___ U.S. ____ (2002)
http://supct.law.cornell.edu/supct/html/00-1737.ZS.html
Vote: 8 (Breyer, Ginsburg, Kennedy, O’Connor, Scalia, Souter, Stevens,
Thomas)
1
(Rehnquist)
Opinion of the Court: Stevens
Concurring Opinions: Breyer, Scalia
Dissenting Opinion: Rehnquist
Stratton, an Ohio
village of 278 people, passed an ordinance that prohibits “canvassers” from
going on private residential property to promote any cause without first
obtaining a permit from the mayor’s office by completing and signing a
registration form. Upon signing the form, the canvassers can then go on
premises they listed on the form, but they must carry the permit and show it
whenever requested to do so by a police officer or by a resident.
Watchtower Bible
& Tract Society, a society and a congregation of Jehovah’s Witnesses that
publishes and distributes religious materials, challenged the ordinance,
alleging that it violated their First Amendment rights of freedom of religion,
speech, and press. In a U.S. District Court, the Society introduced some
evidence to show that the ordinance was the product of the mayor’s hostility to
their ministry. But the court-- apparently convinced by the mayor’s testimony
that the ordinance had been designed to protect the privacy rights of
Stratton's residents “from ‘flim flam’ con artists who prey on small town
populations,” ruled against the society. The U.S. Court of Appeals for the
Sixth Circuit affirmed. It concluded that the Village’s interests in protecting
its residents from fraud and undue annoyance and its desire to prevent
criminals from posing as canvassers in order to defraud its residents were
sufficient to justify the regulation.
Justice
Stevens delivered the opinion of the Court.
We
granted certiorari to decide the following question: “Does a municipal
ordinance that requires one to obtain a permit prior to engaging in the
door-to-door advocacy of a political cause and to display upon demand the
permit, which contains one’s name, violate the First Amendment protection
accorded to anonymous pamphleteering or discourse?”
For
over 50 years, the Court has invalidated restrictions on door-to-door
canvassing and pamphleteering. It is more than historical accident that most of
these cases involved First Amendment challenges brought by Jehovah’s Witnesses,
because door-to-door canvassing is mandated by their religion. As we noted in Murdock v. Pennsylvania (1943), the Jehovah’s Witnesses “claim to follow the
example of Paul, teaching ‘publicly, and from house to house.’ They take
literally the mandate of the Scriptures, ‘Go ye into all the world, and preach
the gospel to every creature.’. In doing so they believe that they are obeying
a commandment of God.” Moreover, because they lack significant financial
resources, the ability of the Witnesses to proselytize is seriously diminished
by regulations that burden their efforts to canvass door-to-door.
Although
our past cases involving Jehovah’s Witnesses, most of which were decided
shortly before and during World War II, do not directly control the question we
confront today, they provide both a historical and analytical backdrop for
consideration of petitioners’ First Amendment claim that the breadth of the
Village’s ordinance offends the First Amendment. Those cases involved petty
offenses that raised constitutional questions of the most serious
magnitude–questions that implicated the free exercise of religion, the freedom
of speech, and the freedom of the press. From these decisions, several themes
emerge that guide our consideration of the ordinance at issue here.
First,
the cases emphasize the value of the speech involved. For example, in Murdock v. Pennsylvania, the Court noted that “hand distribution of religious
tracts is an age-old form of missionary evangelism--as old as the history of
printing presses. It has been a potent force in various religious movements
down through the years. . . . This form of religious activity occupies the same
high estate under the First Amendment as do worship in the churches and
preaching from the pulpits. . . .
In
addition, the cases discuss extensively the historical importance of
door-to-door canvassing and pamphleteering as vehicles for the dissemination of
ideas. In Schneider v. State (Town of Irvington), the
petitioner was a Jehovah’s Witness who had been convicted of canvassing without
a permit based on evidence that she had gone from house to house offering to
leave books or booklets. Writing for the Court, Justice Roberts stated that
“pamphlets have proved most effective instruments in the dissemination of opinion.
