By Adam Newton & Ronald K.L Collins
The petition clause concludes the First Amendment’s ringing enumeration of expressive rights and, in many ways, supports them all. Petition is the right to ask government at any level to right a wrong or correct a problem.
Although a petition is only as meaningful as its response, the petitioning right allows blocs of public interests to form, harnessing voting power in ways that effect change. The right to petition allows citizens to focus government attention on unresolved ills; provide information to elected leaders about unpopular policies; expose misconduct, waste, corruption, and incompetence; and vent popular frustrations without endangering the public order.
Yet the petition clause seems to strike most courts and legal commentators as obvious and uninteresting. While citizens and litigants invoke the First Amendment to secure Internet freedom, undisturbed worship, or a robust press, petitioning rights don’t seem to attract much controversy any more.
On July 4, 1776, the country’s Founders adopted a famous statement of principles and list of grievances, declaring that:
“In every state of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”
King George III’s crowning wrong, in the end, was his indifference: Those who revolted felt they had no other recourse. In building a new democracy, the Founders avoided the king’s mistake by guaranteeing political receptiveness to public concerns.
The original draft of the First Amendment contained only assembly and petition, not speech, press or religion. As the early House and Senate debated “the people’s right to instruct their Representatives,” their deliberations echoed the momentous accommodation between King John and his barons at Runnymede more than 500 years earlier.
In 1215, King John signed the Magna Carta, which recognized the right of the barons to petition the crown. From this contract grew the tradition allowing British subjects to submit their grievances to the king’s council and, with the ascendancy of Parliament, to the House of Commons.
These early petitions usually stated personal grievances and individual requests for relief. With its overlapping executive, judicial and legislative functions, Parliament referred most of these to internal committees, appointed auditors or deferred to royal counselors. Wary that open airing of grievances would spark popular dissent, Parliament at times punished particularly severe complaints and prohibited petitions bearing more than 20 signatures. After the Glorious Revolution, however, the 1689 Declaration of Rights recognized that “it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning is illegal.”
Transplanted from this tradition of petitioning, which William Blackstone described as “appertaining to every individual,” the first American colonists viewed their local assemblies as royal surrogates for the lodging of complaints. In 1641, the Massachusetts Body of Liberties became the first royal charter to protect this right expressly, recognizing that “[e]very man whether Inhabitant or fforeigner, free or not free shall have libertie to come to any publique Court, Councel or town meeting, and either by speech or writeing to move any lawfull, seasonable, and materiall question, or to present any necessary motion, complaint, petition, Bill or information.”
Records of the Colonial assemblies reveal that this was not a right reserved for the landowning elite. Women, Native Americans, and even slaves sought — and, in some cases, obtained — relief from the authorities on questions of taxes, tribal lands, emancipation and public corruption.
The breadth of participation was matched only by the minutiae of detail: debt actions, property settlements, estate contests, divorce judgments, criminal appeals, commercial disputes, road-construction requests, charges of breaking the Sabbath, and a host of other public and private claims came before the assemblies, which enacted, interpreted and enforced the laws.
Petitioning was a form of public dialogue in a time before mass media and national political parties. The nascent assemblies solicited the views and complaints of the colonists as a barometer of the popular mood and as justification for their measures. The intimacy between colonist and assembly meant that petitions essentially drove the legislative agenda, and so the early laws developed in a patchwork of special interests and personal appeals.
With the commercial and geographic expansion of the Colonies, however, many assemblies imposed internal rules to quell the tide of petitions, which had increased both in volume and complexity. Connecticut, for example, raised the fees for submitting petitions, increased the jurisdictional amounts in controversy, introduced conditions of admissibility, and threatened contempt proceedings against grievances that proved to be false.
In theory, disgruntled colonists could take their appeal to the royal governors, and, if still unsatisfied, to the king in England. Starting in the 1770s, an increasingly vocal and coordinated group of petitioners sought relief from England for a series of intolerable acts relating to restraints on trade, the quartering of troops, taxation, restrictions on westward expansion and numerous other limits on self-government. Denied redress, the petitioners became revolutionaries and, in 1776, leaders of a new nation.
