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/* The full text of the U.S. Supreme Court opinion in the matter
of City of Cloumbia vs. Omni Outdoor advertising. This is an
interesting case on the immunity of a governmental entity for
anti-competitive acts. */
Subject:  COLUMBIA v. OMNI OUTDOOR ADVERTISING, INC., Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be
released, as is being done in connection with this case, at the
time the opinion is issued.  The syllabus constitutes no part of
the opinion of the Court but has been prepared by the Reporter of
Decisions for the convenience of the reader.  See United States
v. Detroit Lumber Co., 200 U. S. 321, 337.  SUPREME COURT OF THE
UNITED STATES

Syllabus

CITY OF COLUMBIA et al. v. OMNI OUTDOOR ADVERTISING, INC.


certiorari to the united states court of appeals for the fourth
circuit

No. 89-1671.  Argued November 28, 1990 -- Decided April 1, 1991

After respondent Omni Outdoor Advertising, Inc., entered the
billboard market in petitioner Columbia, South Carolina,
petitioner Columbia Outdoor Advertising, Inc. (COA), which
controlled more than 95% of the market and enjoyed close
relations with city officials, lobbied these of ficials to enact
zoning ordinances restricting billboard construction.  After such
ordinances were passed, Omni filed suit against petitioners under
15 1 and 2 of the Sherman Act and the State's Unfair Trade
Practices Act, alleging, inter alia, that the ordinances were the
result of an anticompetitive conspiracy that stripped petitioners
of any immunity to which they might otherwise be entitled.  After
Omni obtained a jury verdict on all counts, the District Court
granted petitioners' motions for judgment notwithstanding the
verdict on the ground that their activities were outside the
scope of the federal antitrust laws.  The Court of Appeals
reversed and reinstated the verdict.

Held:

 1. The city's restriction of billboard construction is
immune from federal antitrust liability under Parker v. Brown,
317 U. S. 341, 352 -- which held that principles of federalism
and state sovereignty render the Sherman Act inapplicable to
anticompetitive restraints imposed by the States "as an act of
government" -- and subsequent decisions according Parker immunity
to municipal restriction of competition in implementation of
state policy, see, e. g., Hallie v. Eau Claire, 471 U. S. 34, 38.
Pp.  4-13.

 (a) The Court of Appeals correctly concluded that the
city was prima facie entitled to Parker immunity for its

billboard restrictions.  Although Parker immunity does not apply
directly to municipalities or other political subdivisions of the
States, it does apply where a municipality's restriction of
competition is an authorized implementation of state policy.
South Carolina's zoning statutes unquestionably authorized the
city to regulate the size, location, and spacing of billboards.
The additional Parker requirement that the city possess clear
delegated authority to suppress competition, see, e. g., Hallie,
supra, at 40-42, is also met here, since suppression of
competition is at the very least a foreseeable result of zoning
regulations.  Pp. 4-7.

 (b) The Court of Appeals erred, however, in applying a
"conspiracy" exception to Parker, which is not supported by the
language of that case.  Such an exception would swallow up the
Parker rule if "conspiracy" means nothing more than agreement to
impose the regulation in question, since it is both inevitable
and desirable that public officials agree to do what one or
another group of private citizens urges upon them.  It would be
similarly impractical to limit "conspiracy" to instances of
governmental "corruption," or governmental acts "not in the
public interest"; virtually all anticompetitive regulation is
open to such charges and the risk of unfavorable ex post facto
judicial assessment would impair the States' ability to regulate
their domestic commerce.  Nor is it appropriate to limit
"conspiracy" to instances in which bribery or some other
violation of state or federal law has been established, since the
exception would then be unrelated to the purposes of the Sherman
Act, which condemns trade restraints, not political activity.
With the possible exception of the situation in which the State
is acting as a market participant, any action that qualifies as
state action is ipso facto exempt from the operation of the
antitrust laws.  Pp. 8-13.

 2. COA is immune from liability for its activities
relating to enactment of the ordinances under Eastern Railroad
Presidents Conference v.  Noerr Motor Freight, Inc., 365 U. S.
127, 141, which states a corollary to Parker: the federal
antitrust laws do not regulate the conduct of private individuals
in seeking anticompetitive action from the government.  The Court
of Appeals erred in applying the "sham" exception to the Noerr
doctrine.  This exception encompasses situations in which persons
use the governmental process itself -- as opposed to the outcome
of that process -- as an anticompetitive weapon.  That is not the
situation here.  California Motor Transport Co. v. Trucking
Unlimited, 404 U. S. 508, 512, distinguished.  Omni's suggestion
that this Court adopt a "conspiracy" exception to Noerr immunity
is rejected for largely the same reasons that prompt the Court to
reject such an exception to Parker.  Pp. 13-17.

