author: Justice Brennan Justice White, Justice O’Connor,

text:
    SHAPERO v. KENTUCKY BAR ASSOCIATION
    No. 87-16.
    Argued March 1, 1988
    Decided June 13, 1988

      Brennan, J., announced the judgment of the Court and delivered the opinion of the Court with respects to Parts I and II, in which White, Marshall, Bláckmun, Stevens, and Kennedy, JJ., joined, and an opinion with respect to Part III, in which Marshall, Blackmun, and Kennedy, JJ., joined. White, J., filed an opinion concurring in part and dissenting in part, in which Stevens, J., joined, post, p. 480. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 480.

      Donald, L. Cox argued the cause for petitioner. With him on the briefs was Mary Janice Lintner.

      Frank P. Doheny, Jr., argued the cause for respondent. With him on the brief was Joseph L. Lenihan

      Briefs of amici curiae urging affirmance were filed for the Academy of Florida Trial Lawyers by C. Rufus Pennington III; for the American Bar Association by Robert MacCrate, Michael Franck, and George Kuhlman; for the Association of Trial Lawyers of America by Jeffrey Robert White; and for the Florida Bar by Barry Richard and Ray Ferrero, Jr.

   Justice Brennan

announced the judgment of the Court and delivered the opinion of the Court as to Parts I and II and an opinion as to Part III in which Justice Marshall, Justice Blackmun, and Justice Kennedy join.

This case presents the issue whether a State may, consistent with the First and Fourteenth Amendments, categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems.

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In 1985, petitioner, a member of Kentucky’s integrated Bar Association, see Ky. Sup. Ct. Rule 3.030 (1988), applied to the Kentucky Attorneys Advertising Commission for approval of a letter that he proposed to send “to potential clients who have had a foreclosure suit filed against them.” The proposed letter read as follows:

“It has come to my attention that your home is being foreclosed on. If this is true, you may be about to lose your home. Federal law may allow you to keep your home by ORDERING your creditor [sic] to STOP and give you more time to pay them.
“You may call my office anytime from 8:30 a. m. to 5:00 p. m. for FREE information on how you can keep your home.
“Call NOW, don’t wait. It may surprise you what I may be able to do for you. Just call and tell me that you got this letter. Remember it is FREE, there is NO charge for calling.”

The Commission did not find the letter false or misleading. Nevertheless, it declined to approve petitioner’s proposal on the ground that a then-existing Kentucky Supreme Court Rule prohibited the mailing or delivery of written advertisements “precipitated by a specific event or occurrence involving or relating to the addressee or addressees as distinct from the general public.” Ky. Sup. Ct. Rule 3.135(5)(b)(i). The Commission registered its view that Rule 3.135(5)(b)(i)’s ban on targeted, direct-mail advertising violated the First Amendment — specifically the principles enunciated in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985) — and recommended that the Kentucky Supreme Court amend its Rules. See App. to Pet. for Cert. lla-15a. Pursuing the Commission’s suggestion, petitioner petitioned the Committee on Legal Ethics (Ethics Committee) of the Kentucky Bar Association for an advisory opinion as to the Rule’s validity. See Ky. Sup. Ct. Rule 3.530; n. 1, supra. Like the Commission, the Ethics Committee, in an opinion formally adopted by the Board of Governors of the Bar Association, did not find the proposed letter false or misleading, but nonetheless upheld Rule 3.135(5)(b) (i) on the ground that it was consistent with Rule 7.3 of the American Bar Association’s Model Rules of Professional Conduct (1984). App. to Pet. for Cert. 9a.

On review of the Ethics Committée’s advisory opinion, the Kentucky Supreme Court felt “compelled by the decision in Zauderer to order [Rule 3.135(5)(b)(i)] deleted,” 726 S. W. 2d 299, 300 (1987), and replaced it with the ABA’s Rule 7.3, which provides in its entirety:

‘“A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, by mail, in-person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term ‘solicit’ includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful.’” 726 S. W. 2d, at 301 (quoting ABA, Model Rule of Professional Conduct 7.3 (1984)).

The court did not specify either the precise infirmity in Rule 3.135(5)(b)(i) or how Rule 7.3 cured it. Rule 7.3, like its predecessor, prohibits targeted, direct-mail solicitation by lawyers for pecuniary gain, without a particularized finding that the solicitation is false or misleading. We granted cer-tiorari to resolve whether such a blanket prohibition is consistent with the First Amendment, made applicable to the States through the Fourteenth Amendment, 484 U. S. 814 (1987), and now reverse.

II

Lawyer advertising is in the category of constitutionally protected commercial speech. See Bates v. State Bar of Arizona, 433 U. S. 350 (1977). The First Amendment principles governing state regulation of lawyer solicitations for pecuniary gain are by now familiar: “Commercial speech that is not false or deceptive and does not concern unlawful activities . . . may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.” Zauderer, supra, at 638 (citing Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 566 (1980)). Since state regulation of commercial speech “may extend only as far as the interest it serves,” Central Hudson, supra, at 565, state rules that are designed to prevent the “potential for deception and confusion . . . may be no broader than reasonably necessary to prevent the” perceived evil. In re R. M. J., 455 U. S. 191, 203 (1982).

In Zauderer, application of these principles required that we strike an Ohio rule that categorically prohibited solicitation of legal employment for pecuniary gain through advertisements containing information or advice, even if truthful and nondeceptive, regarding a specific legal problem. We distinguished written advertisements containing such information or advice from in-person solicitation by lawyers for profit, which we held in Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978), a State may categorically ban. The “unique features of in-person solicitation by lawyers [that] justified a prophylactic rule prohibiting lawyers from engaging in such solicitation for pecuniary gain,” we observed, are “not present” in the context of written advertisements. Zauderer, supra, at 641-642.

Our lawyer advertising cases have never distinguished among various modes of written advertising to the general public. See, e. g., Bates, supra (newspaper advertising); id., at 372, n. 26 (equating advertising in telephone directory with newspaper advertising); In re R. M. J., supra (mailed announcement cards treated same as newspaper and telephone directory advertisements). Thus, Ohio could no more prevent Zauderer from mass-mailing to a general population his offer to represent women injured by the Daikon Shield than it could prohibit his publication of the advertisement in local newspapers. Similarly, if petitioner’s letter is neither false nor deceptive, Kentucky could not constitutionally prohibit him from sending at large an identical letter opening with the query, “Is your home being foreclosed on?,” rather than his observation to the targeted individuals that “It has come to my attention that your home is being foreclosed on.” The drafters of Rule 7.3 apparently appreciated as much, for the Rule exempts from the ban “letters addressed or advertising circulars distributed generally to persons . . . who are so situated that they might in general find such services useful.”

The court below disapproved petitioner’s proposed letter solely because it targeted only persons who were “known to need [the] legal services” offered in his letter, 726 S. W. 2d, at 301, rather than the broader group of persons “so situated that they might in general find such services useful.” Generally, unless the advertiser is inept, the latter group would include members of the former. The only reason to disseminate an advertisement of particular legal services among those persons who are “so situated that they might in general find such services useful” is to reach individuals who actually “need legal services of the kind provided [and advertised] by the lawyer.” But the First Amendment does not permit a ban on certain speech merely because it is more efficient; the State may not constitutionally ban a particular letter on the theory that to mail it only to those whom it would most interest is somehow inherently objectionable.

The court below did not rely on any such theory. See also Brief for Respondent 37 (conceding that “targeted direct mail advertising” — as distinguished from “solicitation” — “is constitutionally protected”) (emphasis in original). Rather, it concluded that the State’s blanket ban on all targeted, direct-mail solicitation was permissible because of the “serious potential for abuse inherent in direct solicitation by lawyers of potential clients known to need specific legal services.” 726 S. W. 2d, at 301. By analogy to Ohralik, the court observed:

“Such solicitation subjects the prospective client to pressure from a trained lawyer in a direct personal way. It is entirely possible that the potential client may feel overwhelmed by the basic situation which caused the need for the specific legal services and may have seriously impaired capacity for good judgment, sound reason and a natural protective self-interest. Such a condition is full of the possibility of undue influence, overreaching and intimidation.” 726 S. W. 2d, at 301.

Of course, a particular potential client will feel equally “overwhelmed” by his legal troubles and will have the same “impaired capacity for good judgment” regardless of whether a lawyer mails him an untargeted letter or exposes him to a newspaper advertisement — concededly constitutionally protected activities — or instead mails a targeted letter. The relevant inquiry is not whether there exist potential clients whose “condition” makes them susceptible to undue influence, but whether the mode of communication poses a serious danger that lawyers will exploit any such susceptibility. Cf. Ohralik, supra, at 470 (Marshall, J., concurring in part and concurring in judgment) (“What is objectionable about Ohralik’s behavior here is not so much that he solicited business for himself, but rather the circumstances in which he performed that solicitation and the means by which he accomplished it”).

Thus, respondent’s facile suggestion that this case is merely “Ohralik in writing” misses the mark. Brief for Respondent 10. In assessing the potential for overreaching and undue influence, the mode of communication makes all the difference. Our decision in Ohralik that a State could categorically ban all in-person solicitation turned on two factors. First was our characterization of face-to-face solicitation as “a practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud.” Zauderer, 471 U. S., at 641. See Ohralik, 436 U. S., at 457-458, 464-465. Second, “unique . . . difficulties,” Zau-derer, supra, at 641, would frustrate any attempt at state regulation of in-person solicitation short of an absolute ban because such solicitation is “not visible or otherwise open to public scrutiny.” Ohralik, 436 U. S., at 466. See also ibid. (“[I]n-person solicitation would be virtually immune to effective oversight and regulation by the State or by the legal profession”) (footnote omitted). Targeted, direct-mail solicitation is distinguishable from the in-person solicitation in each respect.

