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WE THE PEOPLE FOUNDATION, INC., et al., Appellants v. UNITED STATES of America, et al., Appellees.<\/p>\n
Ratified in 1791, the First Amendment to the United States Constitution provides in part that \u201cCongress shall make no law \u2024 abridging \u2024 the right of the people \u2024 to petition the Government for a redress of grievances.\u201d \u2002 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. \u2002 Alleging that they did not receive an adequate response, plaintiffs sued to compel a response from the Government.<\/p>\n
I<\/p>\n
Plaintiffs are numerous individuals and an organization that creatively calls itself \u201cWe the People.\u201d \u2002 For purposes of this appeal, we take the allegations in the complaint as true. \u2002 According to plaintiffs, they have engaged since 1999 in \u201ca nationwide effort to get the government to answer specific questions\u201d regarding what plaintiffs view as the Government’s \u201cviolation of the taxing clauses of the Constitution\u201d and \u201cviolation of the war powers, money and \u2018privacy\u2019 clauses of the Constitution.\u201d \u2002 Joint Appendix (\u201cJ.A.\u201d) 80 (Am.Compl.\u00b6\u20093). \u2002 Plaintiffs submitted petitions with extensive lists of inquiries to various government agencies. \u2002 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. \u2002 On November 8, 2002, plaintiffs presented four petitions to each Member of Congress. \u2002 Those petitions concerned the Government’s war powers, privacy issues, the Federal Reserve System, and the tax code. \u2002 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.<\/p>\n
Plaintiffs contend that the Legislative and Executive Branches have responded to the petitions with \u201ctotal silence and a lack of acknowledgment.\u201d \u2002 J.A. 85 (Am.Compl.\u00b6\u200935). \u2002 In protest, some plaintiffs have stopped paying federal income taxes.<\/p>\n
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. \u2002 They raised two claims. \u2002 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. \u2002 Plaintiffs want the Government to enter into \u201cgood faith exchanges\u201d with plaintiffs and to provide \u201cdocumented and specific answers\u201d to the questions posed in the petitions. \u2002 J.A. 78 (Am.Compl.).<\/p>\n
Second, plaintiffs claim that government officials-by seeking to collect unpaid taxes-have retaliated against plaintiffs’ exercise of First Amendment rights. \u2002 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).<\/p>\n
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. \u2002 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.<\/p>\n
The District Court dismissed plaintiffs’ complaint. \u2002We The People v. United States, No. 04-cv-1211, slip op. at 6, 2005 WL 2473698 (D.D.C. Aug. 31, 2005). \u2002 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. \u2002Id. at 2-3. \u2002 In addition, the District Court concluded that the Anti-Injunction Act bars plaintiffs’ claim for injunctive relief with respect to the collection of taxes. \u2002 See id. at 5 (citing 26 U.S.C. \u00a7\u20027421).<\/p>\n
II<\/p>\n
Plaintiffs raise two legal arguments on appeal. \u2002 First, plaintiffs contend that they have a First Amendment right to receive a government response to or official consideration of their petitions. \u2002 Second, plaintiffs argue that they have the right to withhold payment of their taxes until they receive adequate action on their petitions.<\/p>\n
The Government renews its argument that plaintiffs’ claims are barred by sovereign immunity. \u2002 In response, plaintiffs have contended that Section 702 of the Administrative Procedure Act waives the Government’s sovereign immunity. \u2002 That section provides: \u2009\u201cA 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\u2024 The United States may be named as a defendant in any such action \u2024\u201d 5 U.S.C. \u00a7\u2002702. \u2002 The Government acknowledges that Section 702 waives sovereign immunity from suits for injunctive relief. \u2002 See Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 260-61, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999) (describing Section 702 as waiving the Government’s immunity from actions seeking relief other than money damages); \u2009Trudeau v. FTC, 456 F.3d 178, 186 (D.C.Cir.2006) (\u201c[T]here is no doubt that \u00a7\u2002702 waives the Government’s immunity from actions seeking relief other than money damages.\u201d) (internal quotation omitted). \u2002 The Government contends, however, that plaintiffs’ claims fall within an exception to Section 702 that provides: \u2009\u201cNothing herein \u2024 affects other limitations on judicial review \u2024\u201d 5 U.S.C. \u00a7\u2002702. \u2002 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 \u201cno suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.\u201d \u200226 U.S.C. \u00a7\u20027421(a).<\/p>\n
We agree with the Government that the Anti-Injunction Act precludes plaintiffs’ second claim-related to collection of taxes \u2002See Bob Jones Univ. v. Simon, 416 U.S. 725, 726-27, 749-50, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974). \u2002 In asserting that claim, plaintiffs seek to restrain 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. \u2002 See Alexander v. \u201c Americans United\u201d Inc., 416 U.S. 752, 759-60, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974).<\/p>\n
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. \u2002 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. \u2002 See 26 U.S.C. \u00a7\u20027421; \u2009cf. \u2002Trudeau, 456 F.3d at 187. \u2002 We therefore will consider that claim on the merits.<\/p>\n
III<\/p>\n
The First Amendment to the Constitution provides: \u2009\u201cCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; \u2009or abridging the freedom of speech, or of the press; \u2009or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.\u201d U.S. Const. amend. \u2002 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. \u2002 We disagree.<\/p>\n
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. \u2002 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 grievances that employees submitted through their union. \u2002 See 441 U.S. 463, 463-64 & n. 1, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979). \u2002 In response, the Court held that \u201cthe 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.\u201d \u2002Id. at 465, 99 S.Ct. 1826.<\/p>\n