 3. The Court of Appeals on remand must determine (if the
theory has been properly preserved) whether the evidence was
sufficient to sustain a verdict for Omni based solely on its
assertions that COA engaged in private anticompetitive actions,
and whether COA can be held liable to Omni on its state-law
claim.  P. 18.

891 F. 2d 1127, reversed and remanded.

Scalia, J., delivered the opinion of the Court, in which
Rehnquist, C. J., and Blackmun, O'Connor, Kennedy, and Souter,
JJ., joined.  Stevens, J., filed a dissenting opinion, in which
White and Marshall, JJ., joined.

------------------------------------------------------------------------------


Subject: 89-1671 -- OPINION, COLUMBIA v. OMNI OUTDOOR
ADVERTISING, INC.

SUPREME COURT OF THE UNITED STATES

No. 89-1671


CITY OF COLUMBIA and COLUMBIA OUTDOOR ADVERTISING, INC.,
PETITIONERS v.  OMNI OUTDOOR ADVERTISING, INC.

on writ of certiorari to the united states court of appeals for
the fourth circuit

[April 1, 1991]


Justice Scalia delivered the opinion of the Court.

This case requires us to clarify the application of the Sherman
Act to municipal governments and to the citizens who seek action
from them.

I

Petitioner Columbia Outdoor Advertising, Inc. (COA), a South
Carolina corporation, entered the billboard business in the city
of Columbia, South Carolina (also a petitioner here), in the
1940's.  By 1981 it controlled more than 95% of what has been
conceded to be the relevant market.  COA was a local business
owned by a family with deep roots in the community, and enjoyed
close relations with the city's political leaders.  The mayor and
other members of the city council were personal friends of COA's
majority owner, and the company and its officers occasionally
contributed funds and free billboard space to their campaigns.
According to respondent, these beneficences were part of a
"longstanding" "secret anticompetitive agreement" whereby "the
City and COA would each use their [sic] respective power and
resources to protect . . . COA's monopoly position," in return
for which "City Council members received advantages made possible
by COA's monopoly." Brief for Respondent 12, 16.

In 1981, respondent Omni Outdoor Advertising, Inc., a Georgia
corporation, began erecting billboards in and around the city.
COA responded to this competition in several ways.  First, it
redoubled its own billboard construction efforts and modernized
its existing stock.  Second-- according to Omni -- it took a
number of anticompetitive private actions, such as offering
artificially low rates, spreading untrue and malicious rumors
about Omni, and attempting to induce Omni's customers to break
their contracts.  Finally (and this is what gives rise to the
issue we address today), COA executives met with city officials
to seek the enactment of zoning ordinances that would restrict
billboard construction.  COA was not alone in urging this course;
a number of citizens concerned about the city's recent explosion
of billboards advocated restrictions, including writers of
articles and editorials in local newspapers.

/* One of the reasons that the Court does not choose to interfere
in the governmental arena, since there are diverse political
reasons that such decisions are taken. If politics, within normal
bounds, works to help a particular party, then so be it. */

In the spring of 1982, the city council passed an ordinance
requiring the council's approval for every billboard constructed
in downtown Columbia.  This was later amended to impose a 180-day
moratorium on the construction of billboards throughout the city,
except as specifically authorized by the council.  A state court
invalidated this ordinance on the ground that its conferral of
unconstrained discretion upon the city council violated both the
South Carolina and Federal Constitutions.  The city then
requested the State's regional planning authority to conduct a
comprehensive analysis of the local billboard situation as a
basis for developing a final, constitutionally valid, ordinance.
In September 1982, after a series of public hearings and numerous
meetings involving city officials, Omni, and COA (in all of
which, according to Omni, positions contrary to COA's were not
genuinely considered), the city council passed a new ordinance
resticting the size, location, and spacing of billboards.  These
restrictions, particularly those on spacing, obviously benefited
COA, which already had its billboards in place; they severely
hindered Omni's ability to compete.

In November 1982, Omni filed suit against COA and the city in
Federal District Court, charging that they had violated 15 1 and
2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. 15 1,
2, {1} as well as South Carolina's Unfair Trade Practices Act, S.
/* The convention of {} refers to footnotes. */

C. Code MDRV 39-5-140 (1976).  Omni contended, in particular,
that the city's billboard ordinances were the result of an
anticompetitive conspiracy between city officials and COA that
stripped both parties of any immunity they might otherwise enjoy
from the federal antitrust laws.  In January 1986, after more
than two weeks of trial, a jury returned general verdicts against
the city and COA on both the federal and state claims.  It
awarded damages, before trebling, of $600,000 on the MDRV 1
Sherman Act claim, and $400,000 on the MDRV 2 claim.  {2} The
jury also answered two special interrogatories, finding
specifically that the city and COA had conspired both to restrain
trade and to monopolize the market.  Petitioners moved for
judgment notwithstanding the verdict, contending among other
things that their activities were outside the scope of the
federal antitrust laws.  In November 1988, the District Court
granted the motion.

