Westlaw Download Summary Report for GRAND VALLEY STA 3361520 Your Search: FREE SPEECH FIRST AMENDMENT GOVERNMENT EMPLOYEES Date/Time of Request: Monday, October 24, 2005 17:01:00 Central Client Identifier: GRANDVALLEY Database: LAWREV-PRO Citation Text: 90 NWULR 304 Lines: 2224 Documents: 1 Images: 0 The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson, West and their affiliates. 90 NWULR 304 90 Nw. U. L. Rev. 304 (Cite as: 90 Nw. U. L. Rev. 304) Northwestern University Law Review Fall 1995 Comment *304 PUBLIC EMPLOYEES AND THE FIRST AMENDMENT PETITION CLAUSE: PROTECTING THE RIGHTS OF CITIZEN-EMPLOYEES WHO FILE LEGITIMATE GRIEVANCES AND LAWSUITS AGAINST THEIR GOVERNMENT EMPLOYERS Margo Pave Copyright (c) 1995 Northwestern University School of Law, Northwestern University Law Review; Margo Pave I. Introduction Under the United States Constitution, government is barred from "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." [FN1] Governments acting as employers cannot withhold these protections from the citizens they employ, nor can they retaliate against their employees for exercising these constitutionally protected rights. [FN2] With an increasing number of Americans now working for their federal, state, and local governments, this limitation on government power has grown in importance. [FN3] Yet the full reach of the First Amendment's protections for government employee activities has not yet been determined. The Amendment's Free Speech Clause has been the basis of numerous claims of unconstitutional retaliation (many of them successful) when government employers have attempted to punish citizen-employees for speaking out in ways that the government employer dislikes. [FN4] However, the Petition Clause has rarely been invoked successfully by public employees who have been fired or otherwise retaliated against for filing grievances or lawsuits against their government employer. [FN5] Indeed, the right to petition is seldom even considered in such cases. [FN6] The Supreme Court has never *305 ruled directly on the question of whether the First Amendment's Petition Clause protects public employees from retaliatory discharge and related actions for grievance and lawsuit activities. [FN7] The Court has, however, ruled on claims brought by public employees alleging that retaliatory actions violated their rights under the Free Speech Clause. [FN8] In the leading case on this issue, the Supreme Court held that the First Amendment's free speech protection extends only to those statements that address "matters of public concern." [FN9] While the Supreme Court has interpreted the Petition Clause in a number of contexts, [FN10] these rulings have not generally been applied in the realm of relations between government employers and government employees. Indeed, since most courts rely on free speech analysis to decide claims of retaliatory discharge or punishment brought by public employees, [FN11] courts have rarely even broached the issue of the Petition Clause's application to those relations. Perhaps as a result, there has also been comparatively little scholarly attention paid to the Petition Clause's role in protecting public employees in their relations with their government employers. [FN12] *306 This Comment considers the proper role of the Petition Clause as a protection for public employees [FN13] in their relations with government employers. It argues that the Clause provides protection for public employees that must be assessed separately from the protections provided by the Free Speech Clause. Because the interests protected by the Petition Clause are distinct from those protected by the Free Speech Clause, courts should not automatically apply the standard governing a public employee's rights under the Free Speech Clause to an employee's right to petition the government for a redress of grievances. Part II of this Comment summarizes the historical development of the right to petition and the meaning of that right as embodied in the First Amendment's Petition Clause. The history and meaning of the right to petition is juxtaposed with the contemporaneous historical meaning of the right to free speech. Part III then focuses on significant Supreme Court cases interpreting the application of the two clauses. Subpart A analyzes the Court's leading case on the rights of public employees under the Free Speech Clause and the criticism of the Court's decision; subpart B then looks at the Supreme Court's decisions under the Petition Clause and at critical evaluations of the Supreme Court's jurisprudence in this area. Next, Part IV examines and critiques the manner in which courts have applied Supreme Court precedents to claims brought by public employees who have been retaliated against for filing grievances and lawsuits against their government employers. Subpart A focuses on those decisions that have applied the Supreme Court's free speech standard to claims brought under the Petition Clause; subpart B focuses on the few decisions that have correctly declined to transfer that standard from the arena of the Free Speech Clause to that of the Petition Clause. Finally, Part V argues that both the history of the Petition Clause and the interests it is designed to protect require that public employees who petition their government employers for redress of grievances be protected from retaliation *307 on a basis separate from that considered under the Free Speech Clause. II. Historical Development of the Petition Right While the Petition Clause is often overlooked in First Amendment scholarship, the right guaranteed by that Clause has roots far deeper than those of the better-known speech right. Subpart A of this Part summarizes the historical development of the right to petition government for the redress of grievances. Subpart B then pays particular attention to the ways in which that history sets the right to petition apart from -- and above -- the right to free speech. A. Development of the Right Guaranteed by the Petition Clause Recognition of the right to petition government for redress of grievances predated the recognition of a right to free speech. [FN14] The right to petition first emerged in England with King John's signing of the Magna Carta in 1215. [FN15] The right granted by the Magna Carta was very limited: only barons could petition the crown, there was no viable method for enforcement of the right, and the petitioner could meet with punishment for exercising the right. [FN16] But the mere recognition of a right to petition is significant, as the crown did not recognize, in any form, rights to speech or press. The recognition of the right to petition government continued and grew through the centuries. [FN17] In the mid-seventeenth century, the English Parliament recognized the right of all Englishmen to petition the government. [FN18] When the crown of England was offered to William and Mary in 1689, it came with the condition that this same right *308 to petition be recognized under the new monarchy. [FN19] The Declaration of Rights that William and Mary were required to accept stated that " 'it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning is illegal.' " [FN20] In contrast to its strong endorsement of the protected right to petition, the Declaration included no mention of individual rights to speech or of any rights of the press. [FN21] While some petitioners were imprisoned by the English government for the content of their petitions even after the Declaration was signed into law as the Bill of Rights, [FN22] such abuse lasted only briefly. Parliament's last attempt to punish a petitioner for a libelous petition was in January 1702. [FN23] The right to petition recognized in England was a broad one. Blackstone described the right in 1765 as "appertaining to every individual" [FN24] and as unrestricted except for the limit on the number of signatures allowed on the petition and the number of people allowed to present a single petition. [FN25] According to some commentators, the right included freedom from libel prosecution for the contents of the petition. [FN26] In America, the colonists also recognized the right to petition. By 1776, six of the colonies provided explicit protection for the right of colonists to petition local governing bodies for redress of both individual and collective grievances. [FN27] Even those colonies without explicit policies of protection recognized petitioning as a way for individuals to voice their opinions to local governing bodies. [FN28] Moreover, many of the colonists' pre-Revolutionary complaints to the British crown included demands that they be allowed to exercise that right freely. [FN29] *309 The right to petition was thus deeply rooted and recognized in Anglo-American legal history long before the colonists voted to include it in their new Constitution. B. The Petition Right Has Historically Been Broader Than the Free Speech Right The treatment afforded petitioners (including those critical of government) was in sharp contrast to the treatment afforded disfavored speech. Even after England and its American colonies had come to recognize free speech rights, the protection afforded petitioners was far more meaningful than that provided for speech. In particular, the right to petition encompassed freedom from punishment for petitioning, while free speech rights extended only to freedom from prior restraints. [FN30] Seditious libel laws, which the English government used to punish speech critical of those in power, also existed in each of the American colonies, and "punishment for statements critical of the government was an accepted, lawful practice which continued even after the framing and ratification of the First Amendment." [FN31] Indeed, Congress passed the Sedition Act, under which a number of people were punished for seditious speech, seven years after ratification of the First Amendment. [FN32] As one commentator has argued, "the existence of both state seditious libel laws and the federal Sedition Act coupled with the failure to prosecute petitioners under those laws indicate that there was no original intention to raise freedom of speech and the press to the level of protection given to petitioning." [FN33] Thus, while petitioners in early America were protected from retaliation for directly petitioning their government, those who published their criticisms had no similar protection. Some commentators have pointed out that the right to petition not only predated the rights of speech, press, and assembly, but that these latter rights actually owe their existence to the petition right, having "originated as derivative rights insofar as they were necessary *310 to protect the preexisting right to petition." [FN34] Free speech rights developed because members of Parliament needed to be able to discuss the petitions they had received. [FN35] Publications reporting the contents of critical petitions appear not to have been prosecuted under the seditious libel laws at a time when publications critical of the government were routinely subject to such prosecution. [FN36] And the right to assembly developed "as the means for preparing and subscribing to petitions." [FN37] This history clearly indicates that the right to petition the government for the redress of grievances had been consistently treated with greater deference than the right to speak or publish in the years prior to the creation of the Constitution. Further, those who ratified the First Amendment would have done so knowing that the right of petition encompassed greater protections than did the rights to speak or publish. [FN38] Thus, through ratification of the First Amendment and its *311 Petition Clause, the citizens of the original colonies codified a right to petition that was already historically recognized. III. The Supreme Court's Interpretation of the Petition and Free Speech Clauses The historically recognized right protected by the Petition Clause should be understood to embrace the right of government employees to file grievances and lawsuits against their government employers without fear of retaliation. [FN39] Many courts, however, have chosen to analyze public employee claims of government retaliation for such actions under standards created for the Free Speech Clause. In order properly to assess courts' different approaches to public employee claims of government retaliation for grievance and lawsuit activities, it is necessary to understand the context in which courts decide these cases. This Part discusses significant cases decided under both the Free Speech and Petition Clauses of the First Amendment to provide such a context. Subpart A focuses on the leading public employee case under the Free Speech Clause, Connick v. Myers, [FN40] which has been severely criticized for its narrowing of public employees' free speech rights. [FN41] Subpart B addresses current Supreme Court jurisprudence under the Petition Clause, as well as criticism of that jurisprudence. Because the Petition Clause has rarely been invoked or applied in the area of public employee rights, this subpart looks at cases addressing other issues raised under the Clause. These decisions provide a basic understanding of the Supreme Court's view of the power and reach of the Petition Clause. A. Public Employee Rights Under the Free Speech Clause Overall, much of the Supreme Court's First Amendment jurisprudence has focused on the rights of speech and press; comparatively *312 few of the Court's First Amendment decisions have addressed the right to petition. [FN42] In the area of public employee rights, this contrast is even more stark -- while the Court has made a number of important rulings regarding the breadth of public employee rights under the Free Speech Clause, the Court has yet to rule directly on the scope of the Petition Clause's protection for public employees. [FN43] Historically, the Court's approach to public employee rights under the Free Speech Clause has undergone a broad transformation, reflecting the Court's changing view of the relationship between government employer and government employee. [FN44] As one commentator has described it, the shift took the Court from a "private sector vision" of the relationship between government and its employees, which flourished in the early part of this century, [FN45] through an "individual rights vision" of that relationship in the 1950s and 1960s, [FN46] to a "public *313 service vision" that began at the end of the 1960s. [FN47] While the Court's later approach may originally have been designed to mediate the tension between the first two approaches, the "public service vision" as applied has actually reflected a return to the "private sector vision" of an earlier time, [FN48] with courts deferring "broadly -- often decisively" to the government employer's professed need for disciplinary discretion as a reason to restrict a citizen-employee's right to free speech. [FN49] This deference is clearly shown in Connick v. Myers, [FN50] the Court's leading case on public employee rights under the Free Speech Clause. [FN51] In Connick, an assistant district attorney was fired after she circulated a questionnaire among her fellow employees, soliciting their views on a number of employment-related issues. [FN52] She sued, claiming that her discharge violated her First Amendment right to free speech. [FN53] The Court ruled that her dismissal did not violate her rights under the Free Speech Clause. [FN54] More significantly, the Court specifically held that, for public employees, the First Amendment's free speech protection extends only to speech on "matters of public concern." [FN55] In reaching its decision, the Court was quite open about its willingness to defer to the employer interests of the government, stating *314 that "[w]hen close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgement is appropriate." [FN56] As this quote suggests, the Court in Connick viewed the role of government-as-employer as very similar to that of a private employer. Only when the speech for which an individual is discharged involves matters of public concern (a phrase never defined in the Connick decision) would the Court be willing to admit that the government is not, in fact, the same as a private employer. Only then would the Court be willing to require different behavior than it would of a private employer. Many commentators have criticized the approach to public employees' free speech rights enunciated by the Court in Connick. A number have expressed concern that the Court's deferential approach to government-as-employer grants the government far too much power to restrict the free speech rights of its citizen-employees. [FN57] Others point out that the "public matters" standard announced by the Court is far too narrow to adequately protect the free speech rights of individuals who work for their government. [FN58] Finally, many authors agree that the Court's creation of a public matter requirement in Connick was not rooted in or required by the Court's own free speech precedents. [FN59] The lack of precedence for the requirement even in cases decided under the Free Speech Clause makes the extension of such a requirement to the realm of Petition Clause claims even more questionable. [FN60] *315 In Connick, the Court claimed