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Abstract

This article focuses on the Petition Clause of the First Amendment to the U.S. Constitution and addresses a confounding situation caused by Supreme Court precedents that give greater protection to persons who engage in illegal business practices than to citizens who petition their governments. This dichotomy is especially detrimental to environmental protection.

The crux of the conflict lies in which standard courts should use to determine whether the petitioning activity is protected: the subjective Free Speech standard grafted onto Petition Clause activities or the objective standard initially developed by the Supreme Court for petition activities in antitrust cases. The result has been the application of the subjective standard for tort allegations, including business torts, and the objective standard for alleged illegal business practices.

The Supreme Court’s failure to protect petition activities in some cases has resulted in a phenomenon known as SLAPPs, Strategic Lawsuits Against Public Participation. The essential characteristic of these lawsuits is that the litigant, usually a business, does not bring the lawsuit to win; the lawsuit is brought to make it costly and difficult for the petitioner to protest for fear of being enmeshed in a protracted legal proceeding. Unfortunately, many environmental activists have tort claims brought against them, especially when the economic stakes are high. The difficulties presented in defending against tort allegations have significantly chilled citizen engagement with their governments on a variety of issues, but a major portion of SLAPPs involve environmental concerns.

This article also examines the myriad of state laws enacted to prevent chilling citizen petition activities, along with the recently released Uniform Public Expression Protection Act (UPEPA). Many states have enacted anti-SLAPP laws, but those laws vary widely plus not all states have them. The resulting gaps mean that the choice of forum has a significant impact on how protected a citizen’s petitioning activities are from a SLAPP. Widespread adoption of UPEPA should help to reduce some procedural differences by creating uniform rules for court management of these lawsuits. However, UPEPA’s definition section could perpetuate the disparate treatment of tort and illegal business petitioning activities.

To give citizens the full benefit of their rights under the Petition Clause, courts should create a uniform rule, applying the objective standard developed in antitrust cases to all Petition Clauses activities. This solution would raise a question with which the Supreme Court has struggled before: whether protections of the Speech and Petition Clauses should be treated the same. In the two Supreme Court decisions addressing this issue, the Court did so but clearly struggled to reach that conclusion in the more recent case. It also limited its holding to the situation presented in that case: whether an individual government employee could bring an employment claim under the Petition Clause that was barred by the Free Speech Clause.

The result of the Court’s application of Free Speech standards to Petition Clause cases brought by government employees, however, perpetuates an inequality in the application of the Petition Clause overall: greater protection for people who may engage in illegal business practices than for citizens seeking to protect the environment. To address the demonstrable and significant chilling effect on citizen participation in governance, courts should apply the objective Noerr-Pennington standard to Petition Clause cases related to all forms of governmental regulation.

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