Evolution of the Right to Petition, and Modern Applications

Back when I lived in Houston, TX there was a plan to place a small sewage treatment facility right next to the entrance of my neighborhood. As soon as residents heard of this plan they immediately gathered to petition our local government to stop these plans in their tracks. Soon after submitting their petition the group was met with a lawsuit from the company responsible for construction, claiming charges of defamation. Every day Americans assume they are able to enjoy and exercise the inalienable rights that were protected by our founding fathers in the Bill of Rights. However, in recent years it has come to the attention of many that our right to petition, as protected in the first amendment of the Bill of Rights, may be at risk. The source of concern is a controversial one that forces us to weigh the importance of our right to enter a plea against another citizen, against our right to petition freely without fear of redress. Over the past couple decades Strategic Lawsuits Against Public Participation in government, also know as SLAPPs, have become a tool used by corporations (especially those in real-estate) to silence critics who petition against their actions. The goal of delay and distraction is accomplished by forcing defendants to bear the burden of litigation costs in order to defend themselves from the impending lawsuit. Twenty-Eight states have already passed anti-SLAPP statutes, however I believe it is necessary for the national government to pass a nationwide anti-SLAPP law in order to protect what is arguably one of its citizens most fundamentally important rights. In order to support this claim however, it is imperative for us to examine the history of how the right to petition has been used, and the development of precedents that show how this right has been interpreted and protected through out its long English and American History. Petitioning the King for redress long predated the writing of the Magna Carta or any significant legal document. Contrary to what we would see in 1215, it historically applied only to a very limited set of grievances. These were only brought to the king after being addressed by lower authorities and was seen as the ultimate symbol of regal authority. This notion is supported by codifications that explicitly state that relief was available for the benefit of the monarch, not the claimant (Gregory). Similarly, these petitions were not used in any way to affect change in the king’s actions and thus provided no actual check on the king’s power. After the numerous abuses of power by King John, it quickly became evident that a check needed to be placed upon him, and thus the Magna Carta was written. This document was the inaugural document that attempted to hold a king responsible for his actions toward the people. The abuse of power on his part saw a departure from the customs of common feudal law that had governed the land for years before. The Magna Carta provided the barons the ability to petition the King, therefore bringing his failure to observe the aforementioned provisions to his eye (Painter). Unfortunately the rights that were agreed upon in the Magna Carta were ultimately short-lived and ineffective as a product of each king having to re-sign and agree to the document. However, it’s place in English common law was eventually solidified and it became the building block upon which later generations would attempt to secure their “natural rights” they believed every Englishman was born with. Additionally it fundamentally changed the way in which the right to petition was utilized. Transforming it from a government function that benefited the king, to a way in which common citizens could attempt to affect change in governmental policy. Over the next 400 years the right to petition was used mainly in the realm of parliamentary procedure and would eventually become the fundamental tool used to secure additional rights for Englishmen in 1628. The English Petition of Right, like many of these groundbreaking documents, arose from hardships placed upon English citizens at the hands of their ruler. After enduring increasing taxes to pay for failing wars, forced loans, periods of martial law (which at the time was considered the absence of law), and a great number of other grievances, the House of Lords and House of Commons began to greatly distrust King Charles I and his ministers. They attempted to write public resolutions that secured further rights for Englishmen, however none could be passed without Charles’ signature and were therefore essentially useless. Facing this obstacle, Sir Edward Coke suggested that the two houses join together and pass the resolutions in the form of a petition, one of the oldest forms of parliamentary processes. Eventually after drafting and much debate on revisions, the Petition of Right was passed by the House of Lords on May 26, and by the House of Commons on May 27th. The King was very reluctant to accept the Petition of Right, but eventually did so formally on June 7th, 1628 (Boynton). The method by which Charles I accepted the Petition was the same manner in which he would have normally accepted a parliamentary bill into law, speaking the words "soit droit fait comme est desire" (let it be done as it is desired). This was the first “signature win” for the right to petition in England. The people (through parliament) were able to influence government policies that were detrimental to the well being of its citizens. This provides very evident foreshadowing for the way we, as Americans now choose to exercise our right to petition, however with one slight twist, being that it is the common man in America who can also bring issues that he/she finds important, to the government’s attention. The next half-century in England was full of turmoil, including a series of civil wars and a temporary departure from the monarchy