to be merely applying the "balancing test" it had created in Pickering v. Board of Education, [FN61] an earlier case involving the free speech rights of a public employee. [FN62] Pickering clearly required that the interests of public employer and public employee be balanced in determining the extent to which the employee's right to free speech was to be protected, even though no such balancing would be required were the speech of a non-employee citizen at issue. [FN63] However, there was no reason for the Connick Court to restrict the Free Speech Clause's protection of public employee speech to matters of public concern based on its holding in Pickering. Pickering itself involved a teacher who had commented publicly about a much-publicized referendum on a tax increase. According to the Court, "a variety of articles" regarding the referendum were published in the local paper, as well as a letter from the school superintendent urging its passage. [FN64] The teacher wrote a letter to the paper recommending that the referendum be defeated. Because the teacher's comments did, in fact, involve a "matter of public concern" (the public referendum), it was upon such speech that the Court focused. In the context of Pickering's facts, "[t]he Pickering Court had no reason to discuss other issues about which employees might speak." [FN65] The focus on public matter speech in Pickering was thus not intended to limit the protections provided to other forms of public employee speech. [FN66] *316 Indeed, prior to Connick, most lower courts had not read the Pickering decision as holding that the balancing of interests was not even reached unless the speech at issue involved a matter of public concern. [FN67] While Pickering did involve speech made on a public matter, the Court itself has rejected the notion that, simply because earlier cases addressing a constitutional right involved a particular context, the right upheld in those cases should be viewed as being limited only to that context. [FN68] Moreover, the Supreme Court's post-Pickering decisions themselves did not suggest the existence of a public matters requirement. For instance, in Givhan v. Western Line Consolidated School District, [FN69] where the Court held that the protections of the First Amendment extended to a government employee even if she spoke privately with her government employer, the Court made no mention of a threshold "public matter" requirement in analyzing the employee's claim. The Court simply stated: "The First Amendment forbids abridgment of the 'freedom of speech.' Neither the Amendment *317 itself nor our decisions indicate that this freedom is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public." [FN70] The opinion contained no suggestion that this standard was to apply only if the matter being discussed was of "public concern." Similarly, less than four months after its decision in Givhan, the Court considered whether a state employer violated the First Amendment by refusing to consider an employee's grievance unless it was submitted directly to the employer's designated representative. [FN71] The Court found that the employer's purely procedural requirement did not infringe upon the employee's rights of speech, petition, or assembly. [FN72] Importantly, in its analysis of the claim, the Court did not state (nor in any way suggest) that the underlying grievance would first have to be shown to address a public matter before the Court would inquire into whether the government action violated any of the employee's First Amendment rights. [FN73] Rather, the Court stated, explicitly and without caveat, that "the public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so." [FN74] In Connick, then, the Court departed from its own Free Speech Clause precedents to create a public matters threshold for the invocation of constitutional protection. In so doing, it threatened to severely limit the rights of those citizens who work for their sovereign. B. Current Supreme Court Jurisprudence Under the Petition Clause The Supreme Court has yet to render a direct decision on the application of the Petition Clause to public employee grievances or lawsuits. However, the Court's existing Petition Clause jurisprudence does suggest a commitment to a basic level of protection for an individual's right to petition, particularly the right of access to the court system -- a crucial aspect of petitioning the government. [FN75] For instance, *318 in Bill Johnson's Restaurants v. NLRB, [FN76] the Court held that the National Labor Relations Board (NLRB) cannot enjoin as an unfair labor practice the filing of a legitimate lawsuit by an employer, even if the employer's only reason for initiating the suit was to retaliate against an employee's proper exercise of his rights under the National Labor Relations Act. [FN77] In its decision, the Court emphasized that, even though the NLRB's role in guaranteeing that employees are able to enjoy the rights secured to them by the Act is a crucial one, and even though the Board was given its powers by federal statute, the importance of the Board's goals could not outweigh the importance of the right of access to the courts protected by the First Amendment's Petition Clause. [FN78] Similarly, in California Motor Transport Co. v. Trucking Unlimited, [FN79] the Court ruled that antitrust laws could not be construed to prohibit the filing of legitimate lawsuits, even if the intent of the filing plaintiff was anticompetitive, because to so construe the laws would defeat the right of petition. [FN80] In California Motor Transport, the Court viewed itself as simply extending to its logical conclusion the rationale it had earlier enunciated regarding the right to lobby Congress and the executive branch. [FN81] In its later decision, the Court emphasized that "the same philosophy governs the approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the *319 third branch of the Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition." [FN82] This language suggests that other "aspects of the right to petition" should be given the same strong protection the Court afforded to the filing of lawsuits in Bill Johnson's Restaurants and California Motor Transport. [FN83] As with the other expressive rights of the First Amendment, the Supreme Court has not viewed the right to petition as absolute. The Court has created what is known as the "mere sham" exception, under which certain activities are denied the protection of the petition right. [FN84] In interpreting this standard, the Court has held that "baseless litigation is not immunized by the First Amendment right to petition" [FN85] and that petitions to the President containing "intentional and reckless falsehoods" are also not afforded constitutional protection. [FN86] Ten years ago, in McDonald v. Smith, [FN87] the Court held that the Petition Clause does not provide absolute immunity against libel for the *320 contents of petitions. [FN88] The Court's opinion in McDonald has been criticized as reflecting a wholly inaccurate historical understanding of the Petition Clause, [FN89] a criticism leveled at much of the Court's Petition Clause jurisprudence. [FN90] Indeed, commentators have criticized the Court's grasp of the petition right's historical development in general and have argued that the Court's interpretation of the Clause has restricted the right to bounds far narrower than the right of petition recognized by those who crafted and ratified the First Amendment and its Petition Clause. [FN91] While most do not claim that the right of petition is truly absolute, many commentators have argued that the right to petition is far broader than has been recognized by the Court and that, in light of its history and purposes, the right should be subject to very few limitations. Commentators have asserted that the Petition Clause provides absolute immunity against libel for those statements "seeking or arguably directed at eliciting some action or redress by the government, or encouraging others to seek such action or redress." [FN92] Some have also asserted that the Clause should be read to provide a substantive *321 right of access to the courts; [FN93] that the right to petition includes a duty of governmental response; [FN94] and that the right requires that Rule 11 of the Federal Rules of Civil Procedure be interpreted more narrowly than it now is in suits against the government. [FN95] However, all seem to agree that the right to petition cannot be treated as wholly absolute. Even Norman Smith, the author who makes the strongest historical argument for an absolute right of petition, concludes that "petitioning should be deemed a nearly absolute right." [FN96] He argues that some restrictions, such as the "sham exception," are permissible because they protect the private interests implicated by petitioning activities "without unduly impairing the constitutional right." [FN97] But where "the petitioner's grievance is against a government officer or body and private interests are not subject to injury," Smith would preserve the right "in a more nearly absolute form." [FN98] The decision in McDonald, as well as the Court's Petition Clause jurisprudence as a whole, has been particularly criticized for treating the petition right as if it were the same as the rights of speech or press, thereby ignoring the petition right's distinct values [FN99] and historically *322 superior status. [FN100] By collapsing the independent right of petition into these other rights also enumerated in the First Amendment, the courts diminish the historical strength of the petition right. [FN101] This criticism, when directed at McDonald, implicates not only the case's holding, which stated only that the Petition Clause does not afford a petitioner absolute immunity from libel, but also the Court's broader dicta in the case. As part of its general discussion in McDonald, the Court stated: The Petition Clause . . . was inspired by the same ideals of liberty and democracy that gave us the freedoms to speak, publish and assemble. These First Amendment rights are inseparable and there is no sound *323 basis for granting greater constitutional protection to statements made in a petition to the President than other First Amendment expressions. [FN102] It is on the basis of this dicta that a number of circuits have chosen to apply Connick's "public matters" standard to public employee claims brought under the Petition Clause. [FN103] If the McDonald Court was in fact mistaken in its understanding of the history and meaning of the petition right and its relation to other First Amendment rights, then these courts are making a grave mistake in applying the Connick standard -- developed to govern the right of free speech -- to claims involving the separate and distinct right of petition. As the preceding subparts have shown, the Supreme Court's Free Speech Clause rulings have greatly restricted the reach of that Clause's protection for public employees. This has been achieved by treating the role of government- as-employer as analogous to that of private employer and, more specifically, by the unprecedented creation of a public matter requirement that must be met before the Clause's protection will be extended to the public employee. While the Supreme Court's Petition Clause decisions have not addressed the status of public employees under that Clause, these decisions have generally been more respectful of the need to protect the right, allowing only limited exceptions to the Clause's protection. This approach, which defers to the power of the petition right, is clearly in accord with the right's history. To apply the more intrusive Free Speech standard to a Petition Clause claim would ignore that history and commit a fundamental error. IV. Lower Court Rulings on Public Employee Claims of Government Retaliation for Petitioning Activity This Part examines and critiques the manner in which lower courts have analyzed claims brought by public employees who have been retaliated against for filing grievances and lawsuits against their government employers. Subpart A focuses on those decisions that have applied the Supreme Court's Free Speech standard to claims brought under the Petition Clause; subpart B focuses on those decisions that have correctly declined to transfer that standard from the arena of the Free Speech Clause to that of the Petition Clause. A. Court Decisions Applying Connick to Public Employee Claims Properly Governed by the Petition Clause Most of the lower courts that have addressed public employee claims of retaliation by government employers for the filing of grievances *324 and lawsuits have applied the Connick standard to these cases. [FN104] These courts have required that the subject of the grievance or lawsuit be a "matter of public concern" in order for the court to even consider whether the employee should have been protected from retaliatory action by the government. [FN105] While the range of public employee grievance and lawsuit activities to which these courts have applied the Connick standard has been quite wide, the result of this application has been the same in each case: the government employee's right to petition the government for redress is subsumed into the right of free speech, effectively nullifying an independent First Amendment right. [FN106] For instance, the Court of Appeals for the Sixth Circuit applied the Connick standard to a claim that a state employee was denied promotion in retaliation for filing a sex discrimination charge against his employer with the state Civil Rights Commission. [FN107] Although the employee had filed a charge in accordance with specific procedures, the court analyzed the action as a matter covered solely by the Free Speech Clause. Noting that "[t]he Supreme Court has never directly addressed the extent to which an employment grievance like the one filed by [plaintiff] constitutes speech on a matter of public concern," [FN108] the court nevertheless held that the employee was protected from retaliation only if the charge involved a matter of public concern. [FN109] *325 Finding that the charge of sexual discrimination was part of a "personal employment dispute," the court held that the plaintiff was not protected from retaliation by the First Amendment. [FN110] In another case, a city police officer alleged that he was reassigned and denied overtime opportunities by his police chief in retaliation for allegedly encouraging a fellow officer to appeal a suspension. He further alleged that he was then disciplined and harassed in retaliation for having filed a section 1983 claim against the chief. [FN111] The police officer sued, claiming the retaliatory action violated his constitutional rights. Here, too, the court assessed the claimant's actions as merely forms of speech, found that they "did not involve matters of public interest," and concluded that " Connick mandates affirming the dismissal of plaintiff 's action." [FN112] In yet another case, Rathjen v. Litchfield, [FN113] the Connick standard was applied to the claim of a city employee who had been given inaccurate and unfavorable evaluations and was subject to lay-off in retaliation for having filed a lawsuit challenging the ability of the city to demote her without a hearing. [FN114] The court undertook no analysis of the meaning or content of the Petition Clause and its possible application to a suit challenging government actions against a citizen-employee. Stating that "[t]he law is no different where the act which allegedly gave rise to the retaliation claim is the filing of a grievance or a lawsuit," [FN115] the court simply applied the Connick standard. Finding that plaintiff 's "speech and actions" were not of public concern, the appellate court then reversed the lower court's finding of unconstitutional retaliation by plaintiff 's government employer. [FN116] As the language in Rathjen suggests, courts have generally applied the Connick standard to claims involving retaliation for the filing of internal grievances, as well as state or federal lawsuits. The grievance cases seem to elicit even less analysis than those involving lawsuits. [FN117] Often, courts considering these cases simply equate "grievance" with "speech" and apply the Connick standard in very *326 brief, dismissive decisions. In Gearhart v. Thorne, [FN118] the court completely ignored the existence of First Amendment clauses other than the Free Speech Clause, stating that "in a section 1983 action based on the first amendment, the plaintiff has the burden of alleging constitutionally protected speech." [FN119] The court then declared that "the 'speech' at issue here is Gearhart's unrestricted right to use the internal grievance procedure provided to Oregon state employees." [FN120] Having done away with any suggestion that anything other than speech was involved, the court then applied Connick and denied plaintiff 's grievance any protection. [FN121] Not all decisions are this cursory. Generally, however, even those courts that analyze the claims more closely ultimately subsume the right of petition into that of free speech. In Belk v. Town of Minocqua, [FN122] a town employee who was fired after she indicated an intention to pursue a grievance against her employer filed suit, claiming