Recognizing the Right to Petition for Victims of Domestic Violence

Fordham Law Review Fordham Law Review

Volume 81 Issue 2 Article 14

2012

Recognizing the Right to Petition for Victims of Domestic Recognizing the Right to Petition for Victims of Domestic

Violence Violence

Tamara L. Kuennen

University of Denver Sturm College of Law

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Recommended Citation Recommended Citation

Tamara L. Kuennen,

Recognizing the Right to Petition for Victims of Domestic Violence

, 81 Fordham L.

Rev. 837 (2013).

Available at: https://ir.lawnet.fordham.edu/5r/vol81/iss2/14

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837

ARTICLES

RECOGNIZING THE RIGHT TO PETITION FOR

VICTIMS OF DOMESTIC VIOLENCE

Tamara L. Kuennen*

Like any citizen, a victim of domestic violence (DV) may call the police

for help when she needs it. And yet, when a victim calls the police, she not

only seeks law enforcement assistance but also invokes her constitutional

right to seek one of the most fundamental services the government can

provide—protection from harm. That right, recently described by the

Supreme Court as “essential to freedom,” is the right “to petition the

Government for a redress of grievances” guaranteed by the First

Amendment.

This Article argues that a combination of law and policy initiatives

produces negative collateral consequences for DV victims that flow directly

from calling the police, thereby creating an impediment to the right of

victims to petition. The vast majority of DV victims do not report the

violence to the police. Feminist legal scholars and policymakers widely

acknowledge that this underreporting is a major roadblock to the justice

system’s ability to effectively address DV.

The underreporting problem is most severe with battered mothers. In

many jurisdictions across the country, police report battered mothers to

Child Protective Services (CPS) as a matter of course, without any

investigation of actual risk to the child. The practice serves a well-

intentioned goal: by referring all DV cases to CPS, the police bring to the

attention of the state at-risk children who might otherwise fall under the

radar. However, given the notorious treatment of DV victims and their

children by CPS, a significant number of victims choose not to call the

police at all, for fear of having their children taken away.

In addition to the chilling effect on victims’ calls for help, a sweeping

practice of reporting all DV calls to CPS inundates the agency with reports

it must, by law, investigate. In the last decade, 60 percent of the reports

* Associate Professor of Law, University of Denver Sturm College of Law. I am grateful to

Arthur Best, Deborah Cantrell, Alan Chen, Margaret Drew, Deborah Epstein, Eric Franklin,

Brittany Glidden, Phyllis Goldfarb, Leigh Goodmark, Nancy Leong, Kevin Lynch, Binny

Miller, Helen Norton, Jane Stovall, and Lindsey Webb for their thoughtful comments, and to

Hannah Misner, Rachel Kranz, Drew Quisenberry, and Katie Stevenson for their invaluable

research.

838 FORDHAM LAW REVIEW [Vol. 81

made each year were unsubstantiated. While an across-the-board, “report-

all” policy may be motivated by a praiseworthy goal, a reporting practice

that produces fewer, but more accurate, referrals to CPS would provide

greater protection to children. The Petition Clause requires as much.

This Article lays out the claim that these systemic barriers to reporting

DV create such a significant impediment to calling the police that they

violate the right to petition. It first defines the right to petition, reviews its

history and purpose, and demonstrates that it has been overshadowed by,

and confused with, the right to speech. Building on the growing body of

scholarly literature suggesting that this should not be so, the Article shows

that, while the rights of speech and petition overlap, they are not

coextensive. Judicial analysis of the right to petition should not be identical

to that of speech. Rather, in evaluating petition claims by DV victims, the

courts should apply strict scrutiny analysis: only by proving a compelling

state interest and the use of the least restrictive means for achieving that

interest should government policies that infringe upon a victim’s right to

call the police survive. Furthermore, even under a less-than-strict level of

scrutiny, the report-all practice should be unconstitutional. The Article

concludes by identifying other government practices that deter victims’

reports that might implicate the Petition Clause. It then discusses the

broader, political implications of viewing a call to the police as an

invocation of a constitutional right to petition and makes the case that the

right to petition has as of yet untapped potential for feminist legal scholars

and policymakers addressing DV.

ABLE OF CONTENTS

NTRODUCTION .......................................................................................... 839

THE RIGHT TO PETITION ....................................................................... 842

A. The Right to Petition in the Context of DV ............................... 843

B. Text and History of the Right to Petition .................................. 845

C. Purpose of the Right to Petition ............................................... 848

D. Supreme Court Doctrine Blurs the Rights of Petition and

Speech ..................................................................................... 852

II.

ANALYZING WHAT LEVEL OF SCRUTINY OUGHT TO APPLY TO

VICTIM’S RIGHT TO PETITION ..................................................... 856

A. Establishing the Burden ............................................................ 857

B. Analyzing the Burden ................................................................ 861

1. Rationales for Heightened Scrutiny in Speech Cases ........ 861

2. Application of Strict Scrutiny ............................................ 866

3. Application of a Balancing Test......................................... 868

a. Co-occurrence of DV and Child Abuse ........................ 870

b. Direct Physical Injury to a Child. ................................ 872

c. The Harm of Witnessing DV ......................................... 873

2012] RECOGNIZING THE RIGHT TO PETITION 839

d. Children Who Are Abused by Their Caretakers Are

the Least Likely to Report the Abuse; Thus the State

Must Cast Its Net Wide to Bring These Children to

the Attention of CPS ................................................... 875

III.

LARGER IMPLICATIONS FOR VIEWING A DV VICTIM’S CALL TO

THE POLICE AS EXERCISING HER RIGHT TO PETITION .................. 877

ONCLUSION ............................................................................................. 884

NTRODUCTION

Like any citizen, a victim of domestic violence (DV) may call the police

for help when she needs it. And yet, when a victim calls the police she not

only seeks law enforcement assistance, but also invokes her constitutional

right to seek one of the most fundamental services the government can

provide—protection from harm. That right, recently described by the

Supreme Court as “essential to freedom,”

is the right “to petition the

Government for a redress of grievances” guaranteed by the First

Amendment.

The vast majority of DV victims do not report the violence to the police.

As I have written elsewhere, many victims are reluctant to report for myriad

personal and relational reasons.

These reasons do not implicate the

Petition Clause. But when the government—via law, policy, or practice—

deters victims from reporting, the government’s actions raise constitutional

concerns. This Article argues that a combination of law and policy

initiatives produces negative collateral consequences on DV victims that

flow directly from calling the police, thereby creating an impediment to the

right of victims to petition.

The Article focuses on a specific police practice to explore in depth how

a victim’s right to petition is unconstitutionally burdened. In numerous

jurisdictions across the country, when police respond to the scene of DV,

1. Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2491 (2011).

2. U.S.

CONST. amend. I. This Article refers to this clause as the Petition Clause.

3. See K

ERRY MURPHY HEALEY & CHRISTINE SMITH, U.S. DEP’T OF JUSTICE, BATTERER

PROGRAMS: WHAT CRIMINAL JUSTICE AGENCIES NEED TO KNOW 2 (1998), available at

https://www.ncjrs.gov/pdffiles/171683.pdf (“[A]s many as six in seven domestic assaults go

unreported.”); P

ATRICIA TJADEN & NANCY THOENNES, U.S. DEP’T OF JUSTICE, EXTENT,

NATURE, AND CONSEQUENCES OF INTIMATE PARTNER VIOLENCE: FINDINGS FROM THE

NATIONAL VIOLENCE AGAINST WOMEN SURVEY 49–50 (2000), available at

http://www.ncjrs.gov/pdffiles1/nij/181867.pdf (finding that 17.2 percent of women raped by

an intimate partner reported the most recent incident to the police and 26.7 percent of women

physically assaulted by an intimate partner reported the most recent incident to the police).

4. See Tamara L. Kuennen, Private Relationships and Public Problems: Applying

Principles of Relational Contract Theory to Domestic Violence, 2010 BYU

L. REV. 515,

531–32 (reporting that many victims wish to preserve, rather than sever, their relationships

for a variety of personal reasons well-documented in the scholarly literature, including love

for the partner, dependence on him for economic security, and fear of losing custody of

children, to name but a few, and arguing that because the justice system views separation as

the only solution to DV, women who are not willing or able to separate choose not to report

or otherwise seek the assistance of the state to redress the violence).

840 FORDHAM LAW REVIEW [Vol. 81

they reflexively report the presence of a child to Child Protective Services

(CPS); this report is made as a matter of course, without an investigation of

the actual risk to the child.

In some instances, police make reports to CPS

even if the children are not present in the home, and even if the perpetrator

does not live in the home.

5. See Telephone Interview with Gerard Asselin, Sergeant, Anchorage Police Dep’t

(Nov. 29, 2010) (notes on file with author for all calls cited herein) (“Our policy is, if parties

involved in a DV call have children, whether or not children are directly involved, the

officers must make notification to OCS—to clarify, either party involved can have a child—

they need not necessarily have children together. Basically, if either party involved in a DV

call has a child, OCS must be notified.”); Email from Becky Buttram, Detective,

Indianapolis Metro. Police Dep’t (Dec. 14, 2010) (on file with author) (“I know personally,

that in the time that MCSD had a DV unit, all DV cases were referred to Child Protective

Services for follow up that involved children present.”); Telephone Interview with Don

Ciardella, Inspector, S.F. Police Dep’t (Dec. 29, 2010) (“More often than not, officers will

report if the child was present at the incident . . . .”); Telephone Interview with Carol

Horowtiz, Santa Fe Police Dep’t (Jan. 5, 2011) (“By protocol, officers are always supposed

to notify our Child Youth and Family Department if there is a child at the scene of domestic

violence.”); Telephone Interview with Tina Jones, Sergeant, Domestic Violence Unit,

Portland, Or. Police Dep’t (Dec. 29, 2010) (“I can tell you that all of our domestic violence

reports where children are listed are cross-reported to human services.”); Telephone

Interview with Mike Kellog, Detective, Denver Police Dep’t (Dec. 22, 2010) (“If there is a

child present, Human Services will definitely know about it because officers have to note it

on the report. . . . [T]he number one goal is safety for the kids, and Human Services will

probably find out about it and decide what to do.”); Email from Coleen Kohtz, Dep’t of

Family & Children’s Servs. Law Enforcement Liaison, San Jose Police Dep’t Family

Violence Unit (Feb. 11, 2010) (on file with author) (“Currently SJPD cross reports all

Domestic Violence where children are present to Santa Clara County DFCS.”); Telephone

Interview with Amy Lutz, Officer, Research & Planning Unit, Phila. Police Dep’t (Apr. 20,

2010) (“When we get a call to the scene and are told children are there we refer to DHS.”);

Email from Michelle L. Robinson, Lieutenant, D.C. Metro. Police Dep’t (Dec. 8, 2010) (on

file with author) (“I recently received information that the department is currently working

with our Child and Family Services Agency in drafting directives that require officers to

make notification to CFSA.”); Telephone Interview with Ashley Spinney, Victims’

Assistance Intern, Detroit Police Dep’t (Dec. 15, 2010) (“If there was a child involved in any

way we see if it was already reported by looking at that file number, and if not, we will

report it ourselves. . . . If an officer didn’t see the child himself, but knew the parties have a

child in common, they would note that. . . . This is the same if only one of the parties has a

child, whether the child was present or not.”); Telephone Interview with Sylvia Vella,

Detective, San Diego Police Dep’t (Dec. 7, 2010) (“These situations are cross-reported with

CPS—if we get a call, say you and your husband are fighting and you have a four year old,

that report will get cross-reported with CPS. . . . There is mandatory reporting to CPS even

if only one party to the incident had a child, and that child was not in the home. Because

statistically, the danger to a child that is not the perpetrator’s goes up—so if there is an

incident in the home and say the child was staying with his biological dad that night—it will

be reported to CPS and added that the child was not there—but CPS will interview the kid to

see if maybe the child was present at other incidents when the police were not called—so

CPS will investigate and build a case. We’re actually seeing now in San Diego, where CPS

is demanding that the victim, male or female, seek a restraining order to keep perpetrator out

of home or else CPS will take the kids.”); See also Minneapolis Police Dep’t, MPD Policy &

Procedure Manual, MinneapolisMN.com, § 7-314 (Mar. 14, 2012), http://www.minneapolis

mn.gov/police/policy/mpdpolicy_7-300_7-300 (“In all cases of domestic violence or alleged

acts of domestic abuse, a CAPRS report and supplement shall be completed immediately.”).

6. In addition to the comments of Detective Sylvia Vella of the San Diego Police

Department and Victims’ Assistance Intern Ashley Spinney of the Detroit Police

Department,

supra note 5, perhaps the most widely publicized example of this police

2012] RECOGNIZING THE RIGHT TO PETITION 841

Given the notorious treatment of DV victims and their children by CPS, a

significant number of victims choose not to call the police for help, for fear

of having their children taken away. As one woman stated:

It does more damage to call the police . . . . The call to the police opened

up so many doors. Then I had three different services watching me and

with the kids. Child protective put me at risk for losing my children; they

said, next time they’ll take the kids! I always thought the police were

there to help me. I would never call them again.

I argue that the sweeping practice of reporting all DV calls to CPS, rather

than a more discerning policy that would require assessment of actual risk

to a child, violates the victim’s First Amendment right to petition because it

substantially deters victims from contacting the police at all. The petition

right guarantees citizens access to their government; as such, it is

fundamental to self-governance and democracy. In the context of DV, it is

fundamental to life itself.

After defining the right to petition and reviewing its history and purpose,

I explain in Part I why the right is the “unknown soldier” of the First

Amendment,

focusing particularly on how it has been overshadowed by

and frequently confused with the right of free speech. Building on the

growing body of scholarly literature suggesting that this should not be so, I

argue that while the rights of speech and petition overlap, they are not

coextensive.

In Part II, I argue that for this reason the right to petition, a separately

enumerated right in the text of the First Amendment with a distinct history

and purpose, deserves a distinct judicial analysis. And that the level of

judicial scrutiny applied to the right should be strict: only by proving a

compelling state interest and the least restrictive method for achieving that

interest should the government be permitted to infringe upon a citizen’s

right to petition. Applying this analysis to the police’s “report-all” policy, I

conclude that the policy clearly violates the Petition Clause. I also conclude

that even if the Supreme Court were to misapply a more deferential less-

than-strict scrutiny analysis using a more open-ended balancing test, a

sweeping “report-all” policy is unconstitutional.

Finally, in Part III, I discuss the broader implications of viewing a

victim’s call to the police as an invocation of a constitutional and political

right, deserving of the same respect as other First Amendment rights.

Implicitly, the federal Violence Against Women Act

(VAWA) has

practice occurred in the case of Shawrline Nicholson, named plaintiff in the class action on

behalf of battered mothers in New York City. See Nicholson v. Williams, 203 F. Supp. 2d

153 (E.D.N.Y. 2002); infra Part II.B. One of Shawrline’s two children was not at home

when the father of her child assaulted her; nonetheless, the police reported to the local CPS

office, who immediately removed the child from her care. Id. at 169–70.

7. Donna Coker, Crime Control and Feminist Law Reform in Domestic Violence Law:

A Critical Review, 4

BUFF. CRIM. L. REV. 801, 834 & n.128 (2001).

8. See infra note 12 and accompanying text.

9. Pub. L. No. 103-322, 108 Stat. 1902 (1994) (codified as amended in scattered

sections of the U.S. Code). VAWA has been reauthorized twice, most recently in 2005. See

842 FORDHAM LAW REVIEW [Vol. 81

addressed burdens on victims’ right to petition in the contexts of housing

and immigration laws. The Act amended federal housing law that once

allowed landlords to evict victims of DV who called the police for help;

similarly, it amended immigration laws that deterred undocumented

immigrant victims from calling the police for fear of being deported.

This

section argues that numerous other government practices that deter victims

from accessing the government fall within the ambit of the Petition Clause.

Indeed, the Petition Clause has the untapped potential to protect against

even the day-to-day, hostile treatment of victims by police, court clerks, and

other state actors—a remarkably powerful deterrent to reporting, but one

that has proven difficult to prevent or redress.

While viewing a DV victim’s request for assistance from the government

as invoking a constitutional and political right has the potential to command

the same respect and deference as that of other First Amendment rights, the

Article concludes with a cautionary note. Bolstering a DV victim’s right to

access the justice system, and particularly to call the police, could have the

unintended consequence of diminishing her ability to privately order her

intimate relationships and life. Victims of DV should not be forced to call

the police; rather, victims of DV should be able to petition the government

for redress, if they so choose, in the same way that victims of stranger-

violence may do and in the same way that any ordinary citizen may do.

THE RIGHT TO PETITION

The First Amendment of the U.S. Constitution reads: “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.”

Despite the fact that the right to petition is, on the face of the First

Amendment, a separately enumerated right, it has been described as the

“unknown soldier” of the First Amendment guarantees.

This is largely

attributable to the Supreme Court’s blurring of the right to petition with the

right to free speech in its First Amendment jurisprudence.

Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L.

No. 109-162, 119 Stat. 2960 (2006).

10. See infra Part III.

11. U.S.

CONST. amend. I.

12. See

GEORGE W. PRING & PENELOPE CANAN, SLAPPS GETTING SUED FOR SPEAKING

UT 16, 18 (1996) (describing the right to petition as the “‘unknown soldier’ of the Bill of

Rights” and positing that it is “seldom thought of or relied on by the politically active . . .

perhaps because ‘the right to petition appears so much a part of everyman’s constitutional

instinct that he is hardly aware of its existence at the time he is most involved in an exercise

of the right’” (quoting D. Smith, The Right to Petition for Redress of Grievances:

Constitutional Development and Interpretations 151 (1971) (unpublished dissertation, Texas

Tech University))).

13. See infra Part I.D.

2012] RECOGNIZING THE RIGHT TO PETITION 843

In this section I define the right and explain its significance in the context

of DV. I then make the case that while the rights of petition and speech

overlap, they are not coextensive, as the history and purpose of the Petition

Clause illustrate. The Supreme Court has not clearly articulated what level

of judicial scrutiny applies to government infringements on an individual’s

right to petition. Indeed, as illustrated by its most recent Petition Clause

decision, the Court sometimes treats the right identically to the right to

speech, while other times it does not. I argue that as a distinct, explicitly

enumerated right, the right to petition deserves separate judicial analysis.

A. The Right to Petition in the Context of DV

The Petition Clause provides citizens

with the fundamental right to ask

the government to redress wrongs.

“Petitioning is the act of presenting a

communication” to any branch of government to seek redress of a

grievance

—which could either be a dispute between individuals or a

dispute with the government

—and encompasses any attempt of an

individual to seek the government’s assistance or action.

