The Jehovah's Witnesses are no strangers to Supreme Court litigation.

They defended their constitutional rights to free speech and the free exercise of religion in the U.S. Supreme Court more than 45 times in the years between 1938 and 1945 alone.¹ Many of their cases from this period dealt with government attempts to license proselyting-an issue that they are again challenging in the Supreme Court. Earlier Supreme Court cases brought by the Jehovah's Witnesses, including the landmark case of Cantwell v. Connecticut,² which established that the First Amendment applies to the states, focused on the discriminatory use of commercial licensing requirements to bar or penalize public religious advocacy by the Jehovah's Witnesses.³ The Supreme Court repeatedly struck down such requirements, establishing broad protections for the freedom of religious and political speech. In these cases, the Court held that "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional."⁴

The Supreme Court is now faced with another case involving the Jehovah's Witnesses and licensing requirements, Watchtower Bible and Tract Society of New York v. Village of Stratton, Ohio. In this case, the Jehovah's Witnesses are again challenging a local ordinance, this time in the Ohio village of Stratton, which requires all would-be solicitors or canvassers to obtain a permit before approaching residences.5 The village of Stratton insisted that this ordinance would apply to Jehovah's Witnesses going door-to-door to explain their beliefs. The Jehovah's Witnesses filed suit, claiming that the ordinance violates their constitutional rights to free speech and free exercise of religion. The Supreme Court agreed to hear the case, and oral argument was held in February 2002. The case raises several significant legal issues and has broad implications for governmental licensing schemes, freedom of speech, religious proselyting, and possibly campaign reform.

The Case

Stratton, a quiet village in Ohio located along the Ohio River, boasts only one full-time police officer and has under 300 inhabitants, many of whom are elderly. In 1998 the village passed a solicitation registration ordinance requiring licensing of "canvassers, solicitors, peddlers, [or] hawkers" who approach private residences for the "purposes of advertising, promoting, selling and/or explaining any product, service, organization, or cause."⁶ The ordinance imposes criminal sanctions on canvassing or soliciting without a license.

The registration procedure, revised once after objections from the Jehovah's Witnesses, requires the applicant to provide detailed information that is then posted in a public record: the applicant's name, home address, the organization or cause to be promoted, the name and address of the employer or affiliated organization (with credentials from the employer or organization showing the individual's exact relationship), the length of time that "the privilege to canvass or solicit is desired," the addresses to be contacted, and "such other information concerning the Registrant and its business or purpose as may be reasonably necessary to accurately describe the nature of the privilege required."⁷

Stratton's antisolicitation ordinance not only requires registration of those who seek the "privilege" of going door-to-door, but also requires the would-be solicitor to carry with them a permit, which they are required to show upon demand to the police or a resident.⁸

Under the ordinance, residents of Stratton have the right to opt out of all or some solicitations through two means. First, they can post a "no solicitation" or "no trespassing" sign on their property. Residents can also fill out a "no solicitation" registration form at the office of the mayor.⁹ As part of the registration form, residents can indicate permission for solicitations from any or all of a series of listed groups: Scouting organizations, trick-or-treaters, food vendors, Christmas carolers, political candidates, campaigners, Jehovah's Witnesses, "Persons affiliated with __ Church," and other groups.¹⁰

The Jehovah's Witnesses have pointed to the fact that they were the only religious organization singled out on this form, as well as to discriminatory statements made by Stratton's mayor, as indications of an anti-Jehovah's Witnesses bias underlying the law. The village of Stratton, on the other hand, has claimed that the ordinance was motivated out of a desire to protect Stratton's elderly citizens from potential frauds and scams.

After the ordinance was passed, the village of Stratton made it clear that they would apply it to Jehovah's Witnesses going door-to-door to explain their beliefs, arguing that the Jehovah's Witnesses would be "canvassers" seeking to "explain" a "cause." The Jehovah's Witnesses brought suit, seeking injunctive relief barring the village from applying the ordinance to their activities.

The Legal Issues in Stratton

The case of Stratton raises many core questions in the field of freedom of speech and religion. To what extent may the government regulate proselytizing? Must religious and political speech be treated differently than commercial speech? Can governments require a registration process before permitting people to speak about their religious and political convictions? Is such a registration process permissible if the goal is to protect the privacy of residents? Is it permissible if the permitting process allows for no government discretion in who obtains licenses? Does a registration process violate a right to speak anonymously? What criteria should be used to evaluate the constitutionality of a registration scheme?

To answer these questions, the legal aspects of this case touch on a number of theories within First Amendment law: prior restraint of speech by the government; content-based restrictions; limitations on time, manner, and place of speech; and anonymous speech. While discussion of each of these legal approaches could easily fill many articles, perhaps the simplest way to make sense of how the Supreme Court will choose to resolve the case is to look at the two possible levels of judicial review it might apply-strict scrutiny and intermediate scrutiny.

