steady-hall

 

 

On the same date, a motion to strike the words "assemble and" was made in order to eliminate the explicit right to assemble. The motion was made because the sponsor considered the right to assemble implicit in the First Amendment; the motion was defeated. [FN188] In fact, a number of representatives argued that the right to assemble was "trifling" in comparison to the rights of speech, press, and petition. [FN189] These representatives believed that inclusion of "assemble and" suggested an exacting enumeration of the components of each right. [FN190] This sentiment did not carry the day, but those who opposed the motion to strike the words "assemble and" did not do so because assembly and petition were inextricably linked as a single right. [FN191] The debates over the Petition Clause make clear that assembly was often a necessary component to the creation of collective petitions. The debates also indicate that the Framers wanted to ensure the assembly right in order to make meaningful the right of collective petition. [FN192]

On September 4, 1789, the Senate modified the amendment by substituting the words "to petition" for the words "apply to." [FN193] The Senate made some other minor changes, and on September 24, 1789, twelve amendments were finalized, approved by two-thirds of both Houses of Congress, and ready to be presented to the states for ratification. [FN194] Virtually no record of the state ratification debates exists beyond a tally of the actual vote. [FN195] Although the records of debates surrounding the framing and ratification of the petition guarantee are sparse, they evince no intent to change the original British and colonial experiences whereby the right to petition was subject to few restrictions and included a corresponding duty of governmental response.

IV. An Examination of Supreme Court Doctrine

Based on the history and evolution of the right to petition relative to the rights of speech and the press, this Article next focuses on a number of different contexts in which the Supreme Court has or has not addressed the right to petition. The Article then examines the impact of these decisions. The Supreme Court has unfortunately failed to recognize either legitimate petitioning activity or the superior status historically afforded petitioning. As a result, the Court has refused *43 to distinguish petitioning from speech and has refused to afford petitioning the appropriate level of constitutional protection.

A. The Right to Petition Must Include a Substantive Right of Access to Courts

Given both the historical development of petitioning and the tripartite system of government established by the Constitution, the First Amendment Petition Clause should be read to encompass a substantive right of access to the courts. [FN196] History notwithstanding, American jurisprudence has suffered due to insufficient recognition of the First Amendment Petition Clause.

The Supreme Court has recognized that the right of access to the courts is a component of the right to petition government for a redress of grievances and is constitutionally protected. [FN197] In several cases, the Court has analyzed claims of a right of access to the courts under either the Due Process or Equal Protection Clause of the Fourteenth Amendment. For instance, in Boddie v. Connecticut, [FN198] the Court held that the Due Process Clause required states to waive court costs and fee requirements for indigents seeking a divorce. [FN199] The Court ruled that, unlike resolution of other private disputes, a denial of access to those who could not afford to pay for a divorce was a denial of the right to a divorce and a complete denial of the right to be heard. [FN200]

In Ortwein v. Schwab, [FN201] a similar case involving a right of access claim, welfare recipients relied on Boddie to argue that state laws requiring appellate filing fees violated the Due Process and Equal Protection Clauses for indigents seeking to reverse a reduction in benefits. The Court distinguished Boddie and ruled that a post-hearing review of a reduction in benefits, as opposed to a complete denial of benefits, did not implicate fundamental interests. [FN202] The Court found that due process was satisfied by an initial hearing, which did not require the payment of fees, and that the appellate filing fees were rationally related to the legitimate state interest in recouping operating costs. [FN203]

The results in these cases can be read as not offending the protection historically afforded petitioning. The unique circumstances present in Boddie seem to require that fees be waived to allow an indigent access to the courts, the only avenue by which relief could be afforded. In Ortwein, by contrast, the petitioner was provided redress at the administrative level and sought discretionary review at the appellate level. [FN204] The right to petition was not denied; rather, the right was burdened as to appeal. The problem is not the results, but the Court's failure to recognize that the First Amendment Petition Clause should govern these claims. In both cases, petitioners invoked the First Amendment Petition Clause. [FN205] The Boddie Court, however, did not address the First Amendment issue. In a cursory footnote, the Ortwein court concluded: "Our discussion of the Due Process Clause, however, demonstrates that appellants' rights under the First Amendment have been fully satisfied." [FN206]