Lobbying the

legislature for a change in law and writing a letter to the governor to request

relief are clear examples of petitioning activity.

So too is reporting a

crime to the police.

14. Noncitizens also arguably hold this right. See Michael J. Wishnie, Immigrants and

the Right to Petition, 78 N.Y.U.

L. REV. 667 (2003).

15. See Carol Rice Andrews, After BE & K: The “Difficult Constitutional Question” of

Defining the First Amendment Right to Petition Courts, 39

HOUS. L. REV. 1299 (2003)

[hereinafter Andrews, After BE & K]; Carol Rice Andrews, A Right of Access to Court

Under the Petition Clause of the First Amendment: Defining the Right, 60 OHIO ST. L.J. 557

(1999) [hereinafter Andrews, A Right of Access]; Stephen A. Higginson, A Short History of

the Right to Petition Government for the Redress of Grievances, 96

YALE L.J. 142 (1986);

Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right to

Petition, 66

FORDHAM L. REV. 2153 (1998); Wishnie, supra note 14.

16. Wishnie, supra note 14, at 668.

17. See 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, 28 (1993)

(describing the history of petitioning and its particular inclusion of private disputes between

individual parties as grievances for which redress could be sought).

18. See

PRING & CANAN, supra note 12, at 16 (“Today, [the right] covers any peaceful,

legal attempt to promote or discourage government action at any level (federal, state, or

local) and in any branch (legislative, executive, judicial, and the electorate).”).

19. See, e.g., McDonald v. Smith, 472 U.S. 479, 484 (1985) (holding a letter to a

governor is a petition); E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S.

127, 138 (1961) (holding legislative lobbying falls squarely within petitioning activity).

20. See, e.g., Meyer v. Bd. of Cnty. Comm’rs, 482 F.3d 1232, 1243 (10th Cir. 2007)

(concluding that filing a criminal complaint is an exercise of the First Amendment right to

petition); Gable v. Lewis, 201 F.3d 769, 771 (6th Cir. 2000) (“[S]ubmission of complaints

and criticisms to nonlegislative and nonjudicial public agencies like a police department

constitutes petitioning activity protected by the petition clause”); Seamons v. Snow, 84 F.3d

1226, 1238 (10th Cir. 1996) (stating that denying the ability to report physical assaults is an

infringement of protected speech); Estate of Morris v. Dapolito, 297 F. Supp. 2d 680, 692

(S.D.N.Y. 2004) (concluding that swearing out a criminal complaint against a high school

teacher for assault and seeking his arrest were protected First Amendment petitioning

activities); Lott v. Andrews Ctr., 259 F. Supp. 2d 564, 568 (E.D. Tex. 2003) (“There is no

844 FORDHAM LAW REVIEW [Vol. 81

When a victim of DV calls the police for help, she invokes her right to

petition the government for one of the most fundamental services it can

provide: protection from bodily harm. Two scholars have examined a DV

victim’s call to the police as a petition to the government for redress.

Both focused on the specific context of housing laws and policies that

infringe the right. Lenora Lapidus documented the phenomenon of

landlords and housing authorities evicting victims of DV for calling the

police to their homes.

She argued: “If a battered woman is evicted after

the housing authority learns of the abuse as a result of police activity . . .

she is essentially being punished for exercising her right to petition . . . .”

The result is that battered women are more likely to hide rather than report

abuse,

jeopardizing the “gains made over the last three decades in creating

opportunities for women to obtain governmental protection through arrest

laws.”

Cari Fais extended Lapidus’s argument to nuisance abatement

ordinances that similarly require landlords to evict tenants who repeatedly

call the police to their homes.

Both scholars concluded that a Petition Clause claim would be novel, and

worthy of exploration in the context of DV. While Lapidus and Fais

advanced a creative idea, they did not analyze the right, and more

importantly, they did not theorize what level of judicial scrutiny should

apply.

This Article seeks to fill that gap, building upon a more

generalized body of First Amendment right of petition scholarship.

doubt that filing a legitimate criminal complaint with law enforcement officials constitutes

an exercise of the First Amendment right”); United States v. Hylton, 558 F. Supp. 872, 874

(S.D. Tex. 1982) (“[T]he filing of a legitimate criminal complaint with local law

enforcement officials constitutes an exercise of the [F]irst [A]mendment right.”); Curry v.

Florida, 811 So. 2d 736, 743 (Fla. Dist. Ct. App. 2002) (finding that complaints, even though

numerous, made to law enforcement agencies are protected First Amendment activity

regardless of the “unsavory motivation” of petitioner); Arim v. Gen. Motors Corp., 520

N.W.2d 695 (Mich. Ct. App. 1994) (per curiam) (granting summary judgment to individuals

who were sued for their participation in a criminal sting operation run based on the First

Amendment).

21. See Lenora M. Lapidus, Doubly Victimized: Housing Discrimination Against

Victims of Domestic Violence, 11 A

M. U. J. GENDER SOC. POL’Y & L. 377 (2003); Cari Fais,

Note, Denying Access to Justice: The Cost of Applying Chronic Nuisance Laws to Domestic

Violence, 108 C

OLUM. L. REV. 1181 (2008).

22. See Lapidus, supra note 21, at 384 (arguing that discrimination is not limited to

eviction, but occurs “in a variety of other ways and at various stages of the housing process,”

including the application process, the terms and conditions of tenancy, and transfer from one

public housing complex to another).

23. Id. at 383 (“In turn, other battered women may be wary of seeking assistance from

law enforcement and the legal system for fear of similar reprisal, thus effecting a chill of the

exercise of their First Amendment rights.”).

24. Id. at 378.

25. Id. at 384.

26. See Fais, supra note 21.

27. I note, however, that Lapidus implies that some tier of intermediate scrutiny applies,

for she characterized the housing authority’s interest as a “substantial interest” and argued

that the government practice at issue “restricts more petitioning activity than necessary to

achieve the government’s objectives.” Lapidus, supra note 21, at 384. These terms, in

accordance with modern right-to-speech doctrine, are synonymous with some tier of

2012] RECOGNIZING THE RIGHT TO PETITION 845

B. Text and History of the Right to Petition

The Petition Clause has been characterized as oft-forgotten,

constitutional footnote,

and the poor stepchild of the First Amendment.

Yet over the years a number of scholars have extensively traced its

history,

and recently there is movement afoot to revive it.

These

scholars argue that the text, history, and purpose of the Petition Clause

illustrate the distinct and separate status that the right to petition deserves,

but has not been given.

The text of the First Amendment is unambiguous: it sets forth a right, in

a separate clause, which extends beyond the right of free speech. It

promises “that a particular audience—‘the government’—is forever open to

hear a specialized kind of expression—‘a petition . . . for a redress of

grievances.’”

Though the right of free speech has taken center stage in

First Amendment jurisprudence, scholars argue that there is no reason that

this should be so: “Just as each and every part of the Fifth Amendment and

the Fourteenth Amendment enjoys individualized exegeses, independent

intermediate scrutiny. Lapidus likely means something akin to what is applied to content-

neutral regulations of speech. In short, Lapidus assumes that something-less-than-strict

judicial scrutiny applies. See id. at 384. Fais, on the other hand, argued that the term

“abridge” in the Petition Clause “is ‘to reduce in scope’ or ‘diminish,’” and thus any

diminishment of a victim’s ability to report her victimization to the police is

unconstitutional. See Fais, supra note 21, at 1222 (“Those defending against a right to

petition theory might say that the burden is slight compared with the governmental

objectives of conserving resources to make sure that police service are available to all people

in need . . . . However, the plain meaning of the word abridge is ‘to reduce in scope’ . . . .”).

28. See Ronald J. Krotoszynski, Jr. & Clint A. Carpenter, The Return of Seditious Libel,

55 UCLA

L. REV. 1239, 1239 (2008).

29. See id. at 1304.

30. See Ashutosh Bhagwat, Associational Speech, 120 Y

ALE L.J. 978, 980 (2011).

31. For detailed histories, see generally R

ONALD J. KROTOSZYNSKI, JR., RECLAIMING THE

PETITION CLAUSE (2012); Andrews, A Right of Access, supra note 15; Higginson, supra note

15; Mark, supra note 15; Spanbauer, supra note 17.

32. See K

ROTOSZYNSKI, supra note 31 (application of the right to alternative dispute

resolution); Krotoszynski & Carpenter, supra note 28 (arguing for Petition Clause

application to political protests); James E. Pfander, Sovereign Immunity and the Right to

Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the

Government, 91 N

W. U. L. REV. 899 (1997); Spanbauer, supra note 17 (arguing that the

Supreme Court has not given the Petition Clause the distinct status it deserves among other

First Amendment guarantees); Wishnie, supra note 14 (arguing for its application to

undocumented immigrants’ reports to law enforcement); Anita Hodgkiss, Note, Petitioning

and the Empowerment Theory of Practice, 96 Y

ALE L.J. 569 (1987) (suggesting that lawyers

might use the right to petition to empower disadvantaged clients); see also Bhagwat, supra

note 30, at 981 (“[E]ven today, assembly, petition, and association are at least as central to

the process of self-governance as is free speech.”); Adam Eckstein, The Petition Clause and

Alternative Dispute Resolution: Constitutional and Consistency Arguments for Providing

Noerr-Penington Immunity to ADR, 75

U. CIN. L. REV. 1683, 1703 (2007) (arguing for the

application of the right to alternative dispute resolution).

33. See, e.g., Bhagwat, supra note 30, at 980 (“[F]ree speech has been the central focus

of First Amendment law and scholarship. In fact, however, the text of the First Amendment

is not limited to, or even particularly focused on, speech.”).

34. Wishnie, supra note 14, at 725–26 (quoting U.S. C

ONST. amend. I).

846 FORDHAM LAW REVIEW [Vol. 81

clauses of the First Amendment, including the Petition Clause, should

command the same respect.”

The decision of the drafters to memorialize the right in a separate clause

reflected an appreciation of its unique role. So too does its history. In a

growing body of literature, discussed briefly below, Petition Clause

scholars persuasively argue: (1) the right to petition predates and (some

suggest) gave rise to the right to speech; (2) the Framers intended for the

right to be given special status; (3) the right was central to American

politics and self-governance both before and after the ratification of the Bill

of Rights; and (4) the right encompassed both individual, private grievances

and those that were of community-wide concern.

The right to petition is ancient.

It dates back to the tenth century in

England,

though scholars agree that it did not take significance until

Magna Carta in 1215. “Later, the Petition of Right of 1628 drew upon

centuries of tradition and Magna Carta as a model for the Parliament to

issue a plea, or even a demand, that the Crown refrain from certain

actions.”

The right was made almost absolute for all British subjects

when it was codified in the English Bill of Rights of 1689.

Because the

right of speech did not fully emerge until the late eighteenth or early

nineteenth centuries, some scholars have argued that the right to speech was

a progeny to the right to petition,

and that petitioning is more fundamental

than speech to a politically functional society.

By the time of the American Revolution, petitioning was extremely

popular and widespread in England. It was not checked or penalized, as

35. Krotoszynski & Carpenter, supra note 28, at 1246. It should be noted, however, that

some scholars have suggested that the Privileges and Immunities Clause of the Fourteenth

Amendment was effectively “rob[bed] . . . of all meaning” in the Slaughter-House Cases, 83

U.S. 36 (1873). See E

RWIN CHEMERINSKEY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES

494–97. See generally Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment,

101 Y

ALE L.J. 1193 (1992).

36. See Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2499 (2011); P

RING &

CANAAN, supra note 12, at 15 (tracing the roots of the right to petition to “earl[y] English

law[] of more than 1,000 years ago” and giving “birth to the Magna Carta”); Andrews, A

Right of Access, supra note 15, at 596–603 (describing early English petitioning from the

Magna Carta to the mid-eighteenth century); 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, 1154 (1986).

37. See Krotoszynski & Carpenter, supra note 28, at 1299.

38. Guarnieri, 131 S. Ct. at 2499. From the Magna Carta to the English Bill of Rights

of 1689, several English documents recognized the right to petition the King and Parliament

for both public and private grievances. See Wishnie, supra note 14, at 685 n.93 (citing Mark,

supra note 15, at 2165–66; Smith, supra note 36, at 1156).

39. See Krotoszynski & Carpenter, supra note 28, at 1298.

40. See id. at 1299.

41. See Bhagwat, supra note 30, at 981, 994 (arguing that the right to petition was

antecedent to, and as central as, speech in the process of self-government, and observing that

petitioning is an older form of political participation, surviving from a pre-democratic era).

2012] RECOGNIZING THE RIGHT TO PETITION 847

was the right of speech,

and was frequently successful in achieving

results.

Several colonial governments explicitly recognized petitioning as

a right, and all of the colonies implicitly recognized petitioning as a primary

means by which individuals participated in government.

Colonists,

including colonial assemblies, not only secured the right to petition for

themselves in colonial government, but frequently petitioned the British

government, and were increasingly frustrated in the years before the

Revolution by the Crown’s failure to respond.

Indeed, this was a major

source of outcry in the Declaration of Independence.

In short, the

“Framing generation was fully aware of the importance of . . . petitioning in

a system of democratic government, as opposed to the system from which

the Framers had broken.”

Thus an explicit declaration of the right to petition, amongst other rights

of the people against their government

was in the forefront of the national conscience as the first Congress took

up the task of building a nation. Responding to this widely felt desire,

James Madison proposed amendments to the Constitution that would

eventually become the Bill of Rights—including the right to petition—to

the House of Representatives on June 8, 1789. The right to petition, as

framed in Madison’s proposal, was in a clause separate from the freedoms

of speech and press, and stated that “[t]he people shall not be restrained

. . . from applying to the Legislature by petitions, or remonstrances, for

redress of their grievances.”

The right was exercised on a mass scale, in both colonial times and in the

first years of the nation. It encompassed both private, individualized

grievances, and matters of community-wide concern. The primary

responsibility of colonial assemblies was settlement of private disputes

raised by petitions.

The First Congress never once refused to accept a

42. See Spanbauer, supra note 17, at 19–20 (describing how in both England and the

American colonies, it was in the beginning of the eighteenth century that petitioners were, as

a practice, not punished for the content of their petitions).

43. See Wishnie, supra note 14, at 685 n.94 (citing Smith, supra note 36, at 1166; Mark,

supra note 15, at 2163).

44. See Spanbauer, supra note 17, at 28 (“By the time of the American Revolution,

Delaware, New Hampshire, North Carolina, Pennsylvania, and Vermont . . . provided

explicit protection for the right of colonists to petition local governing bodies for redress of

both individual and collective grievances. Thus, the early colonial governments recognized

petitioning as a tangible right. All colonies, including those which did not provide explicit

protection for petitioning activity, recognized petitioning as a method by which individuals

participated in government and voiced their views to the local governing bodies.”); Wishnie,

supra note 14, at 693 n.146.

45. See Spanbauer, supra note 17, at 32–33.

46. See Krotoszynski & Carpenter, supra note 28, at 1302.

47. Bhagwat, supra note 30, at

991–92 (arguing further that the Framers “understood

that the rights of speech, press, assembly, association, and petition are all at heart political

freedoms that are essential to democratic self-governance”).

48. Krotoszynski & Carpenter, supra note 28, at 1302–03 (alternation in original).

49. Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2498 (2011) (citing Higginson,

supra note 15, at 146).

848 FORDHAM LAW REVIEW [Vol. 81

petition.

The private grievances that were redressed by the government

included divorces, property disputes, and individual tax withholdings.

In sum, petitioning was a widespread practice both before and after the

ratification of the Bill of Rights and was considered central to political life.

Later, controversial laws like the Alien Act (allowing the President to

deport noncitizens who were considered dangerous), the Sedition Act

(criminalizing unlawful assembly and publication of false or malicious

writing against the government), and the Naturalization Act at the turn of

the 19th century brought on floods of petitions.

Petitioning fell from its exalted position, however, when pro-slavery

representatives in Congress imposed the gag rule on anti-slavery petitioners

in the 1830s.

During this time, Congress’s infringement on the right was

not challenged in the Supreme Court, and popular petitioning fell largely

into disuse.

Not so for the politically active, however. Legislative petitioning was a

central strategy utilized by both the women’s suffrage and anti-

Prohibitionist movements.

Impact litigation, another form of petitioning,

has been successfully utilized for decades—particularly during and since

the civil rights movement—by a wide variety of organizations, from the

Sierra Club to the Center for Reproductive Rights to the NAACP.

Notably, the Supreme Court has explicitly recognized this form of

petitioning as political expression, and importantly, characterized it as the

only avenue by which minority groups may be able to petition the

government.

And popular petitioning—in the form of mass signature

gathering to support a request for redress—flourished in the twentieth

century.

C. Purpose of the Right to Petition

Petitioning was considered a formal mechanism by which people

participated in English and American colonial political life.

It was

50. Wishnie, supra note 14, at 699 (citing 8 DOCUMENTARY HISTORY OF THE FIRST

FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA, at xvi (Kenneth R. Bowling et al.

eds., 1998)).

51. See Higginson, supra note 15, at 146.

52. See Wishnie, supra note 14, at 710–11 (describing this anti-immigrant legislation at

the turn of the nineteenth century).

53. See Krotoszynski & Carpenter, supra note 31, at 1304.

54. See id. at 1305.

55. Tabatha Abu El-Haj, Changing the People: Legal Regulation and American

Democracy, 86

N.Y.U. L. REV. 1, 33–34 (2011).

56. See NAACP v. Button, 371 U.S. 415, 430 (1963).

57. Abu El-Haj, supra note 55, at 30–34 (documenting the history of petitioning and

noting that the nature of petitioning has changed qualitatively in the twentieth century).

58. Spanbauer, supra note 17, at 20–28 (describing the individual’s right of petition in

England as having matured by the 1700s and stating that “[a]ll colonies . . . recognized

petitioning as a method by which individuals participated in government”); Wishnie, supra

note 14, at 685–86 (describing the centrality of petitioning in England prior to the American

2012] RECOGNIZING THE RIGHT TO PETITION 849

exercised by noncitizens, disenfranchised white males (prisoners and those

without property), women, free Blacks, Native Americans, and even

slaves.

The purposes petitioning serve are many, and some of these

purposes overlap with speech. As the Supreme Court recently noted, both

speech and petitioning advance individual self-expression.

Both are

integral to democracy,

[a]lthough not necessarily in the same way. The right to petition allows

citizens to express their ideas, hopes, and concerns to their government

and their elected representatives, whereas the right to speak fosters the

public exchange of ideas that is integral to deliberative democracy as well

as to the whole realm of ideas and human affairs. . . . [A]lthough the right

to petition is generally concerned with expression directed to the

government seeking redress of a grievance.

