Updating Americans’ First Amendment
Right to Petition Their Government
By
J.H. Snider, Ph.D.
President
iSolon.org
Email: contact@isolon.org
Presented at
Harvard Law School Luncheon Event
Sponsored by the Journal of Law and Technology
Wasserstein Hall, Cambridge, MA
September 20, 2013
Outline
 Laws Protecting the Right to Petition (e.g., First
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Amendment)
History of the Right to Petition
Petition Definitions
Petition Purposes
The White House’s We The Petition Website
Private Petition Services
Case Study: StartSchoolLater.net
Why the Growth in e-Petitions?
Public Policy Recommendations
Failure in the Marketplace for Such Public Policy Ideas
Laws Protecting the Right to Petition
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The First Amendment (1791)
U.S. Declaration of Independence (1776)
State Constitutions such as Delaware (1776)
English Bill of Rights (1689)
The First Amendment (1791)
“Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or 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.”
U.S. Declaration of Independence (1776)
The capstone of the Declaration’s list of grievances:
“In every stage of these Oppressions We have
Petitioned for Redress in the most humble terms: Our
repeated Petitions have been answered only by
repeated injury. A Prince whose character is thus
marked by every act which may define a Tyrant, is
unfit to be the ruler of a free people.”
State Constitutions such as Delaware (1776)
“[E]very man hath a right to petition the Legislature
for the redress of grievances in a peaceable and orderly
manner.” (1776)
English Bill of Rights (1689)
“[I]t is the right of the subjects to petition the king,
and all commitments and prosecutions for such
petitioning is illegal."
Petition Definitions
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17th Century Definition of Petition
Contemporary Definition of Petition (Oxford)
Contemporary Definition of Petition (mine)
Change in Definitional Scope from 17th to 21st
Century
17th Century Definition of Petition
A petition is a written communication that 1) is
addressed to a government authority (such as a king),
2) states a grievance, and 3) prays for relief.
Source: Derived from Gregory A. Mark, “The Vestigial Constitution: The History
and Significance of the Right to Petition,” Fordham Law Review, Vol. 66, No. 6
(1998): 2173.
Contemporary Definition of Petition (Oxford)
“A formal written request, typically one signed by
many people, appealing to authority in respect of a
particular cause.”
Source: Accessed September 17, 2013,
http://oxforddictionaries.com/definition/english/petition
Contemporary Definition of Petition (mine)
A petition is a written communication from a
substantial number of constituents (e.g., 100,000 for
the We The People website) that 1) is addressed to a
government authority in the executive or legislative,
not judicial, branch, 2) states a general/public, not a
particular/private, grievance, and 3) seeks remedies
within the jurisdiction of the government authority.
(additional qualifications on the 17th century definition
are italicized).
Change in Definitional Scope
from 17th to 21st Century
 Blurred distinction between executive, legislative, and judicial
functions (e.g., at the time of the Magna Charta, the 13th Century, the
king provided all three functions).
 Blurred distinction between particularistic/private and general/public
petitions (e.g., U.S. state and local legislatures performed both
legislative and judicial functions as late as the mid-19th century).
 Those without suffrage such as women, poor whites, indentured
servants, slaves, and even native Americans were welcome to petition
(e.g., women’s 19th century slavery, suffrage, and prohibition petitions).
 Conclusion: Modern definition is much narrower in scope.
Petition Purposes
• Purposes of the Right to Petition
• The Purposes are Complementary
Purposes of the Right to Petition
 Ultimate Purpose: Reform government policy
 Intermediate Purpose: Establish credibility with
political intermediaries (e.g., the press, experts, and
other interest groups)
 Proximate Purpose: Solve collective action problems
The Purposes Are Complementary
 The three purposes are essential.
 Failure to address the proximate purpose is currently the
single largest failure of public petition policy.
 Just as the right of free speech and the right of assembly
may be assumed to have intrinsic value independent of
their effect on particular public policies, so does the right
of petition as a way to solve collective action problems.
