Opinion of the Court
NOTICE: This opinion is subject to formal revision before
publication in the preliminary print of the United
States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of
the United States, Washington, D. C. 20543, of
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SUPREME COURT OF THE UNITED STATES
No. 00—1737
[June 17, 2002]
Justice Stevens delivered the opinion of the Court.
Petitioners contend that a village
ordinance making it a misdemeanor to engage in door-to-door advocacy without
first registering with the mayor and receiving a permit violates the First
Amendment. Through this facial challenge, we consider the door-to-door
canvassing regu-
lation not only as it applies to religious proselytizing, but also to anonymous
political speech and the distribution of
handbills.
I
Petitioner Watchtower
Bible and Tract Society of New York, Inc., coordinates the preaching activities of Jehovah’s Witnesses throughout the United States and
publishes Bibles and religious periodicals that are widely distributed.
Petitioner Wellsville, Ohio, Congregation of
Jehovah’s Witnesses, Inc., supervises the activities of
approximately 59 members in a part of Ohio that
includes the Village of Stratton (Village).
Petitioners offer religious literature without cost to anyone interested in
reading it. They allege that they do not solicit contributions or orders for
the sale of merchandise or services, but they do
accept donations.
Petitioners brought this action against
the Village and its mayor in the United States District Court for the Southern
District of Ohio, seeking an injunction against
the enforcement of several sections of Ordinance No. 1998—5 regulating uninvited
peddling and solicitation on private property in the Village. Petitioners’ complaint
alleged that the ordinance violated several constitutional rights, including
the free exercise of religion, free speech, and
the freedom of the press. App. 10a—44a. The
District Court conducted a bench trial at which evidence of
the administration of the ordinance and its effect
on petitioners was introduced.
Section 116.01 prohibits “canvassers” and
others from “going in and upon” private residential property for the purpose of promoting any “cause” without first having obtained a
permit pursuant to §116.03.1 That section provides that any
canvasser who intends to go on private property to promote a cause, must obtain
a “Solicitation Permit” from the office of the
mayor; there is no charge for the permit, and apparently one is issued
routinely after an applicant fills out a fairly detailed “Solicitor’s
Registration Form.”2 The canvasser is then authorized
to go upon premises that he listed on the registration form, but he must carry
the permit upon his person and exhibit it whenever requested to do so by a
police officer or by a resident.3 The ordinance sets forth grounds
for the denial or revocation of a permit,4 but the record before us does
not show that any application has been denied or that any permit has been
revoked. Petitioners did not apply for a permit.
A section of
the ordinance that petitioners do not challenge establishes a procedure by
which a resident may prohibit solicitation even by holders of permits. If the resident files a “No Solicitation
Registration Form” with the mayor, and also posts a “No Solicitation” sign on
his property, no uninvited canvassers may enter his property, unless they are
specifically authorized to do so in the “No Solicitation Registration Form”
itself.5 Only 32 of
the Village’s 278 residents filed such forms. Each of
the forms in the record contains a list of 19
suggested exceptions;6 on one form, a resident checked
17 exceptions, thereby excluding only “Jehovah’s Witnesses” and “Political
Candidates” from the list of invited canvassers.
Although Jehovah’s Witnesses do not consider themselves to be “solicitors”
because they make no charge for their literature or their teaching, leaders of the church testified at trial that they would honor “no
solicitation” signs in the Village. They also explained at trial that they did
not apply for a permit because they derive their authority to preach from
Scripture.7 “For us to seek a permit from a
municipality to preach we feel would almost be an insult to God.” App. 321a.
Petitioners introduced some evidence that
the ordinance was the product of the mayor’s
hostility to their ministry, but the District Court credited the mayor’s testimony
that it had been designed to protect the privacy rights of
the Village residents, specifically to protect them “from ‘flim flam’ con
artists who prey on small town populations.” 61 F. Supp. 2d 734, 736 (SD
Ohio 1999). Nevertheless, the court concluded that the terms of the ordinance applied to the activities of petitioners as well as to “business or political
canvassers,” id., at 737, 738.
The District Court upheld most provisions of the ordinance as valid, content-neutral regulations
that did not infringe on petitioners’ First
Amendment rights. The court did, however, require the Village to accept
narrowing constructions of three provisions. First,
the court viewed the requirement in §116.03(b)(5) that the applicant must list
the specific address of each residence to be
visited as potentially invalid, but cured by the Village’s agreement to attach
to the form a list of willing residents. Id.,
at 737. Second, it held that petitioners could comply with §116.03(b)(6) by
merely stating their purpose as “the Jehovah’s Witness ministry.” Id.,
at 738. And third, it held that §116.05, which limited canvassing to the hours
before 5 p.m., was invalid on its face and should be replaced with a provision
referring to “reasonable hours of the day.” Id.,
at 739. As so modified, the court held the ordinance constitutionally valid as
applied to petitioners and dismissed the case.