all-together. All of the fighting to secure the rights of Englishmen was not in vein however, and the ends that many sought would eventually come to fruition following the short reign of James II. King Charles II ruled until his death on February 6, 1685, converting to Catholicism on his deathbed. Having no direct heirs, he was succeeded by his brother who would rule as James II in England, also a catholic. He was at first welcomed with open arms by the parliament and the people who were elated at the peaceful transfer of power. However after being forced to deal with two rebellions quickly after his ascension, he decided to raise a standing army. This worried people because it directly contradicted common law that prohibited keeping a standing army during peacetime. In addition to this, James’ Catholicism lead him to make many decisions, and use his dispensing power in a way that alienated the majority of the Established Church who were typically allies to the monarchy. One his most controversial decisions was to arrest and try 7 bishops who submitted a petition asking for a reconsideration of his religious policies. This directly violated the common English ideal that protected petitioners from prosecution (Vallance). These policies were seen as temporary as long as James had no heir, however news of the Queen’s pregnancy in 1688 and the eventual birth of a son drove influential Protestants to begin negotiation with William, Prince of Orange. He was eventually asked to come to England with and army in June of 1688, and arrived on November 5th. Upon his arrival, many Protestant officers in the king’s army defected to join William and as a result James’ confidence waivered, leading him to attempt flight to France, and in the process, he threw The Great Seal of the Realm (which was needed to call parliament) into the River Thames. This was seen as an act of abdicating the throne, thereby leaving it open for joint rule by Mary Tudor and William of Orange. This was known as the Glorious Revolution because of the lack of blood spilled (Vallance). Before either could assume the throne, the House of Commons proposed a statement that outlined the rights and liberties of subjects, and simultaneously outlined the violation of these rights by their predecessor, James II. The ideas in this document directly mirror those of English philosophers of the day, most notably John Locke and William Blackstone. In his Commentaries on the Laws of England, Blackstone outlined the “principal absolute rights which appertain to every Englishman” as the rights of personal security, personal liberty, and private property. However he felt that without a means by which to protect and maintain these rights, they would ultimately be in vain. So he proposed the existence of certain other subordinate auxiliary rights who’s function was to secure the actual enjoyment of the aforementioned principal absolute rights. Consequently, one of these rights was the right to petition the king, or either house of parliament for redress of grievances. This was seen as the last protection given to the people from the actions of others or their government before the right to have arms for defense, which is the final auxiliary right outlined by Blackstone. On the other hand Locke was a social contract and natural law theorist, who believed that life in the State of Nature was not unbearable; instead it was mostly good and pleasant. However, without a just governing body, justice had to be sought by individuals who were wronged by one another, leading the State of Nature to be inherently insecure and periodically violent. This reality leads rational men to enter into a “social contract” with one another by giving up their right to seek personal retribution for wrongs against themselves, and instead granting that power to an “impartial justice backed by overwhelming force” (Tuckness). The role of the state in this contract is simply to enforce justice, which inherently includes protecting every individual’s natural right to “his life, liberty, and estate against the injuries and attempts of other men.” Locke continues to go further and explains that this social contract can be broken on the part of the sovereign (Tuckness). You can see here that Locke’s view of society requires both sides, the ruling and ruled, to concede certain rights to one another, and that if both sides are not honored then the contract is ultimately dissolved. Following the dissolution of the contract, the original State of Nature is reinstated which gives the people back the right to exact retribution for themselves. Looking back upon the events of the Glorious Revolution, it is easy to see that James II had broken the social contract with his citizens, who were then obligated to instigate a revolution in order to secure their natural rights. The act mentioned earlier, by the House of Commons before William and Mary’s ascention concerning these rights would become known as the English Bill of Rights 1689. In this monumental act, parliament guaranteed numerous rights for Englishmen, most notably prohibiting the government from taxing by royal prerogative, interfering with the freedom of people to have arms for their defense, impeaching the freedom of speech, the use of excessive bail or cruel/unusual punishments, and finally it granted the people the freedom to petition the monarch without fear of retribution (English). The relationship between this act and the Bill of Rights that would be ratified almost exactly one century later by the 1st United States Congress is blatantly obvious. This document along with the Magna Carta, The Petition of Right, and numerous others all constitute what is know as the Constitution of the United Kingdom. These documents, while separate, provided a blueprint for America’s founding fathers, who were also part of a social contract that was broken by King George III. After that contract was broken, the colonies