[{"command":"add_css","data":[{"rel":"stylesheet","media":"all","href":"\/sites\/default\/files\/css\/css_veuEhhb1658wti0_ZAig66JOyixENU-N9zhjLQSLfOQ.css?delta=0\u0026language=en\u0026theme=heritage_theme\u0026include=eJwrTi1LzdNPzkksLq7Uy8tPSQUAPMsGtA"}]},{"command":"invoke","selector":null,"method":"openEssay","args":["10000140","\n\n\u003Carticle about=\u0022\/constitution\/amendments\/1\/essays\/141\/freedom-of-petition\u0022 class=\u0022node node--type-constitution-essay node--promoted node--view-mode-embedded clearfix\u0022\u003E\n  \u003Ch1 class=\u0022title\u0022\u003E\u003Cspan\u003EFreedom of Petition\u003C\/span\u003E\n\u003C\/h1\u003E\n\n      \u003Cdiv class=\u0022con-location\u0022\u003E\n      Amendment I\n    \u003C\/div\u003E\n    \u003Cdiv class=\u0022con-essay-context\u0022\u003E\n      \n            \u003Cdiv\u003E\u003Cp\u003ECongress shall make no law... abridging...the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.\u003C\/p\u003E\n\u003C\/div\u003E\n      \n    \u003C\/div\u003E\n      \n  \u003Cdiv class=\u0022con-essay-body\u0022\u003E\n    \n            \u003Cdiv\u003E\u003Cp\u003EUnder modern Supreme Court jurisprudence, the right to petition has been almost completely collapsed into freedom of speech. Yet an analysis of the text and background of the First Amendment suggests that the petition right has independent scope.\u003C\/p\u003E\n\n\u003Cp\u003EBefore 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 \u201cthe right of the subjects to petition the king,\u201d but that \u201call commitments and prosecutions for such petitioning are illegal.\u201d 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.\u003C\/p\u003E\n\n\u003Cp\u003EBy the late seventeenth century, petitions were the public\u2019s 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.\u003C\/p\u003E\n\n\u003Cp\u003EPetitioning naturally spread to the American colonies. In 1641, 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\u2014Delaware, New Hampshire, North Carolina, Pennsylvania, and Vermont\u2014had followed suit. The remaining 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.\u003C\/p\u003E\n\n\u003Cp\u003EIn 1774, the Declarations and Resolves of the First Continental Congress proclaimed that the colonists \u201chave 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.\u201d The emphasis on the government\u2019s 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 and of the press, but whatever the right\u2019s extent, there is little evidence that it included the right to petition. Rather, the right to petition had its own legal pedigree. When considering the Bill of Rights, Congress approved the right to petition with little controversy and differentiated it in the text of the Amendment from the freedom of speech and press.\u003C\/p\u003E\n\n\u003Cp\u003EThe right to petition guarantees only that citizens can communicate with the sovereign through petitions. It does not guarantee or require that the sovereign will respond in any particular way, or indeed, at all. Parliament and colonial legislatures nevertheless regarded themselves as obligated to respond to every petition, but that may have been 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 \u201cpetitions,\u201d i.e., suits and complaints submitted to it.\u003C\/p\u003E\n\n\u003Cp\u003EThe Supreme Court recently stated that the Petition Clause \u201cprotects the right of individuals to appeal to courts\u2009.\u2009.\u2009.\u2009established by the government for resolution of legal disputes.\u201d \u003Cem\u003EBorough of Duryea, Pennsylvania v. Guarnieri \u003C\/em\u003E(2011). In a vigorous dissent, Justice Antonin Scalia argued that the Petition Clause applied only to Congress and the Executive, and that the idea that it also applied to the courts came solely from dicta from late twentieth-century Supreme Court cases. The executive branch (including for these purposes the independent regulatory agencies), which traditionally would have had the option of replying to petitions, may arguably also have the obligation to respond to petitions when, in the modern administrative era, it is exercising judicial-like functions.