The Court of
Appeals for the Sixth Circuit affirmed. 240 F.3d 553 (2001). It held that the
ordinance was “content neutral and of general
applicability and therefore subject to intermediate scrutiny.” Id., at
560. It rejected petitioners’ reliance on the discussion of
laws affecting both the free exercise of religion
and free speech in Employment Div., Dept. of
Human Resources of Ore. v. Smith, 494 U.S. 872
(1990),8 because that “language was dicta
and therefore not binding.” 240 F.3d, at 561. It also rejected petitioners’ argument
that the ordinance is overbroad because it impairs the right to distribute
pamphlets anonymously that we recognized in McIntyre v. Ohio
Elections Comm’n, 514 U.S. 334
(1995), reasoning that “the very act of going
door-to-door requires the canvassers to reveal a portion of
their identities.” 240 F.3d, at 563. The Court of
Appeals concluded that the interests promoted by the Village–“protecting its
residents from fraud and undue annoyance”–as well as the harm that it seeks to
prevent–“criminals posing as canvassers in order to defraud its residents”–though
“by no means overwhelming,” were sufficient to justify the regulation. Id.,
at 565—566. The court distinguished earlier cases protecting the Jehovah’s
Witnesses ministry because those cases either involved a flat prohibition on
the dissemination of ideas, e.g., Martin
v. City of Struthers, 319 U.S. 141
(1943), or an ordinance that left the issuance of
a permit to the discretion of a municipal officer,
see, e.g., Cantwell v. Connecticut, 310 U.S. 296,
302 (1940).
In dissent, Judge Gilman expressed the
opinion that by subjecting noncommercial solicitation to the permit
requirements, the ordinance significantly restricted a substantial quantity of speech unrelated to the Village’s interest in
eliminating fraud and unwanted annoyance. In his view, the Village “failed to
demonstrate either the reality of the harm or the
efficacy of the restriction.” 240 F.3d, at 572.
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 dis-course?” 534 U.S. 971
(2001); Pet. for Cert. i.9
II
For over 50 years, the Court has
invalidated restrictions on door-to-door canvassing and pamphleteering.10 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,
319 U.S.
105, 108 (1943), the Jehovah’s Witnesses “claim to follow the example of Paul, teaching ‘publicly, and from house to house.’
Acts 20:20. They take literally the mandate of the
Scriptures, ‘Go ye into all the world, and preach the gospel to every creature.’
Mark 16:15. 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.11 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. It
has the same claim to protection as the more orthodox and conventional
exercises of religion. It also has the same claim
as the others to the guarantees of freedom of speech and freedom of
the press.” 319 U.S., at 109.
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), 308 U.S. 147
(1939), 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. On
this method of communication the ordinance imposes
censorship, abuse of which engendered the struggle
in England which eventuated in the establishment of
the doctrine of the freedom of
the press embodied in our Constitution. 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.” Id., at 164
(emphasis added).
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, 310 U.S. 296
(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.” Id., at 306.
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.” 319 U.S., at 144. 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. We “must ‘be astute to examine the effect of the challenged legislation’ and must ‘weigh the
circumstances and … appraise the substantiality of
the reasons advanced in support of the regulation.’ ”
Ibid. (quoting Schneider, 308 U.S., at 161).
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.” 319
U.S., at 144—146.
That the Jehovah’s Witnesses are not the
only “little people” who face the risk of
silencing by regulations like the Village’s is exemplified by our cases
involving nonreligious speech. See, e.g., Schaumburg v. Citizens for
a Better Environment, 444 U.S. 620
(1980); Hynes v. Mayor and Council of
Oradell, 425 U.S. 610
(1976); Thomas v. Collins, 323 U.S. 516
(1945). In Thomas, the issue was whether a labor leader could be
required to obtain a permit before delivering a speech to prospective union
members. After reviewing the Jehovah’s Witnesses cases discussed above, the
Court observed:
“As 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… .
. . . . .
“If the exercise of
the rights of free speech and free assembly cannot
be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for
exercising them and making such a condition the foundation for restraining in
advance their exercise and for imposing a penalty for violating such a
restraining order. 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. If one who
solicits support for the cause of labor may be
required to register as a condition to the exercise of
his right to make a public speech, so may he who seeks to rally support for any
social, business, religious or political cause. We think 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.” Id., at 539—540.