The Court’s final point bears emphasis, more so than the Court gave it.

The right to petition is not merely “generally” concerned with expression

directed to government seeking redress; rather, by definition, the right

involves two requisite elements that the right to speech does not: a

particular audience, and a particular purpose. Speech, as it is protected by

the First Amendment, may or may not be directed to government, and it

may or may not be made for the purpose of redress. While speech and

petitioning overlap, they are not coextensive.

As I will discuss later, this point is critical when determining how the

courts should analyze Petition Clause claims. The guarantee provided by

the Petition Clause is not concerned with protecting the content of the

communication, as is the guarantee provided by the Speech Clause. “The

right [to petition] does not hinge on whether the citizen is right or wrong,

wise or foolish, well intentioned or mean spirited. That way lies

government censorship.”

Rather, the Petition Clause guarantees access to

the government, and specifically, access to present a certain kind of

communication—a request for redress— regardless of what is asked for.

Revolution and arguing that “[r]obust petitioning was also a central feature of political life in

the American colonies.”).

59. Wishnie, supra note 14, at 688–89 (“[P]etitioning was a right exercised by all

members of colonial society without regard to a petitioner’s formal membership in ‘a

national community or . . . otherwise [having] developed sufficient connection with this

country.’ Disenfranchised white males, such as prisoners and those without property, as well

as women, free blacks, Native Americans, and even slaves, exercised their right to petition

the government for redress of grievances.” (citations omitted)).

60. See Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2494 (2011).

61. Id. at 2495.

62. Justice Scalia made precisely this point in his dissent in Guarnieri: “The Court

correctly holds that the Speech Clause and Petition Clause are not co-extensive.” Id. at 2504

(Scalia, J., dissenting); see also K

ROTOSZYNSKI, supra note 31, at 155 (arguing that the

Petition Clause, “properly construed and applied, should guarantee would-be petitioners a

right, exclusive of their speech and assembly freedoms, to seek redress of their grievances

within both sight and hearing of those capable of giving redress.”).

63. P

RING & CANAN, supra note 12, at 16. As will be discussed below, there is one

qualification based on content: the petition may not be a sham.

850 FORDHAM LAW REVIEW [Vol. 81

This distinction, when applied to a call to the police for help, is quite

clear. A DV victim’s call to the police for help is a form of communication

that is indeed expressive. But its purpose is not merely expression. Rather,

its purpose is to communicate a specific request, and to make this request to

the only audience that can provide redress.

Compare a DV victim’s call to the police with a DV victim’s personal or

political decision to speak publicly about the violence in her home.

Speaking to other women in grassroots, “consciousness-raising” groups was

a critical step identified by battered women’s activists in the 1960s and

1970s. “By claiming that what happened between men and women in the

privacy of their home was deeply political, the women’s liberation

movement set the stage for the battered women’s movement.”

The right

to engage in consciousness-raising is protected by the right to free speech.

It embodies the core values of the right to speech: expression for the

purposes of self-realization, truth-seeking, and public debate.

The right to access the police for help is another matter.

It is the right

to seek immediate, critical and perhaps life-saving assistance. This form of

expression is protected by the right to petition. That right guarantees that

the doors of government remain open to the governed.

But the Petition Clause serves not merely the governed; it also serves the

governors.

It is a two-sided coin.

Petitions provide “an important

stream of information about the views and concerns of the people,

informing government decisions about individual cases and the need for

generalized policymaking.”

Petitioning is therefore central to self-

governance:

[C]ommunications to national, state, and local legislators continue to

serve vital purposes. They inform representatives of . . . the operation of

laws and agencies on residents of their districts; prompt inquiries by

legislative office to executive branch agencies that eventually yield

individual redress; and illuminate broader statutory, regulatory, or

budgetary deficiencies.”

64. SUSAN SCHECHTER, WOMEN AND MALE VIOLENCE, THE VISIONS AND STRUGGLES OF

THE

BATTERED WOMEN’S MOVEMENT 31 (1982).

65. For a recent, short summary of the core values of the right of free speech, see

Bhagwat, supra note 30, at 993–94 (describing three distinct theories of the right to speech

that have gained prominence, including ensuring that the truth shall emerge in the

marketplace of ideas, promoting the self-fulfillment of individuals through expression, and

enablement of self-governance through political debate).

66. This is of course not to say that calling the police, or taking any legal action, cannot

be a political act or expression.

67. See Wishnie, supra note 14, at 726.

68. See

PRING & CANAN, supra note 12, at 17 (“The justification for the petition right

lies in the fact that it is a two-sided coin. On the one hand, it protects individuals and groups

who communicate with government; on the other, it also protects government, providing an

‘early warning system’ or ‘safety valve’ against voter dissatisfaction, civil unrest, and

revolt.”).

69. Wishnie, supra note 14, at 726.

70. Id. at 726.

2012] RECOGNIZING THE RIGHT TO PETITION 851

In the past thirty years, it has been the petitioning of activists on behalf of

battered women that changed the way the government—at national, state

and local levels—responds to DV.

It was because of the aggressive

lobbying of these activists that the state now views DV as a crime, rather

than a private matter to be dealt with in the home.

Whereas once the

police responded to DV calls with counseling, mediation, and walking the

perpetrator around the block to “cool off,” they are now statutorily

mandated to arrest abusive husbands and boyfriends for committing the

crime of DV.

Petitioning activity creates factual sources of information that enable

government bodies to better allocate resources, target enforcement, and

identify gaps in statutory or regulatory coverage.

This is particularly true

with regard to crime victims’ calls to the police for help. When police do

not have accurate information about the frequency of criminal activity and

the location (or specific jurisdiction) in which criminal activity occurs, they

cannot adequately enforce the law in those areas, for they do not allocate

resources to law enforcement for those purposes.

Resource decisions are policy decisions, and the accurate reporting of

crime from citizens directly influences government public policy. Nowhere

could this be truer than in the context of the police response to DV. Since

the passage of VAWA in 1994, millions upon millions of dollars have been

allocated to the states for the purpose of enforcing criminal laws that

prevent DV.

The Act provides increased funding to those states that

statutorily mandate (or strongly encourage) the arrest of perpetrators of DV,

as well as increased funding to police agencies that can show improved

rates of arrests of perpetrators of DV.

With regard to law enforcement generally, courts have explicitly

acknowledged that it “would be difficult indeed for law enforcement

71. For recent, thorough descriptions of the legislative and policy changes lobbied for by

feminist activists over the last thirty years, see LISA A. GOODMAN & DEBORAH EPSTEIN,

LISTENING TO BATTERED WOMEN 71–74 (Am. Psychological Ass’n 2008) and LEIGH

GOODMARK, A TROUBLED MARRIAGE: DOMESTIC VIOLENCE AND THE LEGAL SYSTEM 16–22

(N.Y. Univ. Press 2012).

72. See Kuennen, supra note 4, at 521–23.

73. See id.

74. See Wishnie, supra note 14, at 727.

75. For a discussion of the federal dollars that have flowed to states for the purpose of

combating DV, particularly in the area of criminal justice and the arrest and prosecution of

perpetrators of DV, see G

OODMARK, supra note 71, at 18–22.

76. The Services for Training Officers and Prosecutors Grant, the

single largest pool of money appropriated under VAWA, was designed to

strengthen the law enforcement response to violence against women by enabling

states and localities to hire and train personnel, receive technical assistance, collect

data, and purchase equipment. . . . [T]he grant is specifically intended to “increase

the apprehension, prosecution, and adjudication of persons committing violent

crimes against women.”

OODMARK, supra note 71, at 19 (quoting GARRINE P. LANEY, CONG. RESEARCH. SERV., RL

30871, VIOLENCE AGAINST WOMEN ACT: HISTORY AND FEDERAL FUNDING 2 (2010),

available at http://assets.opencrs.com/rpts/RL30871_20100226.pdf.

852 FORDHAM LAW REVIEW [Vol. 81

authorities to discharge their duties if citizens were in any way discouraged

from providing information”

and that any “chilling effect” on providing

information to the police would render the police “handicapped in

protecting the public.”

The Petition Clause assures citizens’ access to their government, and

government’s access to its citizens.

As one court succinctly summarized,

Citizen access to the institutions of government constitutes one of the

foundations upon which our republican form of government is premised.

In a representative democracy government acts on behalf of the people,

and effective representation depends to a large extent upon the ability of

the people to make their wishes known to governmental officials acting

on their behalf.

In this way, the right to petition—more so than the right to speech,

protects a value lying at the core of the First Amendment: self-

governance.

Petitioning is, according to the Supreme Court: “the source

of other fundamental rights, for petitions have provided a vital means for

citizens to request recognition of new rights and to assert existing rights

against the sovereign.”

D. Supreme Court Doctrine Blurs the Rights of Petition and Speech

If the right to petition is essential to political life (as its history shows),

and to the effective functioning of government (as its application in the

context of calling the police shows), why is the right the unknown soldier of

the First Amendment guarantees?

One reason is that few litigants have pressed claims under it.

Another

reason, noted by virtually every scholar who has written about the right, is

that the Supreme Court has not sufficiently distinguished it from the other

77. Forro Precision, Inc. v. Int’l Bus. Machs. Corp., 673 F.2d 1045, 1060 (9th Cir.

1982).

78. Ottensmeyer v. Chesapeake & Potomac Tel. Co. of Md., 756 F.2d 986, 994 (4th Cir.

1985).

79. See K

ROTOSZYNSKI, supra note 31, at 153 (“For government to address successfully

the wants and desires of We the People, it must listen and engage popular concerns on a

timely basis.”).

80. Protect Our Mountain Env’t, Inc. v. Dist. Court, 677 P.2d 1361, 1364 (Colo. 1984).

81. See K

ROTOSZYNSKI, supra note 31, at 153 (“The ability to access and engage

government, in a meaningful way, remains central to the success of the project of democratic

self-government.”).

82. Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2500 (2011). Similarly, the Court

has characterized the right as “implied by ‘[t]he very idea of a government, republican in

form.’” BE & K Constr. Co. v. NLRB, 536 U.S. 516, 524–25 (2002) (quoting United States

v. Cruikshank, 92 U.S. 542, 552 (1876)). Some scholars argue that the Petition Clause is the

source of the other First Amendment rights themselves. See Smith, supra note 36, at 1153

(“Petitioning is the likely source of the other expressive rights—speech, press, and

assembly” included in the First Amendment.); see also Krotoszynski & Carpenter, supra

note 28, at 1299 n.269 (describing rights of speech, press, and assembly as progeny of the

right to petition).

83. See Wishnie, supra note 14, at 715.

2012] RECOGNIZING THE RIGHT TO PETITION 853

First Amendment rights.

In some cases, it has treated Petition Clause

claims as separate, and analytically distinct, from Speech Clause claims;

in others, it has treated the right of petition as subsumed within the right of

speech.

An example of the former is illustrated by the Court’s two foundational

Petition Clause decisions, Eastern Railroad Presidents Conference v. Noerr

Motor Freight, Inc.

and United Mine Workers of America v.

Pennington,

both antitrust cases. In these cases the Court permitted

companies to lobby for measures in restraint of trade because, it reasoned,

antitrust laws cannot be read to limit or invade the constitutional right to

petition the government.

No matter how aggressive or illegal (from an

84. See, e.g., Krotoszynski & Carpenter, supra note 28, at 1305–08; Spanbauer, supra

note 17, at 17–18 (arguing that the Court’s interpretation of the right to petition is that it

deserves no greater constitutional protection than the right to speech); Wishnie, supra note

14, at 713 (describing that the current doctrine treats petitioning as subsumed within speech).

85. For example, in BE & K Construction. Co. v. NLRB, the Court considers and rejects

these analogies to speech doctrine. 536 U.S. at 530–31. First, the idea that false statements

are not immunized by the right to freedom of speech could be transposed onto petitioning

claims to say that baseless litigation is not immunized by the right to petition. The majority

concluded that while this analogy is helpful it does not suggest that the class of baseless

litigation is completely unprotected. Id. at 531. Second, with regard to prior restraints on

speech, the Court stated,

By analogy to other areas of First Amendment law, one might assume that any

concerns related to the right to petition must be greater when enjoining ongoing

litigation than when penalizing completed litigation. After all, the First

Amendment historically provides greater protections from prior restraints than

after-the-fact penalties, and enjoining a lawsuit could be characterized as a prior

restraint, whereas declaring a completed lawsuit unlawful could be characterized

as an after-the-fact penalty on petitioning. But this analogy at most suggests that

injunctions may raise greater First Amendment concerns, not that after-the-fact

penalties raise no concerns.

Id. at 530 (citations omitted).

86. See Guarnieri, 131 S. Ct. 2488. As a point of clarification, when I refer to the

Court’s decisions regarding petitioning, I refer to the following line of cases, most often

discussed in the scholarly literature regarding petitioning: BE & K Constr. Co., 536 U.S.

516; Christopher v. Harbury, 536 U.S. 403 (2002); Prof’l Real Estate Investors, Inc. v.

Columbia Pictures Indus., 508 U.S. 49 (1993); City of Columbia v. Omni Outdoor Adver.,

Inc., 499 U.S. 365 (1991); Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731 (1983);

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982); Cal. Motor Transp. Co. v.

Trucking Unlimited, 404 U.S. 508 (1972); United Mine Workers of Am. v. Ill. State Bar

Ass’n, 389 U.S. 217 (1967); United Mine Workers of Am. v. Pennington, 381 U.S. 657

(1965); Bhd. of R.R. Trainmen v. Virginia ex rel Va. State Bar, 377 U.S. 1 (1964); NAACP

v. Button, 371 U.S. 415 (1963); E. R.R. Presidents Conference v. Noerr Motor Freight, Inc.,

365 U.S. 127 (1961). Some scholars argue that “court access” cases might also be included

on this list, though they acknowledge that the Court has not clearly recognized the court

access cases as governed by the Petition Clause. See, e.g., Andrews, A Right of Access, supra

note 15, at 570–71; Spanbauer, supra note 17, at 44.

87. 365 U.S. 127 (1961).

88. 381 U.S. 657 (1965). Noerr and Pennington together are referred to as the Noerr-

Pennington Doctrine.

89. See Noerr

, 365 U.S. at 137–38 (“To hold that . . . the people cannot freely inform the

government of their wishes would impute to the Sherman Act a purpose to regulate, not

business activity, but political activity, a purpose which would have no basis whatever in the

legislative history of the Act. Secondly, and of at least equal significance, such a

854 FORDHAM LAW REVIEW [Vol. 81

antitrust context) the tactics used,

individuals (and companies) have the

right, as set forth in the Petition Clause, to influence the government, with

only one exception: if the lobbying or other petitioning activity is a mere

“sham” to cover up what is really only an attempt to interfere with or

retaliate against another.

Based on Noerr and Pennington, and a few cases that followed, it

appeared that for a time the Court recognized petitioning as analytically

distinct from speech and deserving of almost absolute protection, but for the

sham exception.

There was no balancing of the individual’s interest and

the government’s, as the Court does with the majority of Speech Clause

cases.

Instead, the Court protected petitioning almost absolutely.

This was not so in McDonald v. Smith.

A North Carolina citizen wrote

a letter to President Reagan, voicing his opposition to a particular candidate

for U.S. Attorney.

When the candidate filed a libel suit, McDonald

argued that he had absolute immunity for the contents of the letter, based on

the protection provided by the Petition Clause.

The Court unanimously

rejected the argument and held that the Clause does not confer an absolute

immunity for petitioning, but only a qualified right.

“The right to petition

is cut from the same cloth as the other guarantees”

of the First

Amendment; thus the Court found no reason to “elevate the Petition Clause

to special First Amendment status.”

100

construction of the Sherman Act would raise important constitutional questions. The right of

petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course,

lightly impute to Congress an intent to invade these freedoms.”); see also Pennington, 381

U.S. at 670 (holding that joint efforts by large coal companies accused of conspiring to drive

small mines out of business by attempting to influence public officials do not violate the

antitrust laws, even though they were intended to eliminate competition).

90. See Noerr, 365 U.S. at 144 (noting Third Circuit Chief Judge Biggs’s

characterization of the campaign as a “no-holds-barred fight” (quoting Noerr Motor Freight,

Inc., v. E. R.R. Presidents Conference, 273 F.2d 218 (3d Cir. 1959) (Biggs, C.J.,

dissenting));

PRING & CANAN, supra note 12, at 24 (describing the tactics of the railroaders

in Noerr as “a vicious, deceptive, no-holds-barred lobbying and publicity campaign to block

deregulation of their chief competition, the trucking industry”).

91. See Noerr, 365 U.S. at 144.

92. For a particularly accessible summary of this doctrine, see P

RING & CANAN, supra

note 12, at 19–29.

93. Wishnie, supra note 14, at 746 (describing an absolute right to petition as

“incompatible with a preference for balancing tests in modern constitutional jurisprudence”

and “not consistent with . . . the Court’s speech, association, and court access decisions”).

94. See, e.g.,

PRING & CANAN, supra note 12, at 25 (“At that point, Noerr-Pennington

made the right to petition look absolute, except for the ticking time bomb of the as yet

unapplied ‘sham exception.’”).

95. 472 U.S. 479 (1985).

96. See id. at 480–81.

97. See id. at 481–82.

98. Id. at 484 (“[W]e are not prepared to conclude . . . that the Framers of the First

Amendment understood the right to petition to include an unqualified right to express

damaging falsehoods in exercise of that right.”).

99. Id. at 482.

100. Id. at 485.

2012] RECOGNIZING THE RIGHT TO PETITION 855

In its most recent decision, Borough of Duryea v. Guarnieri,

101

the Court

indicated that McDonald should be read more narrowly than it sometimes

has been: “McDonald held only that speech contained within a petition is

subject to the same standards for defamation and libel as speech outside a

petition.”

102

Herein lays another illustration of how the rights overlap, but

are not coextensive: all petitions contain speech, but not all speech contains

a petition. As the Court elaborated, “There may arise cases where the

special concerns of the Petition Clause would provide a sound basis for a

distinct analysis; and if that is so, the rules and principles that define the

two rights might differ in emphasis and formulation.”

103

I argue below that

a DV victim who calls the police for protection presents such a case.

Charles Guarnieri’s case did not. But note: he was a government

employee, not an ordinary citizen—and a public employee’s speech is

scrutinized differently than an ordinary citizen’s speech. The

government—acting as employer—has far greater leeway to restrain an

employee’s speech than the government—acting as sovereign—has to

restrain a citizen’s speech.

104

For as employer, the government has

“substantial interests” in promoting the effective and efficient provision of

services to the public that must be balanced with the employee’s right to

speech; as sovereign, it does not have such interests.