And perhaps the most effective way of bringing them to the notice of
individuals is their distribution at the homes of the people. . . . To require
a censorship through license which makes impossible the free and unhampered distribution of pamphlets strikes at the very
heart of the constitutional guarantees.”
Despite
the emphasis on the important role that door-to-door canvassing and
pamphleteering has played in our constitutional tradition of free and open
discussion, these early cases also recognized the interests a town may have in
some form of regulation, particularly when the solicitation of money is
involved. In Cantwell v. Connecticut (1940), the Court held that
an ordinance requiring Jehovah’s Witnesses to obtain a license before
soliciting door to door was invalid because the issuance of the license
depended on the exercise of discretion by a city official. Our opinion
recognized that “a State may protect its citizens from fraudulent solicitation
by requiring a stranger in the community, before permitting him publicly to
solicit funds for any purpose, to establish his identity and his authority to
act for the cause which he purports to represent.” Similarly, in Martin v. City of Struthers, the Court recognized crime prevention as a
legitimate interest served by these ordinances and noted that “burglars
frequently pose as canvassers, either in order that they may have a pretense to
discover whether a house is empty and hence ripe for burglary, or for the
purpose of spying out the premises in order that they may return later.”
Despite recognition of these interests as legitimate, our precedent is clear
that there must be a balance between these interests and the effect of the
regulations on First Amendment rights.
Finally,
the cases demonstrate that efforts of the Jehovah’s Witnesses to resist speech
regulation have not been a struggle for their rights alone. In Martin, after cataloging the many groups
that rely extensively upon this method of communication, the Court summarized
that “[d]oor to door distribution of circulars is essential to the poorly
financed causes of little people.”. . .
Although these World War
II-era cases provide guidance for our consideration of the question presented,
they do not answer one preliminary issue that the parties adamantly dispute.
That is, what standard of review ought we use in assessing the
constitutionality of this ordinance. We find it unnecessary, however, to
resolve that dispute because the breadth of speech affected by the ordinance
and the nature of the regulation make it clear that the Court of Appeals erred
in upholding it.
The
Village argues that three interests are served by its ordinance: the prevention
of fraud, the prevention of crime, and the protection of residents’ privacy. We
have no difficulty concluding, in light of our precedent, that these are
important interests that the Village may seek to safeguard through some form of
regulation of solicitation activity. We must also look, however, to the amount
of speech covered by the ordinance and whether there is an appropriate balance
between the affected speech and the governmental interests that the ordinance
purports to serve.
The
text of the Village’s ordinance prohibits “canvassers” from going on private
property for the purpose of explaining or promoting any “cause,” unless they
receive a permit and the residents visited have not opted for a “no
solicitation” sign. Had this provision been construed to apply only to
commercial activities and the solicitation of funds, arguably the ordinance would
have been tailored to the Village’s interest in protecting the privacy of its
residents and preventing fraud. Yet, even though the Village has explained that
the ordinance was adopted to serve those interests, it has never contended that
it should be so narrowly interpreted. To the contrary, the Village’s
administration of its ordinance unquestionably demonstrates that the provisions
apply to a significant number of noncommercial “canvassers” promoting a wide
variety of “causes.” Indeed, on the “No Solicitation Forms” provided to the
residents, the canvassers include “Camp Fire Girls,” “Jehovah’s Witnesses,”
“Political Candidates,” “Trick or Treaters during Halloween Season,” and
“Persons Affiliated with Stratton Church.” The ordinance unquestionably applies,
not only to religious causes, but to political activity as well.
The
mere fact that the ordinance covers so much speech raises constitutional
concerns. It is offensive–not only to the values protected by the First
Amendment, but to the very notion of a free society–that in the context of
everyday public discourse a citizen must first inform the government of her
desire to speak to her neighbors and then obtain a permit to do so. Even if the
issuance of permits by the mayor’s office is a ministerial task that is
performed promptly and at no cost to the applicant, a law requiring a permit to
engage in such speech constitutes a dramatic departure from our national
heritage and constitutional tradition. Three obvious examples illustrate the
pernicious effect of such a permit requirement.