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.
III
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. It
would seem to extend to “residents casually soliciting the votes of neighbors,”12 or ringing doorbells to enlist
support for employing a more efficient garbage collector.
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,13 there are a significant number of persons who support causes anonymously.14 “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.”
McIntyre v. Ohio Elections Comm’n, 514 U.S., at 341—342. 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. Although it is
true, as the Court of Appeals suggested, see 240
F.3d, at 563, that persons who are known to the resident reveal their
allegiance to a group or cause when they present themselves at the front door
to advocate an issue or to deliver a handbill, the Court of
Appeals erred in concluding that the ordinance does not implicate anonymity
interests. The Sixth Circuit’s reasoning is undermined by our decision in Buckley
v. American Constitutional Law Foundation, Inc., 525 U.S. 182
(1999). The badge requirement that we invalidated in Buckley applied to
petition circulators seeking signatures in face-to-face interactions. The fact
that circulators revealed their physical identities did not foreclose our
consideration of the circulators’ interest in
maintaining their anonymity. In the Village, strangers to the resident
certainly maintain their anonymity, and the ordinance may preclude such persons
from canvassing for unpopular causes. Such preclusion may well be justified in
some situations–for example, by the special state interest in protecting the
integrity of a ballot-initiative process, see ibid.,
or by the interest in preventing fraudulent commercial transactions. The
Village ordinance, however, sweeps more broadly, covering unpopular causes
unrelated to commercial transactions or to any special interest in protecting
the electoral process.
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. In this
respect, the regulation is analogous to the circulation licensing tax the Court
invalidated in Grosjean v. American Press Co., 297 U.S. 233
(1936). In Grosjean, while discussing the history of
the Free Press Clause of the First
Amendment, the Court stated that “ ‘[t]he evils to be prevented were
not the censorship of the press merely, but any
action of the government by means of which it might prevent such free and general
discussion of public matters as seems absolutely
essential to prepare the people for an intelligent exercise of their rights as citizens.’ ” Id., at 249—250
(quoting 2
T. Cooley, Constitutional Limitations 886 (8th ed. 1927)); see also Lovell
v. City of Griffin, 303 U.S. 444
(1938).
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 §107 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. Schaumburg, 444 U.S., at 639 (“[T]he
provision permitting homeowners to bar solicitors from their property by
posting [no solicitation] signs … suggest[s] the availability of less intrusive and more effective measures to protect
privacy”). The annoyance caused by an uninvited knock on the front door is the
same whether or not the visitor is armed with a permit.
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. See n. 1,
supra. 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.
1. Section 116.01 provides: “The
practice of going in and upon private property
and/or the private residence of Village residents
in the Village by canvassers, solicitors, peddlers, hawkers, itinerant
merchants or transient vendors of merchandise or
services, not having been invited to do so by the owners or occupants of such private property or residences, and not having
first obtained a permit pursuant to Section 116.03 of
this Chapter, for the purpose of advertising,
promoting, selling and/or explaining any product, service, organization or
cause, or for the purpose of soliciting orders for
the sale of goods, wares, merchandise or services,
is hereby declared to be a nuisance and is prohibited.” App. to Brief for
Respondents 2a. The Village has interpreted the term “canvassers” to include
Jehovah’s Witnesses and the term “cause” to include their ministry. The
ordinance does not appear to require a permit for a surveyor since such an
individual would not be entering private property “for the purpose of advertising, promoting, selling and/or explaining any
product, service, organization or cause, or for the purpose of soliciting orders for the sale of
goods, wares, merchandise or services.” Thus, contrary to the assumption of the dissent in its heavy reliance on the example from
Dartmouth, post, at 2, 7, 9, the Village’s ordinance would have done
nothing to prevent that tragic crime.
2. Section 116.03 provides: “(a)
No canvasser, solicitor, peddler, hawker, itinerant merchant or transient
vendor of merchandise or services who is described
in Section 116.01 of this Chapter and who intends
to go in or upon private property or a private residence in the Village for any
of the purposes described in Section 116.01, shall
go in or upon such private property or residence without first registering in
the office of the Mayor and obtaining a
Solicitation Permit. “(b) The registration required by subsection (a)
hereof shall be made by filing a Solicitor’s Registration Form, at the office of the Mayor, on a form furnished for such purpose. The
Form shall be completed by the Registrant and it shall then contain the
following information: “(1) The name and home address of the Registrant and Registrant’s residence for five
years next preceding the date of registration; “(2)
A brief description of the nature and purpose of the business, promotion, solicitation, organization,
cause, and/or the goods or services offered; “(3) The name and address of the employer or affiliated organization, with
credentials from the employer or organization showing the exact relationship
and authority of the Applicant; “(4) The
length of time for which the privilege to canvass
or solicit is desired; “(5) The specific address of
each private residence at which the Registrant intends to engage in the conduct
described in Section 116.01 of this Chapter, and, “(6)
Such other information concerning the Registrant and its business or purpose as
may be reasonably necessary to accurately describe the nature of the privilege desired.” Brief for Respondents 3a—4a.