The only context in which the Supreme Court has been willing to find First Amendment Petition Clause protection is civil actions in which collective activity is undertaken to secure legal advice and initiate legal proceedings. In NAACP v. Button, [FN207] the Supreme Court held that the activities of the NAACP and the NAACP Legal Defense Fund in soliciting and financing litigation aimed at ending racial discrimination were protected under the First Amendment from state laws prohibiting attorney solicitation. [FN208] The Court emphasized that NAACP-sponsored litigation was a "form of political expression" and was very possibly the only avenue by which minority groups could petition government for redress of grievances. [FN209] The Court explicitly refused to rest its decision exclusively on the First Amendment Petition Clause, however, and instead focused on a conjunctive reading of the First Amendment expressive guarantees and its protection of group activities, associational interests, and speech on political issues. [FN210]

In subsequent decisions, the Supreme Court extended First Amendment Petition Clause protection to unions which utilized collective plans to provide legal advice to union members for personal injury claims. [FN211] Unlike Button, First Amendment protection was granted in these later cases despite the fact that the underlying litigation was not of constitutional magnitude. The Court found crucial to its decision the fact that collective activity was undertaken to secure meaningful access to the courts, and thus First Amendment associational interests were implicated. [FN212]

In each of these cases, the Court emphasized the presence of constitutionally protected speech and relied on the presence of collective activity but failed to squarely address the right to petition. Whether *46 individuals pursue redress of political grievances or groups collectively seek redress of private grievances, the Court should focus on the fact that the judicial process has been invoked. If the Court only grants First Amendment protection for right-of-access claims when other First Amendment rights are implicated, then the historically-distinct, superior right to petition will be lost through collapse into the other rights of the First Amendment.
Such a collapse has already occurred in the lower federal courts. A number of courts have concluded that the First Amendment right to petition the judiciary is not a substantive constitutional right separate from other First Amendment rights. In Altman v. Hurst, [FN213] a police officer who was demoted to foot patrol and denied the opportunity to work overtime in retaliation for filing a civil rights lawsuit against his employer. The United States Court of Appeals for the Seventh Circuit held that he failed to state a First Amendment right of access claim. [FN214] The court explained that the Supreme Court's decision in Button was premised on the presence of political expression, "not the general right to bring suit in a federal court of law." [FN215] The court made clear that unless the substance of the underlying lawsuit is constitutionally protected, "a private office dispute cannot be constitutionalized merely by filing a legal action." [FN216] Other federal courts of appeal have rendered similar assessments of public employee right-of-access claims. [FN217]

Consistent with the historical understanding of the right to petition, the better reasoned approach is that endorsed by the Third Circuit in Bradley v. Pittsburgh Board of Education. [FN218] In Bradley, an individual claimed that he was discharged in retaliation for filing a workmen's compensation claim. [FN219] Although the court refrained from deciding the right-of-access issue, it indicated a willingness to consider the claim:
[W]e are reluctant to foreclose Bradley's claim as a matter of law on the present record. There is a general principle, the parameters of which have not yet been delineated, that resort to the courts falls within the First Amendment right to petition. Arguably resort to an administrative tribunal, even for the non-communicative purpose of filing a personal injury claim, should be protected to the same extent. [FN220]

The Bradley decision is consistent with several lower court decisions involving claims of retaliation in the form of official cover-ups or intentional concealment of information necessary to an individual's ability to obtain redress in the courts. In Harrison v. Springdale Water & Sewer Commission, [FN221] the plaintiffs sued a water and sewer commission for damages resulting from sewage discharge into the plaintiffs' well. [FN222] They subsequently filed a civil rights lawsuit alleging that the defendants filed a frivolous condemnation counterclaim in the initial lawsuit in an attempt to induce the plaintiffs to settle their first lawsuit and sell their property to the city. [FN223] The Eighth Circuit Court of Appeals held that if the plaintiffs could prove that the defendants *48 utilized their power of eminent domain to force the plaintiffs to compromise their claims, the plaintiffs would establish that they were punished for seeking justice in the courts. [FN224] Such conduct, the court held, would infringe upon the plaintiffs' "constitutional right of access to the courts." [FN225] The court explained:

The cases from this Circuit, as well as from others, make it clear that state officials may not take retaliatory action against an individual designed either to punish him for having exercised his constitutional right to seek judicial relief or to intimidate or chill his exercise of that right in the future. [FN226]

In Ryland v. Shapiro, [FN227] the Fifth Circuit similarly found that wrongful interference with an individual's right of access to the courts is actionable. [FN228] In Ryland, the plaintiffs alleged that a district attorney and an assistant district attorney conspired to cover-up their daughter's murder by procuring a doctor or coroner to declare the death a suicide, and thereby interfered with the "exercise of their constitutionally protected right to institute a wrongful death suit in the Louisiana courts." [FN229] The Ryland court ruled that the First Amendment afforded substantive constitutional protection even though the underlying litigation involved a private dispute which did not implicate constitutional concerns. [FN230]

