                                                                      PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 18-3112
                                   _____________

        SIMON CAMPBELL; PENNSYLVANIANS FOR UNION REFORM,
                                     Appellants
                               v.

           PENNSYLVANIA SCHOOL BOARDS ASSOCIATION; MICHAEL
          FACCINETTO, SOLELY IN HIS INDIVIDUAL CAPACITY; DAVID
    HUTCHINSON; SOLELY IN HIS INDIVIDUAL CAPACITY; OTTO W. VOIT,
    III, SOLELY IN HIS INDIVIDUAL CAPACITY; KATHY SWOPE, SOLELY IN
      HER INDIVIDUAL CAPACITY; LAWRENCE FEINBERG, SOLELY IN HIS
   INDIVIDUAL CAPACITY; ERIC WOLFGANG, SOLELY IN HIS INDIVIDUAL
     CAPACITY; DANIEL O'KEEFE, SOLELY IN HIS INDIVIDUAL CAPACITY;
    DARRYL SCHAEFER, SOLELY IN HIS INDIVIDUAL CAPACITY; THOMAS
      KEREK, SOLELY IN HIS INDIVIDUAL CAPACITY; AND LYNN FOLTZ,
                   SOLELY IN HER INDIVIDUAL CAPACITY
                              ______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         (District Court No. 2-18-cv-00892)
                       District Judge: Honorable Jan. E. Dubois
                                   ______________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                   May 20, 2019
                                 ______________

            Before: McKEE, SHWARTZ, and FUENTES, Circuit Judges.

                               (Filed: August 27, 2020)

Jacob C. Cohn
Eric C. Rosenberg
Ilan Rosenberg
Joshua Slavitt
Gordon Rees Scully Mansukhani
Three Logan Square
1717 Arch Street, Suite 610
Philadelphia, PA 19103

Mary Catherine Roper
American Civil Liberties Union of Pennsylvania
P.O. Box 60173
Philadelphia, PA 19102

Counsel for Appellants

David W. Brown
Craig D. Ginsburg
Michael I. Levin
Levin Legal Group
1800 Byberry Road
1301 Masons Mill Business Park
Huntingdon Valley, PA 19006

Counsel for Appellees

                              _______________________

                                      OPINION
                               ______________________

             McKEE, Circuit Judge.

                     In this dispute over dueling claims to Noerr-Pennington
             immunity, Simon Campbell and his organization,
             Pennsylvanians for Union Reform (collectively, “Campbell”),
             allege that the Pennsylvania School Boards Association and its
             Board Members (collectively, “PSBA”) violated Campbell’s
             civil rights by suing him in state court (the “State Suit”). That
             complaint asserted various tort claims against Campbell based
             on his persistent use of Pennsylvania’s Right to Know laws.
             According to PSBA’s State Suit allegations, Campbell’s
             relentless pursuit of information about PSBA, and his related
             conduct, was an abuse of the Right to Know statute intended
             solely to harass PSBA. At that time, Campbell defended
             against the State Suit by arguing his conduct was

                                            2
constitutionally   protected   under    the   Noerr-Pennington
doctrine.

       Now Campbell sues, seeking damages under 42 U.S.C.
§ 1983, alleging that the State Suit was intended as retaliation.
PSBA defends against Campbell’s civil rights claims by itself
invoking Noerr-Pennington. It argues the First Amendment
shields its right to sue in state court. The District Court agreed
with PSBA and granted its motion for summary judgment.

       We conclude that the District Court erred in requiring a
heighted burden of proof on PSBA’s motives in bringing its
tort claims in state court. However, because we find that
Campbell’s civil rights claim would fail under any standard of
proof, we agree that PSBA is entitled to judgment as a matter
of law and will therefore affirm. 1

                                I.

        Simon Campbell is an active and persistent user of the
Pennsylvania Right to Know Law (“RTKL”), which permits
citizens to obtain certain information from the state
government and its agencies. 2 In recent years, he has submitted
hundreds of requests to public school agencies across the
Commonwealth. Many of the recipients are members of the
PSBA. The PSBA is a non-profit association created by
Pennsylvania’s school districts “to further the interests of
public education and to provide assistance to public school
entities.” 3 A majority of school boards in the state are
members, and the organization’s roots stretch back to the 19th
century. 4

      Campbell founded Pennsylvanians for Union Reform
(“PFUR”) in 2013 to “eliminate compulsory unionism in
Pennsylvania while promoting transparency and efficiency in


1
  “We may affirm a district court for any reason supported by
the record.” Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir.
2011) (citation omitted).
2
  65 Pa. Cons. Stat. §§ 67.101 et seq. (2008).
3
  App. at 1576.
4
  Id. at 1589.
                                3
government for taxpayers.” 5 In pursuing those goals, PFUR
has energetically utilized the Commonwealth’s RTKL to
obtain records from PSBA’s constituent school districts and
other government entities. In the process, it has litigated cases
that have expanded the reach of that law. 6

        In March 2017, PFUR turned its attention to the PSBA
by sending RTKL requests to “most, if not all, public school
agencies” in Pennsylvania. 7 These requests sought contact
information for district employees and union representatives.
PSBA’s attorney, Emily Leader, responded by advising
member school districts that they were required to release
publicly available information, but they did not have to provide
PFUR with private data such as personal email addresses. 8
PSBA later advised school districts that, although they were
legally required to collate the requested information, they
could simply make the results “available for pickup at the
district offices,” rather than forwarding it to PFUR. It also
presciently informed its members that this relatively
uncooperative approach might lead to litigation. 9