3. Section 116.04 provides: “Each
Registrant who complies with Section 116.03(b) shall be furnished a
Solicitation Permit. The permit shall indicate that the applicant has
registered as required by Section 116.03 of this
Chapter. No permittee shall go in or upon any premises not listed on the
Registrant’s Solicitor’s Registration Form. “Each person shall at all times,
while exercising the privilege in the Village incident to such permit, carry
upon his person his permit and the same shall be exhibited by such person
whenever he is requested to do so by any police officer or by any person who is
solicited.” Id., at 4a.
4. Section 116.06 provides: “Permits
described in Section 116.04 of this Chapter may be
denied or revoked by the Mayor for any one or more of
the following reasons: “(a) Incomplete information provided by the
Registrant in the Solicitor's Registration Form. “(b) Fraud or
misrepresentation contained in the Solicitor’s Registration Form. “(c)
Fraud, misrepresentation or false statements made in the course of conducting the activity. “(d) Violation of any of the provisions of this chapter or of other
Codified Ordinances or of any State or Federal
Law. “(e) Conducting canvassing, soliciting or business in such a manner
as to constitute a trespass upon private property. “(f)
The permittee ceases to possess the qualifications required in this chapter for
the original registration.” Id., at 5a.
5. Section
116.07 provides, in part: “(a) Notwithstanding the provisions of any other Section of
this Chapter 116, any person, firm or corporation who is the owner or lawful
occupant of private property within the
territorial limits of the Village of Stratton, Ohio, may prohibit the practice of going in or upon the private property and/or the
private residence of such owner or occupant, by
uninvited canvassers, solicitors, peddlers, hawkers, itinerant merchants or
transient vendors, by registering its property in accordance with Subdivision
(b) of this Section and by posting upon each such
registered property a sign which reads ‘No Solicitation’ in a location which is
reasonably visible to persons who intend to enter upon such property. “(b)
The registration authorized by Subsection (a) hereof shall be made by filing a ‘No
Solicitation Registration Form’, at the office of
the Mayor, on a form furnished for such purpose. The form shall be completed by
the property owner or occupant and it shall then contain the following
information: … .” Id., at 6a.
6. The
suggested exceptions listed on the form are: 1. Scouting
Organizations 2. Camp Fire Girls 3.
Children’s Sports Organizations 4. Children’s Solicitation
for Supporting School Activities 5. Volunteer Fire Dept. 6.
Jehovah’s Witnesses 7. Political Candidates 8.
Beauty Products Sales People 9. Watkins Sales 10.
Christmas Carolers 11. Parcel Delivery 12. Little League 13.
Trick or Treaters during Halloween Season 14. Police 15.
Campaigners 16. Newspaper Carriers 17. Persons Affiliated with
Stratton Church 18. Food Salesmen 19. Salespersons. App. 229a.
Apparently the ordinance would prohibit each of
these 19 categories from canvassing unless expressly exempted.
7. Specifically, from the
Book of “Matthew chapter 28, verses 19 and 20,
which we take as our commission to preach. … So Jesus, by example, instituted a
house-to-house search for people so as to preach the good news to them. And
that’s the activity that Jehovah’s Witnesses engage in, even as Christ’s
apostles did after his resurrection to heaven.” Id., at 313a—314a.
8. “The only decisions in
which we have held that the First
Amendment bars application of a neutral,
generally applicable law to religiously motivated action have involved not the
Free Exercise Clause alone, but the Free Exercise Clause in conjunction with
other constitutional protections, such as freedom of
speech and of the press, see Cantwell v. Connecticut,
310 U.S., at 304—307 (invalidating a licensing system for religious and
charitable solicitations under which the administrator had discretion to deny a
license to any cause he deemed nonreligious); Murdock v. Pennsylvania,
319 U.S.
105 (1943) (invalidating a flat tax on solicitation as applied to the
dissemination of religious ideas); Follett
v. McCormick, 321 U.S. 573
(1944) (same), or the right of parents,
acknowledged in Pierce v. Society
of Sisters, 268 U.S. 510
(1925), to direct the education of their children,
see Wisconsin v. Yoder, 406 U.S. 205
(1972) (invalidating compulsory school-attendance laws as applied to Amish
parents who refused on religious grounds to send their children to school).”