A divided panel of the United States Court of Appeals for the
Fourth Circuit reversed the judgment of the District Court and
reinstated the jury verdict on all counts.  891 F. 2d 1127
(1989).  We granted certiorari, 496 U.S. --- (1990).

II

In the landmark case of Parker v. Brown, 317 U. S. 341 (1943), we
rejected the contention that a program restricting the marketing
of privately produced raisins, adopted pursuant to California's
Agricultural Prorate Act, violated the Sherman Act.  Relying on
principles of federalism and state sovereignty, we held that the
Sherman Act did not apply to anticompetitive restraints imposed
by the States "as an act of government." 317 U. S., at 352.

Since Parker emphasized the role of sovereign States in a federal
system, it was initially unclear whether the governmental actions
of political subdivisions enjoyed similar protection.  In recent
years, we have held that Parker immunity does not apply directly
to local governments, see Hallie v. Eau Claire, 471 U. S. 34, 38
(1985); Community Communications Co. v. Boulder, 455 U. S. 40,
50-51 (1982); Lafayette v.  Louisiana Power & Light Co., 435 U.
S. 389, 412-413 (1978) (plurality opinion).  We have recognized,
however, that a municipality's restriction of competition may
sometimes be an authorized implementation of state policy, and
have accorded Parker immunity where that is the case.  The South
Carolina statutes under which the city acted in the present case
authorize municipalities to regulate the use of land and the
construction of buildings and other structures within their
boundaries. {3} It is undisputed that, as a matter of state law,
these statutes authorize the city to regulate the size, location,
and spacing of billboards.  It could be argued, however, that a
municipality acts beyond its delegated authority, for Parker
purposes, whenever the nature of its regulation is substantively
or even procedurally defective.  On such an analysis it could be
contended, for example, that the city's regulation in the present
case was not "authorized" by S. C. Code MDRV 5-23-10 (1976), see
n. 3, supra, if it was not, as that statute requires, adopted
"for the purpose of promoting health, safety, morals or the
general welfare of the community." As scholarly commentary has
noted, such an expansive interpretation of the Parker-defense
authorization requirement would have unacceptable consequences.

"To be sure, state law `authorizes' only agency decisions that
are substantively and procedurally correct.  Errors of fact, law,
or judgment by the agency are not `authorized.' Erroneous acts or
decisions are subject to reversal by superior tribunals because
unauthorized.  If the antitrust court demands unqualified
`authority' in this sense, it inevitably becomes the standard
reviewer not only of federal agency activity but also of state
and local activity whenever it is alleged that the governmental
body, though possessing the power to engage in the challenged
conduct, has actually exercised its power in a manner not
authorized by state law.  We should not lightly assume that
Lafayette's authorization requirement dictates transformation of
state administrative review into a federal antitrust job.  Yet
that would be the consequence of making antitrust liability
depend on an undiscriminating and mechanical demand for
`authority' in the full administrative law sense." P. Areeda &
H.Hovenkamp, Antitrust Law MDRV 212.3b, p. 145 (Supp. 1989).

/* Layman may be surprised to find out that Courts will often
rule in particular ways to avoid work in the future. The point
which the Court is making here is that if the opinion is allowed
to stand, then each time a city passes a law with economic
affect, the federal courts would be used as an "appeal." */


We agree with that assessment, and believe that in order to
prevent Parker from undermining the very interests of federalism
it is designed to protect, it is necessary to adopt a concept of
authority broader than what is applied to determine the legality
of the municipality's action under state law.  We have adopted an
approach that is similar in principle, though not necessarily in
precise application, elsewhere.  See Stump v.  Sparkman, 435 U.
S. 349 (1978).  It suffices for the present to conclude that here
no more is needed to establish, for Parker purposes, the city's
authority to regulate than its unquestioned zoning power over the
size, location, and spacing of billboards.