that the retaliation violated her rights under the Petition Clause. [FN123] While recognizing that the Supreme Court had not ruled directly on the level of protection provided to public employee grievances by the Clause, the court cited the McDonald dicta as indicating that grievances should be assessed under the Free Speech standard announced in Connick. [FN124] The court then held that only if the grievance addressed matters of public concern would the court even question the government's retaliatory action against the employee. [FN125] *327 A Petition Clause claim was also explicitly raised by the plaintiff in Day v. South Park Independent School District, [FN126] with similar results. Here, a public school teacher claimed that she had not been reappointed to her job in retaliation for filing a grievance challenging a principal's unfavorable evaluation. [FN127] In addressing her Petition Clause claim, the Fifth Circuit explicitly rejected the assertion that "the protection afforded by the petition clause is entirely discrete from and broader than the shield afforded by the other clauses of the first amendment." [FN128] The court underscored its view that the Petition Clause does not exist as an independent clause within the First Amendment in its assessment of the grievance at issue: "whether viewed as speech, petitioning, or both, [it] related only to her superior's employment decisions . . . not to matters of political, social, or community concern. . . . [T]he teacher was, therefore, not shielded by the first amendment. . . ." [FN129] In sum, these decisions conflate two distinct constitutional rights. Under the approach used by these courts, the act of petitioning itself is given no protection; only the speech contained within the petition is constitutionally protected, and then only if it satisfies the standard for protection applicable under the Free Speech Clause. This approach robs the Petition Clause of any independent meaning and ignores its history as a distinct and significant source of protection. [FN130] B. Court Decisions Recognizing the Separate Protection Provided to Public Employees by the Petition Clause While the majority of courts have applied the Connick standard indiscriminately to public employee claims of government retaliation brought under the First Amendment, some courts have recognized a difference between public employee activity that implicates the Free Speech Clause and activity that implicates the Petition Clause. These courts have refrained from applying the Connick standard to claims involving retaliation for the filing of lawsuits and grievances against government employers -- actions that implicate the Petition Clause -- and have instead looked to Supreme Court cases decided under the Petition Clause for guidance. *328 In Stellmaker v. DePetrillo, [FN131] a retaliation case decided after both Connick and McDonald, a public school teacher was transferred to a less desirable post after filing a grievance against the director and superintendent of the school district. The court explicitly rejected the government employer's argument that, because the teacher's filed grievance had not involved a matter of public concern, Connick defeated any claim that he was protected from retaliation. [FN132] The court declared that "despite some broad language in the Court's opinion, Connick dealt only with the freedom of speech provision of the first amendment. The Connick Court was not faced with a claim of violation of rights of association and petition." [FN133] Since the Free Speech Clause was not implicated by the employee's activities, the court refused to apply Connick to the facts before it. After dismissing Connick as inapposite to non-Speech Clause claims, the court first looked to Supreme Court cases decided under the Petition Clause for guidance in determining the breadth of protection afforded plaintiff by the petition right. [FN134] The court cited Bill Johnson's Restaurants v. NLRB [FN135] for the proposition that "access to procedures for the redress of grievances is essential to a meaningful first amendment right to petition the government." [FN136] It then relied on Railroad Trainmen v. Virginia Bar [FN137] for the proposition that the First Amendment protects public employee petition activity addressing "employment conditions and even personal injury claims" in addition to providing protection to speech on matters of public concern. [FN138] Thus, the court properly followed Petition Clause precedent -- and not Speech Clause precedent -- in finding plaintiff 's petition actions constitutionally protected. [FN139] *329 In Fuchilla v. Prockop, [FN140] a case also decided after both Connick and McDonald, another court similarly relied on Petition Clause precedent in reaching its decision. In Fuchilla, a government employer was sued for retaliatory discharge after he fired a state employee who had filed harassment charges against him. [FN141] As in Stellmaker, the court first rejected the government employer's contention that the plaintiff 's claim failed to demonstrate a violation of a First Amendment right. [FN142] In rejecting the employer's argument, the court emphasized that the protection provided by the First Amendment right of petition was to be assessed differently than the protection provided by the right of free speech. [FN143] After quoting the Connick Court's statement that "a state cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression," [FN144] the court concluded: As plaintiff contends she was discharged in retaliation for filing her action in state court . . ., the first amendment right plaintiff asserts here is her right to access to the courts. Without engaging in a "matter of public concern" analysis, the courts have found this right to access protected under the First Amendment. [FN145] On the basis of this precedent, the court refused to apply the Connick standard to plaintiff 's lawsuit. In focusing on the particular interest involved in the case before it -- the right of access to the courts -- the court made it clear that different interests are protected by different clauses within the First Amendment. It thus repudiated the notion that all rights protected by the First Amendment can be collapsed into a single right of free speech. Until very recently, district courts were alone in recognizing that the right of petition is distinct from the right of free speech and that the right of petition provides protections to government employees that are also distinct from those provided by the right of free speech. [FN146] However, the Court of Appeals for the Third Circuit recently *330 added its weight to this view in San Filippo v. Bongiovanni. [FN147] It became the first circuit to hold that Connick is inapplicable to public employee claims of government retaliation when the employee activity retaliated against falls within the protection provided by the Petition Clause. Rather than apply the Free Speech standard of Connick to such claims, the Third Circuit crafted a separate standard rooted in the Supreme Court's Petition Clause jurisprudence. In San Filippo, a state university fired a tenured professor who had filed both lawsuits and grievances against the university. While the university claimed the discharge was for acts of misconduct unrelated to his petitioning activity, the professor claimed the discharge was in retaliation for his suits and grievances. In assessing the professor's First Amendment claim of retaliation, the district court had applied the Connick standard, holding that the filing of lawsuits and grievances was protected by the First Amendment only if they addressed "matters of public concern." [FN148] The Third Circuit explicitly rejected this application of the Connick standard to San Filippo's grievances and lawsuit. [FN149] Stating that such activities implicate the Petition Clause rather than the Free Speech Clause governed by Connick, the court held that the protection of the Petition Clause extends to non-sham lawsuits and grievances and makes government retaliation for the filing of such petitions unconstitutional. [FN150] The Third Circuit's analysis recognized that the right protected by the Petition Clause is not absolute. [FN151] Unlike the Seventh Circuit in *331 Belk v. Town of Minocqua, [FN152] however, that recognition did not lead the court to determine that the Clause offers no protection at all separate from that provided by the Free Speech Clause. Instead, the Third Circuit crafted an appropriate standard for determining whether a public employee's particular grievance or lawsuit qualifies for protection under the Petition Clause. In holding that the right to petition encompasses only those grievances and lawsuits that are not "sham" or "baseless," the court followed Supreme Court Petition Clause precedent clearly and literally. In Bill Johnson's Restaurants v. NLRB [FN153] and California Motor Transport Co. v. Trucking Unlimited, [FN154] as well as in the earlier Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., [FN155] the Court emphasized that the protection of the Petition Clause extends only to those petitions that are "non-sham" and "not baseless." In Noerr, trucking companies sued a group of railroads, claiming that the railroads were involved in a conspiracy to monopolize the transportation of long-distance freight by lobbying Congress and the President for laws preferential to the railroads. The Court held that such activity was protected by the Petition Clause as long as it was not "a mere sham" used to cover activities barred by law. [FN156] In California Motor Transport, the Court reiterated the application of the sham exception to the right of petition protected by the First Amendment. The Court emphasized that the Petition Clause protected the right of petitioner truckers to access the courts and initiate proceedings that were designed to defeat respondents' applications for operating rights. [FN157] However, it invoked Noerr's "sham" language in declaring that the protection of the Petition Clause did not extend to petitioning activity designed to frustrate respondent truckers' access to the courts or designed to achieve other illegal ends. [FN158] The Court has been equally vigorous in excluding baseless litigation from Petition Clause protection outside the antitrust arena. Indeed, in Bill Johnson's Restaurants, the Court explicitly stated that suits lacking a reasonable basis are not within the scope of First Amendment protection . . . . "[S]ince sham litigation by definition does not involve a bona fide grievance, it does not come within the first amendment right to petition." Just as *332 false statements are not immunized by the First Amendment right to freedom of speech, baseless litigation is not immunized by the First Amendment right to petition. [FN159] Thus, under Supreme Court precedent, while the Petition Clause provides protection to those who petition the government for redress of grievances, it does so only when their petitions are legitimate. [FN160] It was on this distinction -- between sham and true petitions -- that the San Filippo court focused in analyzing petitions from public employees to their government employers. This is in sharp contrast to an approach that focuses instead on the content of the petitions. [FN161] A content focus, while consonant with the Connick Court's approach to determining the reach of the Free Speech Clause, is not in keeping with the Court's approach to determining the reach of the Petition Clause. V. Public Employee Claims of Retaliation for the Filing of Grievances and Lawsuits Should Be Analyzed Under the San Filippo Standard While the protections provided by the Petition Clause -- and all other clauses of the First Amendment -- extend to every citizen, including those employed by the government, it is clear that both Supreme Court precedent and common sense dictate that a government employer be allowed to place some necessary restrictions on its citizen-employees, even if those restrictions would be constitutionally barred absent the employment relationship. [FN162] Indeed, the right of *333 petition, like the right of free speech also protected by the First Amendment, is not absolute and may, under certain circumstances, be restricted. [FN163] As the balancing test in Pickering v. Board of Education illustrates, [FN164] the Constitution requires that a sovereign-employer justify any restrictions on a citizen-employee's protected rights by demonstrating that the restriction promotes a legitimate government interest; if it does, then such a restriction is permissible. [FN165] The problem lies, however, in initially determining whether the citizen-employee's expression is, in fact, "protected" -- for if it is not, the government may restrict it without any justification at all. [FN166] In crafting the standard used in San Filippo, the Third Circuit properly recognized that, in making this initial determination, courts must analyze petitioning activities differently than they do speech. This different standard is mandated by the different historical treatment long afforded the individual right of petition, as well as by the distinct governmental obligations and citizen interests served by the Petition Clause. The final Part of this Comment argues for the application of the separate Petition Clause standard enunciated in San Filippo to public employee grievances and lawsuits. Subpart A addresses the important difference between sovereign-as-employer and private employer and criticizes the Connick Court's attempt to blur that difference -- an attempt that has been made even more damaging through the erroneous application of Connick to grievance and lawsuit claims protected by the Petition Clause. Subpart B examines the San Filippo approach in light of the specific duty the Petition Clause places on the government, concluding that the Third Circuit's approach best upholds this duty and thus ensures that the citizen interests protected by the Clause are secured. Finally, subpart C appraises the Third Circuit's analysis of the Petition Clause's distinct history as a basis for treating public employee petition claims differently than speech claims, concluding that this history, too, supports the application of the San Filippo standard to petition claims. *334 A. Government-As-Employer Can Never Be Truly Analogous to a Private Employer As Connick illustrates, recent Supreme Court rulings on the rights of public employees have tended to ignore the fundamental differences between government employment and private sector employment. By focusing on the role of government-as-employer and ignoring the government's overarching role of sovereign, the Court attempts to provide a basis for analogizing the government employer to the private employer. [FN167] In so doing, it disregards the responsibilities that government owes all its citizens and offers scant protection to the rights of those individuals who work for their sovereign. The Court in Connick attempted to portray the government employer as two separate entities -- one the government, the other an employer -- and tried to draw a constitutional line between the two "by casting the latter into a private realm beyond the reach of the first amendment." [FN168] It extended this dichotomous portrayal to the public employee, differentiating between her role as a "citizen," which she would occupy when speaking on matters of public concern, and her role as a mere "employee," a role occupied when she spoke on matters of "personal interest." [FN169] Once the Court had defined the realm in which the sovereign-employer becomes merely an employer and the citizen-employee merely an employee, the Court could then dismiss claims of First Amendment protection when a citizen-employee's speech fell within her "employee" role. [FN170] *335 Thus, a basic assumption underlying Connick's application of the public matter/private interest dichotomy is that when the speech at issue involves matters of private interest "government should be no more constrained by the Constitution than is the private sector." [FN171] However, the notion that government should not be expected to adhere to a higher standard of conduct than that required of individual citizens is at odds with the greater obligations historically placed on government. For example, the long-recognized doctrine of state action "is predicated on 'the essential dichotomy' between actions taken by the state, which are subject to constitutional scrutiny, and private conduct, against which the Constitution 'offers no shield.' " [FN172] Moreover, the greater obligations borne by government have historically also applied to issues of employment. Long before the Civil Rights Act of 1964 [FN173] prohibited racial discrimination by private employers, the Fourteenth Amendment barred the government from engaging in racial discrimination -- even when it was functioning as an employer. [FN174] Prior to Connick, the Supreme Court's rulings also upheld the view that private and public sector employers bear different responsibilities to their employees, "establish[ing] a principle as obvious as it is compelling -- i.e., federal and state governments and governmental agencies are restrained by the Constitution from acting arbitrarily