by Cordelia Bell*

Group boycotts are a powerful form of political expression, yet under current antitrust law, participants risk steep fines or even imprisonment if their actions are deemed economically motivated. In FTC v. Superior Court Trial Lawyers Association, the Supreme Court applied per se antitrust liability to a boycott with both economic and political aims—raising serious First Amendment freedom of expression concerns. This Contribution argues that courts should adopt the more flexible, defendant-friendly rule of reason standard for group boycott claims. Not only does this approach better safeguard expressive conduct, but it also aligns with the broader shift in antitrust law from rigid rules to nuanced standards.

Group boycotts have long been a cornerstone of labor organizing and political protest in the United States—a powerful tool for expressing dissent and driving change.1 However, concerted action often stands in direct tension with American antitrust jurisprudence, which prohibits agreements to boycott for economic gain.2 Under antitrust law, group boycotts are unlawful when they coerce a party into accepting unfavorable prices or terms—for example, when purchasers collectively refuse to buy from a manufacturer unless it agrees to sell below market rates, thereby enabling buyers to secure artificially low prices. In contrast, political boycotts are a form of speech, often protesting unfair corporate or government policies, where the boycotters are not motivated by economic gain.3

Courts have struggled to correctly distinguish between economic and political conduct.4 Problematically, the absence of a clear doctrinal boundary between economic and political conduct risks creating a chilling effect, discouraging constitutionally protected expression out of fear for legal reprisal under antitrust enforcement. The chilling effect may be particularly pronounced, as the consequences of misclassifying a political boycott as economic are steep, given that the penalties for an antitrust violation may include fines, treble damages, and, in some cases, felony convictions.5

Historically, the Supreme Court has magnified the consequences of misclassification by applying the inflexible per se, presumptive liability, standard of review to group boycotts rather than taking a more nuanced approach by applying the rule of reason, an economic analysis of anticompetitive conduct.6 Per se liability is inappropriate for group boycotts because: (1) the fact-intensive analysis required before applying the per se rule to such cases undermines the rule’s deterrent and administrative benefits; (2) a per se rule may dangerously chill protected free speech and expression, particularly lawful political boycotts; and (3) group boycotts often involve both economic and political motivations, and a rule of reason analysis better limits liability for political boycotts mischaracterized as economic. For these reasons, a flexible rule of reason standard should be applied to all boycotts, with special deference to First Amendment free speech concerns.

A group boycott occurs when two or more, often horizontal,7 parties refuse to purchase products from, sell to, or work with a third party.8 Imagine a group of buyers of product X agreeing to collectively boycott a manufacturer unless it agrees to below-market prices or unfavorable terms. To stay in business, the manufacturer may be forced to comply. In this and similar cases, group boycotts effectively eliminate competition by cutting off supply or demand to coerce a dependent third party—boosting profits for the boycotters while harming the target.

Antitrust law, and group boycott law specifically, is largely a creation of the judiciary.9 Section 1 of the Sherman Act, the preeminent antitrust statute, broadly prohibits any agreement “in restraint of trade or commerce.”10 From that, courts have developed two primary standards for reviewing conduct: the per se standard of review, for presumptively illegal conduct, and the rule of reason standard of review, for conduct that requires a fact specific inquiry into its lawfulness.

For per se liability, courts have identified certain conduct, such as wage fixing, price fixing, and bid rigging, as so inherently anticompetitive that a plaintiff need only show the existence of an agreement among competitors to establish liability.11 The per se standard is strict—it imposes liability without requiring proof of economic harm. For example, a price-fixing scheme that sets prices at fair market value still triggers per se liability.12 Courts justify this approach based on administrative efficiency and deterrence.13 For example, a price-fixing agreement between two grocery stores for the price apples is presumed anticompetitive, even if the fixed-price is the market rate and does not result increases prices for shoppers. By assuming presumptive liability for these stores, courts do not have to engage in a complicated economic analysis about the apple market—judicial saving resources. Similarly, these grocers and future grocers will be deterred from entering into an agreement, knowing that they will almost certainly be liable.