Besides authority to regulate, however, the Parker defense also
requires authority to suppress competition -- more specifically,
"clear articulation of a state policy to authorize
anticompetitive conduct" by the municipality in connection with
its regulation.  Hallie, 471 U. S., at 40 (internal quotation
omitted).  We have rejected the contention that this requirement
can be met only if the delegating statute explicitly permits the
displacement of competition, see id., at 41-42.  It is enough, we
have held, if suppression of competition is the "foreseeable
result" of what the statute authorizes, id., at 42.  That
condition is amply met here.  The very purpose of zoning
regulation is to displace unfettered business freedom in a manner
that regularly has the effect of preventing normal acts of
competition, particularly on the part of new entrants.  A
municipal ordinance restricting the size, location, and spacing
of billboards (surely a common form of zoning) necessarily
protects existing billboards against some competition from
newcomers. {4}

The Court of Appeals was therefore correct in its conclusion that
the city's restriction of billboard construction was prima facie
entitled to Parker immunity.  The Court of Appeals upheld the
jury verdict, however, by invoking a "conspiracy" exception to
Parker that has been recognized by several Courts of Appeals.
See, e. g., Whitworth v. Perkins, 559 F. 2d 378 (CA5 1977),
vacated, 435 U. S. 992, aff'd on rehearing, 576 F. 2d 696 (1978),
cert. denied, 440 U. S. 911 (1979).  That exception is thought to
be supported by two of our statements in Parker: "[W]e have no
question of the state or its municipality becoming a participant
in a private agreement or combination by others for restraint of
trade, cf. Union Pacific R. Co. v. United States, 313 U. S. 450."
Parker, 317 U. S., at 351-352 (emphasis added).  "The state in
adopting and enforcing the prorate program made no contract or
agreement and entered into no conspiracy in restraint of trade or
to establish monopoly but, as sovereign, imposed the restraint as
an act of government which the Sherman Act did not undertake to
prohibit." Id., at 352 (emphasis added).  Parker does not apply,
according to the Fourth Circuit, "where politicians or political
entities are involved as conspirators" with private actors in the
restraint of trade.  891 F. 2d, at 1134.

There is no such conspiracy exception.  The rationale of Parker
was that, in light of our national commitment to federalism, the
general language of the Sherman Act should not be interpreted to
prohibit anticompetitive actions by the States in their
governmental capacities as sovereign regulators.  The sentences
from the opinion quoted above simply clarify that this immunity
does not necessarily obtain where the State acts not in a
regulatory capacity but as a commercial participant in a given
market.  That is evident from the citation of Union Pacific R.
Co. v.  United States, 313 U. S. 450 (1941), which held unlawful
under the Elkins Act certain rebates and concessions made by
Kansas City, Kansas, in its capacity as the owner and operator of
a wholesale produce market that was integrated with railroad
facilities.  These sentences should not be read to suggest the
general proposition that even governmental regulatory action may
be deemed private -- and therefore subject to antitrust liability
-- when it is taken pursuant to a conspiracy with private
parties.  The impracticality of such a principle is evident if,
for purposes of the exception, "conspiracy" means nothing more
than an agreement to impose the regulation in question.  Since it
is both inevitable and desirable that public officials often
agree to do what one or another group of private citizens urges
upon them, such an exception would virtually swallow up the
Parker rule: All anticompetitive regulation would be vulnerable
to a "conspiracy" charge.  See Areeda & Hovenkamp, supra, MDRV
203.3b, at 34, and n. 1; Elhauge, The Scope of Antitrust Process,
104 Harv. L. Rev. 667, 704-705 (1991). {5}

Omni suggests, however, that "conspiracy" might be limited to
instances of governmental "corruption," defined variously as
"abandonment of public responsibilities to private interests,"
Brief for Respondent 42, "corrupt or bad faith decisions," id.,
at 44, and "selfish or corrupt motives," ibid.  Ultimately, Omni
asks us not to define "corruption" at all, but simply to leave
that task to the jury: "[a]t bottom, however, it was within the
jury's province to determine what constituted corruption of the
governmental process in their community." Id., at 43.  Omni's
amicus eschews this emphasis on "corruption," instead urging us
to define the conspiracy exception as encompassing any
governmental act "not in the public interest." Brief for
Associated Builders and Contractors, Inc. as Amicus Curiae 5.