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; \u2009this prevented nonunion employees from discussing those matters with their employers. \u2002465 U.S. 271, 273, 104 S.Ct. 1058, 79 L.Ed.2d 299 (1984). \u2002 Holding that the state statutory scheme had not \u201cunconstitutionally denied an opportunity to participate in their public employer’s making of policy,\u201d the Court reiterated: \u2009\u201cNothing 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.\u201d \u2002Id. at 285, 292, 104 S.Ct. 1058. \u2002 Therefore, the Court concluded that individuals \u201chave no constitutional right as members of the public to a government audience for their policy views.\u201d \u2002 Id. at 286, 104 S.Ct. 1058.<\/p>\n
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. \u2002 Plaintiffs’ attempted distinction is at best strained. \u2002 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. \u2002Knight, 465 U.S. at 285, 104 S.Ct. 1058; \u2009Smith, 441 U.S. at 465, 99 S.Ct. 1826. \u2002 Nothing in the two Supreme Court opinions hints at a limitation on their holdings to certain kinds of petitions or certain levels of Government. \u2002 In short, the Supreme Court precedents in Smith and Knight govern this case.<\/p>\n
IV<\/p>\n
Plaintiffs cite the work of several commentators who suggest that Smith and Knight overlooked important historical information regarding the right to petition. \u2002 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. \u2002 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. \u2002 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); \u2009James E. Pfander, Sovereign Immunity and the Right to Petition: \u2009Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U.L. Rev. 899, 904-05 & n. 22 (1997); \u2009Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: \u2009Cut From a Different Cloth, 21 Hastings Const. L.Q. 15, 17-18 (1993); \u2009Note, A Petition Clause Analysis of Suits Against the Government: \u2009Implications for Rule 11 Sanctions, 106 Harv. L. Rev.. 1111, 1116-18 (1993); \u2009cf. \u2002 David C. Frederick, John Quincy Adams, Slavery, and the Disappearance of the Right of Petition, 9 Law & Hist Rev. 113, 116-18, 141 (1991).<\/p>\n
Other scholars disagree, arguing based on the plain text of the First Amendment that the \u201cright to petition the government for a redress of grievances really is just a right to petition the government for a redress of grievances.\u201d \u2002 Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 Nw. U.L. Rev. 739, 766 (1999); \u2009cf. \u2002 Norman B. Smith, \u201cShall Make No Law Abridging \u2024\u201d: \u2009An Analysis of the Neglected, but Nearly Absolute, Right of Petition, 54 U. Cin. L. Rev. 1153, 1190-91 (1986). \u2002 These scholars note that the Petition Clause by its terms refers only to a right \u201cto petition\u201d; \u2009it does not also refer to a right to response or official consideration. \u2002 See N. Bailey, An Universal Etymological English Dictionary (24th ed. \u2002 1782) (\u201cTo petition\u201d: \u2009\u201cto present or put up a Petition\u201d); \u2009S. Johnson, A Dictionary Of The English Language (6th ed. \u2002 1785) (\u201cTo petition\u201d: \u2009\u201cTo solicite; \u2009to supplicate\u201d). \u2002 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. \u2002 See Lawson & Seidman, 93 Nw. U.L. Rev. at 756-57; \u2009cf. \u2002Williams v. Florida, 399 U.S. 78, 92-93, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970); \u2009Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 274-76, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989) ( \u201cDespite this recognition of civil exemplary damages as punitive in nature, the Eighth Amendment did not expressly include it within its scope.\u201d).<\/p>\n
We need not resolve this debate, however, because we must follow the binding Supreme Court precedent. \u2002 See Tenet v. Doe, 544 U.S. 1, 10-11, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005). \u2002 And under that precedent, Executive and Legislative responses to and consideration of petitions are entrusted to the discretion of those Branches.<\/p>\n
The judgment of the District Court is affirmed.<\/p>\n
So ordered.<\/p>\n
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. \u2002 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. \u2002 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.<\/p>\n
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, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979), and Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271, 104 S.Ct. 1058, 79 L.Ed.2d 299 (1984). \u2002 Op. at 144. 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.<\/p>\n
The Supreme Court’s interpretation of the Constitution has been informed by the understanding that:<\/p>\n
\u201cThe provisions of the Constitution are not mathematical formulas having their essence in their form; \u2009they are organic living institutions transplanted from English soil. \u2002 Their significance is vital not formal; \u2009it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.\u201d<\/p>\n
Konigsberg v. State Bar of California, 366 U.S. 36, 50 n. 10, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961) (quoting Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 58 L.Ed. 1115 (1914)). \u2002 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. \u2002 For example, in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), the Supreme Court stated that \u201c[t]he history may help explain why the Court consistently has declined to take a rigid, absolutist view of the Establishment Clause. \u2002 We have refused \u2018to construe the Religion Clauses with a literalness that would undermine the ultimate constitutional objective as illuminated by history.\u2019\u2009\u201d \u2002 Id. at 678, 104 S.Ct. 1355 (quoting Walz v. Tax Comm’n, 397 U.S. 664, 671, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970)); \u2009see id. at 673-75, 90 S.Ct. 1409. \u2002 Nor is the Supreme Court’s rejection of literalism limited to the First Amendment.1<\/sup><\/a><\/p>\n In the context of the First Amendment, the Supreme Court has repeatedly emphasized the significance of historical evidence. \u2002 A few examples suffice to illustrate the point. \u2002 In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), the Supreme Court acknowledged that:<\/p>\n [The] right of access to criminal trials [by the press] is not explicitly mentioned in terms in the First Amendment. \u2002 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. \u2002 The First Amendment is thus broad enough to encompass those rights that, while not unambiguously enumerated in the very terms of the Amendment, are nonetheless necessary to the enjoyment of other First Amendment rights.