Each town has a Mayor who recently got a lesson in First Amendment jurisprudence. A Tale of Two Towns:
The Constitutionality of Local Ordinances

This is a tale of two towns. One is the City of Westover, located in West Virginia; the other is the Village of Stratton, in Ohio, just one-quarter mile from the border of West Virginia. Westover has a population of approximately 4,200 people; the Village of Stratton boasts 297 residents. Westover is on the west banks of the Monongahela River; the Village of Stratton is nestled against the Ohio River.

Each town has a Mayor who recently got a lesson in First Amendment jurisprudence. In Westover, Mayor Suzanne Riffon Kenney was home-schooled by her residents and others and learned that their advice was worth more than that of her paid legal counsel, saving her town money, anguish and embarrassment. In Village of Stratton, costly and protracted litigation that went all the way to the U.S. Supreme Court educated Mayor John M. Abdalla.

Last month, the City of Westover ended a nearly six-month debate over proposed changes to a decades-old sign ordinance by adopting revisions (proposed by counsel for the Center for Individual Freedom) that bring that ordinance into compliance with the First Amendment to the U.S. Constitution. Before the necessary changes, Westover’s ordinance imposed unconstitutional limitations, including permit fees and time limits, on the posting of political signs on private property, violating the free speech rights of its citizens. Mayor Kenney, at one time a strong supporter of the sign ordinance and the "enforcer" of it (she allegedly entered private property and removed political signs that did not have permit stickers), ultimately voted in favor of changing the law.

Last term, the U.S. Supreme Court struck down the Village of Stratton’s ordinance banning door-to-door canvassing without a permit. In 1998, Stratton enacted an ordinance forbidding "canvassers" to ring doorbells without first going to the town’s mayor, identifying themselves and registering their cause. The Jehovah’s Witnesses, with whom Mayor Abdalla is reported to have had a long and tense relationship, refused to comply. They argued that they needed no permit; their mission was from God. They also objected to being forced to identify themselves to the government. In an 8-to-1 ruling, the Supreme Court ruled in Watchtower v. Village of Stratton, 122 S. Ct. 2080 (2002), that Village of Stratton’s policy violated the Jehovah’s Witnesses’ right to free expression.

Although free speech prevails in both cases, the path to victory was a forked road. Legislators willing to assess the constitutionality of a statute traveled one route. The other became a traffic jam of legislative intransigence, requiring a succession of courts to break the impasse as the ultimate guardians of individual constitutional rights and guarantees.

In Westover’s situation, the Mayor and City Council (albeit belatedly) considered all the dialogue and input they received from concerned citizens and groups assessing the constitutionality of the existing ordinance and the proposed changes. Through the legislative process of debates, hearings and committee work, Westover ultimately adopted amendments that pass constitutional muster.

In contrast, Stratton chose a path filled with blockades and stop signs, provoking a long and costly federal court battle over an ordinance that clearly and blatantly violated the First Amendment. Stratton politicos were willing to stretch the limits of constitutionality--something they apparently could do without detouring their political careers. One local resident, who described her town as "Mayberry," was reported as saying: "I can’t believe it went that far [to the U.S. Supreme Court]. I can’t believe it was even challenged at all."

But the ordinance was challenged, correctly and substantively, and "Mayberry" though it may seem, Stratton will forever be tarnished by the stinging rebuke of the U.S. Supreme Court.

In hand-slapping fashion, the U.S. Supreme Court stated as part of its holding that "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."

These situations present markedly different approaches adopted by legislative bodies evaluating an ordinance. One approach responsibly considers the constitutionality of legislation and ultimately adopts a constitutional ordinance. The other lacks any indicia of careful legislative consideration, forcing its citizens to fund costly and humiliating litigation.

The Oath or Affirmation Clause of Article VI of the U.S. Constitution provides a surprisingly powerful textual basis for adopting the first approach. This clause provides: "The Senators and Representatives ... and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." The Oath or Affirmation Clause demands a pledge of support from all public officials (including legislators) that requires them to consider in the first instance the constitutionality of their proposed actions. That oath is too often recited, too rarely observed—at all levels of government.

Two towns, adopting two different approaches, with costly consequences for one. As Charles Dickens wrote in the Tale of Two Cities, "It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness... it was the spring of hope, it was the winter of despair... we were all going direct to Heaven, we were all going direct the other way."

For more about Westover, click here.

For more about Watchtower, click here.

October 3, 2002
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