Free Speech Means Not Having to Play "Mother May I?" with the Government

By: Erik S. Jaffe, Esq.

On Monday, the Supreme Court confirmed what most people not working for the government intuitively understand: Forcing people to get permission from the government in order to speak to their fellow citizens violates the First Amendment. In its decision in Watchtower Bible & Tract Society of New York v. Village of Stratton, No. 00-1737 (June 17, 2002), the Court struck down a village ordinance that required persons wishing to engage in door-to-door advocacy first to register with the Village and obtain a permit. The ordinance was challenged by a congregation of Jehovah’s Witnesses, who distribute free religious literature door-to-door and argued that the ordinance violated their First Amendment rights of free exercise of religion, free speech, and freedom of the press. While the district court and the court of appeals generally sided with the Village and upheld the ordinance, the Supreme Court, by an 8-1 count, sided with the First Amendment and struck down the ordinance.

Noting its 50-year history of invalidating restrictions on door-to-door canvassing, the Court revisited several pertinent themes emphasized during that history. It reminded us, for example, that "‘hand distribution of religious tracts is an age-old form of missionary evangelism — as old as the history of printing presses [— and] has been a potent force in various religious movements down through the years.’" It reminded us of the "historical importance of door-to-door canvassing and pamphleteering as vehicles for the dissemination of ideas" and that 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.’" And it reminded us that "efforts of the Jehovah’s Witnesses to resist speech regulation have not been a struggle for their rights alone," but that numerous small groups and individuals often must rely on the protections of the First Amendment because "‘[d]oor to door distribution of circulars is essential to the poorly financed causes of little people.’"

With that history in mind, the Court then considered the village ordinance, which required registration and a permit for any canvassers going door to door to explain or promote any cause. While the village had justified its ordinance as a means of preventing fraud and protecting privacy, the Court found that it covered far more speech than necessary for such purposes. For example, the requirement applied to non-commercial canvassers as well as salesman, and covered "not only to religious causes, but … political activity as well. It would seem to extend to ‘residents casually soliciting the votes of neighbors,’ or ringing doorbells to enlist support for employing a more efficient garbage collector." The very breadth of the ordinance raised significant constitutional red-flags:

Elaborating on the constitutional offense of the ordinance, the Court noted that the ordinance impinged upon the right to engage in anonymous speech; a right specifically raised by the Jehovah’s Witnesses and vigorously supported by the Center for Individual Freedom in its amicus brief. 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" and, despite the face-to-face conduct involved in canvassing, "strangers to the resident certainly maintain their anonymity, and the ordinance may preclude such persons from canvassing for unpopular causes." In addition to chilling free speech by removing the option of anonymous speech, the Court also found that the ordinance "effectively banned" a "significant amount of spontaneous speech" by interposing the registration and permit requirement between the decision to speak and the actual speech itself. "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 Court also noted that some persons might, based on religious or idiosyncratic secular views, choose not to speak at all rather than register. Justices Scalia and Thomas concurred separately in the result specifically to disavow that particular aspect of the majority opinion, noting that if a law was otherwise constitutional, idiosyncratic secular objections to obeying such a law would not change the result and that our free speech jurisprudence should not "be determined by the predicted behavior of such crackpots."

The substantial burden on constitutionally protected speech, combined with the poor fit between the ordinance and its purported goals proved fatal. The Village’s concern over fraud simply did not match up with an ordinance that regulated far more than commercial transactions or the solicitation of funds, and its concern with privacy was amply addressed by the unchallenged right of residents to post, and the village to enforce, "No Solicitation" signs or simply to refuse conversation with unwelcome visitors. Because the Village chose to pursue its interests through such a poorly tailored and burdensome restriction on speech, the Court correctly struck down the ordinance.

While local efforts to limit door-to-door solicitation may seem somewhat less momentous than recent and upcoming battles over campaign finance, internet pornography, or library censorship, this case still raises significant constitutional principles that need, and fortunately have received, regular reaffirmation. The right to anonymity, especially cherished by speakers advancing unpopular causes, can often be neglected. But it remains just as important today as ever, when the inclination of the powerful — especially government officials and politicians — to retaliate against those who would criticize them seems to be on the rise. Indeed, in the upcoming litigation over campaign finance and the new requirements that private groups disclose member donations used for political speech, the right to anonymity will again be considered. This latest confirmation of the importance of anonymity thus may act as a significant shield for citizens who may rightly fear scrutiny of their political activity by incumbent politicians with the incentive and the means to punish those who would criticize them.

More important than any specific future use to be made of this latest decision, however, is its more general confirmation of the role of government. In order to maintain the basic norm of freedom in our society, we must be ever vigilant of government efforts to regulate the citizenry in anticipation of potential unlawful conduct, rather than in response to such conduct. Nowhere is that more true than in the area of speech, where history has proven that the government’s motives are often less than pure, and that petty bureaucrats will abuse any mechanism for controlling speech if given half a chance. The Supreme Court thus has correctly reminded us all that

It is, quite simply, not the government’s place to exercise such restrictive authority against such a basic freedom as speech. A free people does not need, and should never have to ask for, permission from the government to engage in lawful speech. The Court took strong steps to condemn the attempted stifling of freedom here, and harked back to the powerful "rhetoric used in the World War II-era opinions that repeatedly saved petitioners’ coreligionists from petty prosecutions" which reflects, "the Court’s evaluation of the First Amendment freedoms that are implicated in this case." Those freedoms must be defended whenever attacked — whether brazenly or subtly, with burdens petty or grand. That the Court has once again defended the First Amendment from attack in this case, and reminded us of the importance of free speech in the process, should thus give comfort and confidence to those who cherish individual freedom in all of its forms.

Erik S. Jaffe is a sole practitioner in Washington, D.C., concentrating in appellate litigation. He is a former clerk for Judge Douglas H. Ginsburg of the U.S. Court of Appeals for the D.C. Circuit and Justice Clarence Thomas of the U.S. Supreme Court. Mr. Jaffe authored the Center’s amicus brief in Watchtower Bible & Tract Society of New York v. Village of Stratton.

To read a copy of the Center’s brief in Watchtower Bible & Tract Society of New York v. Village of Stratton, click here

To read the Court’s decision, click here

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