<\/p>\n Id. at 604, 102 S.Ct. 2613 (internal quotations marks omitted) (citations omitted). \u2002 In Lynch v. Donnelly, the Supreme Court acknowledged that its \u201cinterpretation of the Establishment Clause has comported with what history reveals was the contemporaneous understanding of its guarantees.\u201d \u2002465 U.S. at 673, 104 S.Ct. 1355; \u2009see id. at 673-77, 104 S.Ct. 1355. \u2002 In Marsh v. Chambers, 463 U.S. 783, 786-94, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (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. \u2002 See Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 583-85, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983); \u2009Engel v. Vitale, 370 U.S. 421, 425-33, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962); \u2009Everson v. Bd. of Educ., 330 U.S. 1, 7-15, 67 S.Ct. 504, 91 L.Ed. 711 (1947); \u2009Grosjean v. Am. Press Co., 297 U.S. 233, 240, 245-49, 56 S.Ct. 444, 80 L.Ed. 660 (1936); \u2009 Near v. Minnesota, 283 U.S. 697, 713-18, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).2<\/sup><\/a><\/p>\n 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. \u2002 See Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: \u2009Cut From a Different Cloth, 21 Hastings Const. L.Q. 15, 22-33 (1993); \u2009Norman B. Smith, \u201cShall Make No Law Abridging \u2024\u201d: \u2009An Analysis of the Neglected, but Nearly Absolute, Right of Petition, 54 U. Cin. L. Rev. 1153, 1154-68, 1170-75 (1986). \u2002 Based on the historical background of the Petition Clause, \u201cmost scholars agree that the right to petition includes a right to some sort of considered response.\u201d \u2002 James E. Pfander, Sovereign Immunity and the Right to Petition: \u2009Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U.L. Rev. 899, 905 n. 22 (1997); \u2009see David C. Frederick, John Quincy Adams, Slavery, and the Right of Petition, 9 Law & Hist. L. Rev. 113, 141 (1991); \u2009Spanbauer, supra, at 40-42; \u2009Stephen A. Higginson, Note, A Short History of the Right to Petition, 96 Yale L.J. 142, 155-56 (1986); \u2009Note, A Petition Clause Analysis of Suits Against the Government: \u2009Implications for Rule 11 Sanctions, 106 Harv. L. Rev. 1111, 1116-17, 1119-20 (1993); \u2009see 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). \u2002 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 \u201can emerging consensus of scholars\u201d embracing appellants’ interpretation of the right to petition. \u2002 See Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 Nw. U.L. Rev. 739, 756 (1999).<\/p>\n The sources cited by appellants indicate that \u201c[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 \u2018framers’ intended with respect to the substantive meaning of the right.\u201d \u2002 Frederick, supra, at 117 n. 19 (citing 4 Bernard Schwartz, The Roots Of The Bill Of Rights 762-66, 840-42 (1980)); \u2009see Higginson, supra, at 155-56. \u2002 But neither textual omission\u20093<\/sup><\/a>\u00a0nor the absence of explicit statements by Framers or Ratifiers on the precise issue has been dispositive in the Supreme Court’s First Amendment jurisprudence. \u2002 Instead, the historical context and the underlying purpose have been the hallmarks of the Supreme Court’s approach to the First Amendment. \u2002 See, e.g., Buckley v. Valeo, 424 U.S. 1, 14-15, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); \u2009New York Times Co. v. Sullivan, 376 U.S. 254, 269-71, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); \u2009Roth v. United States, 354 U.S. 476, 481-84, 488, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); \u2009Beauharnais v. Illinois, 343 U.S. 250, 254-55, 72 S.Ct. 725, 96 L.Ed. 919 (1952).<\/p>\n The Supreme Court’s free speech precedent is illustrative. \u2002 Although the textual meaning of \u201cspeech\u201d is as clear, in terms of dictionary definitions, as the meaning of \u201cpetition,\u201d the Supreme Court has interpreted \u201cspeech\u201d broadly in order to protect freedom of expression:<\/p>\n The First Amendment literally forbids the abridgment only of \u201cspeech,\u201d but we have long recognized that its protection does not end at the spoken or written word \u2024 [W]e have acknowledged that conduct may be \u201csufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.\u201d<\/p>\n Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (quoting Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974)); \u2009cf. \u2002NAACP v. Button, 371 U.S. 415, 430, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). \u2002 The text of the First Amendment mentions neither writing nor conduct, and at the time of the Founding, as now, the word \u201cspeech\u201d meant expression through \u201cvocal words.\u201d\u20094<\/sup><\/a>\u00a0\u2002Yet the Supreme Court has considered both the history and purpose of the First Amendment in according a broad interpretation to the Free Speech Clause. \u2002 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, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994); \u2009Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 61, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983); \u2009Martin v. Struthers, 319 U.S. 141, 141-42, 149, 63 S.Ct. 862, 87 L.Ed. 1313 (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, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978); \u2009Buckley, 424 U.S. at 19-20, 96 S.Ct. 612, burning the American flag, see Johnson, 491 U.S. at 399-400, 404-06, 109 S.Ct. 2533, and dancing nude, see City of Erie v. Pap’s A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); \u2009Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). \u2002 Furthermore, although the dictionaries do not exclude any particular types of oral communication from the definition of \u201cspeech,\u201d 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, 77 S.Ct. 1304; \u2009Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), libelous speech, Beauharnais, 343 U.S. at 254-55, 266, 72 S.Ct. 725, false commercial speech, see Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 563-64, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980); \u2009Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771-72, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), or speech that is \u201clikely to cause a breach of the peace,\u201d Chaplinsky v. New Hampshire, 315 U.S. 568, 569, 573, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).<\/p>\n 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. \u2002 It remains to be seen whether the Supreme Court would agree to entertain the issue, much less whether it would agree with appellants and \u201cmost scholars\u201d 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 light of other considerations, such as the nature of our constitutional government. \u2002 No doubt it would present an interesting question. \u2002 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.