Freedom of Assembly and Petition

Congress shall make no law... abridging...the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment I

Under modern Supreme Court jurisprudence, the right to petition and the right of peaceable assembly have been almost completely collapsed into freedom of speech. Yet an analysis of the text and background of the First Amendment suggests that the petition and assembly rights have independent scope.

Before it was explicitly recognized in the Constitution, the right to petition had a long-standing Anglo-American pedigree as a right independent of general free speech and press rights. The Magna Carta first formally recognized the right to petition the king. Initially, the right applied only to certain nobles. Later, Parliament claimed the right to petition as a quid pro quo for its approval of royal requests for new taxes. In 1669, Parliament recognized the right of every British subject to petition Parliament, and in 1689, the Declaration of Rights established that not only is it "the right of the subjects to petition the king," but also that "all commitments and prosecutions for such petitioning is illegal." At a time when the king was considered above the law, petitions were the only method short of revolt to seek redress for illegal royal action.

By the late seventeenth century, petitions were the public's primary means of communicating with government officials and were directed to all levels of government, including the royal bureaucracy and parliament. Moreover, the king and Parliament generally treated petitions seriously and worked to resolve legitimate grievances raised by petitions. Much of the legislation passed by Parliament over a period of centuries was introduced in response to petitions from the public.

Petitioning naturally spread to the American colonies. In 1642, the Massachusetts Body of Liberties became the first colonial charter to provide explicit protection for the right to petition. By the time of the American Revolution, five other colonies—Delaware, New Hampshire, North Carolina, Pennsylvania, and Vermont—had followed suit. The other colonies recognized the right informally. Throughout British North America, petitioning was an important way for individuals to express their views to the local governing bodies, especially colonial assemblies. The assemblies, following English tradition, treated petitions seriously and often referred them to committees for further action. Petitions were not always granted, but they were always answered.

In 1774, the Declaration and Resolves of the First Continental Congress proclaimed that the colonists "have a right peaceably to assemble, consider of their grievances, and petition the King; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal." The emphasis on the government's lack of power to punish a citizen for petitioning made the right to petition more robust in the revolutionary era than the more general right to freedom of speech. Colonial governments generally recognized the right to freedom of speech, but this typically meant only that laws could not create prior restraints on speech. The right to petition, however, had a full legal pedigree.

When considering the Bill of Rights, Congress approved the right to petition with little controversy. The right to assembly was somewhat more controversial. Four of the original thirteen states expressly guaranteed the right of assembly in their constitutions or charters in 1789. This right, however, was considered more of an adjunct to other rights than an independent right. Representative Theodore Sedgwick moved to strike the words "to assemble and" from what became the First Amendment. He believed the words to be unnecessary surplusage. He argued, "If people freely converse together, they must assemble for that purpose; it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called in question." Sedgwick lost, however, in part because many believed that the right of the people to assemble encompassed the right to assemble in a constitutional convention and change the structure of government, a right in fact established in the Constitution itself in Article V.

The right to petition only guarantees that citizens can communicate with the sovereign through petitions. It does not guarantee that the sovereign will respond in any particular way, or indeed, at all. Parliament and colonial legislatures nevertheless felt obligated to respond to every petition, because those bodies had judicial as well as legislative functions. In the American constitutional scheme, judicial power rests solely in the judicial branch, and the judiciary is the only branch of government that is always obligated to consider and respond to petitions submitted to it. The executive branch (including for these purposes the independent regulatory agencies) may arguably have the obligation to respond to petitions when, in the modern administrative era, it is exercising judicial-like functions.

Congress initially took petitions very seriously, following the tradition of its colonial forebears. The House of Representatives scheduled time into its regular business in order to hear petitions on the floor. Typically, the Representative of the petitioner's state would assume the role of referring the petition to a special committee for consideration. The committee considered petitions and reported to Congress, resulting either in a consideration of a bill or rejection of the petition. The exception was in petitions regarding slavery. A pattern developed by which Congress responded to petitions by sending them to committee, where they ultimately died without being answered, rejected, or denied. In 1836, the House adopted a rule that "all petitions relating...to the subject of slavery or the abolition of slavery shall, without being either printed or referred, be laid upon the table and that no further action whatever be had thereon." In 1840, the House ruled that it would not receive abolitionist petitions at all. After a fierce debate over the right to petition, led in part by Congressman (and former President) John Quincy Adams, the House repealed the "gag rule" in 1844, but thereafter antislavery petitions simply died in committee as before. Unlike those from the abolitionist movement, petitions regarding such issues as the National Bank, expulsion of Cherokees from Georgia, and the Alien and Sedition Acts, among many others, were duly considered by Congress.

The right to petition, along with the right to peaceable assembly, became less important as modern democratic politics gradually replaced petitioning and public protests as the primary means for constituents to express their views to their representatives. Today, Congress treats most petitions in a pro forma way. A Representative may present a petition on behalf of a private party to the Clerk of the House, who enters it in the Journal.

Although the right to petition is somewhat anachronistic in modern times and has largely been subsumed in the right to freedom of speech, it continues to have some independent weight. Most importantly, under the Noerr-Pennington doctrine, an effort to influence the exercise of government power, even for the purpose of gaining an anticompetitive advantage, does not create liability under the antitrust laws. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. (1961); United Mine Workers of America v. Pennington (1965). The Supreme Court initially adopted this doctrine under the guise of freedom of speech, but it more precisely finds its constitutional home in the right to petition. Unlike speech, which can often be punished in the antitrust context, as when corporate officers verbally agree to collude, the right to petition confers absolute immunity on efforts to influence government policy in a noncorrupt way. Noerr-Pennington has been expanded beyond its original antitrust context to all situations in which plaintiffs attempt to use a defendant's lobbying activity or filing of a lawsuit (provided the lawsuit was not a sham) as evidence of illegal conduct. For example, trade associations cannot be held liable in tort for lobbying the government for lenient safety standards for their industry.

The Supreme Court confronted the right to petition and its cognate, the right of assembly, in United States v. Cruikshank (1876), declaring that the right was "an attribute of national citizenship." In Hague v. CIO (1939), members of the Court debated whether the right as applied against states resided in the Fourteenth Amendment's Privileges or Immunities Clause or, as later cases concluded, in the amendment's Due Process Clause. The rights to petition and to peaceable assembly were also crucial in persuading the Supreme Court to hold that the First Amendment implicitly contains a right to expressive association, that is, a right to associate to engage in the activities protected by the First Amendment. The right of expressive association protected civil rights protesters from hostile state action in the 1950s and 1960s, and, after the Court's 2000 decision in Boy Scouts of America v. Dale, also protects private groups that wish to promote traditional ideals and values. To a large extent, then, the rights to petition and peaceable assembly have found their modern home in the right to expressive association.

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David Bernstein
George Mason University Foundation Professor
George Mason University School of Law