To what extent should a court risk chilling the right to petition the government by allowing evidence of unpopular petitioning to prove the violation of customary international law? In two recent lower court cases, plaintiffs alleging human rights abuses brought suit in federal court under the Alien Tort Statute (“ATS”) based on petitioning activity, using such activity to show the connection to U.S. territory required for an ATS claim to go forward.
This Essay argues that courts should not allow the use of evidence of First Amendment-protected petitioning to support a claim for which the ATS provides jurisdiction. Courts can accomplish this shift by extending the Noerr-Pennington doctrine, originally developed in antitrust law. Despite the potential to restrict a remedy for serious human rights abuses, this proposed doctrinal shift will safeguard constitutionally protected activity, keep faith with the Supreme Court’s command that the scope of ATS claims be kept narrow, and help police the Supreme Court’s recent announcement that the ATS doesn’t give rise to liability for extraterritorial conduct.