Petitions entered on the public record are typically not debated or responded to. Today, in Congress and in virtually all 50 states, the right to petition has been reduced. The drafters of the Bill of Rights decided not to include a right of instruction in order to encourage legislators to exercise their best judgment about how to vote. A right of instruction permits a majority of constituents to direct a legislator to vote a particular way, while a right of petition merely means that government officials must hear from members of the public. The right to petition is contrasted with the right to instruct. By being forced to acknowledge and respond to petitions from ordinary persons, officials must openly defend their positions to their constituents, enabling voters to pass a more informed judgment. A robust right to petition is designed to minimize such risks. One of the risks of representative democracy is that elected officials may favor the narrow partisan interests of their most powerful supporters, or choose to advance their own personal interests instead of viewing themselves as faithful agents of their constituents. John Quincy Adams, after being defeated for a second term as President, was elected to the House of Representatives where he provoked a near riot on the House floor by presenting petitions from slaves seeking their freedom. Legislatures in the Revolutionary period and long into the nineteenth century deemed themselves duty-bound to consider and respond to petitions, which could be filed not only by eligible voters but also by women, slaves and immigrants. The Declaration of Independence justified the American Revolution by noting that King George III had repeatedly ignored petitions for redress of the colonists’ grievances. The right to petition plays an important role in American history. As with assembly, however, the right to petition is not simply an afterthought to the Free Speech Clause.

Supreme Court has all but read the venerable right to petition out of the Bill of Rights, effectively holding that it has been rendered obsolete by an expanding Free Speech Clause. The right to “petition the Government for redress of grievances” is among the oldest in our legal heritage, dating back 800 years to the Magna Carta and receiving explicit protection in the English Bill of Rights of 1689, long before the American Revolution.

But despite its recent state of hibernation, the freedom to assemble peaceably remains integral to what Justice Robert Jackson once called “the right to differ.” In fact, the Supreme Court has not decided a case explicitly on free assembly grounds in over thirty years. Neglect of assembly as a freestanding right has continued ever since. However, President Franklin Delano Roosevelt switched to a different grouping of “four freedoms” in an effort to rally support for American entry into WWII, leaving out assembly (and press). At a time when civil liberties were at the forefront of public consciousness, assembly figured prominently as one of the original “Four Freedoms” (along with speech, press, and religion). Eminent twentieth-century Americans, including Dorothy Thompson, Zechariah Chafee, Louis Brandeis, John Dewey, Orson Welles and Eleanor Roosevelt, emphasized the significance of the assembly right. The right of assembly gained particular prominence as the United States entered World War II. Oregon, it recognized that “the right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.” When the Supreme Court extended the right of assembly beyond the federal government to the states in its unanimous 1937 decision, De Jonge v. The Democratic-Republican Societies, suffragists, abolitionists, religious organizations, labor activists, and civil rights groups have all invoked the right to assemble in protest against prevailing norms. The right to assemble has been a crucial legal and cultural protection for dissenting and unorthodox groups. Marchers at the Million Man March in support of the African American community on October 16, 1995.

Right to assemble