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WHY THE JEHOVAH'S WITNESSES SHOULD WIN THEIR SUPREME COURT FIRST AMENDMENT CHALLENGE TO A CITY ANTI-CANVASSING ORDINANCE By DAVID L. HUDSON Thursday, Jan. 10, 2002

The Supreme Court returns to its First Amendment roots next month when it hears arguments in Watchtower Bible v. Village of Stratton. There, the Jehovah's witnesses challenge a Stratton, Ohio, law burdening door-to-door canvassing, asserting that it violates not only First Amendment freedom of speech, but First Amendment freedom of religion as well.

In the 1930s and 1940s, the Court regularly refereed similar confrontations, which - like next month's case - pitted Jehovah's Witnesses versus city officials. In case after case, the Court set important First Amendment precedents protecting all citizens when it ruled in favor of Jehovah's Witnesses speech and religious rights. Perhaps fittingly, these very precedents ought to ensure that the Jehovah's Witnesses win next month's case, as well.

A First Amendment Challenge to Door-to-Door Canvassing Restrictions

In 1998, the Village of Stratton amended its anti-solicitation ordinance, which declares door-to-door soliciting and canvassing a nuisance.

As amended, the ordinance requires would-be canvassers to obtain a permit from city officials before canvassing for any purpose. It also requires those seeking a permit to shed their anonymity by providing a host of information including their name, home address, the purpose of their canvassing, and the address of each residence to be visited, as well as other information.

The ordinance provides, in addition, that citizens may fill out no-solicitation forms ensuring that they will not be bothered with annoying peddlers, commercial hawkers and others.

The village argues that the ordinance protects its residents from commercial fraud and invasions of privacy. But the Jehovah's Witnesses counter that the ordinance restricts a panoply of First Amendment freedoms, including of freedom of speech, press, association and religion.

For example, the group argues the ordinance is overbroad because it prohibits the anonymous distribution of even political literature - which the Supreme Court expressly protected in its 1995 decision McIntyre v. Ohio Elections Commission.

The Lower Courts' Rulings: Ignoring Settled First Amendment Precedent

Last February, a three-judge panel of the United States Court of Appeals for the Sixth Circuit rejected the group's First Amendment claims and sided with the village. The panel wrote that, despite the ordinance, the group can exercise its First Amendment rights in other ways, including "at stores, on street corners, in restaurants, in parks, and other public forums."

With all due respect, the Sixth Circuit's opinion appeared to ignore settled First Amendment precedent established by the Supreme Court many years ago, in cases involving Jehovah's Witnesses. After all, the history of First Amendment jurisprudence owes a large debt of gratitude to the travails of Jehovah's Witnesses. Their struggles with city officials for decades have created an impressive body of case law. And that body of case law would seem to apply directly in this more modern case as well.

In 1942, Justice Harlan Stone wrote: "One need only read the decisions of this and other courts in the past few years to see the unpopularity of Jehovah's Witnesses and the difficulties put in their path because of their religious belief." Throughout the 1930s and 1940s, the high court, in a series of seminal First Amendment decisions involving the religious group, tried to alleviate some of these difficulties.

Two of these decisions, in particular, directly conflict with the Sixth Circuit's ruling in the Watchtower Bible case that the Court is to hear next month.

First, there is the Court's 1939 decision in Schneider v. New Jersey. There, the Supreme Court invalidated an Irvington, New Jersey, ordinance that is remarkably similar to the Stratton ordinance at issue in next month's case.

The Irvington ordinance provided: "No person ... shall canvass, solicit, distribute circulars, or other matter, or call from house to house ... without first having reported to and received a written permit from the Chief of Police." In striking the ordinance down, the high court wrote, unequivocally: "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."

Just a few years later, in Martin v. City of Struthers, the Court invalidated another Ohio city ordinance enforced against the religious activities of Jehovah's Witnesses. The Struthers, Ohio ordinance flatly prohibited the door-to-door delivery of literature or handbills. Again, the ordinance is similar to the Stratton ordinance at issue next month - although the Stratton ordinance heavily burdens door-to-door canvassing instead of wholly banning it.

In striking the Struthers ordinance down, Justice Hugo Black wrote: "While door to door distributors of literature may be either a nuisance or a blind for criminal activities, they may also be useful members of society engaged in the dissemination of ideas in accordance with the best tradition of free discussion."

Why the Jehovah's Witnesses Should Win the Watchtower Bible Case

These two precedents alone should ensure that the Jehovah's Witnesses win the Watchtower Bible case, too. Moreover, some troubling evidence bolsters their case even more.

This evidence indicates the ordinance specifically targets Jehovah's Witnesses. For one thing, the city's no-solicitation form specifically listed "Jehovah's Witnesses." In addition, the Jehovah's Witnesses allege that the mayor of Stratton personally confronted four of their members in 1998 and threatened them with jail time.

Of course, protecting citizens from fraud and invasions of privacy remains an important government interest. But the city of Stratton has crossed a constitutional line with its registration ordinance. Citizens have a First Amendment right to receive information and ideas and decide for themselves what messages they wish to receive. And normal "no trespassing" laws can protect the village's concerns.

The history of First Amendment jurisprudence reveals that government officials have often singled out Jehovah's Witnesses. The Stratton ordinance appears to continue this disturbing trend.

Perhaps later this year the Supreme Court will issue another opinion that continues a more positive trend -- in which, as Justice Stone noted, the travails of the Jehovah's Witnesses have led to enhanced First Amendment freedoms for us all.


David L. Hudson Jr. is an attorney with the First Amendment Center at Vanderbilt University. He writes regularly on First Amendment and employment-law issues for a variety of publications.

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