\u003C\/p\u003E\n\n\u003Cp\u003ECongress initially took petitions very seriously, following the tradition of its colonial forebears. Most petitions were private claims, asking for a special bill as a means of settlement. The House of Representatives scheduled time into its regular business in order to hear petitions on the floor. Typically, the Representative of the petitioner\u2019s state would assume the role of referring the petition to a special committee for consideration.\u003C\/p\u003E\n\n\u003Cp\u003EThe 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.\u003C\/p\u003E\n\n\u003Cp\u003EIn 1836, the House adopted a rule that \u201call petitions relating\u2009.\u2009.\u2009.\u2009to 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 by had thereon.\u201d 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 Representative John Quincy Adams, the House repealed the \u201cgag rule\u201d in 1844; but thereafter anti-slavery 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.\u003C\/p\u003E\n\n\u003Cp\u003EThe right to petition 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. Normally, the House takes no formal action.\u003C\/p\u003E\n\n\u003Cp\u003EThe right to petition has become somewhat anachronistic in modern times and has largely been subsumed in the right to freedom of speech. Indeed, in \u003Cem\u003EBorough of Duryea, Pennsylvania v. Guarnieri\u003C\/em\u003E, the Supreme Court not only held, as noted above, that suits in court are a form of petition, but also that the right to petition provides no greater or different protection to government employees beyond what such employees have from the right to freedom of speech. Thus, the Court concluded, a government employee who criticizes his agency or superiors has protection against retaliatory action only if his criticism concerned a \u201cmatter of public concern\u201d under both the free speech clause and the petition clause.\u003C\/p\u003E\n\n\u003Cp\u003EHere too Justice Scalia dissented. He would have allowed a suit based on the Petition Clause depending on whom the petitioner was suing: \u201c[T]he Petition Clause protects public employees against retaliation for filing petitions unless those petitions are addressed to the government in its capacity as the petitioners\u2019 employer, rather than its capacity as their sovereign.\u201d\u003C\/p\u003E\n\n\u003Cp\u003ENevertheless, the longstanding tradition of a right to petition does influence First Amendment jurisprudence. Under the \u003Cem\u003ENoerr-Pennington\u003C\/em\u003E doctrine, for example, an effort to influence the exercise of government power, even for the purpose of gaining an anti-competitive advantage, may not create liability under the antitrust laws. \u003Cem\u003EEastern Railroad Presidents Conference v. Noerr Motor Freight, Inc.\u003C\/em\u003E (1961), \u003Cem\u003EUnited Mine Workers v. Pennington\u003C\/em\u003E (1965). The Supreme Court initially adopted this doctrine under the right to freedom of speech, but it more precisely finds its constitutional source 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 non-corrupt way. \u003Cem\u003ENoerr-Pennington\u003C\/em\u003E has been expanded beyond its original antitrust context to all situations in which plaintiffs claim a defendant\u2019s lobbying activity or a lawsuit it filed (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.\u003C\/p\u003E\n\n\u003Cp\u003EThe Supreme Court first confronted the right to petition and its cognate, the right of assembly, in \u003Cem\u003EUnited States v. Cruikshank\u003C\/em\u003E (1876), declaring that the right was \u201can attribute of national citizenship.\u201d In \u003Cem\u003EHague v. Committee for Industrial Organization\u003C\/em\u003E (1939), members of the Court debated whether the right as applied against states resided in the Fourteenth Amendment\u2019s Privileges or Immunities Clause or, as later cases concluded, in the Amendment\u2019s 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 protestors from hostile state action in the 1950s and 1960s, and, after the Court\u2019s decision in \u003Cem\u003EBoy Scouts of America v. Dale\u003C\/em\u003E (2000), also protects groups that wish to promote ideals and values that conflict with the goals of modern antidiscrimination laws. To a large extent, then, the right to petition has found its modern home as an aspect of the right of expressive association.