United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 6, 2006 Decided May 8, 2007
No. 05-5359
WE THE PEOPLE FOUNDATION, INC., ET AL.,
APPELLANTS
v.
UNITED STATES OF AMERICA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 04cv01211)
Mark Lane argued the cause for appellants. With him on
the briefs was Robert L. Schulz, pro se.
Carol Barthel, Attorney, U.S. Department of Justice, argued
the cause for appellees. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed, and
Kenneth L. Greene, Attorney. Bruce R. Ellisen and Kenneth W.
Rosenberg, Attorneys, entered appearances.
2
Before: GINSBURG, Chief Judge, and ROGERS and
KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge KAVANAUGH,
in which Chief Judge GINSBURG and Circuit Judge ROGERS join.
Concurring opinion filed by Circuit Judge ROGERS.
KAVANAUGH, Circuit Judge: Ratified in 1791, the First
Amendment to the United States Constitution provides in part
that “Congress shall make no law . . . abridging . . . the right of
the people . . . to petition the Government for a redress of
grievances.” Plaintiffs are citizens who petitioned various parts
of the Legislative and Executive Branches for redress of a
variety of grievances that plaintiffs asserted with respect to the
Government’s tax, privacy, and war policies. Alleging that they
did not receive an adequate response, plaintiffs sued to compel
a response from the Government.
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. See Minn. State
Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 283, 285 (1984);
Smith v. Arkansas State Highway Employees, 441 U.S. 463, 465
(1979).
I
Plaintiffs are numerous individuals and an organization that
creatively calls itself “We the People.” For purposes of this
appeal, we take the allegations in the complaint as true.
According to plaintiffs, they have engaged since 1999 in “a
nationwide effort to get the government to answer specific
3
questions” regarding what plaintiffs view as the Government’s
“violation of the taxing clauses of the Constitution” and
“violation of the war powers, money and ‘privacy’ clauses of the
Constitution.” Joint Appendix (“J.A.”) 80 (Am. Compl. ¶ 3).
Plaintiffs submitted petitions with extensive lists of inquiries to
various government agencies. On March 16, 2002, for example,
plaintiffs submitted a petition with hundreds of inquiries
regarding the tax code to a Member of Congress and to various
parts of the Executive Branch, including the Department of
Justice and the Department of the Treasury. On November 8,
2002, plaintiffs presented four petitions to each Member of
Congress. Those petitions concerned the Government’s war
powers, privacy issues, the Federal Reserve System, and the tax
code. On May 10, 2004, plaintiffs submitted a petition
regarding similar issues to the Executive Branch, including the
Department of Justice and the Department of the Treasury.
Plaintiffs contend that the Legislative and Executive
Branches have responded to the petitions with “total silence and
a lack of acknowledgment.” J.A. 85 (Am. Compl. ¶ 35). In
protest, some plaintiffs have stopped paying federal income
taxes.
Based on their view that the Government has not
sufficiently responded to their petitions, plaintiffs filed suit in
the United States District Court for the District of Columbia.
They raised two claims. First, plaintiffs contend that the
Government violated their First Amendment right to petition the
Government for a redress of grievances by failing to adequately
respond to plaintiffs’ petitions. In particular, plaintiffs contend
that the President, the Attorney General, the Secretary of the
Treasury, the Commissioner of the Internal Revenue Service,
and Congress neglected their responsibilities under the First
Amendment to respond to plaintiffs’ petitions. Plaintiffs want
the Government to enter into “good faith exchanges” with
4
plaintiffs and to provide “documented and specific answers” to
the questions posed in the petitions. J.A. 78 (Am. Compl.).
Second, plaintiffs claim that government officials – by
seeking to collect unpaid taxes – have retaliated against
plaintiffs’ exercise of First Amendment rights. Plaintiffs
therefore asked the District Court to enjoin the Internal Revenue
Service, the Department of Justice, and other federal agencies
from retaliating against plaintiffs’ exercise of their constitutional
rights (in other words, to prevent the Government from
collecting taxes from them).