<\/p>\n FOOTNOTES<\/p>\n 1<\/a>.\u00a0\u00a0\u2003For instance, in Eleventh Amendment cases, the Supreme Court has rejected \u201cahistorical literalism,\u201d Alden v. Maine, 527 U.S. 706, 730, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), and instead has turned to \u201chistory, practice, precedent, and the structure of the Constitution,\u201d id. at 741, 119 S.Ct. 2240; \u2009see id. at 711-24, 730-35, 741-44, 119 S.Ct. 2240, explaining that \u201c[a]lthough the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, \u2018we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition \u2024 which it confirms,\u2019\u2009\u201d id. at 729, 119 S.Ct. 2240 (omission in original) (quoting Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991))); \u2009see also Seminole Tribe, 517 U.S. at 69-70, 116 S.Ct. 1114; \u2009Principality of Monaco v. Mississippi, 292 U.S. 313, 320-26, 330, 54 S.Ct. 745, 78 L.Ed. 1282 (1934); \u2009Hans v. Louisiana, 134 U.S. 1, 10-11, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890). \u2002 In construing the Fifth Amendment in Ullmann v. United States, 350 U.S. 422, 424-25, 438-39, 76 S.Ct. 497, 100 L.Ed. 511 (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: \u2009For \u201cthe privilege against self-incrimination[,] \u2024 it is peculiarly true that \u2018a page of history is worth a volume of logic.\u2019 \u2002 For the history of the privilege establishes not only that it is not to be interpreted literally, but also that its sole concern is \u2024 with the danger to a witness forced to give testimony\u201d that may lead to criminal charges. \u2002 Id. at 438-39, 76 S.Ct. 497 (internal quotation marks omitted) (citations omitted) (quoting New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963 (1921)). \u2002 And in interpreting the Ex Post Facto Clause, the Supreme Court in Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990), relied on history rather than adopting a literal construction:Although the Latin phrase \u201cex post facto\u2009\u201d literally encompasses any law passed \u201cafter the fact,\u201d 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. \u2002 As early opinions in this Court explained, \u201cex post facto law\u201d was a term of art with an established meaning at the time of the framing of the Constitution.Id. at 41, 110 S.Ct. 2715 (internal citations omitted) (citing Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648 (1798)); \u2009see Minnesota v. Carter, 525 U.S. 83, 88-89, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998); \u2009Maryland v. Craig, 497 U.S. 836, 844-49, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990); \u2009Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 502-03, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987); \u2009Goldstein v. California, 412 U.S. 546, 561-62, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973); \u2009Gravel v. United States, 408 U.S. 606, 616-18, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972); \u2009Wright v. United States, 302 U.S. 583, 607, 58 S.Ct. 395, 82 L.Ed. 439 (1938) (Stone, J., concurring); \u2009Olmstead v. United States, 277 U.S. 438, 476-77, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting); \u2009Boyd v. United States, 116 U.S. 616, 634-35, 6 S.Ct. 524, 29 L.Ed. 746 (1886).<\/p>\n 2<\/a>.\u00a0\u00a0\u2003Similar analysis is found in the Supreme Court’s interpretation of other provisions of the Constitution. \u2002 See Crawford v. Washington, 541 U.S. 36, 42-50, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (Sixth Amendment); \u2009Atwater v. City of Lago Vista, 532 U.S. 318, 326-40, 345 n. 14, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) (Fourth Amendment); \u2009U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 782-83, 800-15, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995) (Tenth Amendment); \u2009Harmelin v. Michigan, 501 U.S. 957, 975-85, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Eighth Amendment); \u2009Wesberry v. Sanders, 376 U.S. 1, 2-3, 7-17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) (Art. I, \u00a7\u20022).<\/p>\n 3<\/a>.\u00a0\u00a0\u2003See, e.g., Globe Newspaper, 457 U.S. at 604, 102 S.Ct. 2613. \u2002 The Supreme Court has adopted the same approach in interpreting other provisions of the Constitution. \u2002 For example, in holding that the Speech or Debate Clause applies to a Senator’s aide even though it mentions only \u201cSenators and Representatives,\u201d the Supreme Court in Gravel observed that although the Clause \u201cspeaks only of \u2018Speech or Debate,\u2019\u2009\u201d its precedent, consistent with adhering to the underlying purpose of the Clause, \u201cha[d] plainly not taken a literalistic approach in applying the privilege\u201d to protect committee reports, resolutions, and voting. \u2002 Gravel, 408 U.S. at 617, 92 S.Ct. 2614; \u2009see id. at 616-18, 92 S.Ct. 2614. \u2002 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. \u2002Carter, 525 U.S. at 88-89, 119 S.Ct. 469; \u2009see also Faretta v. California, 422 U.S. 806, 819 & n. 15, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); \u2009Goldstein, 412 U.S. at 561-62, 93 S.Ct. 2303; \u2009Principality of Monaco, 292 U.S. at 320-23, 330, 54 S.Ct. 745; \u2009Hans, 134 U.S. at 10-11, 15, 10 S.Ct. 504.<\/p>\n 4<\/a>.\u00a0\u00a0\u20032 Samuel Johnson, A Dictionary Of The English Language (6th ed. 1785) (\u201cspeech\u201d: \u2009\u201cThe power of articulate utterance; \u2009the power of expressing thoughts by vocal words,\u201d \u201cLanguage; \u2009words considered as expressing thoughts,\u201d \u201cParticular language; \u2009as distinct from others,\u201d \u201cAny thing spoken,\u201d \u201cTalk; \u2009mention,\u201d \u201cOration, harangue,\u201d \u201cDeclaration of thoughts\u201d); \u20092 Thomas Sheridan, A Complete Dictionary Of The English Language (3d ed. 1790) (\u201cspeech\u201d: \u2009\u201cThe power of articulate utterance, the power of expressing thoughts by vocal words; \u2009language, words considered as expressing thoughts; \u2009particular language as distinct from others; \u2009any thing spoken; \u2009talk, mention; \u2009oration, harangue\u201d); \u2009see Nathan Bailey, An Universal Etymological English Dictionary (24th ed. 1782) (\u201cspeech\u201d: \u2009\u201cLanguage, Discourse\u201d); \u2009see also The American Heritage Dictionary Of The English Language 1731 (3d ed.1992) (\u201cspeech\u201d: \u2009\u201cThe faculty or act of speaking,\u201d \u201cThe faculty or act of expressing or describing thoughts, feelings, or perceptions by the articulation of words,\u201d \u201cSomething spoken; \u2009an utterance,\u201d \u201cVocal communication; \u2009conversation\u201d); \u2009The New Oxford American Dictionary 1630 (2d ed.2005) (\u201cspeech\u201d: \u2009\u201cthe expression of or the ability to express thoughts and feelings by articulate sounds\u201d); \u200916 The Oxford English Dictionary 175-77 (2d ed.1989) (\u201cspeech\u201d: \u2009\u201cThe act of speaking; \u2009the natural exercise of the vocal organs; \u2009the utterance of words or sentences; \u2009oral expression of thought or feeling\u201d).