Reclaiming the Petition Clause: Seditious Libel, "Offensive" Protest, and the Right to Petition the Government for a Redress of Grievances

334 Pages·2012·1.434 MB·English

by  Ronald J. Krotoszynski Jr.

Reclaiming the petition clause
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R
ECLAIMING THE
P C
ETITION LAUSE
Seditious Libel, “Offensive” Protest, and the Right to Petition
the Government for a Redress of Grievances
Ronald J. Krotoszynski, Jr.
New Haven & London
Published with assistance from the foundation established in memory of
Calvin Chapin of the Class of 1788, Yale College.
Copyright © 2012 by Yale University.
All rights reserved.
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Library of Congress Cataloging-in-Publication Data
Krotoszynski, Ronald J., 1967–
Reclaiming the petition clause : seditious libel, “offensive” protest, and the right to
petition the government for a redress of grievances / Ronald J. Krotoszynski, Jr.
p. cm.
Includes bibliographical references and index.
ISBN978-0-300-14987-6 (cloth : alk. paper) 1. Petition, Right of--United States.
I. Title.
KF4780.K76 2012
323.4’80973--dc23
2011037233
A catalogue record for this book is available from the British Library.
This paper meets the requirements of ANSI/NISO Z39.48–1992
(Permanence of Paper).
10 9 8 7 6 5 4 3 2 1
This book is dedicated to the memory of Judge Frank M. Johnson Jr. (1918–
1999), for whom I had the privilege of serving as a law clerk. Judge Johnson served
with great distinction—and courage—on the federal bench in Montgomery,
Alabama, during some of the most tumultuous years of the civil rights movement.
As a district court judge, Johnson presided over many of the most important civil
rights cases aimed at securing federal constitutional rights in Alabama.
Judge Johnson firmly believed that, if permitted to operate freely and openly,
the democratic process could be relied upon to correct many constitutional
injustices through the regular functioning of the legislative process. For exam-
ple, his opinion in Williams v. Wallace, 240 F. Supp. 100 (M.D. Ala. 1965), in
which he issued an injunction permitting the iconic Selma-to-Montgomery
March to go forward, reflects and incorporates this deep-seated faith in democ-
racy and the democratic process. Judge Johnson appreciated the centrality of
petitioning to the project of democratic self-government, and from the bench
he worked to ensure that government would remain both accessible and
accountable to its citizens through peaceful petitioning activity seeking a
redress of constitutional grievances.
Judge Johnson’s faith in the possibility of peaceful social reform through the
operation of the democratic process, at a time when tempers ran high and polit-
ical violence constituted an omnipresent—albeit despicable—reality, can and
should serve as an example to us today. No one can deny the real and pressing
security issues that exist in the post-9/11 world; indeed, we can, should, and must
take seriously the threat of political violence as an illegitimate means of seeking
to alter government practices and policies. For a democratic people effectively
to oversee the government and its officers, however, citizens must have the abil-
ity to access and engage their government and its officials about matters of pub-
lic concern. Moreover, government has a duty to engage its citizens and respond
to their concerns and criticisms. Judge Johnson understood that petitioning
activity lies at the very heart of this democratic feedback loop.
Judge Johnson’s remarkable opinion in Williams stands as a testament to this
important truth; his unwavering commitment to safeguarding the right of peti-
tion, even if exercised in a hybrid form that annexed speech, assembly, and
association rights, provided significant motivation—indeed, inspiration—to me
in pursuing this project. Accordingly, I dedicate this book as a tribute to Judge
Johnson’s remarkable judicial contributions to helping secure constitutionally
protected expressive freedoms in the most difficult of times and places. His life’s
work and legacy can and should inspire us all to consider carefully the impor-
tance of safeguarding fundamental expressive freedoms, including the right of
petition, in the contemporary United States and also in the larger world.
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C
ONTENTS
Preface ix
Acknowledgments xv
1 The Growing Marginalization of Dissent and the New
Seditious Libel 1
2 The Growing Loss of Public Space for Collective Expression of
Dissent and the Failure of Contemporary First Amendment Doctrine
to Address This Problematic Phenomenon 20
3 Security as a Cellophane Wrapper: Deconstructing the
Government’s Security Rationale for Marginalizing Public
Dissent and Dissenters 55
4 The Right of Petition in Historical Perspective and Across
Three Societies 81
5 The Jurisprudential Contours of the Petition Clause: An
Examination of the Potential Doctrinal Shape and Scope of a
Reclaimed Petition Clause 153
vii
viii Contents
6 The Selma-to-Montgomery March as an Exemplar
of Hybrid Petitioning 185
7 Conclusion 208
Notes 217
Index 307
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P
REFACE
This book argues that the Petition Clause of the First Amendment should
secure a right of access by ordinary Americans to their government and its offi-
cers, and that this right of access should include the ability to communicate in
real time, and in person, with these officers as an incident of the Petition Clause.
At its core, the Petition Clause represents the framers’ view that a democratic
government must be both open and accessible, not only to its citizens, but to all
persons residing within the polity. And, as a historical matter, the ability to peti-
tion the government included a right of personal access to government officials
for the purpose of petitioning—and also a concomitant duty on the part of the
government to receive, consider, and answer all petitions.
To be sure, petitioning has fallen into near-total desuetude in the contempo-
rary United States. No serious person expects Congress, a state legislature, or
even a city council (beyond small towns in New England) to receive, consider,
and answer the random submissions of ordinary people. Classic petitioning,
that is, petitioning aimed at securing some sort of legislative or executive action,
today constitutes, at best, a feature of fringe politics. (Petitioning incident to the
initiative and referendum process in the states, however, presents a different
case entirely.)
Moreover, to the extent that scholarship on the Petition Clause exists, legal
scholars, political scientists, and historians routinely dismiss the clause and the
act of petitioning as an imperfect form of democratic politics necessary only in
times and places where universal suffrage does not exist. Under this view, then,
with all adults enjoying voting rights in the contemporary United States, there
is simply no institutional need to maintain petitioning as an imperfect alterna-
tive form of participation in the process of democratic deliberation.
ix