The Right to Petition in State Constitutions, Explained

The right to petition one’s government is among the most ancient in our legal system — and is foundational to a healthy democracy.

Petition rights protect a range of activities, like writing to one’s legislators or mayor, signing a petition asking the city council to take a particular action, or even filing a complaint in state court. The federal Constitution and 48 state constitutions include within them the right to petition the government. But state constitutions often phrase the right more expansively than the federal First Amendment — suggesting courts should interpret state petition rights as more protective.

An ancient and fundamental right

The right emerged from English common law and dates back to pre-Magna Carta England, when individuals petitioned the king for redress of various grievances. It was first formalized in 1215 in the Magna Carta; centuries later, the right to petition was included in the English Bill of Rights of 1689. In fact, petitioning was so integral to early English political life that its widespread use led to the formation of the English Parliament.

American colonists brought this fundamental right to the colonies and repeatedly affirmed it both explicitly (by including it in colonial charters) and implicitly (through widespread use of petitioning activity). In Pennsylvania and Virginia, for example, colonists successfully petitioned for legislation limiting the exportation of certain products during shortages. Incarcerated individuals regularly petitioned colonial governments for release or to address conditions of their incarceration. And, although infrequent and less documented in historical records, some women, Black people both free and enslaved, and Native Americans used petitions to invoke public power and redress wrongs against them. After the Revolutionary War, as the colonists turned their attention to drafting federal and state constitutions, the right to petition remained important.

The First Amendment, ratified in 1791 as part of the Bill of Rights, provides that “Congress shall make no law” abridging the right to peaceably assemble and “to petition the Government for a redress of grievances.” This has often been interpreted as prohibiting government interference with petitioning activity, but not necessarily providing a positive and enforceable right to petition.

The first constitutions of Maryland, North Carolina, Pennsylvania, and Vermont — each drafted about a decade before the First Amendment — all included the right. By 1868, 34 of the 37 ratified state constitutions included an assembly-and-petition clause. Today, 48 of the 50 state constitutions include within them some version of this right as well. (Only Minnesota and New Mexico’s constitutions do not expressly provide a right to petition).

Broader rights under state constitutions

In contrast to the language of the First Amendment, many state petition clauses have different and arguably broader language, and they appear in constitutional provisions that diverge in significant ways from the First Amendment’s text. In fact, only seven provisions mirror the phrasing of the First Amendment. Another nine are instead phrased to provide that the right to petition “shall never be abridged,” or similar language. But the majority of state constitutional petition provisions — in 32 states — frame the right as a positive one (an entitlement), rather than a negative one (a restriction on the government). This textual distinction from the First Amendment strongly suggests that the framers of the state constitutions meant for their clauses to be broader and more protective than the federal First Amendment, and to be enforceable even without legislation authorizing a right of action.

For example, the New Jersey Constitution provides that “The people have the right freely to assemble together, to consult for the common good, to make known their opinions to their representatives, and to petition for redress of grievances.” The New Jersey Supreme Court noted in 1980 that this language is “more sweeping in scope than the language of the First Amendment,” and that it provides an “explicit affirmation of” fundamental rights, imposing “upon the state government an affirmative obligation to protect” said rights.

The California Supreme Court similarly held in 1979 that the state constitution’s broad protection for petition rights extends beyond the First Amendment. The right can be enforced even against some privately owned businesses — including, the court said, a privately owned shopping center that prohibited petitioning activity on its grounds. By contrast, the First Amendment only forbids government action abridging speech; it has no bearing on restrictions private entities might put on expression independent of state action.

Opportunities to expand the right

Although the scope of state constitutional protection for petitioning activity has not been litigated nearly as often as the First Amendment, state right-to-petition clauses have been at the forefront of several key state supreme court decisions over the last few years. Those decisions may serve as useful resources for litigants and courts in other states who are looking with fresh eyes at their state right-to-petition clauses.

For instance, in 2022 the New Hampshire Supreme Court engaged in a thorough analysis of its state petition clause in Richard v. Speaker of the New Hampshire House of Representatives. The plaintiff, Daniel Richard, argued that the clause required the legislature to assemble and hold a public hearing on any given petition. The court acknowledged that under binding federal law the First Amendment does not require such a response, but the court refused to adopt the U.S. Supreme Court’s reasoning as its own. Instead, it separated the state constitutional analysis from the federal, engaging in an exhaustive review of the text of the state constitution and looking to the contemporaneous meanings of the words used. Ultimately, the court held a full hearing was not required for all petitions, but left open the possibility that the state clause “requires a legislature to respond to” a petition in some other way — diverging from the federal Constitution, which contains no such requirement.

A case pending in the Tennessee Supreme Court likewise provides an opportunity for the high court in that state to address the scope of the state constitutional right to petition on its own terms, not just as a mirror of the First Amendment. In that case, Heather Smith, an employee allegedly fired for contacting her legislators, sued her employer for wrongful termination. The Tennessee Supreme Court is considering whether the state constitutional right to petition serves as an exception to the employment-at-will doctrine, which generally permits employers to fire employees for any reason, or no reason at all. Tennessee, like many other states, recognizes some exceptions to this doctrine. For example, courts have held that employees cannot be fired for serving on a jury. The American Civil Liberties Union, where I work, and the ACLU of Tennessee have submitted an amicus brief explaining why Tennessee’s right to petition is fundamental to democracy and well-established in Tennessee’s constitutional tradition.

• • •

In an age of hyper-politicization, it is more important than ever that people have the right to peaceably petition their government — without fear of retribution, termination of their employment, criminal charges, or any other retaliation. State constitutional rights to petition, though under-explored, may well hold promise for protecting this right going forward.

Bridget Lavender is a Skadden Fellow with the ACLU’s State Supreme Court Initiative.

Suggested Citation: Bridget Lavender, The Right to Petition in State Constitutions, Explained, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (July 30, 2024), https://statecourtreport.org/our-work/analysis-opinion/right-petition-state-constitutions-explained.