First,
as our cases involving distribution of unsigned handbills demonstrate, there
are a significant number of persons who support causes anonymously. “The
decision to favor anonymity may be motivated by fear of economic or official
retaliation, by concern about social ostracism, or merely by a desire to
preserve as much of one’s privacy as possible.” The requirement that a
canvasser must be identified in a permit application filed in the mayor’s
office and available for public inspection necessarily results in a surrender
of that anonymity. . . .
Second,
requiring a permit as a prior condition on the exercise of the right to speak
imposes an objective burden on some speech of citizens holding religious or
patriotic views. As our World War II-era cases dramatically demonstrate, there
are a significant number of persons whose religious scruples will prevent them
from applying for such a license. There are no doubt other patriotic citizens,
who have such firm convictions about their constitutional right to engage in
uninhibited debate in the context of door-to-door advocacy, that they would
prefer silence to speech licensed by a petty official.
Third,
there is a significant amount of spontaneous speech that is effectively banned
by the ordinance. A person who made a decision on a holiday or a weekend to
take an active part in a political campaign could not begin to pass out
handbills until after he or she obtained the required permit. Even a
spontaneous decision to go across the street and urge a neighbor to vote
against the mayor could not lawfully be implemented without first obtaining the
mayor’s permission. . . .
The
breadth and unprecedented nature of this regulation does not alone render the
ordinance invalid. Also central to our conclusion that the ordinance does not
pass First Amendment scrutiny is that it is not tailored to the Village’s
stated interests. Even if the interest in preventing fraud could adequately
support the ordinance insofar as it applies to commercial transactions and the
solicitation of funds, that interest provides no support for its application to
petitioners, to political campaigns, or to enlisting support for unpopular
causes. The Village, however, argues that the ordinance is nonetheless valid because
it serves the two additional interests of protecting the privacy of the
resident and the prevention of crime.
With
respect to the former, it seems clear that [another section] of the ordinance,
which provides for the posting of “No Solicitation” signs and which is not
challenged in this case, coupled with the resident’s unquestioned right to
refuse to engage in conversation with unwelcome visitors, provides ample
protection for the unwilling listener. . . .
With
respect to the latter, it seems unlikely that the absence of a permit would
preclude criminals from knocking on doors and engaging in conversations not
covered by the ordinance. They might, for example, ask for directions or
permission to use the telephone, or pose as surveyers or census takers.. Or
they might register under a false name with impunity because the ordinance
contains no provision for verifying an applicant’s identity or organizational
credentials. Moreover, the Village did not assert an interest in crime
prevention below, and there is an absence of any evidence of a special crime
problem related to door-to-door solicitation in the record before us.
The
rhetoric used in the World War II-era opinions that repeatedly saved
petitioners’ coreligionists from petty prosecutions reflected the Court’s
evaluation of the First Amendment freedoms that are implicated in this case.
The value judgment that then motivated a united democratic people fighting to
defend those very freedoms from totalitarian attack is unchanged. It motivates
our decision today.
The
judgment of the Court of Appeals is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Justice
Breyer, with whom Justice Souter
and Justice Ginsburg join,
concurring.
While
joining the Court’s opinion, I write separately to note that the dissent’s
“crime prevention” justification for this ordinance is not a strong one. For
one thing, there is no indication that the legislative body that passed the
ordinance considered this justification. . . . In the intermediate scrutiny
context, the Court ordinarily does not supply reasons the legislative body has
not given. That does not mean, as The Chief Justice suggests, that only a
government with a “battery of constitutional lawyers,” could satisfy this
burden. It does mean that we expect a government to give its real reasons for
passing an ordinance. Legislators, in even the smallest town, are perfectly
able to do so–sometimes better on their own than with too many lawyers, e.g., a “battery,” trying to offer their
advice. I can only conclude that if the village of Stratton thought preventing
burglaries and violent crimes was an important justification for this
ordinance, it would have said so.
But
it is not just that. It is also intuitively implausible to think that
Stratton’s ordinance serves any governmental interest in preventing such
crimes. . . .