        When Campbell received copies of the PSBA’s legal
guidance, he established a page on the PFUR website entitled
“PSBA Horror” with a mocking photograph of PSBA
Executive Director Nathan Mains. The photograph included a
word bubble which read: “Taxpayers, thanks for the $226,000
and the public pension! Now * * * * off, and drive to the school
district if you want public records. And don't forget your check
book.” 10 Campbell had also requested PSBA’s tax returns.
When Michael Levin, PSBA’s outside counsel, provided a link
to those returns, Campbell caustically told Levin to “stay out
of my business whenever I’m approaching one of your public


5
  Id. at 1587.
6
  See, e.g., Reese v. Pennsylvanians for Union Reform, 173
A.3d 1143 (Pa. 2017); Dep’t of Human Servs. v.
Pennsylvanians for Union Reform, Inc., 154 A.3d 431 (Pa.
Commw. Ct. 2017) (en banc).
7
  App. at 1632.
8
  Id. at 94-99.
9
  Id. at 109-113.
10
   Id. at 1546.
                               4
entity clients.” Levin responded by threatening to sue
Campbell for defamation. 11

         Campbell soon poured gasoline on this burgeoning feud
by submitting a second wave of RTKL requests in May.
Approximately 600 school boards across Pennsylvania
received an identical 17-page request asking their respective
districts to provide 27 different types of documentation
regarding their relationship with PSBA. 12 More than 240 of the
school districts turned to PSBA for assistance in assembling
that information. This overwhelming stream of requests led
PSBA to adopt a policy of providing what it viewed as the
minimum legally required response. 13 Levin also sent
Campbell a demand that he take down the picture of Executive
Director Mains. Campbell complied, but replaced it with an
illustration of PSBA alongside a message similar to the original
text. 14 Campbell also established a new website with his
personal funds, www.psbahorror.com. He filled it with his
anti-PSBA messaging through writing and videos he posted
online. 15

       Nathan Mains eventually told PSBA’s legal team that
he wanted to sue Campbell for damaging PSBA’s reputation. 16
In June 2017, the PSBA Board voted unanimously to sue
Campbell and the resulting state tort action was filed the
following month alleging defamation, tortious interference
with contractual relations, and abuse of process. 17

       PSBA’s then-president testified that the State Suit was
filed to “stop” PFUR from “harassing districts with . . .
unreasonable request[s] [and] to stop defaming members of the
organization.” 18 Mains announced the suit in an email to all
PSBA members. 19 Later that year, Campbell and PFUR

11
   Id. at 1399-1401.
12
   Id. at 124-26.
13
   Id. at 1574, 1558.
14
   Id. at 1403.
15
   Id. at 1418, 1684.
16
   Id. at 1684.
17
   Id. at 780-831.
18
   Id. at 1825.
19
   Id. at 144.
                               5
removed all of the challenged content from their websites and
stopped sending RTKL requests. 20

        In February 2018, as the State Suit proceeded, Campbell
filed this action against PSBA and ten members of its board.
His complaint alleges that PSBA’s State Suit was motivated by
an improper desire to retaliate against him for proper RTKL
requests in violation of his First Amendment rights. Campbell
seeks injunctive relief, as well as compensatory and punitive
damages. 21

        PSBA moved for summary judgment. Its motion
advanced multiple arguments, but we must consider only the
claim that Noerr-Pennington doctrine shields PSBA from
liability for filing the State Suit. The District Court agreed with
this position and held that both Campbell’s RTKL requests and
PSBA’s subsequent state tort claims were protected under
Noerr-Pennington. 22 The Court found that PSBA’s State Suit
claims were objectively baseless. As we discuss later, this
satisfied the first requirement for lifting Noerr-Pennington
immunity. However, the District Court held that there was not
clear and convincing evidence that the suit was “subjectively
baseless.” 23 Accordingly, the Court granted PSBA’s motion
for summary judgment and dismissed Campbell’s civil rights
claim without reaching the remaining contentions. This appeal
followed. 24

                                II.

      We review this summary judgment decision de novo,
mindful of the special care called for by these issues of “free



20
   Id. at 1984.
21
   Id. at 56.
22
   Campbell v. Penn. Sch. Bds. Assoc., 336 F. Supp. 3d 482,
494 (E.D. Pa. 2018).
23
   Id. at 504.
24
   Because this is a civil rights case arising under the United
States Constitution, the district court had jurisdiction under 28
U.S.C. § 1331 and 28 U.S.C. § 1343(a). On appeal, we have
jurisdiction under 28 U.S.C. § 1291.
                                6
expression.” 25 As we noted at the outset, both sides seek shelter
under Noerr-Pennington immunity. That doctrine shields
constitutionally protected conduct from civil liability, absent
certain exceptions. 26 Specifically, the doctrine’s protective
umbrella does not extend to “sham” suits, which seek to take
advantage “of governmental process—as opposed to the
outcome of that process—as an anticompetitive weapon.” 27
The parties’ competing claims to Noerr-Pennington protection
can more easily be resolved if we first examine the origins and
history of the doctrine.
                     A) Origins of Noerr-Pennington
        “The Noerr–Pennington doctrine takes its name from a
pair of Supreme Court cases that placed a First Amendment
limitation on the reach of the Sherman Act.” 28 In Noerr,29
railroad companies, fearful of the growing power of the
trucking industry, sought to use their considerable resources to
encourage adoption of laws and regulations that would
encumber truckers. The truckers responded by suing the
railroad companies for violation of the Sherman and Clayton
Anti-Trust Acts. 30 The case reached the Supreme Court, which
held that the railroads’ First Amendment rights to petition the
government must override statutory limitations on
anticompetitive behavior. The Court explained: “The right of
petition is one of the freedoms protected by the Bill of Rights,
and we cannot, of course, lightly impute to Congress an intent
to invade these freedoms.” 31 The Court soon extended this
protection to efforts to influence executive action in

