Have you ever signed an online petition, written to the mayor about a pothole, or testified at a public hearing? If the answer is yes, you have exercised your First Amendment right to petition.
The right to petition the government for a redress of grievances without fear of prosecution comes last in the First Amendment — and it’s not the flashiest.
That doesn't make it any less important.
Eugene Volokh is a senior fellow at Stanford University’s Hoover Institution. He taught First Amendment law at UCLA for more than three decades.
“You, generally speaking, can't be punished for sending a petition to the government, sending a letter to the president or to the governor or to Congress saying, here's what we think you should do,” Volokh said.
A grievance could be anything. The most common example is taxes, but people often write to their government about all kinds of things: local issues like potholes and school funding, and national issues like immigration and foreign relations.
The clause has been interpreted to apply to lawsuits:
“If you sue someone for breach of contract, you're petitioning the government for redress of grievances,” Volokh said.
It also applies to lobbying.
“You might hire lobbyists who talk to state legislatures and/or members of Congress or executive officials,” Volokh said.
One thing the petition clause does not guarantee is a response.
“So if you send a letter to the governor, the governor could just ignore it, but he can't punish you for it,” Volokh said.
Another form of petition that isn’t guaranteed by the First Amendment, but rather supported, is the use of referendums and ballot initiatives.
In 26 states, citizens can petition to place a ballot measure on the ballot. If they collect enough signatures, they can get a proposed law or constitutional amendment on the ballot.
In 19 states, citizens can collect signatures to force an election recall, in which, if enough people sign off, a referendum is held to decide whether an elected official should keep their position.
“It goes beyond what the petition clause provides by giving you actually by giving potential legal effect to those petitions,” Volokh said.
The First Amendment right to petition was adopted from the Magna Carta and the 1689 English Bill of Rights. The American Revolution was justified, in part, because King George III ignored petitions from the colonists.
A major petition-related scandal occurred in the 1830s. Congress was swamped with anti-slavery petitions. In response, pro-slavery U.S. House leadership imposed a gag rule to limit discussion on them. It was repealed in 1844.
“It was seen that sending petitions to the government was, at least at the time, an effective political tool,” Volokh said.
However, the circulation of petitions isn’t as prevalent today as it was in the early days of the United States. It’s still used—plenty of social justice movements gather signatures to raise awareness and drum up support for their cause.
Despite that, “Today, I think there are just so many other means of getting the message out. My guess is that they're perhaps somewhat less marginally important than they were back then, but they remain protected, and they remain important political tools,” Volokh said.
The right to petition the government is now seen as protected by the free speech clause, making the petition clause obsolete.
Volokh said the framers would probably still be glad they covered their bases and included it in the First Amendment.
