HYNES v. MAYOR OF ORADELL
Legal provision: Amendment 1: Speech, Press, and Assembly
Argument of Telford Taylor
Chief Justice Warren E. Burger: We will hear arguments next in Hynes against the Mayor and Council of the Borough of Oradell.
Mr. Telford Taylor: Mr. Chief Justice and members of the Court.
This is an appeal from a decision of the Supreme Court of New Jersey which upheld against federal constitutional challenge, a municipal ordinance, which requires that any person who wishes to call from house to house in support of a political campaign or cause must, first, identify himself with the municipal police in writing.
Probable jurisdiction was noted in the past term of Court.
Now, Your Honors, there are one or two twists in the litigation history of the case which are irrelevant to the posture in which the case now comes before the Court and which I believe and hope, are adequately explained in the statement and in our brief to which, I believe, my brother at the bar here has taken no exception.
So, I am going to content myself with a very brief summary which I hope the Court will find sufficient.
The defendant appellee here, the Borough of Oradell, has, at least since 1971, had what has come to be known as a Green River Ordinance, affecting house to house calling by commercial solicitors, salesman and solicitors for commercial purposes that, being the local state of the law in Oradell.
In March 1973, the Appellant Hynes who was then a member of New Jersey Assembly and a candidate for re-nomination and reelection, and to whose constituency the Borough of Oradell had just been added by a statewide reapportionment, in March 1973, Hynes went to Oradell and commenced a campaign from house to house.
The police had accosted him and made him stop canvassing and asked him to leave the Borough although, of course, ordinance then in effect did not cover this situation at all.
A very few weeks after that, the Borough of Oradell enacted the ordinance extending its coverage to solicitors for charitable contributions and any person campaigning for a political -- canvassing for a political campaign or cause.
Unknown Speaker: (Inaudible) Democrat or republic?
Mr. Telford Taylor: Mr. Haynes is a democrat, Your Honor.
Unknown Speaker: And Oradell is not?
Mr. Telford Taylor: To the best of my knowledge, it is not.
Yes, I suppose so, since --
Unknown Speaker: (Voice Overlap) my knowledge, I think --
Mr. Telford Taylor: Right, the ordinance having been enacted, the appellant Hynes and four other plaintiffs, likewise appellants here who were residents of Oradell, Hynes himself was not though Oradell was part of the constituency, four residents brought a suit for declaratory and an injunctive relief focusing their complaint under the First and Fourteenth Amendments.
They prevailed in the lower Courts on a combination of state and federal grounds, but between the time in the lower Courts and the time when the case reached the Supreme Court of New Jersey, a further amendment to the ordinance eliminated the state questions and so the New Jersey Supreme Court reviewed the case squarely on the basis of the federal constitution and upheld the ordinance by a vote of 5 to 2.
Parenthetically, I should note that on the same day, the day they decided this case, they rendered their decision in the Collingswood case which involved a wholly different kind of solicitation ordinance from another borough and there is some cross reference between the opinions in the two cases.
Therefore, we have included the opinion in the Collingswood case in our appendix.
That case is pending here on appeal and I believe the Court has taken no action on it.
Now, the ordinance in the form in which the Supreme Court of New Jersey reviewed it is in our brief on pages 3 and 4 to which I invite the Court’s attention for just a moment.
I think the Court will see on page 3 where the “whereas” clauses explain the purpose of the ordinance that are set out; that the explicit and exclusive purpose of the statute is public safety against crime, the theory being that people on a pretext of soliciting votes will then engage in breaking and entering or larceny.
On the operative clause of the ordinance on page 4, the Court will see that it covers any person who is canvassing for charitable cause or for any federal state county or municipal political campaign or cause, that such a person must notify the police department in writing for identification and that one notification is sufficient for the duration of the campaign or cause.
The penalty clause --
Unknown Speaker: (Inaudible)
Mr. Telford Taylor: Pardon me?
Unknown Speaker: (Inaudible) but in the second or the first “whereas” surely, they do not practice polygamy knowingly in Oradell whereas the Borough is primarily one family residential town whose citizens are employed elsewhere resulting in the wives of the wage earner to be left alone during the day.