25
   Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,
499 (1984) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254,
285 (1964)).
26
   Prof'l Real Estate Invs., Inc. v. Columbia Pictures Indus.
(PREI), 508 U.S. 49, 56 (1993).
27
   Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119, 123
(3d Cir. 1999) (quoting PREI, 508 U.S. at 61 (emphasis in
original)).
28
   Hanover 3201 Realty, LLC v. Vill. Supermarkets, 806 F.3d
162, 178 (3d Cir. 2015).
29
   E.R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365
U.S. 127 (1961).
30
   Id. at 129; see 15 U.S.C. § 1, and 15 U.S.C. § 15,
respectively.
31
   Noerr, 365 U.S. at 138.
                                7
Pennington. 32 There, the Court held that “efforts to influence
public officials do not violate the antitrust laws even though
intended to eliminate competition. Such conduct is not illegal .
. .” 33 The Court concluded that efforts to influence government
action were protected from liability even if driven by an illicit
intent. 34
         There was, however, one conceivable exception. In
Noerr, Justice Black had observed in dicta that an ostensible
petition which in reality “is a mere sham to cover what is
actually nothing more than an attempt to interfere directly with
the business relationships of a competitor” would not deserve
protection. 35 The Court subsequently established a carve-out
for such behavior. Noerr-Pennington protection does not
extend to an objectively “[b]aseless suit [that] conceals an
attempt to interfere directly with a competitor's business
relationships, through the use [of] the governmental process—
as opposed to the outcome of that process—as an
anticompetitive weapon.” 36 This is referred to as the “sham”
exception to Noerr-Pennington immunity.
                     B) The Sham Exception
         “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.” 37 The difficulty, of course, comes in
evaluating intent.
         We employ a two-part test to determine if the sham
exception applies. First, the suit must be objectively baseless.
“If an objective litigant could conclude that the suit is
reasonably calculated to elicit a favorable outcome, the suit is
immunized under Noerr . . . .” 38 Whereas “sham litigation
must constitute the pursuit of claims so baseless that no
reasonable litigant could realistically expect to secure

32
   United Mine Workers of Am. v. Pennington, 381 U.S. 657
(1965).
33
   Id. at 670.
34
   Id.
35
   Noerr, 365 U.S. at 144.
36
   PREI, 508 U.S at 50 (third alteration in original) (emphasis,
internal quotation marks, and citations omitted).
37
   City of Columbia v. Omni Outdoor Advert., Inc., 499 U.S.
365, 380 (1991).
38
   PREI, 508 U.S. at 60.
                               8
favorable relief.” 39 The Supreme Court analogizes this inquiry
to the common law tort of wrongful civil proceedings, which
requires proof that the defendant (the plaintiff in the underlying
action) lacked probable cause to bring that suit. 40 Mere ill
intent does not suffice: “a showing of malice alone will neither
entitle the wrongful civil proceedings plaintiff to prevail nor
permit the factfinder to infer the absence of probable cause.” 41

        Thus, if probable cause exists, our inquiry is at an end.
However, the fact that a suit may lack any objective merit is
not itself determinative. We must then inquire into the
plaintiff’s subjective motivations for bringing suit. 42 We take
this additional step to ascertain whether the actual motivation
is to dragoon the “governmental process” itself into use as a
competitive tool. 43 In the economic realm, this often means
examining “evidence of the suit’s economic viability.” 44 The
difficulty of proving subjective motivation obviously “places a
heavy thumb on the scale” in favor of granting protection. 45
Only if these objective and subjective tests are satisfied is
Noerr-Pennington protection lost and the suit permitted to
proceed.

The doctrine has now evolved well beyond its original antitrust
confines. 46 For instance, it shields constitutionally protected



39
   Id. at 62.
40
   Id. at 63 (citing Stewart v. Sonneborn, 98 U.S. 187, 194
(1879)); see also THOMAS M. COOLEY, A TREATISE ON THE
LAW OF TORTS OR THE WRONGS WHICH ARISE INDEPENDENT
OF CONTRACT 182 (1879) (“[T]here must be such grounds of
belief as would influence the mind of a reasonable person,
and nothing short of this could justify a serious and formal
charge against another.”).
41
   PREI, 508 U.S. at 63.
42
   Id. at 60-61.
43
   499 U.S. at 380 (emphasis omitted).
44
   PREI, 508 U.S. at 61 (emphasis in original).
45
   Hanover 3201 Realty, LLC, 806 F.3d at 180.
46
   See Barnes Found. v. Township of Lower Merion, 242 F.3d
151, 159-60 (3d Cir. 2001) (summarizing the growth of the
doctrine into new fields of law).
                                9
protesters from civil suits. 47 It has also been applied by this
Court and other courts of appeals to bar § 1983 claims by state
actors based upon constitutionally protected conduct. 48 That is
the situation here.
                     C) Noerr-Pennington for State Actors
        Nevertheless, Campbell urges a new rule. He suggests
that state actors deserve less protection given their wide
resources for combating falsities and special positions of
public trust. He cites Gertz v Robert Welch, Inc. to support such
a rule. 49 There, the Supreme Court limited the reach of its
“actual malice” libel standard to public figures, making it
easier for private individuals to seek restitution. 50 The Court’s
analysis was influenced by the advantages public officials have
in responding to libelous remarks, and by the “necessary
consequences” of choosing to enter the public arena. 51