In many aspects of constitutional law, the Supreme Court has invoked "strict scrutiny." In other words, a law can withstand constitutional review only if it is narrowly tailored to meet a compelling state interest.¹¹ In the First Amendment arena, strict scrutiny is applied on several bases. For example, a law that banned religious speech, advocacy of Communism, or complaints against a mayor would be held to strict scrutiny because the ban is content-based. On the other hand, a law that limited complaints and other speech from being shouted in over X decibels in a residential area would not invoke scrutiny, because it merely regulates the time, manner, or place of speech.

Prior Supreme Court cases have suggested that any compelled speech or ban on anonymous speech is a content-based restriction that would trigger strict scrutiny.¹² In Stratton the Jehovah's Witnesses are arguing that the licensing requirement, which forces a speaker who wishes to go door-to-door to disclose his or her name, completely bars anonymous speech. The village of Stratton points out that previous precedent has only upheld a right to anonymity at the point of persuasion-the main case in point, Buckley v. American Constitutional Law Foundation struck down a requirement that petitioners wear badges with their name while seeking support for their petition.¹³ According to Stratton, the case currently before the Supreme Court is different because Stratton's ordinance does not necessarily require publication of the name of the individual except in the centralized register.¹⁴ Still, the Supreme Court has repeatedly protected against disclosure of names, particularly in cases of pure political speech, noting itself the "respected tradition of anonymity in the advocacy of political causes."¹⁵ Anonymous speech was a staple of the Revolutionary War era political discourse; even the now-famous Federalist papers were published anonymously.

In Stratton the Supreme Court could also invoke strict judicial scrutiny, which would require the ordinance to be narrowly tailored to serve a compelling governmental interest, based on other legal theories, including an argument that the licensing requirement serves as a forbidden "prior restraint" on speech. This legal theory is designed to avoid the chilling effect of advance censorship. A "prior restraint" is any limitation imposed on speech before the communication occurs, such as early English licensing laws that required licenses to print, import, or sell any books.

Jehovah's Witnesses are arguing that Stratton's antisolicitation ordinance is a prior restraint on speech, because it requires a license before engaging in pure speech.¹⁶ The Supreme Court has struck down licensing schemes in the past, including discretionary commercial solicitation schemes applied to religious speech. The village of Stratton is depending on nonbinding dicta in a few Supreme Court cases. The Supreme Court has twice suggested that a "state's enforcement interest might justify a . . . limited identification requirement" for petition circulators or campaign literature, but has as of yet never upheld a licensing system for pure religious or political speech.¹⁷

The village has also stressed that issuance of the solicitation permits is nondiscretionary. This point, which is disputed by the Jehovah's Witnesses, would be significant because of additional dicta in another Supreme Court case. Justice Burger suggested that a municipality could license door-to-door soliciting to protect its citizens from crime and undue annoyance: "A narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents will hear, may serve these important interests without running afoul of the First Amendment."¹⁸

While past comments by justices suggest that a locality might have an interest in identifying commercial solicitors or those engaged in submitting petitions, this case is significant because it is the first Supreme Court case in which a municipality is depending on these justifications to regulate pure religious and political speech. During oral argument justices raised concerns about the breadth of Stratton's regulation. One asked, "Do you know of any other case of ours that has even involved an ordinance of this breadth, that involves solicitation, not asking for money, not selling goods, but . . . I want to talk about Jesus Christ, or I want to talk about protecting the environment?"¹⁹ The scope of the ordinance clearly moves it further from the would-be safe haven of Supreme Court dicta.

If the Supreme Court determines not to apply strict scrutiny against Stratton's ordinance, based on a decision that it is not an illegitimate prior restraint on speech or a content-based ban against anonymous speech, Stratton's ordinance is still subject to a degree of judicial scrutiny. "Intermediate scrutiny," which is applied to time, manner, and place restrictions on speech, still requires that the government restrict no more speech than is reasonably necessary to accomplish significant government interests.²⁰

Broader Implications

Under either legal standard, the Supreme Court will have to weigh Stratton's interest in protecting the privacy of its residents and preventing crime and look carefully at the means it has employed to protect those interests. If the Court decides to apply strict scrutiny, Stratton will have to show that it has a compelling interest in protecting its residents and that the solicitation ordinance is narrowly tailored to promote that end. Under intermediate scrutiny, the village will be required to show that it is legislating to protect a significant state interest and is restricting no more speech than reasonably necessary.

Based on oral argument, it appears that many of the justices are not convinced that the ordinance even meets intermediate scrutiny. The justices, like the Jehovah's Witnesses, pointed to the fact that the ordinance allows for people to opt out of some or all solicitation through posting "no trespassing" signs or filling out a no solicitation form. Requiring registration on top of this appears to be a superfluous restriction on speech. Stratton insists that registration is vital to prevent fraud and give city officials a basis for investigation of scams or crimes.