Like print advertising, petitioner’s letter — and targeted, direct-mail solicitation generally — “poses much less risk of overreaching or undue influence” than does in-person solicitation, Zauderer, 471 U. S., at 642. Neither mode of written communication involves “the coercive force of the personal presence of a trained advocate” or the “pressure on the potential client for an immediate yes-or-no answer to the offer of representation.” Ibid. Unlike the potential client with a badgering advocate breathing down his neck, the recipient of a letter and the “reader of an advertisement. . . can ‘effectively avoid further bombardment of [his] sensibilities simply by averting [his] eyes,’” Ohralik, supra, at 465, n. 25 (quoting Cohen v. California, 403 U. S. 15, 21 (1971)). A letter, like a printed advertisement (but unlike a lawyer), can readily be put in a drawer to be considered later, ignored, or discarded. In short, both types of written solicitation “con-ve[y] information about legal services [by means] that [are] more conducive to reflection and the exercise of choice on the part of the consumer than is personal solicitation by an attorney.” Zauderer, supra, at 642. Nor does a targeted letter invade the recipient’s privacy any more than does a substantively identical letter mailed at large. The invasion, if any, occurs when the lawyer discovers the recipient’s legal affairs, not when he confronts the recipient with the discovery.

Admittedly, a letter that is personalized (not merely targeted) to the recipient presents an increased risk of deception, intentional or inadvertent. It could, in certain circumstances, lead the recipient to overestimate the lawyer’s familiarity with the case or could implicitly suggest that the recipient’s legal problem is more dire than it really is. See Brief for ABA as Amicus Curiae 9. Similarly, an inaccurately targeted letter could lead the recipient to believe she has a legal problem that she does not actually have or, worse yet, could offer erroneous legal advice. See, e. g., Leoni v. State Bar of California, 39 Cal. 3d 609, 619-620, 704 P. 2d 183, 189 (1985), summarily dism’d, 475 U. S. 1001 (1986).

But merely because targeted, direct-mail solicitation presents lawyers with opportunities for isolated abuses or mistakes does not justify a total ban on that mode of protected commercial speech. See In re R. M. J., 455 U. S., at 203. The State can regulate such abuses and minimize mistakes through far less restrictive and more precise means, the most obvious of which is to require the lawyer to file any solicitation letter with a state agency, id., at 206, giving the State ample opportunity to supervise mailings and penalize actual abuses. The “regulatory difficulties” that are “unique” to in-person lawyer solicitation, Zauderer, supra, at 641 — solicitation that is “not visible or otherwise open to public scrutiny” and for which it is “difficult or impossible to obtain reliable proof of what actually took place,” Ohralik, supra, at 466-do not apply to written solicitations. The court below offered no basis for its “belie[f] [that] submission of a blank form letter to the Advertising Commission [does not] pro-vid[e] a suitable protection to the public from overreaching, intimidation or misleading private targeted mail solicitation.” 726 S. W. 2d, at 301. Its concerns were presumably those expressed by the ABA House of Delegates in its comment to Rule 7.3:

“State lawyer discipline agencies struggle for resources to investigate specific complaints, much less for those necessary to screen lawyers’ mail solicitation material. Even if they could examine such materials, agency staff members are unlikely to know anything about the lawyer or about the prospective client’s underlying problem. Without such knowledge they cannot determine whether the lawyer’s representations are misleading.” ABA, Model Rules of Professional Conduct, pp. 93-94 (1984).

The record before us furnishes no evidence that scrutiny of targeted solicitation letters will be appreciably more burdensome or less reliable than scrutiny of advertisements. See Bates, 433 U. S., at 379; id:, at 387 (Burger, C. J., concurring in part and dissenting in part) (objecting to “enormous new regulatory burdens called for by” Bates). As a general matter, evaluating a targeted advertisement does not require specific information about the recipient’s identity and legal problems any more than evaluating a newspaper advertisement requires like information about all readers. If the targeted letter specifies facts that relate to particular recipients (e. g., “It has come to my attention that your home is being foreclosed on”), the reviewing agency has innumerable options to minimize mistakes. It might, for example, require the lawyer to prove the truth of the fact stated (by supplying copies of the court documents or material that led the lawyer to the fact); it could require the lawyer to explain briefly how he or she discovered the fact and verified its accuracy; or it could require the letter to bear a label identifying it as an advertisement, see id., at 384 (dictum); In re R. M. J., supra, at 206, n. 20, or directing the recipient how to report inaccurate or misleading letters. To be sure, a state agency or bar association that reviews solicitation letters might have more work than one that does not. But “[o]ur recent decisions involving commercial speech have been grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful.” Zauderer, 471 U. S., at 646.

Ill

The validity of Rule 7.3 does not turn on whether petitioner’s letter itself exhibited any of the evils at which Rule 7.3 was directed. See Ohralik, 436 U. S., at 463-464, 466. Since, however, the First Amendment overbreadth doctrine does not apply to professional advertising, see Bates, 433 U. S., at 379-381, we address respondent’s contentions that petitioner’s letter is particularly overreaching, and therefore unworthy of First Amendment protection. Id., at 381. In that regard, respondent identifies two features of the letter before us that, in its view, coalesce to convert the proposed letter into “high pressure solicitation, overbearing solicitation,” Brief for Respondent 20, which is not protected. First, respondent asserts that the letter’s liberal use of underscored, uppercase letters (e. g., “Call NOW, don’t wait”; “it is FREE, there is NO charge for calling”) “fairly shouts at the recipient . . . that he should employ Shapero.” Id., at 19. See also Brief in Opposition 11 (“Letters of solicitation which shout commands to the individual, targeted recipient in words in underscored capitals are of a different order from advertising and are subject to proscription”). Second, respondent objects that the letter contains assertions (e. g., “It may surprise you what I may be able to do for you”) that “statte] no affirmative or objective fact,” but constitute “pure salesman puffery, enticement for the unsophisticated, which commits Shapero to nothing.” Brief for Respondent 20.

The pitch or style of a letter’s type and its inclusion of subjective predictions of client satisfaction might catch the recipient’s attention more than would a bland statement of purely objective facts in small type. But a truthful and non-deceptive letter, no matter how big its type and how much it speculates can never “shou[t] at the recipient” or “gras[p] him by the lapels,” id., at 19, as can a lawyer engaging in face-to-face solicitation. The letter simply presents no comparable risk of overreaching. And so long as the First Amendment protects the right to solicit legal business, the State may claim no substantial interest in restricting truthful and nondeceptive lawyer solicitations to those least likely to be read by the recipient. Moreover, the First Amendment limits the State’s authority to dictate what information an attorney may convey in soliciting legal business. “[T]he States may not place an absolute prohibition on certain types of potentially misleading information ... if the information may also be presented in a way that is not deceptive,” unless the State “assert[s] a substantial interest” that such a restriction would directly advance. In re R. M. J., 455 U. S., at 203. Nor may a State impose a more particularized restriction without a similar showing. Aside from the interests that we have already rejected, respondent offers none.

To be sure, a letter may be misleading if it unduly emphasizes trivial or “relatively uninformative fact[s],” In re R. M. J., supra, at 205 (lawyer’s statement, “in large capital letters, that he was a member of the Bar of the Supreme Court of the United States”), or offers overblown assurances of client satisfaction, cf. In re Von Wiegen, 63 N. Y. 2d 163, 179, 470 N. E. 2d 838, 847 (1984) (solicitation letter to victims of massive disaster informs them that “it is [the lawyer’s] opinion that the liability of the defendants is clear”), cert. denied, 472 U. S. 1007 (1985); Bates, supra, at 383-384 (“[Advertising claims as to the quality of legal services . . . may be so likely to be misleading as to warrant restriction”). Respondent does not argue before us that petitioner’s letter was misleading in those respects. Nor does respondent contend that the letter is false or misleading in any other respect. Of course, respondent is free to raise, and the Kentucky courts are free to consider, any such argument on remand.

The judgment of the Supreme Court of Kentucky is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice White,

with whom Justice Stevens joins, concurring in part and dissenting in part.

I agree with Parts I and II of the Court’s opinion, but am of the view that the matters addressed in Part III should be left to the state courts in the first instance.

Justice O’Connor,

with whom The Chief Justice and Justice Scalia join, dissenting.

Relying primarily on Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985), the Court holds that States may not prohibit a form of attorney advertising that is potentially more pernicious than the advertising at issue in that case. I agree with the Court that the reasoning in Zauderer supports the conclusion reached today. That decision, however, was itself the culmination of a line of cases built on defective premises and flawed reasoning. As today’s decision illustrates, the Court has been unable or unwilling to restrain the logic of the underlying analysis within reasonable bounds. The resulting interference with important and valid public policies is so destructive that I believe the analytical framework itself should now be reexamined.