In contrast, the rule of reason is applied when the “competitive effect [of the agreement] can only be evaluated by analyzing the facts peculiar to the business, the history of the restraint, and the reasons why it was imposed.”14 In essence, courts conduct a holistic analysis of the facts to determine whether an agreement may harm competition.15 Under the rule of reason, the plaintiff must establish: (1) an agreement, (2) anticompetitive effects, and (3) a lack of procompetitive justifications.16 Courts often consider factors like reduced supply and higher prices as key indicators of anticompetitive harm.17 The rule of reason standard is thus more lenient to defendants as it requires plaintiffs to demonstrate harm to competition and permits a broader range of defenses than the rigid per se analysis.18

Over time, courts have chipped away at the types of conduct that warrant the per se analysis, favoring the more flexible rule of reason approach.19 While both the per se and rule of reason frameworks are colloquially referred to as both rules and standards, their functions differ. The per se approach, with its presumptive liability and disregard for anticompetitive effect, operates more like a strict rule. In contrast, the rule of reason, with its flexibility and holistic analysis, is more akin to a standard, as it centers the evaluation of anticompetitive effect. In recent years, the Court has shifted toward this more holistic analysis, moving away from presumptive liability.20 This transition represents an understanding that not all agreements limiting competition have inherently anticompetitive effects, thus a more nuanced analysis is required for certain types of agreements.21

The standard of review used by courts assessing the legality of group boycotts is paradigmatic of this transition. In 1904, the Supreme Court categorized group boycotts as violations of the Sherman Act because they “narrowed” markets, leading to increased prices.22 As a result, group boycotts became a category of conduct that was per se illegal.23 However, in recent years, the Court has significantly walked back liability, namely through the adoption of an initial analysis before per se liability is applied—a per se pre-clearance framework.24

In 1985, in Northwest Wholesale Stationers v. Pacific Stationery & Printing Company, the Supreme Court acknowledged that group boycotts are not always anticompetitive.25 In this case, a purchaser was expelled from a purchasing collective, a group of competitors that purchase materials or share warehousing space to share overhead costs, for failing to comply with the organization’s rules.26 While this action constituted a group boycott in form, the Court declined to apply per se liability, expressing hesitation to presumptively assume anticompetitive effects.27 In essence, the Court suggested there may be a world in which it would not be anticompetitive for a collective to expel a member. As a result, the Court walked-back presumptive per se liability for group boycotts, and developed a detailed set of criteria to determine whether per se or rule of reason analysis should apply.28 These pre–per se criteria broadly parallel the rule of reason analysis.29 For example, the criteria includes an analysis of legitimate business goals that make the market more efficient and effects on competition—all core elements of the rule of reason analysis.30 Thus, even when purporting to apply per se liability, courts are conducting a pseudo-rule of reason analysis before even determining if an antitrust violation has occurred.31

When deciding what framework to apply, courts must consider whether the boycott is political and protected by the First Amendment.32 This was developed in NAACP v. Claiborne Hardware Company, when the Supreme Court found that purely political group boycotts were exempt from antitrust scrutiny.33 In this case, antitrust claims were brought against the National Association for the Advancement of Colored People (“NAACP”) for organizing a boycott of white-owned businesses in segregated Claiborne County, Mississippi.34 The Court rejected liability, holding that First Amendment protections of free speech and association shield politically motivated boycotts.35 In doing so, the Court created a free speech carve-out for boycotts that are purely expressive.

However, the line between economically and politically motivated boycotts is often blurry,36 providing ample leeway for courts to penalize protected speech and political action. This challenge is exemplified by the much-maligned Supreme Court case FTC v. Superior Court Trial Lawyers Association.37 The Federal Trade Commission (“FTC”) brought an antitrust suit against the Superior Court Trial Lawyers Association (“SCTLA”), an association of District of Columbia lawyers who represented indigent defendants.38 The SCTLA had petitioned the District to raise pay for lawyers representing these defendants,39 which was significantly below market rate.40 When their efforts failed, the SCTLA voted to boycott indigent defense cases until the District agreed to increase compensation.41 The FTC sued, arguing the boycott violated antitrust laws.42

The United States Court of Appeals for the D.C. Circuit held that the government’s interest in applying antitrust law was not strong enough to justify restricting First Amendment rights without first showing that the SCTLA had market power.43 Market power refers to a party’s ability to control prices—the greater the power, the higher the potential to raise prices.44 In a per se analysis, market power is not considered; under a rule of reason approach, it is essential.45 In a rule of reason analysis, a lack of market power means there cannot be an antitrust violation.46 By remanding and requiring the FTC to first show that SCTLA had market power, the Court of Appeals implicitly rejected the presumptive application of per se liability to group boycotts implicating First Amendment rights47—pushing the doctrine closer to a more defendant-friendly rule of reason analysis.