 Petitions have value in establishing credibility with
intermediaries regardless of their impact on government.
 Current petition metrics are far too narrow and centered
on the ultimate purpose.
History of the Right to Petition
• Declining Importance of Petitions
• Declining Number of Petitions in Britain During
19th and early 20th Centuries
• Qualitative Changes in the Nature of Petitions
• Explanation of the Decline
The Declining Importance of Petitions
 In the 17th and 18th centuries, petitions were a vital
form of democratic public participation, even more
important than suffrage in some times and places.
 By the early 20th century, petitions had largely
become irrelevant to the democratic process or
conceived of as merely an aspect of other First
Amendment rights.
Declining Number of Petitions in Britain During
19th and early 20th Centuries
Note: The data are not weighted by England’s geometric population growth.
Nevertheless, by 1950, petitioning drops off to nearly nothing.
Source: Colin Leys, “Petitioning in the Nineteenth and Twentieth Centuries,”
Political Studies, Vol. III, No. 1 (1955).
Qualitative Changes in the Nature of Petitions
 Right to both a hearing and answer replaced by right
to only a hearing and then neither.
 Decline and elimination of the particularistic/private
petition.
 Shift from a multiplicity of petitions to a small
number of petitions with many signatures.
 Other forms of communication with government
come to the fore.
Explanation of the Decline
Legislative Discouragement
 1830s Petition Crisis in Congress
 1836 Congressional Petition Gag Order (repealed in 1844)
 1830s British Parliament Refuses to Hear Petitions
Rise of Competing Institutions and Technologies
 Expanded suffrage
 Shift to one-person, one-vote
 Rise of political parties
 Rise of mass media (originally via the penny press)
 Rise of the post office and affordable mail
The White House’s
We The Petition Website
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Home Page
First Amendment Explanation
Growth, as of Feb. 13, 2013
1st Year Anniversary Statistics, Sept. 24, 2012
Steps for Signing and Creating Petitions
Petition Accessibility and Procedural Transparency
Historical Significance
Failures
We The People
White House
Petition Website
“We the People is a
new, easy way for
Americans to make
their voice heard in our
government. It is a
platform on the White
House website where
individuals can create
and sign petitions that
call for action by the
federal government on
a range of issues facing
our nation. If a petition
gathers enough
signatures, it will be
reviewed by White
House staff and receive
an official response.”
The White House’s First Amendment Explanation
“The right to petition your government is guaranteed
by the First Amendment of the United States
Constitution. We the People provides a new way to
petition the Obama Administration to take action on a
range of important issues facing our country. We
created We the People because we want to hear from
you. If a petition gets enough support, White House
staff will review it, ensure it’s sent to the appropriate
policy experts, and issue an official response.”
Growth of We The People as of 27 Feb. 2013
Source: Macon Phillips, “Sunshine Week: In Celebration of Civic Engagement,” White House Blog, March 13, 2013.
Why the Sharp Break During Fall 2012?
 As the presidential election neared, the White House
stopped responding to petitions, partly to avoid political
controversy.
 Petition organizers didn’t know if the White House would
win a second term and meaningfully respond to their
petitions.
 The floodgates were released after the election, both
because the Obama administration responded to a large
backlog of petitions (thus generating lots of publicity for
the website) and petition organizers concluded that they
had a better chance of getting a meaningful response.
We The People Stats On Its 1 Year Anniversary
Source: Erin Lindsay, “Happy Birthday, We The People!,” White House Blog, September 24, 2012.
Highlights
 Less than a half of a 1% chance of creating a petition
that passes the signature threshold for getting a
White House response—and this was before the
White House quadrupled its signature threshold
from 25,000 to 100,000. The original signature
threshold during We The People’s first six weeks in
operation was 5,000.
 The explosion in signatures after the one year
anniversary does not appear to have translated into
more petitions passing the threshold for a White
House response.