The Government has responded that the federal courts lack
jurisdiction over either claim because the Government has not
waived its sovereign immunity with respect to the causes of
action asserted by plaintiffs. As to the Petition Clause claim, the
Government has contended in the alternative that plaintiffs have
failed to state a claim for which relief could be granted because
the Petition Clause does not require the Government to respond
to or officially consider petitions.
The District Court dismissed plaintiffs’ complaint. We The
People v. United States, No. 04-cv-1211, slip op. at 6 (D.D.C.
Aug. 31, 2005). The Court ruled that the First Amendment does
not provide plaintiffs with the right to receive a government
response to or official consideration of their petitions. Id. at 2-3.
In addition, the District Court concluded that the Anti-Injunction
Act bars plaintiffs’ claim for injunctive relief with respect to the
collection of taxes. See id. at 5 (citing 26 U.S.C. § 7421).
II
Plaintiffs raise two legal arguments on appeal. First,
plaintiffs contend that they have a First Amendment right to
receive a government response to or official consideration of
5
their petitions. Second, plaintiffs argue that they have the right
to withhold payment of their taxes until they receive adequate
action on their petitions.
The Government renews its argument that plaintiffs’ claims
are barred by sovereign immunity. In response, plaintiffs have
contended that Section 702 of the Administrative Procedure Act
waives the Government’s sovereign immunity. That section
provides: “A person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency action
within the meaning of a relevant statute, is entitled to judicial
review thereof. . . . The United States may be named as a
defendant in any such action . . . .” 5 U.S.C. § 702. The
Government acknowledges that Section 702 waives sovereign
immunity from suits for injunctive relief. See Dep’t of the Army
v. Blue Fox, Inc., 525 U.S. 255, 260-61 (1999) (describing
Section 702 as waiving the Government’s immunity from
actions seeking relief other than money damages); Trudeau v.
FTC, 456 F.3d 178, 186 (D.C. Cir. 2006) (“[T]here is no doubt
that § 702 waives the Government’s immunity from actions
seeking relief other than money damages.”) (internal quotation
omitted). The Government contends, however, that plaintiffs’
claims fall within an exception to Section 702 that provides:
“Nothing herein . . . affects other limitations on judicial review
. . . .” 5 U.S.C. § 702. The Government further argues that the
Anti-Injunction Act presents just such a barrier to judicial relief
in this case because of the Act’s provision that “no suit for the
purpose of restraining the assessment or collection of any tax
shall be maintained in any court by any person.” 26 U.S.C.
§ 7421(a).
We agree with the Government that the Anti-Injunction Act
precludes plaintiffs’ second claim – related to collection of
taxes. See Bob Jones Univ. v. Simon, 416 U.S. 725, 726-27,
749-50 (1974). In asserting that claim, plaintiffs seek to restrain
6
the Government’s collection of taxes, which is precisely what
the Anti-Injunction Act prohibits, notwithstanding that plaintiffs
have couched their tax collection claim in constitutional terms.
See Alexander v. “Americans United” Inc., 416 U.S. 752,
759-60 (1974).
Plaintiffs also raise, however, a straight First Amendment
Petition Clause claim – namely, that they have a right to receive
a government response to or official consideration of their
various petitions. By its terms, the Anti-Injunction Act does not
bar that claim, and Section 702 waives the Government’s
sovereign immunity from this suit for injunctive relief, at least
with respect to plaintiffs’ allegations regarding actions of certain
of the named defendants. See 26 U.S.C. § 7421; cf. Trudeau,
456 F.3d at 187. We therefore will consider that claim on the
merits.
III
The First Amendment to the Constitution provides:
“Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.” U.S. CONST. amend. I. Plaintiffs
contend that they have a right under the First Amendment to
receive a government response to or official consideration of a
petition for a redress of grievances. We disagree.
In cases involving petitions to state agencies, the Supreme
Court has held that the Petition Clause does not provide a right
to a response or official consideration. In Smith v. Arkansas
State Highway Employees, for example, state highway
commission employees argued that a state agency violated the
First Amendment by not responding to or considering
7
grievances that employees submitted through their union. See
441 U.S. 463, 463-64 & n.1 (1979). In response, the Court held
that “the First Amendment does not impose any affirmative
obligation on the government to listen, to respond or, in this
context, to recognize the association and bargain with it.” Id. at
465.