Two years later, the Supreme Court overruled the D.C. Court of Appeals, holding that the typical per se standard of review, without a showing of market power, should have been applied. In its view, the Court of Appeals focused too narrowly on administrative efficiency as the primary rational for per se review and overlooked the deterrent value of strict liability standards.48 The Court found that by adding the market power requirement, the lower court underestimated the potential harm that even small conspirators without market power can inflict.49 Similarly, the additional requirement impermissibly weakened the deterrent effect of per se liability by tacitly permitting some boycotts to avoid liability if the parties did not have market power.50 Thus, the Court concluded that market dominance is not a necessary precondition for applying per se liability to group boycotts, even those involving expressive conduct.

Instead of market dominance, permissible and impermissible boycotts are distinguished by intent.51 Boycotts aimed at achieving economic gain may fall under antitrust scrutiny, while politically motivated boycotts remain protected under the First Amendment.52 In Superior Court Trial Lawyers Association, the SCTLA’s actions were deemed economic—their goal was gain an “economic advantage” by refusing “to accept any further assignments until they receive[d] an increase in their compensation.”53 The Court distinguished this from Claiborne Hardware, where the boycotters “sought no special advantage for themselves” but were instead “victims of political, social, and economic discrimination” seeking equal treatment—not attempting “to destroy legitimate competition.”54 The “economic discrimination” described by the Court was likely segregationist policies that prevented African Americans from fully participating in the economic sphere.55 The defendants were not seeking any personal gain, but were instead attempting to protest exclusionary policies that had economic effects, as well as social and political effects.56 These defendants were deprived of the opportunity to participate fully in a fair market.57 The Supreme Court distinguished this motivation from that of the SCTLA defendants, who sought an economic advantage beyond what a fair market had given them.58 Despite this seemingly clear-cut distinction between economic and political boycotts, the Court acknowledged that many economic boycotts can also carry political motivations.59 The implication: economic motives can taint an otherwise protected political boycott, while overlapping political aims may not be enough to shield an economically driven one.

The doctrinal confusion surrounding the application of per se liability in group boycott jurisprudence and excessive judicial discretion applying a political speech exemption threatens free speech. For those reasons, Superior Court Trial Lawyers Association’s application of per se liability to group boycotts should be overturned in favor of a rule of reason framework. Doctrinally, the per se analysis serves no useful administrative function for group boycotts and clashes with the broader shift from rigid rules to flexible standards. Moreover, imposing per se liability on conduct intertwined with First Amendment rights risks chilling protests and unlawfully infringing on constitutionally protected speech. Courts should abandon per se liability and adopt the rule of reason analysis for all group boycott antitrust claims.

The benefits of a per se rule, administrative ease and deterrence, are limited by the Northwest Wholesale Stationers pre-screening framework.60 Antitrust cases are notoriously complex, and the per se standard of review is meant to offer procedural efficiency by allowing courts to bypass detailed economic and factual analysis. However, Northwest Wholesale Stationers requires both the parties and the court to engage in a preliminary version of that same analysis.61 While more abbreviated than a full rule of reason review, per se pre-clearance undermines the administrative benefit of the per se rule—which is intended to require only proof of an agreement. Additionally, this threshold analysis may force courts to evaluate underdeveloped facts and arguments better addressed under a full rule of reason review. In practice, it can add an administrative burden: rather than proceeding directly to liability, courts must first referee a battle over the proper standard of review, demanding excessive judicial resources.62

Relatedly, the deterrent effect of the per se rule is questionable, as the pre-clearance for the per se review blurs the line between permissible and impermissible conduct.63 This ambiguity could chill legitimate, pro-competitive behavior while failing to deter truly anticompetitive actions.64 In essence, the current system has the worst of both worlds. There is less deterrent value, as defendants can benefit from a pseudo rule of reason analysis with the pre-clearance framework to skirt liability, while also potentially creating a chilling effect on legitimate political boycotts. Both risks would be lessened by adopting the rule of reason standard.