Mr. Telford Taylor: I would have to observe there is a slight sexist phraseology in the ordinance, Your Honor, yes.
The attitude apparently is that only men work and the women are home.
On that point, I will have a little more to say later, but I think it does not affect the apparent purpose of the ordinance as directed in terms of public safety against crime.
There is a penalty in the underlying Green River Ordinance applicable here which a fine of $500 or 90 days in jail, cumulative day by day.
The New Jersey Court, the majority, up --
Justice Potter Stewart: Mr. Taylor, this ordinance, 598A, is --
Mr. Telford Taylor: An amendment.
Justice Potter Stewart: It was further amendment, it is subsection of ordinance 573 or is an exception to the basic Green River Ordinance?
Mr. Telford Taylor: Yes, it is phrased as an exception which is a little curious because it was excepting things that were not in there before.
Justice Potter Stewart: That is what I thought.
Mr. Telford Taylor: It was at one and the same time an extension to other people, but with a different requirement --
Justice Potter Stewart: Different Section, it is not an absolute prohibition?
Mr. Telford Taylor: Well, the same Section, but different requirements to validate the soliciting.
Justice Potter Stewart: The other ordinance, the basic Ordinance 573, requires what?
Mr. Telford Taylor: That covers commercial solicitation and it specifies in considerable detail what the notice filed with the police shall be and of course then there has to be a license for that which is not the case here.
Chief Justice Warren E. Burger: Are there any of these ordinances, Mr. Taylor, present as a person required to receive a card that is used as identification somewhere?
Mr. Telford Taylor: Well, I think that is true if you are commercially soliciting, but it is not true with respect to the cognizance of question here now.
Justice William H. Rehnquist: Does the commercial solicitor have to pay for his license?
Mr. Telford Taylor: I would have to check it in the appendix, Mr. Justice Rehnquist.
Justice William H. Rehnquist: Well, they do not --
Mr. Telford Taylor: Right, the ordinance of course is set forth there.
Now, we of course recognize that public safety is legitimate and indeed a very vital public interest and we are not contending here that calling house to house is totally immune from legislative restriction.
I am not standing here and supporting any such absolute, but our position is that the Supreme Court of New Jersey did very badly misjudge the constitutional practical factors that are at work here in these contending values and that we think a proper judgment on them would require a contrary conclusion.
Justice William H. Rehnquist: Mr. Taylor.
Mr. Telford Taylor: Yes?
Justice William H. Rehnquist: This kind of door to door soliciting is not immune from some regulation.
Can you conceive of a less onerous regulation than the one that the Borough has imposed?
Mr. Telford Taylor: Yes, indeed.
That question, of course, was put to counsel by the New Jersey Court and the Court seems to have taken the position that there was no less, I think.
We have touched on that in the brief.
A limitation on the time of day at which you could call from house to house might well be legitimate, legislation in support of householders who gave notice they did not want people using their front side walk and ringing the bell.
For this purpose, it would be sufficient.
I think, beyond that, one would have to say it would depend upon the kind of abuse that was troubling the City Council on which we --
Justice William H. Rehnquist: The kind you have mentioned puts the burden both on a householder and the town to enforce it in a way that this does, if the individual has got to go and make the compliant themselves?
Mr. Telford Taylor: Well, maybe I did not put it clearly.
The restriction on time of day would put no burden on the householder.
Well the second, I suppose, would mean that the householder would have to give some indication that he did not want solicitors coming to the door.
Of course, it seems to me that would be -- whether going beyond that is permissible or not must depend upon assessing how deep is the infringement on First Amendment here and how great is the municipal interest that requires a restriction and that is what I propose to address myself to now.
With respect to the depth of the infringement here, both in terms of the scope and the depth, I would like to make some observations.
The case here has proceeded continually on the basis that the main effect of this is the restriction on a candidate that a candidate must register.
The affidavit of the Chief of Police of Oradell attached to the answer here is exclusively concerned with the obligation of the candidate, but of course, the restriction here is not limited to candidates.