The lower federal courts are apparently willing to find substantive First Amendment protection in the case of intentional concealment or official cover-up regardless of the nature of the litigation at issue. A majority of these same courts, however, are not willing to extend First Amendment protection to public employee right-of-access claims unless the underlying litigation encompasses protected speech. [FN231]

These decisions simply cannot be reconciled. This split of authority is a direct result of the Supreme Court's failure to find that invocation of the judicial process is a protected form of petitioning the government for a redress of grievances. As a component of the right to petition government, the First Amendment right of access to the courts should afford substantive protection to all who claim that state actors have retaliated against them for pursuing litigation, regardless of whether that litigation involves a private dispute, issues of public concern, an individual claim, or collective activity. The First Amendment Petition Clause should also extend to protect indigents through a waiver of filing fees and costs in those instances, such as divorce, in which the only avenue for resolving disputes is the court system.

B. The Right to Petition Must Include Mandatory Governmental Response

In both England and colonial America, the right to petition included a right to present a petition and a right to receive a response. [FN232] When the Petition Clause of the First Amendment was debated, Congress declined to include a personal right to give binding instructions to representatives. Congress did agree, however, that the government was required to respond to petitions. [FN233] Thus, history clearly supports a First Amendment right of governmental consideration and response.

Contrary to historical understanding, the Supreme Court has clearly stated that the First Amendment does not require the government to listen to individuals or to respond to individual grievances. In the 1915 case Bi-Metallic Investment Co. v. State Board of Equalization, [FN234] a real estate owner claimed that the Colorado State Tax Commission had unconstitutionally increased the valuation of all taxable property in Denver by forty percent. The plaintiff argued that it had no opportunity to be heard in opposition to the tax valuation increase, which violated the Fourteenth Amendment Due Process Clause. [FN235] The Court wrote:

Where a rule of conduct applies to more than a few people it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. Generally statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule. [FN236]

In two more recent opinions, the Supreme Court employed identical reasoning to reach the same decision. In Smith v. Arkansas State Highway Employees, Local 1315, [FN237] the Court held that the State Highway Commission's refusal "to consider or act upon grievances" of public employees when those grievances were presented by the employees' union representative did not violate the First Amendment Petition Clause. [FN238] The Court reasoned that public employees were allowed to openly petition, but the Highway Commission did not have an affirmative obligation under the First Amendment "to listen, to respond or, in this context, to recognize the association and bargain with it." [FN239]

In its most recent pronouncement on this issue, the Supreme Court was faced with a situation factually similar to Smith. In Minnesota Board for Community Colleges v. Knight, [FN240] a state employer refused to consider petitions presented directly by its employees, college faculty instructors, preferring instead to "meet and confer" solely with faculty representatives to resolve certain grievances. [FN241] Relying on Bi-Metallic, the Court, ruled: " 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 individuals' communications on public issues." [FN242] This is not supported by the historical understanding of the right to petition and, in fact, is refuted by the debates surrounding the framing of the First Amendment Petition Clause. [FN243]

As asserted by Justice Holmes in Bi-Metallic, the right to petition did not and should not encompass a right to a public hearing. [FN244] Such a requirement could cause any government to "grind to a halt." [FN245] Historically, however, the right to petition did include both the right to present a written petition and the right to receive a response, which, at a minimum, might be summary denial. [FN246] A petitioner never possessed the right to a full legislative discussion or debate of a particular petition, nor to a public forum to present testimony relevant to a petition, nor to an investigation of a petition, nor to a detailed explanation for the denial or rejection of a petition. Consistent with the original understanding, a petitioner is entitled to a response, which might exclude an explanation or simply state that, after consideration, the petition is denied. [FN247]
When understood in this limited sense, these minimal presentation and response requirements will not unduly burden government. The advent of the federal system and the unforeseen growth of this nation should not destroy either component of the right to petition. [FN248] In order to be meaningful, the First Amendment right to petition government for a redress of grievances must also include minimal governmental consideration. [FN249]

C. The Court's Failure to Grant Absolute Immunity to Petitioning

Petitioners were historically protected from both seditious libel prosecutions and private libel actions. [FN250] The Supreme Court has ignored this history and has applied the same qualified immunity given speech and the press to the information contained in petitions. As a result, petitioners receive less protection than is historically justified.