The pre-clearance framework can act as even less of a deterrent than applying the rule of reason analysis outright. Specifically, defendants may be given two opportunities to avoid liability: (1) with the pre-clearance process, and (2) if the court decides to apply the rule of reason analysis after pre-clearance. The novel nature of the per se pre-clearance model, creates unpredictability that anticompetitive boycotter can capitalize on.65 As the pre-clearance framework has only been applied to group boycotts, plaintiffs may not be able to accurately weigh the risks of going to trial, thereby encouraging settlement. This blunts the deterrent effect of a per se rule. It may be economically beneficial for a firm to engage in a financially motivated boycott, because the risk of judgment against them is actually low. In contrast to per se pre-clearance, the rule of reason standard is commonly applied by courts and would streamline the review process, thus increasing the predictability of outcomes and having the same if not heightened deterrent effect as pre-clearance.

Conversely, the threat of per se liability may deter political boycotts that are legal and even constitutionally protected. The actual risk of liability may be low, but political boycotters may not have the same antitrust awareness as economic boycotters, seeking to game the system. For example, advocacy organizations might hesitate to boycott a firm with political views they oppose for fear of presumptive antitrust liability. Furthermore, officials could deliberately chill speech and expression by threatening antitrust enforcement. Imagine a case like Claiborne Hardware, where city officials first threaten boycotters of segregationist businesses with felony antitrust charges. Even if courts would ultimately protect such boycotts, people may think twice before protesting.66 For group boycotts, per se liability risks deterring speech in precisely the wrong direction. Yet, the pre-clearance model creates unpredictability and makes the risk of antitrust liability difficult to quantify, which can be taken advantage of by wrong-doers.

Claiborne Hardware’s antitrust exemption for political boycotts does not offer sufficient protection for boycotters. Distinguishing between boycotts motivated by economic intent and those driven by political purpose is incredibly difficult.67 Such a distinction can require courts to cherry-pick facts and make unpredictable decisions based more on opinion than reality. Claiborne Hardware and Superior Court Trial Lawyers Association are prime examples. In Claiborne Hardware, the Court could have found that the boycotters sought to financially benefit themselves by driving clients to Black-owned businesses, or that the terms of the boycott, including the demand for equal opportunities for Black citizens, were financially motivated.68 Similarly, in Superior Court Trial Lawyers Association, the Court could have emphasized that the boycott was a form of government advocacy, allowing attorneys to better represent indigent clients, and exempting them from antitrust scrutiny.69 Ultimately, parsing economic from political motives means a boycott might be protected in one court but condemned in another.70 This unpredictability is dangerous when the stakes include felony charges or fines for exercising the constitutionally protected right to free speech.

Adopting a rule of reason standard does not resolve all concerns with antitrust law and group boycotts, but it does reduce risks to free speech and limit doctrinal uncertainty. From an administrative standpoint, it is more efficient for courts to apply a single standard of review in all cases. Instead of navigating through the hoops set by Northwest Wholesale Stationers, courts would proceed directly to a rule of reason analysis. This would be beneficial because courts are familiar and likely more comfortable with the rule of reason framework, as most antitrust cases are analyzed under the rule of reason, than the relatively novel group boycott pre-clearance framework.71 Thus, this shift to rule of reason would increase predictability in rulings in group boycott cases and, at minimum, maintain or improve administrability.

The rule of reason standard would not change the political boycott exemption from antitrust scrutiny, but it would act as a safeguard for defendants in borderline cases where economic and political motives overlap. If a court determines that a boycott is economically motivated, defendants gain access to a range of economic arguments and defenses under the rule of reason, such as demonstrating limited market power or procompetitive effects.72 This standard is far more deferential to defendants than the rigid per se standard—which almost always guarantees a plaintiff-win after establishing the existence of an agreement to boycott. If a political boycott is mistakenly characterized as economically motivated, defendants would still have ample opportunity to present procompetitive justification evidence, like preventing free riding, improving quality of litigation, or showing a lack of a dominant market share.73 In short, the rule of reason increases the amount of litigation steps, thus reducing the risk that political boycotters face undue liability under antitrust laws.

