ByJ.H . Sn ider, Ph .D.

Pres identiSo lon .o rg

Emai l : c o n tac t@ i so lo n .o r g

Presented a tHarvard Law Schoo l Luncheon Event

Sponsored by the Journa l o f Law and Techno logy Wassers te in Ha l l , Cambr idge , MA

September 20 , 2013

Updating Americans’ First Amendment Right to Petition Their

Government

Outline

Laws Protecting the Right to Petition (e.g., First Amendment)

History of the Right to PetitionPetition DefinitionsPetition PurposesThe White House’s We The Petition WebsitePrivate Petition ServicesCase Study: StartSchoolLater.netWhy the Growth in e-Petitions?Public Policy RecommendationsFailure in the Marketplace for Such Public Policy

Ideas

Laws Protecting the Right to Petition

• 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

• 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 policyIntermediate 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 Discouragement1830s Petition Crisis in Congress1836 Congressional Petition Gag Order (repealed in

1844)1830s British Parliament Refuses to Hear Petitions

Rise of Competing Institutions and TechnologiesExpanded suffrageShift to one-person, one-voteRise of political partiesRise of mass media (originally via the penny press)Rise of the post office and affordable mail

The White House’s We The Petition Website

• 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 PetitionsCreate a WhiteHouse.Gov accountSign a petition

Steps for Creating a Successful PetitionCreate a WhiteHouse.Gov accountCreate the petitionTo appear on the website, get 150 signatures

within 30 days of creating the petitionTo get a White House response, get 100,000

signatures within 30 days of creating the petition.

Creating a WhiteHouse.Go

v 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 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 serviceNo accessible record of technical problems and end

user complaintsNo 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 identificationFavors pre-existing organized interest groupsWhite 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.comand many others!

Problems

No guaranteed government influence (unlike We The People), which hinders signature gathering

No verifiable signature identificationOrganization 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 launched White House We the People Website

November 4, 2011: Started petition on Signon.org

June 28, 2012: Incorporated as a non-profitAugust 18, 2013: Fourth Washington Post

editorial supporting later high school start timesAugust 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, OHKimberly 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 HospitalLisa 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, CAAmy 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-FounderMaribel Ibrahim, Operations Director, Co-FounderKari Oakes, PA-C, Research/Development DirectorDolores Skowronek, Outreach Development DirectorMerry Eisner-Heidorn, Legislative DirectorLynn Keefe, MD, Health Policy DirectorCatherine Darley, ND, Publicity Co-DirectorHeather Macintosh, Publicity Co-DirectorAlex 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

• Not just the United States government adopting e-petitions.

• 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

• 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

https://petitions.whitehouse.gov

http://iSolon.org

http://StartSchoolLater.net

email: contact@isolon.org

For More Information