In McDonald v. Smith, [FN251] the Supreme Court addressed a petitioner's claim of absolute immunity in a private libel action based on information contained in two letters to the President of the United States. [FN252] The petitioner, Robert McDonald, wrote the letters urging against the appointment of David Smith as a United States Attorney. The Supreme Court rejected McDonald's claim that statements made in a petition are absolutely immune from a subsequent libel action. The Court specifically held that the Petition Clause of the First Amendment does not enjoy a preferred status relative to the rights of speech and the press. In reliance on the 1845 decision in White v. Nicholls, [FN253] the Court added that petitioners have not been historically afforded absolute immunity from private libel actions. [FN254] The Court also implied that the immunity afforded petitioners under the antitrust laws is not absolute: " F iling a complaint in court is a form of petitioning activity; but 'baseless litigation is not immunized by the First Amendment right to petition.' " [FN255]

This last observation is most revealing of the analytical weakness in the Court's opinion. The Court did not frame the issue properly when it stated the baseless-litigation restriction on immunity from the antitrust laws. [FN256] The Court should have addressed the level of immunity from the libel laws accorded to statements made in the course of litigation. This inquiry sheds more light on the level of immunity historically afforded to petitions.

The analysis begins with the judicial arm of the government because it is here that the immunity laws originated. [FN257] In 1585 the Court of the King's Bench ruled in Cutler v. Dixon [FN258] that allegations contained in articles of the peace that were exhibited to justices could not form the basis of a libel action even if such allegations resulted in "great abuses." [FN259] The court reasoned that "if actions should be permitted in such cases, those who have just cause for complaint, would not dare to complain for fear of infinite vexation." [FN260] In other words, absolute immunity was conferred so as not to chill legitimate court actions. By the early seventeenth century, the law in England was settled: judges, parties, witnesses, and attorneys were all immune from the libel laws for statements made and documents submitted in judicial proceedings. [FN261]

In the 1668 case of Lake v. King, [FN262] the Court of the King's Bench extended the immunity recognized in judicial proceedings to individuals who submitted written petitions to Parliament. [FN263] In Lake the petitioner delivered a written petition to the parliamentary committee on grievances in which he accused the plaintiff, Lake, of "many horrible and great abuses, such as extortion, oppression, vexation, and other misdemeanors." [FN264] The court held:

The exhibiting of the petition to a Committee of Parliament was lawful, and that no action lies for it, although the matter contained in the petition was false and scandalous, because it is in a summary course of justice, and before those who have power to examine, whether it be true or false. [FN265]

The Lake decision was clarified in 1699 by Rex v. Salisbury. [FN266] The English court declared that the privilege afforded to petitioners did not extend to anyone who published the content of a petition previously submitted to Parliament or a court to the world at large. [FN267] The court reasoned that subsequent publication "tends to the breach of the peace." [FN268] Contrary to the Supreme Court's decision in McDonald, *54 the law of immunity was clearly established in late seventeenth century England; Lake was not an "anomalous decision." [FN269]

A majority of American courts confer absolute immunity from the libel laws upon individuals for statements made and evidence submitted in the course of judicial proceedings. [FN270] Immunity has been extended to statements made in all types of judicial proceedings, including administrative hearings and other quasi-judicial proceedings. [FN271] Before conferring immunity, however, American courts require that the allegedly libelous statement "have some reasonable relation or reference to the subject of inquiry, or be one that 'may possibly be pertinent,' with all doubts resolved in favor of the" alleged defamer. [FN272] The showing required to obtain immunity is relatively easy to meet.

The American courts have not limited absolute immunity to statements made in the course of judicial proceedings. In fact, the majority of American jurisdictions have extended absolute immunity to witnesses who testify at legislative hearings. [FN273] Although very few American courts have been presented with the immunity issue in the context of petitions directed to the legislature or to the executive, support exists for the extension of absolute immunity to such petitioning. In the 1802 decision Harris v. Huntington, [FN274] a Vermont court ruled that a petitioner who presented a petition to the legislature was absolutely immune from a subsequent claim of libel. [FN275] The defendant and several others had submitted a petition to the Vermont legislature requesting *55 that the plaintiff, Harris, not be reappointed as a justice of the peace. [FN276] The court recognized the potential for abusing the right to petition, but granted immunity. [FN277]

The Harris court cautioned that liability would attach if the petition were republished "in the public newspapers without the order of the General Assembly, as such publication would not be necessary to the occasion, nor would [it] be within the course of proceedings in our Parliament." [FN278] Thus, as in England, petitioners were not clothed with immunity if they published the content of their petition in a newspaper or in some other written communication. The Harris decision by the Vermont court is well reasoned and comports with the English resolution of the immunity issue in Lake.