       It is true that in other contexts, restrictions on
government speech have been subjected to different degrees of
scrutiny under the First Amendment than the speech of private
citizens. 52 That variability is compounded here because there

47
   NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907-08
(1982).
48
   See Herr v. Pequea Township, 274 F.3d 109, 116-17 (3d
Cir. 2001) (applying this rule, and summarizing similar
holding across different circuits (citing Video Int’l Prod., Inc.
v. Warner-Amex Cable Commc’ns., Inc., 858 F.2d 1075, 1084
(5th Cir. 1988))).
49
   Appellant’s Br. at 31 (citing Gertz v. Robert Welch, Inc.,
418 U.S. 323, 344-45 (1974)).
50
   Gertz, 418 U.S. at 345.
51
   Id. at 344.
52
   See, e.g., Pleasant Grove City v. Summum, 555 U.S. 460,
467-68 (2009) (“[I]t is not easy to imagine how government
could function if it lacked this freedom. ‘If every citizen were
to have a right to insist that no one paid by public funds
express a view with which he disagreed, debate over issues of
great concern to the public would be limited to those in the
private sector, and the process of government as we know it
radically transformed.’” (quoting Keller v. State Bar of Cal.,
496 U.S. 1, 12–13 (1990))); Garcetti v. Ceballos, 547 U.S.
410, 424 (2006) (“When a public employee speaks pursuant

                               10
is some confusion over Noerr-Pennington’s applicability to
state actors. The Court of Appeals for the Fifth Circuit, for
instance, found it axiomatic that “Noerr-Pennington protection
does not apply to the government, of course, since it is
impossible for the government to petition itself within the
meaning of the first amendment [sic].” 53

        However, we have already declined to adopt that view.
In Mariana v. Fisher, we stated: “[w]e know of no Supreme
Court or federal appellate case holding that Noerr-Pennington
cannot apply to government actors . . .”. 54 Indeed, it is difficult
to envision how such a rule would operate. Stripping state
actors of protection would expose them to an unreasonably
increased risk of interference. It would uniformly tilt the
playing field against them in arenas far removed from the Gertz
context. That public figures hold enhanced capabilities in
responding to libel claims was crucial to the holding there. We
are unconvinced that government defendants seeking Noerr-
Pennington immunity receive similar benefits by virtue of their
position. Moreover, the Supreme Court has been careful to
extend rights to state actors in many fields, especially when
they are acting as market participants. 55 In some cases, the
petitions of state actors will be “nearly as vital” as those of
private individuals, given the representative role that public
institutions play in democratic life. 56 We therefore decline to
adopt Campbell’s suggestion that PSBA is ineligible for
Noerr-Pennington protection as a universal rule.

      This does not, however, suggest that that Noerr-
Pennington must necessarily be applied formulaically across

to employment responsibilities . . . there is no relevant
analogue to speech by citizens who are not government
employees.”).
53
   Video Int’l Prod., Inc., 858 F.2d at 1086.
54
   338 F.3d 189, 200 (3d Cir. 2003); see also, Herr, 274 F.3d
at 119 (predicting the Supreme Court would permit municipal
governments to receive Noerr-Pennington protection).
55
   See Dep’t. of Revenue of Ky. v. Davis, 553 U.S. 328, 339
(2008) (describing the states freely entering the marketplace
as level participants within the constitutional scheme).
56
   Manistee Town Center v. City of Glendale, 227 F.3d 1090,
1093 (9th Cir. 2000).
                                11
every field of law. Indeed, some courts confine the doctrine to
the antitrust realm, while recognizing a broader immunity that
arises from the Petition Clause itself. 57
                    D) Standard of Proof
        A different approach outside of antitrust makes
particular sense when we consider the necessary standard of
proof. A standard of proof is more than a legal barrier. It is “the
degree of confidence our society thinks [a fact finder] should
have in the correctness of factual conclusions for a particular
type of adjudication.” 58 This standard may be allocated by
Congress, or dictated by the Constitution, but where both are
silent, “we must prescribe one.” 59

        In In re Wellbutrin XL Antitrust Litigation, we
explained that the Supreme Court has “indicated that the
plaintiff in an antitrust suit has the burden of proving . . . ‘both
the objective and subjective components of a sham’” when
applying Noerr-Pennington. 60 We also explained that, in
doing so, the Supreme Court “was silent,” as to whether that
burden had to be satisfied by “clear and convincing evidence,
or [by a] preponderance of the evidence.” 61 However, since our
analysis in Wellbutrin did not require us to decide which
standard of proof was required to avoid Noerr-Pennington