A conspiracy exception narrowed along such vague lines is
similarly impractical.  Few governmental actions are immune from
the charge that they are "not in the public interest" or in some
sense "corrupt." The California marketing scheme at issue in
Parker itself, for example, can readily be viewed as the result
of a "conspiracy" to put the "private" interest of the State's
raisin growers above the "public" interest of the State's
consumers.  The fact is that virtually all regulation benefits
some segments of the society and harms others; and that it is not
universally considered contrary to the public good if the net
economic loss to the losers exceeds the net economic gain to the
winners.  Parker was not written in ignorance of the reality that
determination of "the public interest" in the manifold areas of
government regulation entails not merely economic and
mathematical analysis but value judgment, and it was not meant to
shift that judgment from elected officials to judges and juries.
If the city of Columbia's decision to regulate what one local
newspaper called "billboard jungles," Columbia Record, May 21,
1982, p. 14-A, col. 1; App.  in No. 88-1388 (CA4), p. 3743, is
made subject to ex post facto judicial assessment of "the public
interest," with personal liability of city officials a possible
consequence, we will have gone far to "compromise the States'
ability to regulate their domestic commerce," Southern Motor
Carriers Rate Conference, Inc. v. United States, 471 U. S. 48, 56
(1985).  The situation would not be better, but arguably even
worse, if the courts were to apply a subjective test: not whether
the action was in the public interest, but whether the officials
involved thought it to be so.  This would require the sort of
deconstruction of the governmental process and probing of the
official "intent" that we have consistently sought to avoid.  {6}
"[W]here the action complained of . . . was that of the State
itself, the action is exempt from antitrust liability regardless
of the State's motives in taking the action." Hoover v. Ronwin,
466 U. S. 558, 579-580 (1984).  See also Llewellyn v. Crothers,
765 F. 2d 769, 774 (CA9 1985) (Kennedy, J.).

The foregoing approach to establishing a "conspiracy" exception
at least seeks (however impractically) to draw the line of
impermissible action in a manner relevant to the purposes of the
Sherman Act and of Parker: prohibiting the restriction of
competition for private gain but permitting the restriction of
competition in the public interest.  Another approach is
possible, which has the virtue of practicality but the vice of
being unrelated to those purposes.  That is the approach which
would consider Parker inapplicable only if, in connection with
the governmental action in question, bribery or some other
violation of state or federal law has been established.  Such
unlawful activity has no necessary relationship to whether the
governmental action is in the public interest.  A mayor is guilty
of accepting a bribe even if he would and should have taken, in
the public interest, the same action for which the bribe was
paid.  (That is frequently the defense asserted to a criminal
bribery charge -- and though it is never valid in law, see, e.
g., United States v. Jannotti, 673 F. 2d 578, 601 (CA3) (en
banc), cert. denied, 457 U. S. 1106 (1982), it is often plausible
in fact.) When, moreover, the regulatory body is not a single
individual but a state legislature or city council, there is even
less reason to believe that violation of the law (by bribing a
minority of the decisionmakers) establishes that the regulation
has no valid public purpose.  Cf. Fletcher v. Peck, 6 Cranch 87,
130 (1810).  To use unlawful political influence as the test of
legality of state regulation undoubtedly vindicates (in a rather
blunt way) principles of good government.  But the statute we are
construing is not directed to that end.  Congress has passed
other laws aimed at combatting corruption in state and local
governments.  See, e. g., 18 U. S. C. MDRV 1951 (Hobbs Act).
"Insofar as [the Sherman Act] sets up a code of ethics at all, it
is a code that condemns trade restraints, not political
activity." Eastern Railroad Presidents Conference v. Noerr Motor
Freight, Inc., 365 U. S. 127, 140 (1961).

For these reasons, we reaffirm our rejection of any
interpretation of the Sherman Act that would allow plaintiffs to
look behind the actions of state sovereigns to base their claims
on "perceived conspiracies to restrain trade," Hoover, 466 U. S.,
at 580.  We reiterate that, with the possible market participant
exception, any action that qualifies as state action is "ipso
facto . . . exempt from the operation of the antitrust laws,"
id., at 568.  This does not mean, of course, that the States may
exempt private action from the scope of the Sherman Act; we in no
way qualify the well established principle that "a state does not
give immunity to those who violate the Sherman Act by authorizing
them to violate it, or by declaring that their action is lawful."
Parker, 317 U. S., at 351 (citing Northern Securities Co. v.
United States, 193 U. S. 197, 332, 344-347 (1904)).  See also
Schwegmann Brothers v. Calvert Distillers Corp., 341 U. S. 384
(1951).

III

While Parker recognized the States' freedom to engage in
anticompetitive regulation, it did not purport to immunize from
antitrust liability the private parties who urge them to engage
in anticompetitive regulation.  However, it is obviously peculiar
in a democracy, and perhaps in derogation of the constitutional
right "to petition the Government for a redress of grievances,"
U. S. Const., Amdt. 1, to establish a category of lawful state
action that citizens are not permitted to urge.  Thus, beginning
with Eastern Railroad Presidents Conference v. Noerr Motor
Freight, Inc., supra, we have developed a corollary to Parker:
the federal antitrust laws also do not regulate the conduct of
private individuals in seeking anticompetitive action from the
government.  This doctrine, like Parker, rests ultimately upon a
recognition that the antitrust laws, "tailored as they are for
the business world, are not at all appropriate for application in
the political arena." Noerr, supra, at 141.  That a private
party's political motives are selfish is irrelevant: "Noerr
shields from the Sherman Act a concerted effort to influence
public officials regardless of intent or purpose." United Mine
Workers of America v.  Pennington, 381 U. S. 657, 670 (1965).