494 U.S., at 881 (footnote omitted).
9. In their briefs and at
oral argument, the parties debated a factual issue embedded in the question
presented, namely, whether the permit contains the speaker’s name. We need not
resolve this factual dispute in order to answer whether the ordinance’s
registration requirement abridges so much protected speech that it is invalid
on its face.
10. Hynes v. Mayor
and Council of Oradell, 425 U.S. 610
(1976); Martin v. City of Struthers,
319 U.S.
141 (1943); Murdock v. Pennsylvania, 319 U.S. 105
(1943); Jamison v. Texas, 318 U.S. 413
(1943); Cantwell v. Connecticut, 310 U.S. 296
(1940); Schneider v. State (Town of
Irvington), 308 U.S. 147
(1939); Lovell v. City of Griffin, 303 U.S. 444
(1938).
11. The question presented
is similar to one raised, but not decided in Hynes. The ordinance that
we held invalid in that case on vagueness grounds required advance notice to
the police before “casually soliciting the votes of
neighbors.” 425 U.S., at 620, n. 4.
12. Hynes, 425 U.S.,
at 620, n. 4.
13. Talley v. California,
362 U.S. 60
(1960); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334
(1995).
14. Although the Jehovah’s
Witnesses do not themselves object to a loss of
anonymity, they bring this facial challenge in part on the basis of overbreadth. We may, therefore, consider the impact of this ordinance on the free speech rights of individuals who are deterred from speaking because
the registration provision would require them to forgo their right to speak
anonymously. See Broadrick v. Oklahoma, 413 U.S. 601,
612 (1973).
http://supct.law.cornell.edu/supct/search/display.html?terms=WATCHTOWER%20BIBLE%20AND%20TRACT%20SOCIETY%20OF%20NEW%20&url=/supct/html/00-1737.ZO.html
Rehnquist, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 00—1737
[June 17, 2002]
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. It is strung out along a multilane highway connecting it
with the cities of East Liverpool to the north and Steubenville and Weirton,
West Virginia, to the south. 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, 319 U.S. 141,
144 (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.
See Dartmouth Professors Called Random Targets, Washington Post, Feb. 20, 2002,
p. A2. 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,’ ” ante,
at 12, of Stratton, who, unlike petitioners, do not have a team of attorneys at
their ready disposal, see Jehovah’s Witnesses May Make High Court
History Again, Legal Times, Feb. 25, 2002, p. 1 (noting that 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.
The Court speaks of the “historical and
analytical backdrop for consideration of petitioners’ First
Amendment claim,” ante, at 9. But this “backdrop” is one of
longstanding and unwavering approval of a permit requirement like Stratton’s.
Our early decisions in this area expressly sanction a law that merely requires
a canvasser to register. In Cantwell v. Connecticut, 310 U.S. 296,
306 (1940), we stated that “[w]ithout doubt 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.”
In Murdock v. Pennsylvania, 319 U.S. 105,
116 (1943), we contrasted the license tax struck down in that case with “merely
a registration ordinance calling for an identification of the solicitors so as
to give the authorities some basis for investigating strangers coming into the
community.” And Martin, supra, at 148, states that a “city can
punish those who call at a home in defiance of the previously expressed will of
the occupant and, in addition, can by identification devices control the abuse
of the privilege by criminals posing as canvassers.”
It is telling that Justices Douglas and
Black, perhaps the two Justices in this Court’s history most identified with an
expansive view of the First
Amendment, authored, respectively, Murdock and Martin. Their
belief in the constitutionality of the permit requirement that the Court strikes
down today demonstrates just how far the Court’s present jurisprudence has
strayed from the core concerns of the First
Amendment.
We reaffirmed our view that a discretionless
permit requirement is constitutional in Hynes v. Mayor and Council of
Oradell, 425 U.S. 610
(1976). Hynes, though striking down a registration ordinance on vagueness
grounds, noted that “the Court has consistently recognized a municipality’s
power to protect its citizens from crime and undue annoyance by regulating soliciting and canvassing. A narrowly drawn ordinance,
that does not vest in municipal officials the undefined power to determine what
messages residents will hear, may serve these important interests without
running afoul of the First
Amendment.” Id., at 616—617.
The Stratton ordinance suffers from none
of the defects deemed fatal in these earlier decisions. The ordinance does not
prohibit door-to-door canvassing; it merely requires that canvassers fill out a
form and receive a permit. Cf. Martin, supra. The mayor does not
exercise any discretion in deciding who receives a permit; approval of the
permit is automatic upon proper completion of the form. Cf. Cantwell, supra.
