“The First Amendment: Your Right To Petition The Government” with Mark Furman of TBHR

Jeffrey (0s):
Alright everybody Welcome back to radio entrepreneurs. And boy, the stories have been flying. The economy has been just in total chaos. We don’t know from day to day what’s going on. And we keep talking to entrepreneurs and experts about how people are dealing with this economy. And so critical to our show is our weekly segment with Mark Furman of Tarlow Breed, Hart and Rogers in which he discusses entrepreneurship and the law. Welcome back, mark.

Mark (26s):
Hey Jeffrey, how are you?

Jeffrey (29s):
Great to be with you, Mark Love seeing you mark. I don’t even know if you can figure out always what to talk about from week to week or day to day.

Mark (38s):
Well, there’s always something in the, in the news and, but I wanted to talk today about, is The First Amendment, which guarantees freedom of speech, freedom of religion gives the right to petition the government and an issue that’s out there is if you complain to the government about something, should you be able to be sued for it? You know, the business person has a, an issue with a competitor.

Mark (1m 24s):
Can they petition the government about it or, and, and can that competitor Sue them? And if so, what they can, they Sue him for? So everybody’s, I start with a premise, everybody’s got a right to petition the government, but you have this question. What if there petition is in bad faith? What if there’s an ulterior purpose behind it? You know, what if it’s the, what they’re claiming in the petition is false. Where’s the line between the constitutional protection for petitioning the government and, you know, protecting the rights of the party who is being accused.

Mark (2m 17s):
So I would say the law is as in many cases inconsistent and in a state of constant flux and evolution, but one of the developments over the last few decades is there was an antitrust case that, that went to the Supreme court and the Supreme court decided that parties cannot be liable for petitioning the government, except in a very limited circumstances.

Mark (3m 0s):
So in order to be liable, your, your petition to the government must be which called the shame. And a sham is litigation’s say, or activity, which is objectively baseless. So if it’s not objective, we baseless, you’re done, you’re protected, you’re immunized. You don’t go to the question of what is the intent behind the petitioning activity.

Mark (3m 41s):
So, so what what’s, so should that be the rule that should be throughout the law, that if you have a claim, a petition that is not objective really baseless, should you have immunity? In other words, if there’s a good faith basis for the claim, even if your intent is malevolent, you know, should it matter. And in that particular case, in the antitrust context, the United States Supreme court held that intent is irrelevant as long as it’s not objectively baseless.

Mark (4m 36s):
So it’s a nice, bright line standard. You know, judges can look at whether a claim on the merits has a legitimate basis or not, or whether it’s just nonsense and baseless and you don’t get into what’s in the hearts and minds of, of the party petitioning the government. So courts have taken that antitrust case and applied it all sorts of petitioning activity. And it’s, it’s being decided from state to stay and it’s being decided in different ways.

Mark (5m 26s):
So some states say, well, that’s just an antitrust case. And other states say, well, there’s no difference between petitioning the government and an antitrust context, as opposed to petitioning the government and some other contexts and people, including business people, businesses and business owners have the same right. To petition as, as individual parties. So what do you think Jeff wonder what listeners think should you get, if you, if you have a legitimate basis looking at it just objectively, should you, should there be circumstances that you’re liable for petitioning activity or not

Jeffrey (6m 21s):
Have the whole thing around good faith makes me think about proving it and what the cost is, approving it again. I’ve had this discussion with other people and just, you know, when you’re a small business, as you know, the cost of litigation or even the pursuit of inquiry can, can be an immense distraction to a small business. And, you know, I don’t think it’s ever a flat playing at an equal playing field because big businesses can last a lot longer. And you know, that’s a problem. I mean, I, I know somebody who used to tell me a story about an ex president who he did business with.

Jeffrey (7m 6s):
And he used to say, there were two types of deals with that president one, where you made a contract and he broke it. And then two, when you didn’t make a contract and he broke it and he said, and when you broke it, when he broke it, it used to say, we’ll go to court and I’ll just outlast you. So it’s tough, you know, and I’ve mentioned this before, in some countries, there are sort of recourse around these big companies being able to take advantage lawsuits. So it’s, it, that’s really my concern. Market’s really how many avenues do small businesses have. And I see a lot of inappropriate behavior in business, you know, it’s, it happens all the time. So there’s my, that’s my question back it’s, you know, are there easier routes for small businesses?

Mark (7m 53s):
Yeah, well, that’s, that’s the problem. I mean, people, when they got a complaint, they think they can go to the government, then there, they don’t expect to be sued, but if you’re talking about small businesses, I mean, one of the major inconveniences is the expense is enormous of defending. I mean, I think that’s what you’re looping to and the playing field is never level in the sense that, you know, unless the Amazon was fighting with apple or you’re talking about mega companies like that, you know, for the average entrepreneur, you know, defending a case, really compose an existential threat to the business.

Mark (8m 44s):
So the advantage of an objective standard, where if it’s subjectively not frivolous, is that it’s opportunity to discourage suits against smaller parties and potentially provide through the legal process, expedited consideration that may dispose of the case without waiting for trial and going through all the expense of discovery. Now, the counter-argument is that when that business or business owner, or both gets sued, if they can’t be sued, are you depriving the party that sues them of their right to petition the government because they have a first amendment, right.

Mark (9m 41s):
As well. So how do you balance these rights to petition? And, and I think that’s what the courts are grappling with and

Jeffrey (9m 56s):
I’m glad they are. I’m glad they are. And I think it’s hard for attorneys to, I mean, you’ve got to pick an attorney that you can afford, and you want to make sure that you can pay your attorney and attorneys can’t take cases where they can’t get paid. It’s a tough bind all the way around. I think it’s a great subject. And, you know, I hopefully you could bring it up again. We are speaking with Mark Furman of Tarlow Breed Hart in Rogers entrepreneurship, and the law is the segment. Mark. If someone’s looking for you and want to understand how to navigate these very difficult situations, how would they find you?

Mark (10m 27s):
I can be reached at 6 1 7 2 1 8 2 0 2 5. That’s my direct line or at M Ferman, F U R M a n@tbhr-law.com.

Jeffrey (10m 43s):
That’s great. And remind everybody, this is Radio Entrepreneurs and we’ll see mark next week back again.