105

Thus the Court

reasoned that a public employee does not have the “right to transform

everyday employment disputes into matters for constitutional litigation in

the federal courts.”

106

If the Court was truly concerned that public employees would open the

floodgates of litigation with everyday employment issues in the federal

courts, why not simply adopt the test that Justice Scalia proposed in his

dissent: when a public employee’s petition for redress is to his employer,

such as a wage dispute or denial of a benefit, subject it to the same analysis

as if it was speech?

107

That is to say, expect him to prove that his

petitioning was a “matter of public concern,” a requisite element in a public

employee right to speech claim.

108

But if the public employee’s petition for

redress is to his sovereign—such as to the local tax board, disputing taxes

owed—subject the petition to a different analysis because it is a different

right.

101. 131 S. Ct. 2488 (2011).

102. Id. at 2495.

103. Id.

104. See id. at 2496–97.

105. This is a bit of an overstatement, for there are circumstances in which the sovereign

does have special regulatory interests, such as when the speech occurs on public property.

These interests will be discussed in greater detail infra, Part II.B.

106. Guarnieri, 131 S. Ct. at 2501.

107. See id. at 2506 (Scalia, J., dissenting).

108. To be clear, I am not advocating such a position in public employment cases. To the

contrary, I am a strong supporter of Helen Norton’s critiques. See Helen Norton,

Constraining Public Employee Speech: Government’s Control of Its Workers’ Speech to

Protect Its Own Expression, 59

DUKE L.J. 1 (2009) (criticizing the vast control by

government of on-the-job expression of its employees).

856 FORDHAM LAW REVIEW [Vol. 81

Instead, to reach the result it wanted, the majority read into the history of

the Petition Clause a requirement that simply is not there: that a petition

must be about a matter of community wide, public concern, and not about a

private dispute. For this reason, it was defensible, in the majority’s view, to

graft a public concern test into Petition Clause analysis. To its credit, the

Court explicitly limited its holding to the public employee context:

“Outside the public employment context, constitutional protection for

petitions does not necessarily turn on whether those petitions relate to a

matter of public concern.”

109

The question left unaddressed: What does

the constitutional analysis of the Petition Clause turn upon?

II.

ANALYZING WHAT LEVEL OF SCRUTINY OUGHT TO APPLY TO

VICTIM’S RIGHT TO PETITION

The Supreme Court’s Petition Clause jurisprudence has produced a range

of responses from scholars. Some argue that the right to petition deserves

absolute protection.

110

Others argue that an absolute standard is both

unnecessary and unrealistic, given the Court’s affinity in First Amendment

jurisprudence to balancing tests. These scholars argue that a heightened,

but not absolute, level of judicial scrutiny should apply to government

burdens on petitioning.

111

Before analyzing whether a government policy is “unduly” burdensome,

one must establish that the policy burdens the right at all.

112

It is to this

task I turn first, in the context of battered mothers’ willingness and ability

to call the police, in light of the police “report-all” practice at issue. Then I

address what level, or “tier,” of judicial scrutiny should apply to the burden.

I join those scholars who argue that strict scrutiny should apply: only a

compelling state interest can justify infringement on the right, and this

interest must be accomplished by the “least restrictive means” available.

113

I conclude that, even under a less-than-strict (though still heightened) level

109. Guarnieri, 131 S. Ct. at 2498.

110. See Hugo L. Black, The Bill of Rights, 35 N.Y.U.

L. REV. 865, 874 (1960) (“The

phrase ‘Congress shall make no law’ is composed of plain words, easily understood. . . .

[The language is not] anything less than absolute.”); Fais, supra note 21, at 1221–22

(arguing that the term “abridge” in the Petition Clause “is ‘to reduce in scope’ or

‘diminish,’” and thus any diminishment of a victim’s ability to report her victimization to the

police is unconstitutional); see also Smith, supra note 36, at 1183 (“An absolute right of

petition must be preserved to fulfill adequately the purposes and interests of petitioning.”).

111. See, e.g., Wishnie, supra note 14, at 727–28 (discussing a number of judicial tools

that would give petitioning heightened, though not absolute, protection); see also

Krotoszynski & Carpenter, supra note 28, at 1288–89.

112. See BE & K Constr. Co. v. NLRB, 536 U.S. 516, 529 (2002) (arguing that the Court

“must first isolate those burdens” before determining whether it raises First Amendment

concerns).

113. See, e.g., Krotoszynski & Carpenter, supra note 28, at 1297–98 (arguing that the

proper test for a restriction on political protesting should be strict: “By treating regulations

that would remove protestors from the sight or hearing of government officials as

presumptively invalid, the government is robbed of its broad brush; it is forced to justify its

interest in security with more than mere speculation and to carry out that interest with the

means that least restrict petitioning protestors’ right to be seen and heard.”).

2012] RECOGNIZING THE RIGHT TO PETITION 857

of scrutiny, the reflexive “report-all” policy at issue herein is

unconstitutional.

A. Establishing the Burden

While the level of scrutiny that the Supreme Court might apply to an

ordinary citizen’s petition remains elusive in its jurisprudence, one may

pluck from the doctrine examples of potentially impermissible “burdens.”

These include financial costs, such as the imposition of attorneys’ fees;

administrative costs, such as a requirement to post notices; prohibitions on

future petitioning, such as an injunction against similar suits in the future;

and other chilling effects, such as “the threat of reputational harm.”

114

Victims of DV may fear that by calling the police, they will put

themselves in jeopardy of losing their children.

115

While social scientists

have yet to conduct a rigorous exploration of how significant of a role this

particular fear plays in battered mothers’ reluctance to report DV to the

police, there is a growing body of empirical data suggesting that it is a

serious deterrent.

116

In addition to this data, there is widespread

114. See Wishnie, supra note 14, at 718 (citing BE & K Constr., 536 U.S. at 530); see

also Eckstein, supra note 32, at 1683–84 (arguing that the Noerr-Pennington doctrine

“prevents laws from infringing not only petitioning the courts to resolve grievances but also

acts incidental to petitioning the courts to resolve grievances” such as settlement agreements,

pre-litigation threat letters, and other acts clearly incidental to petitioning).

115. See Nicholson v. Williams, 203 F. Supp. 2d 153, 204 (E.D.N.Y. 2002) (quoting

expert witness Dr. Evan Stark, on whose testimony the court relied, who stated, “[W]hen a

mother believes that if she reports domestic violence her children’s well-being will be

endangered because they will be removed from the home and put in foster care, then she is

unlikely to report the violence until it reaches an extreme level where public notice is

unavoidable”); Bonnie E. Rabin, Violence Against Mothers Equals Violence Against

Children: Understanding the Connections, 58 A

LB. L. REV. 1109, 1111 (1995) (arguing that

mothers and children understand the negative implications to reporting domestic violence);

Pamela Whitney & Lonna Davis, Child Abuse and Domestic Violence: Can Practice Be

Integrated in a Public Setting?, 4

CHILD MALTREATMENT 158, 163–64 (1999) (arguing

strenuously against incorporating children’s exposure to domestic violence in child abuse

statutes because battered women may be deterred from seeking help for fear of losing their

children); Zandra D’Ambrosio, Note, Advocating for Comprehensive Assessments in

Domestic Violence Cases,

46 FAM. CT. REV. 654, 665 (2008) (arguing that removal of

children based on a parent’s victimization deters reporting of DV); Karlyn Barker, Policy

Turns the Abused into Suspects, W

ASH. POST, Dec. 26, 2001, at B1 (discussing the potential

backfire women face when they report domestic violence).

116. See, e.g., Ellen R. DeVoe & Erica L. Smith, Don’t Take My Kids: Barriers to

Service Delivery for Battered Mothers and Their Young Children, 3 J.

EMOTIONAL ABUSE

277, 280, 286–87 (2003) (battered mothers reported reluctance to call police for fear of

removal of children by child protective services); Ruth E. Fleury et al., “Why Don’t They

Just Call the Cops?”: Reasons for Differential Police Contact Among Women with Abusive

Partners, 13 V

IOLENCE & VICTIMS 333, 339–40 (1998) (victims reported fear of police

taking the children as a reason for reluctance to call the police); Michelle Fugate et al.,

Barriers to Domestic Violence Help Seeking, 11 V

IOLENCE AGAINST WOMEN 290, 303–04

(2005) (reasons victims surveyed did not call the police include fear of losing children to

child protective services); Sandra Wachholz & Bauke Miedema, Risk, Fear, Harm:

Immigrant Women’s Perceptions of the ‘Policing Solution’ to Woman Abuse, 34 C

RIME,

LAW & SOC. CHANGE 301, 310–11 (2000) (study of immigrant women in Canada showing

858 FORDHAM LAW REVIEW [Vol. 81

acknowledgment among legal scholars, bolstered by a host of individual

victims’ experiences, that a mother’s report of DV to the police poses a

substantial risk to maintaining custody of her children.

117

Police are “mandatory reporters” of child abuse. All states have statutes

requiring that certain enumerated professionals report the suspected abuse

of a child to CPS.

118

When these statutes were promulgated in the 1960s,

they required only physicians to make reports, and only in circumstances in

which they suspected the physical abuse of a child.

119

Over the years, the

statutes have greatly expanded to include other professionals who work

with children and to include much broader definitions of what constitutes a

police assistance was seen as holding potential to involve various forms of state surveillance

and control over themselves and their families, including the removal of children).

117. See Coker, supra note 7, at 834 (quoting a victim who “would never call” the police

again, given that CPS was notified); see also G

OODMARK, supra note 71, at 156 (quoting a

victim: “[I]f I had called the police on him, they would have taken both of us to jail, they

would have taken my children to CPS, and in foster care, and it would’ve turned into a

nightmare”); Deborah Epstein, Effective Intervention in Domestic Violence Cases:

Rethinking the Roles of Prosecutors, Judges, and the Court System, 11

YALE J.L. &

FEMINISM 3, 35 (1999) (“If battered women learn that seeking protection from their abusive

partner increases the risk that their children may be taken away, they will be greatly deterred

from coming forward.”); Leigh Goodmark, Law is the Answer? Do We Know That for Sure?

Questioning the Efficacy of Legal Interventions for Battered Women, 23

ST. LOUIS U. PUB. L.

REV. 7, 27 n.115 (2004) (“In one community actively working on these issues, I met a

battered mother whose three-day old child was removed from her care. Her act that

constituted neglect, calling her abusive boyfriend to take her home from the hospital when

no one else was available to help her.”).

118.

See ALA. CODE § 26-14-3 (2009); ALASKA STAT. § 47.17.020 (2008); ARIZ. REV.

STAT. ANN. § 13-3620 (2009); ARK. CODE ANN. § 12-18-402 (2009); CAL. PENAL CODE

§ 11166 (West 2010); C

OLO. REV. STAT. ANN. § 19-3-304 (West 2009); CONN. GEN. STAT.

ANN. § 17a-101a (West 2006); DEL. CODE ANN. tit. 16, § 903 (2003); D.C. CODE § 4-

1321.02 (LexisNexis 2009); F

LA. STAT. ANN. § 39.201 (West 2010); GA. CODE ANN. § 19-7-

(2009); HAW. REV. STAT. § 350-1.1 (2008); IDAHO CODE ANN. § 16-1605 (2009); 325 ILL.

COMP. STAT. ANN. 5/4 (West 2009); IND. CODE ANN. § 31-33-5-1 (LexisNexis 2007); IOWA

CODE ANN. § 232.69 (West 2009); KAN. STAT. ANN. § 38-1522 (2000); KY. REV. STAT. ANN.

§ 620.030 (LexisNexis 2009); LA. CHILD. CODE ANN. art. 609 (2004); ME. REV. STAT. ANN.

tit. 22, § 4011-A (2009); MD. CODE ANN. FAM. LAW § 5-704 (LexisNexis 2009); MASS. GEN.

LAWS ch. 119, § 51A (2009); MICH. COMP. LAWS ANN. § 722.623 (West 2009); MINN. STAT.

ANN. § 626.556 (West 2010); MISS. CODE ANN. § 43-21-353 (2009); MO. ANN. STAT.

§ 210.115 (West 2010); MONT. CODE ANN. § 41-3-201 (2008); NEB. REV. STAT. § 28-713

(2008); NEV. REV. STAT. ANN. § 432B.220 (LexisNexis 2007); N.H. REV. STAT. ANN. § 169-

C:29

(2009); N.J. STAT. ANN. § 9:6-8.10 (West 2009); N.M. STAT. ANN. § 32A-4-3 (West

2006);

N.Y. SOC. SERV. LAW § 413 (McKinney 2010); N.C. GEN. STAT. ANN. § 7B-301 (West

2009);

N.D. CENT. CODE § 50-25.1-03 (2009); OHIO REV. CODE ANN. § 2151.421 (LexisNexis

2009);

OKLA. STAT. ANN. tit. 10A, § 1-2-101 (West 2009); OR. REV. STAT. § 419B.010

(2009); 23 P

A. CONS. STAT. § 6311 (2009); R.I. GEN. LAWS § 40-11-3 (2006); S.C. CODE ANN.

§ 20-7-510 (1985); S.D. CODIFIED LAWS § 26-8A-3 (2009); TENN. CODE ANN. § 37-1-403

(2009); TEX. FAM. CODE ANN. § 261.101 (West 2009); UTAH CODE ANN. § 62A-4a-403 (West

2009);

VT. STAT. ANN. tit. 33, § 4913 (2009); VA. CODE ANN. § 63.2-1509 (2009); WASH.

REV. CODE ANN. § 26.44.030 (West 2010); W. VA. CODE ANN. § 49-6A-2 (LexisNexis 2009);

WIS. STAT. ANN. § 48.981 (West 2009); WYO. STAT. ANN. § 14-3-205 (2009).

119. See Lois A. Weithorn, Protecting Children from Exposure to Domestic Violence:

The Use and Abuse of Child Maltreatment Statutes, 53 H

ASTINGS L.J. 1, 57 (2001).

2012] RECOGNIZING THE RIGHT TO PETITION 859

reportable act.

120

Now, not just physical injury, but mental and emotional

injuries are reportable acts.

What constitutes emotional or mental injury has proven difficult to

define. Many states’ statutes are vague, or simply do not define the

terms.

121

In addition to vague statutory definitions, many statutes do not

delineate the circumstances that create a duty to report.

122

For example,

many require a report when there is a “reasonable suspicion” to believe that

a child is at risk of harm. A “reasonableness” standard confuses

reporters.

123

And in all states, failure to report to CPS carries criminal

penalties, while making a good faith report provides immunity.

124

Consequently, many reporters err on the side of caution; rather than

ascertain a “reasonable suspicion,” they report when there is any

suspicion.

125

Indeed, there is evidence that police report to CPS when

children are present but asleep during the incident,

126

and even when

children are away from the home during the incident.

127

Most troubling—

and hence the focal point of this Article—is the “report all” policy adopted

in several jurisdictions. In jurisdictions across the country, the police report

every DV call in which a child is present—and in some, every DV call in

which one of the parties has a child, whether the child was present or not—

as a matter of policy.

128

120. Id. at 57.

121. See, e.g., C

AL. PENAL CODE § 11165.6.

122. See Steven J. Singley, Failure to Report Suspected Child Abuse: Civil Liability of

Mandated Reporters, 19

J. JUV. L. 236, 243–46 (1998) (arguing that vague reporting statutes

that do not clearly state the conditions under which reporters must report cause over-

reporting). As one example, California requires police to report when it is objectively

reasonable “to entertain a suspicion” of child abuse or neglect. C

AL. PENAL CODE

§ 11166(a)(1).

123. See Singley, supra note 122, at 246.

124. See id.; Brooke Albrandt, Note, Turning in the Client: Mandatory Child Abuse

Reporting Requirements and the Criminal Defense of Battered Women, 81

TEX. L. REV. 655,

658 (2002).

125. See Singley, supra note 122, at 242–43.

126. See DeVoe & Smith, supra note 116, at 286 (statement of victim whose baby was

asleep when the police responded to her call to report domestic violence). Also, “present”

may mean not just asleep, but in another room. See Telephone Interview with Stephanie

Jackson, Sergeant, Supervisor of Family Violence Unit, Tulsa, Okla. Police Dep’t (Nov. 29,

2010) (“If a child is in any way involved or present at the scene, then child services is always

called. Being present at the scene includes if a child was not in the room where the assault

took place.”).

127. For example, when the police took the report of Shawrline Nicholson, named

plaintiff in Nicholson v. Williams, 203 F. Supp. 2d 153 (E.D.N.Y. 2002), discussed infra Part

III.B.3.a, the police contacted the state’s CPS to report the DV, resulting in the removal by

that agency of Shawrline’s two children. See id. at 169. One of the children was at school

when the assault occurred. See id. The other was in another room, in her crib. See id.; see

also Telephone Interview with Bartley, Detective, Jacksonville Police Dep’t (Dec. 30, 2010)

(“In most—to almost all—circumstances, if an officer responds to a domestic violence call

and children are in the home, and also if kids live in the home but are not there at the time,

we do usually route the reports to CPS.”).

128. See supra note 5; see also Coker, supra note 7, at 833 (“Some police departments

have developed policies that require officers to report to child protection services every case

in which a child is present at a domestic violence call.” (citing Telephone Interview with

860 FORDHAM LAW REVIEW [Vol. 81

Victims of DV, and those who advocate for them, view the intervention

of CPS as a highly negative occurrence. As advocates for victims have

argued, CPS

[t]ypically: blames mothers who are domestic violence victims for their

own victimization; blames these women for any negative ramifications of

their abuse for their children; removes children from their mothers’

custody when doing so is not necessary for the child’s protection; fails to

hold the abuser accountable for his conduct; and fails to provide any

services that contribute to the short- or long-term well-being of the child

or the nonabusive parents.

129

Thus even if CPS responses to DV victims begin to change, as DV activists

and policymakers are urging, it will be quite some time before battered

mothers are comfortable accepting the risks associated with calling the

police.

130

In conclusion, there is empirical data, and widespread consensus among

DV scholars, advocates in the community who work with DV victims, and

DV victims themselves, that victims who are mothers tend to underreport

DV at least in part due to their fear of being investigated by CPS. A report-

all DV policy therefore has a tangible chilling effect.

131

The question then

is how to balance the state’s objective of identifying a child who is at-risk

against an adult victim’s First Amendment right to petition.

132

Drew Kirkland, Captain, Portland, Or. Police Dep’t (June 6, 2000))). In addition, “Captain

Kirkland explained that officers are required to report the presence of children at any

domestic violence call. The police department’s records division forwards the officer’s

domestic violence reports in which children were present to the state child and family

protection agency.” Id. at 833 n.125.