<\/p>\n <\/p>\n 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.<\/p>\n<\/div>\n<\/div>\n [\/et_pb_text][\/et_pb_column][\/et_pb_row][\/et_pb_section]<\/p>\n<\/span>","protected":false},"excerpt":{"rendered":" “THEY…..those in Congress and the Preside-Ant”….who serve the Creditors “to offset and adjust the debts of the United States of America” and thereby “Control all Debtor\/Slave-Citizens”……DO NOT GIVE A SHIT ABOUT THE COMMON PEOPLE…AND THEY NEVER HAVE. Read the Court Case….and find out the TOTAL WASTE OF TIME IT IS FOR THE UNITED STATES SLAVE […]<\/p>\n","protected":false},"author":1,"featured_media":2521,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"on","_et_pb_old_content":" WE THE PEOPLE FOUNDATION, INC., et al., Appellants v. UNITED STATES of America, et al., Appellees.<\/p> Ratified in 1791, the First Amendment to the United States Constitution provides in part that \u201cCongress shall make no law \u2024 abridging \u2024 the right of the people \u2024 to petition the Government for a redress of grievances.\u201d \u2002 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. \u2002 Alleging that they did not receive an adequate response, plaintiffs sued to compel a response from the Government.<\/p> 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. \u2002 Plaintiffs' argument fails because, as the Supreme Court has held, the First Amendment does not encompass such a right. \u2002 See Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 283, 285, 104 S.Ct. 1058, 79 L.Ed.2d 299 (1984); \u2009Smith v. Arkansas State Highway Employees, 441 U.S. 463, 465, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979).<\/p> I<\/p> Plaintiffs are numerous individuals and an organization that creatively calls itself \u201cWe the People.\u201d \u2002 For purposes of this appeal, we take the allegations in the complaint as true. \u2002 According to plaintiffs, they have engaged since 1999 in \u201ca nationwide effort to get the government to answer specific questions\u201d regarding what plaintiffs view as the Government's \u201cviolation of the taxing clauses of the Constitution\u201d and \u201cviolation of the war powers, money and \u2018privacy\u2019 clauses of the Constitution.\u201d \u2002 Joint Appendix (\u201cJ.A.\u201d) 80 (Am.Compl.\u00b6\u20093). \u2002 Plaintiffs submitted petitions with extensive lists of inquiries to various government agencies. \u2002 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. \u2002 On November 8, 2002, plaintiffs presented four petitions to each Member of Congress. \u2002 Those petitions concerned the Government's war powers, privacy issues, the Federal Reserve System, and the tax code. \u2002 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.<\/p> Plaintiffs contend that the Legislative and Executive Branches have responded to the petitions with \u201ctotal silence and a lack of acknowledgment.\u201d \u2002 J.A. 85 (Am.Compl.\u00b6\u200935). \u2002 In protest, some plaintiffs have stopped paying federal income taxes.<\/p> 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. \u2002 They raised two claims. \u2002 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. \u2002 Plaintiffs want the Government to enter into \u201cgood faith exchanges\u201d with plaintiffs and to provide \u201cdocumented and specific answers\u201d to the questions posed in the petitions. \u2002 J.A. 78 (Am.Compl.).<\/p> Second, plaintiffs claim that government officials-by seeking to collect unpaid taxes-have retaliated against plaintiffs' exercise of First Amendment rights. \u2002 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).<\/p> 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. \u2002 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.<\/p> The District Court dismissed plaintiffs' complaint. \u2002We The People v. United States, No. 04-cv-1211, slip op. at 6, 2005 WL 2473698 (D.D.C. Aug. 31, 2005). \u2002 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. \u2002Id. at 2-3. \u2002 In addition, the District Court concluded that the Anti-Injunction Act bars plaintiffs' claim for injunctive relief with respect to the collection of taxes. \u2002 See id. at 5 (citing 26 U.S.C. \u00a7\u20027421).<\/p> II<\/p> Plaintiffs raise two legal arguments on appeal. \u2002 First, plaintiffs contend that they have a First Amendment right to receive a government response to or official consideration of their petitions. \u2002 Second, plaintiffs argue that they have the right to withhold payment of their taxes until they receive adequate action on their petitions.<\/p> The Government renews its argument that plaintiffs' claims are barred by sovereign immunity. \u2002 In response, plaintiffs have contended that Section 702 of the Administrative Procedure Act waives the Government's sovereign immunity. \u2002 That section provides: \u2009\u201cA 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\u2024 The United States may be named as a defendant in any such action \u2024\u201d 5 U.S.C. \u00a7\u2002702. \u2002 The Government acknowledges that Section 702 waives sovereign immunity from suits for injunctive relief. \u2002 See Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 260-61, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999) (describing Section 702 as waiving the Government's immunity from actions seeking relief other than money damages); \u2009Trudeau v. FTC, 456 F.3d 178, 186 (D.C.Cir.2006) (\u201c[T]here is no doubt that \u00a7\u2002702 waives the Government's immunity from actions seeking relief other than money damages.\u201d) (internal quotation omitted). \u2002 The Government contends, however, that plaintiffs' claims fall within an exception to Section 702 that provides: \u2009\u201cNothing herein \u2024 affects other limitations on judicial review \u2024\u201d 5 U.S.C. \u00a7\u2002702. \u2002 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 \u201cno suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.\u201d \u200226 U.S.C. \u00a7\u20027421(a).