Right to sue

By Adam Newton, Contributing Writer

September 16, 2002

The right to petition the government for redress of grievances includes a right to file suit in a court of law.

The U.S. Supreme Court has collapsed or folded in the distinct right to petition with other protections for group speech. In NAACP v. Button,Virginia attempted to enforce its prohibition of attorney solicitation against the NAACP, which was soliciting and promoting litigation designed to end racial segregation. In its 1963 decision, the Court found that such lawsuits were a form of “political expression” and that the NAACP was a political association. As such, the Court upheld a First Amendment right of judicial access without special reliance on the petition clause.

When right-to-sue claims do not involve issues of constitutional magnitude, the Court has grounded its First Amendment analysis in associational freedoms inherent in a collective resort to the courts. But when neither constitutional issues nor collective action is present, the Court has addressed claims of the right to seek redress in court as a due-process or equal-protection challenge.

In its 1971 decision Boddie v. Connecticut, for example, the Court ordered the waiver of court costs for indigents seeking a divorce — not because of the right to petition, but because marriage and its dissolution have been recognized as fundamental private interests. The Court reasoned that to deny a divorce for lack of ability to pay the state’s court costs was to deny a fundamental right entirely. Though the petitioners in Boddie raised the petition clause as a basis for their challenge, the federal courts at every level viewed the complaint through the prism of due process, which is the right to fair administration of justice.

Due process, not the petition clause, likewise supports prisoners’ access to law libraries and legal advisers in order to attack their sentences and challenge the conditions of their confinement.

The most significant confirmation of a petition-based right to seek judicial redress comes not from free-speech jurisprudence but from antitrust law. In a series of cases beginning with Eastern Railroad Presidents Conference v. Noerr Motor Freight Inc. in 1961, the Supreme Court recognized that antitrust statutes should not penalize petitioners who join to seek passage and enforcement of laws.

In Noerr, 41 truck drivers and their trade unions sued a collection of railroads, railroad presidents and the public relations firm hired to influence legislation concerning truck weight limits and tax rates for heavy trucks. The Court found that the railroad defendants’ influence campaign was immune from antitrust liability under the Sherman Act because “the right to petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms.”
Even if, as was true four years later in United Mine Workers v. Pennington, the defendants specifically intended to eliminate competition through their petitioning efforts, they remain immune from liability. In the 1972 decision California Motor Transport v. Trucking Unlimited, the Court capped the so-called “Noerr-Pennington doctrine” by explicitly linking antitrust immunity to the petition clause:

“The same philosophy governs 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 to petition.”

The shelter afforded by the petition clause from application of antitrust laws has been expanded by lower courts to include immunity from state tort laws and the Civil Rights Act for activities designed to elicit government action. An example would be a 1980 case, Missouri v. NOW, in which Missouri claimed economic damage from a National Organization for Women boycott to induce states to ratify the Equal Rights Amendment. The court held NOW’s activities to be political, a form of petition that was thereby immune from Missouri’s effort to stop them.

Excepted from such immunity, however, is a “sham” petition that is baseless, objectively unreasonable, and undertaken for an improper purpose unrelated to the vindication of rights. In Landmarks Holding Corp. v. Bermant (1981), for instance, a court found in favor of real-estate developers seeking to build a shopping center. The developers alleged a campaign of meritless lawsuits and moves for delay by property owners and competing shopping centers.

In 1983, the Supreme Court’s opinion in Bill Johnson’s Restaurants, Inc. v. NLRB set out the principle that “the right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances.”

In a June 2002 decision, BE&K Construction Co. v. National Labor Relations Board, the high court, though not ruling on First Amendment grounds, nevertheless noted that it had long viewed the right to sue in court as a form of petition.

“We have recognized this right to petition as one of the most precious of the liberties safeguarded by the Bill of Rights,” Justice Sandra Day O’Connor wrote for the Court, “and have explained that the right is implied by the very idea of a government, republican in form.”

O’Connor further observed that the First Amendment petition clause says nothing about success in petitioning — “it speaks simply of the right of the people to petition the Government for a redress of grievances.”

First Amendment scholar David L. Hudson Jr. contributed to this article.

Updated February 2010