Likewise, in Minnesota State Board for Community
Colleges v. Knight, the Supreme Court evaluated a state law that
required public employers to discuss certain employee matters
exclusively with a union representative; this prevented nonunion
employees from discussing those matters with their employers.
465 U.S. 271, 273 (1984). Holding that the state statutory
scheme had not “unconstitutionally denied an opportunity to
participate in their public employer’s making of policy,” the
Court reiterated: “Nothing 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 individuals’ communications on public
issues.” Id. at 285, 292. Therefore, the Court concluded that
individuals “have no constitutional right as members of the
public to a government audience for their policy views.” Id. at
286.
Plaintiffs contend that Smith and Knight do not govern their
claims in this case because those cases addressed petitions to
state officials regarding public policy, not claims that the
Federal Government has violated the Constitution. Plaintiffs’
attempted distinction is at best strained. In both cases, the
Supreme Court flatly stated that the First Amendment, which
has been incorporated against the States by the Fourteenth
Amendment, does not provide a right to a response to or official
consideration of a petition. Knight, 465 U.S. at 285; Smith, 441
U.S. at 465. Nothing in the two Supreme Court opinions hints
at a limitation on their holdings to certain kinds of petitions or
8
certain levels of Government. In short, the Supreme Court
precedents in Smith and Knight govern this case.
IV
Plaintiffs cite the work of several commentators who
suggest that Smith and Knight overlooked important historical
information regarding the right to petition. Those commentators
point to the government practice of considering petitions in
some quasi-formal fashion from the 13th century in England
through American colonial times – a practice that continued in
the early years of the American Republic. Based on this
historical practice, plaintiffs and these commentators contend
that the Petition Clause should be interpreted to incorporate a
right to a response to or official consideration of petitions. See,
e.g., Stephen A. Higginson, A Short History of the Right to
Petition Government for the Redress of Grievances, 96 YALE
L.J. 142, 155 (1986); James E. Pfander, Sovereign Immunity and
the Right to Petition: Toward a First Amendment Right to
Pursue Judicial Claims Against the Government, 91 NW. U. L.
REV. 899, 904-05 & n.22 (1997); Julie M. Spanbauer, The First
Amendment Right to Petition Government for a Redress of
Grievances: Cut From a Different Cloth, 21 HASTINGS CONST.
L.Q. 15, 17-18 (1993); Note, A Petition Clause Analysis of Suits
Against the Government: Implications for Rule 11 Sanctions,
106 HARV. L. REV. 1111, 1116-18 (1993); cf. David C.
Frederick, John Quincy Adams, Slavery, and the Disappearance
of the Right of Petition, 9 LAW & HIST REV. 113, 116-18, 141
(1991).
Other scholars disagree, arguing based on the plain text of
the First Amendment that the “right to petition the government
for a redress of grievances really is just a right to petition the
government for a redress of grievances.” Gary Lawson & Guy
Seidman, Downsizing the Right to Petition, 93 NW. U. L. REV.
9
739, 766 (1999); cf. Norman B. Smith, “Shall Make No Law
Abridging . . .”: An Analysis of the Neglected, but Nearly
Absolute, Right of Petition, 54 U. CIN. L. REV. 1153, 1190-91
(1986). These scholars note that the Petition Clause by its terms
refers only to a right “to petition”; it does not also refer to a right
to response or official consideration. See N. BAILEY, AN
UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (24th ed.
1782) (“To petition”: “to present or put up a Petition”); S.
JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (6th ed.
1785) (“To petition”: “To solicite; to supplicate”). As they
suggest, moreover, the Framers and Ratifiers did not intend to
incorporate every historical practice of British or colonial
governments into the text of the Constitution. See Lawson &
Seidman, 93 NW. U. L. REV. at 756-57; cf. Williams v. Florida,
399 U.S. 78, 92-93 (1970); Browning-Ferris Indus. of Vt., Inc. v.
Kelco Disposal, Inc., 492 U.S. 257, 274-76 (1989) (“Despite this
recognition of civil exemplary damages as punitive in nature, the
Eighth Amendment did not expressly include it within its
scope.”).
