The spirited First Amendment debate seemed to indicate that a favorable ruling for canvassers may be handed down by the Court. Supreme Court Hears Oral Arguments in Anonymous Speech Case

On February 26, 2002, lawyers presented their cases before the U.S. Supreme Court in Watchtower v. Village of Stratton, the closely watched Jehovah’s Witness anonymous speech case.

The case centers on the Village of Stratton, Ohio, ordinance requiring door-to-door "solicitors" to obtain and display a permit with their name clearly printed on it during their activities. The lower courts upheld the ordinance, opining that the city of Stratton had a valid interest in attempting to discourage fraud by canvassers and that the law did indeed apply to all canvassers, religious or not.

In 1995, the Supreme Court ruled in McIntyre v. Ohio Elections Commission that "activists" have the constitutional right to hand out political literature anonymously. The Sixth Circuit Court of Appeals ruled in Watchtower that a canvasser gives up his right to anonymous speech when he chooses to present himself face-to-face to speak with people on their doorstep.

The Supreme Court chose to focus on the provision in the ordinance that requires canvassers to display their permits, and therefore their names. The Center for Individual Freedom filed an amicus curiae brief in support of the canvassers, asserting that the ordinance violates their First Amendment right of free expression and anonymous speech. [To read a copy of the Center’s brief, click here]

The Center was present for the oral arguments and thus our observations are from ringside.

The oral arguments played out much like a volleyball match as the Justices typically peppered each side with pointed questions. At least five of the Justices appeared to have serious problems with the First Amendment implications of the ordinance, viewing the issue somewhat differently than did the Sixth Circuit.

Attorney Paul Polidoro, representing the Jehovah’s Witnesses, was first at the podium. "We do not believe that anyone needs to go the government for permission to speak to their neighbors," he argued.

Chief Justice Rehnquist was one of the few members of the Court objecting to Polidoro’s arguments. "You call them neighbors. I take it they are strangers," referring to the Jehovah’s Witnesses.

The Chief Justice also raised the safety and crime-prevention aspects of the ordinance and brought up the recent murders of two Dartmouth college professors whose assailants had posed as door-to-door surveyors. To that, Polidoro said that he doubted that a hardened criminal would take the time to stop by the Mayor’s office and register for a permit before committing a crime.

Abraham Cantor, attorney for the Village of Stratton was offered little time to present his case before the barrage of questions began.

The Justices mainly focused on the free speech implications of the law, with Justice Scalia expressing, "The breadth of this thing is novel to me." He said that he was unaware of any other ordinance written so broadly that it covers anyone promoting "a cause." Later in the argument, he sarcastically added, "You say this ordinance is okay because it addresses only communication."

Cantor proudly proclaimed that the unparalleled breadth of the ordinance was "a beautiful idea." Justice Kennedy shot back with, "You think it’s a beautiful idea that I have to ask the government for permission before I can go down the street and talk about garbage pickup?"

Justice O’Connor incredulously added, "Do I have to get a permit to borrow a cup of sugar from my neighbor?" -- an example cited by the Center in its amicus brief.

It was not clear whether the Justices accepted Polidoro’s attempt to separate the Witnesses’ speech from political speech activities. Polidoro ceded that there is a "compelling state interest" in issues surrounding elections. Based on their comments, it is evident that several of the Justices are mindful of the fact that any decision the Court hands down in this case could likely affect the McIntyre protection of anonymous political speech.

The spirited First Amendment debate seemed to indicate that a favorable ruling for canvassers may be handed down by the Court. Whatever the decision, it is likely to have wide-ranging free speech ramifications, including an effect on litigation regarding campaign finance reform currently making its way through Congress.

To read more about First Amendment cases before the Supreme Court please click here.

February 28, 2001
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