/* All's fair in love and war and getting favorable state
legislation. */

Noerr recognized, however, what has come to be known as the
"sham" exception to its rule: "There may be situations in which a
publicity campaign, ostensibly directed toward influencing
governmental action, is a mere sham to cover what is actually
nothing more than an attempt to interfere directly with the
business relationships of a competitor and the application of the
Sherman Act would be justified." 365 U. S., at 144.  The Court of
Appeals concluded that the jury in this case could have found
that COA's activities on behalf of the restrictive billboard
ordinances fell within this exception.  In our view that was
error.

The "sham" exception to Noerr encompasses situations in which
persons use the governmental process -- as opposed to the outcome
of that process -- as an anticompetitive weapon.  A classic
example is the filing of frivolous objections to the license
application of a competitor, with no expectation of achieving
denial of the license but simply in order to impose expense and
delay.  See California Motor Transport Co. v. Trucking Unlimited,
404 U. S. 508 (1972).  A "sham" situation involves a defendant
whose activities are "not genuinely aimed at procuring favorable
government action" at all, Allied Tube & Conduit Corp. v. Indian
Head, Inc., 486 U. S.  492, 500, n. 4 (1988), not one "who
`genuinely seeks to achieve his governmental result, but does so
through improper means,' " id., at 508, n.  10 (quoting Sessions
Tank Liners, Inc. v. Joor Mfg., Inc., 827 F. 2d 458, 465, n. 5
(CA9 1987)).

Neither of the Court of Appeals' theories for application of the
"sham" exception to the facts of the present case is sound.  The
court reasoned, first, that the jury could have concluded that
COA's interaction with city officials "was `actually nothing more
than an attempt to interfere directly with the business relations
[sic] of a competitor.' " 891 F. 2d, at 1139 (quoting Noerr,
supra, at 144).  This analysis relies upon language from Noerr,
but ignores the import of the critical word "directly." Although
COA indisputably set out to disrupt Omni's business
relationships, it sought to do so not through the very process of
lobbying, or of causing the city council to consider zoning
measures, but rather through the ultimate product of that
lobbying and consideration, viz., the zoning ordinances.  The
Court of Appeals' second theory was that the jury could have
found "that COA's purposes were to delay Omni's entry into the
market and even to deny it a meaningful access to the appropriate
city administrative and legislative fora." 891 F. 2d, at 1139.
But the purpose of delaying a competitor's entry into the market
does not render lobbying activity a "sham," unless (as no
evidence suggested was true here) the delay is sought to be
achieved only by the lobbying process itself, and not by the
governmental action that the lobbying seeks.  "If Noerr teaches
anything it is that an intent to restrain trade as a result of
government action sought . . . does not foreclose protection."
Sullivan, Developments in the Noerr Doctrine, 56 Antitrust L. J.
361, 362 (1987).  As for "deny[ing] . . .  meaningful access to
the appropriate city administrative and legislative fora," that
may render the manner of lobbying improper or even unlawful, but
does not necessarily render it a "sham." We did hold in
California Motor Transport, supra, that a conspiracy among
private parties to monopolize trade by excluding a competitor
from participation in the regulatory process did not enjoy Noerr
protection.  But California Motor Transport involved a context in
which the conspirators' participation in the governmental process
was itself claimed to be a "sham," employed as a means of
imposing cost and delay.  ("It is alleged that petitioners
`instituted the proceedings and actions . . . with or without
probable cause, and regardless of the merits of the cases.' " 404
U. S., at 512.) The holding of the case is limited to that
situation.  To extend it to a context in which the regulatory
process is being invoked genuinely, and not in a "sham" fashion,
would produce precisely that conversion of antitrust law into
regulation of the political process that we have sought to avoid.
Any lobbyist or applicant, in addition to getting himself heard,
seeks by procedural and other means to get his opponent ignored.
Policing the legitimate boundaries of such defensive strategies,
when they are conducted in the context of a genuine attempt to
influence governmental action, is not the role of the Sherman
Act.  In the present case, of course, any denial to Omni of
"meaningful access to the appropriate city administrative and
legislative fora" was achieved by COA in the course of an attempt
to influence governmental action that, far from being a "sham,"
was if anything more in earnest than it should have been.  If the
denial was wrongful there may be other remedies, but as for the
Sherman Act, the Noerr exemption applies.