129. Weithorn, supra note 119, at 29 (reviewing the complaints of DV advocates and

concluding, “There is evidence that many child protective systems have operated in this

manner, as well as for the ineffectiveness of the traditional child protection interventions for

adult domestic violence victims and their children.”).

130. See DeVoe & Smith, supra note 116, at 290 (“Even if actual system responses begin

to change to become more supportive of preserving the mother-child unit, battered women’s

perceptions of negative consequences for reporting domestic violence may remain a

significant barrier to seeking help for themselves or their children.”).

131. See Weithorn, supra note 119, at 29 (“[R]eporting requirements will only have . . . a

chilling effect if reports to child protective services are viewed negatively by battered

mothers. Unfortunately, at present, the history and ‘reputation’ of child protective services

involvement in domestic violence cases is anything but positive.”).

132. One point of clarification must be made before addressing this question. When a

police officer has probable cause to believe that a crime has occurred, such as that a mother

intentionally exposed her child to DV—a crime in a handful of states—she could properly be

arrested and charged. The right to petition is not a defense to criminal conduct. See, e.g.,

Richardson v. N.Y.C. Health and Hosps. Corp., No. 05 Civ. 6278(RJS), 2009 WL 804096, at

*9 (S.D.N.Y. Mar. 25, 2009) (finding that when the police have probable cause to arrest a

plaintiff, she cannot recover on the theory that she was arrested in retaliation for engaging in

protected speech; once probable cause is determined, an inquiry into the underlying motive

for the arrest need not be undertaken). That circumstance, however, is not the focus of this

Article. Instead, I examine the circumstance in which the police, as a matter of policy, refer

battered mothers to CPS without any investigation of whether a crime such as exposure to

DV has occurred. Here, the infringement on the right to petition is the reflexive reporting

policy. As implemented, this policy regulates petitioning, not child endangerment.

2012] RECOGNIZING THE RIGHT TO PETITION 861

B. Analyzing the Burden

For the reasons articulated in Part II.A, the right to petition, as a

separately enumerated right in the text of the First Amendment with a

distinct history and underlying purpose, deserves a separate doctrinal

analysis than the right to free speech. I join those scholars (and Justice

Scalia)

133

who argue that there is no principled justification for treating the

rights identically. A direct application of the analytical tests used to protect

speech—such as the public concern test in public employee speech, or the

content-based/content-neutral test, discussed below—is neither practical nor

desirable in Petition Clause analysis.

I do, however, argue that the report-all policy described above should be

subjected to the same rigor of scrutiny—strict—that the Court affords the

most suspect government restrictions on the right of speech. Less-than-

strict scrutiny is indefensible in the context of a battered mother’s call to the

police for the same reason it is indefensible when a government restriction

on speech leaves “no alternative avenue” for an individual to effectively

communicate her message, as discussed below. After demonstrating why

this is so, I apply strict scrutiny to the police practice at issue. I also argue

that even if a less-than-strict standard were applied, the reflexive, report-all

policy as applied to a battered mother violates her right to petition.

1. Rationales for Heightened Scrutiny in Speech Cases

The right to free speech is not absolute.

134

The government may infringe

on an individual’s free speech right, though there is a continuum of

protection, or “tiers of scrutiny,”

135

that courts apply to test whether the

infringement violates the First Amendment.

The level of judicial scrutiny that applies to a government restriction of

speech requires an examination of how it regulates speech.

136

If it restricts

the content of the speech, the law or policy is presumptively invalid

137

and

subjected to strict judicial scrutiny.

138

If it restricts the means or mode of

133. See Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2504–06 (2011) (Scalia, J.,

dissenting).

134. See Konigsberg v. State Bar of Cal., 366 U.S. 36, 49 (1961).

135. See Ashutosh Bhagwat, The Test That Ate Everything: Intermediate Scrutiny in

First Amendment Jurisprudence, 2007 U.

ILL. L. REV. 783, 784.

136. See Alan K. Chen, Statutory Speech Bubbles, First Amendment Overbreadth, and

Improper Legislative Purpose, 38 H

ARV. C.R.-C.L. L. REV. 31, 37 (2003) (“Contemporary

First Amendment doctrine establishes a bifurcated analytical framework that focuses initially

on how a particular law regulates expression.”); see also, e.g., Frisby v. Schultz, 487 U.S.

474, 481 (1988) (“As Perry makes clear, the appropriate level of scrutiny is initially tied to

whether the statute distinguishes between prohibited and permitted speech on the basis of

content.” (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983)));

Krotoszynski & Carpenter, supra note 28, at 1261 (“The strictness with which the Court

polices this rule is vital to the protection of speech activity because the presence or absence

of content neutrality determines the level of scrutiny to which a speech restriction will be

subjected.”).

137. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).

138. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 653 (1994).

862 FORDHAM LAW REVIEW [Vol. 81

speech, leaving available other avenues of communication, it is subject to a

variety of less rigorous, open-ended balancing tests, depending upon the

specific type of restriction and the place where the speech occurs.

139

these balancing tests, the court weighs the government’s interest in

restricting the speech against the speaker’s interest in expression; the

greater the government interferes with speech, the greater the burden on the

government to justify the interference.

140

The same framework may not easily be translated to right-to-petition

claims. Application of the content-based versus content-neutral distinction

to a battered mother’s call to the police is both unworkable on a practical

level and undesirable on a theoretical level. Practically, a policy that on its

face directs the police to report the presence of a child at the scene of

domestic violence, but not other types of violence, such as stranger violence

or community violence, may constitute a subject-matter (content-based)

restriction,

141

for it discourages, and sometimes punishes, communication

to the police about an entire subject—domestic violence.

142

On the other

hand, the speech contained in the petitions of some victims of DV—those

who are not mothers—is not infringed, for the policy of contacting CPS

does not apply to this group of DV victims. It simply does not make sense,

nor does it advance the analysis, to apply the content-based versus content-

neutral distinction.

The content-based, neutral distinction is also undesirable as a theoretical

matter in Petition Clause cases. As discussed in Part I.C, at the heart of

petitioning is access to a particular audience—the government—for the

139. See Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. &

MARY L. REV. 189, 190 (1983) (“The Supreme Court tests the constitutionality of content-

neutral restrictions with an essentially open-ended form of balancing. That is, in each case

the Court considers the extent to which the restriction limits communication, ‘the

substantiality of the government interests’ served by the restriction, and ‘whether those

interests could be served by means that would be less intrusive on activity protected by the

First Amendment.’” (quoting Schad v. Borough of Mount Ephraim, 452 U.S. 61, 70

(1981))).

140. See Id. at 190 (“The greater the interference with effective communication, the

greater the burden on government to justify the restriction.”).

141. To be subject matter neutral, a government policy cannot restrict communication of

or about an entire subject. “Such restrictions are directed, not at particular ideas, viewpoints,

or items of information, but at entire subjects of expression.” Id. at 239.

142. A central purpose of the content distinction is to prevent government restrictions

against particular viewpoints. Note, The Content Distinction in Free Speech Analysis After

Renton, 102 H

ARV. L. REV. 1904 (1989). I do not here discuss viewpoint discrimination,

which restricts speech not based on its subject, but on its speaker’s view, because this type of

discrimination does not seem to me to apply to the police policy at issue. That is to say, the

policy does not plausibly appear to favor the particular view of a mother over the particular

view of someone who is not a mother. See Rosenberger v. Rector & Visitors of the Univ. of

Va., 515 U.S. 819, 828–29 (1995) (“In the realm of private speech . . . government

regulation may not favor one speaker over another” and “[w]hen the government targets not

subject matter, but particular views taken by speakers on a subject, the violation of the First

Amendment is all the more blatant.”). Attempting even to conceptualize whether a battered

mother’s call to the police might be a viewpoint, at all, highlights the difficulty of a direct

application of a right to speech analytical tools to the right to petition.

2012] RECOGNIZING THE RIGHT TO PETITION 863

purpose of presenting a particular type of communication—a request for

redress. Beyond a threshold assessment of whether a petition is merely a

“sham,”

143

the content of the communication should be analytically

irrelevant.

144

The right to petition protects one’s access to the government.

Thus, the proper judicial inquiry should be focused on how greatly the

individual’s access is infringed.

It is the underlying rationale for, rather than direct application of, the

content-based versus neutral distinction that is applicable to petitioning.

Content-neutral restraints on speech generally leave the speaker free to shift

to other modes of expression and do not distort public debate.

145

Less than

strict scrutiny is defensible because these kinds of restrictions leave the

speaker ample alternative opportunities for expression. Without these

alternatives, the values that lie at the very core of the right to free speech are

threatened: public debate is skewed, truth-seeking is thwarted, self-

realization through expression is diminished, and the process of self-

governance is jeopardized.

146

When a DV victim calls the police for help, there quite simply is no

alternative avenue for communicating the message. She has nowhere else

to turn. The police have a monopoly—exclusive, complete, and total

control—over the provision of protection from immediate physical harm.

147

Applying less-than-strict judicial scrutiny to a government infringement of

the right, in this context, is not justifiable.

Nonetheless, should the Court determine that a less-than-strict level of

judicial scrutiny applies (though still something more than “intermediate”

level scrutiny), it is clear that the Court shows great concern for the

availability of alternative avenues of expression. Indeed, as Geoffrey Stone

first articulated in 1987, the Court applies a much more rigorous standard to

content-neutral restrictions when they leave no alternative avenues for

effective communication.

148

Stone compared a half-dozen Supreme Court

cases to make this point, all of which involved analysis of content-neutral

restrictions.

149

In three of the cases, the Court upheld the government

143. Wishnie, supra note 14, at 718 (“The threshold . . . for treating a petition as an

unprotected sham is reasonably high.” (citing BE & K Constr. Co. v. NLRB, 536 U.S. at

516, 531–32 (2002))).

144. As discussed in Part I.C, the right to petition is the right to communicate to the

government, regardless of the content of the communication.

145. Stone, supra note 139, at 200.

146. Scholars disagree about core First Amendment values. Regardless of which value

one might prefer, the above comprise a list of the most discussed First Amendment values.

See Bhagwat, supra note 30, at 993–94.

147. See Wishnie, supra note 14, at 731 (“The clearest instance of exclusive government

control may be criminal law: A victim who cannot petition the police has nowhere else to

turn, and thus special protection for petitioning on criminal matters would cohere strongly

with the court access doctrines.”).

148. See Stone, supra note 139, at 190 n.5.

149. Id.

864 FORDHAM LAW REVIEW [Vol. 81

restrictions;

150

in the other three the Court struck them down.

151

The

linchpin was whether there were meaningful alternative avenues for

communication.

152

More than twenty years later, Ashutosh Bhagwat

reached a similar conclusion about the Court’s treatment of content-neutral

restrictions of speech:

The commonality appears to be that the Court will uphold regulations of

speech so long as, in its view, the regulation keeps open for that speaker

ample alternative, and effective, channels of communication. If, however,

the Court concludes that the regulation effectively forecloses a speaker

from communicating her message, it is struck down.

153

The argument that alternative and effective avenues of communication

are as important to Petition Clause analysis as to Speech Clause analysis is

bolstered by the Court’s own reasoning in its most recent Petition Clause

decision, Guarnieri. There the Court observed that the government, when

acting as employer, provided multiple avenues of redress to protect public

employees’ rights, including filing a grievance with the union, filing an

administrative complaint, and filing a lawsuit under a host of state and

federal laws.

154

Although the Court treated Guarnieri’s claim as speech,

rather than as a petition, it did so (as discussed above) in the context of the

government’s special regulatory interests in the efficient and effective

operation of government.

In speech cases such as public employment, where the government has a

special regulatory interest—and indeed similarly in public forum cases,

150. U.S. Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114 (1981);

Heffron v. Int’l Soc’y for Krishna Consciousness, 452 U.S. 640 (1981); United States v.

O’Brien, 391 U.S. 367 (1968).

151. Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981); NAACP v. Button, 371

U.S. 415 (1963); Schneider v. State, 308 U.S. 147 (1939).

152. Indeed, Stone expresses this repeatedly. See Stone, supra note 139 at 190–92 n.5.

153. Bhagwat, supra note 135, at 790. To the list of cases Stone analyzed, Bhagwat

added these in the category of government restrictions the Court upheld, for providing

alternative avenues of communication: Thomas v. Chi. Park Dist., 534 U.S. 316 (2002); Hill

v. Colorado, 530 U.S. 703 (2000); Ward v. Rock Against Racism, 491 U.S. 781 (1989);

Frisby v. Schultz, 487 U.S. 474 (1988); Clark v. Cmty. for Creative Non-Violence, 468 U.S.

288 (1984). To the category of those struck down, for failing to provide alternative avenues

of communication, Bhagwat added: Int’l Soc’y for Krishna Consciousness v. Lee, 505 U.S.

672 (1992), and United States v. Grace, 461 U.S. 171 (1983). For a similar discussion, see

ODNEY A. SMOLLA, SMOLLA AND NIMMER ON FREEDOM OF SPEECH 3-71–3-74 (1994)

(describing the Court’s content-neutral restriction analysis as having an “accordion-like”

quality that the Court at times implements rigidly and at other times weakly).

154. The Court explained:

The government can and often does adopt statutory and regulatory mechanisms to

protect the rights of employees against improper retaliation or discipline, while

preserving important government interests. Employees who sue under federal and

state employment laws often benefit from generous and quite detailed

antiretaliation provisions. These statutory protections are subject to legislative

revision and can be designed for the unique needs of State, local, or Federal

Governments, as well as the special circumstances of particular governmental

offices and agencies.

Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2497 (2011) (citations omitted).

2012] RECOGNIZING THE RIGHT TO PETITION 865

where the government has a special proprietary interest—the Court will put

a brake on the rigor with which it scrutinizes the government restriction at

issue, in deference to the government’s special interests.

155

However, when

the government has no special interests, such as when the speech occurs in

an ordinary citizen’s home,

156

the Court has applied extra stringency both

because of the “long constitutional tradition of respecting ‘individual liberty

in the home’. . . and because of the absence of regulatory needs that exist

when the government is managing its own property.”

157

The courts of appeals have indeed applied these Speech Clause principles

to their Petition Clause analyses. In Thaddeus-X v. Blatter,

158

the court was

presented with the question of whether the public concern test should apply

to prisoners’ Petition Clause claims.

159

The court, like other circuit courts

of appeals, held that it could not be imported into the prison setting.

160

reaching its conclusion, the court observed that First Amendment claims

must be analyzed in context. It sketched out a continuum of situations:

Standing in a city park (the classic “public forum”) at a rally, a citizen is

free to say almost anything without interference from the government;

any restriction on his speech must be “narrowly tailored to serve a

significant government interest.” Standing in his office at a state agency,

an employee is free to speak up about matters of public concern; his

government employer “enjoy[s] wide latitude” in limiting other speech to

enable the office to function properly and efficiently. Standing in his cell

in a prison, an inmate is quite limited in what he can say; his government

155. See Bhagwat, supra note 135, at 789–90 (arguing that the Court’s decisions in City

of Ladue v. Gilleo, 512 U.S. 43 (1994), and Bartnicki v. Vopper, 532 U.S. 514 (2001), raise

serious doubts about whether the Court intends the relatively deferential Ward test to be a

general test for content-neutral regulations).

156. See City of Ladue v. Gilleo, 512 U.S. 43 (1994) (the Court struck down an ordinance

on signs posted on private homes, though there was no government proprietary interest at

stake); see also Bartnicki v. Vopper, 532 U.S. 514 (2001). Bhagwat relied on Bartnicki

when he reached the conclusion that there are “serious doubts about whether the Court

intends the relatively deferential Ward test to be a general test for content-neutral

regulations.” Bhagwat, supra note 135, at 791.

157. Bhagwat, supra note 135, at 790 (quoting the Court’s rationale in Ladue).

158. 175 F.3d 378 (6th Cir. 1999).

159. Id.

160. Id. at 393 (“Given the distinctive rights of the two types of plaintiffs, the separate

interests of the two types of government entities, and the dissimilar nature of the relationship

between the plaintiff and the government in these two settings, any honest attempt to

perform the balancing prescribed by the Supreme Court in Pickering cannot unhesitatingly

import reasoning from the public employment setting into the prison setting.”); see also

Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir. 2009) (citing the Fifth and Eighth Circuits,

and holding that the public concern test is not applicable in the prison context); Friedl v. City

of New York, 210 F.3d 79, 87 (2d Cir. 2000) (“[W]e reject the contention . . . that where the

[prisoner] alleges retaliation for . . . a petition to the government, he must ‘establish that the

speech contained in his petition . . . was a matter of public concern.’”); Cornell v. Woods, 69

F.3d 1383, 1388 (8th Cir. 1995) (applying Turner without mention of the public concern test

for prisoners’ claims); Jackson v. Cain, 864 F.2d 1235, 1248 (5th Cir. 1989) (applying

Turner’s “legitimate penological interests” test without mention of the public concern test

for prisoners’ claims).

866 FORDHAM LAW REVIEW [Vol. 81

jailor can impose speech-limiting regulations that are “reasonably related

to legitimate penological interests.”

161

Thus there is a continuum of settings within which the First Amendment

protects petitioning. When the setting changes, so too does conduct deemed

protected in the given setting.

162

Neither prisoners nor public employees

enjoy the same right of petition as do ordinary citizens. By virtue of their

conviction and incarceration, prisoners’ constitutional rights are limited.

Their right to petition guarantees them access to courts to attack their

sentences and conditions of confinement; it does not, however, guarantee

the ability to file “everything from shareholder derivative actions to slip-

and-fall claims.”

163

Public employees’ right to petition is also distinct from

that of ordinary citizens. A citizen who accepts an offer of employment

from the government “must accept certain limitations on his or her

freedom.”

164

The right to petition—when petitioning as employee, and not

as citizen—is limited to matters of public concern, by virtue of “the

consensual nature of the employment relationship and by the unique nature

of the government’s interest.”

165

In short, prisoners may be required to

tolerate greater infringement of their right than public employees, who may

be required to tolerate greater infringement of their right than ordinary

citizens.

A DV victim who calls the police for protection from bodily harm is

communicating as a private citizen to her sovereign. The government has

no special regulatory interest. The victim has no—not one—alternative

avenue for expression. She is communicating about a fundamental right—

that of bodily integrity.

166

A government infringement on her right to call

the police should be afforded the strictest scrutiny.

2. Application of Strict Scrutiny

Strict scrutiny requires that a restriction on speech is necessary to serve a

compelling interest and that there are no less speech-restrictive

alternatives.

167

This test establishes a very high burden for the

161. Thaddeus-X, 175 F.3d at 388–89 (citations omitted).

162. See id.

163. Lewis v. Casey, 518 U.S. 343, 355 (1996).

164. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).

165. Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2494 (2011).

166. I have not heretofore discussed the significance of the fact that a DV victim’s

petition pertains to a fundamental right. Compare a DV victim’s call to the police with a call

to the police to complain of a neighbor’s loud music. The Petition Clause does not discern

what might be described as “high value” petitioning, as might the Court’s interpretation of

the Speech Clause as protecting “high value” speech. See Stone, supra note 139, at 196

(discussing the notion of high value speech, as embodied in free speech jurisprudence). Yet

the court access doctrine does, as discussed infra note 231—and given this doctrine’s close

affiliation, indeed grounding in the right to petition, it seems worth mentioning here.

167. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

2012] RECOGNIZING THE RIGHT TO PETITION 867

government—not a general balancing test, but rather something

approaching absolute protection.

168

The protection of children from the risk of physical and emotional injury

is well-established in First Amendment jurisprudence as a compelling state

interest.

169

The question is whether the report-all policy is necessary and is

the least petitioning-restrictive means of identifying children at risk.

170

This is a factual, common-sense inquiry.

171

There are unquestionably less restrictive means for identifying children at

risk. Any investigation whatsoever on the part of the police would be a less

restrictive alternative. Police could, for example, as mandatory reporters of

child abuse, make the inquiry required of them by the mandatory reporting

statute in their state.

172

This would entail a “reasonable suspicion” or

“probable cause” inquiry. As discussed previously, the primary criticism of

these statutes is that they are vague, causing many professionals who are

mandated to report to be unnecessarily confused and, in an effort to avoid

liability, to over-report. Even if police, like other professionals, merely

over-reported, rather than reported-all, this would be a less petitioning-

restrictive means of identifying children at risk.

But police—unlike other professionals who are required to report—have

particularized expertise, training, and experience in analyzing reasonable

suspicion and probable cause. Of professionals who are required to report

168. See Stone, supra note 139, at 196 (observing that the “Court has invalidated almost

every content-based restriction that it has considered in the past quarter-century” to support

the characterization of judicial review of content-based analysis as a standard that

approaches absolute protection); see also S

MOLLA, supra note 153, at 3–69 (characterizing

“least restrictive means” as a standard that is extremely difficult to satisfy); Eugene Volokh,

Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U.

PA. L.

REV. 2417, 2439 n.95 (1996) (finding only one recent case in which the Supreme Court used

a balancing test in evaluating a content based restriction, and describing this as an

aberration).

169. This point is widely accepted, and has been for some time. See Prince v.

Massachusetts, 321 U.S. 158 (1944) (declining to recognize a religious exemption to a law

prohibiting underage employment). In the specific context of right to speech, particularly in

the strand of cases covering indecent speech, the Court has concluded that the state has a

compelling interest in protecting the physical and psychological well-being of children, see

e.g., Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989), though whether this is

an independent state interest or one in which the state has a secondary interest only to

parents’ ability to do so is unclear. See generally Ashutosh Bhagwat, What if I Want My

Kids to Watch Pornography?: Protecting Children from “Indecent” Speech, 11

WM. &

MARY BILL RTS. J. 671 (2003).

170. See Rutan v. Republican Party, 497 U.S. 62, 74 (1990); Sable Commc’ns, 492 U.S.

at 126; Fla. Star v. B.J.F., 491 U.S. 524, 538 (1989); Boos v. Berry, 485 U.S. 312, 329

(1988); Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 586

(1983).

171. For an argument that empirical data, not common sense, should be the government’s

burden in proving “least restrictive means,” see Alan E. Garfield, Protecting Children from

Speech, 57

FLA. L. REV. 565, 611–12 (2005) (arguing that only in the absence, but not

ambiguity of social science data should the Court choose not to rely upon data; otherwise, it

must discern which data is reliable).

172. See supra note 118 and accompanying text (citing the states’ mandatory reporting

statutes).

868 FORDHAM LAW REVIEW [Vol. 81

their reasonable suspicion that children are at risk of injury, police should

be the most well-equipped to make appropriate referrals. In fact, of all

mandated reporters, police should be making the most discerning—rather

than the most reflexive—reports.

In my inquiries to police departments across the nation, I found two

examples of policies that bridge the gap between the arguably vague

requirements of mandatory reporter statutes and the need for more precise

and effective police reporting practices. In Charleston, South Carolina,

when police respond to DV calls, they maintain significant discretion about

whether to report to CPS.

173

Within the ambit of possible referrals, there is

a presumption that, if a child witnessed the violence, a report will be made.

But the inquiry does not end there; these officers are trained to be

discerning. As one detective explained: “There is a difference between a

one year old hearing loud voices or argument and a three year old hearing a

parent threatening to kill the other parent or screams for help.”

174

Using

their discretion after investigation, the ultimate goal is for officers to have

“articulable knowledge” about whether a child actually might be in harm’s

way before reporting.

175

Another example is Atlanta’s policy. There the responding officer

submits to her supervisor a set of facts that includes the relationship of the

parties; the time, place, and date of the incident; whether children “were

involved or whether the act of family violence was committed in the

presence of children”; the type and extent of the alleged abuse; the

existence of substance abuse; the number and types of weapons involved;

the existence of any prior court orders; the number of complaints involving

persons who have filed previous complaints; the type of police action taken;

and “any other information that may be pertinent.”

176

Based on this more

discerning set of facts, the police in Atlanta make an informed, rather than

reflexive, decision with regard to reporting.

3. Application of a Balancing Test

If the report-all practice were analyzed under a less-than-strict level of

scrutiny, how much less scrutiny does it deserve? Given the absence of

clear guidance from the Supreme Court, I return to the less-than-strict line

of speech cases identified by Stone and Bhagwat,

177

in which the Court

struck down content-neutral restrictions on speech. Of these cases, NAACP

v. Button

178

provides the most valuable precedent for determining the

appropriate standard of judicial review. This is because Button, although in

173. Email from Mike Lyczany, Detective, Charleston Police Dep’t (Dec. 6, 2010) (on

file with author).

174. Id.

175. Id.

176. Email from N. Towns, Atlanta Public Affairs/Open Records Officer (Dec. 1, 2010)

(on file with author).

177. See supra notes 138, 153 and accompanying text.

178. 371 U.S. 415 (1963).

2012] RECOGNIZING THE RIGHT TO PETITION 869

name a right-to-speech case, was in actuality a case about the rights of

association and petition.

179

In the 1960s, the NAACP filed a lawsuit challenging a Virginia statute

that prohibited lawyers from soliciting legal business. As a matter of

practice, the NAACP routinely sought out potential plaintiffs for civil rights

litigation.

180

The Virginia statute restricted this practice. The Court, in

holding that the statute was unconstitutional, explained that “under the

conditions of modern government, litigation may well be the sole

practicable avenue” to effect political change.

181

Only a compelling state

interest could justify limiting such a First Amendment freedom.

182

The

mere existence of the law “could well freeze out of existence all such

activity on behalf of the civil rights of Negro citizens.”

183

Clearly, this was

a case centered around petitioning.

The Court found that “however valid [the State’s] interest” may be, “that

interest does not justify the prohibition of NAACP’s activities disclosed by

this record.”

184

The Court’s holding rested on the government’s failure to

show that the law was tailored narrowly enough to prevent the harms the

State identified. In effect, the Court explained, the law “proscribe[d] any

arrangement by which prospective litigants are advised to seek the

assistance of particular attorneys,” not just the evils (profit and the misuse

of the legal process for oppression) that the government intended to

prevent.

185

Important in this discussion was the Court’s explicit reluctance

to presume that the law curtailed “constitutionally protected activity as little

as possible” but rather its rigor in taking into account the numerous

potentially chilling applications of the law.

186

The Court concluded: “Broad prophylactic rules in the area of free

expression are suspect. Precision of regulation must be the touchstone in an

area so closely touching our most precious freedoms.”

187

The police report-

all policy is exactly the type of broad prophylactic rule that the Button court

condemned. There are several reasons the government might offer for the

policy, none of which justify its broad sweep.

179. See Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2500 (2011) (“Petitions to the

courts . . . can likewise address matters of great public import. In the context of the civil

rights movement, litigation provided a means for ‘the distinctive contribution of a minority

group to the ideas and beliefs of our society.’” (quoting Button, 371 U.S. at 431)); see also

Bhagwat, supra note 30, at 986 (noting that the Court in Button “struggled to apply a free

speech lens” to a case that “centered on litigation, a form of activity otherwise considered a

form of petitioning”); Spanbauer, supra note 17, at 45 (characterizing Button as a right of

petition case, though criticizing the Court for its conjunctive reading of the First Amendment

expressive guarantees rather than resting its decision exclusively on the Petition Clause).

180. See Button, 371 U.S. at 422.

181. Id. at 430.

182. Id. at 438.

183. Id. at 436.

184. Id. at 439.

185. Id. at 433.

186. Id. at 432.

187. Id. at 438.

870 FORDHAM LAW REVIEW [Vol. 81

a. Co-occurrence of DV and Child Abuse

There can be no doubt that children exposed to DV are harmed:

“Domestic violence against the mother is a common, and may be the single

most common, context for child abuse or neglect.”

188

The government

therefore might argue that it must cast its net widely to capture this

particular group of children who are at heightened risk of abuse.

189

While it is now “commonly accepted” that children exposed to DV are

harmed,

190

the data supporting this conclusion is wildly divergent. The

most frequently cited statistics are: (1) that the number of children in the

United States who live in homes in which DV occurs and who are

themselves injured or abused ranges from 3.3 to 10 million; and (2) that the

rate of overlap between child victimization and DV is anywhere between

6.5 percent and 82 percent.

191

In addition to the extremely broad range in these estimates, the empirical

work underlying this data has been criticized for its methodological

weaknesses.

192

The studies upon which these numbers are based rely on

reports from adult victims who are asked either about their child’s exposure

to DV, or about their own exposure to DV as children.

193

Both of these

measures are problematic. First, parents tend to underestimate the

frequency with which their children are exposed.

194

Second, there are

serious limits on adult memory and the reliability of self-reports of child

victimization, particularly if the victimization happened years in the past.

195

188. Evan Stark, The Battered Mother in the Child Protective Service Caseload:

Developing an Appropriate Response, 23 W

OMEN’S RTS. L. REP. 107, 109 (2002).

189. See Weithorn, supra note 119, at 22 (“Arguably, one advantage of including children

exposed to domestic violence within the ambit of reporting . . . statutes is the possibility that

the millions of such children who are not known to law enforcement and helping

professionals will be identified, so that the system can begin to assist them.”).

190. See Justine A. Dunlap, Sometimes I Feel Like a Motherless Child: The Error of

Pursuing Battered Mothers for Failure to Protect, 50 L

OY. L. REV. 565, 568 (2004) (noting

the common acceptance of this fact in the literature).

191. Jeffrey L. Edleson et al., Assessing Child Exposure to Adult Domestic Violence, 29

HILD & YOUTH SERVS. REV. 961, 962 (2007) (reviewing the empirical data regarding

children’s exposure to adult DV, and noting that the two most widely cited estimates are 3.3

million and 10 million); see also Stark, supra note 188, at 109 n.10 (explaining the origins of

the 6.5 percent and 82 percent). One need only type the phrase “3.3 million children” into a

Westlaw search to obtain forty-three citations for this number.

192. See, e.g., E

VE S. BUZAWA, CARL G. BUZAWA & EVAN STARK, RESPONDING TO

DOMESTIC VIOLENCE 397 (4th ed. 2012); Edleson et al., supra note 191, at 963 (“Most of

these are rough estimates of the number of children exposed to domestic violence and each

relies on imprecise definitions, retrospective accounts or indirect measurement to arrive at a

final number.”).

193. See Judy L. Postmus, Domestic Violence and Children’s Well-Being, in 2 V

IOLENCE

AGAINST WOMEN IN FAMILIES AND RELATIONSHIPS 1, 2 (Evan Stark & Eve S. Buzawa eds.,

2009).

194. See Evan Stark, The Battered Mother’s Dilemma, in 2 V

IOLENCE AGAINST WOMEN

FAMILIES AND RELATIONSHIPS, supra note 193, at 95, 111 (“Although an abused woman or

a perpetrator may deny children have witnessed the abuse, children often provide detailed

recollections of the very events they were not supposed to have witnessed.”).

195. See Postmus, supra note 193, at 2.

2012] RECOGNIZING THE RIGHT TO PETITION 871

In addition, the studies’ definitions of DV vary and are imprecise.

196

Finally, few studies detail the actual nature of the exposure; instead, the

question presented is generally dichotomous, failing to capture the co-

occurrence of exposure and actual injury to the child; the severity, type, or

frequency of the violence to which the child is exposed; the developmental

age of the child at the time of exposure; the child’s reaction to the exposure;

and the child’s relationship to the violent adult.

197

The problems with this

data have caused some scholars to conclude that they are “too discrepant to

settle on a single number that can root a public policy or institutional

response.”

198

Putting aside momentarily what have been described as “notorious[]”

methodological flaws with the data,

199

it cannot be argued—nor would I

want to argue—that children who are exposed to DV are not harmed.

Children are also harmed when they live in households in which they are

exposed to community (rather than domestic) violence, parental substance

abuse, homelessness, parental mental health illness, and a variety of other

conditions,

200

none of which trigger an automatic (i.e., without some

investigation of actual risk) call to CPS.

The question, then, is whether the harms resulting from the co-occurrence

of DV and child abuse are sufficiently widespread and serious to justify a

generic, reflexive, report-all intervention. This is the question that

renowned sociologist Evan Stark answered, as an expert witness in

Nicholson v. Williams,

201

about the CPS policy of charging battered women

with neglect and temporarily removing them from their homes when it was

alleged that the children were exposed to DV.

202

As Stark explained, the

“critical issue . . . is not whether domestic violence overlaps with child

maltreatment—it clearly does—but whether this link creates an emergent

risk to children and/or justifies an automatic finding of ‘neglect’ against the

victimized mother and/or the selection of placement as a first-line

option.”

203

To answer this question, he examined the two most frequently

196. See BUZAWA, BUZAWA & STARK, supra note 192, at 397 (noting that the different

estimates are a reflection of the varying definitions of DV and the resulting harms to

children); see also Postmus, supra note 193, at 2.

197. See Edleson et al., supra note 191, at 963 (“While these estimates give some insight

into the extent to which adult domestic violence and children’s exposure pervade society,

they tell us little about what forms of violence to which children are being exposed, how

often they are exposed to it and how they are involved in violent events.”); Postmus, supra

note 193, at 2–3.

198. B

UZAWA, BUZAWA & STARK, supra note 192, at 397.

199. Stark, supra note 188, at 114.

200. See id. at 110–11.

201. 203 F. Supp. 2d 153 (E.D.N.Y. 2002).

202. See Stark, supra note 188, at 109. Stark published his report in 2002, and he

republished and updated many of his findings in 2012, drawing many of the same

conclusions.

203. Id. at 113.

872 FORDHAM LAW REVIEW [Vol. 81

documented dangers associated with exposure: direct, physical injury, and

indirect injury as a consequence of witnessing DV.

204

b. Direct Physical Injury to a Child.

Children may be directly injured as an immediate consequence of an

assault on them, or injured incidentally during an assault on their primary

parent, such as when a mother is holding a child or when the child actively

intervenes to try to stop the violence.

205

Stark comprehensively reviewed

the empirical data with regard to the seriousness and prevalence of physical

injury to children who lived in households in which DV occurs.

With regard to the seriousness, he concluded that “[w]hile the seriousness

of injury . . . cannot be determined with certainty, existing evidence

suggests that [this type of injury] is minimal.”

206

One way he demonstrated

this was by reviewing a study of state police in Connecticut, where data

showed children were involved in 17.6 percent of cases where at least one

partner was arrested.

207

Stark noted that only 3 percent of offenders were

charged with risk of injury to a child, suggesting that relatively few cases

rose to the level that might be considered “abuse.”

208

Similarly, Stark

found that in another study in New York, 12.7 percent of cases “involved

medically significant injuries to victims, and an identical percentage of kids

suffered injur[ies] as well,” but only three of seventy-one kids required

outpatient medical treatment (an “only slightly higher” proportion than in

the Connecticut study).

209

“[T]he fact that children are not harmed in

somewhere between eighty-seven and ninety-seven percent of the most

serious domestic violence incidents, (i.e. where police or CPS are

involved), underlines the wisdom of a case-specific assessment rather than a

blanket approach that equates domestic violence with child abuse or

neglect.”

210

With regard to the prevalence of injuries to children, Stark noted that a

large, multi-city study found that children were involved directly in adult

DV incidents from 9 percent to 27 percent of the time (depending on the

city), and that younger children were disproportionally represented in

204. Stark examined a third alleged danger, that of the intergenerational effect of

witnessing DV between adults when one is a child. He found that while it “is widely

believed that exposure to violence in childhood predisposes children to subsequent

misbehavior or violence as adults,” there was no sound empirical evidence to support this

conclusion. Id. at 117–18. In 2012, Stark reiterated this conclusion. Id. at 408. I do not

therefore address it here.

205. See

BUZAWA, BUZAWA & STARK, supra note 192, at 401.

206. Stark, supra note 188, at 115; see also B

UZAWA ET AL., supra note 192, at 401.

207. See Stark, supra note 188, at 115.

208. See id.

209. Id.

210. Id.

2012] RECOGNIZING THE RIGHT TO PETITION 873

households where DV occurred.

211

To contextualize the prevalence of

injury to children in homes in which DV occurs, he compared these

children to those in the general population (in New York, where Nicholson

was tried), and to children in foster care (again, in New York).

212

He found

that the rate of harm to children that rises to the level of abuse in DV cases

(between 3 percent and 4 percent) is only slightly higher than in the general

population (2.5 percent) and less than the comparable risk factor in foster

care (5 percent).

213

In his later work, Stark cites a comprehensive

nationwide survey in which a nationally representative sample of 4,549

children aged seventeen or younger were asked about different types of

violence to which they may have been exposed and/or of which they may

have been direct victims;

214

6.2 percent witnessed an assault between their

parents

215

and 4.4 percent (of all children surveyed) reported an incident of

physical abuse by an adult family member.

216

To consider these findings in

context, note that 46.3 percent reported a physical assault within the past

year, while 10.2 percent reported a victimization-related injury.

217

This data, like Stark’s earlier data, demonstrates that childhood exposure

to DV is not a proxy for child abuse, as the police report-all policy appears

to treat it. Rather, a case by case investigation is required. Loose statistics

and “common” perceptions will not do, pursuant to Button.

c. The Harm of Witnessing DV

In his book, Children of Battered Women, renowned psychologist Peter

Jaffe linked witnessing DV to a range of physical, psychological, and

behavioral problems, such as low self-esteem in girls; aggression and

behavioral problems in boys and girls; reduced social competence;

depression, anxiety; and feelings of helplessness and powerlessness.