The McDonald Court's reliance on White v. Nicholls [FN279] is infirm. This 1845 decision involved allegedly libelous letters, which were sent to the President of the United States and to the Secretary of the Treasury, requesting that Robert White be removed from his position as customs collector. [FN280] The White Court ruled that these letters enjoyed only a qualified privilege. [FN281] The Court found that if the statements were not made to obtain redress and were instead made with express malice, the statements would not receive immunity. [FN282] In discussing the immunity issue, the Court wrote that statements made in the course of judicial proceedings did not enjoy absolute immunity from common law libel claims. [FN283] This clearly contradicts the law in the majority of American jurisdictions. [FN284]

Contrary to the Supreme Court's conclusion in McDonald, the case law supports an absolute immunity from libel actions for petitioners. [ FN285] This case law, while sparse, is uncontradicted. The Supreme Court's analysis in both McDonald and White is flawed because these Courts either ignored or misunderstood the case law from which petitioner immunity was derived: [FN286] written and oral statements made in the course of judicial proceedings have been and are afforded absolute immunity from subsequent libel actions. [FN287]
The decisions from England and the state courts that confer absolute immunity focus on the right to petition. The Supreme Court opinions denying absolute immunity to petitioners give greater weight to protecting against malicious attacks and allowing vindication of reputations. [FN288] The historical doctrine of absolute immunity from subsequent claims of libel, however, adequately protects individuals from public and wrongful defamation because it extends only to statements made to officials who reasonably appear to possess the power to provide redress. Subsequent publication of a petition is not afforded absolute immunity. [FN289] As such, there is no legal justification for a public trial to vindicate an individual's reputation if a petition has been confined to the responsible governmental authority. [FN290]

Today it is likely that the majority of petitions presented to the executive or to the legislature will involve fact scenarios very similar to those presented in White and McDonald: written requests urging against the appointment of or requesting the removal of a public official for misconduct. [FN291] If a petition is presented to the proper legislative or executive authority and that body possesses the power to initiate an investigation into the truth of the petition (or, at a minimum, possesses the authority to allow the official to refute the charges), then the requirements as enunciated in Lake have been met. Stated another way, the petition has been presented "in a summary course of justice, and before those who have power to examine, whether it be true or false." [FN292] Even if an official is not provided with the opportunity to respond to the petitioner's charges, the libel laws should not afford that remedy. As previously discussed, submission of a petition is not tantamount to public disclosure, and the real harm results from the government's failure to allow refutation of the charges contained in the petition.

The malice standard set forth in New York Times Co. v. Sullivan [FN293] as applied by the McDonald Court does not provide adequate protection to petitioners. The standard announced in Sullivan allows a public official to recover in a libel action if the official can prove that a published statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not." [FN294] Sullivan, an elected Commissioner of Public Affairs for the City of Montgomery, Alabama, sued a number of individuals and the New York Times Company for permitting the publication of an allegedly inaccurate full-page advertisement which appeared in the New York Times newspaper. [FN295] Sullivan is clearly distinguishable from petitioning since the potential harm from publication in a newspaper of national circulation is absent if the very same information is limited to a written petition submitted to the government.

Contrary to McDonald, petitioners should be afforded absolute immunity from a subsequent libel action for all statements contained in a petition to the legislature or to the executive. For immunity to attach, however, these statements must be reasonably related to or pertinent to the subject of inquiry. They must be submitted to those government officials who reasonably appear to have the power to redress the grievance. [FN296] Also, if an individual is being considered for public office, the information contained in the petition must reasonably relate to that individual's fitness or abilities to serve and perform as a public official. Such information, if subsequently published to anyone other than those reasonably believed responsible for redress, should enjoy only a qualified privilege. [FN297] This standard recognizes the features that distinguish petitioning from speech, encourages legitimate petitioning, and protects individuals who are the subject of petitioning.

