The First Hurdle—Oral Argument Before the Supreme Court
THE DATE SET for the oral argument before Chief Justice William Rehnquist and eight associate justices of the Supreme Court was February 26, 2002. The interests of Jehovah’s Witnesses were represented by a team of four attorneys.
The lead attorney for the Witnesses opened his argument with an attention-grabbing introduction: “It’s 11:00 Saturday morning in the Village of Stratton. [He then knocked three times on the lectern.] ‘Good morning. In light of recent events, I’ve made a special effort to come to your door to speak to you about what the Prophet Isaiah has referred to as something better. That’s the good news Christ Jesus spoke about, the good news of the Kingdom of God.’”
He continued: “It is a criminal act to go from door to door in the Village of Stratton and deliver that message unless one has first obtained a permit from the village to do so.”
‘You Don’t Ask for Money?’
Justice Stephen G. Breyer raised some pointed questions for the Witnesses. He asked: “Is it the case that your clients don’t ask for any money, not a penny, and [that] they don’t sell Bibles, and they’re not selling anything, all that they do is say, ‘I want to talk to you about religion’?”
The attorney for the Witnesses answered: “Your Honor, the record is absolutely clear, in the Village of Stratton, Jehovah’s Witnesses did not ask for money. In other jurisdictions the record is equally clear that sometimes they will mention a voluntary donation. . . . We are not seeking a solicitation of funds. We’re merely seeking to talk to people about the Bible.”
Government Permission Needed?
Justice Antonin Scalia perceptively asked: “Isn’t your position that you don’t have to go to the mayor and ask for permission to talk to a neighbor about something that’s interesting?” The Witnesses’ attorney replied: “We don’t believe that this Court should sanction a regulation of a Government that requires one citizen to get a license to speak to another citizen at that citizen’s home.”
Change of Arguments, Change of Mood
It was now time for the Village to present its case. Lead counsel explained Stratton’s ordinance, saying: “Stratton is exercising its police power when it seeks to protect the privacy of its residents, when it seeks to deter crime. The no canvassing or soliciting on private property ordinance simply requires preregistration and the carrying of a permit during the course of the door-to-door activity.”
Justice Scalia went immediately to the heart of the matter when he asked: “Do you know any other case of ours [the Supreme Court] that has even involved an ordinance of this breadth, that involves solicitation, not asking for money, not selling goods, but even, you know, ‘I want to talk about Jesus Christ,’ or ‘I want to talk about protecting the environment?’ Have we had a case like that?”
Justice Scalia continued: “I don’t even know of such cases, over two centuries.” To which Chief Justice Rehnquist quipped: “You haven’t been around that long.” That provoked laughter in the courtroom. Justice Scalia pressed his argument: “The breadth of this thing is novel to me.”
A Beautiful Idea?
Justice Anthony M. Kennedy asked a pointed question: “You think it’s a beautiful idea that I have to ask the Government for permission before I go down the block, where I don’t know all of the people, [and] I say, I want to talk to you because I’m concerned about the garbage pick-up, because I’m concerned about our Congressman, whatever. I have to ask the Government before I can do that?” He added, “It’s astounding.”
Then Justice Sandra Day O’Connor joined the argument, asking: “Well, how about trick-or-treaters? Do they have to get a permit?” Justices O’Connor and Scalia both pursued this line of reasoning. Justice O’Connor introduced another argument: “How about borrowing a cup of sugar from your neighbor? Do I have to get a permit to go borrow a cup of sugar from my neighbor?”
Are the Witnesses Canvassers?
Justice David H. Souter asked: “Why are Jehovah’s Witnesses covered? Are they canvassers, solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise or services? They’re none of those, are they?” The Village’s counsel quoted the ordinance at length and added that the lower court had defined Jehovah’s Witnesses as canvassers. To this, Justice Souter rejoined: “So you have a very broad definition of canvassers, if it includes Jehovah’s Witnesses.”
Justice Breyer then quoted the dictionary definition of a canvasser to show that it did not apply to the Witnesses. He added: “I haven’t read anything in your brief that says what the purpose is for requiring these people [Jehovah’s Witnesses] who are not interested in money, not interested in selling, not even interested in votes, to go to the city hall and register. What’s the city’s purpose?”
The “Privilege” of Communication
The Village then argued that “the city’s purpose is to prevent annoyance of the property owner.” He clarified further that it was to protect the residents from fraud and criminals. Justice Scalia quoted the ordinance to show that the mayor can demand further information concerning the registrant and his purpose in order “to accurately describe the nature of the privilege desired.” He added pointedly: “The privilege of going about to persuade your fellow citizens about one thing or another—I just can’t understand that.”
Justice Scalia again pressed: “So should you require everybody who rings a doorbell to get fingerprinted at city hall before [he] can ring a doorbell? That minor risk of a crime occurring is enough to require everybody who wants to ring a doorbell to register at city hall? Of course it isn’t.”
With his 20 minutes expired, counsel for the Village handed over the argument to the solicitor general for the state of Ohio. He argued that the no-solicitation ordinance protected the residents from visits by a stranger, “certainly an uninvited person, [who] is here on my property . . . and I think the village is entitled to say, ‘We’re concerned about that kind of activity.’”
Justice Scalia then observed: “The village is saying even those people who welcome Jehovah’s Witnesses, they’re sitting there lonely, they would love to talk to somebody about anything, and these people [Jehovah’s Witnesses] still have to go register with the mayor to get the privilege of ringing their doorbell.”
“A Very Modest Restriction”
During the questioning Justice Scalia made a powerful point when he said: “We can all stipulate that the safest societies in the world are totalitarian dictatorships. There’s very little crime. It’s a common phenomenon, and one of the costs of liberty is to some extent a higher risk of unlawful activity, and the question is whether what this is directed at stops enough unlawful activity to be worth the cost of requiring the privilege of ringing somebody’s doorbell.” Then the solicitor general responded that “it’s a very modest restriction.” Justice Scalia countered that it was so modest that “we can’t find a single case reporting a single municipality that has ever enacted an ordinance of that type. I don’t think that’s modest.”
Finally, under pressure from one of the justices, the solicitor general had to admit: “I’d be hesitant to say you can have an outright ban on ringing doorbells or knocking.” On that note, his argument ended.
During rebuttal, the Witnesses’ attorney pointed out that the ordinance had no verification mechanism. “I can go to the village hall and say, ‘I’m [So-and-so],’ and get a permit and go from door to door.” He also pointed out that the mayor has the power to refuse to issue a permit to a person who says that he is unaffiliated with an organization. “We believe that this is manifestly exercise of discretion,” he said and added: “I respectfully suggest that our [Jehovah’s Witnesses’] activity indeed lies at the heart of the First Amendment.”
Shortly after this, Chief Justice Rehnquist closed the oral arguments, saying: “The case is submitted [to the Supreme Court].” The whole process had taken just over an hour. How important that hour was would be shown in the written judgment that was announced in June.
[Pictures on page 6]
Chief Justice Rehnquist
Rehnquist: Collection, The Supreme Court Historical Society/Dane Penland; Breyer: Collection, The Supreme Court Historical Society/Richard Strauss; Scalia: Collection, The Supreme Court Historical Society/Joseph Lavenburg
[Pictures on page 7]
Kennedy: Collection, The Supreme Court Historical Society/Robin Reid; O’Connor: Collection, The Supreme Court Historical Society/Richard Strauss; Souter: Collection, The Supreme Court Historical Society/Joseph Bailey
[Picture on page 8]
Photograph by Franz Jantzen, Collection of the Supreme Court of the United States