57
   CSMN Invs., LLC v. Cordillera Metro. Dist., 956 F.3d
1276, 1283 (10th Cir. 2020) (“In this circuit, this immunity
extends beyond antitrust situations. But we refer to it as
Petition Clause immunity, reserving the name, Noerr-
Pennington, for antitrust cases.” (citation omitted)).
58
   In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J.,
concurring); see also id. at 371 (“Because the standard of
proof affects the comparative frequency of . . . erroneous
outcomes, the choice of the standard to be applied in a
particular kind of litigation should, in a rational world, reflect
an assessment of the comparative social disutility of each.”).
59
   Herman & MacLean v. Huddleston, 459 U.S. 375, 389
(1983).
60
   868 F.3d 132, 148 n.18 (3d Cir. 2017) (internal quotation
marks omitted) (quoting PREI, 508 U.S. at 61).
61
   Id.
                                12
immunity, we did not answer that question. 62 Here, the District
Court imposed the higher standard and required Campbell to
prove the subjective component by clear and convincing
evidence.

        As a general rule, the Supreme Court instructs that the
heightened clear and convincing standard is necessary “where
particularly important individual interests or rights are at
stake.” 63 Nevertheless, “imposition of even severe civil
sanctions that do not implicate such interests has been
permitted after proof by a preponderance of the evidence.” 64
Since Noerr-Pennington cases will necessarily involve
constitutional rights, a clear and convincing standard initially
seems appropriate. Indeed, many courts, including other circuit
courts of appeals, have required that level of proof in patent
disputes involving Noerr-Pennington immunity. 65



62
   Id. (“Because our decision in this case does not hinge on
the standard of proof, we leave that question for another
day.”).
63
   Herman MacLean, 459 U.S. at 389.
64
   Id. at 389–90.
65
   See, e.g., Tyco Healthcare Grp. LP v. Mut. Pharm. Co.,
Inc., 762 F.3d 1338, 1345 (Fed. Cir. 2014) (“[T]he burden [is]
on the patent challenger to prove invalidity by clear and
convincing evidence . . .”); Intell. Ventures I LLC v. Capital
One Fin. Corp., 280 F. Supp. 3d 691, 708 (D. Md. 2017)
(finding that the “exception to Noerr–Pennington immunity is
narrow, ‘[g]iven the presumption of patent validity and the
burden on the patent challenger to prove invalidity by clear
and convincing evidence.’” (alteration in original) (quoting
Tyco Healthcare Grp. LP, 762 F.3d at 1343)) aff'd, 937 F.3d
1359 (Fed. Cir. 2019); Teva Pharm. USA, Inc. v. Abbott
Labs., 580 F. Supp. 2d 345, 362 (D. Del. 2008) (“To invoke
the ‘sham’ exception, a defendant must prove, by clear and
convincing evidence, that a plaintiff's activities were not
really efforts to vindicate its rights in court.”); In re Relafen
Antitrust Litig., 346 F. Supp. 2d 349, 360 (D. Mass. 2004)
(observing that under patent law, “[p]laintiffs must establish
the first, objective prong of the sham definition by clear and
convincing evidence.”).
                               13
        In the past, the Court of Appeals for the Federal Circuit
has required clear and convincing proof in patent disputes. 66
But patents raise a special set of concerns. Because of the
innovation and commercial viability that they encourage,
courts have afforded suits to enforce patents a presumption of
good faith. 67 It naturally follows that a higher standard of proof
is needed to overcome that presumption. The Court of Appeals
for the Ninth Circuit explains, “[t]he road to the Patent Office
is so tortuous and patent litigation is usually so complex,” that
“no less than [c]lear, convincing proof of intentional fraud
involving affirmative dishonesty” would suffice in patent
cases. 68

        This case by contrast, arises in the § 1983 realm, and it
necessarily reflects a different tension. A balance that makes
sense in the patent or antitrust context holds less weight for
civil rights litigants, and vice-versa. This is because antitrust
disputes must generally strike a balance between First
Amendment rights and statutory restrictions on
anticompetitive behavior. Justice Black was unwilling in such
scenarios to “lightly impute to Congress an intent to invade”
the First Amendment right to petition. 69 Here, by contrast,
PSBA and Campbell both seek to vindicate their constitutional
right to petition. Thus, we cannot simply transplant the
standard of proof used to balance a statutory and a
constitutional right in order to resolve this clash of matching
constitutional ones. We are also reluctant to require a
heightened standard of proof here since patent litigation
involves a presumption of good faith. 70 No such presumption
arises here. 71 Instead, we have a face-off between two identical

66
   See, e.g., Tyco Healthcare Grp. LP, 762 F.3d at 1345; C.R.
Bard, Inc. v. M3 Sys., Inc., 157 F.3d 1340, 1369 (Fed. Cir.
1998); Carroll Touch, Inc. v. Electro Mech. Sys., Inc., 15 F.3d
1573, 1584 (Fed. Cir. 1993).
67
   Handgards, Inc. v. Ethicon, Inc. (Handgards I), 601 F.2d
986, 996 (9th Cir. 1979).
68
   Id.
69
   Noerr, 365 U.S. at 138.
70
   Handgards I, 601 F.2d at 996.
71
   The Court of Appeals for the Second Circuit found such
logic persuasive even within the antitrust realm, because

