Supreme Court Watch
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RAY SUAREZ: Soliciting, your doorbell, and the First Amendment: Can a town require permits from Jehovah’s Witnesses and others who want to solicit door to door? That was at issue in an Ohio case before the Supreme Court today.
Listening to the arguments was NewsHour regular Jan Crawford Greenburg, Supreme Court reporter for The Chicago Tribune.
RAY SUAREZ: Well, Jan, take us back to Stratton, Ohio and to the beginning of the case. What did the town do?
JAN CRAWFORD GREENBURG: Well, first of all, Stratton is a very tiny village in the eastern part of the state and about 300 residents, most of them retirees.
So the town leaders said they were looking to prevent fraud and protect the residents’ privacy, so they amended their anti-solicitation law in 1998 to require that anyone who wanted to go door-to-door — whether to canvas or solicit or peddle goods, services, or even to explain a certain cause first had to go down to the city hall and get a permit.
Now, to get the permit they had to list on a form their name address, organization, they had to explain their cause and give any other information that might be reasonably necessary according to the ordinance. The Jehovah’s Witnesses sued to block the law and lower courts actually sided largely with the village of Stratton, Ohio.
RAY SUAREZ: On what basis?
JAN CRAWFORD GREENBURG: Well, the Jehovah’s Witnesses said that it violated their First Amendment free speech rights, but the lower court and the appeals court below in Cincinnati said that the law didn’t single out a specific type of speech, a political speech, or a religious speech, that it applied to all.
RAY SUAREZ: So everyone would be required to get a permit?
JAN CRAWFORD GREENBURG: Exactly. And so they said because it didn’t single out a certain group or a certain type of speech, that it was narrowly written, narrowly tailored and that the Jehovah’s Witnesses had other ways that they could express their views; they could go to the street corner or to the super market or other public places, so that they could convey their beliefs and their witnessing about Jesus Christ.
And there was an interesting dissent below in the appeals court and the dissent, and this is essentially what the Jehovah’s Witnesses are arguing, is that, look, this law is much broader than necessary and of course it violates the First Amendment.
If you’re so concerned about fraud, why are you targeting this non-commercial speech, religious speech, why are you including that in the ordinance, and, furthermore, why is this ordinance even necessary?
The village of Stratton like most cities and towns across the country has laws that prevent trespassing, and it even has a law that says if you have a got a “no solicitation” sign on your door, a solicitor or a Jehovah’s Witness, can’t go up on and knock on the door. I mean, that would be their argument, so why is this law even necessary? Dissent in the case below said that this law should violate the First Amendment.
RAY SUAREZ: And I guess that was echoed by the lawyer for Jehovah’s Witnesses themselves when they got into court today?
JAN CRAWFORD GREENBURG: Right. And the Jehovah’s Witness lawyers said very strongly, we don’t believe that anyone needs to go to the government, to the city hall to get permission just to speak to a neighbor.
I mean he made the point and I want to read this quote — he said “We’re not seeking solicitation of funds; we’re merely interested in talking about the Bible.” And he stressed over and over that this ordinance could discourage and violate the free speech right of the Jehovah’s Witnesses by requiring them to go down to city hall and get permission from the mayor to go and talk to somebody about the Bible and about Jesus Christ.
RAY SUAREZ: What did the lawyer for Stratton, Ohio, have to say?
JAN CRAWFORD GREENBURG: Well, he emphatically said of course that this was a valid exercise of the city’s police powers, he put it, and that the village was entitled to pass this kind of ordinance to prevent fraud and to protect the residents.
And he was worried that what about the people who might, you know, show up and ring the doorbell under some kind of guise or some — they were misrepresenting themselves. So that this ordinance would give the residents more confidence in the fact that if someone was ringing their doorbell and showed a permit they were really who they said think were.
RAY SUAREZ: And so the justices began their questioning. How did it go?
JAN CRAWFORD GREENBURG: Well, this was really – actually a very lively argument, and you heard words like “trouble sign”, “astounding” used by more than one or two of the justices, suggesting I believe that they see real problems with this ordinance.
Justice Scalia, for example, said the breadth of this law is novel to me, and a very dramatic point came about midway through the argument when the city’s lawyer was trying to make his case.
Justice Kennedy who as you know is one of the most ardent protectors of the First Amendment on the Court – I mean he’s a Republican appointee but he’s more protective of the First Amendment than even the more liberal Clinton appointee — Justice Kennedy today raised as an example – wouldn’t this ordinance apply if I just wanted to walk down the street and talk to my neighbor about garbage pickup or complain about my local congressman — and he said you think that it’s a beautiful idea that I have to ask the government for permission before I go down to the block to talk about garbage pickup?
That’s astounding. And you could almost see the other justices just kind of walk over to Kennedy’s side.
Justice Scalia said, you know, what about that? How can that not apply? And the city’s attorney tried to say, well, you know, that’s a little different situation. The law isn’t really designed to cover those kinds of situations.
Justice Souter was completely unconvinced. How would this not apply to Justice Kennedy’s neighbor, he said, and Justice Scalia again went back and said, well, the city has broadly covered what a canvasser is – it would encompass a Jehovah’s Witnesses — and if you say it would cover a Jehovah’s Witness, then surely it would cover Justice Kennedy’s neighbor.
And then the question that he posed started the other justices raising other problems. Justice O’Connor — what about trick-or-treaters or Christmas carolers or even a neighbor who wanted to cross the street and borrow a cup of sugar — all of these were very real concerns to the justices suggesting as Justice Kennedy very strongly suggested that the ordinance was just much too broad and covered many more forms of communication than was necessary.
RAY SUAREZ: When the justices started to speculate about the breadth of the law, how did the city respond? Did it answer in the affirmative, well, yes, I guess it would apply to this kind of person and that kind of person?
JAN CRAWFORD GREENBURG: Well, the city attorney initially tried to make the point that that was kind of the beauty of the ordinance, that it applied to all, and Justice Scalia just kind of stopped and said, oh, so you’re saying because it just applies to communication, that it’s constitutional, suggesting that he really didn’t buy that.
RAY SUAREZ: Was it much of an effort to distinguish between trying to sell ideas versus selling vacuum cleaners and magazine subscriptions — commercial speech versus other kinds of speech?
JAN CRAWFORD GREENBURG: Not by the city attorney but there was something that some of the justices did bring up, because this would apply, and just like I mentioned the judge in the appeals court below suggested that this would apply to commercial and noncommercial speech. Justice Breyer raised that as a concern today.
RAY SUAREZ: Jan, thanks a lot.
JAN CRAWFORD GREENBURG: Thank you.