Courts should exercise exceptional care when applying antitrust scrutiny to group boycott cases. While some are clear-cut economic boycotts aimed at limiting competition for economic gain, many are mixed motive or purely political boycotts. In these cases, plaintiffs can weaponize antitrust laws to punish or chill constitutionally protected speech. In a world of increasing political uncertainty, protestors should be certain that their legitimate speech and expression will not face felony antitrust charges. Adopting the rule of reason standard and rejecting the per se rule for group boycotts institutes a vital safeguard for free speech – and ensures that antitrust remains focused on economics not politics.

* Cordelia Bell is a J.D. Candidate (2026) at New York University School of Law. This Contribution examines the application of the per se standard of review to group boycotts under antitrust law and explores its potential chilling effect on free speech. It is based on a brief prepared for the Eleventh Annual Law & Economics Center Invitational Antitrust Moot Court Competition. It contributes to and builds upon scholarship that has highlighted the tension between group boycott jurisprudence and First Amendment protections, advocating for a departure from the per se rule. See e.g., Kay P. Kindred, When First Amendment Values and Competition Policy Collide: Resolving the Dilemma of Mixed-Motive Boycotts, 34 Ariz. L. Rev. 709, 741 (1992) (arguing that group boycott jurisprudence is insufficiently protective of constitutional rights); Ricardo Calderon, Politically Motivated Boycotts with Commercial Benefits: A Consolidated Rule of Reason Judicial Standard, 14 N.Y.U. Rev. L. & Soc. Change 873, 883 (1986) (advocating for a “consolidated” rule of reason analysis to distinguish constitutionally protected boycotts from economic, unprotected boycotts); Eleanor M. Fox, Collective Action and the Lawyers—Take Antitrust Off the Table, ProMarket (Jun. 3, 2025), https://www.promarket.org/2025/06/03/collective-action-and-the-lawyers-take-antitrust-off-the-table/ (arguing that for group boycott jurisprudence “the space for protected political action needs to be enlarged.”).

1. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 911 (1982) (explaining that by organizing a boycott, “petitioners sought to bring about political, social, and economic change.”).

2. See, e.g., FTC v. Superior Court Trial Laws. Ass’n, 493 U.S. 411, 424 (1990) (arguing that a boycott to increase wages undermines the competitive process for rates, thus violating antitrust laws).

3. See generally Claiborne Hardware, 458 U.S. at 911–12 (explaining that political boycotts, not economic ones, are exempt from antitrust scrutiny).

4. See Superior Court Trial Laws. Ass’n, 493 U.S. at 428–30 (rejecting a lower court’s characterization of the economic and political nature of a group boycott).

5. Sherman Antitrust Act, 15 U.S.C. § 1 (“Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.”).

6. See generally Superior Ct. Trial Laws. Ass’n, 493 U.S. at 430–33 (finding that a boycott for higher wages, despite significant advocacy goals, could constitute a per se violation of antitrust laws).

7. In antitrust law, horizontal parties are entities operating at the same level of the supply chain that would typically compete with one another absent the agreement. For example, two gas station owners agreeing to fix gas prices would be liable for price-fixing, whereas a gas station owner agreeing on a price with a customer involves a standard business transaction. Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 730 (1988) (an “agreement between competitors” is a horizontal restraint).

8. Fed. Trade Comm’n, Dealings with Competitors: Group Boycotts, FTC Business Guidance: Guide to Antitrust Laws, https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/dealings-competitors/group-boycotts (last visited Sept. 23, 2025).

9. See Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 899 (2007) (“From the beginning the Court has treated the Sherman Act as a common-law statute.”).

10. Sherman Antitrust Act, 15 U.S.C. § 1.

11. See, e.g., United States v. Jindal, Civil Action No. 4:20-CR-00358, 2021 U.S. Dist. LEXIS 227474, at *7–8 (E.D. Tex. Nov. 29, 2021) (expanding per se liability to wage fixing).

12. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 220–22 (1940) (finding that the reasonableness of prices is irrelevant to a price fixing agreement liability analysis).

13. If price fixing is almost always economically harmful, then it is a waste of judicial resources to spend time analyzing those economic harms in every case. See Nat’l Soc’y of Pro. Eng’rs v. United States, 435 U.S. 679, 692 (1978) (violations falling under the per se rule “are so plainly anticompetitive that no elaborate study of the industry is needed to establish their illegality.”).

