The Hague Case.
Illustrative of this expansion is Hague v. CIO,1630 in which the Court, though splintered with regard to reasoning and rationale, struck down an ordinance that vested an uncontrolled discretion in a city official to permit or deny any group the opportunity to conduct a public assembly in a public place. Justice Roberts, in an opinion that Justice Black joined and with which Chief Justice Hughes concurred, found protection against state abridgment of the rights of assembly and petition in the Privileges and Immunities Clause of the Fourteenth Amendment. “The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.”1631 Justices Stone and Reed invoked the Due Process Clause of the Fourteenth Amendment for the result, thereby claiming the rights of assembly and petition for aliens as well as citizens. “I think respondents’ right to maintain it does not depend on their citizenship and cannot rightly be made to turn on the existence or non-existence of a purpose to disseminate information about the National Labor Relations Act. It is enough that petitioners have prevented respondents from holding meetings and disseminating information whether for the organization of labor unions or for any other lawful purpose.”1632 This due process view of Justice Stone’s has carried the day over the privileges and immunities approach.
Later cases tend to merge the rights of assembly and petition into the speech and press clauses, and, indeed, all four rights may well be considered as elements of an inclusive right to freedom of expression. While certain conduct may still be denominated as either petition1633 or assembly1634 rather than speech, there seems little question that similar standards will be applied in most cases.1635 For instance, as discussed earlier, where a public employee sues a government employer under the First Amendment’s Speech Clause, the employee must show that he or she spoke as a citizen on a matter of public concern.1636 In Borough of Duryea, Pennsylvania v. Guarnieri,1637 the Court similarly held that a police chief who alleged retaliation for having filed a union grievance challenging his termination was not protected by the right to petition, because his complaints did not go to matters of public concern.1638
- 307 U.S. 496 (1939).
- 307 U.S. at 515. For another holding that the right to petition is not absolute, see McDonald v. Smith, 472 U.S. 479 (1985) (the fact that defamatory statements were made in the context of a petition to government does not provide absolute immunity from libel).
- 307 U.S. at 525.
- E.g., United States v. Harriss, 347 U.S. 612 (1954); Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961); BE & K Construction Co. v. NLRB, 536 U.S. 516 (2002).
- E.g., Coates v. City of Cincinnati, 402 U.S. 611 (1971).
- See, e.g., Borough of Duryea, Pennsylvania v. Guarnieri, 564 U.S. ___, No. 09–1476, slip op. at 7 (2011) (“It is not necessary to say that the [Speech and Petition] Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition share substantial common ground”); But see id. (“Courts should not presume there is always an essential equivalence in the [Speech and Petition] Clauses or that Speech Clause precedents necessarily and in every case resolve Petition Clause claims”).
- Connick v. Myers, 461 U.S. 138 (1983).
- 564 U.S. ___, No. 09–1476, slip op. (2011).
- Justice Scalia, in dissent, disputed the majority’s suggestion that a petition need be of “public concern” to be protected, noting that the Petition Clause had historically been a route for seeking relief of private concerns. Slip op. at 5–7 (2011) (Scalia, J., dissenting). Justice Scalia also suggested that the Clause should be limited to petitions directed to an executive branch or legislature, and that grievances submitted to an adjuciatory body are not so protected. Id. at 1–3.