Inflamed by the king’s stonewalling of their appeals, the Founders embedded the right to petition into the Constitution by way of the First Amendment. The first test of this guarantee arose over the issue of slavery in the District of Columbia. Abolitionists in the 1830s sought to end slavery in the nation’s capital for symbolic and practical reasons: Congress, as lawmaker for the District, could abolish slavery without trampling on states’ rights.
Abolitionists organized a massive petitioning campaign that flooded Congress with letters and special appeals. Besieged by paper, the House of Representatives adopted a “gag rule” that summarily tabled all such petitions without debate or acknowledgment. Former President John Quincy Adams articulated the outrage of the Northern antislavery position by decrying that only “the most abject despotism” could “deprive the citizen of the right to supplicate for a boon, or pray for mercy.”
Though the gag rule was repealed in 1844, this episode illustrates how far the nation had evolved and how the strategic goals of petitioning had changed.
The first recorded act of Connecticut’s general assembly in 1650 was consideration of a petition against a farmer who had “traded a peece [firearm] with the Indians for corne.”
Two hundred years later, however, petitioning has become an instrument of mass politics, designed to make a point, not a plea. As with the divisive issue of slavery, petitioning is now seen as a means of uniting popular groups and overwhelming political opponents. As one modern commentator put it, petitions “were the sound bites of the early nineteenth century.”
Though some individual appeals persisted, public petitioning lost its local character and its immediacy, becoming instead a political ultimatum enforced at the ballot box. The authors and signers of mass petitions did not intend to convey a personal appeal. Nor did they seriously expect a personalized response. Instead, they were giving their representatives a preview of election day by showing the depth and extent of public sentiment on issues such as slavery, women’s suffrage and the admission of new states into the Union.
As the young nation matured, its democratic visions broadened the franchise, established political parties, fostered a national press and, after the shock of the Civil War, expanded the federal government. The United States had entered the industrial age of modern politics and markets that eclipsed strictly local loyalties.
Patrick Henry, firebrand patriot of the founding generation, had seemed to predict this atomizing of citizenry and centralizing of authority when he protested constitutionalism:
“The act, called the Bill of Rights, comes here into view. What is it but a bargain, which the parts of government made with each other to divide powers, profits and privileges? You shall have so much, and I will have the rest; and with respect to the nation, you shall have the right of petitioning.”
But the 200 years since belie Henry’s mocking denigration of the petition clause.
“Petitioning” has come to signify any nonviolent, legal means of encouraging or disapproving government action, whether directed to the judicial, executive or legislative branch. Lobbying, letter-writing, e-mail campaigns, testifying before tribunals, filing lawsuits, supporting referenda, collecting signatures for ballot initiatives, peaceful protests and picketing: all public articulation of issues, complaints and interests designed to spur government action qualifies under the petition clause, even if the activities partake of other First Amendment freedoms.
In United Mine Workers of America v. Illinois State Bar Association (1967), the U.S. Supreme Court exalted the right as “among the most precious liberties safeguarded by the Bill of Rights” and implicit in “the very idea of government.” The Court had earlier affirmed the right to engage in such activity; it thus deemed it a fundamental liberty, protected against encroachment by federal, state and local governments. Hence, in NAACP v. Button (1963), it formed the conceptual basis for the Court’s ruling that a civil rights group could not be barred from soliciting people to serve as litigants in civil rights cases. The Court declared: “Litigation may well be the sole practical avenue open to a minority to petition for a redress of grievances.”
Still, the Court rarely considers the petition clause apart from the other guarantees of the First Amendment, collapsing it with protections for associational interests and political speech. Though courts have recognized the constitutional significance of peaceful public activism generally, they have invoked the petition clause only peripherally, if at all, in cases involving lobbying, right to file suit, in certain kinds of libel actions involving government officials, and in SLAPP suits — that is, Strategic Lawsuits Against Public Participation. Such suits are sometimes filed against citizens for speaking out about a range of public matters before city councils, county commissions, school boards and other agencies.
