Amdt1.3.1 Background and Development

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The right of petition took its rise from the modest provision made for it in chapter 61 of the Magna Carta (1215). 1 To this meager beginning are traceable, in some measure, Parliament itself and its procedures for the enactment of legislation, the equity jurisdiction of the Lord Chancellor, and proceedings against the Crown by petition of right. Thus, while the King summoned Parliament for the purpose of supply, the latter – but especially the House of Commons – petitioned the King for a redress of grievances as its price for meeting the financial needs of the Monarch, and as it increased in importance, it came to claim the right to dictate the form of the King’s reply, until, in 1414, Commons declared itself to be as well assenters as petitioners. Two hundred and fifty years later, in 1669, Commons further resolved that every commoner in England possessed the inherent right to prepare and present petitions to it in case of grievance, and of Commons to receive the same and to judge whether they were fit to be received. Finally Chapter 5 of the Bill of Rights of 1689 asserted the right of the subjects to petition the King and all commitments and prosecutions for such petitioning to be illegal.2

Historically, therefore, the right of petition is the primary right, the right peaceably to assemble a subordinate and instrumental right, as if the First Amendment read: the right of the people peaceably to assemble in order to petition the government.3 Today, however, the right of peaceable assembly is, in the language of the Court, cognate to those of free speech and free press and is equally fundamental. . . . [It] is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions, – principles which the Fourteenth Amendment embodies in the general terms of its due process clause. . . . The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question . . . is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects.4 Furthermore, 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. 5 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.6

The right of petition recognized by the First Amendment first came into prominence in the early 1830s, when petitions against slavery in the District of Columbia began flowing into Congress in a constantly increasing stream, which reached its climax in the winter of 1835. Finally on January 28, 1840, the House adopted as a standing rule: That no petition, memorial, resolution, or other paper praying the abolition of slavery in the District of Columbia, or any State or Territories of the United States in which it now exists, shall be received by this House, or entertained in any way whatever. Because of efforts of John Quincy Adams, this rule was repealed five years later. 7 For many years now the rules of the House of Representatives have provided that Members having petitions to present may deliver them to the Clerk and the petitions, except such as in the judgment of the Speaker are of an obscene or insulting character, shall be entered on the Journal and the Clerk shall furnish a transcript of such record to the official reporters of debates for publication in the Record. 8 Even so, petitions for the repeal of the espionage and sedition laws and against military measures for recruiting resulted, in World War I, in imprisonment. 9 Processions for the presentation of petitions in the United States have not been particularly successful. In 1894 General Coxey of Ohio organized armies of unemployed to march on Washington and present petitions, only to see their leaders arrested for unlawfully walking on the grass of the Capitol. The march of the veterans on Washington in 1932 demanding bonus legislation was defended as an exercise of the right of petition. The Administration, however, regarded it as a threat against the Constitution and called out the army to expel the bonus marchers and burn their camps. Marches and encampments have become more common since, but the results have been mixed.

The Cruikshank Case

The right of assembly was first before the Supreme Court in 1876 10 in the famous case of United States v. Cruikshank. 11 The Enforcement Act of 1870 12 forbade conspiring or going onto the highways or onto the premises of another to intimidate any other person from freely exercising and enjoying any right or privilege granted or secured by the Constitution of the United States. Defendants had been indicted under this Act on charges of having deprived certain citizens of their right to assemble together peaceably with other citizens for a peaceful and lawful purpose. Although the Court held the indictment inadequate because it did not allege that the attempted assembly was for a purpose related to the Federal Government, its dicta broadly declared the outlines of the right of assembly. The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the National Government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The 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. If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States.13 Absorption of the assembly and petition clauses into the liberty protected by the due process clause of the Fourteenth Amendment means, of course, that the Cruikshank limitation is no longer applicable. 14

The Hague Case

Illustrative of this expansion is Hague v. CIO, 15 in which the Court, though splintered with regard to reasoning and rationale, struck down an ordinance that vested an uncontrolled discretion in a city official to permit or deny any group the opportunity to conduct a public assembly in a public place. Justice Roberts, in an opinion that Justice Black joined and with which Chief Justice Hughes concurred, found protection against state abridgment of the rights of assembly and petition in the Privileges and Immunities Clause of the Fourteenth Amendment. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.16 Justices Stone and Reed invoked the Due Process Clause of the Fourteenth Amendment for the result, thereby claiming the rights of assembly and petition for aliens as well as citizens. I think respondents’ right to maintain it does not depend on their citizenship and cannot rightly be made to turn on the existence or non-existence of a purpose to disseminate information about the National Labor Relations Act. It is enough that petitioners have prevented respondents from holding meetings and disseminating information whether for the organization of labor unions or for any other lawful purpose.17 This due process view of Justice Stone's has carried the day over the privileges and immunities approach.