with respect to employment opportunities that they either *336 offer or control." [FN175] Any attempt to analogize the position of a government employer to that of a private employer is thus inherently strained because the two are simply not equivalent: "[W]hether or not a private employer is free to act capriciously or unreasonably with respect to employment practices . . . a government employer is different. The government may only act fairly and reasonably." [FN176] Because of its concurrent role as sovereign, the government-as-employer bears constitutional responsibilities not shared by private employers. In considering the question of how far government may go in abridging the rights of those it employs, it is important to realize how wide a reach government-as-employer has. As of 1991, more than 18 million citizens were employed by their federal, state, or local governments. [FN177] As one author has noted, "[t]he Constitution and the Bill of Rights developed in an era when the primary relationship between the state and the citizen was that of governor and governed. Today that relationship is often one of employer and employee." [FN178] The Court's strained attempt to create a separate "employment realm" where government is not bound by constitutional considerations seems all the more questionable when one realizes that this realm encompasses about one-fifth of the nation's working citizens. [FN179] The Connick Court's use of a public matters requirement and broad deference to the government employer's professed need for disciplinary discretion as a reason to restrict a citizen-employee's right to free speech erodes the Free Speech Clause's protection for the millions of citizens employed by their sovereigns. Those courts that apply Connick's deferential standard and perspective to the Petition Clause further erode the rights of these citizens. Moreover, their application of the Connick standard distorts a distinct right that was designed to ensure government accountability to its citizens and has thus historically been afforded the greatest protection against government infringement. [FN180] *337 B. The Petition Clause Obligates Government to Maintain Channels for All Citizens to Petition the Government for Redress of Grievances The Third Circuit's application of a separate standard to Petition Clause claims is supported by the meaning and implications of this distinct Clause and the interests it protects. The Petition Clause places a particular obligation on government to have "at least some channel open" for those with grievances to seek redress. [FN181] The reach of this obligation is not determined by the type of redress requested. Rather, the protection extends to different types of petitions requesting different types of redress. These different petitions have been termed "general" and "judicial" petitions. [FN182] General petitions, usually submitted to the legislature or executive branch, concern citizens' attempts to influence governmental decisionmaking or behavior and "accordingly, they encompass matters of relevance to the whole community." [FN183] Judicial petitions, on the other hand, concern "individualized requests for mediation or resolution of a dispute" and are typically submitted to courts or other adjudicatory bodies. [FN184] The historical development of the right to petition involved this latter, individualized form of petitioning as well as the general petition. [FN185] True petitions -- be they individual or general -- thus fall within the ambit of the Petition Clause's protection, and the government that does not maintain a channel for such petitions violates a constitutional duty. [FN186] In light of the constitutional obligation placed on the government to provide a means of access for those who seek redress of their grievances, a government cannot provide a single channel for certain citizens to use in petitioning the government and then effectively deny the citizens use of that channel through retaliation. As the Third Circuit explained: [W]hen government -- federal or state -- formally adopts a mechanism for redress of those grievances for which government is allegedly accountable, it would seem to undermine the Constitution's vital purposes to hold that one who in good faith files an arguably meritorious "petition" *338 invoking that mechanism may be disciplined for such invocation by the very government that in compliance with the petition clause has given the particular mechanism its constitutional imprimatur. [FN187] Thus, the invocation of mechanisms [FN188] adopted by the government to satisfy its constitutional duty to provide a means of petition trigger the protections of the Constitution's Petition Clause for those communications that are, in fact, petitions. [FN189] Examples of a government's formal adoption of a mechanism to satisfy its obligation under the Petition Clause include the waiver of sovereign immunity from suit in the courts of the sovereign and adoption of a single, recognized grievance procedure for use by the sovereign's employees. [FN190] When a citizen-employee files suit against the government in court or files a grievance against the government through the proper grievance procedure, that citizen-employee has invoked the formal mechanism provided by the government to satisfy its Petition Clause obligation. Under those circumstances, the government is foreclosed from retaliating against that citizen-employee for her petitioning activity if her grievance or lawsuit is neither sham nor baseless. The San Filippo court carefully distinguished the filing of grievances and lawsuits from the actions of a citizen-employee who speaks about her grievances outside of these specific mechanisms. In so doing, the court rebutted a primary argument of courts that view petition and speech activities as being little different from one another and thus apply the Connick standard to both indiscriminately. These *339 courts have asserted that applying a standard other than Connick to claims of petition-based retaliation would "unjustly favor" those citizens who "through foresight or mere fortuity" communicate their grievances to their government-employer rather than speaking about or publishing their concerns. [FN191] However, as the San Filippo court correctly pointed out, the act of going directly to one's government-employer with a grievance is quite different than taking one's grievance to the public at large. [FN192] When one files a lawsuit or grievance, one is taking the specific steps necessary to gain redress of one's concerns. The citizen-employee who files such a petition "is not appealing over government's head to the general citizenry." [FN193] Rather, she is addressing government directly, through the channels it has chosen for such address, and requesting that government provide redress of her grievances. One who speaks publicly about her concerns is making no such attempt to directly address her sovereign-employer through the channels it has instituted for petition. Thus, filing a grievance or lawsuit is not just "fortuitously" different than speaking of or publishing one's complaint. On the contrary, it is substantively distinct, for it embodies the difference between directly petitioning the government capable of addressing one's complaints and merely airing those complaints to the public at large. It has long been recognized that citizens' petitions to the government demanding redress of perceived grievances often disclose "incompetence, corruption, waste and other government misconduct." [FN194] By their power thus to disclose problems within a government agency, petitions can serve as a check on such misconduct, as well as a spur to addressing it. Judge Weinstein, Chief Judge of the United States District Court for the Eastern District of New York, has asserted that, because suits against government officials and agencies are of particular importance, they should not be discouraged: Such suits are often the only effective channel for keeping within bounds official arrogance and lawlessness. . . . They may provide the basis for legislative and executive ameliorative action even when the courts lack *340 power to act. . . . [E]ven in what appear to be purely commercial actions, the threat of suit may deter official abuses such as favoritism. [FN195] Judge Weinstein's argument applies with particular force to petitions filed by public employees. In many cases, public employees are in the best position to be aware of misconduct by others within the government's employ -- including their own supervisors -- and are thus in the best position to inform those capable of making the necessary changes. And (paraphrasing Judge Weinstein) even in what appear to be purely employment-related actions, the threat of suit may deter official misconduct. But if a public employee knows that she risks retaliatory discharge for filing a grievance or lawsuit challenging the misconduct, she is unlikely to take that risk, and the misconduct will continue unabated. Extension of the Connick standard to public employee claims of retaliation for the filing of grievances and lawsuits thus threatens to chill the very actions best designed to challenge governmental misconduct. A hypothetical will help demonstrate this danger. A public employee is denied a bonus because her production speed did not reach the level required for a bonus. She files a grievance challenging this finding, on the basis that her supervisor, who is required to check her work before she can proceed to the final step of production, is often absent from his station -- a fact she claims is known and ignored by those above him. She claims that she works quickly enough to reach the "bonus" level, but that the supervisor's absence from his station results in a constant delay in production for which she should not be held responsible. She files her grievance and is promptly fired. She then brings a retaliatory discharge claim against her government employer. If the court applies Connick's public matters standard, it will make no inquiry into the government's basis for firing her because the subject of her grievance -- bonus determinations -- is not a public matter. Her claim of retaliation will be dismissed immediately and her discharge upheld without further inquiry. As consideration of the above hypothetical demonstrates, extension of the Connick standard to the public employee grievance and lawsuit context would have two, equally negative results. First, since the government agency that fired the citizen-employee would not be required to justify its actions, no one whose job it is to oversee the actions of the agency would have reason to look into her grievance and the serious claims it contains. Indeed, it is quite possible that the only person who would ever see the grievance is her supervisor -- who received the grievance, informed his higher-up that he had a complainer on his hands who refused to accept the agency's bonus decisions, and was given permission to fire her. Even if an individual *341 other than the supervisor were consulted and reviewed the grievance, there would be nothing to stop that individual from making a decision based solely on her friendship with the supervisor rather than on the merits of the claim contained in the grievance. Rather than allow her friend the supervisor to get into trouble for his bad work habits, she can simply approve the discharge of the "complainer." (If, as the hypothetical suggests, the supervisor's superiors have allowed the supervisor's behavior to go unchecked, the likelihood of such an outcome is particularly high.) She can do this because she would know that, under the Connick standard, her decision will not be questioned by any court because the focus of the petitioning employee's grievance was not a public matter. The second, related result of extending Connick is that no government employee would even attempt to file a petition (be it a grievance or lawsuit) similar to the one in the hypothetical above because of the risk of being fired. The public employee thinking about filing such a petition knows that it will anger her supervisor and thus threaten her job. She, like her supervisor, would also know that if she were fired, the Connick standard would apply to any claim she might bring and its public matters requirement will provide her no protection. Unless she is very unusual, rather than risk losing her job she will accept her lack of a bonus without complaint and no one will ever learn of the misconduct occurring within the agency. Thus, the public matters standard, when applied to public employee petitions, allows government employers to avoid the very check on "incompetence, corruption and waste" that petitions are best designed to provide. The distinction between filing a grievance or lawsuit to obtain redress and merely airing one's complaints to the public is also reflected in the different impact each has on the workplace. In addition to its beneficial role in curbing government misconduct, an act of petition (the filing of a grievance or lawsuit) is likely to cause less of a discipline-maintenance problem for the sovereign-employer than are most acts of speech. While the government employer must respond to the grievance or lawsuit, that can generally be done privately, without the involvement of most other employees. [FN196] This is in sharp contrast to the highly public nature of speech. Whether the employee airs her complaints through discussion in the employee lunchroom or through publication of her complaints on the Op/Ed page of the local paper, her speech is likely to reach the ears of most of her fellow workers. This may cause other workers to lose respect for their government employer and perhaps lead to a loss of discipline in the government office. Such results are far less likely within the delineated confines of *342 the grievance and lawsuit process, the confines protected by the Petition Clause. Because the San Filippo standard would apply only within those confines, it would pose a reduced threat to employee discipline while preserving the distinct benefits and protection provided by the Petition Clause. C. Creation of a Separate Petition Clause Standard is Supported by the Distinct Historical Reach and Meaning of the Petition Clause While other courts have ignored the historical distinctions between the rights of petition and speech, the Third Circuit took this historical reality into account in crafting a separate standard for claims properly governed by the Petition Clause. As discussed in Part II, the protection provided by the right to petition has a historical pedigree far older than that of the right to free speech. [FN197] Furthermore, even after other expressive rights such as freedom of speech and the press began to be recognized, the right to petition the government for the redress of grievances was consistently treated with greater deference than the right to speak or publish. [FN198] The Third Circuit, in addition to recognizing the distinct substantive meaning and implications of the Petition Clause discussed above, also recognized the historical deference afforded the petition right when it refused to follow those circuits that apply the Free Speech Clause standard to public employee claims under the Petition Clause. In San Filippo v. Bongiovanni, [FN199] the Third Circuit made a careful analysis of the Petition Clause's history to determine whether that history justified treating the right of petition as merely an adjunct of the right to free speech. Like the Supreme Court in its McDonald v. Smith [FN200] dicta, the court noted that " 'the historical roots of the Petition Clause long antedate the Constitution' " and that the Bill of Rights William and Mary were forced to accept in 1689 included the recognition of their subjects' right to petition. [FN201] Unlike the McDonald Court, [FN202] however, the Third Circuit analyzed the significance of these and other aspects of the Clause's history. [FN203] As the court noted, *343 while the petition right " 'is cut from the same cloth as the other guarantees of [the First] Amendment,' " [FN204] the petition right is, in fact, an " 'assurance of a particular freedom of expression.' " [FN205] Moreover, this particular freedom has always been given the greatest deference, having been protected from " 'all committments [sic] and prosecutions' " [FN206] even at a time when other expressive freedoms were provided no such protection. [FN207] Indeed, this protection was provided to the petition right a full 100 years before the First Amendment was created. The right to petition is therefore not a redundant right -- an additional phrase "added" to the First Amendment to bolster the right of free speech. Rather, "the right to petition has a pedigree independent of -- and substantially more ancient -- than the freedoms of speech and press." [FN208] The right to petition must thus be recognized as a right independent of the right to free speech. While the Supreme Court itself acknowledged that the petition right antedated the Constitution, it did not examine the broad history and significance of the right before suggesting that there was no basis for viewing the right to petition any differently than the right to free speech. In light of the