But, as a series of questions asked during oral argument reveal, the regulation of noncommercial speech can only weakly be linked to the city's purposes. The attorney representing Ohio noted that registration would allow a better chance of locating a con man, but was interrupted with the question, "Can you give me an example of a con man who doesn't want any money or anything else?" When the beleaguered attorney suggested that a noncommercial "canvasser" might be a thief seeking to break into people's homes, a justice remarked: "A potential thief who is willing to rape and burgle, but stops short of failing to register at city hall, right?"²¹ The attorney's suggestion that the ordinance might still deter some crime elicited perhaps the most telling comment of the entire argument. Justice Scalia asked, "How necessary is [the ordinance]? We can all stipulate that the safest societies in the world are totalitarian dictatorships. . . . One of the costs of liberty is to some extent a higher risk of unlawful activity."²²

The case of Stratton raises fundamental questions about the regulation of religious and political speech. Licensing requirements, which appear innocent enough, can serve as a powerful censor. The long tradition of freedom of speech, freedom of publication, and freedom to share religious beliefs that we have enjoyed in the United States is increasingly being encroached on by municipal regulations and concerns for privacy. It is important the Supreme Court reaffirm that "whether distributors of literature may lawfully call at a home" properly "belongs . . . with the homeowner himself," not the government.²³ Because the "dangers of distribution [of literature] can so easily be controlled by traditional legal methods" (such as the law of trespass) that allow "each householder the full right to decide whether he will receive strangers as visitors," stringent proscriptions against door-to-door distribution of literature "can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas."24 By defending the right to spread ideas from door-to-door, the Jehovah's Witnesses are seeking to protect a vital part of our constitutional heritage.

1 See Henry J. Abraham, Freedom and the Court 236, 4th ed. (Oxford Univ Press, 1982).

2 310 U.S. 296 (1940).

3 See, eg., Lovell v. Griffin, 303 U.S. 444 (1938), Schneider v. New Jersey, 308 U.S. 147 (1939). Marsh v. Alabama, 326 U.S. 501 (1946).

4 Shuttlesworth v. Birmingham, 394 U.S. 147, 150-151 (1969), citing inter alia cases involving the Jehovah's Witnesses such as Lovell, Schneider, Cantwell, and Marsh.

5 Village of Stratton ordinance 1998-5.

6 Ibid., section 116.03(a).

7 Ibid., section 116.03(b).

8 Ibid., section 116.04.

9 Ibid., section 116.07(b).

10 See Watchtower Bible and Tract Society of New York v. Village of Stratton, Ohio, No. 00-1737, Appendix to Petitioner's brief, pp.167aa-230aa.

11 See, e.g., McIntyre v. Ohio Elections Commission, 514 U.S. 334, 348 (1995); Ward v. Rock Against Racism, 491 U.S. 781 (1989).

12 See, e.g., Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781, 795 (1988); McIntyre, 514 U.S. at 347.

13 Buckley v. American Constitutional Law Foundation, Inc., 525 U.S.182 (1999).

14 It is not clear if the permit that solicitors are required to carry includes the name of the solicitor. Lower courts appeared to assume that the permit does require the name of the person, but there is no example of a completed permit in the record, and the parties disagree.

15 McIntyre, 514 U.S. at 343; see also Talley v. California, 362 U.S.60 (1960) (striking down a ban on anonymous leafleting).

16 See, e.g., Lovell v. Griffin, 303 U.S. 444 (1938); Tucker v. Texas,326 U.S. 517 (1946); Cantwell v. Connecticut, 310 U.S. 296 (1940).

17 McIntyre, 514 U.S. at 353 (striking down a ban on anonymous campaign leafleting); Buckley, 525 U.S. at 199 (quoting McIntyre) (striking down a requirement that petition circulators wear badges with their names).

18 Hynes v. Mayor, 425 U.S. 610 (1976).

19 U.S. Supreme Court official transcript, Watchtower Bible and Tract Society of New York, Inc., v. Village of Stratton, Ohio (Feb. 26, 2002).

20 Clark v. Community for Creative Nonviolence, 468 U.S. 288 (1984);Ward v. Rock Against Racism, 491 U.S. 781 (1989).

21 U.S. Supreme Court official transcript, Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, Ohio (Feb. 26, 2002).

22 Ibid.

23 Murdock v. Pennsylvania, 319 U.S. 105, 148 (1943).

24 Ibid., p. 147. ______________________________

Elizabeth A. Clark is associate director of the Brigham Young University International Center for Law and Religion Studies, Provo, Utah.Prior to joining the faculty at the Reuben Clark Law School at BYU, she was an attorney in the Supreme Court and Appellate Practice Group in the Washington, D.C., law offices of Mayer, Brown and Platt.

___________________