewpoint and beliefs may indicate that the Court is ready to give greater respect for constitutionally related values in the balance between antitrust and collective political action.
Analyzing collective political action under constitutional and antitrust principles
In this section we offer pathways for analyzing the hypothesized lawyers’ collective action. We begin with a thought experiment supposing that the restraint on political expression (risk of antitrust) were subject to strict scrutiny. In this way we hold one set of values up against another by giving priority to the constitutional values. We then turn to traditional antitrust analysis, exploring the three categories for analysis: an exception from the antitrust laws, the per se rule, and the rule of reason.
A thought experiment
Antitrust law is a government restraint on behavior. Per se condemnation is a particular application of this restraint. We ask (for this thought experiment applying strict scrutiny): Is there a compelling antitrust interest in condemning the hypothesized compact between the law firms?
Antitrust law’s interest is in protecting markets from the creation and abuse of market power, which raises prices or degrades quality. We deal here with the law firm market. The lawyers have, hypothetically, agreed not to poach clients and lawyers of targeted law firms.
Agreements among rivals not to poach employees are normally per se illegal when they are “naked” agreements—which usually means that the rivals have lessened competition for workers, thus lowering the cost of labor (workers’ salaries). In a commercial situation, if law firms agree not to solicit each other’s clients, they may solidify their market power and protect their high fees.
The hypothesized lawyers’ political collective action is essentially dissimilar from commercial no-poach agreements. It is ancillary to collective political speech and action. It is not geared to exploit workers or clients. It involves the clients and employees of only the handful of targeted law firms, and it is not likely to affect the price of legal services. The strongest antitrust interest here is the free movement of clients and lawyers of the few targeted firms; a concern, but only a sliver of the market. The government does not appear to have “a compelling interest” to block the proposed collective action.
Were there a compelling interest, strict scrutiny analysis would move to a second step: Is the government’s restraint on the collective action (prohibiting it) tailored to and proportionate to that compelling interest? Prohibiting the hypothesized agreement to protect the antitrust interest seems badly out of proportion. The harm to the constitutional value of speech and representation is significant if—as we believe—effective collective action is crucial to democracy, while the benefit of the prohibition to competitive markets is hardly discernible.
With this proportionality exercise in mind, we turn to the antitrust analysis that we might expect.
Antitrust analysis
First, is the hypothetical compact outside of the Sherman Act altogether, as protected political collective action? One might credibly conclude that it should be, especially if the compact is necessary for effective resistance to unconstitutional orders. But no-poach agreements of rivals are market-related and not likely to be given a bright green light. The compact might be considered more like Superior Court Trial Lawyers (boycott to raise fees) and less like Claiborne Hardware (boycott for social change).
Second, and at the other extreme, is the compact caught by the per se rule of illegality? It can be argued so, but—as noted above—the courts are reserving the per se rule for the most heinous offenses to competition (mostly price-fixing), and this is not one.
Third, if the compact is not caught by the per se rule, how will and should it be analyzed under the rule of reason? The first step is market power. Do the lawyers have or gain market power in the law firm market by vowing solidarity with the targeted firms? With only a handful of firms in question, with acts that are likely to forego advantage rather than to reap advantage (more clients), and no prospect that the collective action would lead to aggregating power after the siege is over, it strains belief to imagine a market power scenario.
If market power were created, we would proceed to the next step under the rule-of-reason: analysis of effects. Does the hypothesized lawyers’ collective action harm the market for legal services, how, and to what extent? We have already noted the improbability of this result. We add here another dimension: the president’s executive orders have already harmed the lawyers’ market, and they keep harming it.
The president is trying to take off the market all demand for legal actions (and speech) against him, his allies, and his initiatives. He has already been successful. There is a chill in the country facing every lawyer who would otherwise be ready and able to represent clients whose causes the president opposes or who have crossed the president’s path. These clients include immigrants, but also political enemies such as former Republican House representative Liz Cheney, Democratic Senator Adam Schiff, and judges who rule against Trump. Absent the chill, the demand for legal services would be increasing because of increasing numbers of probably illegal executive actions harming their targeted victims. The president’s executive orders are thus limiting output. The imagined compact would fight against this distortion of the law services market and increase its overall output.
Moreover, the restrictive clause of the compact (no solicitation of lawyers or clients of the target)—to the degree that it is harmful to competition—is directly proportional to the market distortion caused by the executive orders. Without credible collective action, law firms are likely to feel the inexorable pull to bow to the will of the president. Effective resistance depends on collective resistance.
Conclusion
It is time to rethink the balance between antitrust prohibitions and constitutional freedoms. The hypothesized law firms’ compact is essentially dissimilar from the conduct that antitrust targets, and it is likely to be an essential element of effective political action. While under current court precedent, the law firms’ imagined agreement faces a significant antitrust risk, recent trends indicate that the Supreme Court might be open to rethinking the balance. This article suggests pathways for the Court to reset the boundaries between antitrust and collective political action.
The author thanks Harry First, Daniel Francis, and Douglas Melamed for their very helpful comments.
Author Disclosure: The author reports no conflicts of interest. You can read our disclosure policy here.
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
