Right to petition in the United States

In the United States the right to petition is guaranteed by the First Amendment to the United States Constitution, which specifically prohibits Congress from abridging "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances".

The right to petition is protected by the First Amendment in the Bill of Rights.

Although often overlooked in favor of other more famous freedoms, and sometimes taken for granted,[1] many other civil liberties are enforceable against the government only by exercising this basic right.[2][1]

According to the Congressional Research Service, since the Constitution was written,[3]

the right of petition has expanded. It is no longer confined to demands for “a redress of grievances,” in any accurate meaning of these words, but comprehends demands for an exercise by the government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters. The right extends to the "approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition."

Historic roots

The American right of petition is derived from British precedent. In Blackstone's Commentaries, Americans in the Thirteen Colonies read that "the right of petitioning the king, or either house of parliament, for the redress of grievances" was a "right appertaining to every individual".[4]

In 1776, the Declaration of Independence cited King George's failure to redress the grievances listed in colonial petitions, such as the Olive Branch Petition of 1775, as a justification to declare independence:

In every stage 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.[5]

Historically, the right can be traced back[2] to English documents such as Magna Carta, which, by its acceptance by the monarchy, implicitly affirmed the right, and the later Bill of Rights 1689, which explicitly declared the "right of the subjects to petition the king".[6]

First use

The first[7] significant exercise and defense of the right to petition within the U.S. was to advocate the end of slavery by petitioning Congress in the mid-1830s, including 130,000 such requests in 1837 and 1838.[8] In 1836, the House of Representatives adopted a gag rule that would table all such anti-slavery petitions.[8] John Quincy Adams and other Representatives eventually achieved the repeal of this rule in 1844 on the basis that it was contrary to the right to petition the government.[8]

Scope

While the prohibition of abridgment of the right to petition originally referred only to the federal legislature (the Congress) and courts, the incorporation doctrine later expanded the protection of the right to its current scope, over all state and federal courts and legislatures and the executive branches of the state[9] and federal governments. The right to petition includes under its umbrella the legal right to sue the government,[10] and the right of individuals, groups and possibly corporations to lobby the government.

Some litigants have contended that the right to petition the government includes a requirement that the government listen to or respond to members of the public. This view was rejected by the United States Supreme Court in 1984:

Nothing 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 communications of members of the public on public issues.[11]

See also Smith v. Arkansas State Highway Employees, where the U.S. Supreme Court ruled that the Arkansas State Highway Commission's refusal to consider employee grievances when filed by the union, rather than directly by an employee of the State Highway Department, did not violate the First Amendment to the United States Constitution.[12]

The Supreme Court has largely interpreted the Petition Clause as coextensive with the Free Speech Clause of the First Amendment, but in its 2010 decision in Borough of Duryea v. Guarnieri (2010) it acknowledged that there may be differences between the two:

This case arises under the Petition Clause, not the Speech Clause. The parties litigated the case on the premise that Guarnieri's grievances and lawsuit are petitions protected by the Petition Clause. This Court's precedents confirm that the Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes. ... Although this case proceeds under the Petition Clause, Guarnieri just as easily could have alleged that his employer retaliated against him for the speech contained within his grievances and lawsuit. ... The question presented by this case is whether the history and purpose of the Petition Clause justify the imposition of broader liability when an employee invokes its protection instead of the protection afforded by the Speech Clause.

It is not necessary to say that the two Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition share substantial common ground. This Court has said that the right to speak and the right to petition are "cognate rights." Thomas v. Collins, 323 U. S. 516, 530 (1945); see also Wayte v. United States, 470 U. S. 598, 610, n. 11 (1985). "It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances." Thomas, 323 U. S., at 530. Both speech and petition are integral to the democratic process, although not necessarily in the same way. The right to petition allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives, whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy as well as to the whole realm of ideas and human affairs. Beyond the political sphere, both speech and petition advance personal expression, although the right to petition is generally concerned with expression directed to the government seeking redress of a grievance.