14. Nat’l Soc’y of Pro. Eng’rs, 435 U.S. at 692.

15. See Daniel A. Crane, Rules Versus Standards in Antitrust Adjudication, 64 Wash. & Lee L. Rev. 49 (2007).

16. Cap. Imaging Assocs., P.C. v. Mohawk Valley Med. Assocs., Inc., 996 F.2d 537, 542–43 (2d Cir. 1993) (outlining the rule of reason steps).

17. See, e.g., Nat’l Collegiate Athletic Ass’n v. Bd. of Regents, 468 U.S. 85, 110 (1984) (a “naked restraint on price and output requires some competitive justification even in the absence of a detailed market analysis.”).

18. See, e.g., Jindal, 2021 U.S. Dist. LEXIS 227474, at *6–7 (rule of reason analysis requires a context-specific analysis, while per se standard “dispens[es] with the need for case-by-case evaluation.”).

19. See generally Crane, supra note 15, at 50 (antitrust law is moving from brightline rules to nuanced economically focused standards when determining liability); see also Eleanor M. Fox, Collective Action and the Lawyers—Take Antitrust Off the Table, ProMarket (Jun. 3, 2025), https://www.promarket.org/2025/06/03/collective-action-and-the-lawyers-take-antitrust-off-the-table/ (noting that “the Supreme Court continues to shrink the per se rule, giving a more sympathetic look to agreements that may not have harmed the market.”).

20. See, e.g., Cont’l T.V. v. GTE Sylvania, 433 U.S. 36 (1977) (finding that non-price restrictions are subject to a rule of reason analysis overturning earlier case law ascribing per se liability to restraints).

21. See Crane, supra note 15, at 70.

22. Montague & Co. v. Lowry, 193 U.S. 38, 45 (1904) (declaring a group boycott illegal under the Sherman Act).

23. See, e.g., Klor’s v. Broadway-Hale Stores, 359 U.S. 207, 212 (1959) (“Group boycotts, or concerted refusals by traders to deal with other traders, have long been held to be in the forbidden category.”).

24. Nw. Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472 U.S. 284, 298 (1985) (“A plaintiff seeking application of the per se rule must present a threshold case that the challenged activity falls into a category likely to have predominantly anticompetitive effects.”).

25. Id. at 285 (“not every cooperative activity involving a restraint or exclusion will share with the per se forbidden boycotts the likelihood of predominantly anticompetitive consequences.”).

26. Id. at 287.

27. Id. at 295.

28. Id. at 294 (Considerations for applying the per se framework include: (1) whether a restraint “cut[s] off access to a supply, facility, or market necessary to enable the boycotted firm to compete”; (2) the restraining firms holding “dominant position[s] in the relevant market”; and/or (3) the restraint not being “generally . . . justified by plausible arguments that [it was] intended to enhance overall efficiency and make markets more competitive.”).

29. See e.g., Bd. of Regents, 468 U.S. at 88 (applying rule of reason analysis).

30. Id.

31. See, e.g., Nw. Wholesale Stationers, 472 U.S. at 298 (remanding to lower court for an evaluation of market power before applying per se liability).

32. See, e.g., Claiborne Hardware, 458 U.S. at 914–15 (exempting political boycotts from antitrust scrutiny).

33. Id. at 914 (“The right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott”).

34. Id. at 892.

35. Id. at 911–13.

36. Kay P. Kindred, When First Amendment Values and Competition Policy Collide: Resolving the Dilemma of Mixed-Motive Boycotts, 34 Ariz. L. Rev. 709, 710–12 (1992) (discussing the “elusive[ness]” in distinguishing between economic and political conduct).

37. Superior Ct. Trial Laws. Ass’n, 493 U.S. 411.

38. Id. at 418.

39. Id. at 415–16.

40. Id. at 443 (Brennan, J., concurring in part and dissenting in part) (noting that the pre-boycott rates were between $7.80–11.70, while the billing rate for comparable private attorneys was between $64–123 dollars per hour).

41. Id. at 416.

42. Id. at 418.

43. Superior Ct. Trial Laws. Ass’n v. FTC, 856 F.2d 226 (D.C. Cir. 1988) (vacating and remanding FTC decision for not considering the SCTLA market power), rev’d in part, 493 U.S. 411.

