The First Amendment Right to Petition Government for a Redress of Grievances: Cut from a Different Cloth

Abstract

In assessing the appropriate level of protection petitioners should enjoy pursuant to the First Amendment Petition Clause, the Supreme Court has ignored history, which reveals that the right to petition evolved in both England and America into a broad right distinct from and superior to the rights of speech, press, and assembly. The right to petition was not generally curtailed. In contrast, the rights of speech and the press were burdened by seditious libel laws. The right of assembly was also restricted via regulations which either limited the number of individuals allowed to present petitions or required groups to act in a peaceful, orderly manner. Yet the Supreme Court has ignored these historical facts and has treated the right to petition as a right co-extensive with the other expressive rights of the First Amendment. The court has thereby collapsed the historically superior right to petition into the other historically inferior rights of the First Amendment. The Court has also improperly granted only a limited immunity to petitioners: it has denied petitioners the absolute immunity from private libel actions as was enjoyed historically; and in the context of antitrust laws, the Court has conditioned petitioner immunity on a definition of petitioning that is both overinclusive and underinclusive. Another immunity issue arises under Federal Rule of Civil Procedure 11 which, as applied to prefiling factual and legal inquiries, includes within its coverage negligent conduct historically immune from sanctions. Finally, in direct contradiction to the debates surrounding the framing of the First Amendment Petition Clause, the Supreme Court has erroneously concluded that the right to petition government has never included a duty of government response. A careful examination of historical practices reveals not only that the Supreme Court's analysis of petitioning is misguided, but that the Court has it backwards: the right to petition was the important right; its development preceded and fostered the evolution speech, assembly, and the press.

Keywords: Assembly, constitutional right of access to courts, Federal Rule of Civil Procedure 11, free speech, Noerr-Pennington Doctrine, right to be heard, Rule 11 sanctions,right to petition, first amendment, petition clause