And petitioners do not contend in this Court that the ordinance is vague. Cf.
Hynes, supra.
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. See ante, at
13 (finding it “unnecessary … to resolve” what standard of review applies to
the ordinance). We are instead told that the “breadth of speech
affected” and “the nature of the regulation” render the permit requirement
unconstitutional. Ante, at 13. 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.’ ” Ward
v. Rock Against Racism, 491 U.S. 781,
791 (1989) (quoting Clark v. Community for Creative
Non&nbhyph;Violence, 468 U.S. 288,
293 (1984)). Earlier this Term, the Court reaffirmed that this test applies to
content-neutral time, place, or manner restrictions on speech
in public forums. See Thomas v. Chicago Park Dist., 534 U.S. 316
(2002).
The Court suggests that Stratton’s
regulation of speech warrants greater scrutiny. Ante,
at 13. 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 Hynes,
the Court explained: “ ‘Of all the methods of spreading unpopular ideas,
[house-to-house canvassing] seems the least entitled to extensive protection.
The possibilities of persuasion are slight compared with the certainties of
annoyance. Great as is the value of exposing citizens to novel views, home is
one place where a man ought to be able to shut himself up in his own ideas if
he desires.’ ” 425 U.S., at 619 (quoting Z. Chafee, Free Speech in the United
States 406 (1954)). In Ward, the Court held that intermediate scrutiny
was appropriate “even in a public forum,” 491 U.S., at 791 (emphasis added),
appropriately recognizing that speech enjoys
greater protection in a public forum that has been opened to all citizens, see ibid.
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. See Frisby v. Schultz, 487 U.S. 474,
483—484 (1988). 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.1 The Court concedes that “in
light of our precedent, … these are important interests that [Stratton] may
seek to safeguard through some form of regulation of solicitation activity.” Ante,
at 13. 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. Ante, at 17—18. But the village is entitled to
rely on our assertion in Martin that door-to-door canvassing poses a
risk of crime, see Erie v. Pap’s A. M., 529 U.S. 277,
297 (2000) (citing Renton v. Playtime Theatres, Inc., 475 U.S. 41
(1986)), and the experience of other jurisdictions with crime stemming from
door-to-door canvassing, see 529 U.S., at 297; Nixon v. Shrink
Missouri Government PAC, 528 U.S. 377,
393, n. 6 (2000).
The double murder in Hanover described
above is but one tragic example of the crime threat posed by door-to-door
canvassing. Other recent examples include a man soliciting
gardening jobs door-to-door who tied up and robbed elderly residents, see Van
Derbken, 98-Year-Old Latest Victim in Series of Home Invasions, San Francisco
Chronicle, Sept. 13, 2000, p. A18, a door-to-door vacuum cleaner salesman
who raped a woman, see Employers Liable for Rape by Salesman, Texas Lawyer,
Jan. 11, 1999, p. 2, and a man going door-to-door purportedly on behalf of
a church group who committed multiple sexual assaults, see Ingersoll, Sex Crime
Suspect Traveled with Church Group, Wis. State Journal, Feb. 19, 2000, p. 1B.
The Constitution does not require that Stratton first endure its own crime wave
before it takes measures to prevent crime.
What is more, the Court soon forgets both
the privacy and crime interests. It finds the ordinance too broad because it
applies to a “significant number of non-commercial ‘canvassers.’ ” Ante,
at 14. But noncommercial canvassers, for example, those purporting to conduct
environmental surveys for school, see supra, at 2, can violate no
trespassing signs and engage in burglaries and violent crimes just as easily as
commercial canvassers can. See Martin, 319 U.S., at 144 (canvassers, “whether
selling pots or distributing leaflets, may lessen the peaceful enjoyment
of a home” and “sp[y] out” homes for burglaries (emphasis added)). Stratton’s
ordinance is thus narrowly tailored. It applies to everyone who poses the risks
associated with door-to-door canvassing, i.e., it applies to everyone
who canvasses door-to-door. The Court takes what should be a virtue of the
ordinance–that it is content neutral, cf. 44 Liquormart, Inc. v. Rhode
Island, 517
U.S. 484, 501 (1996) (“[O]ur commercial speech
cases have recognized the dangers that attend governmental attempts to single
out certain messages for suppression”)–and turns it into a vice.
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.” Ante, at 17.
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.2 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. See, e.g., Thomas v.
