Federal First Amendment Cases


United States Supreme Court

Allowing the National Labor Relations Board to enjoin baseless litigation where such litigation is retaliatory employment action because the First Amendment right to petition does not protect baseless litigation.

Refusing to create a reporter’s shield, partly because of the difficulty of defining the class of people such a shield would cover: “Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer…just at much as of the large metropolitan publisher.”

Holding that local requirements for meticulous pleadings may not be used to dismiss claims based on federally created rights.

Clarifying the Noerr-Pennington doctrine, holding that the right to petition extends to all departments of the government, not just to the courts, and that “sham” petitioning activity – those activities undertaken not to influence action but to impose costs and other burdens on opponents – are not protected under the Noerr-Pennington doctrine.

Interpreting 42 U.S.C. § 1988, which provides for fees in civil rights cases, and holding that while a plaintiff in a civil rights case should be awarded attorney’s fees upon prevailing in all but special circumstances, a court may award fees to a prevailing defendant only if the suit was frivolous, unreasonable or without foundation, without a requirement that the suit be brought in subjective bad faith.

Prohibiting Congress from abrogating state sovereign immunity using its Fourteenth Amendment enforcement powers unless Congress can show both that the states have engaged in a constitutional violation to be remedied and that the remedial law is congruent and proportional to that violation. For purposes of abrogation, the Court, not Congress, defines the scope of constitutional protections.

Enunciating the scope of protected petitioning activity, finding that direct petitioning and appeals to the public, including media campaigns designed to influence legislation, are protected activities and cannot be the basis of antitrust violations. The court also fully enunciated the “sham” exception first described in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., infra, by holding that activities are “legitimate” petitioning activities so long as they are genuinely aimed at influencing governmental outcomes, as opposed to undertaken as a means to impose expense and constraints on other parties.

Holding that states may follow their own practice in establishing rules of procedure even in suits arising under federal law, but may not do so where rules, even if called procedural, substantively affect a federal right.

Holding that federal courts retain jurisdiction to hear collateral matters, including determinations of costs, fees and sanctions, when the underlying case is dismissed or concluded.

In holding that a state court’s denial of a jury trial in a federal case was reversible error, held that federal procedure applies to state court where it is ‘part and parcel’ of the federal right at issue.

Holding that petitioning activity, so long it is not a sham, is immunized from antitrust law prosecution.


Holding that, in arresting, convicting and punishing those engaged in peaceful demonstrations against racial discrimination, the state had infringed the demonstrators’ First Amendment rights of free speech, free assembly and freedom to petition for redress of grievances.

Cases typically “arise under” federal law for Constitutional purposes when a plaintiff pleads a cause of action created by federal law, but where a state-law claim necessarily raises a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities, federal court jurisdiction is warranted.

Interpreting federal law to grant federal courts subject matter jurisdiction only over cases that raise a federal issue on the face of a well-pleaded complaint. A federal issue raised on defense or counterclaim is not sufficient to confer jurisdiction upon the federal courts.

Upholding a federal law requiring state courts to toll state claims pending federal court resolution of related claims, as necessary and proper to the exercise of Congress’s power to constitute Article III courts and to assure that those courts fairly and efficiently exercise the judicial power of the United States.

Striking down provisions of the Gun Free School Zones Act, because the Act neither regulated a commercial activity nor contained a requirement that punishable gun possession be connected in any way to interstate commerce. The Act therefore exceeded the authority of Congress to regulate commerce. To enact legislation under its Commerce powers, Congress must provide detailed findings of a piece of legislation’s relationship to interstate commerce, and such a relationship may not be overly tenuous or based on but-for causation.

Holding that, although the value of the right of petition as an important aspect of self-government is beyond question, the Petition Clause does not provide absolute immunity for expressing libelous and damaging falsehoods in petitions to government officials. State law that allows damages for defamation to be recovered only if petitioner is shown to have acted with “malice,” as defined in terms consistent with New York Times Co. v. Sullivan provides adequate First Amendment protections; states need not provide absolute immunity for petitioning activity. First Amendment rights are inseparable, and there is no sound basis for granting greater constitutional protection to statements made in a petition than to other statements.