218

In a

more recent work, Jaffe clarified that the development of serious problems

in children depends upon a host of factors, including the resilience of the

particular child, the available support system, the child’s developmental

age, and the nature and extent of violence to which the child is exposed.

219

211. See John Fantuzzo et al., Domestic Violence and Children: Prevalence and Risk in

Five Major U.S. Cities, 36 J.

AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 116, 119–20

(1997).

212. See Stark, supra note 188, at 115.

213. See id.

214. See David Finkelhor et al., Violence, Abuse, and Crime Exposure in a National

Sample of Children and Youth, 124 P

EDIATRICS 1411, 1412 (2009), available at

http://pediatrics.aappublications.org/content/124/5/1411.full.pdf.

215. Id. at 1415.

216. Id. at 1414.

217. See id. at 1411.

218. See P

ETER JAFFE ET AL., CHILDREN OF BATTERED WOMEN 26–31, 40–41 (1985).

219. See generally C. Crooks et al., Factoring in the Effects of Children’s Exposure to

Domestic Violence in Determining Appropriate Postseparation Parenting Plans, in

OMESTIC VIOLENCE, ABUSE, AND CHILD CUSTODY: LEGAL STRATEGIES AND POLICY ISSUES

22.1–.25 (2010).

874 FORDHAM LAW REVIEW [Vol. 81

As Stark noted, other studies suggest that the vast majority of kids who

witness DV show no mental health or behavioral effects whatsoever or,

conversely, that over 80 percent retain their overall psychological

integrity.

220

And he found that “several carefully designed studies have

shown that children who witness violence are at no greater risk than

children in distressed relationships where no violence occurs.”

221

Moreover, the effects of witnessing appear to dissipate over time.

222

concluded that there is no evidence that serious problems are typical: he

characterized the boldest claims to the contrary as “spurious” because they

combined relatively infrequent acts of violence with widely accepted forms

of punishment.

223

The highest rates of behavioral problems uncovered by

these claims were for temper tantrums, reported for 17 percent of exposed

versus 10 percent of non-exposed children,

224

whereas “the percentages of

children experiencing the behavioral consequences that might concern

CPS—drinking, drugs or arrests—ranged between .2% to 2.9%”

225

Stark concluded,

The point, however, is that the rate of incidence neither justifies an

assumption of imminent risk, nor a generic policy that considers exposure

equivalent to abuse or neglect . . . . [A]lthough the literature abounds

with broad claims to the contrary, the serious effects of witnessing

parental violence that would merit a finding of maltreatment are limited to

an extremely small portion of exposed children.

226

Finally, Stark observed, “By generalizing from clinical samples that

exaggerate . . . the populations likely to be harmed, researchers have

unwittingly encouraged courts, state policy makers and CPS agencies to

mistakenly conclude that exposure to domestic violence is virtually

identical to maltreatment and therefore, requires emergent intervention.”

227

This is why, pursuant to Button, a police report-all policy must be struck

down. “Precision of regulation”—not “broad prophylactic rules”—is

required.

228

There simply is not sufficient evidence to support a blanket,

report-all, without-any-investigation police policy of referring all children

exposed to DV to CPS.

The government may counter that the police, as first-line responders, are

not trained experts in the complex set of factors, discussed above, that more

accurately predict risk to children living with DV. Thus, a better-safe-than-

sorry policy, which allows CPS, rather than the police, to make this

220. See Stark, supra note 188, at 116 (citing Sullivan et al., How Children’s Adjustment

Is Affected by Their Relationships to Their Mothers’ Abusers, 15 J.

INTERPERSONAL

VIOLENCE 587, 596 (2000) (over 80 percent reported a positive self-image)).

221. Stark, supra note 188, at 116.

222. See id. at 116.

223. Id. at 117.

224. Id.

225. Id. at 117.

226. Id.

227. Id. at 113.

228. NAACP v. Button, 371 U.S. 415, 438 (1963).

2012] RECOGNIZING THE RIGHT TO PETITION 875

determination is justified. In other words, while the policy may produce

false positives, this is tolerable in situations where children’s lives may be

in danger. That might arguably be the case if investigation by CPS did not

chill mothers’ calls to the police, and if CPS could effectively handle

massive numbers of reports while simultaneously protecting those children

most at risk. In the next section I demonstrate how neither of these

assumptions is true.

d. Children Who Are Abused by Their Caretakers Are the Least Likely

to Report the Abuse; Thus the State Must Cast Its Net Wide

to Bring These Children to the Attention of CPS

This government justification for increased police reporting to CPS rests

on another assumption: that battered mothers will continue to contact the

police to report DV, despite the risks associated with CPS intervention.

Often, the only witnesses of DV are the victims themselves and their

children. If women stop calling the police, the stated goal of the policy—to

increase CPS awareness of the “hidden” victims of DV, children—will be

thwarted.

229

As I have already demonstrated, the report-all policy has a

chilling effect on battered mothers’ calls to the police. To the extent that

the government has not anticipated this chilling effect, it cannot justify the

policy.

230

There is ample evidence that victims of DV, and the front-line people

who serve them—advocates at shelters, at courthouses, and in the

community—are highly skeptical of CPS intervention. They understand the

negative consequences of reporting DV and, as one scholar noted, “[T]he

word is out.”

231

Victims’ advocates widely argue that CPS misunderstands

the dynamics of DV, and that it blames victims for their own victimization

while simultaneously failing to hold the batterer accountable for his violent

conduct.

232

Indeed, CPS is notorious for using overly intrusive, coercive

sanctions against victims of DV.

233

Among these is the removal of children

from mothers who are physically assaulted by their partners or ex-partners

229. See Weithorn, supra note 119, at 29 (noting that commentators express concern that

expanded reporting requirements will have a chilling effect on victims’ willingness to seek

help from law enforcement and others, and stating that “reporting requirements will only

have such a chilling effect if reports to child protective services are viewed negatively by

battered mothers. Unfortunately, at present, the history and ‘reputation’ of child protective

services involvement in domestic violence cases is anything but positive.”).

230. See id.

231. Rabin, supra note 115, at 1111 (internal quotation marks omitted).

232. See Weithorn, supra note 119, at 29.

233. See Diana English et al., Domestic Violence in One State’s Child Protective

Caseload: A Study of Differential Case Dispositions and Outcomes, 27 C

HILD. & YOUTH

SERVS. REV. 1183, 1199 (2005) (describing the “popular mythology about the intrusive

nature of CPS in cases where DV is identified as an issue); Weithorn, supra note 119, at 29

(noting that DV advocates widely criticize CPS for its misunderstanding of DV and

mishandling of cases, concluding that “[t]here is evidence that many child protective systems

have operated in this manner, as well as for the ineffectiveness of the traditional child

protection interventions for adult domestic violence victims and their children”).

876 FORDHAM LAW REVIEW [Vol. 81

on the grounds that the mothers have failed to protect their children from a

risk of danger. In Nicholson, children were systematically removed from

their mothers’ custody when their mothers, but not the children, were

assaulted by an intimate partner or former intimate partner.

Sweeping reporting statutes result in substantial overreporting to CPS.

Statistics confirm that approximately 65 percent of the reports made to CPS

over the past two decades have been unfounded.

234

Nonetheless, CPS must

by law investigate all reports of suspected abuse. The consequence is an

extremely overburdened agency:

Sadly, modern child protective agencies are, to some extent, “driven” by

their mandate to investigate reported cases, with the result that

“investigation often seems to occur for its own sake, without any realistic

hope of meaningful treatment to prevent the recurrence of maltreatment or

to ameliorate its effects, even if the report of suspected maltreatment is

validated.”

235

Critics have thus argued that statutes and policies that encourage the

“reporting of any hint of abuse” are unwise in the long run: “When the

emphasis is on promptness and the number of reports made instead of the

quality of reports, the social service system collapses under the weight of

this front-end policy. In the end, children suffer.”

236

Returning once again

to Evan Stark’s analysis, an approach such as this, “which tolerates the

inclusion of ‘false positives’ in the population targeted for intervention,

might be benign where the interventions selected [are] without negative

234. See Singley, supra note 122, at 240 n.17 (arguing that child protection agencies are

inundated with unfounded reports of child abuse and neglect, and observing that in 1998, the

year the article was published, the rate of unfounded reports was 69 percent). The most

recent statistics published by the U.S. Department of Health & Human Services

Administration for Children and Families are, for 2009, showing the rate of unsubstantiated

reports as 64.3 percent. See C

HILD MALTREATMENT 2009, U.S. DEP’T OF HEALTH & HUMAN

SERVS. (2010), available at http://archive.acf.hhs.gov/programs/cb/pubs/cm09/cm09.pdf. In

2008 the rate of unsubstantiated reports was 64.7 percent. See C

HILD MALTREATMENT 2008,

U.S. DEP’T OF HEALTH & HUMAN SERVS. (2009), available at

http://archive.acf.hhs.gov/programs/cb/pubs/cm08/cm08.pdf. In 2007, 61.3 percent. See

HILD MALTREATMENT 2007, U.S. DEP’T OF HEALTH & HUMAN SERVS. (2008), available at

http://archive.acf.hhs.gov/programs/cb/pubs/cm07/cm07.pdf. In 2006, 60.4 percent. See

HILD MALTREATMENT 2006, U.S. DEP’T OF HEALTH & HUMAN SERVS. (2007), available at

http://archive.acf.hhs.gov/programs/cb/pubs/cm06/cm06.pdf. In 2005, 60.3 percent. See

HILD MALTREATMENT 2005, U.S. DEP’T OF HEALTH & HUMAN SERVS. (2006), available at

http://archive.acf.hhs.gov/programs/cb/pubs/cm05/cm05.pdf. In 2004, 60 percent. See

HILD MALTREATMENT 2004, U.S. DEP’T OF HEALTH & HUMAN SERVS. (2005), available at

http://archive.acf.hhs.gov/programs/cb/pubs/cm04/cm04.pdf. In 2003, 58 percent. See

HILD MALTREATMENT 2003, U.S. DEP’T OF HEALTH & HUMAN SERVS. (2004), available at

http://archive.acf.hhs.gov/programs/cb/pubs/cm03/cm2003.pdf. In 2002, 61 percent. See

HILD MALTREATMENT 2002, U.S. DEP’T OF HEALTH & HUMAN SERVS. (2003), available at

http://archive.acf.hhs.gov/programs/cb/pubs/cm02/cm02.pdf. In 2001, 59.2 percent. See

HILD MALTREATMENT 2001, U.S. DEP’T OF HEALTH & HUMAN SERVS. (2002), available at

http://archive.acf.hhs.gov/programs/cb/pubs/cm01/cm01.pdf.

235. Weithorn, supra note 119, at 58 n.243 (citing U.S.

ADVISORY BD. ON CHILD ABUSE &

NEGLECT, U.S. DEP’T OF HEALTH & HUMAN SERVS., NEIGHBORS HELPING NEIGHBORS: A

NEW NATIONAL STRATEGY FOR THE PROTECTION OF CHILDREN 9–10 (1993)).

236. Singley, supra note 122, at 250.

2012] RECOGNIZING THE RIGHT TO PETITION 877

consequences for the parties involved.”

237

Such is not the case, however,

with the reporting of suspected child abuse to CPS.

In sum, none of the justifications for an automatic, report-all policy

should survive the standard of review that the Court imposes on

infringements that, like the statute at issue in Button¸ leave no “practicable

avenue open . . . to petition for redress of grievances.”

238

III.

LARGER IMPLICATIONS FOR VIEWING A DV VICTIM’S CALL TO

THE

POLICE AS EXERCISING HER RIGHT TO PETITION

The conceptualization of a victim’s call to the police as an invocation of

a constitutional right has larger implications for both victims (the governed)

and policymakers and other state actors who respond to DV (the

governors). Feminist legal scholars widely criticize the justice system’s

response for providing a “one-size-fits-all” approach to DV.

239

The

Petition Clause provides legal justification, rather than policy grounds

alone, for the argument that government responses to victims must be much

more precise.

240

As I have written before,

241

the legal system’s responses to DV are

overwhelmingly premised on the notion that the victim can, and should,

separate from her intimate partner.

242

This overarching “separation

237. Stark, supra note 188, at 114.

238. NAACP v. Button, 371 U.S. 415, 430 (1963).

239. See, e.g., G. Kristian Miccio, A House Divided: Mandatory Arrest, Domestic

Violence and the Conservatization of the Battered Women’s Movement, 42

HOUS. L. REV.

237, 305 (2005) (describing the predominant, or “[p]rotagonist” ideology underlying the

current criminal justice system approach as emphasizing the need for victims to leave their

relationships as a deeply problematic one-size-fits-all approach); Nancy Ver Steegh & Clare

Dalton, Report From the Wingspread Conference on Domestic Violence and Family Courts,

FAM. CT. REV. 454, 456 (2008) (“In many jurisdictions domestic violence cases, identified

principally by evidence of physical violence, are handled on a one-size-fits-all basis.”);

Cheryl Hanna, Because Breaking Up Is Hard To Do, 116

YALE L.J. POCKET PART 92, 94

(2006), http://yalelawjournal.org/images/pdfs/65.pdf (“We should always rethink our

strategies and avoid one-size-fits-all approaches. The criminalization of domestic violence is

still in its infancy, and we have much to learn about what works best and for whom.”).

240. See Button, 371 U.S. at 438 (“Broad prophylactic rules” will not do; rather,

“[p]recision of regulation must be the touchstone in an area so closely touching our most

precious freedoms.”).

241. See Kuennen, supra note 4, at 532–33.

242. See G

OODMAN & EPSTEIN, supra note 71, at 5. The authors note:

[P]olice, prosecutors, and judges typically assume that the only acceptable choice

for a survivor is to separate from her partner. However, recent data demonstrate

that staying may be the safer option for some victims. Still, when a woman

expresses a desire to be safe but also to remain in her relationship, system actors

are increasingly likely to substitute their own judgment for hers, encouraging or

even coercing her to leave. The result is that many women avoid shelters and the

criminal justice system altogether, and the potential benefits of these resources are

seriously undermined.

Id.; see also

GOODMARK, supra note 71, at 96 (“By enacting and funding separation-based

remedies to the exclusion of other responses, the state has made a normative choice about the

value of relationships that involve abuse. As sociologist Phyllis Baker writes, ‘The overall

goal of the cultural script for battered women is to leave and to stay away from their abuser.’

878 FORDHAM LAW REVIEW [Vol. 81

approach” as a means of ending DV underlies virtually every law and

policy addressing DV.

243

The reality is that many victims choose not to

separate from their partners for a variety of reasons. One is the rational fear

that doing so will put them in greater danger.

244

Multiple other barriers to

separation have been well documented, including dependence on the

relationship for money, housing, and immigration status, to name just a

few.

245

Thus the notion that a victim can, should, or even desires to separate

from her partner presents a number of challenges. When victims do not

leave—or when they reconcile—with their partners, they are seen as

pathological, incapacitated, weak, not credible, and annoying.

246

Their

petitions are routinely met with hostility and frustration by police,

prosecutors, judges, and court personnel.

247

Police have blamed victims for

The script for the legal system is the same.” (quoting Phyllis Baker, And I Went Back:

Battered Women’s Negotiation of Choice,” 26 J.

CONTEMPORARY ETHNOGRAPHY 58

(1997))).

243. For the most recent and thorough iteration of this argument, see G

OODMARK, supra

note 71, at 80–105.

244. See A

NGELA BROWNE, WHEN BATTERED WOMEN KILL 61, 144 (1987) (discussing the

high incidence of further abuse and the risk of homicide); Sarah M. Buel, A Lawyer’s

Understanding of Domestic Violence, 62

TEX. B.J. 936, 937–38 (1999) (arguing that one of

the reasons many women stay in violent relationships is their reasonable fear that their

partners will follow through on threats to hurt the women or her children); 3 “Failure to

Protect” Working Grp., Charging Battered Mothers with “Failure to Protect”: Still

Blaming the Victim, 27

FORDHAM URB. L.J. 849, 858–59 (2000) (describing how “during and

after separation the batterer is most likely to stalk, harass and even kill the mother,” and thus

why women should take batterers’ threats seriously in concluding that it is safer in the short

term to stay in the relationship).

245. See generally Buel, supra note 244; Mary Ann Dutton, Understanding Women’s

Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome, 21

HOFSTRA

L. REV. 1191 (1993); Jinseok Kim & Karen A. Gray, Leave or Stay?: Battered Women’s

Decision After Intimate Partner Violence, 23 J. INTERPERSONAL VIOLENCE 1465 (2008); Vera

E. Mouradian, Women’s Stay-Leave Decisions in Relationships Involving Intimate Partner

Violence (Wellesley Ctrs. for Women, Working Paper No. 415, 2004), available at

http://www.wcwonline.org/Past-years/battered-women-what-goes-into-the-stay-leave-

decision.

246. See G

OODMARK, supra note 71, at 76–77 n.61 (arguing that battered women who do

not conform to stereotypical ideas about victims, such as that victims should desire to

separate from their partners, are not believed in court and are viewed with skepticism by

police, judges, and jurors); Naomi R. Cahn, Inconsistent Stories, 81 G

EO. L.J. 2475, 2488

(1993) (explaining the degree to which DV victims are judged for not leaving and the

problem with this assessment in light of evidence that leaving is dangerous); Laurie S. Kohn,

The Justice System and Domestic Violence: Engaging the State but Divorcing the Victim, 32

N.Y.U.

REV. L & SOC. CHANGE 191, 240–41 (2008).

247. See Jane K. Stoever, Freedom From Violence: Using the Stages of Change Model to

Realize the Promise of Civil Protection Orders, 72 O

HIO ST. L.J. 303, 336 n.158 (2011) (“I

have witnessed clerks confronting petitioners with the affidavits they were attempting to file

and demanding to know: ‘We were here three, seven, and ten years ago. Why didn’t you

file sooner?’”); id. at 337 n.161 (“[R]eporting on the commonality with which judges believe

that if the abuse was severe enough, the abuse survivor would have left, and their explicit

expression of this belief from the bench.”).

2012] RECOGNIZING THE RIGHT TO PETITION 879

post-reconciliation violence.

248

Judges have been reluctant to issue

restraining orders to women who they have previously seen dismiss their

orders so that they may continue their relationships.

249

Court clerks have

discouraged victims from filing petitions for restraining orders.

250

When a

victim seeks to petition the government for help and is met with roadblocks,

hostility, and anger, these actions violate the spirit of the Petition Clause.