Chicago Park Dist., 534 U.S. 316
(2002) (upholding a permit requirement aimed, in part, at preventing unlawful
uses of a park and assuring financial accountability for damage caused by the
event). 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.3
Of course, the Stratton ordinance does not
guarantee that no canvasser will ever commit a burglary or violent crime. The
Court seems to think this dooms the ordinance, erecting an insurmountable
hurdle that a law must provide a fool-proof method of preventing crime. In
order to survive intermediate scrutiny, however, a law need not solve the crime
problem, it need only further the interest in preventing crime. Some deterrence
of serious criminal activity is more than enough to survive intermediate
scrutiny.
The final requirement of intermediate
scrutiny is that a regulation leave open ample alternatives for expression.
Undoubtedly, ample alternatives exist here. Most obviously, canvassers are free to go door-to-door after filling out the permit
application. And those without permits may communicate on public sidewalks, on
street corners, through the mail, or through the telephone.
Intermediate scrutiny analysis thus
confirms what our cases have long said: A discretionless permit requirement for
canvassers does not violate the First
Amendment. Today, the Court elevates its concern with what is, at most, a
negligible burden on door-to-door communication above this established
proposition. Ironically, however, today’s decision may result in less of the
door-to-door communication that the Court extols. As the Court recognizes, any
homeowner may place a “No Solicitation” sign on his or her property, and it is
a crime to violate that sign. Ante, at 17. In light of today’s decision
depriving Stratton residents of the degree of accountability and safety that
the permit requirement provides, more and more residents may decide to place
these signs in their yards and cut off door-to-door communication altogether.
1. Of course, fraud itself
may be a crime. I assume, as does the majority, that the interest in preventing
“crime” refers to a separate interest in preventing burglaries and violent
crimes.
2. It is sufficient that the
ordinance serves the important interest of protecting residents’ privacy. A law
need only serve a governmental interest. Because the Court’s treatment
of Stratton’s interest in preventing crime gives short shrift to Stratton’s
attempt to deal with a very serious problem, I address that issue as well.
3. Indeed, an increased
focus on apprehending criminals for “petty” offenses, such as not paying subway
fares, is credited with the dramatic reduction in violent crimes in New York
City during the last decade. See, e.g., M. Gladwell, The Tipping Point:
How Little Things Can Make a Big Difference (2000). If this works in New York
City, surely it can work in a small village like Stratton.
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be
released, as is being done in connection with this case, at the time the
opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of
the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321,
337.
SUPREME COURT OF THE UNITED STATES
No. 00—1737. Argued
February 26, 2002–Decided June 17, 2002
Respondent Village of Stratton
(Village) promulgated an ordinance that, inter alia, prohibits “canvassers”
from “going in and upon” private residential property to promote any “cause”
without first obtaining a permit from the mayor’s office by completing and
signing a registration form. Petitioners, a society
and a congregation of Jehovah’s Witnesses that
publish and distribute religious materials, brought this action for injunctive
relief, alleging that the ordinance violates their First
Amendment rights to the free exercise of
religion, free speech, and freedom of the press.
The District Court upheld most provisions of the
ordinance as valid, content-neutral regulations, although it did require the
Village to accept narrowing constructions of
several provisions. The Sixth Circuit affirmed. Among its rulings, that court
held that the ordinance was content neutral and of
general applicability and therefore subject to intermediate scrutiny; rejected
petitioners’ argument that the ordinance is overbroad because it impairs the
right to distribute pamphlets anonymously that was recognized in McIntyre
v. Ohio Elections Comm’n, 514 U.S. 334;
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 bases on which to justify the
regulation; and distinguished this Court’s earlier cases protecting the Jehovah’s
Witnesses ministry.
Held: The ordinance’s provisions making it a misdemeanor to engage in
door-to-door advocacy without first registering with the mayor and receiving a
permit violate the First
Amendment as it applies to religious proselytizing, anonymous political
speech, and the distribution of handbills. Pp. 9—18.
(a) For over 50 years, this Court has
invalidated on First
Amendment grounds restrictions on door-to-door canvassing and
pamphleteering by Jehovah’s Witnesses. See, e.g., Murdock v. Pennsylvania,
319 U.S.
105. Although those cases do not directly control the question at issue,
they yield several themes that guide the Court. Among other things, those cases
emphasize that the hand distribution of religious
tracts is ages old and has the same claim as more orthodox practices to the guarantees
of freedom of
religion, speech, and press, e.g., id., at 109; discuss extensively the
historical importance of door-to-door canvassing
and pamphleteering as vehicles for the dissemination of
ideas, e.g., Schneider v. State (Town of
Irvington), 308 U.S. 147,
164, but recognize the legitimate interests a town may have in some form of regulation, particularly when the solicitation of money is involved, e.g., Cantwell v. Connecticut,