Omni urges that if, as we have concluded, the "sham" exception is
inapplicable, we should use this case to recognize another
exception to Noerr immunity -- a "conspiracy" exception, which
would apply when government officials conspire with a private
party to employ government action as a means of stifling
competition.  We have left open the possibility of such an
exception, see, e. g., Allied Tube, supra, at 502, n. 7, as have
a number of Courts of Appeals.  See, e. g., Oberndorf v.  Denver,
900 F. 2d 1434, 1440 (CA10 1990); First American Title Co. of
South Dakota v. South Dakota Land Title Assn., 714 F. 2d 1439,
1446, n. 6 (CA8 1983), cert. denied, 464 U. S. 1042 (1984).  At
least one Court of Appeals has affirmed the existence of such an
exception in dicta, see Duke & Co. v.  Foerster, 521 F. 2d 1277,
1282 (CA3 1975), and the Fifth Circuit has adopted it as holding,
see Affiliated Capital Corp. v. Houston, 735 F. 2d 1555, 1566-
1568 (1984) (en banc).

Giving full consideration to this matter for the first time, we
conclude that a "conspiracy" exception to Noerr must be rejected.
We need not describe our reasons at length, since they are
largely the same as those set forth in Part II above for
rejecting a "conspiracy" exception to Parker.  As we have
described, Parker and Noerr are complementary expressions of the
principle that the antitrust laws regulate business, not
politics; the former decision protects the States' acts of
governing, and the latter the citizens' participation in
government.  Insofar as the identification of an
immunitydestroying "conspiracy" is concerned, Parker and Noerr
generally present two faces of the same coin.  The
Noerr-invalidating conspiracy alleged here is just the
Parker-invalidating conspiracy viewed from the standpoint of the
private-sector participants rather than the governmental
participants.  The same factors which, as we have described
above, make it impracticable or beyond the purpose of the
antitrust laws to identify and invalidate lawmaking that has been
infected by selfishly motivated agreement with private interests
likewise make it impracticable or beyond that scope to identify
and invalidate lobbying that has produced selfishly motivated
agreement with public officials.  "It would be unlikely that any
effort to influence legislative action could succeed unless one
or more members of the legislative body became . . .
`coconspirators' " in some sense with the private party urging
such action, Metro Cable Co. v. CATV of Rockford, Inc., 516 F. 2d
220, 230 (CA7 1975).  And if the invalidating "conspiracy" is
limited to one that involves some element of unlawfulness (beyond
mere anticompetitive motivation), the invalidation would have
nothing to do with the policies of the antitrust laws.  In Noerr
itself, where the private party "deliberately deceived the public
and public officials" in its successful lobbying campaign, we
said that "deception, reprehensible as it is, can be of no
consequence so far as the Sherman Act is concerned." 365 U. S.,
at 145.

/* Again a recognition of the problem of ascertaining the truth
or falsity of public policy justifications for actions. */

IV

Under Parker and Noerr, therefore, both the city and COA are
entitled to immunity from the federal antitrust laws for their
activities relating to enactment of the ordinances.  This
determination does not entirely resolve the dispute before us,
since other activities are at issue in the case with respect to
COA.  Omni asserts that COA engaged in private anticompetitive
actions such as trade libel, the setting of artificially low
rates, and inducement to breach of contract.  Thus, although the
jury's general verdict against COA cannot be permitted to stand
(since it was based on instructions that erroneously permitted
liability for seeking the ordinances, see Sunkist Growers, Inc.
v. Winckler & Smith Citrus Products Co., 370 U. S. 19, 29-30
(1962)) if the evidence was sufficient to sustain a verdict on
the basis of these other actions alone, and if this theory of
liability has been properly preserved, Omni would be entitled to
a new trial.

There also remains to be considered the effect of our judgment
upon Omni's claim against COA under the South Carolina Unfair
Trade Practices Act.  The District Court granted judgment
notwithstanding the verdict on this claim as well as the Sherman
Act claims; the Court of Appeals reversed on the ground that "a
finding of conspiracy to restrain competition is tantamount to a
finding" that the South Carolina law had been violated, 891
F.2d, at 1143.  Given our reversal of the "conspiracy" holding,
that reasoning is no longer applicable.

We leave these remaining questions for determination by the Court
of Appeals on remand.  The judgment of the Court of Appeals is
reversed, and the case is remanded for further proceedings
consistent with this opinion.

It is so ordered.


---------------------------------------------------------------

Note 1:

Section 1 provides in pertinent part: "Every contract,
combination in the form of trust or otherwise, or conspiracy, in
restraint of trade or commerce among the several States, or with
foreign nations, is declared to be illegal." 15 U. S. C. MDRV 1.

Section 2 provides in pertinent part: "Every person who shall
monopolize, or attempt to monopolize, or combine or conspire with
any other person or persons, to monopolize any part of the trade
or commerce among the several States, or with foreign nations,
shall be deemed guilty of a felony." 15 U. S. C. MDRV 2.