- Lobbying. Restrictions such as registration and disclosure requirements are constitutional because they do not effectively prevent exercise of the right of petition. Yet the Court has not affirmatively recognized lobbying as a constitutionally protected activity anchored in the petition clause. Whether a lobbyist, as a paid agent, stands in the same position as a citizen requesting government consideration is unclear. The Court has recognized the right to freely associate and take collective action as inherent in lobbying, but it has not highlighted the unique role petitioning plays in such activities.
- Right to file suit. The right to petition the government for redress of grievances includes a right to file suit in a court of law. Again, the Court has collapsed the distinct right to petition with other protections for group speech.When right-to-sue claims do not involve issues of constitutional magnitude, the Court has grounded its First Amendment analysis in associational freedoms inherent in a collective resort to the courts. And when neither constitutional issues nor collective action is present, the Court has addressed claims of the right to seek redress in court as a due-process or equal-protection challenge.
- SLAPP suits. Strategic Lawsuits Against Public Participation, as they are called, are sometimes filed against citizens for speaking out about a range of public matters before city councils, county commissions, school boards and other agencies. From a First Amendment standpoint, SLAPPs are a disturbing attempt to use the law to suppress and punish citizens’ exercise of their right to petition government regarding matters of public concern. Such lawsuits, fortunately, can be readily combatted.
- Other immunities. In McDonald v. Smith (1985), a petitioner claimed absolute immunity from a private libel action based on two letters he sent to President Ronald Reagan. Writing against the appointment of a former state court judge to the position of U.S. Attorney in North Carolina, the petitioner accused the candidate of civil rights violations, fraud, conspiracy, blackmail and other illegal and unethical acts.
Alleging that these letters ruined his reputation and his prospects for appointment, the candidate sued the petitioner for libel, who invoked the petition clause as the basis for his immunity claim. Noting that the right to petition is “cut from the same cloth” as other First Amendment protections, the Supreme Court held that the petitioner was entitled only to the same qualified immunity as the other expressive freedoms under the “actual malice” standard of New York Times v. Sullivan.
In McDonald, the Court concluded that the petition clause “was inspired by the same ideals of liberty and democracy that gave us the freedoms to speak, publish, and assemble,” and so was unwilling to afford petitioning “special First Amendment status.” For this reason, the incidental activities of petitioning — gathering signatures, circulating fliers, rallying public support — are likewise subject to neutral time, place and manner restrictions consistent with public safety and order.
How petition has changed
The direct appeal and individualized response that once marked petitioning belong to a more organic past when leaders knew petitioners by name. No branch of the government today is equipped to provide such personal attention. The right to petition, however, requires only that the state receive complaints and grievances, not that it respond to them. Historical practice aside, as the Court explained in Minnesota Board for Community Colleges v. Knight (1984): “[N]othing in the First Amendment or in this Court’s case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals’ communications on public issues.”
Even if the “redress” dimension of the petition clause merely expresses the hope of government response, the very act of channeling popular opinion for public officials serves important societal goals. It creates an information flow from the public to the government, and serves as a safety valve for public passions.
Yet despite its social benefits, the First Amendment right of petition has not been developed as a doctrine or championed as a cause. Few scholars or courts have fully appreciated the importance of the right to petition and its more contemporary applications.
Perhaps the right of petition has escaped their attention precisely because it continues to work so well. The petition clause is the tacit assumption in constitutional analysis, the primordial right from which other expressive freedoms arise. Why speak, why publish, why assemble against the government at all if such complaints will only be silenced?
As Justice John Paul Stevens stressed in his dissent in Minnesota Board for Community Colleges, “The First Amendment was intended to secure something more than an exercise in futility.” The petition clause ensures that our leaders hear, even if they don’t listen to, the electorate. Though public officials may be indifferent, contrary, or silent participants in democratic discourse, at least the First Amendment commands their audience.