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First Amendment

Law Prof Sees Need to Reinvigorate the Petition Clause

Posted Apr 10, 2012 5:30 AM CDT
By Debra Cassens Weiss

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The First Amendment’s petition clause isn’t getting the respect it deserves, according to University of Alabama law professor Ronald Krotoszynski Jr.

Today, the government is placing protesters “out of eyesight and earshot” at events such as nominating conventions and political appearances, Krotoszynski writes for the New York Times. Courts have generally allowed such approaches. In the U.S. Supreme Court, the clause hasn't been accorded much significance, Krotoszynski says. Decisions have deemed all First Amendment rights to be “cut from the same cloth” and therefore inseparable.

Krotoszynski disagrees. In his view, the right to petition is essential to the proper functioning of democracy. He points to the 1965 march from Selma to Montgomery. Part of the protest included a petition intended for Alabama Gov. George Wallace seeking protections for political and civil rights.

“What would have happened if Alabama, invoking ‘security concerns,’ had banished the Selma march and rally to a fairgrounds miles away from downtown Montgomery?” Krotoszynski asks. “The answer should be obvious.”

In Krotoszynski’s view, the petition clause should secure a right of reasonable access to the government and its officers. He endorses closer access to politicians for protesters, though he sees a need for security such as airport-style screening or limits on the number of protesters in a secured zone.

Some justices might be open to such an argument, Krotoszynski suggests. Justice Anthony M. Kennedy wrote in an opinion striking down a petition claim last year that there could be a case where the rights of free speech and petition might differ. “This suggests that the court could be sympathetic to carefully devised arguments focused on the right to petition,” Krotoszynski says.

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