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High court to hear Jehovah's Witnesses case

Analysis

By Tony Mauro
Special to freedomforum.org

10.16.01

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The late Supreme Court Justice Harlan Fiske Stone once wrote, "The Jehovah's Witnesses ought to have an endowment in view of the aid which they give in solving the legal problems of civil liberties."

In the 1930s and 1940s, the Supreme Court ruled on roughly two dozen cases involving Jehovah's Witnesses, some of them resulting in the court's most important pronouncements on the First Amendment.

Yesterday, the high court agreed to hear another Jehovah's Witnesses case that could result in an important ruling on the extent to which the First Amendment protects anonymous speech — especially in a time of heightened concern about security and privacy.

At issue in the case is an ordinance adopted in 1998 by the village of Stratton, Ohio, that requires door-to-door solicitors to obtain a permit from the mayor beforehand. The permit process requires applicants to fill out a form listing their name and where they have lived for the last five years, and to display their names on their permits as they go door to door.

Lawyers for a nearby Jehovah's Witnesses congregation challenged the law on a variety of grounds, including religious bias. Lower courts said that because the ordinance is neutral and applies to all kinds of solicitors, it did not suppress religious freedom.

The ordinance was also challenged as a violation of the First Amendment protection afforded to anonymous speech. By requiring Jehovah's Witnesses as well as any other political or nonpolitical solicitors to reveal and display their names, the challengers said, the ordinance conflicts with McIntyre v. Ohio Elections Commission — a 1995 Supreme Court decision that said anonymous political speech is protected by the First Amendment. In McIntyre, the court cited The Federalist Papers, which were written under pseudonyms, and said, "Anonymity is a shield from the tyranny of the majority."

But the 6th U.S. Circuit Court of Appeals rejected that argument, finding that in the act of going door to door, solicitors necessarily reveal part of their identity.

In announcing that it would review the case, Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, the Supreme Court said it would confine the case to the issue of anonymous speech and not review the religious-freedom issues raised.

"It may be more of a big deal for free speech than for religious freedom," said Marc Stern of the American Jewish Congress.

Jehovah's Witnesses lawyer Paul Polidoro of Patterson, N.Y., said, "The case will hopefully have a positive impact on speech — ours or anyone else's." He said the village of Stratton had a valid interest in preventing fraud by commercial solicitors, but "there was no need to reach pure speech" in its regulations. He acknowledged, however, that "this is a hard ordinance to write" without invading the protection for anonymous speech.

The court in fact may have taken up the case in order to modify the McIntyre decision in light of modern law enforcement interests. Additionally, in the context of campaign-finance reform laws, the court has upheld regulations that require political donors to identify themselves for federal record-keeping.

Polidoro in his petition harkened back to the long line of Jehovah's Witnesses cases that helped establish many of the court's most important First Amendment doctrines. One of the first was Cantwell v. Connecticut, a 1940 decision that upheld the right of Jehovah's Witnesses to solicit at street corners without being subject to a permit process that enabled local officials to completely prohibit the religious activity. The decision was also the first to apply the religion clauses of the First Amendment to state, as opposed to federal, action.

"More than any other religious group in the history of American jurisprudence," wrote Polidoro, "Jehovah's Witnesses have successfully relied upon this Court to safeguard their rights to free speech, free press, and freedom of worship against municipal efforts at prohibition or regulation."

The case will be argued early next year, with a decision expected before the court recesses for the summer in late June or early July.

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.

Update

Church's door-to-door solicitation case comes calling at high court
Jehovah's Witnesses say they are being targeted and their free-speech rights are being violated by Ohio town's ordinance.  02.26.02

Related

Anonymous speech tough to pull off in trying times
By Douglas Lee We need to resist the temptation to silence those we cannot see and do not know.  10.30.01

2001-2002 Supreme Court term coverage
Analysis and other coverage of the 2001-2002 U.S. Supreme Court term.  11.01.01

High court vacates ruling in Arizona prayer-day case
Justices order 9th Circuit to revisit case that examines public funds and religion, refuse to review three other appeals.  10.10.01

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