Note 2:

The monetary damages in this case were assessed entirely against
COA, the District Court having ruled that the city was immunized
by the Local Government Antitrust Act of 1984, 98 Stat. 2750, as
amended, 15 U. S. C. 15 34-36, which exempts local governments
from paying damages for violations of the federal antitrust laws.
Although enacted in 1984, after the events at issue in this case,
the Act specifically provides that it may be applied
retroactively if "the defendant establishes and the court
determines, in light of all the circumstances . . . that it would
be inequitable not to apply this subsection to a pending case."
15 U. S. C. MDRV 35(b).  The District Court determined that it
would be, and the Court of Appeals refused to disturb that
judgment.  Respondent has not challenged that determination in
this Court, and we express no view on the matter.

Note 3:

S.C. Code MDRV 5-23-10 (1976) ("Building and zoning regulations
authorized") provides that "[f]or the purpose of promoting
health, safety, morals or the general welfare of the community,
the legislative body of cities and incorporated towns may by
ordinance regulate and restrict the height, number of stories and
size of buildings and other structures."

S.C. Code MDRV 5-23-20 (1976) ("Division of municipality into
districts") provides that "[f]or any or all of such purposes the
local legislative body may divide the municipality into districts
of such number, shape and area as may be deemed best suited to
carry out the purposes of this article.  Within such districts it
may regulate and restrict the erection, construction,
reconstruction, alteration, repair or use of buildings,
structures or land."

S.C. Code MDRV 6-7-710 (1976) ("Grant of power for zoning")
provides that "[f]or the purposes of guiding development in
accordance with existing and future needs and in order to
protect, promote and improve the public health, safety, morals,
convenience, order, appearance, prosperity, and general welfare,
the governing authorities of municipalities and counties may, in
accordance with the conditions and procedures specified in this
chapter, regulate the location, height, bulk, number of stories
and size of buildings and other structures. . . .  The
regulations shall . . . be designed to lessen congestion in the
streets; to secure safety from fire, panic, and other dangers, to
promote the public health and the general welfare, to provide
adequate light and air; to prevent the overcrowding of land; to
avoid undue concentration of population; to protect scenic areas;
to facilitate the adequate provision of transportation, water,
sewage, schools, parks, and other public requirements."

Note 4:

The dissent contends that, in order successfully to delegate its
Parker immunity to a municipality, a State must expressly
authorize the municipality to engage (1) in specifically
"economic regulation," post, at 4, (2) of a specific industry,
post at 7.  These dual specificities are without support in our
precedents, for the good reason that they defy rational
implementation.

If, by authority to engage in specifically "economic" regulation,
the dissent means authority specifically to regulate competition,
we squarely rejected that in Hallie, as discussed in text.
Seemingly, however, the dissent means only that the State
authorization must specify that sort of regulation whereunder
"decisions about prices and output are not made by individual
firms, but rather by a public body." Post, at 4.  But why is not
the restriction of billboards in a city a restriction on the
"output" of the local billboard industry?  It assuredly is -- and
that is indeed the very gravamen of Omni's complaint.  It seems
to us that the dissent's concession that "it is often difficult
to differentiate economic regulation from municipal regulation of
health, safety, and welfare," post, at 9, is a gross
understatement.  Loose talk about a "regulated industry" may
suffice for what the dissent calls "antitrust parlance," post, at
4, but it is not a definition upon which the criminal liability
of public officials ought to depend.

Under the dissent's second requirement for a valid delegation of
Parker immunity -- that the authorization to regulate pertain to
a specific industry -- the problem with the South Carolina
statute is that it used the generic term "structures," instead of
conferring its regulatory authority industry-by-industry
(presumably "billboards," "movie houses," "mobile homes," "TV
antennas," and every other conceivable object of zoning
regulation that can be the subject of a relevant "market" for
purposes of antitrust analysis).  To describe this is to refute
it.  Our precedents not only fail to suggest but positively
reject such an approach.  "The municipality need not `be able to
point to a specific, detailed legislative authorization' in order
to assert a successful Parker defense to an antitrust suit."
Hallie, 471 U. S., at 39 (quoting Lafayette, 435 U. S., at 415).

Note 5:

The dissent is confident that a jury composed of citizens of the
vicinage will be able to tell the difference between "independent
municipal action and action taken for the sole purpose of
carrying out an anticompetitive agreement for the private party."
Post, at 12.  No doubt.  But those are merely the polar extremes,
which like the geographic poles will rarely be seen by jurors of
the vicinage.  Ordinarily the allegation will merely be (and the
dissent says this is enough) that the municipal action was not
prompted "exclusively by a concern for the general public
interest," post, at 3 (emphasis added).