Later cases tend to merge the rights of assembly and petition into the speech and press clauses, and, indeed, all four rights may well be considered as elements of an inclusive right to freedom of expression. While certain conduct may still be denominated as either petition 18 or assembly 19 rather than speech, there seems little question that similar standards will be applied in most cases. 20 For instance, as discussed earlier, where a public employee sues a government employer under the First Amendment’s Speech Clause, the employee must show that he or she spoke as a citizen on a matter of public concern. 21 In Borough of Duryea, Pennsylvania v. Guarnieri, 22 the Court similarly held that a police chief who alleged retaliation for having filed a union grievance challenging his termination was not protected by the right to petition, because his complaints did not go to matters of public concern. 23

Footnotes

  1.  C. Stephenson & F. Marcham, Sources of English Constitutional History 125 (1937).
  2.  12 Encyclopedia of the Social Sciences 98 (1934).
  3.  United States v. Cruikshank, 92 U.S. 542, 552 (1876), reflects this view.
  4.  DeJonge v. Oregon, 299 U.S. 353, 364, 365 (1937). See also Herndon v. Lowry, 301 U.S. 242 (1937).
  5.  See Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961).
  6.  California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). See also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913-15 (1982); Missouri v. NOW, 620 F.2d 1301 (8th Cir. 1980), cert. denied, 449 U.S. 842 (1980) (because of its political nature, a boycott of states not ratifying the Equal Rights Amendment may not be subjected to antitrust suits).
  7.  The account is told in many sources. E.g., Samuel flagg Bemis, John Quincy Adams and the Union, chs. 17, 18 and pp. 446-47 (1956); William Lee Miller, Arguing About Slavery: The Great Battle in the United States Congress (1996), 465-487; David P. Currie, The Constitution in Congress: Descent into the Maelstrom, 1829-1861 (2005), 3-23.
  8.  Rule 22, ¶ 1, Rules of the House of Representatives, H.R. Doc. No. 256, 101st Congress, 2d Sess. 571 (1991).
  9.  1918 Att’y Gen. Ann. Rep. 48.
  10.  See, however, Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868), in which the Court gave as one of its reasons for striking down a tax on persons leaving the state its infringement of the right of every citizen to come to the seat of government and to transact any business he might have with it.
  11.  92 U.S. 542 (1876).
  12.  Act of May 31, 1870, ch. 114, 16 Stat. 141 (1870).
  13.  United States v. Cruikshank, 92 U.S. 542, 552-53 (1876).
  14.  DeJonge v. Oregon, 299 U.S. 353 (1937); Hague v. CIO, 307 U.S. 496 (1939); Bridges v. California, 314 U.S. 252 (1941); Thomas v. Collins, 323 U.S. 516 (1945).
  15.  307 U.S. 496 (1939).
  16.  307 U.S. at 515. For another holding that the right to petition is not absolute, see McDonald v. Smith, 472 U.S. 479 (1985) (the fact that defamatory statements were made in the context of a petition to government does not provide absolute immunity from libel).
  17.  307 U.S. at 525.
  18.  E.g., United States v. Harriss, 347 U.S. 612 (1954); Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961); BE & K Construction Co. v. NLRB, 536 U.S. 516 (2002).
  19.  E.g., Coates v. City of Cincinnati, 402 U.S. 611 (1971).
  20.  See, e.g., Borough of Duryea, Pennsylvania v. Guarnieri, 564 U.S. ___, No. 09–1476, slip op. at 7 (2011) (It is not necessary to say that the [Speech and Petition] Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition share substantial common ground); But see id. (Courts should not presume there is always an essential equivalence in the [Speech and Petition] Clauses or that Speech Clause precedents necessarily and in every case resolve Petition Clause claims).
  21.   Connick v. Myers, 461 U.S. 138 (1983).
  22.   564 U.S. ___, No. 09–1476, slip op. (2011).
  23.  Justice Scalia, in dissent, disputed the majority's suggestion that a petition need be of public concern to be protected, noting that the Petition Clause had historically been a route for seeking relief of private concerns. Slip op. at 5-7 (2011) (Scalia, J., dissenting). Justice Scalia also suggested that the Clause should be limited to petitions directed to an executive branch or legislature, and that grievances submitted to an adjuciatory body are not so protected. Id. at 1-3.