I

Zauderer held that the First Amendment was violated by a state rule that forbade attorneys to solicit or accept employment through advertisements containing information or advice regarding a specific legal problem. See id., at 639-647. I dissented from this holding because I believed that our precedents permitted, and good judgment required, that we give greater déference to the States’ legitimate efforts to regulate advertising by their attorneys. Emphasizing the important differences between professional services and standardized consumer products, I concluded that unsolicited legal advice was not analogous to the free samples that are often used to promote sales in other contexts. First, the quality of legal services is typically more difficult for most laypersons to evaluate, and the consequences of a mistaken evaluation of the “free sample” may be much more serious. For that reason, the practice of offering unsolicited legal advice as a means of enticing potential clients into a professional relationship is much more likely to be misleading than superficially similar practices in the sale of ordinary consumer goods. Second, and more important, an attorney has an obligation to provide clients with complete and disinterested advice. The advice contained in unsolicited “free samples” is likely to be colored by the lawyer’s own interest in drumming up business, a result that is sure to undermine the professional standards that States háve a substantial interest in maintaining.

Zauderer dealt specifically with a newspaper advertisement. Today’s decision — which invalidates a similar rule against targeted, direct-mail advertising — wraps the protective mantle of the Constitution around practices that have even more potential for abuse. First, a personalized letter is somewhat more likely “to overpower the will and judgment of laypeople who have not sought [the lawyer’s] advice.” Zauderer, supra, at 678 (O’Connor, J., concurring in part, concurring in judgment in part, and dissenting in part). For people whose formal contacts with the legal system are infrequent, the authority of the law itself may tend to cling to attorneys just as it does to police officers. Unsophisticated citizens, understandably intimidated by the courts and their officers, may therefore find it much more difficult to ignore an apparently “personalized” letter from an attorney than to ignore a general advertisement.

Second, “personalized” form letters are designed to suggest that the sender has some significant personal knowledge about, and concern for, the recipient. Such letters are reasonably transparent when they come from somebody selling consumer goods or stock market tips, but they may be much more misleading when the sender belongs to a profession whose members are ethically obliged to put their clients’ interests ahead of their own.

Third, targeted mailings are more likely than general advertisements to contain advice that is unduly tailored to serve the pecuniary interests of the lawyer. Even if such mailings are reviewed in advance by a regulator, they will rarely be seen by the bar in general. Thus, the lawyer’s professional colleagues will not have the chance to observe how the desire to sell oneself to potential customers has been balanced against the duty to provide objective legal advice. An attorney’s concern with maintaining a good reputation in the professional community, which may in part be motivated by long-term pecuniary interests, will therefore provide less discipline in this context than in the case of general advertising.

Although I think that the regulation at issue today is even more easily defended than the one at issue in Zauderer, I agree that the rationale for that decision may fairly be extended to cover today’s case. Targeted direct-mail advertisements — like general advertisements but unlike the kind of in-person solicitation that may be banned under Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978) — can at least theoretically be regulated by the States through prescreening mechanisms. In-person solicitation, moreover, is inherently more prone to abuse than almost any form of written communication. Zauderer concluded that the decision in Ohralik was limited by these “unique features” of in-person solicitation, see 471 U. S., at 641, and today’s majority simply applies the logic of that interpretation of Ohralik to the case before us.

II

Attorney advertising generally falls under the rubric of “commercial speech.” Political speech, we have often noted, is at the core of the First Amendment. See, e. g., Boos v. Barry, 485 U. S. 312, 318 (1988). One reason for the special status of political speech was suggested in a metaphor that has become almost as familiar as the principle that it sought to justify: “[W]hen men have realized that time has upset many fighting faiths, they may come to believe . . . that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). Cf., e. g., Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 50-51 (1988). Traditionally, the constitutional fence around this metaphorical marketplace of ideas had not shielded the actual marketplace of purely commercial transactions from governmental regulation.

In Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976), however, the Court concluded that the First Amendment protects the communication of the following so-called “idea”: “I will sell you the X .prescription drug at the Y price.” See id., at 761. The Court argued that the public interest requires that private economic decisions be well informed, and it suggested that no satisfactory line could be drawn between ideas about public affairs and information relevant to such private decisions. Id., at 762-765. The dissent observed that the majority had overstated the difficulties of distinguishing public affairs from such matters as the “decision ... to purchase one or another kind of shampoo.” Id., at 787 (Rehnquist, J., dissenting). The dissent also foresaw that the logic of Virginia Pharmacy would almost necessarily extend to advertising by physicians and attorneys. Id., at 785. This prediction soon proved correct, see Bates v. State Bar of Arizona, 433 U. S. 350 (1977), and subsequent decisions have radically curtailed the power of the States to forbid conduct that I believe “pro-motets] distrust of lawyers and disrespect for our own system of justice.” Id., at 394 (Powell, J., concurring in part and dissenting in part).

The latest developments, in Zauderer and now today, confirm that the Court should apply its commercial speech doctrine with more discernment than it has shown in these cases. Decisions subsequent to Virginia Pharmacy and Bates, moreover, support the use of restraint in applying this doctrine to attorney advertising. We have never held, for example, that commercial speech has the same constitutional status as speech on matters of public policy, and the Court has consistently purported to review laws regulating commercial speech under a significantly more deferential standard of review.

“Expression concerning purely commercial transactions has come within the ambit of the [First] Amendment’s protection only recently. ... To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment’s guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devital-ization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.” Ohralik v. Ohio State Bar Assn., supra, at 455-456 (footnote omitted).

A standardized legal test has been devised for commercial speech cases. Under that test, such speech is entitled to constitutional protection only if it concerns lawful activities and is not misleading; if the speech is protected, government may still ban or regulate it by laws that directly advance a substantial governmental interest and are appropriately tailored to that purpose. See Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 566 (1980). Applying that test to attorney advertising, it is clear to me that the States should have considerable latitude to ban advertising that is “potentially or demonstrably misleading,” In re R. M. J., 455 U. S. 191, 202 (1982) (emphasis added), as well as truthful advertising that undermines the substantial governmental interest in promoting the high ethical standards that are necessary in the legal profession.

Some forms of advertising by lawyers might be protected under this test. Announcing the price of an initial consultation might qualify, for example, especially if appropriate disclaimers about the costs of other services were included. Even here, the inherent difficulties of policing such advertising suggest that we should hesitate to interfere with state rules designed to ensure that adequate disclaimers are included and that such advertisements are suitably restrained.

As soon as one steps into the realm of prices for “routine” legal services such as uncontested divorces and personal bankruptcies, however, it is quite clear to me that the States may ban such advertising completely. The contrary decision in Bates was in my view inconsistent with the standard test that is now applied in commercial speech cases. Until one becomes familiar with a client’s particular problems, there is simply no way to know that one is dealing with a “routine” divorce or bankruptcy. Such an advertisement is therefore inherently misleading if it fails to inform potential clients that they are not necessarily qualified to decide whether their own apparently simple problems can be handled by “routine” legal services. Furthermore, such advertising practices will undermine professional standards if the attorney accepts the economic risks of offering fixed rates for solving apparently simple problems that will sometimes prove not to be so simple after all. For a lawyer to promise the world that such matters as uncontested divorces can be handled for a flat fee will inevitably create incentives to ignore (or avoid discovering) the complexities that would lead a conscientious attorney to treat some clients’ cases as anything but routine. It may be possible to devise workable rules that would allow something more than the most minimal kinds of price advertising by attorneys. That task, however, is properly left to the States, and it is certainly not a fit subject for constitutional adjudication. Under the Central Hudson test, government has more than ample justification for banning or strictly regulating most forms of price advertising.

Solicitation practices like the “free sample” techniques approved by Zauderer and today’s decision are even less deserving of constitutional protection than price advertising for supposedly routine legal services. Applying the Central Hudson test to the regulation at issue today, for example, I think it clear that Kentucky has a substantial interest in preventing the potentially misleading effects of targeted, direct-mail advertising as well as the corrosive effects that such advertising can have on appropriate professional standards. Soliciting business from strangers who appear to need particular legal services, when a significant motive for the offer is the lawyer’s pecuniary gain, always has a tendency to corrupt the solicitor’s professional judgment. This is especially true when the solicitation includes the offer of a “free sample,” as petitioner’s proposed letter does. I therefore conclude that American Bar Association Model Rule of Professional Conduct 7.3 (1984) sweeps no more broadly-than is necessary to advance a substantial governmental’ interest. See Central Hudson, supra, at 566. The Kentucky Supreme Court correctly found that petitioner’s letter could permissibly be banned under Rule 7.3, and I dissent from the Court’s decision to reverse that judgment.

> — I h-H hH

The roots of the error in our attorney advertising cases are a defective analogy between professional services and standardized consumer products and a correspondingly inappropriate skepticism about the States’ justifications for their regulations. In Bates, for example, the majority appeared to demand conclusive proof that the country would be better off if the States were allowed to retain a rule that served “to inhibit the free flow of commercial information and to keep the public in ignorance.” 433 U. S., at 365. Although the opinion contained extensive discussion of the proffered justifications for restrictions on price advertising, the result was little more than a bare conclusion that “we are not persuaded that price advertising will harm consumers.” See id., at 368-379. Dismissing Justice Powell’s careful critique of the implicit legislative factfinding that underlay its analysis, the Bates majority simply insisted on concluding that the benefits of advertising outweigh its dangers. Compare id., at 373, n. 28, with id., at 391-400 (Powell, J., concurring in part and dissenting in part). In my view, that policy decision was not derived from the First Amendment, and it should not have been used to displace a different and no less reasonable policy decision of the State whose regulation was at issue.

Bates was an early experiment with the doctrine of commercial speech, and it has proved to be problematic in its application. Rather than continuing to work out all the consequences of its approach, we should now return to the States the legislative function that has so inappropriately been taken from them in the context of attorney advertising. The Central Hudson test for commercial speech provides an adequate doctrinal basis for doing so, and today’s decision confirms the need to reconsider Bates in the light of that doctrine.

