We People Foundation, Inc. v. United States

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.