holding that “in any case ... where a plaintiff seeks damages or injunctive relief, *1232 or both, for conduct which is prima facie protected by the First Amendment, the danger that the mere pendency of the action will chill the exercise of First Amendment rights requires more specific allegations than would otherwise be required”
How later courts described this case
- holding that “in any case ... where a plaintiff seeks damages or injunctive relief, *1232 or both, for conduct which is prima facie protected by the First Amendment, the danger that the mere pendency of the action will chill the exercise of First Amendment rights requires more specific allegations than would otherwise be required”
- holding that "in any case ... where a plaintiff seeks damages or injunctive relief, or both, for conduct which is prima facie protected by the First Amendment, the danger that the mere pendency of the action will chill the exercise of First Amendment rights requires more specific allegations than would otherwise be required"
- holding that a party invoking an exception to 11 Noerr-Pennington immunity “must include specific allegations of the specific activities” which bring 12 the opposing party outside the doctrine’s protective umbrella
- noting that precise standards “are simply absent from the rough and tumble of the political arena; almost any position, including the self-interested plea of one competitor that another should be denied a permit, may be urged before such a political body”
Written by the judges who cited it.
The opinion
MARKEY, Chief Judge,
United States Court of Customs and Patent Appeals
(concurring):
I concur in the excellent opinion of Judge Duniway. The presence of Judge Browning’s strong and scholarly dissent, particularly its clear and forceful exposition of pleading considerations, prompts these few remarks.
I cannot find an allegation that defendants “did foreclose” free and unlimited access. Paragraph 18 alleges the defendants’ opposition was a coverup of a “plan” to foreclose. Moreover, it would appear that McDonald’s could not allege such foreclosure. It had full access. Whatever “free and unlimited” may mean, it cannot, in my view, require successful access or access unopposed. Nothing of record indicates that McDonald’s feared defendants’ opposition or that its freedom and ability to seek future permits was in any manner “chilled” by the expected opposition of defendants. On the contrary, as Judge Duniway’s opinion makes plain, the present suit for $11,-000,000 has an inherent chill factor with respect to defendants’ freedom to oppose future permits.
In any event, the case illustrates, in my view, an effect of the unhappy marriage of “notice” pleading and virtually unlimited discovery. * The “might makes right” potential in that combination is, of course, completely contrary to the intent behind the effort to free the pre-trial phase from formalism and surprise.
In today’s litigious milieu, a reversal based on rigid adherence to the Federal Rules of Civil Procedure herein is not likely to have a shock value sufficient to force reform. However that may be, I believe such an attractively conservative approach should await an instance in which the exercise of First Amendment rights of speech, association, and petition would not, as here, be so clearly impeded.
See National Conference of the Causes of Popular Dissatisfaction with the Administration of Justice, 70 Federal Rules Decisions 79 (1976).