William J. Brennan, Jr.

“ The majority concludes that the Trial Lawyers' boycott may be enjoined without any showing of market power because "the government's interest in adhering to a uniform rule may sometimes satisfy the O'Brien test even if making an exception to the rule in a particular case might cause no serious damage." ”

“ The majority is able to reach the contrary conclusion only by disregarding the long history of attempts to raise defense lawyers' compensation levels in the District and the virtually unanimous support the Trial Lawyers enjoyed among members of the bar, the judiciary, and, indeed, officials of the city government. ”

“ As the Court of Appeals perceptively reasoned, "the evidentiary shortcut to antitrust condemnation without proof of market power is inappropriate as applied to a boycott that served, in part, to make a statement on a matter of public debate." 272 U.S.App.D.C., at 296, 856 F.2d, at 250. "Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals" ”

“ The Washington Post's editorial page endorsed the boycott, opining that " [i] t is simply unfair that these fees have remained unchanged during a period when median income in the area has risen over 180 percent." Washington Post, Sept. 8, 1983, p. A20, col. 1. The New York Times reported that " [t] he unusual thing about the lawyer's . . . job action is that almost no one disagrees with their argument." N.Y. Times, Sept. 1, 1983, p. B10, col. 3. United States District Judge Harold H. Greene wrote that the Trial Lawyers "should receive the modest increase they have requested." ”

“ As the court below expressly found, the facts at the very least do not exclude the possibility that the SCTLA succeeded due to political rather than economic power. See id., at 297, 856 F.2d, at 251. The majority today permits the FTC to find an expressive boycott to violate the antitrust laws, without even requiring a showing that the participants possessed market power or that their conduct triggered any anticompetitive effects. I believe that the First Amendment forecloses such an approach. ”

“ In recent years there have been boycotts of supermarkets, meat, grapes, iced tea in cans, soft drinks, lettuce, chocolate, tuna, plastic wrap, textiles, slacks, animal skins and furs, and products of Mexico, Japan, South Africa, and the Soviet Union. ”