Recognizing that anonymous speech is part of an “honorable tradition of advocacy and dissent.”

Interpreting the federal official removal statute, 28 U.S.C. § 1446, infra, to require federal officials to raise federal claims on defense for federal courts to remove their cases to federal court.

While States have broad power to regulate economic activities, there is no comparable right to prohibit peaceful political activity such as that found in the boycott; nonviolent protests are entitled to the protection of the First Amendment.

Striking down provisions of the Low-Level Radioactive Waste Policy Amendments Act requiring states to take title to excess waste, and holding that although regulation of the interstate market in the disposal of low level radioactive waste is well within Congress’s Commerce power, and Congress could preempt entirely state regulation in the area, Congress may not commandeer the states’ legislative processes by directly compelling legislatures to enact and enforce a federal regulatory program, but must exercise authority directly upon individuals.

Holding that application by state courts of a rule of law, whether statutory or not, to award a judgment in a civil action, is state action under the Fourteenth Amendment. Also holding that expression does not lose constitutional protection because it appears in the form of a paid advertisement, and that factual error is insufficient to warrant an award of damages for false statements unless actual malice – knowledge of or reckless disregard of falsity – is alleged and proved.

Upholding federal provision that prohibited the use of data collected pursuant to a federal highway law in state court proceedings as a valid exercise of Congress’s commerce power because the prohibition was aimed at improving safety in the channels of commerce and increasing protection for the instrumentalities of interstate commerce.

Striking down provisions of the Brady Gun Control Act that required state officials to conduct background checks on gun purchasers, and holding that principles of federalism preclude Congress from commandeering state executive branches to enact or administer a federal regulatory scheme.

Holding that the Constitution authorizes the removal of both civil and criminal cases from state court to federal courts, and that upon removal of a case from a state court to federal court, the federal court should administer state laws to determine the outcome of the case.

Holding that state courts may not refuse to hear cases brought under federal law without a good excuse, even when a state would prefer to allocate its resources to different uses.

Holding that joint efforts to influence public officials do not violate antitrust laws even though intended to eliminate competition.

Striking down the Violence Against Women Act as exceeding Congress’s power under the Commerce Clause because the numerous findings regarding the serious impact of gender-motivated violence relied on a but-for causal chain of attenuated effects upon interstate commerce, which is an insufficient nexus to interstate commerce. Also holding that Congress could not enact the law under its Fourteenth Amendment enforcement powers because the Fourteenth Amendment prohibits only state action, not private conduct, and the act was to a large extent directed at private individuals. To the extent that the act did permissibly remedy a violation by the state, it was not congruent and proportional to that violation, exceeding Congress’s power in that respect as well.

Holding that the “arising under” clause of the Constitution is an appropriate basis for the statutory grant of subject matter jurisdiction to actions by foreign plaintiffs under the Foreign Sovereign Immunities Act because every action against a foreign sovereign necessarily involves application of a body of substantive federal law, and accordingly arises under federal law within the meaning of Article III.


First Circuit

Holding that the Massachusetts anti-SLAPP statute is a “mere matter of procedure” and therefore not applicable in federal court.



Ninth Circuit

Holding that, although the Federal Rules of Civil Procedure do not require courts to issue a statement explaining dismissal pursuant to Federal Rules 12 or 56, where a dismissal is without leave to amend, courts are encouraged to issue clear reasons or written findings for dismissal on the record.

Holding that federal courts must apply California’s anti-SLAPP law to state law claims tried in federal courts.

Holding that anti-SLAPP statute does not apply to matters involving federal law, particularly bankruptcy law.

Noting a potential conflict between the Oregon anti-SLAPP law and the Federal Rules of Civil Procedure, raising the question of whether the Oregon anti-SLAPP law’s heavy burden on the plaintiff to survive an anti-SLAPP motion creates a “direct collision” with Federal Rule of Civil Procedure 56(c) so as to preclude the law’s application in federal court.

Holding that federal claims in federal court are not subject to California’s anti-SLAPP law.