\u003C\/p\u003E\n\u003C\/div\u003E\n      \n  \u003C\/div\u003E\n\n      \u003Cdiv class=\u0022con-essay-author\u0022\u003E\n      \u003Cdiv class=\u0022con-essay-author--media\u0022\u003E\n              \u003Cdiv class=\u0022con-essay-author--photo\u0022 style=\u0022background-image: url(\/sites\/default\/files\/David_Bernstein.jpg)\u0022\u003E\u003C\/div\u003E\n            \u003C\/div\u003E\n      \u003Cdiv class=\u0022con-essay-author--info\u0022\u003E\n              \u003Ch4 class=\u0022con-essay-author--name\u0022\u003E\n                      \u003Ca href=\u0022http:\/\/mason.gmu.edu\/~dbernste\/\u0022\u003EDavid Bernstein\u003C\/a\u003E\n                  \u003C\/h4\u003E\n                  \u003Cdiv class=\u0022con-essay-author--job\u0022\u003E\n         George Mason University Foundation Professor, George Mason University School of Law\n      \u003C\/div\u003E\n            \u003C\/div\u003E\n    \u003C\/div\u003E\n\n    \u003Cdiv class=\u0022con-essay-tabs\u0022\u003E\n      \u003Cul data-tabs class=\u0022tabs\u0022\u003E\n        \u003Cli class=\u0022button-more thirds\u0022\u003E\u003Ca data-tab href=\u0022#node-10000140-taba\u0022\u003EFurther Reading\u003C\/a\u003E\u003C\/li\u003E\n        \u003Cli class=\u0022button-more thirds\u0022\u003E\u003Ca data-tab href=\u0022#node-10000140-tabb\u0022\u003ECase Law\u003C\/a\u003E\u003C\/li\u003E\n        \u003Cli class=\u0022button-more thirds\u0022\u003E\u003Ca data-tab href=\u0022#node-10000140-tabc\u0022\u003ERelated Essays\u003C\/a\u003E\u003C\/li\u003E\n      \u003C\/ul\u003E\n\n      \u003Cdiv data-tabs-content\u003E\n        \u003Cdiv data-tabs-pane class=\u0022tabs-pane\u0022 id=\u0022node-10000140-taba\u0022\u003E\n          \n      \u003Cdiv\u003E\n              \u003Cdiv\u003E\u003Cp\u003EAkhil Amar, The Bill of Rights: Creation and Reconstruction (1998)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EFreedom of Assembly and Petition: Its Constitutional History and the Contemporary Debate (Margaret M. Russell ed., 2010)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EStephen A. Higginson, Note, A Short History of the Right to Petition Government for the Redress of Grievances, 96 Yale L.J. 142, 145 (1986)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EGary Lawson \u0026amp; Guy Seidman, Downsizing the Right to Petition, 93 Nw. U. L. Rev. 739 (1996)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EGregory A. Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 Fordham L. Rev. 2153 (1998)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EJason Mazzone, Freedom\u2019s Associations, 77 Wash. L. Rev. 639 (2002)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EJames E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U. L. Rev. 899 (1997)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EDon L. Smith, The Right to Petition for the Redress of Grievances: Constitutional Development and Interpretations (1971)\u003C\/p\u003E\n\u003C\/div\u003E\n          \u003C\/div\u003E\n  \n        \u003C\/div\u003E\n        \u003Cdiv data-tabs-pane class=\u0022tabs-pane\u0022 id=\u0022node-10000140-tabb\u0022\u003E\n          \n      \u003Cdiv\u003E\n              \u003Cdiv\u003E\u003Cp\u003EUnited States v. Cruikshank, 92 U.S. 542 (1876)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EHague v. Committee for Industrial Organization, 307\u003Cbr\u003E\nU.S. 496 (1939)\u003Cbr\u003E\n\u0026nbsp;\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EEastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EUnited Mine Workers of America v. Pennington, 381 U.S. 657 (1965)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EBoy Scouts of America v. Dale, 530 U.S. 640 (2000)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EBorough of Duryea, Pennsylvania v. Guarnieri, 131 S. Ct. 2488 (2011)\u003Cbr\u003E\n\u0026nbsp;\u003C\/p\u003E\n\u003C\/div\u003E\n          \u003C\/div\u003E\n  \n        \u003C\/div\u003E\n        \u003Cdiv data-tabs-pane class=\u0022tabs-pane\u0022 id=\u0022node-10000140-tabc\u0022\u003E\n                      \u003Ca href=\u0022\/essay_controller\/10000139\u0022 class=\u0022use-ajax\u0022\u003EFreedom of Speech and of the Press\u003C\/a\u003E\n                      \u003Ca href=\u0022\/essay_controller\/10000149\u0022 class=\u0022use-ajax\u0022\u003EDue Process Clause\u003C\/a\u003E\n                  \u003C\/div\u003E\n      \u003C\/div\u003E\n    \u003C\/div\u003E\n  \n\u003C\/article\u003E\n"]}]