Hans Bader of the Competitive Enterprise Institute criticizes Judge Silverstein's ruling (see yesterday's post) and makes this point about one of the theories of liability in the case:
Moreover, the lead-paint lawsuit was based in part on speech by the lead paint trade association, the Lead Industries Association (LIA), which mounted a public campaign against a total ban on lead paint. That raises serious First Amendment problems.
The Noerr-Pennington immunity, a First Amendment doctrine recognized by both the U.S. Supreme Court and the California Supreme Court, immunizes companies and people from liability under the First Amendment for lobbying campaigns that would otherwise trigger liability. See BE&K Construction v. NLRB, 536 U.S. 516 (2002) (company immune from suit under federal law); White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (citizens immune from liability under Fair Housing Act).
The Rhode Island judge tried to get around this by claiming that the jury did not punish paint companies for the LIA trade association�s speech itself, but rather only considered the trade association�s speech to show that individual paint companies �had knowledge of the LIA�s lobbying activities� and to shed light on the �purpose and character� of their actions.
That is a specious distinction. Similar reasoning was rejected by then-judge (now Supreme Court Justice) Samuel Alito in his decision in Pfizer v. Giles, 46 F.3d 1284 (3d Cir. 1995). In that decision, a federal appeals court overturned a trial judge�s refusal to dismiss a lawsuit against Pfizer, which manufactured asbestos, because the trial judge had relied on Pfizer�s membership in an asbestos trade association that engaged in lobbying, some of which was allegedly deceptive. That violated the First Amendment, which protects membership in a trade association that engages in protected speech, even if it also engages in some unprotected speech. (By contrast, there is no proof that the paint industry trade association engaged in any unprotected speech).