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Supreme Court again finds itself on side of Jehovah's Witnesses

Analysis

By Tony Mauro
Special to freedomforum.org

06.18.02

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WASHINGTON — The Supreme Court yesterday honored its decades-old tradition of protecting the rights of Jehovah's Witnesses by ruling once again in their favor, this time deciding that door-to-door advocates need not obtain permits from local officials.

By an 8-1 vote in the case Watchtower Bible & Tract Society of New York v. Village of Stratton, the court struck down a permit ordinance enacted by Stratton, Ohio, as an overly broad prior restraint on speech.

"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," Justice John Paul Stevens wrote in the majority opinion.

Stevens reviewed the Supreme Court's long history of ruling for Jehovah's Witnesses in disputes triggered by their fervent belief in house-to-house ministry. Some of the court's most significant First Amendment rulings have come in Jehovah's Witness cases.

"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," Stevens wrote. "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 ruling, a strong affirmation of the value of anonymous, unregulated and unpopular speech, was applauded by leaders ranging from Barry Lynn of Americans United for Separation of Church and State and Sen. Orrin Hatch, R-Utah.

"People who want to talk about their views with others shouldn't have to ask the government for permission first," said Lynn.

"The Supreme Court's balanced and well-reasoned analysis is a victory for religious freedom and will continue this country's proud legacy of religious tolerance," said Hatch.

In the opinion, Stevens said the ordinance regulates far more speech than is required to achieve the town's goal of reducing the threat of crime and fraud for homeowners.

Political canvassers who advocate unpopular causes or prefer anonymity are affected, he said, as well as "a significant amount of spontaneous speech," such as a "spontaneous decision to go across the street and urge a neighbor to vote against the mayor."

In another argument that drew a sarcastic retort from Justice Antonin Scalia, Stevens also asserted, "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."

Scalia, in a concurring opinion joined by Clarence Thomas, ridiculed Stevens' "fairy-tale category of patriotic citizens who would rather be silenced than licensed." Scalia added, "If our free-speech jurisprudence is to be determined by the predicted behavior of such crackpots, we are in a sorry state indeed." But Scalia and Thomas agreed with Stevens' bottom-line judgment that the Stratton ordinance violated the First Amendment.

Justice Stephen Breyer, joined by David Souter and Ruth Bader Ginsburg, also wrote a concurrence to emphasize their view that "crime prevention" is a weak justification for the ordinance.

In the majority opinion, Stevens also implied that if the permit ordinance was rewritten to apply only to salespeople and those soliciting funds, it might be acceptable because it could be shown to serve the town's goal of preventing fraud.

Stevens wrote that protecting the privacy of residents — another stated goal of Stratton's ordinance — could be accomplished in other ways. He noted that another provision of the town ordinance, not at issue in the case, allows residents to post "no solicitation" signs on their property. That feature of the law, Stevens said, provides "ample protection for the unwilling listener."

Paul Polidoro, the in-house lawyer for the Witnesses who argued the case, said the ruling "breathed new life, modern vitality" into the court's line of precedents in Witness cases. "We're very pleased."

Polidoro did say that Stevens' reference to "no solicitation" signs posed potential problems "down the road." While Witnesses respect the right of homeowners to express their views about solicitation, Polidoro said constitutional problems could arise if municipalities enforce those wishes in a discriminatory way.

In dissent, Chief Justice William Rehnquist also said the provision allowing for "no solicitation" signs to be posted could end up backfiring. "Ironically… today's decision may result in less of the door-to-door communication that the Court extols ... . 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."

Rehnquist also said the ruling "renders local governments largely impotent to address the very real safety threat that canvassers pose." As he did at oral argument, Rehnquist cited the 2001 murders of two Dartmouth College professors by teenagers who posed as door-to-door canvassers.

Far from adhering to precedent, Rehnquist said, the court majority "abruptly changes course" by striking down, for the first time, an ordinance that requires permits for door-to-door canvassers but gives no discretion to the issuing authority.

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

Related

High court throws out law barring door-to-door solicitation
Justices vote 8 to 1 in Ohio case brought by Jehovah's Witnesses that First Amendment includes right to take messages directly to someone's door.  06.17.02

Why Jehovah's Witnesses' victory is a win for all of us
By Charles Haynes However, Supreme Court frames proselytizing group's right to go door-to-door as free-speech issue, neglecting to mention free exercise of religion.  06.23.02

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

George Maynard recalls license-plate ordeal, free-speech victory
Analysis Jehovah's Witness covered up New Hampshire's 'Live Free or Die' motto in 1974; case went to U.S. Supreme Court.  11.30.01

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