Steps for Signing and Creating Petitions
Steps for Signing Petitions
 Create a WhiteHouse.Gov account
 Sign a petition
Steps for Creating a Successful Petition
 Create a WhiteHouse.Gov account
 Create the petition
 To appear on the website, get 150 signatures within 30
days of creating the petition
 To get a White House response, get 100,000 signatures
within 30 days of creating the petition.
Creating a
WhiteHouse.Gov
account
Giving the government
your email address is
mandatory. Votes
follow the email
address, not the person,
so the same person may
vote multiple times.
Petition Accessibility and
Procedural Transparency
 Prior to 30 day limit: all petitions that reach the 150
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signature threshold remain publicly accessible
After 30 day limit: all petitions that reach the
100,000 signature threshold (less than 1%) remain
publicly accessible (all other petitions disappear)
No accessible record of changes in terms of service
No accessible record of technical problems and end
user complaints
No accessible record of petitions rejected by the We
The People moderator before reaching the 150
signature threshold for public visibility.
Historical Significance
 First quantifiable right of hearing (with 150
signatures) in the history of the Federal government.
 First quantifiable right of answer (with 100,000
signatures) in the history of the Federal government
 First normative right of hearing and answer since
1836 (175 years ago)
Problems
 No verifiable signature identification
 Favors pre-existing organized interest groups
 White House controls email addresses and uses as
lobbying tool (the White House’s primary motivation
for maintaining the website?)
 White House controls the petition interface (e.g.,
libel risk cannot be outsourced, where it belongs)
 No checks & balances; poor transparency; all
statistical data vetted for its PR efficacy.
 Signers cannot add comments.
Private Petition Websites
• Organizations
• Problems
Organizations
 Change.org (a for-profit company)
 Care2.org (a for-profit company)
 Moveon.org (a non-profit; formerly Signon.org)
 GoPetition.com
 and many others!
Problems
 No guaranteed government influence (unlike We The
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People), which hinders signature gathering
No verifiable signature identification
Organization controls the e-mail addresses and either
charges the signature gatherer for them or uses them for
its own commercial or advocacy purposes
Either free with significant loss of control or paid and too
expensive for many grassroots advocacy groups
Terms of service may change after the petition is started
(e.g., SignOn.org changing its name to MoveOn.org)
Many potential signers mistrust promises about how
their email addresses will be used.
Case Study: Start School Later
(presented by Terra Ziporyn Snider, Ph.D.)
 StartSchoolLater.net’s Goal
 Chronology
• We the People Petition
• Signon.org Petition
• Nonprofit Incorporation
• Press Coverage
• Government Action
StartSchoolLater.net’s Goal
Ensure school start times compatible with
health, safety, education, and equity.
Chronology
 October 3, 2011: Started petition on the newly
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launched White House We the People Website
November 4, 2011: Started petition on Signon.org
June 28, 2012: Incorporated as a non-profit
August 18, 2013: Fourth Washington Post editorial
supporting later high school start times
August 19, 2013: Endorsement by Arne Duncan,
Secretary of the U.S. Department of Education
October 3, 2011:
Started We the People Petition (Expired 11/4/2011)
November 4, 2011:
Started Signon.org (now Moveon.org) Petition
June 28, 2012:
StartSchoolLater.net Incorporation
Board of Advisors
Dean Beebe, PhD, Associate Professor of Pediatrics and Director, Neuropsychology Program, Cincinnati
Children’s Hospital, Cincinnati, OH
Kimberly Charis, Project Associate, Center for Safe and Healthy Schools, National Association of State
Boards of Education, Arlington, VA
Michael Dubik, MD, Pediatric Sleep Physician, Naval Medical Center, Norfolk, VA
Lisa Ehrlichman, RN, M.Ed Chair for Adolescent Health, California School Nurses Organization, and
Psychiatric Nurse Practitioner, San Diego, CA
Allison Harvey, PhD, Professor of Clinical Psychology, Clinical Psychologist, and Director of the Golden
Bear Sleep and Mood Research Clinic and the University of California, Berkeley.
