This educational guide is based on the linked primary sources. It is not a Court publication, is not affiliated with the Court, and is not legal advice.
In brief
Overview
According to Maurice Baskin, petitioner BE&K Construction asks the Court to hold that the First Amendment protects objectively based lawsuits from being declared unlawful by the National Labor Relations Board.
Background and question before the Court
According to Chief Justice, the Court asked how to describe the test applied by the Board.
According to Justice, justices questioned why the issue has been in doubt for most of the past 20‑year period.
A justice asked whether the board’s definition of an unmeritorious lawsuit is simply that the plaintiff does not obtain what the plaintiff wants.
According to Justice, another justice inquired whether Noerr‑Pennington lacks a constitutional underpinning.
What each side argues
Petitioner (BE&K Construction Company)
According to Maurice Baskin, the petitioner argues that the First Amendment protects objectively based lawsuits from being declared unlawful by the NLRB.
According to Maurice Baskin, the petitioner contends that the case raises both constitutional and statutory issues.
According to Mr. Baskin, the petitioner asserts that stare decisis is a form of deference that applies to the Court’s own opinions, and that the Court must defer to itself.
Respondent (National Labor Relations Board)
According to Mr. Wallace, the respondent argues that under the National Labor Relations Act, the Board—not the courts—has the responsibility for ruling on unfair labor practices.
According to Mr. Wallace, the respondent points out that Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in exercising their concerted activity rights.
What happened at oral argument
According to Chief Justice, justice: How do you describe the test applied by the board?
Justice: I don't understand that. Why do you say it's been in doubt for most of the 20‑year period?
According to Justice, justice: In every 8(a)(1) case, the retaliatory motive is found by the board. That's part of the statutory proceeding, isn't it?
According to Justice, justice: Is the board's definition of an unmeritorious lawsuit simply one where the plaintiff does not get what the plaintiff wants?
According to Justice, justice: In other words, Noerr‑Pennington doesn't have a constitutional underpinning.
What the Court decided
Why it matters
Terms to know
No glossary terms are available for this guide.
Primary sources
Read the source materials on the official site or open the immutable repository copy used for this guide.
- dc481a129d3b7e582d5c-r1-ae29edaf5b4967a1.pdforal argument transcript
Guide generated September 19, 2026. Automated validation accepted this version.