petition right's distinct history, there is a clear basis for applying a different standard to the Petition Clause than to the Free Speech Clause. Application of the San Filippo standard to Petition Clause claims is appropriate because it would not protect public employees whose actions fall outside the historically recognized petition context. Under Connick, the citizen-employee who "undertak[es] to draw public attention to a private dispute" between the citizen-employee and her sovereign-employer is subject to retaliation. [FN209] Even with the application of the San Filippo standard to public employee grievances and lawsuits, those public employees who discuss their lawsuits or properly filed grievances with the media might well be subject to dismissal under the Connick standard for those conversations because such activities fall outside the bounds of the petition right. [FN210] Application of *344 the San Filippo standard would simply ensure that government could not avoid its obligations under the Petition Clause by effectively shutting off the channels for redress to those citizens it employs and voiding a right that has historically been protected from government infringement with even greater vigilance than has the speech right. VI. Conclusion The First Amendment's Petition Clause -- which guarantees to all Americans the right to petition the government for a redress of grievances -- should be understood to provide protection against government retaliation for public employees who file grievances or lawsuits against their government employers. The deference historically provided to the petition right was clearly distinct from the lesser degree of protection afforded speech during the same period and reflects the importance of ensuring to citizens the opportunity to appeal directly to their sovereign for redress. With increasing numbers of citizens now working for their local, state, and federal sovereigns, any attempt to dilute the strength of the Petition Clause's guarantee for public employees or to subsume it within the right of free speech would have grave consequences for the ability of citizen-employees to appeal to the sovereign-employers in power over them. Those courts that analyze claims of retaliation for the filing of public employee grievances and lawsuits under the Connick "public matters" standard, which was created for claims under the Free Speech Clause, ignore the clear historical and substantive differences between the speech and petition rights. Unfortunately, this approach appears to have been lent support by dicta in McDonald, in which the Supreme Court blurred the clear distinctions between these rights. By either ignoring the distinct right of petition or collapsing it into the right of free speech, courts diminish the strength of the petition right and disregard its importance in guaranteeing citizens' access to their sovereign. The San Filippo standard is the correct approach for analyzing public employee claims of retaliation for the filing of grievances and lawsuits. This standard acknowledges the distinct power and reach of the petition right and is firmly rooted in Supreme Court Petition Clause precedent. The San Filippo standard upholds the Petition Clause's requirement that government provide an avenue for citizens to petition for redress of their grievances and recognizes that government may not simply deny that right to those citizens it employs. At the same time, the standard acknowledges that government-as-employer must be allowed to place some restrictions on its citizen-employees beyond those it can place on other citizens. The standard achieves the proper balance between the interests of citizen-employees and sovereign-employers by barring from protection those grievances *345 and lawsuits that are sham or baseless, thus following the Petition Clause standard already announced by the Supreme Court. It remains unclear, however, whether the Court will endorse the San Filippo standard for public employee claims of retaliation for the filing of grievances and lawsuits. As Connick illustrates, the Court has shown a growing inclination to treat the relationship between sovereign-employer and citizen-employee as wholly analogous to that between private employer and private employee for purposes of the free speech right. And McDonald suggests that the Court may not be willing to recognize the historical power of the right to petition or the historical distinction between it and the right of free speech. The Court may thus choose to extend Connick's Free Speech Clause standard into the realm of the Petition Clause and require that courts apply it to all public employee retaliation claims, including those that properly invoke the right to petition government for a redress of grievances. Were the Court to do so, it would further reduce constitutional protection for the millions of citizens employed by their governments and would nullify the historically distinct right to petition that those creating the First Amendment thought they had protected for all time. [FN1]. U.S. Const. amend. I. While the limitations contained in the First Amendment are placed on Congress, the Fourteenth Amendment's "liberty" guarantee has long been recognized as extending the First Amendment's limitations to the states. The Supreme Court explicitly recognized the Petition Clause's application to the states in Hague v. Committee for Indus. Org., 307 U.S. 496 (1939). [FN2]. See Keyishian v. Board of Regents, 385 U.S. 589, 605 (1967) (rejecting the notion that "public employment, including academic employment, may be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action"). [FN3]. As of 1991, more than 18 million Americans were employed by one of these levels of government. Waters v. Churchill, 114 S. Ct. 1878, 1899 n.3 (1994) (Stevens, J. and Blackmun, J., dissenting) (citing the 1991 figure from the U.S. Dept. of Commerce, Statistical Abstract of the United States, Table No. 500, at 318 (113 ed. 1993)); see also infra notes 177-79 and accompanying text. [FN4]. See discussion infra subpart III.A. [FN5]. See discussion infra Part IV. [FN6]. See discussion infra subpart IV.A. [FN7]. San Filippo v. Bongiovanni, 30 F.3d 424, 435, 443 (3d Cir. 1994) (noting that "the Supreme Court has not discussed the scope of the constitutional right to petition in the context of an allegedly retaliatory discharge of a public employee" and holding that the Petition Clause provides protection against such retaliation). [FN8]. See Connick v. Myers, 461 U.S. 138 (1983); Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979); Perry v. Sindermann, 408 U.S. 593 (1972); Pickering v. Board of Educ., 391 U.S. 563 (1968); Keyishian v. Board of Regents, 385 U.S. 589 (1967). [FN9]. Connick, 461 U.S. at 147. [FN10]. For discussion of the Supreme Court's general Petition Clause jurisprudence, see infra subpart III.B. [FN11]. See White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir. 1993); Rice v. Ohio Dept. of Transp., 887 F.2d 716, 719-21 (6th Cir. 1989); Belk v. Town of Minocqua, 858 F.2d 1258, 1261-62 (7th Cir. 1988); Yatvin v. Madison Metro. Sch. Dist., 840 F.2d 412, 419-20 (7th Cir. 1988); Gearhart v. Thorne, 768 F.2d 1072, 1073 (9th Cir. 1985) (per curiam); Day v. South Park Indep. Sch. Dist., 768 F.2d 696, 701 (5th Cir. 1985); Altman v. Hurst, 734 F.2d 1240, 1244 n.10 (7th Cir. 1984) (per curiam); Renfroe v. Kirkpatrick, 722 F.2d 714, 715 (11th Cir. 1984); cf. Boyle v. Burke, 925 F.2d 497, 505 (1st Cir. 1991). But see San Filippo, 30 F.3d at 443 (holding that the Petition Clause protects public employees from retaliatory discharge for filing bona fide grievances and law suits); Stellmaker v. DePetrillo, 710 F. Supp. 891, 892 (D. Conn. 1989) (stating that Connick addressed only the First Amendment's freedom of speech provision and holding that retaliation against one who had filed grievances violated the grievant's rights of association and petition). [FN12]. 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, 16 (1993) (noting that, of all the rights protected by the First Amendment, the right to petition "has engendered the least discussion among litigants, judges, and scholars"); Anita Hodgkiss, Note, Petitioning and the Empowerment Theory of Practice, 96 Yale L.J. 569, 569 (1987) ("Modern legal theorists concerned with freedom of speech and assembly have virtually forgotten the First Amendment petition clause."); Note, A Petition Clause Analysis of Suits Against the Government: Implications for Rule 11 Sanctions, 106 Harv. L. Rev. 1111, 1111 (1993) (noting that "courts and scholars alike have virtually ignored the Petition Clause in developing First Amendment jurisprudence"). [FN13]. As used in this Comment, the terms "public employee" and "citizen-employee" include most members of the federal civil service and their counterparts on the state and local level. The terms do not necessarily encompass those individuals who are members of the armed services or employed by national security organizations such as the CIA. The Court has long recognized that the government may restrict the constitutional rights of such citizens in ways that are forbidden to the government in its interaction with other citizens. See, e.g., Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (per curiam) (noting that the government "has a compelling interest in protecting ... the secrecy of information important to our national security," the Court stated that "the CIA [may act] to protect substantial government interests by imposing reasonable restrictions on employee activities that in other contexts might be protected by the First Amendment"); Brown v. Glines, 444 U.S. 348, 354 (1980) ("While members of the military services are entitled to the protections of the First Amendment, 'the different character of the military community and of the military mission requires a different application of those protections.' ") (quoting Parker v. Levy, 417 U.S. 733, 758 (1974)). [FN14]. 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, 1168 (1986) ("Petitioning's cognate rights, speech, press, and assembly, were late to emerge as constitutional liberties."); Spanbauer, supra note 12, at 34; Note, supra note 12, at 1113. [FN15]. Smith, supra note 14, at 1155; Spanbauer, supra note 12, at 22. [FN16]. Spanbauer, supra note 12, at 22. [FN17]. Both Smith and Spanbauer note that while the right to petition existed for many centuries, it did not assume legitimate force until the early eighteenth century. Smith, supra note 14, at 1153-54 (asserting that petitioning became "a fully matured, absolute right in England by 1702"); Spanbauer, supra note 12, at 19-21. While Spanbauer notes that local colonial assemblies ceased punishing petitioners more than 50 years before ratification of the Constitution, Spanbauer, supra note 12, at 20, she dates the "solidification" of the individual right to petition to the ratification date of 1789, because the Constitution required election of representatives in both the House and Senate and "an elected government could not easily punish petitioners because they were also likely to be voters." Id. at 21. [FN18]. Smith, supra note 14, at 1160; Spanbauer, supra note 12, at 26. In 1669, the House of Commons issued a resolution stating that " 'it is an inherent right of every commoner of England to prepare and present Petitions to the house of Commons in case of grievance.' " Smith, supra note 14, at 1160 (quoting 4 Parl. Deb. (1st serv.) 432-33 (1669)). [FN19]. Smith, supra note 14, at 1162. [FN20]. Id. (quoting Sources of English Constitutional History 599 n.2, 601 (Carl Stephenson & Frederick G. Marcham eds., 1937)). The Declaration of Rights was then enacted by Parliament as the Bill of Rights. Id. [FN21]. Spanbauer, supra note 12, at 34. [FN22]. Id. at 26. [FN23]. Id.; Smith, supra note 14, at 1165. [FN24]. 1 William Blackstone, Commentaries *138. [FN25]. Id. at *139. [FN26]. Eric Schnapper, "Libelous" Petitions for Redress of Grievances -- Bad Historiography Makes Worse Law, 74 Iowa L. Rev. 303, 343 (1989); Smith, supra note 14, at 1184-88 (asserting that the Court in McDonald v. Smith, 472 U.S. 479 (1985), misinterpreted historical cases involving claims of libel against petitioners and stating that the English law to which Americans would have looked provided absolute immunity to libel). [FN27]. Spanbauer, supra note 12, at 27-28. Those colonies were Massachusetts (which, in 1641, became the first to provide protection), Delaware, New Hampshire, North Carolina, Pennsylvania, and Vermont. [FN28]. Id. at 28. Virginia, which had no explicit policy of protection, recorded its first petition in 1607. Id. at 28 n.88. [FN29]. The Declaration of Rights and Grievances produced by the Stamp Act Congress of 1765 stated that " 'it is the right of the British subjects in these colonies to petition the King or either House of Parliament.' " Smith, supra note 14, at 1173 (quoting 1 Bernard Schwartz, The Bill of Rights: A Documentary History 198 (1971)). The Declaration and Resolves of the First Continental Congress, released in 1774, went even further, stating that "the colonists 'have a right peaceably to assemble, consider of their grievances, and petition the King; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.' " Id. at 1173- 74 (quoting Schwartz, supra, at 217); Spanbauer, supra note 12, at 32. [FN30]. Note, supra note 12, at 1113-14 n.28. [FN31]. Spanbauer, supra note 12, at 37. [FN32]. Id. at 39. While a number of individuals were prosecuted under this Act for seditious speech, "not a single petitioner" was prosecuted for the seditious content of his petition. Id.; see also Smith, supra note 14, at 1175-77. [FN33]. Spanbauer, supra note 12, at 39. [FN34]. Note, supra note 12, at 1113; accord Smith, supra note 14, at 1166-67 ("[I]t seems that petitioning ... helped to nurture the yet unrecognized rights of press and assembly...."). [FN35]. Note, supra note 12, at 1113 (citing David C. Frederick, John Quincy Adams, Slavery, and the Disappearance of the Right to Petition, 9 Law & Hist. Rev. 113, 115 (1991)). [FN36]. Smith, supra note 14, at 1165. On one day in 1702, the House of Commons passed two resolutions: one stating that the people had a right to petition the king for redress of their grievances, the other making it an offense to publish any writings " 'reflecting upon the proceedings of parliament, or any member thereof.' " Id. (quoting 5 Parl. Hist. Eng. 1337- 39 (1702)). While pointing out that these resolutions reveal the contrast between the protected status of petitioning and the suppression of the press, Smith also notes that publications about the issue of petitioning, such as Daniel Defoe's "The History of the Kentish Petition," a piece highly critical of Parliament, were not subject to criminal prosecution. Id. [FN37]. Id. at 1167. [FN38]. The view that those ratifying the First Amendment intended the Petition Clause to ensure continuation of the broad protections already enjoyed by the former colonists is supported by those commentators who have addressed the meaning of the Petition Clause. Spanbauer asserts that the records of the debates surrounding the First Amendment's framing and ratification "evince no intent to change the original British and colonial experiences whereby the right to petition was subject to few restrictions." Spanbauer, supra note 12, at 42. Smith also endorses this view, noting that the declarations of rights crafted at state conventions in 1776 by six of the states that would later ratify the First Amendment expressly included the right to petition. Smith, supra note 14, at 1174. Moreover, at conventions called to ratify the Constitution (before the later drafting of the Bill of Rights), four states specified that the right of petition should be guaranteed. Id. As Eric Schnapper explains: It is not to be believed that Congress intended the federal Bill of Rights to afford a lesser degree of protection to a petition submitted to the federal government than was accorded by state constitutions to a similar petition submitted to state officials. It is even less likely that Congress sought, through the seemingly benign device of locating the petition clause in a guarantee with other rights, coyly to emasculate the rights requested by several states. Indeed, there is absolutely no contemporaneous history suggesting that anyone connected with the framing and approval of the petition clause ... intended any limitation on the right to petition as it had existed under English law prior to the Revolution and as it continued in the several states. Schnapper, supra note 26, at 345. In contrast to these commentators, those who assert that the petition right deserves no greater deference than the rights of speech or press -- and that Petition Clause claims should therefore be governed by Free Speech Clause standards -- provide no historical justification for their view. See infra note 101. [FN39]. The act of filing a grievance or lawsuit against one's sovereign-employer is distinct from speech about the underlying issue to which the petition is directed and should invoke equally distinct constitutional concern. While the Speech Clause protects citizens' abilities to express opinions and discuss issues openly, the Petition Clause ensures government accountability to citizen complaints, providing a right to all citizens to "demand that the government consider and respond to their petitions." Note, supra note 12, at 1111, 1116. Filing a petition thus places the citizen in a different relationship with her sovereign-employer than does mere speech about an issue and should be analyzed accordingly. This subject is more fully explored in subpart V.B, infra. [FN40]. 