Christopher Herrera, PhD, Sleep Researcher, Aspetar - Qatar Orthopaedic and Sports Medicine Hospital
Lisa J. Meltzer, PhD, Sleep researcher and clinician,
Department of Pediatrics, National Jewish Health, Denver, CO
Edward O'Malley, PhD, Managing Director, Sleep HealthCare of Connecticut
Steven Lockley, PhD, Associate Professor of Medicine, Harvard Medical School; Neuroscientist, Division
of Sleep Medicine, Department of Medicine, Brigham and Women's Hospital
Wilfred R. Pigeon, PhD. Director, University of Rochester Sleep & Neurophysiology Lab, Rochester, NY
Kathy Ryan, MSN, PHN, FNP, President, San Diego/Imperial Section, California School Nurses
Organization and School Nurse, Lincoln High School Wellness Center, San Diego, CA
Amy Wolfson, PhD, Professor of Psychology at the College of Holy Cross, Worcester, MA, and author
of The Woman's Book of Sleep: A Complete Resource Guide.
June 28, 2012:
StartSchoolLater.net Incorporation
Executive Staff
Terra Ziporyn Snider, PhD, Executive Director, Co-Founder
Maribel Ibrahim, Operations Director, Co-Founder
Kari Oakes, PA-C, Research/Development Director
Dolores Skowronek, Outreach Development Director
Merry Eisner-Heidorn, Legislative Director
Lynn Keefe, MD, Health Policy Director
Catherine Darley, ND, Publicity Co-Director
Heather Macintosh, Publicity Co-Director
Alex Pratt, Student Advocacy Director
August 18, 2013:
Washington Post’s 4th Editorial Endorsement
“Bleary-eyed teenagers cannot possibly be at their best
when, as is the case in several school districts in
Maryland and Virginia, they are expected to rise as
early as 5:45 a.m. to meet their buses every weekday.
It’s in the best interest of students, teachers,
administrators and parents that this problem be
addressed.”
August 19, 2013:
U.S. Secretary of Education Arne Duncan Endorsement
Arne Duncan Tweets:
September 4, 2013:
U.S. Secretary of Education Arne Duncan Endorsement
Arne Duncan on NPR:
“There's lots of research and common sense that a lot
of teens struggle to get up at 6 in the morning to get on
the bus or 5:30 in the morning to get on the bus…. At
the end of the day, I think it's incumbent upon
education leaders to not run school systems that work
good for buses but that don't work for students."
The Worldwide Growth of
ePetitions
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Not just the United States government adopting epetitions.
Why the growth of e-petitions?
Other Countries Adopting e-Petitions
 Countries
 England
 Germany
 Latvia
 Sub-Units of Countries
 Scottish Parliament (England)
 Welsh Parliament (England)
 Wellington City Council (New Zealand)
Why the Growth of ePetitions?
 New technology reduces the cost of petitioning
 Signing
 Marketing to potential signers (e.g., via social media)
 New technology creates synergy between petitioning
and other information campaign activities (e.g., via
the collection and use of email addresses)
 Declining distinctiveness of mail campaigns as mail
and petitioning technologies converge
Public Policy Recommendations
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Verifiable signature identification (as a basic right)
Checks & balances accountability (e.g., transparency,
terms of service, email use)
Timing restrictions: presidential term, not 30 days
Range of right to hearing and answer
Petition organizer controls email addresses
Formal petition process in Congress/legislatures
Separate petition data from interfaces (this is the
most important reform!)
Failure in the Marketplace for
Such Public Policy Ideas
• Two types of theories to explain market failure in
public policy ideas: demand versus supply
• Supply problems may be greatest for non-intuitive
public policy ideas (e.g., interdisciplinary ideas, such
as petition policy, involving new uses of technology)
• My new Harvard Safra Center suppy-side paper: “Think
Tanks’ Dirty Little Secret: Power, Public Policy, & Plagiarism”
• Hopefully, interdisciplinary institutions such as JOLT
and Berkman help solve such incentive problems
For More Information
https://petitions.whitehouse.gov
http://iSolon.org
http://StartSchoolLater.net
email: contact@isolon.org