Even if I agreed that this Court should take upon itself the task of deciding what forms of attorney advertising are in the public interest, I would not agree with what it has done. The best arguments in favor of rules permitting attorneys to advertise are founded in elementary economic principles. See, e. g., Hazard, Pearce, & Stempel, Why Lawyers Should Be Allowed to Advertise: A Market Analysis of Legal Services, 58 N. Y. U. L. Rev. 1084 (1983). Restrictions on truthful advertising, which artificially interfere with the ability of suppliers to transmit price information to consumers, presumably reduce the efficiency of the mechanisms of supply and demand. Other factors being equal, this should cause or enable suppliers (in this case attorneys) to maintain a price/quality ratio in some of their services that is higher than would otherwise prevail. Although one could probably not test this hypothesis empirically, it is inherently plausible. Nor is it implausible to imagine that one effect of restrictions on lawyer advertising, and perhaps sometimes an intended effect, is to enable attorneys to charge their clients more for some services (of a given quality) than they would be able to charge absent the restrictions.

Assuming, arguendo, that the removal of advertising restrictions should lead in the short run to increased efficiency in the provision of legal services, I would not agree that we can safely assume the same effect in the long run. The economic argument against these restrictions ignores the delicate role they may play in preserving the norms of the legal profession. While it may be difficult to defend this role with precise economic logic, I believe there is a powerful argument in favor of restricting lawyer advertising and that this argument is at the very least not easily refuted by economic analysis.

One distinguishing feature of any profession, unlike other occupations that may be equally respectable, is that membership entails an ethical obligation to temper one’s selfish pursuit of economic success by adhering to standards of conduct that could not be enforced either by legal fiat or through the discipline of the market. There are sound reasons to continue pursuing the goal that is implicit in the traditional view of professional life. Both the special privileges incident to membership in the profession and the advantages those privileges give in the necessary task of earning a living are means to a goal that transcends the accumulation of wealth. That goal is public service, which in the legal profession can take a variety of familiar forms. This view of the legal profession need not be rooted in romanticism or self-serving sanctimony, though of course it can be. Rather, special ethical standards for lawyers are properly understood as an appropriate means of restraining lawyers in the exercise of the unique power that they inevitably wield in a political system like ours.

It is worth recalling why lawyers are regulated at all, or to a greater degree than most other occupations, and why history is littered with failed attempts to extinguish lawyers as a special class. See generally R. Pound, The Lawyer from Antiquity to Modern Times (1953). Operating a legal system that is both reasonably efficient and tolerably fair cannot be accomplished, at least under modern social conditions, without a trained and specialized body of experts. This training is one element of what we mean when we refer to the law as a “learned profession.” Such knowledge by its nature cannot be made generally available, and it therefore confers the power and the temptation to manipulate the system of justice for one’s own ends. Such manipulation can occur in at least two obvious ways. One results from overly zealous representation of the client’s interests; abuse of the discovery process is one example whose causes and effects (if not its cure) is apparent. The second, and for present purposes the more relevant, problem is abuse of the client for the lawyer’s benefit. Precisely because lawyers must be provided with expertise that is both esoteric and extremely powerful, it would be unrealistic to demand that clients bargain for their services in the same arm’s-length manner that may be appropriate when buying an automobile or choosing a dry cleaner. Like physicians, lawyers are subjected to heightened ethical demands on their conduct towards those they serve. These demands are needed because market forces, and the ordinary legal prohibitions against force and fraud, are simply insufficient to protect the consumers of their necessary services from the peculiar power of the specialized knowledge that these professionals possess.

Imbuing the legal profession with the necessary ethical standards is a task that involves a constant struggle with the relentless natural force of economic self-interest. It cannot be accomplished directly by legal rules, and it certainly will not succeed if sermonizing is the strongest tool that may be employed. Tradition and experiment have suggested a number of formal and informal mechanisms, none of which is adequate by itself and many of which may serve to reduce competition (in the narrow economic sense) among members of the profession. A few examples include the great efforts made during this century to improve the quality and breadth of the legal education that is required for admission to the bar; the concomitant attempt to cultivate a subclass of genuine scholars within the profession; the development of bar associations that aspire to be more than trade groups; strict disciplinary rules about conflicts of interest and client abandonment; and promotion of the expectation that an attorney’s history of voluntary public service is a relevant factor in selecting judicial candidates.

Restrictions on advertising and solicitation by lawyers properly and significantly serve the same goal. Such restrictions act as a concrete, day-to-day reminder to the practicing attorney of why it is improper for any member of this profession to regard it as a trade or occupation like any other. There is no guarantee, of course, that the restrictions will always have the desired effect, and they are surely not a sufficient means to their proper goal. Given their inevitable anticompetitive effects, moreover, they should not be thoughtlessly retained or insulated from skeptical criticism. Appropriate modifications have been made in the light of reason and experience, and other changes may be suggested in the future.

In my judgment, however, fairly severe constraints on attorney advertising can continue to play an important role in preserving the legal profession as a genuine profession. Whatever may be the exactly appropriate scope of these restrictions at a given time and place, this Court’s recent decisions reflect a myopic belief that “consumers,” and thus our Nation, will benefit from a constitutional theory that refuses to recognize either the essence of professionalism or its fragile and necessary foundations. Compare, e. g., Bates, 433 U. S., at 370-372, with id., at 400-401, and n. 11 (Powell, J., concurring in part and dissenting in part). In one way or another, time will uncover the folly of this approach. I can only hope that the Court will recognize the danger before it is too late to effect a worthwhile cure.

       The Attorneys Advertising Commission is charged with the responsibility of “regulating attorney advertising as prescribed” in the Rules of the Kentucky Supreme Court. Ky. Sup. Ct. Rule 3.135(3) (1988). The Commission’s decisions are appealable to the Board of Governors of the Kentucky Bar Association, Rule 3.135(8)(a), and are ultimately reviewable by the Kentucky Supreme Court. Rule 3.135(8)(b). “Any attorney who is in doubt as to the propriety of any professional act contemplated by him” also has the option of seeking an advisory opinion from a committee of the Kentucky Bar Association, which, if formally adopted by the Board of Governors, is reviewable by the Kentucky Supreme Court. Rule 3.530.

       Rule 3.135(5)(b)(i) provided in full:
      “A written advertisement may be sent or delivered to an individual addressee only if that addressee is one of a class of persons, other than a family, to whómi R is also sent or delivered at or about the same time, and only if it is not prompted or precipitated by a specific event or occurrence involving or relating'to the addressee or addressees as distinct from the general public.”

       We reject respondent’s request that we dismiss or affirm this case because “the Supreme Court of Kentucky granted Shapero precisely the relief which he requested.” Brief for Respondent 11. The court below did, as petitioner prayed, “declare . . . rule [3.135(5)(b)(i)] void,” Motion for Review of Advisory Opinion E-310, No. 86-SC-335 (Sup. Ct. Ky.). The court’s ultimate disposition, however, was to adopt a new Rule with the same defect that petitioner identified in the old ope and to “affirm the decision of the Ethics Committee to deny [petitioner’s] request” for approval of his letter. 726 S. W. 2d 299, 301 (1987). Petitioner surely cannot be said to have prevailed below.
      Nor does the fact that petitioner never leveled his constitutional challenge specifically against Rule 7.3 mean that this case presents “federal constitutional issues [that were] raised here for the first time on review of [a] state court decisio[n],” Cardinale v. Louisiana, 394 U. S. 437, 438 (1969). The parties briefed and argued the constitutionality of a categorical ban on targeted, direct-mail advertising, and the court below plainly considered and rejected those arguments as it adopted Model Rule 7.3. See 726 S. W. 2d, at 300.
      We also decline respondent’s invitation to dismiss this case in order to avoid interference with ongoing state judicial proceedings. See Younger
        v. Harris, 401 U. S. 37 (1971). Once the court below rendered its final judgment in this case, there was no longer any pending state judicial proceeding.


source: Caselaw Access Project

author: Justice Brennan Justice White,

license: Public Domain

text:
    ALLIED TUBE & CONDUIT CORP. v. INDIAN HEAD, INC.
    No. 87-157.
    Argued February 24, 1988
    Decided June 13, 1988

      BRENNAN, J., delivered the opinion of the Court, in which Rehnquist, C. J., and MARSHALL, Blackmun, Stevens, Scalia, and Kennedy, JJ., joined. White, J., filed a dissenting opinion, in which O’ConnoR, J., joined, post, p. 511.

      Marvin E. Frankel argued the cause for petitioner. With him on the briefs were Robert M. Heller, Arthur B. Kramer, and Debora K. Grobman.

      Fredric W. Yerman argued the cause for respondent. With him on the brief were Michael Malina, Randolph S. Sherman, and Richard A. De Sevo.

      Briefs of amici curiae urging reversal were filed for the State of Illinois by Neil F. Hartigan, Attorney General, and Robert E. Davy, Jr., Assistant Attorney General; and for the Western Fire Chiefs Association et al. by William J. Meeske and Alexander D. Thomson.