                                14
interests. The collision produces “an undeniable tension.” 72 It
would be “intolerable [if] one constitutional right should have
to be surrendered [or restricted] in order to assert another.” 73
        A heightened standard fails to account for those
fundamental constitutional rights, which here are advanced by
both sides. As already noted, the District Court required
Campbell to establish his First Amendment claim here by clear
and convincing evidence. The patent context’s presumption of
good faith formed the backdrop for that decision. The Court’s
analysis rested in large part upon FTC v. AbbVie, Inc., which
involved an FTC action against a series of sham patent
lawsuits. 74 The district court in AbbVie relied heavily on the
fact that the Court of Appeals for the Federal Circuit has
adopted a clear and convincing standard of proof in patent
litigation. 75
          Instead of relying on patent law, we look to the relevant
standard of proof for the constitutional claims being brought
here. In Crawford-El v. Britton, the Supreme Court explicitly
rejected efforts to impose a higher standard of proof on § 1983
litigants. 76 There, a deeply divided en banc Court of Appeals
for the D.C. Circuit had imposed a heightened clear and
convincing standard of proof for adjudicating a claim under §
1983. The court reasoned: “If a heightened standard of proof—
clear and convincing evidence—was a sound remedy in the
area of public figure defamation, we think it is equally so in the
cognate area of officer damage liability for constitutional torts
. . .” 77


Noerr-Pennington itself represents a defensive mechanism for
defendants: “by requiring a plaintiff to prove that a
defendant's conduct was a sham, the Supreme Court has
already struck a rough balance between the competing First
Amendment and antitrust interests.” Litton Sys., Inc. v. Am.
Tel. & Tel. Co., 700 F.2d 785, 813-14 (2d Cir. 1983).
72
   Simmons v. United States, 390 U.S. 377, 394 (1968).
73
   Id.
74
   FTC v. AbbVie Inc., 329 F. Supp. 3d 98, 106 (E.D. Pa.
2018).
75
   See, e.g., Tyco Healthcare Grp. LP, 762 F.3d at 1345.
76
   523 U.S. 574, 595-96 (1998).
77
   Crawford-El v. Britton, 93 F.3d 813, 823 (D.C. Cir. 1996).
                                15
        The Supreme Court disagreed. It rejected an across-the-
board elevation of the standard of proof for civil rights claims.
The Court cautioned that a higher standard of proof “carries a
high cost” for “plaintiffs with bona fide constitutional
claims.” 78 The Court explained that Congress has shown itself
perfectly capable of increasing the burden of proof in specific
areas (for prison litigation, for example). 79 “Neither the text of
§ 1983 or any other federal statute, nor the Federal Rules of
Civil Procedure, provide any support for imposing the clear
and convincing burden of proof on plaintiffs either at the
summary judgment stage or in the trial itself.” 80
                     E) The § 1983 Context
        In 1871, Congress created what is now 42 U.S.C. § 1983
as a tool to combat racial discrimination. 81 Today it is a
bulwark of liberty, permitting citizens to seek relief when the
government, or its agents, wrong them. 82 However, such
plaintiffs must surmount several intentionally erected hurdles.
“To establish any claim under § 1983, a plaintiff must
demonstrate that (1) the conduct at issue was committed by a
person acting under the color of state law, and (2) the
complained-of conduct deprived the plaintiff of rights secured
under the Constitution or federal law.” 83 These limitations
have been carefully adjusted in recent decades. 84 For instance,

78
   Crawford-El, 523 U.S. at 595-96.
79
   Id. at 596-97.
80
   Id. at 594; see also Herman & McLean v. Huddleston, 459
U.S. 375, 390 (1983) (permitting a “preponderance of the
evidence” standard for claims arising under federal “civil
rights laws”).
81
   See Wilson v. Garcia, 471 U.S. 261, 276-77 (1985) (“By
providing a remedy for the violation of constitutional rights,
Congress hoped to restore peace and justice . . . through the
subtle power of civil enforcement.”).
82
   Id. at 278 (finding § 1983’s protections “are contained in
the Bill of Rights and lie at the base of all our civil and
political institutions” (internal quotation marks omitted)).
83
   Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 n.6
(3d Cir. 2019).
84
   See, e.g., Monell v. Dep’t. of Soc. Servs., 436 U.S. 658,
694-95 (1978) (titrating the first requirement); Davidson v.
Cannon, 474 U.S. 344, 347–48 (1986) (expanding the
second).
                                16
municipal defendants receive the benefit of heightened fault
standards, designed to avoid “open[ing] municipalities to
unprecedented liability under § 1983.” 85 Plaintiffs must
contend with an individual state actor’s possible entitlement to
different forms of immunity. 86 In addition, only certain
remedies are allowed. 87

       A potential § 1983 litigant must therefore navigate an
obstacle course erected to protect against a flood of grievances
that could deter government actors from their duties. 88 Erecting
yet another obstacle by requiring proof by clear and convincing
evidence would threaten that careful legislative and judicial
balance of competing priorities. The Supreme Court reached
precisely this conclusion in Crawford-El. There, the Court
reasoned that a heightened standard of proof in civil rights
disputes, “lacks any common-law pedigree and alters the cause
of action itself in a way that undermines the very purpose of §
1983.” 89




