The right to petition the government for redress of grievances includes a
right to file suit in a court of law.
The U.S. Supreme Court has collapsed or folded in the distinct right to
petition with other protections for group speech. In NAACP v.
Button,Virginia attempted to enforce its prohibition of attorney
solicitation against the NAACP, which was soliciting and promoting litigation
designed to end racial segregation. In its 1963 decision, the Court found that
such lawsuits were a form of "political expression" and that the NAACP was a
political association. As such, the Court upheld a First Amendment right of
judicial access without special reliance on the petition clause.
When right-to-sue claims do not involve issues of constitutional magnitude,
the Court has grounded its First Amendment analysis in associational freedoms
inherent in a collective resort to the courts. But when neither constitutional
issues nor collective action is present, the Court has addressed claims of the
right to seek redress in court as a due-process or equal-protection
In its 1971 decision Boddie v. Connecticut, for example, the Court
ordered the waiver of court costs for indigents seeking a divorce — not because
of the right to petition, but because marriage and its dissolution have been
recognized as fundamental private interests. The Court reasoned that to deny a
divorce for lack of ability to pay the state’s court costs was to deny a
fundamental right entirely. Though the petitioners in Boddie raised the
petition clause as a basis for their challenge, the federal courts at every
level viewed the complaint through the prism of due process, which is the right
to fair administration of justice.
Due process, not the petition clause, likewise supports prisoners’ access to
law libraries and legal advisers in order to attack their sentences and
challenge the conditions of their confinement.
The most significant confirmation of a petition-based right to seek judicial
redress comes not from free-speech jurisprudence but from antitrust law. In a
series of cases beginning with Eastern Railroad Presidents Conference v.
Noerr Motor Freight Inc. in 1961, the Supreme Court recognized that
antitrust statutes should not penalize petitioners who join to seek passage and
enforcement of laws.
In Noerr, 41 truck drivers and their trade unions sued a collection of
railroads, railroad presidents and the public relations firm hired to influence
legislation concerning truck weight limits and tax rates for heavy trucks. The
Court found that the railroad defendants’ influence campaign was immune from
antitrust liability under the Sherman Act because "the right to petition is one
of the freedoms protected by the Bill of Rights, and we cannot, of course,
lightly impute to Congress an intent to invade these freedoms."
Even if, as was true four years later in United Mine Workers v.
Pennington, the defendants specifically intended to eliminate competition
through their petitioning efforts, they remain immune from liability. In the
1972 decision California Motor Transport v. Trucking Unlimited, the Court
capped the so-called "Noerr-Pennington doctrine" by explicitly linking antitrust
immunity to the petition clause:
"The same philosophy governs 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 to
The shelter afforded by the petition clause from application of antitrust
laws has been expanded by lower courts to include immunity from state tort laws
and the Civil Rights Act for activities designed to elicit government action. An
example would be a 1980 case, Missouri v. NOW, in which Missouri claimed
economic damage from a National Organization for Women boycott to induce states
to ratify the Equal Rights Amendment. The court held NOW’s activities to be
political, a form of petition that was thereby immune from Missouri’s effort to
Excepted from such immunity, however, is a "sham" petition that is baseless,
objectively unreasonable, and undertaken for an improper purpose unrelated to
the vindication of rights. In Landmarks Holding Corp. v. Bermant (1981),
for instance, a court found in favor of real-estate developers seeking to build
a shopping center. The developers alleged a campaign of meritless lawsuits and
moves for delay by property owners and competing shopping centers.
In 1983, the Supreme Court’s opinion in Bill Johnson’s Restaurants, Inc.
v. NLRB set out the principle that “the right of access to the courts is an
aspect of the First Amendment right to petition the Government for redress of
In a June 2002 decision, BE&K
Construction Co. v. National Labor Relations Board, the high court,
though not ruling on First Amendment grounds, nevertheless noted that it had
long viewed the right to sue in court as a form of petition.
"We have recognized this right to petition as one of the most precious of the
liberties safeguarded by the Bill of Rights," Justice Sandra Day O'Connor wrote
for the Court, "and have explained that the right is implied by the very idea of
a government, republican in form."
O’Connor further observed that the First Amendment petition clause says
nothing about success in petitioning — "it speaks simply of the right of the
people to petition the Government for a redress of grievances."
First Amendment scholar David L. Hudson Jr. contributed to this article.
Updated February 2010