FAQ

Freedom to Petition

No. The U.S. Supreme Court has incorporated the petition clause of the First Amendment as part of the 14th Amendment’s guarantees against the states. The petition clause applies equally to state and local governments and protects petitions directed to the judicial, executive and legislative branches.

The First Amendment does not mandate that the government consider the public’s petitions or actually provide any “redress.” At a minimum, the government must have a mechanism for receiving complaints and grievances from the public, even if only to file them without consideration. Of course, due process — the guarantee that justice will be administered fairly — would apply if a citizen’s “petition” took the form of a court case.

No, parties can attempt to file such suits, but the First Amendment’s petition clause guarantees the right of all interested parties to attempt to enlist the government on their side of an issue or dispute. The vast majority of the case law and commentary — both popular and scholarly — supports that right, and suggests that the remedy for dissatisfaction with the statements of another party is more speech directed toward government, not more litigation.

Historically, a petition was a written request stating a grievance and requesting relief from a ruling authority such as a king. In modern America, petitioning embraces a range of expressive activities designed to influence public officials through legal, nonviolent means.

Lobbyists try to persuade government officials either to support or oppose various policy issues. Therefore, lobbying can be considered a form of petitioning the government for redress of grievances, subject to protection under the First Amendment’s petition clause. Although there has not been a great deal of judicial analysis on First Amendment protections afforded to lobbying, the courts have carved out several parameters. First, the petition clause does not grant a lobbyist the absolute right to speak to a government official, nor does it grant a lobbyist the right to a hearing based on his or her grievances. In addition, the clause does not create an obligation for a government official to take action in response to a grievance. Finally, any statement made while a lobbyist petitions a government official does not receive greater protection than any other expression protected by the First Amendment.

The right to petition reaches back at least to the Magna Carta in 1215. The English Declaration of Rights in 1689 confirmed that subjects were entitled to petition the king without fear of prosecution.

A libel suit, whether involving online or off-line speech, is one of the ways a SLAPP suit could be disguised; anti-SLAPP laws would apply. However, not all libel suits are SLAPP suits. Anti-SLAPP laws would apply only if it were found that a suit was filed in response to or in retaliation for citizen communications with government entities or employees, or for speech to bring attention to an issue of public interest or concern.

In 2001, U.S. District Judge David O. Carter determined that California’s anti-SLAPP statute does apply to cyber-SLAPPs. (See Global Telemedia International Inc. v. Doe et al., 132 F. Supp. 2d 1261 (C.D. Cal. 2001))

In 2003, the Massachusetts Appeals Court cited that state’s anti-SLAPP statute in throwing out a libel lawsuit against a website operator whose posted statements suggested a town official was a Nazi. (See MacDonald v. Paton, 57 Mass.App.Ct. 290 (2003) and “State appeals court rules online libel suit was really SLAPP.”)

Other state anti-SLAPP statutes may also apply to online libel suits. See “Anti-SLAPP statutes: state summary” for a state-by-state list.

No. The right to such legal resources in prison falls under due process.

Courts seldom address the petition clause in isolation, instead grouping it with other rights to free association and collective speech. The U.S. Supreme Court has noted that the right to petition at least provides the opportunity to institute nonfrivolous lawsuits and mobilize popular support to change existing laws in a peaceful manner.

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