85
   City of Canton v. Harris, 489 U.S. 378, 391 (1989).
86
   Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)
(“Obviously, state officials literally are persons. But a suit
against a state official in his or her official capacity is not a
suit against the official but rather is a suit against the official's
office.”).
87
   Compare Edelman v. Jordan, 415 U.S. 651, 675–77 (1974)
(affording sovereign immunity to § 1983 claims for
retrospective relief), with Hafer v. Melo, 502 U.S. 21, 31
(1991) (permitting suits against state officials in their
individual capacities).
88
   See Wyatt v. Cole, 504 U.S. 158, 167 (1992) (recognizing
the “balance between compensating those who have been
injured by official conduct and protecting government's
ability to perform its traditional functions”); Harlow v.
Fitzgerald, 457 U.S. 800, 816 (1982) (reflecting upon the
“attempted balancing of competing values” inherent to
inquiries into subjective intent).
89
   Crawford-El, 523 U.S. at 595.
                                 17
       Accordingly, we have repeatedly held preponderance of
the evidence to be the proper standard for § 1983 claims. 90 Our
model jury instructions so instruct the District Courts. 91 In
imposing this heightened standard of proof where both sides
sought to vindicate First Amendment rights, the District
Court’s approach fails to appreciate the distinction between
First Amendment rights and patent rights insofar as the Noerr-
Pennington doctrine is concerned. Because there is no
“[s]upport for imposing a clear and convincing burden of
proof” on a § 1983 claim, 92 proof by a preponderance of the
evidence remains the appropriate standard here.

                              III.

       The District Court carefully inquired into Campbell’s
claims and found they were not objectively baseless.
Accordingly, the Court held that Campbell was entitled to
Noerr-Pennington protection. The Court also reasoned that the
actions that gave rise to PSBA’s state tort claims were
obviously protected by the First Amendment, and PSBA’s suit




90
   See, e.g., Baloga, 927 F.3d at 752 (“To prevail on a First
Amendment retaliation claim under 42 U.S.C. § 1983 . . . the
government may avoid liability if it can show by a
preponderance of the evidence that it would have taken the
adverse action even in the absence of the protected conduct.”)
(internal quotation marks omitted); Goodwin v. Conway, 836
F.3d 321, 327 (3d Cir. 2016) (citing Wilson v. Russo, 212
F.3d 781, 786-87 (3d Cir. 2000)); Reichley v. Penn. Dep’t of
Agric., 427 F.3d 236, 244 (3d Cir. 2005) (“The plaintiffs have
the burden of establishing liability under § 1983 by a
preponderance of the evidence.”).
91
   Third Circuit Court of Appeals Model Civil Jury
Instruction 4.3 (2019) (“[Plaintiff] must prove both of the
following elements by a preponderance of the evidence . .
.”) (emphasis added). United States v. Petersen, 622 F.3d 196,
208 (3d Cir. 2010) (“We have a hard time concluding that the
use of our own model jury instruction can constitute error . . .
.”).
92
   Crawford-El, 523 U.S. at 594.
                              18
was therefore not objectively baseless. 93 Nevertheless, the
Court still afforded Noerr-Pennington immunity to the State
Suit because Campbell had not produced clear and convincing
evidence that PSBA’s state claims were “subjectively
baseless.”

       Our standard of review of that decision is de novo. 94 We
will accept for the purposes of this appeal the District Court’s
well-reasoned conclusion—drawing all inferences in
Campbell’s favor at summary judgment—that Campbell’s
RTKL related conduct was not baseless. Because the
underlying activity was constitutionally protected, 95 we also
accept the District Court’s conclusion that PSBA’s State Suit
is objectively baseless, as the First Amendment protected all of
Campbell’s alleged activities. Campbell’s activities here could
not reasonably be construed as defamatory given his
allegations and the plausible state actor status of PSBA. 96

93
   The parties disagree about whether the District Court
concluded that PSBA is a state actor. While that court
properly reserved judgment on the question, it did determine
that PSBA is at least a limited public figure and therefore had
to establish Campbell’s actual malice in the State Suit for it
not to have been objectively baseless. See U.S. Healthcare,
Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 938-39
(3d Cir. 1990) (discussing the factors relevant to classification
as a limited public figure).
94
   Viera v. Life Ins. Co. of N. Am., 642 F.3d 407, 413 (3d Cir.
2011) (“We review a district court's grant of summary
judgment de novo, applying the same standard the district
court applied.”).
95
   A fact that PSBA tacitly acknowledged by pleading “actual
malice” in both its initial and amended complaints in the State
Suit. App. 428, 699. Had it not been aware of its own public
status, this heightened standard would not have been
necessary for culpability.
96
   The District Court detailed how each of Campbell’s actions
against PSBA (including the insulting depiction of its
Executive Director, Nathan Mains, on a website entitled
“PSBA Horror”) had some factual basis, whether obtained
through RTKL responses or other sources. Further, Mains and
others at PSBA had constructive notice of their public status,
introducing a high bar for defamation claims to succeed.
                               19
      The dispositive question that remains is whether
PSBA’s State Suit was also subjectively aimed at interfering
with Campbell’s constitutionally protected conduct.

        We agree that Campbell cannot satisfy the subjective
prong under the clear and convincing standard. He has failed
to establish PSBA’s: (1) indifference to the outcome of the suit,
(2) insufficient potential recovery to justify bringing the State
Suit, or (3) that PSRB “decided to sue primarily for the benefit
of collateral injuries inflicted through the use of legal
process.” 97 Campbell’s evidence amounts to PSBA’s
statements, conduct, and choice of attorneys. This evidence
does not speak to whether PSBA intended the process itself,
rather than its outcome, to achieve its goals. This is not
enough. 98

      As we have explained, the District Court’s clear and
convincing standard imposed too high of a burden on
Campbell. We nevertheless will affirm the District Court’s
grant of summary judgment to PSBA because Campbell’s
evidence here is insufficient to strip PSBA of Noerr-
Pennington immunity even under the less onerous
preponderance standard.