D. Specific Problems

1. Rule 11's Invalid Restriction on Petitioning

As previously discussed, petitioning was not completely free from governmental restrictions. The imposition of monetary sanctions or costs against a litigant originated in the Middle Ages. [FN298] The English system of amercement required that a losing plaintiff pay costs to the court for pursing a meritless or "false" claim. [FN299] The amercement system, however, provided no compensation to a defendant who was wrongfully sued. In the early seventeenth century, English law remedied this defect and allowed successful defendants to recover costs. [FN300] The American colonies also promulgated legislation aimed at deterring frivolous, vexatious actions. [FN301] The penalties were similar to those provided by English law in that the court or general assembly had wide discretion to assess an appropriate monetary sanction against a petitioner, litigant, or appellant if it deemed an action frivolous. [FN302] The colonial laws contained a subjective bad faith standard for imposition of sanctions. [FN303] The laws thus were aimed at the same type of conduct that Rule 11 of the Federal Rules of Civil Procedure [FN304] was originally designed to discourage--the intentional initiation *60 or pursuit of frivolous, vexatious proceedings. [FN305]

Rule 11's signature requirement, which operates as certification that the document is submitted in good faith, can be traced back to the time of Sir Thomas More (1478-1535) when an attorney's signature served as a guarantee that "good ground for the suit" existed. [FN306] If a pleading contained "irrelevant, impertinent, or scandalous" matter, the court could order the attorney to pay the opposing party's costs in defending against the pleading or action. [FN307] This "good ground" standard was incorporated into the 1938 version of Rule 11 which required an attorney to certify "that to the best of his knowledge, information and belief there is good ground to support" the pleading. [FN308] A subjective standard was utilized to assess whether the attorney was motivated by bad faith or an improper purpose. [FN309] The standard, however, was never well defined and failed to provide proper notice to attorneys that certain kinds of conduct violated the rule. [FN310] The lack of a clear legal standard was not cause for concern because sanctions were rarely assessed. [FN311]

This practice changed in 1983 when Rule 11 was amended, purportedly*61 to provide clarification of the appropriate legal standard. [FN312] The certification requirement was extended to specifically include both attorneys and unrepresented parties who, by their signature, must now certify "that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it the pleading is well grounded in fact and is warranted by existing law." [FN313] This amendment, which requires a "reasonable inquiry" into the facts and law governing a claim, mandates that courts utilize an objective standard in resolving sanction issues. [FN314]

The introduction of an objective standard into the sanction equation broadens the scope of Rule 11 to include within its coverage conduct that was not historically subject to sanctions. Although Rule 11 sanctions have strong roots which predate the framing and ratification of the First Amendment Petition Clause, the colonial legislation explicitly required conduct intentionally designed or "wittingly and willingly" undertaken to injure an opposing party. [FN315] By replacing the subjective bad faith requirement with an objective standard, Rule 11 now encompasses merely negligent conduct. [FN316] From a historical perspective, these requirements governing the prefiling factual and legal inquiries sweep too broadly, and as applied, are an invalid restriction on the constitutional right of access to the courts via the First Amendment Petition Clause. [FN317]

The amendments to Rule 11 may also produce a chilling effect on petitioners. [FN318] Efforts are under way to improve some of the potential chilling effects in the application of Rule 11, however. Proposed amendments to the Rule would require that a litigant be warned in writing of a potential Rule 11 violation with an explanation of the violation before sanctions can be imposed. [FN319] After a warning, if a litigant withdrew the objectionable pleading, sanctions could not be imposed. [FN320] This notification requirement would greatly decrease the potential chilling effect, and, given the historical importance of the right of access to the courts, the proposed amendment is preferable to Rule 11 in its current form. Even if the notification requirement were adopted, however, that modification would still be inadequate. Any amendment short of abolition of the objective standard and reinstitution of the subjective bad faith standard provides insufficient protection to the rights of individuals to petition the judiciary.

Another proposed amendment would permit courts to impose nonmonetary sanctions. [FN321] Although not explicitly provided for in Rule 11, courts have infrequently imposed nonmonetary sanctions that directly infringe upon the right of access to the courts. [FN322] In the most restrictive instances, courts have ordered that a sanctioned party *63 not file "any further causes of action until all monetary sanctions imposed have been paid in full and satisfactory proof thereof has been furnished." [FN323] This type of sanction denies individuals access for all lawsuits, including those that do not arise out of the same set of operative facts as the lawsuit in which sanctions were originally imposed. This is a drastic remedy that goes well beyond the sanction remedies historically provided.