Because Stratton did not rely on the
crime prevention justification, because Stratton has not now “present[ed] more
than anecdote and supposition,” and because the relationship between the
interest and the ordinance is doubtful, I am unwilling to assume that these
conjectured benefits outweigh the cost of abridging the speech covered by the
ordinance.
Justice
Scalia, with whom Justice Thomas
joins, concurring in the judgment.
I concur in the judgment, for many
but not all of the reasons set forth in the opinion for the Court. I do not
agree, for example, that one of the causes of the invalidity of Stratton’s
ordinance is that some people have a religious objection to applying for a
permit, and others (posited by the Court) “have such firm convictions about
their constitutional right to engage in uninhibited debate in the context of
door-to-door advocacy, that they would prefer silence to speech licensed by a
petty official.”.
If
a licensing requirement is otherwise lawful, it is in my view not invalidated
by the fact that some people will choose, for religious reasons, to forgo
speech rather than observe it. That would convert an invalid free-exercise
claim, see Employment Div., Dept. of
Human Resources of Ore. v. Smith,
(1990), into a valid free-speech claim–and a more destructive one at that.
Whereas the free-exercise claim, if acknowledged, would merely exempt Jehovah’s
Witnesses from the licensing requirement, the free-speech claim exempts everybody, thanks to Jehovah’s
Witnesses.
As
for the Court’s fairy-tale category of “patriotic citizens,” who would rather
be silenced than licensed in a manner that the Constitution (but for their
“patriotic” objection) would permit: If our free-speech jurisprudence is to be
determined by the predicted behavior of such crackpots, we are in a sorry state
indeed.
Chief
Justice Rehnquist, dissenting.
Stratton is a village of 278 people
located along the Ohio River where the borders of Ohio, West Virginia, and
Pennsylvania converge. . .One may doubt how much legal help a village of this
size has available in drafting an ordinance such as the present one, but even
if it had availed itself of a battery of constitutional lawyers, they would
have been of little use in the town’s effort. For the Court today ignores the
cases on which those lawyers would have relied, and comes up with newly
fashioned doctrine. This doctrine contravenes well-established precedent,
renders local governments largely impotent to address the very real safety
threat that canvassers pose, and may actually result in less of the
door-to-door communication that it seeks to protect.
More
than half a century ago we recognized that canvassers, “whether selling pots or
distributing leaflets, may lessen the peaceful enjoyment of a home,” and that
“burglars frequently pose as canvassers, either in order that they may have a
pretense to discover whether a house is empty and hence ripe for burglary, or
for the purpose of spying out the premises in order that they may return
later.” Martin v. City of Struthers (1943). These problems
continue to be associated with door-to-door canvassing, as are even graver
ones.
A
recent double murder in Hanover, New Hampshire, a town of approximately 7,500
that would appear tranquil to most Americans but would probably seem like a
bustling town of Dartmouth College students to Stratton residents, illustrates
these dangers. Two teenagers murdered a married couple of Dartmouth College
professors, Half and Susanne Zantop, in the Zantop’s home. Investigators have
concluded, based on the confession of one of the teenagers, that the teenagers
went door-to-door intent on stealing access numbers to bank debit cards and
then killing their owners. Their modus
operandi was to tell residents that
they were conducting an environmental survey for school. They canvassed a few
homes where no one answered. At another, the resident did not allow them in to
conduct the “survey.” They were allowed into the Zantop home. After conducting
the phony environmental survey, they stabbed the Zantops to death. See ibid.
In order to reduce these very grave
risks associated with canvassing, the 278 “‘little people,’” of Stratton, who,
unlike petitioners, do not have a team of attorneys at their ready disposal
(petitioners have a team of 12 lawyers in their New York headquarters), enacted
the ordinance at issue here. The residents did not prohibit door-to-door communication,
they simply required that canvassers obtain a permit before going door-to-door.
And the village does not have the discretion to reject an applicant who
completes the application.
