Under modern Supreme Court jurisprudence, the right to petition has been almost completely collapsed into freedom of speech. Yet an analysis of the text and background of the First Amendment suggests that the petition right has independent scope.

Before it was explicitly recognized in the Constitution, the right to petition had a long-standing Anglo-American pedigree as a right independent of general free speech and press rights. The Magna Carta first formally recognized the right to petition the King. Initially, the right applied only to certain nobles. Later,Parliament claimed the right to petition as a quid pro quo for its approval of royal requests for new taxes. In 1669, Parliament recognized the right of every British subject to petition Parliament, and in 1689 the Declaration of Rights established that not only is it “the right of the subjects to petition the king,” but that “all commitments and prosecutions for such petitioning are illegal.” At a time when the King was considered above the law, petitions were the only method (short of revolt) to seek redress for illegal royal action.

By the late seventeenth century, petitions were the public’s primary means of communicating with government officials and were directed to all levels of government, including the royal bureaucracy and parliament. Moreover, the King and Parliament generally treated petitions seriously and worked to resolve legitimate grievances raised by petitions. Much of the legislation passed by Parliament over a period of centuries was introduced in response to petitions from the public.

Petitioning naturally spread to the American colonies. In 1641, the Massachusetts Body of Liberties became the first colonial charter to provide explicit protection for the right to petition. By the time of the American Revolution, five other colonies—Delaware, New Hampshire, North Carolina, Pennsylvania, and Vermont—had followed suit. The remaining colonies recognized the right informally. Throughout British North America, petitioning was an important way for individuals to express their views to the local governing bodies, especially colonial assemblies. The assemblies, following English tradition, treated petitions seriously and often referred them to committees for further action. Petitions were not always granted, but they were always answered.

In 1774, the Declarations and Resolves of the First Continental Congress proclaimed that the colonists “have a right peaceably to assemble, consider of their grievances, and petition the King; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.” The emphasis on the government’s lack of power to punish a citizen for petitioning made the right to petition more robust in the Revolutionary era than the more general right to freedom of speech. Colonial governments generally recognized the right to freedom of speech and of the press, but whatever the right’s extent, there is little evidence that it included the right to petition. Rather, the right to petition had its own legal pedigree. When considering the Bill of Rights, Congress approved the right to petition with little controversy and differentiated it in the text of the Amendment from the freedom of speech and press.

The right to petition guarantees only that citizens can communicate with the sovereign through petitions. It does not guarantee or require that the sovereign will respond in any particular way, or indeed, at all. Parliament and colonial legislatures nevertheless regarded themselves as obligated to respond to every petition, but that may have been because those bodies had judicial as well as legislative functions. In the American constitutional scheme, judicial power rests solely in the judicial branch, and the judiciary is the only branch of government that is always obligated to consider and respond to “petitions,” i.e., suits and complaints submitted to it.

The Supreme Court recently stated that the Petition Clause “protects the right of individuals to appeal to courts . . . established by the government for resolution of legal disputes.” Borough of Duryea, Pennsylvania v. Guarnieri (2011). In a vigorous dissent, Justice Antonin Scalia argued that the Petition Clause applied only to Congress and the Executive, and that the idea that it also applied to the courts came solely from dicta from late twentieth-century Supreme Court cases. The executive branch (including for these purposes the independent regulatory agencies), which traditionally would have had the option of replying to petitions, may arguably also have the obligation to respond to petitions when, in the modern administrative era, it is exercising judicial-like functions.

Congress initially took petitions very seriously, following the tradition of its colonial forebears. Most petitions were private claims, asking for a special bill as a means of settlement. The House of Representatives scheduled time into its regular business in order to hear petitions on the floor. Typically, the Representative of the petitioner’s state would assume the role of referring the petition to a special committee for consideration.

The committee considered petitions and reported to Congress, resulting either in a consideration of a bill or rejection of the petition. The exception was in petitions regarding slavery. A pattern developed by which Congress responded to petitions by sending them to committee, where they ultimately died without being answered, rejected, or denied.

In 1836, the House adopted a rule that “all petitions relating . . . to the subject of slavery or the abolition of slavery shall, without being either printed or referred, be laid upon the table and that no further action whatever by had thereon.” In 1840, the House ruled that it would not receive abolitionist petitions at all. After a fierce debate over the right to petition, led in part by Representative John Quincy Adams, the House repealed the “gag rule” in 1844; but thereafter anti-slavery petitions simply died in committee as before. Unlike those from the abolitionist movement, petitions regarding such issues as the National Bank, expulsion of Cherokees from Georgia, and the Alien and Sedition Acts, among many others, were duly considered by Congress.

The right to petition became less important as modern democratic politics gradually replaced petitioning and public protests as the primary means for constituents to express their views to their representatives. Today, Congress treats most petitions in a pro forma way. A Representative may present a petition on behalf of a private party to the Clerk of the House who enters it in the Journal. Normally, the House takes no formal action.

The right to petition has become somewhat anachronistic in modern times and has largely been subsumed in the right to freedom of speech. Indeed, in Borough of Duryea, Pennsylvania v. Guarnieri, the Supreme Court not only held, as noted above, that suits in court are a form of petition, but also that the right to petition provides no greater or different protection to government employees beyond what such employees have from the right to freedom of speech. Thus, the Court concluded, a government employee who criticizes his agency or superiors has protection against retaliatory action only if his criticism concerned a “matter of public concern” under both the free speech clause and the petition clause.

Here too Justice Scalia dissented. He would have allowed a suit based on the Petition Clause depending on whom the petitioner was suing: “[T]he Petition Clause protects public employees against retaliation for filing petitions unless those petitions are addressed to the government in its capacity as the petitioners’ employer, rather than its capacity as their sovereign.”

Nevertheless, the longstanding tradition of a right to petition does influence First Amendment jurisprudence. Under the Noerr-Pennington doctrine, for example, an effort to influence the exercise of government power, even for the purpose of gaining an anti-competitive advantage, may not create liability under the antitrust laws. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. (1961), United Mine Workers v. Pennington (1965). The Supreme Court initially adopted this doctrine under the right to freedom of speech, but it more precisely finds its constitutional source in the right to petition. Unlike speech, which can often be punished in the antitrust context, as when corporate officers verbally agree to collude, the right to petition confers absolute immunity on efforts to influence government policy in a non-corrupt way. Noerr-Pennington has been expanded beyond its original antitrust context to all situations in which plaintiffs claim a defendant’s lobbying activity or a lawsuit it filed (provided the lawsuit was not a sham) as evidence of illegal conduct. For example, trade associations cannot be held liable in tort for lobbying the government for lenient safety standards for their industry.

The Supreme Court first confronted the right to petition and its cognate, the right of assembly, in United States v. Cruikshank (1876), declaring that the right was “an attribute of national citizenship.” In Hague v. Committee for Industrial Organization (1939), members of the Court debated whether the right as applied against states resided in the Fourteenth Amendment’s Privileges or Immunities Clause or, as later cases concluded, in the Amendment’s Due Process Clause. The rights to petition and to peaceable assembly were also crucial in persuading the Supreme Court to hold that the First Amendment implicitly contains a right to expressive association, that is, a right to associate to engage in the activities protected by the First Amendment. The right of expressive association protected civil rights protestors from hostile state action in the 1950s and 1960s, and, after the Court’s decision in Boy Scouts of America v. Dale (2000), also protects groups that wish to promote ideals and values that conflict with the goals of modern antidiscrimination laws. To a large extent, then, the right to petition has found its modern home as an aspect of the right of expressive association.