We need not resolve this debate, however, because we must
follow the binding Supreme Court precedent. See Tenet v. Doe,
544 U.S. 1, 10-11 (2005). And under that precedent, Executive
and Legislative responses to and consideration of petitions are
entrusted to the discretion of those Branches.
The judgment of the District Court is affirmed.
So ordered.
ROGERS, Circuit Judge, concurring: The text of the Petition
Clause of the First Amendment does not explicitly indicate
whether the right to petition includes a right to a response.
Appellants ask the court to consider the text in light of historical
evidence of how the right to petition was understood at the time
the First Amendment was adopted. Essentially, they contend
that the Petition Clause should be read in light of contemporary
understanding, which they suggest indicates that the obligation
to respond was part and parcel of the right to petition.
As the court points out, we have no occasion to resolve the
merits of appellants’ historical argument, given the binding
Supreme Court precedent in Smith v. Arkansas State Highway
Employees, 441 U.S. 463 (1979), and Minnesota State Board for
Community Colleges v. Knight, 465 U.S. 271 (1984). Op. at 9.
That precedent, however, does not refer to the historical
evidence and we know from the briefs in Knight that the
historical argument was not presented to the Supreme Court.
The Supreme Court’s interpretation of the Constitution has
been informed by the understanding that:
“The provisions of the Constitution are not
mathematical formulas having their essence in their
form; they are organic living institutions transplanted
from English soil. Their significance is vital not
formal; it is to be gathered not simply by taking the
words and a dictionary, but by considering their origin
and the line of their growth.”
Konigsberg v. State Bar of California, 366 U.S. 36, 50 n.10
(1961) (quoting Gompers v. United States, 233 U.S. 604, 610
(1914)). Even where the plain text yields a clear interpretation,
the Supreme Court has rejected a pure textualist approach in
favor of an analysis that accords weight to the historical context
and the underlying purpose of the clause at issue. For example,
2
in Lynch v. Donnelly, 465 U.S. 668 (1984), the Supreme Court
stated that “[t]he history may help explain why the Court
consistently has declined to take a rigid, absolutist view of the
Establishment Clause. We have refused ‘to construe the
Religion Clauses with a literalness that would undermine the
ultimate constitutional objective as illuminated by history.’” Id.
at 678 (quoting Walz v. Tax Comm’n, 397 U.S. 664, 671
(1970)); see id. at 673-75. Nor is the Supreme Court’s rejection
of literalism limited to the First Amendment.1
1
For instance, in Eleventh Amendment cases, the Supreme
Court has rejected “ahistorical literalism,” Alden v. Maine, 527 U.S.
706, 730 (1999), and instead has turned to “history, practice,
precedent, and the structure of the Constitution,” id. at 741; see id. at
711-24, 730-35, 741-44, explaining that “[a]lthough the text of the
Amendment would appear to restrict only the Article III diversity
jurisdiction of the federal courts, ‘we have understood the Eleventh
Amendment to stand not so much for what it says, but for the
presupposition . . . which it confirms,’” id. at 729 (omission in
original) (quoting Seminole Tribe of Florida v. Florida, 517 U.S. 44,
54 (1996) (quoting Blatchford v. Native Village of Noatak, 501 U.S.
775, 779 (1991))); see also Seminole Tribe, 517 U.S. at 69-70;
Principality of Monaco v. Mississippi, 292 U.S. 313, 320-26, 330
(1934); Hans v. Louisiana, 134 U.S. 1, 10-11, 15 (1890). In
construing the Fifth Amendment in Ullmann v. United States, 350
U.S. 422, 424-25, 438-39 (1956), the Supreme Court rejected the
contention that the privilege against self-incrimination protects an
individual who is given immunity from prosecution from being forced
to testify before a grand jury: For “the privilege against
self-incrimination[,] . . . it is peculiarly true that ‘a page of history is
worth a volume of logic.’ For the history of the privilege establishes
not only that it is not to be interpreted literally, but also that its sole
concern is . . . with the danger to a witness forced to give testimony”
that may lead to criminal charges. Id. at 438-39 (internal quotation
marks omitted) (citations omitted) (quoting New York Trust Co. v.