                              IV.

        Under that lesser standard, Campbell’s evidence needed
to demonstrate by a preponderance of the evidence that PSBA
intended the State Suit as “use of governmental process—as
opposed to the outcome of that process” as a “weapon.” 99 We
consider the evidence he offers: first, the statements of PSBA
and its members before filing the suit, and second, the manner
in which PSBA pursued the suit.
                    A) PSBA’s statements
        Campbell argues strongly that PSBA’s own words
reveal its motivation in bringing the State Suit “was all about
protecting [PSBA’s] members” and making Campbell’s
alleged “harassment of school districts stop.” 100 He argues that

97
   PREI, 508 U.S. at 65.
98
   Noerr, 365 U.S. at 139.
99
   PREI, 508 U.S. at 50 (emphasis in original).
100
    App. at 1497, 1510-11.
                               20
PSBA was motivated to “tak[e] legal action on behalf of its
membership.” 101 He claims his incessant flood of RTKL
requests was causing difficulties for the targeted school
districts, and PSBA intended its suit as a mechanism to
terminate his RTKL requests. Campbell points to statements
from Nathan Mains that PSBA was developing “a significant
response” as proof that the organization sought to squelch his
activities. 102 He argues that the appreciation of grateful school
districts after Campbell’s requests ceased proves that this was
PSBA’s objective in filing the State Suit. 103

        Indeed, PSBA did sue Campbell to get him to stop his
RTKL-related conduct and PSBA never attempted to disguise
or deny that objective. It criticized Campbell’s prolific use of
the RTKL requests in its filings before the District Court. In
one such filing, PSBA argued: “Campbell is using the RTKL
as if he were back in London standing atop his soapbox in Hyde
Park.” 104 Campbell argues that when he continued filing RTKL
requests, PSBA amended its complaint to add his new
activities in a further effort to silence him. 105
                     B) PSBA’s actions
        Second, Campbell argues that PSBA used the legal
process to punish him. He claims the attempt to punish him
began before filing the State Suit, when PSBA demanded that
he remove the parody of Nathan Mains and desist from further
“defamatory” statements. 106 Then, when the State Suit was
filed, PSBA’s attorneys requested Campbell retain documents
from the past seven years. But there is nothing punitive about
asking an opposing party to preserve documents relevant to
litigation, and we will not here attempt to erect some kind of
time restriction on such a request. Moreover, Campbell’s
argument that such a request was intended to be punitive is
laden with irony given the voluminous records requests
Campbell has repeatedly directed at school boards across the
state.


101
    App. at 312.
102
    App. at 140.
103
    App. at 155, 163.
104
    ECF No. 18 at 15.
105
    Appellant’s Br. at 53.
106
    App. at 138.
                               21
        Finally, Campbell claims PSBA’s motives were laid
bare by its distribution of the State Suit complaint to its
members, though it contained claims that were later discounted
as untrue, and by PSBA’s settlement demand that Campbell
stop attacking PSBA and its staff. 107
                   C) Analysis
        At summary judgment, we are charged with viewing
Campbell’s evidence “in the light most favorable to the party
opposing summary judgment, and resolv[ing] all reasonable
inferences in that party’s favor.” 108 Yet even under this
deferential standard, we cannot discern a single quantum of
evidence, amidst the mountain of facts that Campbell provides,
that would support a conclusion that PSBA aimed to use the
process of the suit, as opposed to a successful outcome, to
accomplish its objective: ending Campbell’s RTKL onslaught.
We readily agree that PSBA’s eagerness to achieve this goal
radiates from each incident he complains of. However, that
does not prove that the suit itself, as opposed to prevailing on
the merits, was PSBA’s subjective motivation.

        Indeed, the record indicates that PSBA wanted
Campbell to stop overwhelming its members with RTKL
requests and that it filed the State Suit in hopes of
accomplishing that goal. The fact that PSBA readily accused
Campbell of defamation, that it sought to terminate his
activities, and that it celebrated its progress in achieving that
goal simply fails to satisfy the subjective prong, even by a
preponderance of the evidence.

        PSBA’s leadership harboring personal animus against
Campbell does not establish that the State Suit was subjectively
baseless. If animus alone were the test, it would readily devour
the rule, since litigation is rarely sparked by feelings of warmth
and amity. The protection of Noerr-Pennington immunity
cannot be swept away by simple dislike.

       Accordingly, Campbell simply cannot satisfy the
subjective prong by a preponderance of the evidence. Because
this case must be decided on the record before us at summary


107
      App. at 173-74, 303-04, 1484-86.
108
      Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).
                                22
judgment, “[w]e need not remand to the District Court to
consider it in the first instance.” 109

                                V.

       For the reasons set forth above, we will affirm the
District Court’s grant of summary judgment.




109
   In re Ben Franklin Hotel Assocs., 186 F.3d 301, 306 (3d
Cir. 1999) (citing Chase Manhattan Bank, N.A. v. Am. Nat'l
Bank & Tr. Co., 93 F.3d 1064, 1072 (2d Cir. 1996) (“An
appellate court has the power to decide cases on appeal if the
facts in the record adequately support the proper result . . .”)).
                               23
