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Written by Deborah Fisher, published on July 24, 2023 , last updated on March 21, 2024

Freedom of Petition

The right to petition permits us to ask government to take action to address a need or concern. While it doesn’t guarantee a desired result, it does ensure a  level of participation in the democratic process.

At its most basic, “petitoning government for redress of grievances” involves a simple communication to government asking for change. At its most comprehensive, petition is done by professional lobbyists, representing industries with extensive resources and political influence.

Right of petition first addressed by Supreme Court in 1876

Supreme Court case law is relatively sparse on the right to petition. The high court first addressed the notion in 1876 in United States v. Cruikshank (1876), finding in an opinion by Chief Justice Morrison R. Waite, that [t]he very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.”

In more modern times, the court on occasion has reminded the country of the viability and limitations of the petition clause. In McDonald v. Smith (1985), Chief Justice Warren E. Burger noted that [t]he right to petition is cut from the same cloth as the other guarantees of that Amendment, and is an assurance of a particular freedom of expression.” Like the other freedoms it embodies, however, the right to petition is not absolute. Citizens need to take caution to avoid violating other laws under the guise of petitioning activity.

In McDonald, a North Carolina state judge had been under consideration by President Ronald Reagan for a U.S. attorney position. Robert McDonald wrote two letters to the president in which he accused Smith of having violated the civil rights of individuals and committing other legal and ethical infractions. Smith failed to be appointed, and he sued McDonald for defamation. McDonald defended himself by arguing that his comments were immune from liability under the petition clause. He was unsuccessful.

As the court observed,[a]lthough the values in the right of petition as an important aspect of self-government are beyond question, it does not follow that the Framers of the First Amendment believed that the Petition Clause provided absolute immunity from damages for libel.”

Right of petition has been essential in social justice movements

The right of petition — often used in conjunction with the freedom of assembly — has played an essential role in advancing social justice movements throughout much of America’s history.

The fight to abolish slavery, the campaign to secure women’s suffrage and efforts to secure civil rights for all Americans have all been fueled by the freedoms of petition and assembly.

Another contemporary context involving the petition clause is the burgeoning category of SLAPP litigation, or strategic lawsuits against public participation. In a typical SLAPP action, a citizen or group communicates information to the government, sometimes directly at a public hearing or through a petition and sometimes by coalescing community support through meetings or letters to the editor. Then comes a lawsuit, most often filed by a large business or corporation —land developers often are the filers—and the citizens nightmare begins.

SLAPP targets must hire attorneys to defend rights they already have under the Constitution, notably free speech along with the right to petition the government for a redress of grievances. Although the corporations that file these actions often end up losing in court, the litigation serves its purpose in suppressing speech. The lawsuit itself works to drain the target financially and emotionally and serves not only as political retaliation but also as a warning to others not to oppose a project.

In most cases, citizens ultimately prevail because of the constitutional guarantee of the right to petition government. SLAPP suits cut straight to the core of this right. Yet, winning the lawsuit is a hollow victory if, in the process of defending their constitutional rights, the SLAPP targets lose their life savings in legal fees. To this end, more than half the states have enacted anti-SLAPP laws that help citizens involved in this type of litigation. In most instances, if the lawsuit is determined to be a SLAPP, the statute requires that the case proceed on an expedited calendar, creates immunity for legitimate petitioning activities, and provides for recovery of attorneys; fees. In short, anti-SLAPP laws bolster protections already contemplated in the right to petition the government.

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