It applies to any person and that means all canvassers, anyone who is going to get signatures on behalf of a candidate is affected by this.
The Court below saw this as a way of protecting the community against strangers infiltrating into the community, but the ordinance is not so limited.
It covers residents of the community as well as people coming in from the outside.
The talk has all been about campaigns, but it is not restricted to campaigns.
It covers political causes.
Now, the combination of all these would mean, I submit, that if a householder in Oradell wishes to canvas his own block, wishes to call from house to house in his own block, in support of or in opposition to the Equal Rights Amendment, to school busing, to charter reform, that he must first register with the police -- he or she must first register with the police.
Chief Justice Warren E. Burger: Serving program to put new curbs or sidewalks and --
Mr. Telford Taylor: I should think so.
Things have a way of becoming political issues that perhaps should not, but all those sorts of things are political in the sense that the political authorities will pass on them, and therefore, it would be, it seems to us, a very chilling effect, on that sort of community, political consultation.
Chief Justice Warren E. Burger: Would you agree, Mr. Taylor, that the police authorities have some reason to believe that a great many breaking and entering cases, attacks on householder have come by people who gained entry by getting the door open by processes, by representing themselves in some way as a solicitor or a caller?
Mr. Telford Taylor: Well, that is an extremely relevant question to the other side of the coin here, that is the extent of the necessity for this kind of restriction and I will address myself to that directly now.
The record here is, I think, wholly insufficient to establish any such thing.
The only evidence touching on this point is contained in Chief Broniolli’s affidavit in support of the answer in which it is the last thing in the appendix.
If Your Honors wish to look at it, it is on page G4 of the appendix, and the part of it that speaks to your question, contains some statistics on the number of breakings and enterings within the Borough in 1969,’70,’71, ’72, and so forth, but there is absolutely nothing in his affidavit or anywhere else in the record which indicates that a single one of those breakings and entering had anything to do with door to door solicitation.
There is a total lack of --
Unknown Speaker: Mr. Taylor, what page is it?
Mr. Telford Taylor: I beg your pardon, it is very --
Unknown Speaker: G4.
Mr. Telford Taylor: -- it is the tail end of the appendix.
Unknown Speaker: Okay.
Mr. Telford Taylor: G4.
Unknown Speaker: G4.
Mr. Telford Taylor: G4 and G4-5, yes.
The statistics on breaking and entering in Oradell, we have compared in our brief with the statistics nationwide.
The rate is very considerably lower than the nationwide rate.
On the last page of our brief, we have compared Oradell with the New Jersey crime statistics and other boroughs of comparable size.
There is no indication that there are, in any sense, any particular conditions in Oradell.
There are several boroughs with much higher rates, several at slightly lower rates.
It seems to be wholly characteristic.
So, there is neither any showing of a pervasive nationwide need, no showing of local peculiarity, and absolutely no showing that a single one of the breakings and enterings was the result of somebody posing as a canvasser, and as Your Honor says, getting a foot in the door.
There is nothing there.
Chief Justice Warren E. Burger: Would it be irrational for the decision makers to conclude that since this does happen in some places, they are entitled to take preventive measures to see that it does not happen in Oradell or do you think that would not be an appropriate consideration?
Mr. Telford Taylor: Well, I think it is an appropriate consideration, but it seems to me that, here, where one would expect if that was so, Your Honor, that some other places where this had broken out would have felt a need for this kind of ordinance.
We have done our best to find if there are any other places which have felt this necessity and although it is virtually impossible to canvass all the municipal legislation of the United States, we have done our best and have not come across any indication that any other place had done this.
Then, of course, there is a particular history here that this ordinance came on the heels of a particular episode.
I have a couple more things to say later about the rationality of the ordinance in terms of its purpose, but I think not and I think that, again that this, since we are in the First Amendment area here, that this speculation that it might have happened somewhere else is quite insufficient to justify the depth of the infringement on the First Amendment here.
The lower Court -- I beg your pardon, I do not mean the lower Court, The New Jersey -- pardon me?
Justice Lewis F. Powell: I gather the argument that you gave us before we put some questions to you is basically an over breath target, is it not?