<\/p> We agree with the Government that the Anti-Injunction Act precludes plaintiffs' second claim-related to collection of taxes \u2002See Bob Jones Univ. v. Simon, 416 U.S. 725, 726-27, 749-50, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974). \u2002 In asserting that claim, plaintiffs seek to restrain 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. \u2002 See Alexander v. \u201c Americans United\u201d Inc., 416 U.S. 752, 759-60, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974).<\/p> 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. \u2002 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. \u2002 See 26 U.S.C. \u00a7\u20027421; \u2009cf. \u2002Trudeau, 456 F.3d at 187. \u2002 We therefore will consider that claim on the merits.<\/p> III<\/p> The First Amendment to the Constitution provides: \u2009\u201cCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; \u2009or abridging the freedom of speech, or of the press; \u2009or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.\u201d U.S. Const. amend. \u2002 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. \u2002 We disagree.<\/p> 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. \u2002 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 grievances that employees submitted through their union. \u2002 See 441 U.S. 463, 463-64 & n. 1, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979). \u2002 In response, the Court held that \u201cthe 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.\u201d \u2002Id. at 465, 99 S.Ct. 1826.<\/p> 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; \u2009this prevented nonunion employees from discussing those matters with their employers. \u2002465 U.S. 271, 273, 104 S.Ct. 1058, 79 L.Ed.2d 299 (1984). \u2002 Holding that the state statutory scheme had not \u201cunconstitutionally denied an opportunity to participate in their public employer's making of policy,\u201d the Court reiterated: \u2009\u201cNothing 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.\u201d \u2002Id. at 285, 292, 104 S.Ct. 1058. \u2002 Therefore, the Court concluded that individuals \u201chave no constitutional right as members of the public to a government audience for their policy views.\u201d \u2002 Id. at 286, 104 S.Ct. 1058.<\/p> 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. \u2002 Plaintiffs' attempted distinction is at best strained. \u2002 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. \u2002Knight, 465 U.S. at 285, 104 S.Ct. 1058; \u2009Smith, 441 U.S. at 465, 99 S.Ct. 1826. \u2002 Nothing in the two Supreme Court opinions hints at a limitation on their holdings to certain kinds of petitions or certain levels of Government. \u2002 In short, the Supreme Court precedents in Smith and Knight govern this case.<\/p> IV<\/p> Plaintiffs cite the work of several commentators who suggest that Smith and Knight overlooked important historical information regarding the right to petition. \u2002 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. \u2002 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. \u2002 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); \u2009James E. Pfander, Sovereign Immunity and the Right to Petition: \u2009Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U.L. Rev. 899, 904-05 & n. 22 (1997); \u2009Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: \u2009Cut From a Different Cloth, 21 Hastings Const. L.Q. 15, 17-18 (1993); \u2009Note, A Petition Clause Analysis of Suits Against the Government: \u2009Implications for Rule 11 Sanctions, 106 Harv. L. Rev.. 1111, 1116-18 (1993); \u2009cf. \u2002 David C. Frederick, John Quincy Adams, Slavery, and the Disappearance of the Right of Petition, 9 Law & Hist Rev. 113, 116-18, 141 (1991).<\/p> Other scholars disagree, arguing based on the plain text of the First Amendment that the \u201cright to petition the government for a redress of grievances really is just a right to petition the government for a redress of grievances.\u201d \u2002 Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 Nw. U.L. Rev. 739, 766 (1999); \u2009cf. \u2002 Norman B. Smith, \u201cShall Make No Law Abridging \u2024\u201d: \u2009An Analysis of the Neglected, but Nearly Absolute, Right of Petition, 54 U. Cin. L. Rev. 1153, 1190-91 (1986). \u2002 These scholars note that the Petition Clause by its terms refers only to a right \u201cto petition\u201d; \u2009it does not also refer to a right to response or official consideration. \u2002 See N. Bailey, An Universal Etymological English Dictionary (24th ed. \u2002 1782) (\u201cTo petition\u201d: \u2009\u201cto present or put up a Petition\u201d); \u2009S. Johnson, A Dictionary Of The English Language (6th ed. \u2002 1785) (\u201cTo petition\u201d: \u2009\u201cTo solicite; \u2009to supplicate\u201d). \u2002 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. \u2002 See Lawson & Seidman, 93 Nw. U.L. Rev. at 756-57; \u2009cf. \u2002Williams v. Florida, 399 U.S. 78, 92-93, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970); \u2009Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 274-76, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989) ( \u201cDespite this recognition of civil exemplary damages as punitive in nature, the Eighth Amendment did not expressly include it within its scope.\u201d).<\/p> We need not resolve this debate, however, because we must follow the binding Supreme Court precedent. \u2002 See Tenet v. Doe, 544 U.S. 1, 10-11, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005). \u2002 And under that precedent, Executive and Legislative responses to and consideration of petitions are entrusted to the discretion of those Branches.<\/p> The judgment of the District Court is affirmed.<\/p> So ordered.<\/p> 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. \u2002 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. \u2002 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.<\/p> 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, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979), and Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271, 104 S.Ct. 1058, 79 L.Ed.2d 299 (1984). \u2002 Op. at 144. 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.<\/p> The Supreme Court's interpretation of the Constitution has been informed by the understanding that:<\/p> \u201cThe provisions of the Constitution are not mathematical formulas having their essence in their form; \u2009they are organic living institutions transplanted from English soil. \u2002 Their significance is vital not formal; \u2009it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.