were obligated to overthrow the oppressive English government and establish their own. They did this by declaring their Independence in 1776. The Declaration of Independence outlined the wrongs done by the crown unto the colonies; similar to the way revolting Englishmen had done with oppressive kings in the past. In addition the language used in the document was very Lockean, including familiar phrases like “all men are created equal, that they are endowed by their Creator with certain inalienable rights” and “That whenever any form of government becomes destructive of these ends (inalienable rights), it is the right of the people to alter or abolish it, and to institute new government.” The language used provides significant evidence that America was to be a country that operated under the social contract theory proposed by Locke. Understanding that our society was founded upon the these ideas is pivotal when it comes to the issue of SLAPP suits as will soon be discussed. According to the First Amendment of the Constitution “congress shall make no law… abridging… the right of the people to peaceably assemble and to petition the government for the redress of grievances.” However in recent years our right to petition freely as citizens has come under great duress with the rise of SLAPP lawsuits, which now have many citizens afraid to exercise this fundamental right. SLAPPs have become a favorite tool for large corporations and associations to silence opposing protesters under the burden of exorbitant litigation costs, and distract from the purpose of the individual’s petitions; this end is accomplished by alleging defamation, or libel on the part of the citizen. However, some critics might say, isn’t it everyone’s right to submit civil lawsuits for damages and injunction?” The answer to this question is yes, and by that reasoning every SLAPP lawsuit is completely legal because the corporations are simply exercising their basic constitutional rights. However court cases in the 1960s have given those on the short end of a SLAPP lawsuit a reason for hope. The Noerr-Pennington Doctrine arose from the court cases “Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc.” and ”United Mine Workers v. Pennington”. The subject of these lawsuits is unimportant, as it deals in the realm of anti-trust cases, however the scope granted by the court’s decisions have been broadened to extend immunity from a variety of tort (civil wrongs) cases, including those involving the Abuse of Processes (Reuters). The abuse of processes arise “from one party making a malicious and deliberate misuse or perversion of regularly issued court process (civil or criminal) not justified by the underlying legal action.” This applies directly to SLAPP lawsuits against citizens because these lawsuits “are not initiated with the intention of winning on the merits, but rather to harass, threaten, and intimidate the opposing citizens into dropping their lawsuits or stopping their petitions.” Because the intent of these lawsuits is not that for which they are suing, rather to create disruption in an attempt to silence petitioners, SLAPP lawsuits fall under the aforementioned doctrine that addresses the abuse of processes. With the Noerr-Pennington Doctrine in place, one would think that SLAPP lawsuits would never have come into being. Under the protection of this doctrine, any citizen “who is sued merely to intimidate and harass them for petitioning the government” would surely win in the end. However without the protection of anti-SLAPP laws, they may be forced to shoulder the burden of time and litigation costs before their eventual victory, which was the original goal of the SLAPP lawsuit.
Therefore I believe it is the duty of our national government to pass a nationwide anti-SLAPP law similar to that of Utah’s which allows “spurious lawsuits” to be dismissed at the pleading stage, and allows the defendant to recover costs and attorney’s fees. (Reuters) Without such a law the government is passively allowing for our right to petition to be taken away. The right to petition is second only to voting when it comes to ways in which the average citizen can meaningfully affect government policies and actions. In other words it is “the one method by which the unfranchised [can] take part in politics”(Krotoszynski). Additionally, Blackstone would argue that without the protection of the right to petition, our principal absolute rights to personal security, liberty and private property are at great risk. Losing the right to petition, as seen in numerous examples through out English history, is inversely related to a government ruled by the people and inevitably leads to revolution. According to our founding fathers we are a nation bound together by the social contract theory outlined by John Locke, therefore if the citizens loose their role in government processes, then the contract has been breached and every citizen then has the right to rise up against the government.
The common law that ruled England a millennia ago has not ceased to be prevalent in our society today. Its evolution through the past 1000 years has provided us with a clear view of how certain rights are to be exercised, and the right to petition is no exception. History has shown us that without the right to freely voice our opinions and complaints to the government, negative sentiment grows because the government becomes unresponsive to the needs of the people. Since we have all bought into the social contract theory it is the duty of our elected leaders to protect the inalienable rights we receive at birth. The fundamental right to petition has recently become endangered as the result of SLAPP lawsuits against citizens protesting to the government. Without intervention on the government’s part to pass anti-SLAPP lawsuits, our right will begin to slowly erode away, leading us down the slippery slope we saw through out English history.