461 U.S. 138 (1983). [FN41]. See infra notes 57-59 and accompanying text. As applicable as this criticism is to Connick, which involved a claim made under the Free Speech Clause, it may apply even more strongly to attempts to apply the Connick standard to claims under the Petition Clause, which protects a right traditionally granted greater deference than the right of speech. [FN42]. Spanbauer, supra note 12, at 16; Note, supra note 12, at 1111 ("[C] ourts and scholars alike have virtually ignored the Petition Clause in developing First Amendment jurisprudence."). [FN43]. San Filippo v. Bongiovanni, 30 F.3d 424, 435 (3d Cir. 1994) (noting that "the Supreme Court has not discussed the scope of the constitutional right to petition in the context of an allegedly retaliatory discharge of a public employee"). Norman B. Smith attributes the dearth of Petition Clause jurisprudence in the area of public employee rights to the fact that the Supreme Court has ignored even obvious Petition Clause implications in cases before it: "[I]n all of its major public employee rights cases, the Supreme Court has focused exclusively on the right of free speech, and has failed to consider the right to petition even when clearly raised by the facts." Smith, supra note 14, at 1195. Smith cites Perry v. Sindermann, 408 U.S. 593 (1972), in which a college teacher was refused rehire because of the content of his testimony before a state legislature, and Connick, where the discharged employee was gathering the views of her co-workers in order to present them to her superiors, as examples of cases involving petitioning activity, the import of which was ignored by the Court. Smith, supra note 14, at 1195-96. [FN44]. Developments in the Law -- Public Employment, 97 Harv. L. Rev. 1611, 1739-49 (1984) [hereinafter Public Employment] (analyzing the Court's shift in attitude toward the relationship between government employer and employee and the shift's impact on the Court's view of public employees' rights to both freedom of speech and procedural due process); Jonathan A. Marks, Comment, Connick v. Myers: Narrowing the Scope of Protected Speech for Public Employees, 5 U. Bridgeport L. Rev. 337, 341 (1984) ("Changes in the composition of the Court in the 1960s led to a considerable broadening of rights for public employees under the first amendment."); Toni M. Massaro, Significant Silences: Freedom of Speech in the Public Sector Workplace, 61 S. Cal. L. Rev. 1, 8 (1987) ("[T]he notion that public workers enjoy first amendment protection while on the job is relatively new."). [FN45]. See Public Employment, supra note 44, at 1742-44. Under the "private sector" approach, the Court analogized public employers to private employers, who had almost unlimited power over their employees. This approach reflected the larger constitutional notion that public employment was a privilege, not a right, and that, because the government could choose to grant or deny such a privilege, no restrictions on the grant could be constitutionally required. This view was best summed up by Oliver Wendell Holmes, Jr. who, in a decision of the Supreme Judicial Court of Massachusetts upholding the summary dismissal of a public employee who had engaged in political speech, stated: "[A policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." McAuliffe v. Mayor of New Bedford, 29 N.E. 517 (Mass. 1892). [FN46]. See Public Employment, supra note 44, at 1744-47. The "individual rights" approach reflected a recognition by the Court that the position of government-as-employer was not truly analogous to the position of private employer. Even in the role of employer, the sovereign, unlike the private employer, is subject to the limits imposed by the Constitution. The recognition of this limitation was pronounced most clearly in Keyishian v. Board of Regents, 385 U.S. 589 (1967), in which Justice Brennan, writing for the majority, stated that "the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected." Keyishian, 385 U.S. at 605-06. [FN47]. See Public Employment, supra note 44, at 1747-49. The author dates the advent of the "public service" approach to the era of the Burger Court. Noting that this approach is "characterized by deference to the government's need for discretion in managing management practices," the author asserts that it is "thus reminiscent of the private sector vision." Id. at 1747. While the Court's more recent application of the "public service" approach has indeed reflected a return to the private sector vision (see the discussion of Connick v. Myers, 461 U.S. 138 (1983), infra notes 50-74 and accompanying text), an approach that recognizes the need to balance the interests of government employer and government employee does not necessarily have to result in a return to that earlier vision and its overriding deference to employer interests. [FN48]. Public Employment, supra note 44, at 1756 (noting that "the Court [[[in Connick] seems to have fully embraced the rhetoric, the pro-employer sentiment, and the deference to public employers characteristic of the private sector vision"). [FN49]. Massaro, supra note 44, at 4. [FN50]. 461 U.S. 138 (1983). [FN51]. While Connick is the leading case on the free speech rights of public employees, the issue has a long history in the Supreme Court. Among the most prominent of these decisions are Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979); Perry v. Sindermann, 408 U.S. 593 (1972); Pickering v. Board of Educ., 391 U.S. 563 (1968); Keyishian v. Board of Regents, 395 U.S. 589 (1967). [FN52]. Connick, 461 U.S. at 141. [FN53]. Id. [FN54]. Id. at 154. [FN55]. Id. at 147. [FN56]. Id. at 151-52. [FN57]. Marks, supra note 44, at 338, 361 (Connick represents a misreading of precedent and a grant of power to governments to condition employment on "the unreasonable surrender of meaningful free speech rights."); Massaro, supra note 44, at 4 (Connick's deference to public employers "affords inadequate protection to the employee's interest in free expression."). [FN58]. See Cynthia L. Estlund, Speech on Matters of Public Concern: The Perils of an Emerging First Amendment Category, 59 Geo. Wash. L. Rev. 1, 3 (1990) (noting that the "public concern" test, because it is content-based, threatens to create a "judicially approved catalogue of legitimate subjects of public discussion" and thus threatens a severe narrowing of the First Amendment); Massaro, supra note 44, at 29 (stating that "the categorization is too narrow"); see also Howard Kleinhendler, Constitutional Law - Protected Speech Under the First Amendment: The Public Concern Test - Sanguini v. Pittsburgh Bd. of Pub. Educ., 968 F.2d 393 (3d Cir. 1992), 66 Temp. L. Rev. 1075 (1993) (criticizing court's application of Connick); D. Gordon Smith, Beyond "Public Concern": New Free Speech Standards for Public Employees, 57 U. Chi. L. Rev. 249, 250 (1990) (noting that current Supreme Court standard "still permits the state to unduly restrict the free speech rights of public employees"). [FN59]. See The Supreme Court, 1982 Term, 97 Harv. L. Rev. 164, 168 (1983) [hereinafter 1982 Term] (noting that the Court ignored its own precedents in the area of public employee free speech rights in Connick); Marks, supra note 44, at 338, 353-55 (stating that Connick represents a misreading of precedent); Smith, supra note 58, at 255 (noting that the public concern threshold "defies the intuitions" upon which the Court based its original Pickering requirement that courts balance the interests of government employer and government employee). [FN60]. The creation of a "public matters" requirement in Connick has had a continuing effect on Free Speech Clause decisions by the Court. This area of jurisprudence remains in dispute and cases continue to be brought before the Court, many of these questioning the application of the Connick test. Recently, the Court ruled on the procedural standard for applying the Connick test. In Waters v. Churchill, 114 S. Ct. 1878 (1994), the Court held that courts are to apply the "public matter" test to the speech that the employer "reasonably believed" to have been spoken by the employee and upon which the employer based the decision to discharge that employee. Waters, 114 S. Ct. at 1889. The Court emphasized that the protection of the Free Speech Clause extends only to speech on issues of public concern, stating that "we have refrained from intervening in government employer decisions that are based on speech that is of entirely private concern." Id. at 1887. Thus, while its creation was not rooted in any prior Free Speech Clause precedents, the "public matters" standard created in Connick now appears to be a permanent addition to Free Speech jurisprudence. [FN61]. 391 U.S. 563 (1967). [FN62]. Connick, 461 U.S. at 142 ("Our task, as we defined it in Pickering, is to seek 'a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' "). [FN63]. As the Court stated, while citizens who work for their government cannot be made to give up their rights in exchange for such employment, "it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Pickering, 391 U.S. at 568. [FN64]. Id. at 566. [FN65]. 1982 Term, supra note 59, at 167. [FN66]. Id. at 167-68; Smith, supra note 58, at 256 ("The fact that [[[ Pickering and related cases] had involved speech of public concern was not reason, in itself, to limit constitutional protections to speech of public concern."). The view that Pickering was not intended to restrict Free Speech Clause protection for public employees solely to public matters speech is supported by the Court's holdings regarding other constitutional rights of public employees. Significantly, at the time that Pickering was decided -- and until the day that Connick was decided -- the Court had never held that constitutional protections for public employees were restricted to matters of public concern. 1982 Term, supra note 59, at 167. On the contrary, the Court had upheld without any such limits public employees' rights to freedom of thought (see Cole v. Richardson, 405 U.S. 676 (1972) (invalidating loyalty oath)), religion (see Torcaso v. Watkins, 367 U.S. 488, 490 (1961) (invalidating requirement that public officials take oath of belief in God)), association (see Shelton v. Tucker, 364 U.S. 479 (1960) (invalidating statute requiring public employees to list organizational affiliations)), and the exercise of the privilege against self-incrimination (see Slochower v. Board of Higher Educ., 350 U.S. 551 (1956) (striking down a city charter provision mandating termination of city employees who invoke the Fifth Amendment)). [FN67]. 1982 Term, supra note 59, at 167 n.33; see, e.g., Waters v. Chaffin, 684 F.2d 833, 836-37 (11th Cir. 1982) (Court applied Pickering, which it said requires a "proper balance between the interest of the employee in speaking freely and the interests of the state, as an employer, in promoting the efficient delivery of public services" to speech that "cannot be said to be valuable to the public at large" because "the first amendment's protections do not turn on the social worth of the statements."); Sprague v. Fitzpatrick, 546 F.2d 560, 564 (3d Cir. 1976), cert. denied, 431 U.S. 937 (1977) (Court applied Pickering -- balancing "employee's interest in free speech against the harm likely to result to the state's provision of service" -- without first inquiring whether speech addressed public matter.); Gray v. Union County Interm. Educ. Dist., 520 F.2d 803 (9th Cir. 1975) (same). But see Clark v. Holmes, 474 F.2d 928, 931 (7th Cir. 1972), cert. denied, 411 U.S. 972 (1973) (Court noted that disputes between teacher and school about course content and counselling were not " 'matters of public concern.' "). [FN68]. Smith, supra note 58, at 256. In Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979), a teacher was fired after she disagreed with her principal's policies on school desegregation during a private meeting with him. The Court rejected the argument that because all prior cases addressing the issue of employee speech had involved speech made publicly, speech made privately could not be viewed as constitutionally protected. Givhan, 439 U.S. at 414. As Smith points out, in rejecting this argument the Court emphasized that "[w]hile those [earlier] cases each arose in the context of a public employee's public expression, the rule to be derived from them is not dependent on that largely coincidental fact." Smith, supra note 58, at 256 (quoting Givhan, 439 U.S. at 414). [FN69]. 439 U.S. 410 (1979). [FN70]. Id. at 415-16. [FN71]. Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463 (1979). [FN72]. Id. at 464-65. The Court noted that, while a public employer's attempt to avoid interaction with a union representing its employees might violate federal statutory law, were it applicable, it did not necessarily violate the Constitution: "[T]he 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 (internal citations omitted). [FN73]. Indeed, the Court would never have gotten to the point of inquiring into the constitutionality of the state's action had it applied the public matters standard it applied to the employee questionnaire in Connick. Since the employee grievances affected by the government employer's actions were purely employment-related (and thus, under the later Connick standard, not of public concern), the grievances would have been considered outside the protection of the First Amendment and no further inquiry would have been made. [FN74]. Smith, 441 U.S. at 465. [FN75]. The Supreme Court has made relatively few of its First Amendment decisions under the Petition Clause. This is due in part to its deciding cases under other clauses of the First Amendment that would more properly have been decided as Petition Clause cases. See discussion supra note 43. However, those cases that the Court has viewed as invoking the right to petition government for redress of grievances have often involved access to the courts. Thus, in a number of cases the Court has upheld the right of organizations to refer their members to lawyers after advising them of their legal rights, because barring such referrals would interfere with the individual members' opportunity to initiate litigation. See, e.g., United Transp. Union v. State Bar of Michigan, 401 U.S. 576 (1971); NAACP v. Button, 371 U.S. 415 (1963). The Court has also held the right to petition to be a defense against criminal actions brought for violating anti-assembly statutes, holding that assemblies gathered to petition for redress of grievances may not be restricted as long as they are peaceful and no violence is advocated. See, e.g., DeJonge v. Oregon, 299 U.S. 353 (1937). Finally, the Court has held that the right to petition is not limited to issues of religious or political significance, but encompasses other fields of "human interest," including business and economic activity. Thomas v. Collins, 323 U.S. 516, 531 (1945). But see Spanbauer, supra note 12, at 43-49 (discussing the Supreme Court's refusal to state explicitly that the Petition Clause itself provides a substantive right of access to the courts). [FN76]. 461 U.S. 731 (1983). [FN77]. Id. at 743. [FN78]. Id. at 741. [FN79]. 404 U.S. 508 (1972). [FN80]. Id. at 510-11. [FN81]. In Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), the Court had ruled that barring railroads from lobbying Congress and the Executive Branch for the passage and enforcement of laws beneficial to their interests and harmful to the interests of long-distance truckers would violate plaintiffs' rights under the Petition Clause. Noerr, 365 U.S. at 138-40. [FN82]. California Motor Transp., 404 U.S. at 510. [FN83]. Note that a number of cases addressing the right of access to courts have been analyzed not under the Petition Clause, but under the Due Process or Equal Protection Clause of the Fourteenth Amendment. Spanbauer, supra note 12, at 43-44 (noting in particular Boddie v. Connecticut, 401 U.S. 371 (1971) and Ortwein v. Schwab, 410 U.S. 656 (1973)). Spanbauer asserts that, while the final outcome of these cases was correct, the Court was wrong in its failure to recognize that the plaintiffs' claims were more appropriately governed by the Petition Clause. Id. at 44. She also points out that, by not deciding such cases under the Petition Clause, the Court avoids recognizing that the Clause does, in fact, encompass a substantive right of access to the courts. Id. at 45-46, 49. [FN84]. Noerr, 365 U.S. at 144. [FN85]. Bill Johnson's Restaurants v. NLRB, 461 U.S. 731, 743 (1983). [FN86]. Garrison v. Louisiana, 379 U.S. 64, 75 (1964). [FN87]. 