The opinion
SILBERMAN, Circuit Judge,
concurring:
I concur fully in the court’s comprehensive opinion, except for its reliance on the Trial Lawyer’s commercial motivation. I think it fair to say that, at a minimum, their motivation was mixed, and I do not think it necessary or desirable in this case to determine which of the two impulses predominates. Rather, it is my view that the Supreme Court’s cases hold that certain techniques traditionally proscribed may themselves be used to characterize conduct as commercial rather than political regardless of the actor’s motivation, and that the FTC’s task is to determine whether such a technique has been employed.
I agree with the majority that observing that SCTLA set out to influence governmental activity hardly completes the analysis. A supplier to government that uses its market power to influence the government to pay a higher price for goods could have no claim to antitrust immunity. See Maj. op. at 250-51; I P. Areeda & D. Turner, Antitrust Law ¶ 206 (1978). On the other hand, members of an industry that engaged in a successful letter writing campaign to influence government to pass legislation effectively increasing their profit margins would have taken part in protected political activity. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 , 81 S.Ct. 523 , 5 L.Ed.2d 464 (1961). The difficulty in this case, where petitioners directed at government a boycott — which could be either expressive or coercive — is determining whether they in fact prevailed because of political appeal or commercial might.
I do not believe the answer lies in the majority’s analysis of petitioners’ subjective motivation, nor that the Supreme Court’s cases compel that sort of examination. Allied Tube does draw a distinction between commercial activity with political impact and political activity with commercial impact. 108 S.Ct. at 1941. The majority at 249-50, however, appears to equate political activity with altruism, requiring that petitioners have the Sixth Amendment interests of their clients primarily in mind if they are successfully to claim they are engaging in political speech. The setting of reimbursement levels for publicly appointed defense counsel is a political issue, though, and petitioners’ self-interest does not strip their speech of its political character. The activity held to be protected in Noerr was designed to harm truckers and help the railroads. 365 U.S. at 142-44 , 81 S.Ct. at 532-33 ; see also United Mine Workers v. Pennington, 381 U.S. 657, 667-70 , 85 S.Ct. 1585, 1592-93 , 14 L.Ed.2d 626 (1965). Similarly, the Court in Allied Tube acknowledged that lobbying to remove *254 the “competitive threat” of polyvinyl chloride conduit could be protected, 108 S.Ct. at 1942, and even the boycotters in Claiborne Hardware, from which the majority draws the motivation test, were obviously seeking legislation beneficial to them. See 458 U.S. at 899, 935 (app.), 102 S.Ct. at 3418, 3437 (app.).
The difficulty with the motivation test as the majority uses it is sharply illustrated by comparing Claiborne Hardware with International Longshoremen’s Association v. Allied International, Inc., 456 U.S. 212 , 102 S.Ct. 1656 , 72 L.Ed.2d 21 (1982) (“ILA ”). Both cases involved boycotts of private commercial enterprises in order to bring political pressure — the longshoremen were protesting the Soviet invasion of Afghanistan while the boycotters in Claiborne Hardware sought to vindicate certain Fourteenth Amendment rights. Yet the Claiborne Hardware boycott’s nonviolent elements were held to be protected by the First Amendment, while the longshoremen’s First Amendment claims were dismissed in a brief paragraph, id. at 226-27 , 102 S.Ct. at 1664-65 , despite the apparent acceptance by the Court of the purely political motivation of the boycott, see id. at 222-26 , 102 S.Ct. at 1662-64 . Motivation then, in the sense of the absence of desire for personal enrichment, cannot be the determinant of what speech is protected as political. If it were — since we all act with some attention to our economic interests— Noerr immunity could seldom be invoked.
To be sure, Claiborne Hardware emphasized that the boycotters’ purpose was to “influence government action,” 458 U.S. at 914, 102 S.Ct. at 3426 , and in Allied Tube the Court, in referring to Claiborne Hardware, described the boycotters’ motivation as lacking any “desire to lessen competition or to reap economic benefits,” 108 S.Ct. at 1941. But I think it is more telling that the Claiborne Hardware Court distinguished Noerr because, unlike the railroads, the Claiborne Hardware boycotters, although injuring private parties, did not aim at destroying “legitimate competition,” 458 U.S. at 914, 102 S.Ct. at 3426 , and that in Allied Tube the Court observed “the boycotters were consumers who did not stand to profit financially from a lessening of competition in the boycotted market.” 108 S.Ct. at 1941 (emphasis added). In other words, regardless of the boycotters’ exact psychological motivation, they were not using a technique that is generally thought to work market injury, so the activity can be characterized as political.
I think the proper distinction between political and commercial activity must in cases such as this one — where the objective is the same (raising rates) regardless of the originating considerations — turn on the means employed in eliciting a governmental response. As I said at the outset, if one gets one’s way from the government qua legislator because of political persuasiveness, there is no liability. But using market power to coerce the government qua economic actor creates a distortion of the market and the political process. Since a boycott has the potential either to persuade or to coerce, however, the only proxy we have for whether SCTLA relied on political or commercial power, the crucial element of the “context and nature,” Allied Tube, 108 S.Ct. at 1942, of this ease, is the degree of market power they enjoy. If they have none, the boycott must have succeeded out of persuasion and been a political activity. But if there is market power, one must assume, for antitrust purposes, it came into play and that the boycott was primarily commercial.
I think this approach offers a reconciliation of Claiborne Hardware and ILA, holdings which surely cannot be satisfactorily explained in terms of the Supreme Court’s policy views of the political objectives advanced. 1 The ILA Court called that boycott “conduct designed not to communicate *255 but to coerce.” 456 U.S. at 226 , 102 S.Ct. at 1665 (emphasis added). It appears the Court was troubled by the longshoremen’s use of the traditionally prohibited secondary boycott, see 456 U.S. at 224 , 102 S.Ct. at 1663 , but not with the ability of the Claiborne Hardware petitioners actually to reduce competition in the market for groceries and reap that benefit. Similarly, the Court in Allied Tube emphasized that the standard-setting process there “involve[d] the exercise of market power.” 108 S.Ct. at 1941. If the Claiborne Hardware boycotters had put forth the same demands but, rather than consumers, had been the only three suppliers of electricity to the government or to private users, I think it likely the Court would have focused its analysis more clearly on factors such as available alternative power sources —in short, the indicia of market power.
I therefore agree with the majority that the FTC must inquire into market power. A boycott is the sort of activity “normally held violative of the Sherman Act,” Noerr, 365 U.S. at 136 , 81 S.Ct. at 529 , but if it has a communicative element and is undertaken without market power, it cannot be a primarily commercial activity.
. It is true that the Claiborne Hardware Court described the boycotters as seeking "to effectuate rights guaranteed by the Constitution itself,” 458 U.S. at 914, 102 S.Ct. at 3426 , and juxtaposed that objection against only the right of the states to regulate economic activity. This might suggest that the Court would give greater deference to federal regulation in drawing the appropriate balance with the First Amendment. Nevertheless, Claiborne Hardware does not appear to me to be limited to boycotts that protest unconstitutional practices.