Mr. Telford Taylor: Well, it is more than that.
We have a vagueness argument which I have not touched on yet.
Yes, it is --
Justice Lewis F. Powell: It may be more, but it also --
Mr. Telford Taylor: Yes, there is none of that, that is true.
I have not come to the respects in which this seems to me so deep an infringement, the New Jersey Court seems to have thought that just registering with the police is really no trouble to anybody and why should anybody be excited about it, but if one thinks about this in terms of the political process that this Court has repeatedly confronted in recent years on requirements that minority parties, parties that have not been major parties before get signatures in order to get on the ballot, other parts of the political process of this Court has upheld.
I believe in one of them Justice White emphasized the vital role that dedicated volunteers must play in an effective political process.
If one thinks in those terms, the difficulties of recruiting volunteers to get signatures, to urge people to go to the polls and so forth, if they must first go to the police station or mail in their notification is very considerable.
The mailing then may not suit -- pardon?
Justice William H. Rehnquist: Mr. Taylor, do you think that people who would be successful in getting people to sign up on a door to door basis are the kind of people that will be loath to register with the police?
Mr. Telford Taylor: I think in many instances, that is true, Your Honor, yes and I do not mean to say that such people are very much different from anybody else.
If we are a political campaign --
Justice Potter Stewart: They probably are going to be flushing violence, are they?
Mr. Telford Taylor: They may well not be people who look happily on a visit to the police station.
Justice Thurgood Marshall: They do not even want to go there, not even to visit?
Mr. Telford Taylor: Most people do not go to the police station for pleasant reasons.
They go either because their car has been stolen or they have stolen somebody else’s car, and the whole business here you cannot schedule canvassing.
As a matter of getting volunteers by hook or by crook --
Justice Byron R. White: There is nothing in the ordinance that requires anybody to go to the police station as I read it, you can make a telephone call, can you not?
Mr. Telford Taylor: It has to be in writing.
Justice Byron R. White: Does it?
Mr. Telford Taylor: It has to be in writing specifically under the ordinance, yes.
Justice William H. Rehnquist: But you do not have to appear personally under the ordinance?
Mr. Telford Taylor: You would have to get your writing there either by mail or by personal delivery.
You could send it by somebody else, but if one canvasser has a sick daughter or something and cannot go and you want to send somebody else, there will not be time to do that other than by going down.
Justice William H. Rehnquist: Well, how about sending a whole list?
Mr. Telford Taylor: It would not do it fast enough.
It is a matter of getting somebody else on the spot notice.
Justice William H. Rehnquist: How about sending just a whole list of people that these are substitutes and they will be doing it too.
Is it not one of your problems here the fact that you have never really done this and so you do not know what the mechanics or the details of the thing would be when they are worked out?
Mr. Telford Taylor: Well, I think that in this area, there are certain matters or commonalities that the Court can recognize.
I do not believe there has ever been a campaign where, at the outset of it, one had a complete list of all people who might be going to canvass.
One of the big things about a campaign is persuading people to come and do it and if when you try to persuade them to come, you have got to stay in the same breath, well I am sorry, but before you can do any of this you have got to get word to the police and identify yourself.
We are overlooking entirely up to this point, Your Honors, the whole question of ethnics, political view points, the candidate particularly for local offices, maybe a person the police department do not like very much or they do not like what he is standing for, suppose it is for Civilian Review Board who review police brutality.
There are all kinds of things.
It may make people very reluctant to do this.
Justice William H. Rehnquist: But if you had a record showing that, we could take some account of it, but this is simply an action for declaratory judgment without ever anybody going and doing it?
Mr. Telford Taylor: Well, the only record we have of the necessity is that update and I submit it is totally insufficient to warrant a restriction which I think is a matter of common knowledge, one can see will be a considerable chill here, Justice Rehnquist.
I do not see how one can doubt that the whole matter of recruiting people to do this very necessary and arduous task would be rendered enormously more difficult by this kind of requirement.
There is further factor of anonymity of course, the problem that Talley against California covers.