472 U.S. 479 (1985). In McDonald, Robert McDonald had written two letters to President-elect Ronald Reagan opposing the proposed selection of David Smith to be United States Attorney for North Carolina, copies of which he sent to the director of the Federal Bureau of Investigation and four members of Congress. In his two letters, McDonald accused Smith of "violating the civil rights of various individuals while a Superior Court Judge" and accused him of "fraud" and "violations of professional ethics." Id. at 481. McDonald's letters referred to a number of incidents that he claimed substantiated his allegations. Schnapper, supra note 26, at 303. When another candidate was selected, Smith sued McDonald for libel, claiming that McDonald's letters to the President-elect had caused him not to be selected, had injured his reputation and career as an attorney, and had caused him to suffer "humiliation, embarrassment, anxiety and mental anguish." McDonald, 472 U.S. at 481. After removing the case to federal court, McDonald moved for judgment on the pleadings on the ground that the Petition Clause provided him absolute immunity from liability. Id. Both the district and appellate courts rejected that claim, as did the Supreme Court. Id. at 482. In McDonald, the Supreme Court claimed a historical basis for its decision. However, while the Court made reference to the "historical roots of the Petition Clause," id., it did not analyze those roots very closely. Indeed, as Eric Schnapper points out, the Court's historical analysis was deeply flawed, for while the Court claimed to decide the case as the framers would have, it did not look at any cases or other materials from the seventeenth or eighteenth centuries that would have revealed the contemporaneous understanding of the Petition Clause. Schnapper, supra note 26, at 305. Instead, the Court relied on "a handful of nineteenth-century authorities," which it then took wholly out of context. Id. at 306-12. [FN88]. McDonald, 472 U.S. at 482. While the Court's decision was not based on the "mere sham" exception, the Court stated that recognition of the sham exception in Noerr and the cases that followed it indicated that the petition right could be limited. Id. at 484. In McDonald, the Court extended the limitation on the petition right by denying petitioners absolute immunity from libel liability. Id. [FN89]. See Schnapper, supra note 26 (criticizing the historical analysis in McDonald and arguing that the right to petition did historically encompass protection from libel suits for the contents of petitions); Smith, supra note 14, at 1186 (criticizing the McDonald Court for "fail[ing] to give adequate consideration to the history, textual development, and draftsmen's intent of the right to petition and to the purposes and interests it serves"). [FN90]. See Spanbauer, supra note 12, at 18-19 ("In analyzing different claims, the Court has purported to rely on history; however, its historical analysis is frequently selective and misleading. Not only has the Court elected to grant less protection than history warrants, but it has also been less than forthright about that decision."); see also Stephen A. Higginson, A Short History of the Right to Petition Government for the Redress of Grievances, 96 Yale L.J. 142, 166 (1986) ("If courts continue to confine the First Amendment petition guarantee to presentation, or free expression as in McDonald and Minnesota State Board, they should be candid about the inconsistency with the Framers' intent.")(citations omitted). [FN91]. See Spanbauer, supra note 12, at 42-43; see also Higginson, supra note 90, at 143 n.2 ("The short line of Supreme Court cases that raise the petition clause, culminating in McDonald v. Smith, consistently err in their interpretation of the petition clause as merely a free expression guarantee."). The historical meaning of the right to petition is discussed in greater detail supra Part II. [FN92]. Schnapper, supra note 26, at 347 n.250; see also Spanbauer, supra note 12, at 58 (arguing that petitioners to the legislature and executive should be protected from libel action when their "statements [are] reasonably related to or pertinent to the subject of inquiry. They must be submitted to those government officials who reasonably appear to have the power to redress the grievance."). [FN93]. Spanbauer, supra note 12, at 49. [FN94]. Id. But see Smith, supra note 14, at 1190-91 (arguing that the Petition Clause does not impose such an obligation). [FN95]. See Note, supra note 12, at 1127; see also Spanbauer, supra note 12, at 61-62. Both Rule 11 and the Supreme Court "non-sham" requirement aim to discourage the intentional initiation or pursuit of frivolous claims, a goal that has deep historical roots. Spanbauer, supra note 12, at 58-61. However, Rule 11 as currently embodied goes well beyond the basic good faith requirement and other restrictions recognized by the Petition Clause's framers. Id. at 61. The author of a Note addressing the interaction of Rule 11 and the Petition Clause has argued that Rule 11 should be interpreted "narrowly" in suits against the government because, as currently interpreted, Rule 11 inhibits the ability of citizens to exercise the very right to sue the government that is protected by the Petition Clause. Note, supra note 12, at 1112. Because the Petition Clause is specifically designed to protect citizens' ability to gain redress from the government, it is logical that its standard, rather than the more general Rule 11 standard, should apply to suits directed at the government. This view has been given support by Chief Judge Weinstein of the Eastern District of New York, who has argued that Rule 11 sanctions should not be applied to discourage suits against government agencies. See Eastway Constr. Corp. v. City of New York, 637 F. Supp. 558, 575 (E.D.N.Y. 1986) (Weinstein, C.J.). [FN96]. Smith, supra note 14, at 1154 (emphasis added). [FN97]. Id. at 1193. [FN98]. Id. Note that under Smith's interpretation of the Petition Clause's breadth, it appears there would be no "sham exception" in the public employee context (all public employee petitions would be considered legitimate), because such petitions are directed "against a government officer or body." However, the Third Circuit recognized the sham exception and included it in the San Filippo standard for analyzing public employee claims under the Petition Clause. See infra text accompanying notes 147-61. This approach is correct and accords with Supreme Court precedent. [FN99]. See Note, supra note 12, at 1112; see also Higginson, supra note 90, at 165-66 ("[L]egal scholars and judges alike ... have in fact acquiesced in the evisceration of the original meaning of the right to petition, a right which compelled legislatures to accord citizens' petitions fair hearing and consideration."). [FN100]. Spanbauer, supra note 12, at 42; see Schnapper, supra note 26, at 345; Smith, supra note 14, at 1196. [FN101]. "If the Court only grants First Amendment protection for right-of-access claims when other First Amendment rights are implicated, then the historically-distinct, superior right to petition will be lost through the collapse into the other rights of the First Amendment." Spanbauer, supra note 12, at 46. Generally, courts have subsumed public employees' petition right claims under the Free Speech Clause. See infra notes 104-30 and accompanying text. However, this collapse of independent First Amendment rights into the Free Speech Clause has not been restricted to the petition right, nor confined to issues involving public employees. See Stephen L. Carter, Does the First Amendment Protect More Than Free Speech?, 33 Wm. & Mary L. Rev. 871, 882-83 (1992): Nothing in the text suggests a hierarchy in which these [other enumerated rights] are subordinated to the right of free speech. Yet, the Supreme Court, with rare exception, has treated each of these other rights as adjuncts to, or perhaps variations on, the freedom of speech. By this I mean that these three additional clauses have been given very little content independent of the content of the Free Speech Clause. A claim to a right under one of the other clauses is most likely to succeed when it resembles one of the rights protected by free speech and is least likely to succeed when it is very different. Id. Notwithstanding the historical distinctiveness of the Petition Clause, some assert that it is correct to measure the petition right, as well as the other expressive rights enumerated in the First Amendment, by the standards created under the Free Speech Clause. See Robert A. Zauzmer, Note, The Mis application of the Noerr-Pennington Doctrine in Non-Antitrust Right to Petition Cases, 36 Stan. L. Rev. 1243, 1262 (1984) ("All first amendment rights of expression promote autonomy, democratic participation, and the availability of information and opinion.... The right to petition promotes the same values as other first amendment rights and should enjoy no more protection."); see also Mark Strauss, Note, Public Employees' Freedom of Association: Should Connick v. Myers' Speech-Based Public-Concern Rule Apply?, 61 Fordham L. Rev. 473 (1992) (arguing that the Connick Free Speech standard should apply to public employee claims under the Free Association Clause). Strauss's focus is on Association claims. However, in a brief reference to lower court decisions holding that public employee grievances are protected under the Petition Clause, he dismisses the possibility of such independent protection, separate from the Free Speech Clause. Strauss, supra, at 486. It is significant that, in making their claims for a unified approach to the rights guaranteed by the First Amendment, neither Zauzmer nor Strauss attempts to reconcile such an approach with the clearly distinct historical deference shown the petition right. Indeed, neither author investigates the historical development of the different First Amendment rights, so it is unclear if either believes there is a historical basis for a unified approach to those rights. [FN102]. McDonald v. Smith, 472 U.S. 479, 482, 485 (1985) (internal citations omitted). [FN103]. See infra subpart IV.A for a discussion of the circuit courts' application of the Connick standard to Petition Clause claims. [FN104]. See supra note 11 for a list of case names; see infra notes 107-29 and accompanying text for a discussion of these cases. [FN105]. See, e.g., Renfroe v. Kirkpatrick, 722 F.2d 714, 715 (11th Cir. 1984) (per curiam) ("[P]laintiff 's grievance is protected under the First Amendment only if it is related to a matter of public concern."). [FN106]. As discussed supra subpart III.A, the Court's establishment in Connick of a public matters standard for Free Speech Clause protection appears to have been a clear departure from its own Free Speech precedents. However, even for those who may view the public matters standard as an extension rather than a repudiation of Free Speech precedent, there is still reason to be concerned about its wholesale importation into the Petition Clause context, for such importation serves to subvert the very right protected by this distinct clause. Indeed, both the historical meaning of the petition right and the interests furthered by the right require that the Petition Clause's reach not be restricted to grievances and lawsuits addressing public matters. For a full discussion of these issues, see infra subparts V.B and V.C. [FN107]. Rice v. Ohio Dept. of Transp., 887 F.2d 716, 720 (6th Cir. 1989) ("We are called upon here to decide whether the First Amendment ... prohibits the withholding of promotion in retaliation for the filing of an employment discrimination charge against a governmental employer.... The threshold question in such cases, as the Supreme Court has recently emphasized, is whether the speech involves a matter of 'public concern.' If ... not ... it is 'unnecessary for us to scrutinize' the employment decision.")(citations omitted); see also Yatvin v. Madison Metro. Sch. Dist., 840 F.2d 412, 419- 20 (7th Cir. 1988) (public employee sued government employer for denying her promotion in retaliation for filing both state and federal charges of sex discrimination). While the court in Yatvin did not rule on the plaintiff 's free speech and petition rights claims because they had not been raised below, the court indicated that such claims would be subject to the "public concern" standard. Id. [FN108]. Rice, 887 F.2d at 720. [FN109]. Id. [FN110]. Id. at 721. [FN111]. Altman v. Hurst, 734 F.2d 1240 (7th Cir. 1984). [FN112]. Id. at 1244. [FN113]. 878 F.2d 836 (5th Cir. 1989). [FN114]. Id. at 841-42. [FN115]. Id. at 842. [FN116]. Id. The court's willingness to collapse the Petition Clause into the Free Speech Clause was demonstrated by its citation to Day v. South Park Indep. Sch. Dist., 768 F.2d 696, 697 (5th Cir. 1985): " '[H]er actions, whether viewed as speech, petitioning, or both, related only to her superior's employment decisions that affected her in a purely personal manner, not to matters of political, social, or community concern.' " Rathjen, 878 F.2d at 842 (quoting Day, 768 F.2d at 697). The court then continued: " Day forecloses a constitutional basis for Dr. Rathjen's retaliation claim." Id. [FN117]. Because the Supreme Court has discussed access to courts in a number of other Petition Clause contexts, courts may feel they must at least make reference to the petition right issues raised by the filing of a lawsuit, but feel no pressure to do so when faced with a petition to the government that takes the form of a grievance. [FN118]. 768 F.2d 1072 (9th Cir. 1985) (per curiam). [FN119]. Id. at 1073 (emphasis added). [FN120]. Id. [FN121]. Id. A similarly brief assessment was given the issue in Renfroe v. Kirkpatrick, 722 F.2d 714 (11th Cir. 1984) (per curiam). Here, again, the court did not even broach the issue of whether a grievance filed with a government employer is to be considered speech or is in fact protected by a different First Amendment clause. The court merely stated that "in view of the recent Connick decision ... [i]t is now clear that plaintiff 's grievance is protected under the First Amendment only if it is related to a matter of public concern." Renfroe, 722 F.2d at 715. [FN122]. 858 F.2d 1258 (7th Cir. 1988). [FN123]. Id. at 1260. The court in Belk addressed the question of whether the right to petition provides absolute protection to those who file grievances. Apparently, this was the argument proffered by plaintiff. However, no courts and few commentators have interpreted the Petition Clause to provide an absolute right of petition. See supra notes 84-98 and accompanying text. As discussed infra subpart IV.B, the standard created by the Third Circuit for Petition Clause claims by public employees recognizes the clear limit of the Clause's protection, denying that protection to all "sham" lawsuits and grievances. [FN124]. Belk, 858 F.2d at 1261. [FN125]. Id. at 1262. The court found that Belk's grievance did, in fact, address a matter of public concern and therefore found that it merited initial protection. Id. at 1264. (This meant that her employer could not arbitrarily fire her. Rather, in keeping with Pickering, her right to speak on the subject would have to be weighed against the government's interest in not having that speech heard. Only if the government's interests outweighed hers could she be fired.) However, the court found Belk's actions protected solely by the right to free speech; in the view of the court, the fact that Belk's activity might have fallen within the purview of the petition right provided no additional form of protection. Id. at 1262. [FN126]. 768 F.2d 696 (5th Cir. 1985). [FN127]. Id. at 697. [FN128]. Id. at 701. [FN129]. Id. at 697. [FN130]. See supra notes 99-101 and accompanying text. To interpret a clause of the Constitution as being devoid of any real content, as these courts do, would seem to run counter to Chief Justice Marshall's famous rule of construction, enunciated in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) that it "cannot be presumed that any clause in the constitution is intended to be without effect." Id. at 174; see Note, supra note 12, at 1113. [FN131]. 710 F. Supp. 891 (D. Conn. 1989). [FN132]. Id. at 891-92. [FN133]. Id. at 892. [FN134]. Because the grievance process used by the plaintiff was the result of collective bargaining activities, the right of association was also implicated. However, the court clearly appraised the protections provided by these two rights separately. In analyzing the grievance-based claim, the court first emphasized that "access to procedures for the redress of grievances is essential to a meaningful first amendment right to petition the government." Id. (emphasis added). Only after establishing that plaintiff 's grievance activity invoked the protection of the Petition Clause did the court then go on to address the right of association invoked by the collective bargaining context. Id. [FN135]. 461 U.S. 731 (1983). [FN136]. Stellmaker, 710 F. Supp. at 892. [FN137]. 377 U.S. 1 (1964). [FN138]. Stellmaker, 710 F. Supp. at 892. [FN139]. The court also properly recognized the right of association invoked by the case. That two non-Speech Clause rights were implicated in this case further highlights the danger posed by indiscriminate application of the Free Speech standard to public employee retaliation claims. In cases such as Stellmaker, such application would nullify the First Amendment's separate guarantees of petition and free association, thus further reducing the Amendment's breadth. For more on this "collapsing together" of First Amendment rights, see the discussion supra note 101. [FN140]. 