Bibliography

Boynton, Lindsay. “Martial Law and the Petition of Right.” The English Historical Review, Vol. 79, No. 311 (April 1964), pp.255-284. Print

"English Bill of Rights." New World Encyclopedia, . 3 Apr 2008, 20:09 UTC. 11 Oct 2012, 18:41 <http://www.newworldencyclopedia.org/p/index.php?title=English_Bill_of_Rights&oldid=685819>.
Gregory A. Mark,The Vestigial Constitution: The History and Significance of the Right to Petition., 66 Fordham L. Rev. 2153 (1998).

Howard, Dick A. "Magna Carta Comes to America." American Heritage May 2008, 4 ed., Vol 58.

Kreis, Steven. “Lecture 7: The English Civil War.” The History Guide. August 3, 2009. Web. 15 October 2012

Krotoszynski, Ronald J. “Reclaiming the Petition Clause”: Yale University Press, April 2012. Print

Newton, Adam. "Petition - Overview." Firstamendmentcenter.org: Petition - Overview. First Amendment Center, n.d. Web. 28 Oct. 2012. <http://archive.firstamendmentcenter.org/petition/overview.aspx>

Reuters, Thomas. “Protecting Citizens’ Right to Petition the Government Through the SLAPP Act.” Utah Law Review Society (2005) Print.

Painter, Sidney “Magna Carta” The American Historical Review, Vol.53 No. 1 (October 1947) :pp 42-29. Print

Tuckness, Alex, "Locke's Political Philosophy", The Stanford Encyclopedia of Philosophy (Winter 2011 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/win2011/entries/locke-political/>.

"U.S. Constitution: First Amendment." Rights of Assembly & Petition. Find Law, 2012. Web. 11 Oct. 2012. <http://caselaw.lp.findlaw.com/data/constitution/amendment01/21.html>.

Vallance, Edward. “The Glorious Revolution.” BBC, 17 February 2011, Web. 15 October 2012

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[ 1 ]. After paragraphs securing the ends sought by the barons, Magna Carta provides, in part, in paragraph 61, we give and grant them the following security: namely, that the barons shall choose any twenty-five barons of the realm they wish, who with all their might are to observe, maintain and cause to be observed the peace and liberties which we have granted and confirmed to them by this our present charter;, so that if we or our justiciar or our bailiffs or any of our servants offend against anyone in any way, or transgress any of the articles of peace or security, and the offence is indicated to four of the aforesaid twenty-five barons, those four barons shall come to us or our justiciar, if we are out of the kingdom, and shall bring it to our notice and ask that we have it redressed without delay.
Manuscript Cii of Magna Carta (1215)
[ 2 ]. If there should happen any uncommon injury, or infringement of the rights beforementioned, which the ordinary course of law is too defective to reach, there still remains a fourth subordinate right appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redress of grievances.
[ 3 ]. “Whensoever…the Legislative shall transgress this fundamental Rule of Society, and either by Ambition, Fear, Folly or Corruption, endeavor to grasp themselves, or put into the hands of any other an Absolute Power over the Lives, Liberties, and Estates of the People; By this breach of Trust they forfeit the Power the People had put into their hands, for quite contrary ends, and it devolves to the People.”