OCTOBER TERM, 2001
Syllabus
WATCHTOWER BIBLE & TRACT SOCIETY OF NEW YORK, INC., ET AL.
v. VILLAGE
OF STRATTON ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
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. 160-169.
(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,
151
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. 160-164.
(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
152
152 WATCHTOWER BIBLE & TRACT SOC. OF N. Y., INC.
v.
VILLAGE OF STRATTON
Syllabus
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. 164-169.
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,
post, p. 169. SCALIA, J., filed an
opinion concurring in the judgment, in which THOMAS, J., joined,
post, p. 171. REHNQUIST, C. J., filed a dissenting opinion,
post, p. 172.
Paul D. Polidoro argued the cause for petitioners. With him on
the briefs were Philip Brumley, Richard D. Moake, and Donald T.
Ridley.
Abraham Cantor argued the cause and filed a brief for
respondents.
David M. Gormley, State Solicitor of Ohio, argued the
cause for the State of Ohio et al. as
amici curiae in
support of respondents. With him on the brief were
Betty D.
Montgomery, Attorney General of Ohio,
Elise W Porter and
Kirk A. Lindsey, Assistant Solicitors, and the Attorneys
General for their respective States as follows:
Richard
Blumenthal of Connecticut,
Steve Carter of Indiana,
Thomas J. Miller of Iowa,
Richard P.
Ieyoub of Louisiana,
J. Joseph Curran, Jr., of
Maryland,
Thomas Reilly of Massachusetts,
Frankie Sue Del
Papa of Nevada,
W A. Drew Edmondson of Oklahoma, and
Hoke MacMillan of Wyoming. *
*Briefs of
amici curiae urging reversal were filed for
Commonwealth of the Northern Mariana Islands by
Herbert D.
SoU, Attorney General,
153
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
regulation 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
David Collins, and
Karen M. Klaver; for the Center
for Individual Freedom by
Eric S.
Jaffe; for the
Church of Jesus Christ of Latter-day Saints by
Von G.
Keetch; for the Electronic Privacy Information Center et al.
by
Marc Rotenberg, Steven R. Shapiro, and
Raymond
Vasvari; and for ReaICampaignReform.org, Inc., et al. by
William J. Olson, John S.
Miles, and
Herbert W Titus.
Briefs of
amici curiae urging affirmance were filed for
the Ohio Municipal League by
Barry M. Byron and
John E.
Gotherman; and for the International Municipal Lawyers
Association et al. by
Richard Ruda and
James
Briefs of
amici curiae were filed for the Brennan Center
for Justice by
Burt Neuborne, Deborah Goldberg, and
Richard L. Hasen; and for Independent Baptist Churches of
America by
Thomas W King III.
154
154 WATCHTOWER BIBLE & TRACT SOC. OF N. Y., INC.
v.
VILLAGE OF STRATTON
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
1 Section 116.01 provides: "The practice of going in and upon
private property and/or the private residences 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 172-173,
177, 179 (opinion of REHNQUIST, C. J.), the Village's ordinance
would have done nothing to prevent that tragic crime.
155
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
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
156
156 WATCHTOWER BIBLE & TRACT SOC. OF N. Y., INC.
v.
VILLAGE OF STRATTON
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
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 anyone 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
157
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
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 Carriers17. Persons Mfiliated 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.
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158 WATCHTOWER BIBLE & TRACT SOC. OF N. Y., INC.
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VILLAGE OF STRATTON
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.
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.
159
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 565566. The court distinguished earlier cases
protecting the Jehovah's Witnesses ministry because those cases
either in-
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).
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160 WATCHTOWER BIBLE & TRACT SOC. OF N. Y., INC.
v.
VILLAGE OF STRATTON
volved 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 discourse 7" 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.lO 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,
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).
161
319 U. S. 105,
108 (1943), the Jehovah's Witnesses "claim to follow the example of
Paul, teaching 'publickly, 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.ll 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.
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.
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162 WATCHTOWER BIBLE & TRACT SOC. OF N. Y., INC.
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I t also has the same claim as the others to the guarantees of
freedom of speech and freedom of the press."
Id., at
108-109.
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-todoor
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
163
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:
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"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,
165
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
12 Hynes, 425 U. S., at 620, n. 4.
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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 in favor of 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
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).
167
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.
168
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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
169
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
doorto-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.
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 176-180 (opinion
of 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
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BREYER, J., concurring
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 172, 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 168-169, 154, 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.
171
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.
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 doorto-door advocacy, that
they would prefer silence to speech licensed by a petty official."
Ante, at 167.
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 167, 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.
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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 wellestablished
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 Zantops' home.
Investigators have concluded, based on the confession of one of the
teenagers, that the teenagers went door-to-door intent on
stealing
173
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 163, 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 161. But this "backdrop" is one of longstanding and unwavering
approval of a permit requirement like Stratton's. Our early
decisions in this area expressly
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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.
175
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 164 (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.
Ibid. 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-Violence, 468
U. S. 288, 293 (1984)). Earlier
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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 164. 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.l The Court con-
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.
177
cedes 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 165.
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-todoor solicitation in
the record before us" lessens this interest.
Ante, at 169.
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-todoor 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 noncommercial 'canvassers.'"
Ante, at
165. But noncommercial canvassers, for example, those purporting to
conduct environmental surveys for school, see
supra, at
172-173, can violate no trespassing
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178 WATCHTOWER BIBLE & TRACT SOC. OF N. Y., INC.
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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 doorto-door. The Court takes what should
be a virtue of the ordinance-that it is content neutral, cf.
J,J, 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 168-169. 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 commonsense recognition that their existence
both deters and helps detect wrongdoing. See,
e. g., Thomas
v.
Chicago Park Dist., 534
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.
179
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 foolproof method of preventing
crime. In order to survive intermediate scrutiny, however, a law
need not solve the crime
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.
180
180 WATCHTOWER BIBLE & TRACT SOC. OF N. Y., INC.
v.
VILLAGE OF STRATTON
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, to day'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
168. 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.
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