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Reclaiming the Petition Clause

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

Ronald J. Krotoszynski
Copyright Date: 2012
Published by: Yale University Press
Pages: 256
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  • Book Info
    Reclaiming the Petition Clause
    Book Description:

    Since the 2004 presidential campaign, when the Bush presidential advance team prevented anyone who seemed unsympathetic to their candidate from attending his ostensibly public appearances, it has become commonplace for law enforcement officers and political event sponsors to classify ordinary expressions of dissent as security threats and to try to keep officeholders as far removed from possible protest as they can. Thus without formally limiting free speech the government places arbitrary restrictions on how, when, and where such speech may occur.

    eISBN: 978-0-300-14990-6
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xiv)
  4. Acknowledgments
    (pp. xv-xvi)
  5. 1 The Growing Marginalization of Dissent and the New Seditious Libel
    (pp. 1-19)

    During the summer and fall of 2009, a remarkable series of confrontations took place between members of Congress and their constituents. Although often misinformed about the precise content of pending national health care legislation, thousands of average citizens took the time and trouble to attend town hall meetings featuring their local member of Congress or senator in order to express their opposition to pending federal health care reform legislation. This, however, was not how these town hall meetings were supposed to proceed: “The politicians, every one of them, seemed taken aback—shaken and unprepared.”² The media images were iconic, and...

  6. 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
    (pp. 20-54)

    In anticipation of hosting the 2004 Democratic National Convention (DNC), then only days away, the city of Boston erected a temporary structure nicknamed “the DZ.” Disquieting, yet oddly fitting, the moniker was short for “designated demonstration zone,” the area set aside as the only lawful place proximate to the Fleet Center, site of the DNC, for groups of more than twenty to engage in political protest speech.¹ Judge Woodlock, the district court judge who heard the First Amendment challenge to this speech restriction, described the DZ as follows:

    A written description cannot begin to convey the ambience of the DZ...

  7. 3 Security as a Cellophane Wrapper: Deconstructing the Government’s Security Rationale for Marginalizing Public Dissent and Dissenters
    (pp. 55-80)

    Does the government’s invocation of security as a justification for restrictions on core political speech possess significant merit? Or is it an obvious and unpersuasive makeweight to justify ham-handed efforts to suppress dissenting voices? Government officials may take reasonable steps to secure venues, such as convention halls and public arenas, used for mass political gatherings against the risk of disruption or even political violence.¹ It also seems reasonable to posit the legitimacy of the creation of security perimeters around the venues used for major domestic political events and international governmental meetings. If government may search all passengers seeking to enter...

  8. 4 The Right of Petition in Historical Perspective and Across Three Societies
    (pp. 81-152)

    If the Petition Clause is to be reclaimed, what precisely would the federal courts and the American people be reclaiming? Petitioning has a long and deep history in Anglo-American law, and dates back to Magna Carta itself. But the history of petitioning is complicated by the absence of a doctrine of separation of powers in both Great Britain and the colonial and revolutionary-era United States, and the commonplace use of petitioning in both Great Britain and the British North American colonies as a means of seeking redress for private complaints—rather than changes in public policy.

    Given the relative obscurity...

  9. 5 The Jurisprudential Contours of the Petition Clause: An Examination of the Potential Doctrinal Shape and Scope of a Reclaimed Petition Clause
    (pp. 153-184)

    In his seminal article on the paradigm shift in First Amendment doctrine wrought byNew York Times Co. v. Sullivan,¹ Professor Harry Kalven eloquently expressed his regard for the civil rights movement that precipitated the case, writing that “[w]hatever the irritations and crises of ‘the long hot summer,’ the protest has maintained the dignity of political action, of an elaborate petition for redress of grievances.”² Kalven’s reference to a “petition for redress of grievances,” however, was more than mere poeticism; it was also an invocation of the oft-forgotten Petition Clause of the First Amendment: “Congress shall make no law ....

  10. 6 The Selma-to-Montgomery March as an Exemplar of Hybrid Petitioning
    (pp. 185-207)

    The iconic Selma-to-Montgomery march, of March 21 to 25, 1965, provides an example of precisely how advocates of legal change can and do exercise their expressive freedoms conjunctively, and for the need for the federal courts to consider the implications of petitioning in the context of speech, assembly, and association. Almost fifty years ago, five days in March helped to begin a new era for the South, and for the nation.

    From March 21 to March 25, 1965, thousands of civil rights protesters marched down U.S. Highway 80 from Selma to Montgomery, Alabama, to call attention to the state’s systematic...

  11. 7 Conclusion
    (pp. 208-216)

    The Petition Clause represents the most logical textual basis for securing a right of citizen access to government, whether at the local, state, or federal level. At its most basic, the clause stands for the proposition that government must be accessible—not only to voters, but to any person living within the community. This promise of access in turn secures the ability of the citizenry to engage the government regarding matters of concern—regardless of how picayune incumbent politicians might find these concerns.

    The Petition Clause constitutes a kind of democratic feedback loop, through which the represented and their representatives...

  12. Notes
    (pp. 217-306)
  13. Index
    (pp. 307-317)