Eisner, 256 U.S. 345, 349 (1921)). And in interpreting the Ex Post
Facto Clause, the Supreme Court in Collins v. Youngblood, 497 U.S.
3
In the context of the First Amendment, the Supreme Court
has repeatedly emphasized the significance of historical
evidence. A few examples suffice to illustrate the point. In
Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982),
the Supreme Court acknowledged that:
[The] right of access to criminal trials [by the press] is
not explicitly mentioned in terms in the First
Amendment. But we have long eschewed any narrow,
literal conception of the Amendment’s terms, for the
Framers were concerned with broad principles, and
wrote against a background of shared values and
practices. The First Amendment is thus broad enough
to encompass those rights that, while not
37 (1990), relied on history rather than adopting a literal construction:
Although the Latin phrase “ex post facto” literally
encompasses any law passed “after the fact,” it has
long been recognized by this Court that the
constitutional prohibition on ex post facto laws
applies only to penal statutes which disadvantage the
offender affected by them. As early opinions in this
Court explained, “ex post facto law” was a term of art
with an established meaning at the time of the
framing of the Constitution.
Id. at 41 (internal citations omitted) (citing Calder v. Bull, 3 Dall. 386
(1798)); see Minnesota v. Carter, 525 U.S. 83, 88-89 (1998);
Maryland v. Craig, 497 U.S. 836, 844-49 (1990); Keystone
Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 502-03 (1987);
Goldstein v. Califoria, 412 U.S. 546, 561-62 (1973); Gravel v. United
States, 408 U.S. 606, 616-18 (1972); Wright v. United States, 302 U.S.
583, 607 (1938) (Stone, J., concurring); Olmstead v. United States,
277 U.S. 438, 476-77 (1928) (Brandeis, J., dissenting); Boyd v. United
States, 116 U.S. 616, 634-35 (1886).
4
unambiguously enumerated in the very terms of the
Amendment, are nonetheless necessary to the
enjoyment of other First Amendment rights.
Id. at 604 (internal quotations marks omitted) (citations
omitted). In Lynch v. Donnelly, the Supreme Court
acknowledged that its “interpretation of the Establishment
Clause has comported with what history reveals was the
contemporaneous understanding of its guarantees.” 465 U.S. at
673; see id. at 673-77. In Marsh v. Chambers, 463 U.S. 783,
786-94 (1983), the Supreme Court looked to contemporary
practice from the early sessions of Congress and to later
congressional practice in holding that paid legislative chaplains
and opening prayers do not violate the First Amendment. See
Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue,
460 U.S. 575, 583-85 (1983); Engel v. Vitale, 370 U.S. 421,
425-33 (1962); Everson v. Bd. of Educ., 330 U.S. 1, 7-15 (1947);
Grosjean v. Am. Press Co., 297 U.S. 233, 240, 245-49 (1936);
Near v. Minnesota, 283 U.S. 697, 713-18 (1931).2
Appellants point to the long history of petitioning and the
importance of the practice in England, the American Colonies,
and the United States until the 1830's as suggesting that the right
to petition was commonly understood at the time the First
Amendment was proposed and ratified to include duties of
consideration and response. See Julie M. Spanbauer, The First
2
Similar analysis is found in the Supreme Court’s
interpretation of other provisions of the Constitution. See Crawford
v. Washington, 541 U.S. 36, 42-50 (2004) (Sixth Amendment);
Atwater v. City of Lago Vista, 532 U.S. 318, 326-40, 345 n.14 (2001)
(Fourth Amendment); U.S. Term Limits, Inc. v. Thornton, 514 U.S.
779, 782-83, 800-15 (1995) (Tenth Amendment); Harmelin v.
Michigan, 501 U.S. 957, 975-85 (1991) (Eighth Amendment);
Wesberry v. Sanders, 376 U.S. 1, 2-3, 7-17 (1964) (Art. I, § 2).
5
Amendment Right to Petition Government for a Redress of
Grievances: Cut From a Different Cloth, 21 HASTINGS CONST.