Courts can employ less drastic alternatives that preserve a litigant's right of access while simultaneously deterring frivolous conduct. These alternatives include a contempt finding for failure to pay a court order imposing sanctions, [FN324] dismissal of the original lawsuit, [FN325] or, in the most egregious case, a requirement that a litigious party submit a complaint to the court for review prior to issuance of the summons. [FN326] If courts deny litigants the opportunity to pursue lawsuits which are unrelated to previously sanctioned actions, however, they are denying litigants their First Amendment right of access to the courts. Care must be taken to fashion nonmonetary sanctions narrowly to preserve the constitutional right to petition the courts for redress of grievances.

2. The Noerr-Pennington Doctrine and the Definition of Petitioning

As illustrated, petitioning encompassed only direct attempts to receive redress in the legislative, executive, or judicial arena. Publication of a petition to anyone other than those reasonably believed responsible for providing redress resulted in abrogation of petitioner immunity. [FN327] The immunity extended to petitioners was not, however, dependent on the subject matter of the petition. For example, petitions submitted to the courts were granted immunity regardless of whether the litigation encompassed issues on matters of public concern, purely private disputes, or commercial transactions. [FN328] The Supreme Court has failed to take note of this history when evaluating petitioners' claims of immunity to the antitrust laws.

In a series of cases beginning with Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., [FN329] the Supreme Court granted immunity from the antitrust laws to petitioners who joined together to seek the passage and enforcement of laws. In Noerr, forty-one truck drivers and their trade associations filed a lawsuit against twenty-four railroads, an association of railroad presidents, and a public relations firm hired by the railroads alleging that the defendants conspired to create and implement a negative publicity campaign designed to influence legislation regarding truck weight limits and tax rates on heavy trucks. [FN330] The Supreme Court held that even if the truckers could establish that the railroads' sole purpose in pursuing the executive veto was to "destroy the truckers as competitors for the long-distance freight business" there would be no antitrust liability. [FN331] Although the Court based its decision on the Sherman Antitrust Act, the Court also reasoned that prohibitions against group lobbying efforts would impair a group's ability to make its views known to lawmakers. The Court would not "lightly impute to Congress an intent to invade" the First Amendment right to petition government. [FN332] The Court, however, qualified the immunity enjoyed by petitioners:

There may be situations in which a publicity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified. [FN333]

Four years later in 1965, the Supreme Court again addressed a claim of immunity from the antitrust laws. In United Mine Workers v. Pennington, [FN334] unions and mine operators united to petition the executive branch of the federal government, specifically, the Secretary of Labor, to secure legislation requiring higher minimum wages for certain coal contractors. [FN335] In conformity with Noerr, the Supreme Court held these concentrated efforts to influence minimum wage legislation were immune from the antitrust laws even if the petitioners' sole purpose was to eliminate competition and even if the conduct was "part of a broader scheme itself violative of the Sherman Act." [FN336] The Court, however, again did not clarify whether the immunity was premised *65 on the Sherman Act or on the First Amendment right to petition.

Seven years after Pennington, the Court clearly based its immunity decision on the First Amendment. In California Motor Transport Co. v. Trucking Unlimited, [FN337] the petitioning efforts were directed toward the judiciary and administrative agencies. In this case, highway carriers alleged that another group of carriers instituted both federal and state actions to defeat the applications of its competitors for carrier certificates. [FN338] The Supreme Court specifically based its immunity decision on the First Amendment Petition Clause ruling that those who join together "to advocate their causes and points of view respecting resolution of their business and economic interests vis-a-vis their competitors" are immune from antitrust liability. [FN339]

But the Court distinguished the adjudicatory setting in Trucking Unlimited from the political activities in Noerr and Pennington and concluded: "Misrepresentations, condoned in the political arena, are not immunized when used in the adjudicatory process." [FN340] The Court further ruled that allegations that the petitioners' alleged attempts to deprive their competitors from meaningful access to both the courts and the administrative tribunals by filing "baseless, repetitive" claims, if proven, would be sufficient to establish a sham and thereby abrogate immunity. [FN341] The Court thus found anticompetitive intent relevant to the immunity issue in the context of judicial proceedings.