The
town had little reason to suspect that the negligible burden of having to
obtain a permit runs afoul of the First Amendment. For over 60 years, we have
categorically stated that a permit requirement for door-to-door canvassers,
which gives no discretion to the issuing authority, is constitutional. The
District Court and Court of Appeals, relying on our cases, upheld the
ordinance. The Court today, however, abruptly changes course and invalidates
the ordinance. . .
Just as troubling as the Court’s ignoring
over 60 years of precedent is the difficulty of discerning from the Court’s
opinion what exactly it is about the Stratton ordinance that renders it
unconstitutional. It is not clear what test the Court is applying, or under
which part of that indeterminate test the ordinance fails. We are instead told
that the “breadth of speech affected” and “the nature of the regulation” render
the permit requirement unconstitutional. Under a straightforward application of
the applicable First Amendment framework, however, the ordinance easily passes
muster.
There is no support in our case law
for applying anything more stringent than intermediate scrutiny to the
ordinance. The ordinance is content neutral and does not bar anyone from going
door-to-door in Stratton. It merely regulates the manner in which one must
canvass: A canvasser must first obtain a permit. It is, or perhaps I should say
was, settled that the “government may impose reasonable restrictions on the
time, place, or manner of protected speech, provided the restrictions ‘are
justified without reference to the content of the regulated speech, that they
are narrowly tailored to serve a significant governmental interest, and that
they leave open ample alternative channels for communication of the
information.’”
The
Court suggests that Stratton’s regulation of speech warrants greater scrutiny.
But it would be puzzling if regulations of speech taking place on another citizen’s private property
warranted greater scrutiny than regulations of speech taking place in public
forums. Common sense and our precedent say just the opposite. . .In Ward, the Court held that intermediate
scrutiny was appropriate “even in a
public forum,” appropriately recognizing that speech enjoys greater protection
in a public forum that has been opened to all citizens. Indeed, we have held that the mere proximity of private
residential property to a public forum permits more extensive regulation of
speech taking place at the public forum than would otherwise be allowed. Surely
then, intermediate scrutiny applies to a content-neutral regulation of speech
that occurs not just near, but at, another citizen’s private residence.
The
Stratton regulation is aimed at three significant governmental interests: the
prevention of fraud, the prevention of crime, and the protection of privacy. .
. . Although initially recognizing the important interest in preventing crime,
the Court later indicates that the “absence of any evidence of a special crime
problem related to door-to-door solicitation in the record before us” lessens
this interest. But the village is entitled to rely on our assertion in Martin that door-to-door canvassing
poses a risk of crime. . . .
The
double murder in Hanover described above is but one tragic example of the crime
threat posed by door-to-door canvassing.
The
next question is whether the ordinance serves the important interests of
protecting privacy and preventing fraud and crime. With respect to the interest
in protecting privacy, the Court concludes that “[t]he annoyance caused by an
uninvited knock on the front door is the same whether or not the visitor is
armed with a permit.” True, but that misses the key point: the permit
requirement results in fewer uninvited knocks. Those who have complied with the
permit requirement are less likely to visit residences with no trespassing
signs, as it is much easier for the authorities to track them down.
The
Court also fails to grasp how the permit requirement serves Stratton’s interest
in preventing crime. We have approved of permit requirements for those engaging
in protected First Amendment activity because of a common-sense recognition
that their existence both deters and helps detect wrongdoing. And while some
people, intent on committing burglaries or violent crimes, are not likely to be
deterred by the prospect of a misdemeanor for violating the permit ordinance,
the ordinance’s effectiveness does not depend on criminals registering.
The ordinance prevents and detects serious crime by making it a crime not to register. Take the Hanover double murder discussed earlier. The murderers did not achieve their objective until they visited their fifth home over a period of seven months. If Hanover had a permit requirement, the teens may have been stopped before they achieved their objective. One of the residents they visited may have informed the police that there were two canvassers who lacked a permit. Such neighborly vigilance, though perhaps foreign to those residing in modern day cities, is not uncommon in small towns. Or the police on their own may have discovered that two canvassers were violating the ordinance. Apprehension for violating the permit requirement may well have frustrated the teenagers’ objectives; it certainly would have assisted in solving the murders had the teenagers gone ahead with their plan.