Free Speech Means Not Having to Play "Mother
May I?" with the Government
Erik S. Jaffe, Esq.
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 Jehovahs 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.
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 Jehovahs 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."
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
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:
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.
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 Jehovahs 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 mayors
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 mayors permission."
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."
substantial burden on constitutionally protected speech, combined
with the poor fit between the ordinance and its purported goals
proved fatal. The Villages 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.
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.
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 governments 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
a matter of principle a requirement of registration in order
to make a public speech would seem generally incompatible
with an exercise of the rights of free speech and free assembly.
So long as no more is involved than exercise of the rights
of free speech and free assembly, it is immune to such a restriction.
[A] requirement that one must register before he undertakes
to make a public speech to enlist support for a lawful movement
is quite incompatible with the requirements of the First Amendment.
is, quite simply, not the governments 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 Courts
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.
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 Centers amicus
brief in Watchtower Bible & Tract Society of New York
v. Village of Stratton.
To read a
copy of the Centers brief in Watchtower Bible & Tract
Society of New York v. Village of Stratton, click
To read the
Courts decision, click
June 21, 2002]
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