In the most recent petitioner immunity decision, Allied Tube & Conduit Corp. v. Indian Head, Inc., [FN342] the Supreme Court clarified the distinction between private action and public or political action. The Court found "the source, context, and nature of the anticompetitive restraint" relevant to immunity. [FN343] Because the allegedly anticompetitive conduct in Allied Tube was undertaken to influence a private association that set safety standards, and not to directly influence the government, the Court ruled that the petitioners were not immune from antitrust liability. [FN344]

The rulings of the Supreme Court in this series of cases are premised on both an overinclusive and an underinclusive definition of petitioning. Although the Court did not squarely base its decision in Noerr on the First Amendment Petition Clause, at least some of the allegedly anticompetitive conduct that the Court protected exceeded the historic definition of petitioning. To the extent it protected such conduct, the Court's definition of petitioning was overinclusive. For example, the publicity campaign in Noerr allegedly included distributing false reports to the public, suppliers and customers of the truckers, and public officials. [FN345]

The reports were allegedly made to appear as spontaneous declarations and opinions of concerned citizens groups. But the opinions were really a product of the publicity campaign. Because the Petition Clause was not historically understood to encompass indirect attempts to influence legislation, [FN346] the immunity the Court granted the railroads for its other activities must have derived from the Sherman Act. The only activity which would fit within an historic definition of petitioning were the reports sent to the public officials. If the railroads sent the reports to support their opinions about the legislation, the Court should have held the railroads immune from antitrust liability under the First Amendment Petition Clause as opposed to finding immunity under the Sherman Act. In contrast, the unions and mine workers in Pennington engaged in direct attempts to influence the executive to establish high minimum wages. Since this was a direct attempt to influence legislation, the Pennington Court should have directly based its immunity decision on the First Amendment.

Although the Court reached the proper result under the First Amendment in Trucking Unlimited, it did so by fashioning an underinclusive *67 definition of petitioning. The Court focused on the fact that litigation generally involves commercial and not political activity, and commercial activity justifies closer scrutiny of anticompetitive intent. Similarly, in Allied Tube, the Court reached the correct conclusion on the immunity issue, but again, the Court focused on whether the allegedly anticompetitive conduct involved political activity with a negative commercial impact, or whether the activity was primarily commercial with a political impact, the latter activity being unprotected from the antitrust laws. [FN347]

Whether petitioning occurs in the judicial, executive, or legislative arena, petitioner immunity should not be abrogated unless the petitioning is pursued in subjective bad faith or is frivolous or vexatious. [FN348] Thus, in all of these antitrust cases, the Court should have phrased the issues as follows: 1) Was there a direct attempt to petition the executive, legislature, or judiciary? If so: 2) Was the petition presented in subjective bad faith or was it frivolous or vexatious? [FN349] If so, there can be no intent to petition government for a redress of grievances. The sole intent underlying the petition should be deemed an intent to harass or to achieve an anticompetitive result. Interpreting antitrust immunity in this manner provides a clear standard for the sham exception to petitioner immunity while preserving the historical First Amendment right to petition. This interpretation simultaneously protects the free enterprise system and economic freedom which the antitrust laws were designed to promote.

Conclusion

In assessing the appropriate level of protection petitioners should enjoy pursuant to the First Amendment Petition Clause, the Supreme Court has given scant consideration to the evolution and history of the right to petition prior to its incorporation into the First Amendment. History reveals that the right to petition evolved in both England and America into a broad right which was distinct from and superior to the rights of speech, press, and assembly. Petitioning encompassed both individuals and collective written requests which were submitted to the executive, legislative, or the judicial branch of government. This right was generally not curtailed. In contrast, the rights of speech and the press were burdened by seditious libel laws. The right of assembly was also restricted via regulations which either limited the number of individuals allowed to present petitions or required groups to act in a peaceful, orderly manner.

Yet the Supreme Court has ignored these historical facts and has treated the right to petition as a right co-extensive with the other expressive rights of the First Amendment. The court has thereby collapsed the historically superior right to petition into the other historically inferior rights of the First Amendment. The Court has incorrectly concluded that the First Amendment Petition Clause should not provide a substantive right of access to the courts unless free speech rights are also implicated. The Court has also improperly granted only a limited immunity to petitioners: it has denied petitioners the absolute immunity from private libel actions as was enjoyed historically; and in the context of antitrust laws, the Court has conditioned petitioner immunity on a definition of petitioning that is both overinclusive and underinclusive. Another immunity issue arises under Federal Rule of Civil Procedure 11 which, as applied to prefiling factual and legal inquiries, includes within its coverage negligent conduct historically immune from sanctions. Finally, in direct contradiction to the debates surrounding the framing of the First Amendment Petition Clause, the Supreme Court has erroneously concluded that the right to petition government has never included a duty of government response. A careful examination of historical practices reveals not only that the Supreme Court's analysis of petitioning is misguided, but that the Court has it backwards: the right to petition was the important right; its development preceded and fostered the evolution speech, assembly, and the press.

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