\u201d<\/p> Konigsberg v. State Bar of California, 366 U.S. 36, 50 n. 10, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961) (quoting Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 58 L.Ed. 1115 (1914)). \u2002 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. \u2002 For example, in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), the Supreme Court stated that \u201c[t]he history may help explain why the Court consistently has declined to take a rigid, absolutist view of the Establishment Clause. \u2002 We have refused \u2018to construe the Religion Clauses with a literalness that would undermine the ultimate constitutional objective as illuminated by history.\u2019\u2009\u201d \u2002 Id. at 678, 104 S.Ct. 1355 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 671, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970)); \u2009see id. at 673-75, 90 S.Ct. 1409. \u2002 Nor is the Supreme Court's rejection of literalism limited to the First Amendment.1<\/sup><\/a><\/p> In the context of the First Amendment, the Supreme Court has repeatedly emphasized the significance of historical evidence. \u2002 A few examples suffice to illustrate the point. \u2002 In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), the Supreme Court acknowledged that:<\/p> [The] right of access to criminal trials [by the press] is not explicitly mentioned in terms in the First Amendment. \u2002 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. \u2002 The First Amendment is thus broad enough to encompass those rights that, while not unambiguously enumerated in the very terms of the Amendment, are nonetheless necessary to the enjoyment of other First Amendment rights.<\/p> Id. at 604, 102 S.Ct. 2613 (internal quotations marks omitted) (citations omitted). \u2002 In Lynch v. Donnelly, the Supreme Court acknowledged that its \u201cinterpretation of the Establishment Clause has comported with what history reveals was the contemporaneous understanding of its guarantees.\u201d \u2002465 U.S. at 673, 104 S.Ct. 1355; \u2009see id. at 673-77, 104 S.Ct. 1355. \u2002 In Marsh v. Chambers, 463 U.S. 783, 786-94, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (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. \u2002 See Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575, 583-85, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983); \u2009Engel v. Vitale, 370 U.S. 421, 425-33, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962); \u2009Everson v. Bd. of Educ., 330 U.S. 1, 7-15, 67 S.Ct. 504, 91 L.Ed. 711 (1947); \u2009Grosjean v. Am. Press Co., 297 U.S. 233, 240, 245-49, 56 S.Ct. 444, 80 L.Ed. 660 (1936); \u2009 Near v. Minnesota, 283 U.S. 697, 713-18, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).2<\/sup><\/a><\/p> 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. \u2002 See Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: \u2009Cut From a Different Cloth, 21 Hastings Const. L.Q. 15, 22-33 (1993); \u2009Norman B. Smith, \u201cShall Make No Law Abridging \u2024\u201d: \u2009An Analysis of the Neglected, but Nearly Absolute, Right of Petition, 54 U. Cin. L. Rev. 1153, 1154-68, 1170-75 (1986). \u2002 Based on the historical background of the Petition Clause, \u201cmost scholars agree that the right to petition includes a right to some sort of considered response.\u201d \u2002 James E. Pfander, Sovereign Immunity and the Right to Petition: \u2009Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U.L. Rev. 899, 905 n. 22 (1997); \u2009see David C. Frederick, John Quincy Adams, Slavery, and the Right of Petition, 9 Law & Hist. L. Rev. 113, 141 (1991); \u2009Spanbauer, supra, at 40-42; \u2009Stephen A. Higginson, Note, A Short History of the Right to Petition, 96 Yale L.J. 142, 155-56 (1986); \u2009Note, A Petition Clause Analysis of Suits Against the Government: \u2009Implications for Rule 11 Sanctions, 106 Harv. L. Rev. 1111, 1116-17, 1119-20 (1993); \u2009see 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). \u2002 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 \u201can emerging consensus of scholars\u201d embracing appellants' interpretation of the right to petition. \u2002 See Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 Nw. U.L. Rev. 739, 756 (1999).<\/p> The sources cited by appellants indicate that \u201c[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 \u2018framers' intended with respect to the substantive meaning of the right.\u201d \u2002 Frederick, supra, at 117 n. 19 (citing 4 Bernard Schwartz, The Roots Of The Bill Of Rights 762-66, 840-42 (1980)); \u2009see Higginson, supra, at 155-56. \u2002 But neither textual omission\u20093<\/sup><\/a>\u00a0nor the absence of explicit statements by Framers or Ratifiers on the precise issue has been dispositive in the Supreme Court's First Amendment jurisprudence. \u2002 Instead, the historical context and the underlying purpose have been the hallmarks of the Supreme Court's approach to the First Amendment. \u2002 See, e.g., Buckley v. Valeo, 424 U.S. 1, 14-15, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); \u2009New York Times Co. v. Sullivan, 376 U.S. 254, 269-71, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); \u2009Roth v. United States, 354 U.S. 476, 481-84, 488, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); \u2009Beauharnais v. Illinois, 343 U.S. 250, 254-55, 72 S.Ct. 725, 96 L.Ed. 919 (1952).<\/p> The Supreme Court's free speech precedent is illustrative. \u2002 Although the textual meaning of \u201cspeech\u201d is as clear, in terms of dictionary definitions, as the meaning of \u201cpetition,\u201d the Supreme Court has interpreted \u201cspeech\u201d broadly in order to protect freedom of expression:<\/p> The First Amendment literally forbids the abridgment only of \u201cspeech,\u201d but we have long recognized that its protection does not end at the spoken or written word \u2024 [W]e have acknowledged that conduct may be \u201csufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.\u201d<\/p> Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (quoting Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974)); \u2009cf. \u2002NAACP v. Button, 371 U.S. 415, 430, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). \u2002 The text of the First Amendment mentions neither writing nor conduct, and at the time of the Founding, as now, the word \u201cspeech\u201d meant expression through \u201cvocal words.