      Briefs of amici curiae urging affirmance were filed for the United States et al. by Solicitor General Fried, Assistant Attorney General Rule, Deputy Solicitor General Cohen, Deputy Assistant Attorney General Starling, Paul J. Larkin, Jr., Robert B. Nicholson, John J. Powers III, Marion L. Jetton, Robert D. Paul, and Ernest J. Isenstadt; and for the State of Alaska et al. by Robert Abrams, Attorney General of New York, 0. Peter Sherwood, Solicitor General, and Lloyd E. Constantine, Susan Beth Farmer, Elizabeth M. O’Neill, and George W. Sampson, Assistant Attorneys General, Grace Berg Schaible, Attorney General of Alaska, Richard D. Monkmon, Assistant Attorney General, Robert K. Corbin, Attorney General of Arizona, John Steven Clark, Attorney General of Arkansas, Jeffrey A. Bell, Deputy Attorney General, John Van de Kamp, Attorney General of California, Andrea Ordin, Chief Assistant Attorney General, Thomas P. Dove, Deputy Attorney General, Duane Woodard, Attorney General of Colorado, Thomas P. McMahon, First Assistant Attorney General, Joseph I. Lieberman, Attorney General of Connecticut, Robert M. Langer, Assistant Attorney General, Warren Price III, Attorney General of Hawaii, Robert A. Marks, Supervising Deputy Attorney General, Thomas J. Miller, Attorney General of Iowa, John Perkins, Deputy Attorney General, James E. Tierney, Attorney General of Maine, Stephen L. Wessler, Assistant Attorney General, J. Joseph Curran, Jr., Attorney General of Maryland, Michael F. Brockmeyer, Assistant Attorney General, Frank J. Kelley, Attorney General of Michigan, Louis J. Caruso, Solicitor General, Robert C. Ard, Jr., Assistant Attorney General, Hubert H. Humphrey III, Attorney General of Minnesota, Cary Edwards, Attorney General of New Jersey, Laurel A. Price, Deputy Attorney General, Lacy H. Thornburg, Attorney General of North Carolina, Richard H. Carlton, Assistant Attorney General, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Dave

        Frohnmayer, Attorney General of Oregon, LeRoy S. Zimmerman, Attorney General of Pennsylvania, Eugene F. Wayne, Chief Deputy Attorney General, James E. O’Neil, Attorney General of Rhode Island, Roger A. Tellinghuisen, Attorney General of South Dakota, Jim Mattox, Attorney General of Texas, Mary F. Keller, Executive Assistant Attorney General, John J. White, Assistant Attorney General, David L. Wilkinson, Attorney General of Utah, Kenneth 0. Eikenberry, Attorney General of Washington, John R. Ellis, Deputy Attorney General, Tina Kondo, Assistant Attorney General, Charles G. Brown, Attorney General of West Virginia, Mark'D. Kindt, Deputy Attorney General, Donald J. Hanaway, Attorney General of Wisconsin, and Kevin J. O’Connor, Assistant Attorney General.

   Justice Brennan

delivered the opinion of the Court.

Petitioner contends that its efforts to affect the product standard-setting process of a private association are immune from antitrust liability under the Noerr doctrine primarily because the association’s standards are widely adopted into law by state and local governments. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961) (Noerr). The United States Court of Appeals for the Second Circuit held that Noerr immunity did not apply. We affirm.

I

The National Fire Protection Association (Association) is a private, voluntary organization with more than 31,500 individual and group members representing industry, labor, academia, insurers, organized medicine, firefighters, and government. The Association, among other things, publishes product standards and codes related to fire protection through a process known as “consensus standard making. ” One of the codes it publishes is the National Electrical Code (Code), which establishes product and performance requirements for the design and installation of electrical wiring systems. Revised every three years, the Code is the most influential electrical code in the nation. A substantial number of state and local governments routinely adopt the Code into law with little or no change; private certification laboratories, such as Underwriters Laboratories, normally will not list and label an electrical product that does not meet Code standards; many underwriters will refuse to insure structures that are not built in conformity with the Code; and many electrical inspectors, contractors, and distributors will not use a product that falls outside the Code.

Among the electrical products covered by the Code is electrical conduit, the hollow tubing used as a raceway to carry electrical wires through the walls and floors of buildings. Throughout the relevant period, the Code permitted using electrical conduit made of steel, and almost all conduit sold was in fact steel conduit. Starting in 1980, respondent began to offer plastic conduit made of polyvinyl chloride. Respondent claims its plastic conduit offers significant competitive advantages over steel conduit, including pliability, lower installed cost, and lower susceptibility to short circuiting. In 1980, however, there was also a scientific basis for concern that, during fires in high-rise buildings, polyvinyl chloride conduit might burn and emit toxic fumes.

Respondent initiated a proposal to include polyvinyl chloride conduit as an approved type of electrical conduit in the 1981 edition of the Code. Following approval by one of the Association’s professional panels, this proposal was scheduled for consideration at the 1980 annual meeting, where it could be adopted or rejected by a simple majority of the members present. Alarmed that, if approved, respondent’s product might pose a competitive threat to steel conduit, petitioner, the Nation’s largest producer of steel conduit, met to plan strategy with, among others, members of the steel industry, other steel conduit manufacturers, and its independent sales agents. They collectively agreed to exclude respondent’s product from the 1981 Code by packing the upcoming annual meeting with new Association members whose only function would be to vote against the polyvinyl chloride proposal.

Combined, the steel interests recruited 230 persons to join the Association and to attend the annual meeting to vote against the proposal. Petitioner alone recruited 155 persons —including employees, executives, sales agents, the agents’ employees, employees from two divisions that did not sell electrical products, and the wife of a national sales director. Petitioner and the other steel interests also paid over $100,000 for the membership, registration, and attendance expenses of these voters. At the annual meeting, the steel group voters were instructed where to sit and how and when to vote by group leaders who used walkie-talkies and hand signals to facilitate communication. Few of the steel group voters had any of the technical documentation necessary to follow the meeting. None of them spoke at the meeting to give their reasons for opposing the proposal to approve polyvinyl chloride conduit. Nonetheless, with their solid vote in opposition, the proposal was rejected and returned to committee by a vote of 394 to 390. Respondent appealed the membership’s vote to the Association’s Board of Directors, but the Board denied the appeal on the ground that, although the Association’s rules had been circumvented, they had not been violated.

In October 1981, respondent brought this suit in Federal District Court, alleging that petitioner and others had unreasonably restrained trade in the electrical conduit market in violation of § 1 of the Sherman Act. 26 Stat. 209, 15 U. S. C. § 1. A bifurcated jury trial began in March 1985. Petitioner conceded that it had conspired with the other steel interests to exclude respondent’s product from the Code and that it had a pecuniary interest to do so. The jury, instructed under the rule of reason that respondent carried the burden of showing that the anticompetitive effects of petitioner’s actions outweighed any procompetitive benefits of standard setting, found petitioner liable. In answers to special interrogatories, the jury found that petitioner did not violate any rules of the Association and acted, at least in part, based on a genuine belief that plastic conduit was unsafe, but that petitioner nonetheless did “subvert” the consensus standard-making process of the Association. App. 23-24. The jury also made special findings that petitioner’s actions had an adverse impact on competition, were not the least restrictive means of expressing petitioner’s opposition to the use of polyvinyl chloride conduit in the marketplace, and unreasonably restrained trade in violation of the antitrust laws. The jury then awarded respondent damages, to be trebled, of $3.8 million for lost profits resulting from the effect that excluding polyvinyl chloride conduit from the 1981 Code had of its own force in the marketplace. No damages were awarded for injuries stemming from the adoption of the 1981 Code by governmental entities.

The District Court then granted a judgment n.o.v. for petitioner, reasoning that Noerr immunity applied because the Association was “akin to a legislature” and because petitioner, “by the use of methods consistent with acceptable standards of political action, genuinely intended to influence the [Association] with respect to the National Electrical Code, and to thereby influence the various state and local legislative bodies which adopt the [Code].” App. to Pet. for Cert. 28a, 30a. The Court of Appeals reversed, rejecting both the argument that the Association should be treated as a “quasi-legislative” body because legislatures routinely adopt the Code and the argument that efforts to influence the Code were immune under Noerr as indirect attempts to influence state and local governments. 817 F. 2d 938 (1987). We granted certiorari to address important issues regarding the application of Noerr immunity to private standard-setting associations. 484 U. S. 814 (1987).

H — t HH

Concerted efforts to restrain or monopolize trade by petitioning government officials are protected from antitrust liability under the doctrine established by Noerr; Mine Workers v. Pennington, 381 U. S. 657, 669-672 (1965); and California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508 (1972). The scope of this protection depends, however, on the source, context, and nature of the anticompetitive restraint at issue. “[W]here a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action,” those urging the governmental action enjoy absolute immunity from antitrust liability for the anti-competitive restraint. Noerr, 365 U. S., at 136; see also Pennington, supra, at 671. In addition, where, independent of any government action, the anticompetitive restraint results directly from private action, the restraint cannot form the basis for antitrust liability if it is “incidental” to a valid effort to influence governmental action. Noerr, supra, at 143. The validity of such efforts, and thus the applicability of Noerr immunity, varies with the context and nature of the activity. A publicity campaign directed at the general public, seeking legislation or executive action, enjoys antitrust immunity even when the campaign employs unethical and deceptive methods. Noerr, supra, at 140-141. But in less political arenas, unethical and deceptive practices can constitute abuses of administrative or judicial processes that may result in antitrust violations. California Motor Transport, supra, at 512-513.