44. Bd. Of Regents, 468 U.S. at 109 n.38. (“Market power is the ability to raise prices above those that would be charged in a competitive market.”).

45. See, e.g., Superior Ct. Trial Laws. Ass’n, 493 U.S. at 430–31 (rejecting the application of market power to a per se analysis).

46. Ball Mem’l Hosp., Inc. v. Mut. Hosp. Ins., Inc., 784 F.2d 1325, 1334 (7th Cir. 1986) (“Market power is a necessary ingredient in every case under the Rule of Reason.”).

47. Superior Ct. Trial Laws. Ass’n, 856 F.2d 226 (requiring market power analysis before imposing per se liability).

48. Superior Ct. Trial Laws. Ass’n, 493 U.S. at 430.

49. Id. at 430–31, 436.

50. Id. at 430–31.

51. Id. at 427 (“No matter how altruistic the motives of [the trial lawyers] may have been, it is undisputed that their immediate objective was to increase the price that they would be paid for their services.”).

52. Superior Ct. Trial Laws. Ass’n, 493 U.S. at 426.

53. Id.

54. Id.

55. Claiborne Hardware, 458 U.S. at 899–900.

56. Id. at 914–15.

57. See generally id.

58. Superior Ct. Trial Laws. Ass’n, 493 U.S. at 426–27.

59. Id. at 431 (“Every concerted refusal to do business with a potential customer or supplier has an expressive component.”).

60. See Superior Ct. Trial Laws. Ass’n, 493 U.S. at 434–35 (per se rules may over deter some conduct but the harms from certain types of conduct in the aggregate are so significant that discouraging the whole class of conduct is warranted).

61. Nw. Wholesale Stationers, Inc., 472 U.S. at 298.

62. See, e.g., Med. Ctr. at Elizabeth Place, LLC v. Premier Health Partners, 2017 U.S. Dist. LEXIS 126499, at *21–23 (S.D. Oh. Aug. 9, 2017) (a lengthy legal battle about the application of the per se or rule of reason standards in an alleged group boycott case).

63. See Superior Ct. Trial Laws. Ass’n, 493 U.S. at 430–31 (arguing that by adding market power to the per se analysis, the Appeals Court had diluted the deterrence value of the per se rule).

64. Id. at 410 (Brennan, W., dissenting) (“We have freely admitted that conduct condemned under the per se rule sometimes would be permissible if subjected merely to rule-of-reason analysis.”).

65. See generally, e.g., Med. Ctr. at Elizabeth Place, 2017 U.S. Dist. LEXIS 126499 (a multi-year legal battle over the correct standard to apply in a group boycott case).

66. See Leslie Kendrick, Speech, Intent, and the Chilling Effect, 54 Wm. & Mary L. Rev. 1633, 1649 (2013) (“‘chilling effect’ refers to the spillover effects of laws on benign conduct outside their scope.”).

67. See, e.g., Superior Ct. Trial Laws. Ass’n, 493 U.S. at 434–36 (applying per se rule despite acknowledging expressive components of boycott).

68. Claiborne Hardware, 458 U.S. at 889, 899 n.26 (“[B]lack citizens of Port Gibson, Miss., and other areas of Claiborne County presented white elected officials with a list of particularized demands for racial equality and integration,” which included “equality of opportunity, in every aspect of life.”).

69. Superior Ct. Trial Laws. Ass’n, 493 U.S. at 419.

70. See, e.g., Ricardo Calderon, Politically Motivated Boycotts with Commercial Benefits: A Consolidated Rule of Reason Judicial Standard, 14 N.Y.U. Rev. L. & Soc. Change 873, 883 (1986) (noting “the glaring different results reached by the courts when they consider the legality of politically motivated boycotts with commercial benefits.”).

71. See John M. Newman, Procompetitive Justifications in Antitrust Law, 94 Ind. L.J. 501, 502 (2019) (“The Rule of Reason has come to dominate antitrust law.”).

72. See id. at 503–05 (arguing that there are a myriad of procompetitive justifications and strategies that antitrust defendants use).

73. See, e.g., Bd. of Regents, 468 U.S. at 100 (applying rule of reason analysis).