Court sees no redemption in limits on Jehovah's Witness solicitations.
--------------------------------------------------------------------------------
Supreme Court justices on Tuesday criticized and even ridiculed a local Ohio ordinance that requires anyone who goes door to door -- including Jehovah's Witnesses -- to obtain a permit from the mayor beforehand.
Justice Anthony Kennedy called the ordinance "astounding," Justice Antonin Scalia suggested it was the broadest anti-speech ordinance to come before the Court in two centuries and Justice Sandra Day O'Connor said it could be used against Halloween trick-or-treaters or anyone who visits a neighbor to "borrow a cup of sugar."
The justices seemed to shrug off arguments by lawyers for Stratton, Ohio, and the state of Ohio that the ordinance was a harmless and speech-neutral regulation aimed at protecting residents from fraud, robbery and the "annoyance" of unwanted visitors.
The Stratton ordinance, passed in 1998, appeared likely to join a cavalcade of speech restrictions successfully challenged by Jehovah's Witnesses over the past 70 years. The case before the Court was Watchtower Bible and Tract Society of New York v. Village of Stratton, No. 00-1737.
Paul Polidoro, associate general counsel for the Witnesses, started with a dramatic flourish, knocking on the Court lectern as if he were a Jehovah's Witness knocking on the door of a Stratton residence.
But soon justices were asking him a flurry of questions, confused about the requirements of the ordinance and to which portions the Witnesses objected. Was the requirement that permit applicants give their names the main problem? And where would the names be given -- just back at the mayor's office, or would people with permits be required to give their names as they go door to door?
Polidoro focused at first on name issue, citing McIntyre v. Ohio, the 1995 decision that gave anonymous speech First Amendment protection. Jehovah's Witnesses, he said, had a "long constitutional memory" of the reprisals they could face if their identities are known. But Polidoro also said Witnesses freely identify themselves when asked by residents.
Justice Stephen Breyer asked Polidoro whether his position on anonymous speech would have implications for campaign finance reform -- in which disclosure of the names of campaign donors is required. Polidoro distanced himself from that issue, attacking the Stratton ordinance more broadly as a "censorial weapon."
Chief Justice William Rehnquist was the only member of the Court who sounded sympathetic to the ordinance, recalling news reports of the murder last year of two Dartmouth College professors. Their alleged killers apparently sought out potential robbery victims by going door to door pretending to conduct a survey, Rehnquist noted. He suggested that the government is entitled to "take that into account" in fashioning laws that protect citizens.
The Court's clearest expressions of disdain for the ordinance came when Stratton lawyer Abraham Cantor rose to defend it. Cantor said the village was acting within its police powers to protect privacy and prevent crime.
But soon Justice O'Connor asked about trick-or-treaters, with Justice Scalia chiming in that they, unlike Witnesses, could be categorized as "solicitors." Amid laughter, O'Connor bore in: "Does it cover them? I'm serious." Cantor's answer was unclear.
More than once Scalia quoted the words of the ordinance that refer to the permit as a "privilege." His point was that under the First Amendment, the ability to communicate is a right, not a privilege.
Justices Kennedy and David Souter teamed up to ask Cantor whether a Stratton resident who merely wanted to discuss the town's garbage pickup service with neighbors would have to obtain a permit. "That's a cause, isn't it?" asked Souter.
Cantor did not bolster his argument that the ordinance was content-neutral when he answered, "That's not the type of cause" the ordinance was intended to license.
Ohio Solicitor General David Gormley fared slightly better when he defended the ordinance as a public safety measure aimed only at people who go onto private property, emphasizing that it was justified as a way of getting a minimum of information on the record in case problems crop up later. "It is a very modest restriction," Gormley said.
But whatever success Gormley had at rehabilitating the ordinance seemed to crumble when Justice Scalia said that the safest places on earth were totalitarian regimes. As a price of liberty, Scalia said, the public has learned to put up with the risk of being uncertain about who is knocking on doors.
Tony Mauro is Supreme Court correspondent for American Lawyer Media.
COPYRIGHT 2002 American Lawyer Media L.P.
COPYRIGHT 2002 Gale Group