Eric Schnapper, "Libelous" Petitions for Redress of Grievances -- Bad Historiography Makes Worse Law, 74 Iowa L. Rev. 303 (1989), https://digitalcommons.law.uw.edu/faculty-articles/298
Iowa Law Review
Both the majority and concurring opinions in McDonald v. Smith, 472 U.S. 479 (1985), concluded that there was no historical basis for McDonald's contention that the framers understood the right to petition to include an unqualified right to do so without being subject to suit for libel. This Article argues that the historical analysis in McDonaldis incorrect; indeed, this appears to be one instance in which the relevant historical materials are both voluminous and crystal clear.
Part I evaluates the McDonald Court's discussion of the intent of the framers. Subsequent sections discuss the wide variety of materials that the Court failed to consider; Part II explains the origins of the petition clause in England's 1689 Bill of Rights, Part III summarizes the pre-1791 case law holding that a libel action could not be founded on the contents of a petition, and Part IV sets forth the discussion of the same issue in eighteenth century legal tracts. Part V discusses the specific right to petition within the broad context of the first amendment. The Article concludes that the degree of protection from libel suits now accorded to criticism of government conduct is seriously deficient and significantly weaker than existed in 1791.