682 F. Supp. 247 (D.N.J. 1987). [FN141]. Id. at 251-52. [FN142]. Id. at 261-62. Although the court's opinion does not quote the specific arguments made by the government defendant, it seems clear that defendant made the argument that plaintiff 's claim did not fall within the protection of the First Amendment because her suit did not address a "matter of public concern." This is strongly suggested by the court's focus on the fact that the right of access to the courts, protected by the Petition Clause, is not assessed under that particular standard. See id. [FN143]. Id. [FN144]. Id. at 261. [FN145]. Id. at 262 (citing California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972)); see also McCoy v. Goldin, 598 F. Supp. 310, 315 (S.D.N.Y. 1985) (Connick's "limitation on speech does not apply to the right of access to the courts, [which] cannot be characterized in terms of 'public concern.' "). [FN146]. While courts often failed to recognize and respect the distinctions among the First Amendment rights, commentators certainly recognized the distinctions, as well as the tendency of most courts to ignore them. These authors also recognized the historically broader reach of the Petition Clause's protection. See Higginson, supra note 90; Smith, supra note 14; Spanbauer, supra note 12; Note, supra note 12. [FN147]. 30 F.3d 424 (3d Cir. 1994). [FN148]. Id. at 431. In so doing, the district court rejected the recommendation of its own magistrate judge. The magistrate judge had assessed the First Amendment claim in much the same way the appellate court eventually would, concluding that, because San Filippo's grievances and lawsuits were activities protected by the Petition Clause rather than by the Free Speech Clause, those activities were protected regardless of whether they addressed matters of public concern. Id. On that basis, the magistrate judge recommended that summary judgment be denied to defendant on the First Amendment claim. Id. Rejecting her recommendations, the district court instead applied the Connick public concerns standard. Although the court found that some of San Filippo's activities did involve matters of public concern and that a fact finder might reasonably infer that those activities were a "substantial factor motivating his dismissal," the court concluded that nothing in the record provided a basis for a reasonable fact finder to conclude that plaintiff was dismissed because of the conduct protected by Connick, rather than because of the misconduct with which he was charged. Id. [FN149]. The Third Circuit vacated the grant of summary judgment on the First Amendment claim and remanded for a decision under the Petition Clause standard it announced in its opinion. Id. at 434. [FN150]. Id. at 443. [FN151]. This recognition accords with the Court's opinion in McDonald holding that the petition right does not provide absolute immunity from liability for libel and also follows general Supreme Court precedent regarding the petition right. See supra notes 84-88 and accompanying text. For additional commentary on the breadth of the petition right's protection, see supra notes 89-98 and accompanying text. [FN152]. 858 F.2d 1258 (7th Cir. 1988). For more on Belk see supra notes 122-25 and accompanying text. [FN153]. 461 U.S. 731 (1983). The case is discussed supra notes 76-78 and accompanying text. [FN154]. 404 U.S. 508 (1972). The case is discussed supra notes 79-80 82 and accompanying text. [FN155]. 365 U.S. 127 (1961). [FN156]. Noerr, 365 U.S. at 144. [FN157]. California Motor Transp., 404 U.S. at 510-11. [FN158]. Id. at 511, 515. [FN159]. Bill Johnson's Restaurants v. NLRB, 461 U.S. 731, 743 (1983) (quoting Balmer, Sham Litigation and the Antitrust Laws, 29 Buff. L. Rev. 39, 60 (1980)). [FN160]. According to Norman Smith, "[t]he sham exception, although without common law or historical basis, is appropriate in a system where the right to petition is broader than other expressive rights, because one should not be able to evade constitutionally acceptable limits on speech and press by disguising a communication as a petition." Smith, supra note 14, at 1184. [FN161]. The approach that focuses on content rather than on the legitimacy of the petition at issue is the approach taken in the cases discussed in subpart IV.A. [FN162]. While the Court has clearly held that public employment cannot be "conditioned upon the surrender of constitutional rights which could not be abridged by direct action," Keyishian v. Board of Regents, 385 U.S. 589, 605 (1967), it also made clear in Pickering v. Board of Educ., 391 U.S. 563 (1968) , that "it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Pickering, 391 U.S. at 568. In a recent case, the Court discussed the rationale for allowing government-as-employer to exercise some power over citizen-employees that it would be barred from exercising absent the employment relationship: The key to First Amendment analysis of government employment decisions, then, is this: The government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. The government cannot restrict speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate. Waters v. Churchill, 114 S. Ct. 1878, 1888 (1994). [FN163]. See supra notes 84-88 and accompanying text. [FN164]. In Pickering, the Court defined the task before it as one of seeking "a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." 391 U.S. at 568. For a discussion of Pickering and related cases, see supra notes 61-74 and accompanying text. [FN165]. See Massaro, supra note 44, at 61. [FN166]. See, e.g., Belk v. Town of Minocqua, 858 F.2d 1258, 1262 (7th Cir. 1988) ("Because Belk was an 'at will' employee, the Town Board could have terminated Belk's employment at any time, and for any reason or for no reason at all. The Town could not, however, terminate her employment because of her exercise or threatened exercise of a constitutionally protected right."). [FN167]. The Connick Court's emphasis on "the government's interest in the effective and efficient fulfillment of its responsibilities to the public" reveals the continuing power of the private sector vision in the Court's approach to public employment. Public Employment, supra note 44, at 1748 (quoting Connick v. Myers, 461 U.S. 138, 150 (1983)). For a broader discussion of the transformation in the Court's approach to public employment and the rights of public employees, see supra notes 44-49 and accompanying text. [FN168]. 1982 Term, supra note 59, at 164-65. The author of the compilation suggests that this distinction may also underlie both the majority and dissent's failure to "justify or even discuss the Court's explicit focus on the content of Myers' speech. If the government were acting in its capacity as governor, the Court's willingness to examine the content of employee speech would be particularly surprising in light of the Court's frequent pronouncements that content regulation is antithetical to the first amendment." Id. at 170 n.52; see also Estlund, supra note 58, at 2 (noting that Connick "introduced, for the first time in the history of modern First Amendment jurisprudence, an explicitly content-based category of privileged 'public issue' speech that alone is entitled to certain important protections"). [FN169]. An assumption underlying the Court's definition of Myers's speech as "personal" is that issues involving labor relations between a government employer and its employees are a "personal" matter. 1982 Term, supra note 59, at 170. This assumption may be ill-founded in light of the large number of Americans employed by government and the broad impact government-employee labor relations thus have. See infra notes 177-79 and accompanying text. [FN170]. The Court's view of the sovereign employer as little different than a private sector employer is also seen in the Court's broad deference to the sovereign employer's professed need for disciplinary discretion as a reason to restrict a citizen-employee's right to free speech. See supra notes 48-60 and accompanying text. [FN171]. 1982 Term, supra note 59, at 170. [FN172]. Id. (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974)). [FN173]. Discrimination by private employers is specifically barred by Title VII of the Act, 42 U.S.C.
2000e to 2000e-17 (1988 & Supp. V 1993). [FN174]. Alston v. School Bd., 112 F.2d 992, 994-96 (4th Cir. 1940); Mills v. Lowndes, 26 F. Supp. 792, 801 (D. Md. 1939). In Alston, the Fourth Circuit was unequivocal in holding government treatment of its citizen-employees subject to the Fourteenth Amendment, just as all government action is: There can be no doubt but that the fixing of salary schedules for the teachers is action by the state which is subject to the limitations prescribed by the 14th Amendment.... That an unconstitutional discrimination is set forth in these paragraphs hardly admits of argument. The allegation is that the state, in paying for public services of the same kind and character to men and women equally qualified according to standards which the state itself prescribes, arbitrarily pays less to Negroes than to white persons. This is as clear a discrimination on the ground of race as could well be imagined and falls squarely within the inhibition of both the due process and the equal protection clauses of the 14th Amendment. Alston, 112 F.2d at 994-96. And in Mills, the district court foreshadowed the Keyishian Court's rejection of the notion that "public employment, including academic employment, may be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action" when it stated: While the State may freely select its employees and determine their compensation it would, in my opinion, be clearly unconstitutional for a state to pass legislation which imposed discriminatory burdens on the colored race with respect to their qualifications for office or prescribe a rate of pay less than that for other classes solely on account of race or color. If therefore the state laws prescribed that colored teachers of equal qualifications with white teachers should receive less compensation on account of their color, such a law would clearly be unconstitutional. Mills, 26 F. Supp. at 801. [FN175]. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 588 (1972) (Marshall, J., dissenting). [FN176]. Id. [FN177]. Waters v. Churchill, 114 S. Ct. 1878, 1899 n.3 (1994) (Stevens, J. and Blackmun, J., dissenting) (citing the 1991 figure from U.S. Dept. of Commerce, Statistical Abstract of the United States, Table No. 500, p.318 (113 ed. 1993)). The number of public employees in the country is also apparently growing; at the time of the 1982 Census, 16 million Americans worked in the public sector. Massaro, supra note 44, at 6; see also 1982 Term, supra note 59, at 169 n.50 (noting that "by the mid-1970's nearly one out of every five nonagricultural workers in the United States was on a public payroll"). [FN178]. 1982 Term, supra note 59, at 169. [FN179]. See Massaro, supra note 44, at 6. [FN180]. See supra notes 14-38 and accompanying text. [FN181]. San Filippo v. Bongiovanni, 30 F.3d 424, 442 (3d Cir. 1994). While the First Amendment imposes this duty on the federal government, the Fourteenth Amendment imposes it on state and local governments. [FN182]. Note, supra note 12, at 1114-15. [FN183]. Id. at 1115. [FN184]. Id. [FN185]. Note, supra note 12, at 1115-18; see Spanbauer, supra note 12, at 17; Higginson, supra note 90, at 144-46 (discussing judicial petitioning in colonial America). [FN186]. See San Filippo, 30 F.2d at 441-42. Of course, the government is under no obligation to make the petition channel available to those communications that are not, in fact, true petitions, since such communications are not embraced by the Clause. See supra notes 151-60 and accompanying text. Thus, "sham" or baseless law suits and grievances do not qualify for this channel nor do they acquire the concomitant protection that accompanies the filing of a true petition. [FN187]. San Filippo, 30 F.3d at 442. The Third Circuit's analysis reveals that San Filippo and other public employee petition cases cannot easily be analogized to the situation presented in McDonald. The crucial distinction between these cases is that McDonald did not involve the question of whether the government could impose punishment against a petitioner. In McDonald, the only question was whether one defamed in a letter was barred from suing the writer because the letter had been addressed to the President and "could thus be characterized as a 'petition' within the meaning of the First Amendment." Id. at 442 n.21. As the Third Circuit correctly pointed out, in McDonald "the Court was not called upon [to] consider the question presented in the case at bar -- namely, whether the addressee of a 'petition' (in McDonald, the President) could sanction the letter-writer for pursuing a constitutionally charted pathway of communication with government." Id. [FN188]. The San Filippo court cited lawsuits, grievances, and workers compensation claims as "invoking a formal mechanism for redress of grievances against the government." San Filippo, 30 F.3d at 439 n.18. [FN189]. See also Spanbauer, supra note 12, at 49 ("As a component of the right to petition government, the First Amendment right of access to the courts should afford substantive protection to all who claim that state actors have retaliated against them for pursuing litigation, regardless of whether that litigation involves a private dispute, issues of public concern, an individual claim, or collective activity."). [FN190]. While the formally recognized procedure in San Filippo was the product of collective bargaining, the court's reasoning would seem also to apply to an exclusively recognized grievance procedure adopted unilaterally by the employer. In essence, that is what is involved in the waiver of sovereign immunity -- by waiving its immunity in court, the sovereign has formally adopted a mechanism for redress of grievances without consulting or bargaining with any other party. [FN191]. Belk v. Town of Minocqua, 858 F.2d 1258, 1262 (7th Cir. 1988). [FN192]. San Filippo, 30 F.3d at 442. [FN193]. Id. [FN194]. Smith, supra note 14, at 1178; see also Daniel R. Fischel, Antitrust Liability for Attempts to Influence Government Action: The Basis and Limits of the Noerr-Pennington Doctrine, 45 U. Chi. L. Rev. 81, 98 (1977) (stating that the right to petition ensures that "citizens can present grievances to their government" and that "government is informed"). For an early judicial recognition of the important role petitioning plays in restraining government misconduct, see Ambrosius v. O'Farrell, 119 Ill. App. 265, 270 (1905) (declaring petitioning to be a "wholesome restraint upon official corruption, extravagance, and maladministration," the court denied recovery for libel for a petition to the city counsel that alleged in good faith that a city official committed a crime). [FN195]. Eastway Constr. Corp. v. City of New York, 637 F. Supp. 558, 575 (E.D.N.Y. 1986). [FN196]. This is admittedly more difficult if the suit results in a full-scale trial. However, even a trial may not have the sort of direct impact on the day-to-day activities of a government office that the discussion of complaints among co-workers does. [FN197]. See supra notes 14, 34-38 and accompanying text. [FN198]. Id. [FN199]. 30 F.3d 424 (3d Cir. 1994). [FN200]. 472 U.S. 479 (1985). [FN201]. San Filippo, 30 F.3d at 443 (quoting McDonald, 472 U.S. at 482). [FN202]. As previously discussed, the Court's historical analysis of the Petition Clause, in McDonald as well as in other cases, has been criticized by a number of commentators as both incorrect and misleading. See supra notes 87-100 and accompanying text. [FN203]. Note that in McDonald, the Court was deciding a claim of absolute immunity to libel under the Petition Clause. Much of the Court's discussion therefore focused specifically on how early libel cases were decided and how libel was treated under the Clause, rather than on the broader history of the Clause. The Court's lack of attention to the broader history and meaning of the Clause makes lower courts' reliance on the McDonald dicta in Petition Clause cases even more questionable. Additionally, even the Court's narrowly focused historical analysis -- and its holding that absolute immunity is not provided by the Clause -- have been criticized. See supra note 89. [FN204]. San Filippo, 30 F.3d at 442-43 (quoting McDonald, 472 U.S. at 482). [FN205]. Id. (quoting McDonald, 472 U.S. at 482) (emphasis added). [FN206]. Id. at 443 (quoting 1 W. & M., 2d Sess., c.2,
5, 16 Dec. 1689). [FN207]. For a detailed discussion of the petition right's distinct history, see supra Part II. [FN208]. San Filippo, 30 F.3d at 443. [FN209]. Id. at 442. [FN210]. See Smith, supra note 14, at 1196 (noting that the Petition Clause's higher standard of protection applies only to "the core petitioning activities of drafting, circulating and presenting petitions ... ; other conduct, including holding public assemblies and publicizing the contents of petitions, should be judged under the less exacting standards that apply to speech, press, and assembly"). END OF DOCUMENT