This hostility exists on a continuum. When it moves from a discouraging

remark into the realm of holding the victim accountable for the DV, it may

violate not merely the spirit of the Clause, but the letter of the law. For

example, in some jurisdictions, victims who are protected by restraining

orders and who subsequently have contact with their restrained partners

have been fined,

251

held in contempt of court,

252

or criminally charged with

aiding and abetting the partner’s violation of the order.

253

Prosecutors have

threatened to bring criminal charges against women who do not testify

against their partners,

254

threatened to have them jailed,

255

and in fact have

had women arrested and jailed.

256

One victim who was jailed remarked,

248. As the court noted in City of North Olmstead v. Burlington, 744 N.E.2d 1225, 1229

(Ohio Ct. App. 2000), when the police found a victim of domestic violence together with a

man against whom she had obtained a protection order, the police not only arrested her, but

“attempted to make the victim responsible for the offender’s behavior.”

249. See Epstein, supra note 117, at 39–40 (documenting the openly hostile and

discouraging remarks made by court clerks and judges to victims of domestic violence who

petition the courts for civil protection orders); see also Alafair S. Burke, Domestic Violence

As a Crime of Pattern and Intent: An Alternative Reconceptualization, 75 G

EO. WASH. L.

REV. 552, 578–79 (2007) (stating that judges are preoccupied with the woman’s psyche,

rather than focusing on the abuser’s actions).

250. See Epstein, supra note 117, at 26.

251. See, e.g., Francis X. Clines, Judge’s Domestic Violence Ruling Creates an Outcry in

Kentucky, N.Y.

TIMES, Jan. 8, 2002, at A14 (noting that a Kentucky judge fined two victims

who contacted their abusers when a protection order was in effect, and said in court, “When

these orders are entered, you don’t just do whatever you damn well please and ignore

them”).

252. The Iowa Supreme Court has twice upheld such contempt charges. See Henley v.

Iowa Dist. Court, 533 N.W.2d 199, 203 (Iowa 1995); Hutchenson vs. Iowa Dist. Court, 480

N.W.2d 260, 264 (Iowa 1992). See generally Marya Kathryn Lucas, An Invitation to

Liability?: Attempts at Holding Victims of Domestic Violence Liable As Accomplices When

They Invite Violations of Their Own Protective Orders, 5 G

EO. J. GENDER & L. 763 (2004).

253. See, e.g., Stephanie Simon, Judges Push for Abused to Follow the Law, L.A.

TIMES,

Jan. 22, 2002, at A6 (noting that “[i]n Illinois, some judges hold women in contempt for

disavowing their initial complaints of abuse after reconciling with their [abusers],” and, in

North Carolina, “some judges . . . charge[] women a $65 fee if they apply for a protective

order then [later] decide to drop the matter”).

254. See

GOODMAN & EPSTEIN, supra note 71, at 76 (describing prosecutors’ regular

practice of issuing subpoenas to victims and forcing them to testify by threat of prosecution);

OODMARK, supra note 71, at 126–27 (describing similar coercive prosecutorial policies and

documenting the experiences of four women: one of whom was jailed for failing to testify;

two who were threatened with prosecution; and one who reluctantly testified but recanted,

who was not jailed but was asked by the judge during trial: “We’re here trying this case

because you are a liar. Is that correct?”).

255. See

GOODMAN & EPSTEIN, supra note 71, at 76.

256. See id. (“As one example, in Albany, New York, a victim refused to testify for the

prosecution because of her extreme fear of her former boyfriend and her previous

experiences with the criminal justice system’s failure to offer her meaningful assistance. At

880 FORDHAM LAW REVIEW [Vol. 81

“I’m never calling the police again—even if I’m dying, I’m not going to

call them.”

257

Finally, prosecutors have threatened women that “their case

would be referred to child protective services and they might lose their

children.”

258

When police, judges, and prosecutors act in a manner that deters the

petitioning activity of a victim, and that deterrence can be causally linked to

the victim’s attempt to exercise her right to petition, a victim may assert a

§ 1983 First Amendment retaliation claim.

259

One court of appeals has

decided such a case involving a victim of DV. In Meyer v. Board of County

Commissioners,

260

the plaintiff had been involved in an intimate

relationship with a man who was close friends with police officers where

she lived.

261

This man punched her in the face.

262

The victim attempted to

the prosecutor’s request, the judge held the woman in contempt of court and imprisoned her

for an entire week.”); GOODMARK, supra note 71, at 126.

257. G

OODMARK, supra note 71, at 126 (citing Michelle Henry, Pregnant Woman “Never

Calling the Police Again,” T

ORONTO STAR (April 8, 2008), http://www.thestar.com/

printArticle/411222.

258. G

OODMAN & EPSTEIN, supra note 71, at 76; see also Epstein, supra note 117, at 34–

35 (cautioning that one unintended risk posed by an integrated domestic violence court is

that more battered mothers may be at risk of criminal liability for DV perpetrated by their

battering partners on, or in front of, children). Using the specific example of Phyllis

Ojokolo, a client represented by Epstein who reported her husband’s abuse of one of their

children to a Washington, D.C., prosecutor, who then filed child abuse charges against the

husband and failure to protect charges against Phyllis, stating that the charges were “a

‘carrot,’ telling Phyllis that if she followed through on her civil protection order case, the

failure to protect charges would be dropped.” Epstein noted,

In communities and cities like Washington D.C., stories like this one spread

rapidly. Several clients have subsequently shared similar stories with me and have

asked whether they can seek protection without risking their relationships with

their children. In light of my experience with Phyllis, it is a difficult question to

answer.

Id. at 36.

259. 42 U.S.C. § 1983 (2006) (reading, in relevant part, “Every person who, under color

of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress”). While a victim may

file a § 1983 claim arguing an infringement on her First Amendment right to petition, I am

aware of the challenges to be overcome in seeking to develop substantive constitutional

rights. Recently, scholars have persuasively argued that the federal courts are in the business

of chipping away at, rather than bolstering or even affirming individuals’ constitutional

rights. While beyond the scope of this Article, I note the following body of scholarship on

this issue: Erwin Chemerinsky, Closing the Courthouse Doors to Civil Rights Litigants, 5 U.

PA. J. CONST. L. 537 (2003); Erwin Chemerinsky, Closing the Courthouse Doors:

Transcript of the 2010 Honorable James R. Browning Distinguished Lecture in Law, 71

ONT. L. REV. 285 (2010); Alan K. Chen, Rosy Pictures and Renegade Officials: The Slow

Death of Monroe v. Pape, 78 UMKC

L. REV. 889, 910 (2010); John C. Jeffries, Jr., The

Right-Remedy Gap in Constitutional Law, 109 Y

ALE L.J. 87 (1999); Pamela S. Karlan, Shoe-

Horning, Shell Games, and Enforcing Constitutional Rights in the Twenty-First Century, 78

UMKC

L. REV. 875 (2010); Alex Reinert, Procedural Barriers to Civil Rights Litigation and

the Illusory Promise of Equity, 78 UMKC

L. REV. 931 (2010).

260. 482 F.3d 1232 (10th Cir. 2007).

261. See id. at 1235.

2012] RECOGNIZING THE RIGHT TO PETITION 881

report the violence to the police on four occasions, who gave her the run-

around.

263

Upset, she confronted the ex-boyfriend in person.

264

Though

she never threatened him nor acted violently, when the police responded

they arrested her and involuntarily committed her to a psychiatric hospital

for the weekend.

265

The Tenth Circuit ruled in favor of the victim.

266

The police conduct at issue in Meyer is egregious; involuntarily

committing a victim who tries to report DV presents an extreme and (one

hopes) fringe case. Yet in its ruling in favor of the victim, the court focused

less on the ultimate police act than on the resistance with which the victim

was met when she attempted to file her report.

267

The relatively low level, every day, commonly experienced hostility of

state actors to victims of DV has been widely observed in the legal

literature.

268

A routinely hostile police officer may do just as much

damage—or more—than the singular though egregious act of the police in

Meyer, if he or she has developed a negative reputation among victims, or

their advocates in the community. So too may a hostile court clerk.

269

If a

prima facie case of retaliation is built around what would chill an average

person’s willingness and ability to petition, even discouraging remarks

262. See id.

263. See id.

264. See id.

265. See id. at 1236.

266. See id.

267. See id. at 1243 (“We have held that denying the ability to report physical assaults is

an infringement of protected speech. In this connection, we are persuaded by the

unpublished opinion in Rupp v. Phillips. There we held that reporting a danger of

commission of crimes was protected by the First Amendment. We thus conclude that ‘filing

a criminal complaint with law enforcement officials constitutes an exercise of the First

Amendment right’ to petition the government for redress of grievances. Under these

precedents we agree with plaintiff that her attempt to report an alleged criminal offense was

conduct protected by the First Amendment.”) (citations omitted) (quoting Estate of Morris v.

Dapolito, 297 F. Supp. 2d. 680, 692 (S.D.N.Y. 2004).

268. See supra notes 244–56 and accompanying text; see also Martha Minow, Words and

the Door to the Land of Change: Law, Language, and Family Violence, 43

VAND. L. REV.

1665, 1681–82 (1990) (describing the need for observers of DV to blame the victim);

Elizabeth M. Schneider, The Violence of Privacy, 23 C

ONN. L. REV. 973, 983 (1991)

(“Instead of focusing on the batterer, [the law] focus[es] on the battered woman, scrutinize[s]

her conduct, examine[s] her pathology and blame[s] her for not leaving the relationship, in

order to maintain that denial and refuse to confront the issues of power. Focusing on the

woman, not the man, perpetuates the power of patriarchy.”).

269. By way of explanation, I note here at the mention of court clerks that, though beyond

the scope of this Article, the court access doctrine applies as well. For a discussion of this

doctrine as it relates to the right to petition, see Wishnie, supra note 14, at 730–31 (“[C]ourt

access cases challenging systemic government interference . . . instruct that even government

rules which indirectly burden petitioning, such as filing fees, are suspect when the

petitioning involves a fundamental right and the state exercises exclusive control of the

means of resolution of the dispute . . . . Applying the guidance of the court access cases . . .

an immigrant victim of domestic or other violence who seeks civil and criminal intervention

is petitioning about a fundamental right to bodily integrity, and perhaps against slavery.”).

882 FORDHAM LAW REVIEW [Vol. 81

could quite predictably—and effectively—have a significant deterrent

effect.

270

Because the Petition Clause is designed to assure that “a particular

audience—‘the government’—is forever open to hear a specialized kind of

expression—a [request] for a redress of grievances”

271

—feminist legal

scholars and policymakers, lawyers for battered women, and lay advocates

in the community should be encouraged by—and think carefully about—

how far the Petition Clause could, and should, extend to protect the rights of

victims of DV, who are among the most likely of crime victims to

underreport to law enforcement.

Perhaps the most encouraging and significant way in which the

underlying purpose of the right to petition, if not the right itself, has found

expression in the context of DV is illustrated by two whistleblower

exceptions for DV victims contained in the Violence Against Women Act.

The first exception protects undocumented immigrant-victims’ reports to

police. It allows the U.S. Attorney General to cancel deportation for

battered spouses and children who report DV, while U-Visas provide

immigration relief to any immigrants, whether victims of DV or stranger

violence, for cooperating with the prosecution of the perpetrator.

272

Congressional findings support the conclusion that the VAWA was passed

implicitly, if not explicitly, to protect DV victims’ ability to petition:

Domestic battery problems can become terribly exacerbated in marriages

where one spouse is not a citizen, and the non-citizens [sic] legal status

depends on his or her marriage to the abuser. Current law fosters

domestic violence in such situations by placing full and complete control

of the alien spouse’s ability to gain permanent legal status in the hands of

the citizen or lawful permanent resident spouse . . . . Consequently, a

battered spouse may be deterred from taking action to protect himself or

herself, such as filing for a civil protection order, filing criminal charges,

or calling the police, because of the threat or fear of deportation.

273

Similarly, to address the problem that Lapidus and Fais identified,

274

landlords’ ability to evict DV victims who call the police to their homes, the

VAWA provided that reports to police of DV “‘shall not be good cause for

270. This is not to say that any act of a police officer or other government official will

create a constitutionally cognizable § 1983 claim. The plaintiff must satisfy all of the

elements of a claim, which vary across circuits but generally include that the plaintiff: (1)

“was engaged in constitutionally protected activity [such as filing a police report]; [(2)] the

defendant’s actions caused the plaintiff to suffer an injury that would chill a person of

ordinary firmness from continuing to engage in that activity; and [(3)] the defendant’s

adverse action was substantially motivated as a response to the plaintiff’s exercise of

constitutionally protected conduct.” See, e.g., Van Deelan v. Johnson, 497 F.3d 1151, 1155–

56 (10th Cir. 2007).

271. See Wishnie, supra note 14, at 725–26.

272. For a recent, concise summary of the law as it pertains to immigrants, see Laura

Carothers Graham, Relief for Battered Immigrants Under the Violence Against Women Act,

10 D

EL. L. REV. 263 (2008).

273. H.R.

REP. NO. 103-395, at 26 (1993).

274. See supra notes 24–25 and accompanying text.

2012] RECOGNIZING THE RIGHT TO PETITION 883

terminating the assistance, tenancy, or occupancy rights of the victim of

such violence’” in federally subsidized housing.

275

The law also provided

protection for victims who share a household with an abusive partner:

Criminal activity directly relating to domestic violence, dating violence,

or stalking . . . shall not be cause for termination of assistance, tenancy, or

occupancy rights if the tenant or an immediate member of the tenant’s

family is the victim or threatened victim of that domestic violence, dating

violence, or stalking.

276

Finally, the VAWA made clear that for public housing agencies to receive

funding, their policies cannot “‘prohibit or limit a resident’s right to

summon police or other emergency assistance in response to domestic

violence.’”

277

The VAWA does not provide such whistleblower protections for battered

mothers who are reported to CPS. A whistleblower protection would, of

course, cohere strongly with the spirit of the Petition Clause. Could the

addition of “battered mothers” within the classes of DV victims whose calls

to the police are protected be a viable solution to the battered mother’s

dilemma? Could not state actors—judges, police, clerks, to name but a

few—who intentionally discourage and resist victims’ efforts to seek

redress be held accountable? Filtering the barriers to reporting DV through

a Petition Clause lens has tremendous, and as of yet, untapped legal

potential.

278

More broadly, viewing a DV victim’s call to the police as the exercise of

a constitutional, political right has inherent appeal. It is consistent with the

way that activists in the battered women’s movement of the 1960s and

1970s viewed it. They argued that DV hindered women’s ability “to move

freely and confidently in the world,”

279

to participate in the political

process, and to fully develop as citizens.

280

These concerns lie at the heart

of the right to petition.

275. See Fais, supra note 21, at 1206 (quoting 42 U.S.C. § 1437f(c)(9)(B) (2000 & Supp.

V 2005)).

276. 42 U.S.C. § 1437f(c)(9)(C)(i) (2006).

277. Violence Against Women and Department of Justice Reauthorization Act (VAWA)

of 2005, Pub. L. No. 109-162, tit. VI, § 601, 119 Stat. 2960, 3036 (2006).

278. Attorneys for DV victims—particularly attorneys who devote their careers to

thinking about how the legal system might better respond to the needs of DV victims—who

want to develop the Petition Clause as a source of substantive constitutional rights should

think broadly about the many factual and procedural contexts in which the right could be

asserted. See Nancy Leong, Making Rights, 92 B.U.

L. REV. 405, 481 (2012) (arguing that

rights made in multiple contexts are more balanced and more comprehensive, and we must

thus “act intentionally to ensure that rights-making occurs in contexts likely to assure that

judges take account of all the interests those rights serve to vindicate and protect”).

279. S

CHECHTER, supra note 64, at 317 (describing the history of the battered women’s

movement).

280. See E

LIZABETH M. SCHNEIDER, BATTERED WOMEN & FEMINIST LAWMAKING 21–22

(2000).

884 FORDHAM LAW REVIEW [Vol. 81

The early movement was committed to women’s self-determination and

democratic participation.

281

Much of this has changed. For a variety of

reasons, battered women’s organizations and advocates act more as service

providers to victims, less as political activists.

282

The resounding call by

feminist legal scholars today is for the movement to return to its political

roots.

283

Conceptualizing the reporting of DV to the state as a fundamental,

political right guaranteed by the First Amendment is one step in that

direction.

A note of caution: Victims themselves may not view their reports to the

police as political acts. Characterizing the justice system’s response to DV

as political, and hence a matter of public concern, has had many unintended

consequences, including diminishing a victim’s ability to privately order

her life. “Privacy is something that most people appear to want in

relationships. Accordingly, it may be unfair and counterproductive to

expect battered women simply to relinquish their privacy in the name of

politics.”

284

Battered mothers should not be forced to call the police in the

name of feminist activism; rather, battered mothers should be able to

petition the government for redress, if they so choose, in the same way that

mothers who are victims of stranger violence may do and in the same way

that any ordinary citizen may do.

ONCLUSION

In this Article, I examined the state’s response to DV through a novel

legal lens, the Petition Clause of the First Amendment, to demonstrate how

a victim’s call to the police to report violence in her home is an exercise of

a fundamental, constitutional right. When the state—through a law,

practice, or policy—deters a citizen from exercising her right to petition, the

policy should be analyzed with the strictest of scrutiny. This is particularly

true of DV victims’ petitions to the police, given that protection from bodily

harm is one of the most fundamental services that the government can

provide, and that the police have exclusive control over its provision.

More broadly, viewing DV victims’ requests to the state for assistance—

whether made to the criminal or civil justice system—as First Amendment

petitions shines constitutional light on the continuum of deterrents with

which victims are met by the system and actors within it. As of yet,

281. See id.

282. See id. at 22–23.

283. See, e.g., G

OODMAN & EPSTEIN, supra note 71, at 94 (“[T]he battered women’s

movement must revisit its roots; it must refocus on supporting and empowering women and

incorporating individual responsiveness into government and community programs.”);

CHNEIDER, supra note 280, at 28 (“[T]he rallying cry for many feminists who continue to do

trailblazing work on battering in the United States has been, as women’s international human

rights scholar Rhonda Copelon has put it, to ‘bring Beijing home,’ to reshape domestic

violence work in this country with the explicitly feminist political and expansive social

vision that first inspired the issue’s advocates.”); Miccio, supra note 239, at 247–56.

284. Kathryn K. Baker, Dialectics and Domestic Abuse, 110 Y

ALE L.J. 1459, 1460

(2001).

2012] RECOGNIZING THE RIGHT TO PETITION 885

scholars, policymakers, and advocates for victims have not sufficiently

tapped the potential of the Petition Clause to expose and address

government practices that chill victims’ petitions.