L.Q. 15, 22-33 (1993); Norman B. Smith, “Shall Make No Law
Abridging . . .”: An Analysis of the Neglected, but Nearly
Absolute, Right of Petition, 54 U. CIN. L. REV. 1153, 1154-68,
1170-75 (1986). Based on the historical background of the
Petition Clause, “most scholars agree that the right to petition
includes a right to some sort of considered response.” James E.
Pfander, Sovereign Immunity and the Right to Petition: Toward
a First Amendment Right to Pursue Judicial Claims Against the
Government, 91 NW. U. L. REV. 899, 905 n.22 (1997); see David
C. Frederick, John Quincy Adams, Slavery, and the Right of
Petition, 9 LAW & HIST. L. REV. 113, 141 (1991); Spanbauer,
supra, at 40-42; Stephen A. Higginson, Note, A Short History of
the Right to Petition, 96 YALE L.J. 142, 155-56 (1986); Note, A
Petition Clause Analysis of Suits Against the Government:
Implications for Rule 11 Sanctions, 106 HARV. L. REV. 1111,
1116-17, 1119-20 (1993); see also Akhil Reed Amar, The Bill
of Rights as a Constitution, 100 YALE L.J. 1131, 1156 (1991)
(lending credence to Higginson’s argument that the Petition
Clause implies a duty to respond). Even those who take a
different view, based on a redefinition of the question and
differences between English and American governments,
acknowledge that there is “an emerging consensus of scholars”
embracing appellants’ interpretation of the right to petition. See
Gary Lawson & Guy Seidman, Downsizing the Right to Petition,
93 NW. U. L. REV. 739, 756 (1999).
The sources cited by appellants indicate that “[t]he debates
over the inclusion of the right to petition reveal very little about
why the convention delegates may have regarded the right as
important or what the ‘framers’ intended with respect to the
substantive meaning of the right.” Frederick, supra, at 117 n.19
(citing 4 BERNARD SCHWARTZ, THE ROOTS OF THE BILL OF
RIGHTS 762-66, 840-42 (1980)); see Higginson, supra, at 155-
6
56. But neither textual omission3 nor the absence of explicit
statements by Framers or Ratifiers on the precise issue has been
dispositive in the Supreme Court’s First Amendment
jurisprudence. Instead, the historical context and the underlying
purpose have been the hallmarks of the Supreme Court’s
approach to the First Amendment. See, e.g., Buckley v. Valeo,
424 U.S. 1, 14-15 (1976); New York Times Co. v. Sullivan, 376
U.S. 254, 269-71 (1964); Roth v. United States, 354 U.S. 476,
481-84, 488 (1957); Beauharnais v. Illinois, 343 U.S. 250, 254-
55 (1952).
The Supreme Court’s free speech precedent is illustrative.
Although the textual meaning of “speech” is as clear, in terms
of dictionary definitions, as the meaning of “petition,” the
Supreme Court has interpreted “speech” broadly in order to
protect freedom of expression:
The First Amendment literally forbids the abridgment
3
See, e.g., Globe Newspaper, 457 U.S. at 604. The Supreme
Court has adopted the same approach in interpreting other provisions
of the Constitution. For example, in holding that the Speech or Debate
Clause applies to a Senator’s aide even though it mentions only
“Senators and Representatives,” the Supreme Court in Gravel
observed that although the Clause “speaks only of ‘Speech or
Debate,’” its precedent, consistent with adhering to the underlying
purpose of the Clause, “ha[d] plainly not taken a literalistic approach
in applying the privilege” to protect committee reports, resolutions,
and voting. Gravel, 408 U.S. at 617; see id. at 616-18. In the Fourth
Amendment context, although the Amendment speaks only to
protecting people in their houses, the Supreme Court in Carter noted
that its precedent, in some situations, had extended that protection to
apply to individuals’ privacy in other people’s houses. Carter, 525
U.S. at 88-89; see also Faretta v. California, 422 U.S. 806, 819 &
n.15 (1975); Goldstein, 412 U.S. at 561-62; Principality of Monaco,
292 U.S. at 320-23, 330; Hans, 134 U.S. at 10-11, 15.
7
only of “speech,” but we have long recognized that its
protection does not end at the spoken or written
word . . . . [W]e have acknowledged that conduct may
be “sufficiently imbued with elements of
communication to fall within the scope of the First and
Fourteenth Amendments.”
Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v.
Washington, 418 U.S. 405, 409 (1974)); cf. NAACP v. Button,
371 U.S. 415, 430 (1963). The text of the First Amendment
mentions neither writing nor conduct, and at the time of the
Founding, as now, the word “speech” meant expression through
“vocal words.”4 Yet the Supreme Court has considered both the
4
2 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH
LANGUAGE (6th ed. 1785) (“speech”: “The power of articulate
utterance; the power of expressing thoughts by vocal words,”
“Language; words considered as expressing thoughts,” “Particular
language; as distinct from others,” “Any thing spoken,” “Talk;
mention,” “Oration, harangue,” “Declaration of thoughts”); 2 THOMAS
SHERIDAN, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (3d
ed. 1790) (“speech”: “The power of articulate utterance, the power of
expressing thoughts by vocal words; language, words considered as
expressing thoughts; particular language as distinct from others; any
thing spoken; talk, mention; oration, harangue”); see NATHAN BAILEY,
AN UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (24th ed. 1782)
(“speech”: “Language, Discourse”); see also THE AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1731 (3d ed.
1992) (“speech”: “The faculty or act of speaking,” “The faculty or act
of expressing or describing thoughts, feelings, or perceptions by the
articulation of words,” “Something spoken; an utterance,” “Vocal
communication; conversation”); THE NEW OXFORD AMERICAN
DICTIONARY 1630 (2d ed. 2005) (“speech”: “the expression of or the
ability to express thoughts and feelings by articulate sounds”); 16 THE
OXFORD ENGLISH DICTIONARY 175-77 (2d ed. 1989) (“speech”: “The
act of speaking; the natural exercise of the vocal organs; the utterance
of words or sentences; oral expression of thought or feeling”).
8
history and purpose of the First Amendment in according a
broad interpretation to the Free Speech Clause. Looking, in
part, to the Framers’ intent, the Supreme Court has held that the
Free Speech Clause applies to written communications, see City
of Ladue v. Gilleo, 512 U.S. 43, 45, 58 (1994); Bolger v. Youngs
Drug Prods. Corp., 463 U.S. 60, 61 (1983); Martin v. Struthers,
319 U.S. 141, 141-42, 149 (1943), as well as a broad range of
expressive activities, including spending to promote a cause,
First Nat’l Bank v. Bellotti, 435 U.S. 765, 767 (1978); Buckley,
424 U.S. at 19-20, burning the American flag, see Johnson, 491
U.S. at 399-400, 404-06, and dancing nude, see City of Erie v.
Pap’s A.M., 529 U.S. 277, 289 (2000); Barnes v. Glen Theatre,
Inc., 501 U.S. 560, 565-66 (1991). Furthermore, although the
dictionaries do not exclude any particular types of oral
communication from the definition of “speech,” the Supreme
Court has held, in light of the historical context, that the First
Amendment does not protect obscene speech, Roth, 354 U.S. at
481-85, 488; Miller v. California, 413 U.S. 15, 23 (1973),
libelous speech, Beauharnais, 343 U.S. at 254-55, 266, false
commercial speech, see Cent. Hudson Gas & Elec. Corp. v. Pub.
Serv. Comm’n, 447 U.S. 557, 563-64 (1980); Va. State Bd. of
Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771-
72 (1976), or speech that is “likely to cause a breach of the
peace,” Chaplinsky v. New Hampshire, 315 U.S. 568, 569, 573
(1942).
Of course, this court cannot know whether the traditional
historical analysis would have resonance with the Supreme
Court in a Petition Clause claim such as appellants have
brought. It remains to be seen whether the Supreme Court
would agree to entertain the issue, much less whether it would
agree with appellants and “most scholars” that the historical
evidence provides insight into the First Congress’s
understanding of what was meant by the right to petition and
reevaluate its precedent, or conversely reject that analysis in
9
light of other considerations, such as the nature of our
constitutional government. No doubt it would present an
interesting question. For now it suffices to observe that
appellants’ emphasis on contemporary historical understanding
and practices is consistent with the Supreme Court’s traditional
interpretative approach to the First Amendment.