Courts should not presume there is always an essential equivalence in the two Clauses or that Speech Clause precedents necessarily and in every case resolve Petition Clause claims. See ibid. (rights of speech and petition are "not identical"). Interpretation of the Petition Clause must be guided by the objectives and aspirations that underlie the right. A petition conveys the special concerns of its author to the government and, in its usual form, re-quests action by the government to address those concerns. See [Sure-Tan Inc. v. NLRB, 467 U. S. 883, 896–897 (1984)].

This Court’s opinion in McDonald v. Smith, 472 U. S. 479 (1985), has sometimes been interpreted to mean that the right to petition can extend no further than the right to speak; but McDonald held only that speech contained within a petition is subject to the same standards for defamation and libel as speech outside a petition. In those circumstances the Court found "no sound basis for granting greater constitutional protection to statements made in a petition … than other First Amendment expressions." Id., at 485. There may arise cases where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis; and if that is so, the rules and principles that define the two rights might differ in emphasis and formulation.

— 564 U.S. at 387-389

Restrictions

The law of South Dakota prohibits sex offenders from circulating petitions, carrying a maximum potential sentence of one year in jail and a $2,000 fine.[13]

Circulation of a petition by a prisoner in Federal Bureau of Prisons (BOP) is a prohibited act under 28 C.F.R. 541.3,[14][15] and is punishable by solitary confinement.

The term "Petition" as used in both of these regulations is restricted to those petitions which are directed at the executive or legislative branches of government, and does not include documents filed in a court of law, which are also referred to as "petitions", such as petitions for coram nobis, mandamus, habeas corpus, prohibition, and certiorari, among others. While these are commonly referred to as a "petition" they are forms of civil action against the government that may result in the courts issuing a writ directing the government to act, or refrain from acting, in a specified manner.[16]

The right of government employees to address grievances with their employer over work-related matters can be restricted to administrative processes under Supreme Court precedent. In Pickering v. Board of Education, the Supreme Court decided that the court must balance the employee's right to engage in speech against the government's interest in being efficient and effective in the public services it performs. Later Supreme Court precedent—Connick v. Myers, Garcetti v. Ceballos, and Borough of Duryea v. Guarnieri—has established that public employees must show they spoke as a citizen on a matter of public concern when suing their employer under the First Amendment's Speech or Petition Clauses.

References

1. Porter, Lori. "Petition - SLAPPs". First Amendment Center. Archived from the original on 2003-04-24.
2. Newton, Adam; Ronald K.L. Collins. "Petition - Overview". First Amendment Center. Archived from the original on 2003-05-30.
3. Congressional Research Service. "U. S. Constitution Annotated: Amendment I, Rights of Assembly and Petition". Legal Information Institute. Cornell Law School. Retrieved 17 June 2020.
4. "Blackstone's Commentaries on the Laws of England". The Avalon Project at Yale Law School. Archived from the original on 2013-03-29.
5. Quote from the Declaration of Independence. Full text available at "The Declaration of Independence: A Transcription". The U.S. National Archives and Records Administration.
6. Quote from Bill of Rights 1689. Full text available at "English Bill of Rights 1689". The Avalon Project at Yale Law School.
7. Kilman, J. & Costello, G. (Eds). "Analysis and Interpretation of the Constitution, 2002 ed. - First Amendment – Religion and Expression" (PDF). Congressional Research Service. Archived from the original (PDF) on 2012-01-13.CS1 maint: multiple names: authors list (link) CS1 maint: extra text: authors list (link)
8. "Struggles over Slavery: The "Gag" Rule". The U.S. National Archives and Records Administration.
9. "The Right to Petition". Illinois First Amendment Center. Archived from the original on April 11, 2013.
10. Newton, Adam. "Petition - Right to sue". First Amendment Center. Archived from the original on March 24, 2011.
11. O'Connor, Sandra Day. "Minnesota Board for Community Colleges v. Knight, 465 U.S. 271 (1984)". Justia.
12. 441 U.S. 463 (1979).
13. Cook, Andrea J. (15 May 2013). "Sex offender accused of illegally circulating petitions". Rapid City Journal.
14. "Prison Labor and the Thirteenth Amendment". Prison Law Blog. 16 December 2010.
15. Duamutef v. O'Keefe, 98 F.3d 22 (2d Cir. 1996)
16. Blacks law dictionary, See definitions for coram nobis, mandamus, habeas corpus, etc.