310 U.S.
296, 306, or the prevention of burglary is a
legitimate concern, Martin v. City of
Struthers, 319 U.S. 141,
144; make clear that there must be a balance between such interests and the
effect of the regulations on First
Amendment rights; e.g., ibid.; and demonstrate that the Jehovah’s
Witnesses have not struggled for their rights alone, but for those many who are
poorly financed and rely extensively upon this method of
communication, see, e.g., id., at 144—146, including nonreligious groups
and individuals, see, e.g., Thomas v. Collins, 323 U.S. 516,
539—540. Pp. 9—13.
(b) The Court need not resolve the
parties’ dispute as to what standard of review to
use here because the breadth of speech affected by
the ordinance and the nature of the regulation
make it clear that the Sixth Circuit erred in upholding it. There is no doubt
that the interests the ordinance assertedly serves–the prevention of fraud and crime and the protection of residents’ privacy–are important and that the Village
may seek to safeguard them through some form of
regulation of solicitation activity. However, the
amount of speech covered by the ordinance raises
serious concerns. Had its provisions 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
its residents’ privacy and preventing fraud. Yet, the Village’s administration of its ordinance unquestionably demonstrates that it
applies to a significant number of noncommercial “canvassers”
promoting a wide variety of “causes.” The
pernicious effect of the permit requirement is
illustrated by, e.g., the requirement that a canvasser be identified in
a permit application filed in the mayor’s office and made available for public
inspection, which necessarily results in a surrender of
the anonymity this Court has protected. Also central to the Court’s 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’s argument that the
ordinance is nonetheless valid because it serves the two additional interests of protecting residents’ privacy and the prevention of crime is unpersuasive. As to the former, an
unchallenged ordinance section authorizing residents to post “No Solicitation”
signs, coupled with their unquestioned right to refuse to engage in
conversation with unwelcome visitors, provides ample protection for unwilling
listeners. As to the latter, it seems unlikely that the lack of a permit would preclude criminals from knocking on doors
and engaging in conversations not covered by the ordinance, and, in any event,
there is no evidence in the record of a special
crime problem related to door-to-door solicitation. Pp. 13—18.
240 F.3d 553, reversed and remanded.
Stevens, J., delivered the opinion of the Court, in which O’Connor, Kennedy, Souter,
Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, in
which Souter and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring
in the judgment, in which Thomas, J., joined. Rehnquist, C. J., filed a
dissenting opinion.
536 U.S. ____ (2002)
SUPREME COURT OF THE UNITED STATES
No. 00—1737
[June 17, 2002]
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.” Ante, at 16.
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, 494 U.S. 872
(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,” ante, at 16, 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.
Breyer, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 00—1737
[June 17, 2002]
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. Cf. post, at 6—10 (Rehnquist, C. J.).
For one thing, there is no indication that the legislative body that passed the
ordinance considered this justification. Stratton did not rely on the rationale
in the courts below, see 61 F. Supp. 2d 734, 736 (SD Ohio 1999) (opinion of the District Court describing the ordinance as “constructed
to protect the Village residents from ‘flim flam’ con artists”); 240 F.3d 553,
565 (CA6 2001) (opinion of the Court of Appeals describing interests as “protecting [the
Village’s] residents from fraud and undue annoyance”), and its general
references to “deter[ing] crime” in its brief to this Court cannot fairly be
construed to include anything other than the fraud it discusses specifically.
Brief for Respondents 14—18.
In the intermediate scrutiny context, the
Court ordinarily does not supply reasons the legislative body has not given.
Cf. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803,
816 (2000) (“When the Government restricts speech, the Government bears the
burden of proving the constitutionality of its actions” (emphasis added)). That does not mean, as
The Chief Justice suggests, that only a government with a “battery of constitutional lawyers,” post, at 1, 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. As the Court notes, several categories
of potential criminals will remain entirely
untouched by the ordinance. Ante, at 17, 2, n. 1. And as to those
who might be affected by it, “[w]e have never accepted mere conjecture as
adequate to carry a First
Amendment burden,” Nixon v. Shrink Missouri Government PAC, 528 U.S. 377,
392 (2000). Even less readily should we accept such implausible conjecture
offered not by the party itself but only by an amicus, see Brief for
Ohio et al. as Amici Curiae 5—6.
Because Stratton did not rely on the crime
prevention justification, because Stratton has not now “present[ed] more than
anecdote and supposition,” Playboy Entertainment Group, supra, at
822, 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.