TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Wednesday, May 4, 2022

Swan on Tortious Interference with Contract and Local Governments

Sarah Swan has posted to SSRN Running Interference:  Local Government, Tortious Interference with Contractual Relations, and the Constitutional Right to Petition.  The abstract provides:

Local governance is a participatory sport. Businesses bring preemption claims; constituents and other entities enforce municipal laws; and individuals and interest groups enthusiastically engage in significant grassroots petitioning and lobbying. The boundary between the governed and those doing the governing is at its most porous here, with constituents and leaders often moving in and out of such roles. Citizens can easily access leaders, and leaders show a high level of receptivity to resident requests.

This public participation in local governance is usually applauded. However, when constituents complain about a municipality's ongoing contract with a private party, they may find themselves in a very different position. Instead of being praised for their political participation, they might face a lawsuit for tortious interference with contractual relations. Tortious interference with contractual relations is an unruly tort at the best of times, but it becomes even more so in the context of local government, when what otherwise be commended as contributing to participatory democracy or exercising the constitutional right to petition is instead portrayed as unlawful interference. A recent case from a Florida appellate court affirming that an environmental activist owes $4.4 million in damages for disparaging a public-private partnership illustrates the tort's many problematic features and its poor fit within the context of local government.

Fortunately, the clash between tortious interference and the right to petition can be resolved, as numerous other courts have found, with a robust application of the Noerr-Pennington rule. Especially when combined with more capacious anti-SLAPP legislation and the new narrowed version of tortious interference set forth in the recent Restatement (Third)of Torts, the Noerr Pennington doctrine properly protects the rights of petition crucial to local government functioning, while still retaining a small sphere of potential liability for egregious wrongdoing.

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