In this case, the restraint of trade on which liability was predicated was the Association’s exclusion of respondent’s product from the Code, and no damages were imposed for the incorporation of that Code by any government. The relevant context is thus the standard-setting process of a private association. Typically, private standard-setting associations, like the Association in this case, include members having horizontal and vertical business relations. See generally 7 P. Areeda, Antitrust Law ¶ 1477, p. 343 (1986) (trade and standard-setting associations routinely treated as continuing conspiracies of their members). There is no doubt that the members of such associations often have economic incentives to restrain competition and that the product standards set by such associations have a serious potential for anticompetitive harm. See American Society of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U. S. 556, 571 (1982). Agreement on a product standard is, after all, implicitly an agreement not to manufacture, distribute, or purchase certain types of products. Accordingly, private standard-setting associations have traditionally been objects of antitrust scrutiny. See, e. g., ibid.; Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U. S. 656 (1961) (per curiam). See also FTC v. Indiana Federation of Dentists, 476 U. S. 447 (1986). When, however, private associations promulgate safety standards based on the merits of objective expert judgments and through procedures that prevent the standard-setting process from being biased by members with economic interests in stifling product competition, cf. Hydrolevel, supra, at 570-573 (noting absence of “meaningful safeguards”), those private standards can have significant procompetitive advantages. It is this potential for pro-competitive benefits that has led most lower courts to apply rule-of-reason analysis to product standard-setting by private associations.

Given this context, petitioner does not enjoy the immunity accorded those who merely urge the government to restrain trade. We agree with the Court of Appeals that the Association cannot be treated as a “quasi-legislative” body simply because legislatures routinely adopt the Code the Association publishes. 817 F. 2d, at 943-944. Whatever de facto authority the Association enjoys, no official authority has been conferred on it by any government, and the decisionmaking body of the Association is composed, at least in part, of persons with economic incentives to restrain trade. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U. S. 690, 707-708 (1962). See also id., at 706-707; Goldfarb v. Virginia State Bar, 421 U. S. 773, 791-792 (1975). “We may presume, absent a showing to the contrary, that [a government] acts in the public interest. A private party, on the other hand, may be presumed to be acting primarily on his or its own behalf.” Hallie v. Eau Claire, 471 U. S. 34, 45 (1985). The dividing line between restraints resulting from governmental action and those resulting from private action may not always be obvious. But where, as here, the restraint is imposed by persons unaccountable to the public and without official authority, many of whom have personal financial interests in restraining competition, we have no difficulty concluding that the restraint has resulted from private action.

Noerr immunity might still apply, however, if, as petitioner argues, the exclusion of polyvinyl chloride conduit from the Code, and the effect that exclusion had of its own force in the marketplace, were incidental to a valid effort to influence governmental action. Petitioner notes that the lion’s share of the anticompetitive effect in this case came from the predictable adoption of the Code into law by a large number of state and local governments. See 817 F. 2d, at 939, n. 1. Indeed, petitioner argues that, because state and local governments rely so heavily on the Code and lack the resources or technical expertise to second-guess it, efforts to influence the Association’s standard-setting process are the most effective means of influencing legislation regulating electrical conduit. This claim to Noerr immunity has some force. The effort to influence governmental action in this case certainly cannot be characterized as a sham given the actual adoption of the 1981 Code into a number of statutes and local ordinances. Nor can we quarrel with petitioner’s contention that, given the widespread adoption of the Code into law, any effect the 1981 Code had in the marketplace of its own force was, in the main, incidental to petitioner’s genuine effort to influence governmental action. And, as petitioner persuasively argues, the claim of Noerr immunity cannot be dismissed on the ground that the conduct at issue involved no “direct” petitioning of government officials, for Noerr itself immunized a form of “indirect” petitioning. See Noerr (immunizing a publicity campaign directed at the general public on the ground that it was part of an effort to influence legislative and executive action).

Nonetheless, the validity of petitioner’s actions remains an issue. We cannot agree with petitioner’s absolutist position that the Noerr doctrine immunizes every concerted effort that is genuinely intended to influence governmental action. If all such conduct were immunized then, for example, competitors would be free to enter into horizontal price agreements as long as they wished to propose that price as an appropriate level for governmental ratemaking or price supports. But see Georgia v. Pennsylvania R. Co., 324 U. S. 439, 456-463 (1945). Horizontal conspiracies or boycotts designed to exact higher prices or other economic advantages from the government would be immunized on the ground that they are genuinely intended to influence the government to agree to the conspirators’ terms. But see Georgia v. Evans, 316 U. S. 159 (1942). Firms could claim immunity for boycotts or horizontal output restrictions on the ground that they are intended to dramatize the plight of their industry and spur legislative action. Immunity might even be claimed for anticompetitive mergers on the theory that they give the merging corporations added political clout. Nor is it necessarily dispositive that packing the Association’s meeting may have been the most effective means of securing government action, for one could imagine situations where the most effective means of influencing government officials is bribery, and we have never suggested that that kind of attempt to influence the government merits protection. We thus conclude that the Noerr immunity of anticompetitive activity intended to influence the government depends not only on its impact, but also on the context and nature of the activity.

Here petitioner’s actions took place within the context of the standard-setting process of a private association. Having concluded that the Association is not a “quasi-legislative” body, we reject petitioner’s argument that any efforts to influence the Association must be treated as efforts to influence a “quasi-legislature” and given the same wide berth accorded legislative lobbying. That rounding up supporters is an acceptable and constitutionally protected method of influencing elections does not mean that rounding up economically interested persons to set private standards must also be protected. Nor do we agree with petitioner’s contention that, regardless of the Association’s nonlegislative status, the effort to influence the Code should receive the same wide latitude given ethically dubious efforts to influence legislative action in the political arena, see Noerr, 365 U. S., at 140-141, simply because the ultimate aim of the effort to influence the private standard-setting process was (principally) legislative action. The ultimate aim is not dispositive. A misrepresentation to a court would not necessarily be entitled to the same antitrust immunity allowed deceptive practices in the political arena simply because the odds were very good that the court’s decision would be codified — nor for that matter would misrepresentations made under oath at a legislative committee hearing in the hopes of spurring legislative action.

What distinguishes this case from Noerr and its progeny is that the context and nature of petitioner’s activity make it the type of commercial activity that has traditionally had its validity determined by the antitrust laws themselves. True, in Noerr we immunized conduct that could be characterized as a conspiracy among railroads to destroy business relations between truckers and their customers. Noerr, supra, at 142. But we noted there:

“There are no specific findings that the railroads attempted directly to persuade anyone not to deal with the truckers. Moreover, all the evidence in the record, both oral and documentary, deals with the railroads’ efforts to influence the passage and enforcement of laws. Circulars, speeches, newspaper articles, editorials, magazine articles, memoranda and all other documents discuss in one way or another the railroads’ charges that heavy trucks injure the roads, violate the laws and create traffic hazards, and urge that truckers should be forced to pay a fair share of the costs of rebuilding the roads, that they should be compelled to obey the laws, and that limits should be placed upon the weight of the loads they are permitted to carry.” 365 U. S., at 142-143.

In light of those findings, we characterized the railroads’ activity as a classic “attempt ... to influence legislation by a campaign of publicity,” an “inevitable” and “incidental” effect of which was “the infliction of some direct injury upon the interests of the party against whom the campaign is directed.” Id., at 143. The essential character of such a publicity campaign was, we concluded, political, and could not be segregated from the activity’s impact on business. Rather, the plaintiff’s cause of action simply embraced the inherent possibility in such political fights “that one group or the other will get hurt by the arguments that are made.” Id., at 144. As a political activity, special factors counseled against regulating the publicity campaign under the antitrust laws:

“Insofar as [the Sherman] Act sets up a code of ethics at all, it is a code that condemns trade restraints, not political activity, and, as we have already pointed out, a publicity campaign to influence governmental action falls clearly into the category of political activity. The proscriptions of the Act, tailored as they are for the business world, are not at all appropriate for application in the political arena. Congress has traditionally exercised extreme caution in legislating with respect to problems relating to the conduct of political activities, a caution which has been reflected in the decisions of this Court interpreting such legislation. All of this caution would go for naught if we permitted an extension of the Sherman Act to regulate activities of that nature simply because those activities have a commercial impact and involve conduct that can be termed unethical.” Id., at 140-141 (footnote omitted).

In Noerr, then, the political context and nature of the activity precluded inquiry into its antitrust validity.

Here the context and nature of the activity do not counsel against inquiry into its validity. Unlike the publicity campaign in Noerr, the activity at issue here did not take place in the open political arena, where partisanship is the hallmark of decisionmaking, but within the confines of a private standard-setting process. The validity of conduct within that process has long been defined and circumscribed by the antitrust laws without regard to whether the private standards are likely to be adopted into law. See supra, at 500. Indeed, because private standard-setting by associations comprising firms with horizontal and vertical business relations is permitted at all under the antitrust laws only on the understanding that it will be conducted in a nonpartisan manner offering procompetitive benefits, see ibid., the standards of conduct in this context are, at least in some respects, more rigorous than the standards of conduct prevailing in the partisan political arena or in the adversarial process of adjudication. The activity at issue here thus cannot, as in Noerr, be characterized as an activity that has traditionally been regulated with extreme caution, see Noerr, 365 U. S., at 141, or as an activity that “bear[s] little if any resemblance to the combinations normally held violative of the Sherman Act,” id., at 136. And petitioner did not confine itself to efforts to persuade an independent decisionmaker, cf. id., at 138, 139 (describing the immunized conduct as “mere solicitation”); rather, it organized and orchestrated the actual exercise of the Association’s decisionmaking authority in setting a standard. Nor can the setting of the Association’s Code be characterized as merely an exercise of the power of persuasion, for it in part involves the exercise of market power. The Association’s members, after all, include consumers, distributors, and manufacturers of electrical conduit, and any agreement to exclude polyvinyl chloride conduit from the Code is in part an implicit agreement not to trade in that type of electrical conduit. Cf. id., at 136. Although one could reason backwards from the legislative impact of the Code to the conclusion that the conduct at issue here is “political,” we think that, given the context and nature of the conduct, it can more aptly be characterized as commercial activity with a political impact. Just as' the antitrust laws should not regulate political activities “simply because those activities have a commercial impact,” id., at 141, so the antitrust laws should not necessarily immunize what are in essence commercial activities simply because they have a political impact.

