Sometimes a case will come knocking at the door of the Supreme Court that just isn’t welcome. Good example? The Ten Commandments cases, which keep knocking and getting turned away. They come back. They get run off again. Other times, a case will come a-knocking and the high court will let it in, only to discover that they never really wanted to let it in at all. But, oops; it’s too late. The case is in the door and bickering with you.
“Go away!” hollers Justice Kennedy. “Why are you here?” shouts Justice Scalia. “Begone,” whispers Justice Breyer. Watchtower Bible v. Stratton is one of those cases. Nobody can quite sort out how it got in, and everyone’s looking for a way to keep it out.
The village of Stratton, Ohio (population 300 and suffering from a long history of religious proselytizing and alleged beef-related fraud), passed an ordinance limiting the activities of door-to-door solicitors. The rule bars “canvassers, solicitors, peddlers and hawkers” from “advertising, promoting, selling and/or explaining any product, service, organization or cause,” at one’s door without a permit. Permits are handed out upon registration, so long as the permit-seeker provides the mayor’s office with their name, address, a description of their proposed activities, the address of each home they plan to visit, and details about their spiels, as the mayor deems necessary. The permit allows one to go door to door only between the hours of 9 a.m. and 5 p.m., so long as one stays away from the folks who have either posted “No Solicitation” signs or who filed a “No Solicitation” form in the mayor’s office. The “No Solicitation” form details which solicitors one wishes to keep out (i.e.: “Avon ladies, yes; Mary Kay ladies, no”) but singles out Jehovah’s Witnesses as the only religious organization on the form. (Perhaps because Zoroastrians so rarely go door to door …) The Witnesses sued, claiming the ordinance violates the First Amendment.
The district court found that the ordinance was mostly constitutional, but it objected to three provisions: the 9-to-5 restriction; the section of the “No Solicitation” form singling out Jehovah’s Witnesses; and the requirement that every prospective address be listed. The district court let the rest of the ordinance stand, and the 6th Circuit Court of Appeals agreed. The Jehovah’s Witnesses appealed, and the Supreme Court, with a whole panoply of religious-freedom and free-speech arguments to choose from, limited the question for argument to whether the Stratton ordinance violates the First Amendment protection accorded to “anonymous speech.”
Anonymous speech is a weird little doctrine emanating from two weird cases: McIntyre v. Ohio Elections Commission, a 1995 case striking down an Ohio law prohibiting the distribution of anonymous campaign literature; and Buckley v. American Constitutional Law Foundation, a 1999 case prohibiting Colorado from forcing the circulators of ballot-initiative petitions to wear ID badges. In both cases the court talked about the importance of anonymous political speech, and both cases leave open the unsettling possibility that election-related materials can always be anonymous. Presumably this was the issue the high court planned to resolve today: Can a city force door-to-door solicitors to cough up a name (either to the mayor’s office or to the solicitee) prior to being allowed to speak?
But the court doesn’t really get to this issue today because they are too busy thumping the crap out of the attorneys.
Paul Polidoro stands to defend the Witnesses’ claim that the ordinance is unconstitutional. “It’s 11 o’clock on a Saturday morning,” he intones. He raps dramatically on his podium, rousing Justice Thomas from his delightful Saturday morning nap. “In light of recent events I’ve come to your door …” he begins. ” … Good news … Jesus Christ,” he goes on. It’s not just that the court visibly winces at such theatrics. It’s not even that Polidoro is too late for an Oscar nomination for his dramatic recreation of what a Jehovah’s Witness might say, because Polidoro is a Jehovah’s Witness. No, I’m guessing that what really gets the court’s collective goat is that Polidoro opts to use the first minute of his oral argument time to proselytize them.
Polidoro quickly gets hung up on the various justices’ attempts to shut the door on his case. Polidoro makes the breathtakingly ironic anonymous-speech argument that door-to-door solicitors have an inherent right to privacy. “They don’t want to disclose more of their privacy than they have to,” he argues, supporting the privacy rights of groups who wish to violate the privacy rights of others. Why can’t the Jehovah’s Witnesses learn from the Girl Scouts, who have pretty much given up going door-to-door in favor of having their moms sell Thin Mints at the office?
Justices Souter and Breyer wonder how Polidoro comes to be arguing on behalf of anonymous speakers. “You’re a Jehovah’s Witness,” says Souter. “You don’t object to identifying yourselves.” Later Breyer adds, “It looks to me as if people who don’t mind giving their names are speaking on behalf of people who would be saying ‘Vote for Smith.’ ” Why, in other words, are the Jehovah’s Witnesses carrying water for the anonymous political speakers who really have valid grounds for objecting to this ordinance? Polidoro is arguing the anonymous-speech claims because that’s the only question on which the court granted certiorari. Justice Ginsburg is unclear as to whether the actual solicitation permit even contains the would-be solicitor’s name. “Then the name doesn’t need to be disclosed to the homeowner?” she asks. No one seems to know. This may not even implicate anonymous speech.
O’Connor reveals the “real world” she lives in when she argues that because permits are required for solicitation in her “community,” they are likely required across the country. Polidoro points out that the number of cities attempting to do this is pretty limited (after a host of Jehovah’s Witness-related speech cases in the 1930s and ‘40s put the burden on homeowners to chase the solicitor away). Rehnquist offers a rare nod to the real world the rest of us inhabit when he points out that last year’s Dartmouth murderers pretended to be taking a survey when they were, in fact, casing the house.
Abraham Cantor argues on behalf of the city, and as much as the justices loved trashing Polidoro, Cantor gets even worse. Scalia opens by musing whether he’s just overlooked the cases over the past two centuries that might allow speech restrictions of this breadth. When Cantor attempts to characterize the “beauty” of the law as “content-neutral,” Justice Kennedy leaps at him. “You think it’s a beautiful idea that I have to ask the government for permission before I can go down the street … and say, ‘I want to talk to you about the situation with garbage pickup?’ ” O’Connor piles on. “What about trick-or-treaters?” she asks. And later: “What about Christmas carolers? What if you want to borrow a cup of sugar from the neighbors?” What if you’re just looking for an excuse to see Ned Flanders’ wife in her bathrobe? Cantor has a tough time explaining why such activities might not be implicated. Then Breyer and Scalia wonder whether Jehovah’s Witnesses come under the ban on “hawkers or canvassers.” “The dictionary says a canvasser is a person looking for a vote,” offers Breyer, primly.
Ultimately, pretty much the whole bench agrees that even under the lesser standard of “intermediate scrutiny,” this ordinance simply sweeps in too much protected speech. And while David Gormley, the solicitor general from Ohio, does a creditable job of arguing that cities have an interest in knowing who’s harassing their citizenry, he seems to have no supporters, with the exception of the chief justice, who still feels that the city should know if would-be proselytizers are indeed “con men.” To which Scalia snaps back that it’s unlikely that prospective thieves and burglars would really be deterred by Stratton’s permit requirements.
Since both sides cannot technically lose today, the court will have to pick a winner. And since they don’t much care for the Stratton ordinance, the Jehovah’s Witnesses, in (by their count) their 72nd case before the supremes, will yet again prevail in their fight to make the rest of us listen.
For the many folks who’ve written in to ask when a decision will come down in Watchtower, the answer is: sometime before July.