News
Constitutional Law
Feb. 27, 2002
Justices Frown on Solicitation Law
WASHINGTON - A clear majority of the Supreme Court on Monday indicated they will strike down a city's law that strictly regulates people who canvass residents door to door, but the justices were unclear how they would do it.
During arguments in a suit brought by the Jehovah's Witnesses, the justices expressed strong skepticism about an ordinance in the small village of Stratton, Ohio, that requires "canvassers, solicitors, peddler and hawkers" to register with the mayor and display their permit - which includes their name - to anyone who requests it. Watchtower Bible and Tract Society of New York Inc. v. Village of Stratton, Ohio, 00-1737.
Only Chief Justice William H. Rehnquist seemed sympathetic to the village's contention that the ordinance is necessary to protect its residents, consisting mainly of retirees, from scams and other crimes by canvassers.
Rehnquist brought up the recent case of "a double murder at Dartmouth College by two young men who purported to be conducting a survey but were really casing houses."
"The municipality can take that into account, can't they?" he wondered. "The ordinance gives a record of who was there, and that's a deterrent for some."
But fellow conservative Justice Antonin Scalia, among others, dismissed that argument.
"The safest societies in the world are totalitarian dictatorships; there's very little crime," Scalia said. "It's a fact that one of the costs of liberty is the risk of criminal activity."
While the justices signaled they will strike down the ordinance - and similar laws in several other municipalities across the country - they seemed to struggle with how to structure their ruling. Some indicated they would cite a 1995 decision upholding the right to distribute anonymous political campaign literature, while others favored a line of decisions - mainly involving the Jehovah's Witnesses - that struck down laws barring religious solicitations.
Justice Anthony M. Kennedy repeatedly asked the lawyers arguing the case for help in choosing the correct path.
"I can't find one case like this," Kennedy said at one point.
The hourlong argument began dramatically with Paul D. Polidoro, associate general counsel at the Jehovah's Witnesses headquarters in Patterson, N.Y., announcing, "It's 11 a.m. in the Village of Stratton, and someone knocks on the door." Polidoro then rapped his knuckles on the lectern.
"Because of this special moment, I am bringing you good news about the Kingdom of God," he added. "That is a criminal act unless I have obtained a permit to do so."
The village's ordinance also criminalizes passing out a flyer stating, "Democracy is wonderful and you should vote next week," Polidoro said. "This ordinance is overbroad and unconstitutional [under the First Amendment]."
Kennedy broke in to say that he was troubled that canvassers must first disclose their identities to the village mayor and then at the door, if a resident requests it.
Polidoro said it also is unconstitutional to ask canvassers to reveal their cause.
"Some don't want to do it because it opens them up to economic retaliation and social ostracism," he added.
Justice Stephen G. Breyer said, "[I'm] concerned that this ordinance may apply to political contributions, although I know that's not your issue."
Justice Sandra Day O'Connor expressed some sympathy for towns requiring permits for canvassers.
"I think I live in a community that does that ... to prevent burglaries and other unfortunate incidents," O'Connor said.
But when Abraham Cantor of Concord, Ohio, representing the village, began his argument, O'Connor asked sharply, "How about trick-or-treaters? It seems to me this ordinance literally covers them."
Cantor replied that it probably wouldn't.
"[The children] were not seeking to communicate anything; they're just begging candy," Cantor said.
But he acknowledged that the law would cover Girl Scouts selling cookies.
After Cantor said "the beauty" of the ordinance was its novelty, Kennedy curtly said, "It's beautiful to require me to ask the government for a permit to talk with my neighbors about problems with our garbage pickup?"
"We're talking about canvassing and hawking," Cantor replied.
Breyer noted that the Jehovah's Witnesses do not raise money in Stratton and are merely promoting a cause.
"What is the purpose of registering with the mayor?" he asked.
"To identify who is in the community going door to door," Cantor said. "They may be doing that as a guise for criminality."
Scalia scoffed at that suggestion.
"You could say everyone who gets up on a soapbox will start a riot. That's one of the normal risks of life," he said. "Here's it called a privilege, and I just can't understand it."
Cantor tried to shift the focus back to the village residents, arguing, "There is a privacy issue here."
"And the choice is being made by the homeowner, who can fill out a form listing which groups are not permitted to canvass at their home," he added as his 20 minutes expired.
Ohio Solicitor General David M. Gormley, arguing 10 minutes as an amicus for the village, stressed that the ordinance is "designed to protect residents who are concerned about a knock on the door from an uninvited stranger perhaps asking to enter the home."
"But they can post a no-trespassing or no-solicitation sign on their property," O'Connor said. "Why do you need more?"
"As an after-the-fact remedy," Gormley replied. "If there is a violation of the law, we have to find them, and we need the name to track them down."
"You can rape and burgle, but you're not afraid to register?" Scalia said sarcastically.
Polidoro, during a brief rebuttal, insisted, "Our activity is not an annoyance; it is at the heart of the First Amendment."
#337628
David Pike
Daily Journal Staff Writer
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com