NAACP v. Claiborne Hardware Co., 458 U. S. 886 (1982), is not to the contrary. In that case we held that the First Amendment protected the nonviolent elements of a boycott of white merchants organized by the National Association for the Advancement of Colored People and designed to make white government and business leaders comply with a list of demands for equality and racial justice. Although the boy-cotters intended to inflict economic injury on the merchants, the boycott was not motivated by any desire to lessen competition or to reap economic benefits but by the aim of vindicating rights of equality and freedom lying at the heart of the Constitution, and the boycotters were consumers who did not stand to profit financially from a lessening of competition in the boycotted market. Id., at 914-915.. Here, in contrast, petitioner was at least partially motivated by the desire to lessen competition, and, because of petitioner^ line of business, stood to reap substantial economic benefits from making it difficult for respondent to compete.

Thus in this case the context and nature of petitioner’s efforts to influence the Code persuade us that the validity of those efforts must, despite their political impact, be evaluated under the standards of conduct set forth by the antitrust laws that govern the private standard-setting process. The antitrust validity of these efforts is not established, without more, by petitioner’s literal compliance with the rules of the Association, for the hope of procompetitive benefits depends upon the existence of safeguards sufficient to prevent the standard-setting process from being biased by members with economic interests in restraining competition. An association cannot validate the anticompetitive activities of its members simply by adopting rules that fail to provide such safeguards. The issue of immunity in this case thus collapses into the issue of antitrust liability. Although we do not here set forth the rules of antitrust liability governing the private standard-setting process, we hold that at least where, as here, an economically interested party exercises decision-making authority in formulating a product standard for a private association that comprises market participants, that party enjoys no Noerr immunity from any antitrust liability flowing from the effect the standard has of its own force in the marketplace.

This conclusion does not deprive state and local governments of input and information from interested individuals or organizations or leave petitioner without ample means to petition those governments. Cf. Noerr, 365 U. S., at 137-138. See also California Motor Transport, 404 U. S., at 510. Petitioner, and others concerned about the safety or competitive threat of polyvinyl chloride conduit, can, with full antitrust immunity, engage in concerted efforts to influence those governments through direct lobbying, publicity campaigns, and other traditional avenues of political expression. To the extent state and local governments are more difficult to persuade through these other avenues, that no doubt reflects their preference for and confidence in the nonpartisan consensus process that petitioner has undermined. Petitioner remains free to take advantage of the forum provided by the standard-setting process by presenting and vigorously arguing accurate scientific evidence before a nonpartisan private standard-setting body. And petitioner can avoid the strictures of the private standard-setting process by attempting to influence legislatures through other forums. What petitioner may not do (without exposing itself to possible antitrust liability for direct injuries) is bias the process by, as in this case, stacking the private standard-setting body with decisionmakers sharing their economic interest in restraining competition.

The judgment of the Court of Appeals is

Affirmed.

Justice White,

with whom Justice O’Connor joins, dissenting.

Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961), held that the Sherman Act should not be construed to forbid joint efforts by railway companies seeking legislation that would disadvantage the trucking industry. These efforts for the most part involved a public relations campaign rather than direct lobbying of the lawmakers and were held not subject to antitrust challenge because of the fundamental importance of maintaining the free flow of information to the government and the right of the people to seek legislative relief, directly or indirectly. Mine Workers v. Pennington, 381 U. S. 657 (1965), and California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508 (1972), applied the rule to efforts to seek executive action and to administrative and adjudicative proceedings.

The Court now refuses to apply the rule of these cases to the participants in those private organizations, such as the National Fire Protection Association (NFPA), that regularly propound and publish health and safety standards for a variety of products and industries and then present these codes to state and local authorities for the purpose of having them enacted into law. The NFPA and those participating in the code-writing process will now be subject to antitrust liability if their efforts have anticompetitive effects and do not withstand scrutiny under the rule of reason. Believing that this result is a misapplication of the Noerr decision and an improvident construction of the Sherman Act, I respectfully dissent..

This case presents an even stronger argument for immunity than did Noerr itself. That decision turned on whether the design or purpose of the conduct was to obtain or influence the passage or enforcement of laws. The Court concedes that petitioner’s actions in this case constituted a “genuine effort to influence governmental action,” ante, at 503, and that this was its “ultimate aim,” ante, at 504. In Noerr, the publicity campaign was dispersed widely among the public in a broad but necessary diluted attempt to move public opinion in hopes that government officials would take note and respond accordingly. The campaign apparently had some influence on the passage of tax laws and other legislation favorable to the railroads in New Jersey, New York, and Ohio, and procured the Governor’s veto of a bill that had been passed in Pennsylvania. See 365 U. S., at 130; see also 155 F. Supp. 768, 777-801 (ED Pa. 1957). Here, the NFPA actually drafted proposed legislation in the form of the National Electrical Code (NEC) and presented it countrywide. Not only were petitioner’s efforts in this case designed to influence the passage of state laws, but there was also a much greater likelihood that they would be successful than was the case in Noerr. This is germane because it establishes a much greater likelihood that the “purpose” and “design” of petitioner’s actions in this case was the “solicitation of governmental action with respect to the passage and enforcement of laws,” 365 U. S., at 138.

Rather than directly confronting the severe damage that today’s decision does to the Noerr doctrine, the majority asserts that the “ultimate aim” of petitioner’s efforts “is not dis-positive.” Ante, at 504. That statement cannot be reconciled with the statements quoted earlier from Noerr, where it was held that even if one of the major purposes, or even the sole purpose, of the publicity campaign was “to destroy the truckers as competitors,” 365 U. S., at 138, those actions were immunized from antitrust liability because ultimately they were “directed toward obtaining governmental action,” id., at 140. The majority later doubles back on this statement, and suggests that it is important in this case that “petitioner was at least partially motivated by the desire to lessen competition, and . . . stood to reap substantial economic benefits from making it difficult for respondent to compete.” Ante, at 509. It need hardly be said that all of this was also true in Noerr. Nobody condones fraud, bribery, or misrepresentation in any form, and other state and federal laws ensure that such conduct is punishable. But the point here is that conduct otherwise punishable under the antitrust laws either becomes immune from the operation of those laws when it is part of a larger design to influence the passage and enforcement of laws, or it does not. No workable boundaries to the Noerr doctrine are established by declaring, and then repeating at every turn, that everything depends on “the context and nature of” the activity, ante, at 504, 505, 506, 509, if we are unable to offer any further guidance about what this vague reference is supposed to mean, especially when the result here is so clearly wrong as long as Noerr itself is reputed to remain good law. One unfortunate consequence of today’s decision, therefore, is that district courts and courts of appeals will be obliged to puzzle over claims raised under the doctrine without any intelligible guidance about when and why to apply it.

If there were no private code-writing organizations, and state legislatures themselves held the necessary hearing and wrote codes from scratch, then business concerns like Allied, together with their friends, could jointly testify with impunity about the safety of various products, even though they had anticompetitive motives in doing so. This much the majority concedes, as it does that the major purpose of the code-writing organizations is to influence legislative action. These days it is almost a foregone conclusion that the vast majority of the States will adopt these codes with little or no change. It is untenable to consider the code-writing process by such organizations as the NFPA as too far removed from the legislative process to warrant application of the doctrine announced in Noerr and faithfully applied in other cases. This was the view of Judge Sneed and his colleagues on the Ninth Circuit in Sessions Tank Liners, Inc. v. Joor Mfg., Inc., 827 F. 2d 458 (1987), and the reasons they gave for applying Noerr in this context are much more persuasive than anything to the contrary the majority now has to offer.

The Court’s decision is unfortunate for another reason. There are now over 400 private organizations preparing and publishing an enormous variety of codes and standards. State and local governments necessarily, and as a matter of course, turn to these proposed codes in the process of legislating to further the health and safety of their citizens. The code that is at issue in this case, for example, was adopted verbatim by 25 States and the District of Columbia; 19 others adopted it with only minor changes. It is the most widely disseminated and adopted model code in the world today. There is no doubt that the work of these private organizations contributes enormously to. the public interest and that participation in their work by those who have the technical competence and experience to do so should not be discouraged.

The Court’s decision today will surely do just that. It must inevitably be the case that codes such as the NEC will set standards that some products cannot satisfy and hence in the name of health and safety will reduce or prevent competition, as was the case here. Yet, putative competitors of the producer of such products will now think twice before urging in the course of the code-making process that those products not be approved; for if they are successful (or even if they are not), they may well become antitrust defendants facing treble-damages liability unless they can prove to a court and a jury that they had no evil motives but were merely “presenting and vigorously arguing accurate scientific evidence before a nonpartisan private standard-setting body,” ante, at 510 (though with the knowing and inevitable result of eliminating competition). In this case, for example, even if Allied had not resorted to the tactics it employed, but had done no more than successfully argue in good faith the hazards of using respondent’s products, it would have inflicted the same damage on respondent and would have risked facing the same antitrust suit, with a jury ultimately deciding the health and safety implications of the products at issue.

