You can petition, but government not required to reply

Wednesday, June 6, 2007

The right to petition under the First Amendment does not impose an obligation
on the federal government to respond to citizens, the U.S. Circuit Court of
Appeals for the District of Columbia has ruled.

In We
the People Foundation, Inc. v. United States,
decided May 8, the court
relied on two Supreme Court cases, Smith v. Arkansas State Highway
441 U.S. 463 (1979) and Minnesota State Board for Community
Colleges v. Knight,
465 U.S. 271, 286 (1984). Both concerned public-employee

In the Minnesota case, the high court held that “[N]othing in the First Amendment or in this Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to
communications of members of the public on public issues.”

The justices added that the First Amendment does not confer on individuals a “constitutional right as members of the public to a governmental audience for their policy views.”

We the People Foundation, a nonprofit, liberal advocacy organization, and
numerous individuals filed a suit in 2004 against the federal government,
charging that the president, attorney general, treasury secretary, Internal
Revenue Service commissioner and Congress did not properly respond to the
plaintiffs' petitions of grievance. The plaintiffs had submitted four petitions
in November 2002 to each member of Congress on subjects such as war powers,
privacy issues, the Federal Reserve System and the tax code. The plaintiffs also
petitioned the executive branch.

In response to their petitions, We the People and the individual plaintiffs
received nothing: “total silence and a lack of acknowledgement,” according to
their complaint. In protest, some of the individual plaintiffs stopped paying
their taxes.

Although Supreme Court precedent holds that the government has no obligation
to respond to citizens’ questions or petitions, the plaintiffs argued that the
D.C. Circuit should rule differently, in part because the Supreme Court cases
applied to state rather than federal governments. They also contended that when
the Founding Fathers drafted the Constitution and Bill of Rights, they held a
more expansive view of citizen petitions than did the Court in those cases —
such that the right to petition should imply a government obligation to respond
to grievances.

The D.C. Circuit disagreed.

“Plaintiffs contend that the First Amendment guarantees a citizen's right to
receive a government response to or official consideration of a petition for
redress of grievances. Plaintiffs' argument fails because, as the Supreme Court
has held, the First Amendment does not encompass such a right,” the D.C. Circuit
opinion says.

Further, it said, because the First Amendment applies to state as well as the
federal government, there is no indication that the Supreme Court intended its
earlier petition rulings to apply only to states. Relying solely on Supreme
Court precedent, the D.C. Circuit did not reach the issue of the framers’ intent
in drafting the First Amendment — but did point to commentary on both sides of
the debate. In particular, the court cited scholarship supporting the view “that
the Petition Clause by its terms refers only to a right ‘to petition,’” as well
as the “work of several commentators who suggest that [the Supreme Court cases]
overlooked important historical information” in interpreting the right to

Interestingly, D.C. Circuit Justice Judith Rogers wrote a concurring opinion
reviewing the history of, and the scholarly work on, petition, noting the many
scholars who embrace the idea that a duty to respond lies inherently in that

Rogers further wrote that the Supreme Court’s history of broadly interpreting
“speech” in First Amendment analysis to include more than the mere spoken word
indicates the high court’s “traditional interpretative approach to the First
Amendment.” Without appearing to take sides on the scholarship, Rogers did write
that the debate over the duty to respond would be a proper and “interesting
question” for the Supreme Court to take up.

The plaintiffs could appeal to the Supreme Court, but chances of certiorari
being granted would be slim. There is no indication that the Supreme Court
justices have any interest in revisiting the right to petition. Until they do,
the well-established case law holds no duty on government's part to respond to
citizens’ grievances and petitions.

Julie P. Samuels is an attorney in Chicago at the law firm of Loeb &