Document Type

Article

Publication Date

2017

Abstract

Scholars and jurists agree that the First Amendment right “to petition the Government for a redress of grievances” includes a right of court access, but narrowly define this right as the right to file a lawsuit. This dominant view fails to meaningfully differentiate between the right to petition, the freedom of speech, and due process, missing the distinct significance of the Petition Clause when individuals petition courts. The most significant threats to court access today occur after the filing stage, when courts deny or limit remedies to legally injured persons — by enforcing a mandatory arbitration provision or an exhaustion requirement, granting an official qualified or absolute immunity from suit, or drastically reducing a damages award pursuant to a statutory cap. By defining court access too narrowly, the prevailing theory of the right to petition renders the First Amendment silent in the face of these threats.

This Article fills this gap in First Amendment theory by presenting the first systematic account of the right to petition the courts that expands the concept of court access from procedural forum access to substantive remedial access — guaranteeing the right of a legally injured person to obtain a meaningful remedy. This remedial theory best accounts for the history, text, and precedent of the Petition Clause. As a historical matter, this theory gains force from the insight that the First Amendment right to petition is best understood as the merger of the English right to petition and the English right to a remedy. These antecedent rights controlled petitioning practice directed at different institutional actors, but, when those petitions were legal in nature, there was a shared expectation that relief, where warranted, would follow. From a textual perspective, the remedial theory gives the Petition Clause meaning independent of the Speech Clause, and it explains why the Framers expanded the Petition Clause’s recipient subclause from “the Legislature” to “the Government.” Jurisprudentially, the theory garners a perhaps surprising degree of support from both early and modern Supreme Court precedent. This theory could translate naturally into a tiered scrutiny doctrinal framework for remedial access claims, with more deferential review for neutral time, place, and manner provisions, and heightened scrutiny when remedial burdens are based on the content of the lawsuit, the identity of the plaintiff, or the defendant’s governmental status.

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