The Court’s suggestion that its decision will not affect the ability of these organizations to assist state and local governments is surely wrong. The Court’s holding is “that at least where, as here, an economically interested party exercises decisionmaking authority in formulating a product standard for a private association that comprises market participants, that party enjoys no Noerr immunity from any antitrust liability flowing from the effects the standard has of its own force in the marketplace.” Ante, at 509-510. This description encompasses the structure and work of all such organizations as we now know them. The Court is saying, in effect, that where a private organization sets standards, the participants can be sued under the antitrust laws for any effects those standards have in the marketplace other than those flowing from their adoption into law. But the standards will have some effect in the marketplace even where they are also adopted into law, through publicity and other means, thus exposing the participants to liability. Henceforth, therefore, any private organization offers such standards at its peril, and without any of the breathing room enjoyed by other participants in the political process.

The alternative apparently envisioned by the Court is that an organization can gain the protection of the Noerr doctrine as long as nobody with any economic interest in the product is permitted to “exercis[e] decisionmaking authority” (i. e., vote) on its recommendations as to particular product standards. Insisting that organizations like the NFPA conduct themselves like courts of law will have perverse effects. Legislatures are willing to rely on such organizations precisely because their standards are being set by those who possess an expert understanding of the products and their uses, which are primarily if not entirely those who design, manufacture, sell, and distribute them. Sanitizing such bodies by discouraging the active participation of those with economic interests in the subject matter undermines their utility.

I fear that exposing organizations like the NFPA to antitrust liability will impair their usefulness by inhibiting frank and open discussion of the health and safety characteristics of new or old products that will be affected by their codes. The Court focuses on the tactics of petitioner that are thought to have subverted the entire process. But it is not suggested that if there are abuses, they are anything more than occasional happenings. The Court does speculate about the terrible practices that applying Noerr in this context could lead us to condone in future cases, ante, at 503-504, but these are no more than fantasies, since nothing of the sort occurred in the wake of Noerr itself. It seems to me that today’s decision is therefore an unfortunate case of overkill.

Of course, the Noerr immunity is not unlimited and by its terms is unavailable where the alleged efforts to influence legislation are nothing but a sham. As the Ninth Circuit held, this limitation is enough to guard against flagrant abuse. In any event, occasional abuse is insufficient ground to render the entire process less useful and reliable. I would reverse the judgment below and remand for further proceedings.

       Respondent also sought a tentative interim amendment to the Code, but that was denied on the ground that there was not sufficient exigency to merit an interim amendment. The Association subsequently approved use of polyvinyl chloride conduit for buildings of less than three stories in the 1984 Code, and for all buildings in the 1987 Code.

       Although the District Court was of the view that at trial respondent relied solely on the theory that its injury “flowed from legislative action,” App. to Pet. for Cert. 31a, the Court of Appeals determined that respondent was awarded damages only on the theory “that the stigma of not obtaining [Code] approval of its products and [petitioner’s] ‘marketing’ of that stigma caused independent marketplace harm to [respondent] in those jurisdictions permitting use of [polyvinyl chloride] conduit, as well as those which later adopted the 1984 [Code], which permitted use of [polyvinyl chloride] conduit in buildings less than three stories high. [Respondent] did not seek redress for any injury arising from the adoption of the [Code] by the various governments.” 817 F. 2d 938, 941, n. 3 (1987) (emphasis added). We decide the case as it was framed by the Court of Appeals.

       We also granted certiorari on the issue whether, if not immune under Noerr, petitioner’s conduct violated the Sherman Act, but we now vacate our grant of that issue as improvident.

         Of course, in whatever forum, private action that is not genuinely aimed at procuring favorable government action is a mere sham that cannot be deemed a valid effort to influence government action. Noerr, 365 U. S., at 144; California Motor Transport, 404 U. S., at 511.

       “Product standardization might impair competition in several ways. . . . [It] might deprive some consumers of a desired product, eliminate quality competition, exclude rival producers, or facilitate oligopolistic pricing by easing rivals’ ability to monitor each other’s prices.” 7 P. Areeda, Antitrust Law ¶ 1503, p. 373 (1986).

       See 2 J. von Kalinowski, Antitrust Laws and Trade Regulation §§6I.01[3], 61.03, 61.04, pp. 61-6 to 61-7, 61-18 to 61-29 (1981) (collecting cases). Concerted efforts to enforce (rather than just agree upon) private product standards face more rigorous antitrust scrutiny. See Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U. S. 656, 659-660 (1961) (per curiam). See also Fashion Originators’ Guild of America, Inc. v. FTC, 312 U. S. 457 (1941).

       See, e. g., California Motor Transport, supra, at 513 (stating in dicta that “Conspiracy with a licensing authority to eliminate a competitor” or “bribery of a public purchasing agent” may violate the antitrust laws); Mine Workers v. Pennington, 381 U. S. 657, 671, and n. 4 (1965) (holding that immunity applied but noting that the trade restraint at issue “was the act of a public official who is not claimed to be a co-conspirator” and contrasting Continental Ore); Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U. S. 690, 707-708 (1962); 1 P. Areeda & D. Turner, Antitrust Law ¶ 206 (1978) (discussing the extent to which Noerr immunity should apply to commercial transactions involving the government). See also Goldfarb v. Virginia State Bar, 421 U. S. 773, 791-792 (1975); Continental Ore, supra, at 706-707.

       The effect, independent of government action, that the 1981 Code had in the marketplace may to some extent have been exacerbated by petitioner’s efforts to “market” the stigma respondent’s product suffered by being excluded from the Code. See 817 F. 2d, at 941, n. 3. Given our disposition infra, we need not decide whether, or to what extent, these “marketing” efforts alter the incidental status of the resulting anticompetitive harm. See generally Noerr, 365 U. S., at 142 (noting that in that case there were, “no specific findings that the railroads attempted directly to persuade anyone not to deal with the truckers”).

       Similarly in California Motor Transport any antitrust review of the validity of the activity at issue was limited and structured by the fact that there the antitrust defendants were “us[ing] the channels and procedures of state and federal agencies and courts.” 404 U. S., at 511; see also id., at 512-513.

       It is admittedly difficult to draw the precise lines separating anti-competitive political activity that is immunized despite its commercial impact from anticompetitive commercial activity that is unprotected despite its political impact, and this is itself a case close to the line. For that reason we caution that our decision today depends on the context and nature of the activity. Although criticizing the uncertainty of such a particularized inquiry, post, at 513, the dissent does not dispute that the types of activity we describe supra, at 503-504, could not be immune under Noerr and fails to offer an intelligible alternative for distinguishing those nonim-mune activities from the activity at issue in this case. Rather, the dissent states without elaboration that the sham exception “is enough to- guard against flagrant abuse,” post, at 516, apparently embracing the conclusion of the United States Court of Appeals for the Ninth Circuit that the sham exception covers the activity of a defendant who “genuinely seeks to achieve his governmental result, but does so through improper means.” Sessions Tank Liners, Inc. v. Joor Mfg., Inc., 827 F. 2d 458, 465, n. 5 (1987) (emphasis in original). Such a use of the word “sham” distorts its meaning and bears little relation to the sham exception Noerr described to cover activity that was not genuinely intended to influence governmental action. 365 U. S., at 144. See also P. Areeda & H. Hovenkamp, Antitrust Law ¶ 203. 1a, pp. 13-14 (Supp. 1987). More importantly, the Ninth Circuit’s approach renders “sham” no more than a label courts could apply to activity they deem unworthy of antitrust immunity (probably based on unarticulated consideration of the nature and context of the activity), thus providing a certain superficial certainty but no real “intelligible guidance” to courts or litigants. Post, at 513. Indeed, the Ninth Circuit concluded that the very activity the dissent deems protected was an unprotected “sham.” 827 F. 2d, at 465.

       Although the absence of such anticompetitive motives and incentives is relevant to determining whether petitioner’s restraint of trade is protected under Claiborne Hardware, we do not suggest that the absence of anticompetitive purpose is necessary for Noerr immunity. As the dissent points out, in Noerr itself the major purpose of the activity at issue was anticompetitive. Post, at 512-513. Our statement that the “ultimate aim” of petitioner “is not dispositive,” supra, at 504, stands only for the proposition that, at least outside the political context, the mere fact that an anticompetitive activity is also intended to influence governmental action is not alone sufficient to render that activity immune from antitrust liability.

       Even petitioner’s counsel concedes, for example, that Noerr would not apply if the Association had a rule giving the steel conduit manufacturers a veto over changes in the Code. Tr. of Oral Arg. 41-42.

       The dissent mistakenly asserts that we today hold that Noerr immunity does not apply to mere efforts to persuade others to exclude a competitor’s product from a private code. See post, at 514-516. Our holding is expressly limited to cases where an “economically interested party exercises decisionmaking authority in formulating a product standard for a private association that comprises market participants.” Supra, at 509 (emphasis added); see also supra, at 506-507 (relying in part on the distinction between activity involving the exercise of decisionmaking authority and market power and activity involving mere attempts to persuade an independent decisionmaker). Cf. Noerr, 365 U. S., at 136. The dissent also mistakenly asserts that this description encompasses all private standard-setting associations. See post, at 515. In fact, many such associations are composed of members with expertise but no economic interest in suppressing competition. See, e. g., Sessions, supra, at 461, and n. 2.