\u201d\u20094<\/sup><\/a>\u00a0\u2002Yet the Supreme Court has considered both the history and purpose of the First Amendment in according a broad interpretation to the Free Speech Clause. \u2002 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, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994); \u2009Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 61, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983); \u2009Martin v. Struthers, 319 U.S. 141, 141-42, 149, 63 S.Ct. 862, 87 L.Ed. 1313 (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, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978); \u2009Buckley, 424 U.S. at 19-20, 96 S.Ct. 612, burning the American flag, see Johnson, 491 U.S. at 399-400, 404-06, 109 S.Ct. 2533, and dancing nude, see City of Erie v. Pap's A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); \u2009Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). \u2002 Furthermore, although the dictionaries do not exclude any particular types of oral communication from the definition of \u201cspeech,\u201d 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, 77 S.Ct. 1304; \u2009Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), libelous speech, Beauharnais, 343 U.S. at 254-55, 266, 72 S.Ct. 725, false commercial speech, see Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 563-64, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980); \u2009Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771-72, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), or speech that is \u201clikely to cause a breach of the peace,\u201d Chaplinsky v. New Hampshire, 315 U.S. 568, 569, 573, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).<\/p> 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. \u2002 It remains to be seen whether the Supreme Court would agree to entertain the issue, much less whether it would agree with appellants and \u201cmost scholars\u201d 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 light of other considerations, such as the nature of our constitutional government. \u2002 No doubt it would present an interesting question. \u2002 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.<\/p> FOOTNOTES<\/p> 1<\/a>.\u00a0\u00a0\u2003For instance, in Eleventh Amendment cases, the Supreme Court has rejected \u201cahistorical literalism,\u201d Alden v. Maine, 527 U.S. 706, 730, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), and instead has turned to \u201chistory, practice, precedent, and the structure of the Constitution,\u201d id. at 741, 119 S.Ct. 2240; \u2009see id. at 711-24, 730-35, 741-44, 119 S.Ct. 2240, explaining that \u201c[a]lthough the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, \u2018we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition \u2024 which it confirms,\u2019\u2009\u201d id. at 729, 119 S.Ct. 2240 (omission in original) (quoting Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991))); \u2009see also Seminole Tribe, 517 U.S. at 69-70, 116 S.Ct. 1114; \u2009Principality of Monaco v. Mississippi, 292 U.S. 313, 320-26, 330, 54 S.Ct. 745, 78 L.Ed. 1282 (1934); \u2009Hans v. Louisiana, 134 U.S. 1, 10-11, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890). \u2002 In construing the Fifth Amendment in Ullmann v. United States, 350 U.S. 422, 424-25, 438-39, 76 S.Ct. 497, 100 L.Ed. 511 (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: \u2009For \u201cthe privilege against self-incrimination[,] \u2024 it is peculiarly true that \u2018a page of history is worth a volume of logic.\u2019 \u2002 For the history of the privilege establishes not only that it is not to be interpreted literally, but also that its sole concern is \u2024 with the danger to a witness forced to give testimony\u201d that may lead to criminal charges. \u2002 Id. at 438-39, 76 S.Ct. 497 (internal quotation marks omitted) (citations omitted) (quoting New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963 (1921)). \u2002 And in interpreting the Ex Post Facto Clause, the Supreme Court in Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990), relied on history rather than adopting a literal construction:Although the Latin phrase \u201cex post facto\u2009\u201d literally encompasses any law passed \u201cafter the fact,\u201d 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. \u2002 As early opinions in this Court explained, \u201cex post facto law\u201d was a term of art with an established meaning at the time of the framing of the Constitution.Id. at 41, 110 S.Ct. 2715 (internal citations omitted) (citing Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648 (1798)); \u2009see Minnesota v. Carter, 525 U.S. 83, 88-89, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998); \u2009Maryland v. Craig, 497 U.S. 836, 844-49, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990); \u2009Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 502-03, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987); \u2009Goldstein v. California, 412 U.S. 546, 561-62, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973); \u2009Gravel v. United States, 408 U.S. 606, 616-18, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972); \u2009Wright v. United States, 302 U.S. 583, 607, 58 S.Ct. 395, 82 L.Ed. 439 (1938) (Stone, J., concurring); \u2009Olmstead v. United States, 277 U.S. 438, 476-77, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting); \u2009Boyd v. United States, 116 U.S. 616, 634-35, 6 S.Ct. 524, 29 L.Ed. 746 (1886).<\/p> 2<\/a>.\u00a0\u00a0\u2003Similar analysis is found in the Supreme Court's interpretation of other provisions of the Constitution. \u2002 See Crawford v. Washington, 541 U.S. 36, 42-50, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (Sixth Amendment); \u2009Atwater v. City of Lago Vista, 532 U.S. 318, 326-40, 345 n. 14, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) (Fourth Amendment); \u2009U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 782-83, 800-15, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995) (Tenth Amendment); \u2009Harmelin v. Michigan, 501 U.S. 957, 975-85, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Eighth Amendment); \u2009Wesberry v. Sanders, 376 U.S. 1, 2-3, 7-17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) (Art. I, \u00a7\u20022).<\/p>WE THE PEOPLE FOUNDATION INC v. UNITED STATES (2007)<\/h1><\/div>
United States Court of Appeals,District of Columbia Circuit.<\/h2>
No.\u200205-5359.<\/h3>
Decided: May 08, 2007<\/h3>
Before: \u2009GINSBURG, Chief Judge, and ROGERS and KAVANAUGH, Circuit Judges.<\/h3>
Mark Lane argued the cause for appellants. \u2002 With him on the briefs was Robert L. Schulz, pro se. Carol Barthel, Attorney, U.S. Department of Justice, argued the cause for appellees. \u2002 With her on the brief were Kenneth L. Wainstein, U.S. Attorney at the time the brief was filed, and Kenneth L. Greene, Attorney. \u2002 Bruce R. Ellisen and Kenneth W. Rosenberg, Attorneys, entered appearances.<\/h3><\/div><\/div>