It may generally be that candidates do not act anonymously, but for canvassers and others the situation is quite different.
They may be quite willing to identify themselves to the household that they go to see, but not nearly as keen about identifying themselves to the police if their cause is one that is likely to be unpopular to the police.
Police have ethnic and class prejudices like other people do.
Justice William H. Rehnquist: But you are asking us to assume that without ever any showing in the record that that is the case here?
Mr. Telford Taylor: Well, in the first place, it seems to me a reasonably safe assumption and in the second place, I think you must also examine the record.
Unknown Speaker: It is like the police over 50?
Mr. Telford Taylor: Pardon?
Unknown Speaker: It is like the police over 50.
Mr. Telford Taylor: Well, over or under 50, I think they will still reflect the same prejudice as an attitude that, seem to me, troublesome here.
Justice William H. Rehnquist: Would it not be easier for you if it were the town clerk?
Mr. Telford Taylor: Some, whether enough is another matter, but in fact, it is the police here not the town clerk.
Justice William H. Rehnquist: But do you think there will be a difference constitutionally or could be if it were the town clerk?
Mr. Telford Taylor: Probably, the chilling effect would be somewhat less, but since the purpose here is public safety, the whole purpose of this statute will be frustrated, Justice Rehnquist, if you made it the town clerk.
The whole purpose here is to get in the hands of the police right away.
So, that is really not our situation.
The point on vagueness, which I will just take a minute on if I may; once again the New Jersey Court seems to have thought that the ordinance was crystal clear and it certainly is clear enough in terms of the kinds of speech that it covers, that is, the charitable solicitation, the political counseling, and so forth, but I submit that the notifying in writing for identification only is quite insufficient.
What can the police legitimately require for identification purposes?
As far as the record shows, they have put out no rules.
They have put out no forms.
The Police Chief has made a couple of remarks about it in his affidavit, but of course, they do not seem to be in any way binding on him or his successor.
If the purpose of the ordinance is to help the police to know where canvassing is going on, it would seem to require some indication of where in the Borough you are going to be or this does not say one way or the other.
Are these lists to be kept confidential or made public or this does not help us?
It seems to me, they are just too many questions left unanswered here and I refer the Court to Justice Pachman’s dissent below where he stresses, it seems to me very effectively, the special risks of harassment, discriminatory enforcement and so forth, that in here in the vague quality of this restriction.
Now in conclusion, may I say, that with the very -- with the total lack of any indication need here with the obvious effect that it is going to have on a political process on neighborhood discussion that the whole balance here was misjudged below and that the case calls for reversal.
Thank you, Mr. Chief Justice.
Chief Justice Warren E. Burger: Mr. Major.
Argument of James A. Major
Mr. James A. Major: -- and members of the Court.
Before I commence my argument, Justice Brennan, Mr. Hynes in this case is a democrat.
I voted for him.
In this particular case --
Justice William J. Brennan: Will things change if it is a democratic or a republic intent?
Mr. James A. Major: Yes, indeed.
We have a democratic legislature and a democratic government.
Chief Justice Warren E. Burger: Mr. Ordell’s town councilman, what is the town’s position?
Mr. James A. Major: I beg your pardon?
Unknown Speaker: He is in the state legislature.
Mr. James A. Major: Hynes, yes, sir.
Unknown Speaker: From that district?
Mr. James A. Major: An assemblyman, yes sir.
Unknown Speaker: From that district?
Mr. James A. Major: Yes, sir.
Unknown Speaker: Not now, Oradell was added to the district once he was originally elected, was he not and the reapportionment; Oradell, a republican community, was added to the district which had originally elected him?
Mr. James A. Major: They have apportioned the districts, Mr. Justice Brennan.
Unknown Speaker: And he wanted to go into Oradell to have the people of Oradell know who he was?
Mr. James A. Major: When he canvassed me, Justice Brennan, he lived in Maywood and I lived in Hackensack and he --
Unknown Speaker: I would have expected you to vote for the democrat, Mr. Major.
As I remember you?
Mr. James A. Major: Yes sir.
Justice William J. Brennan: [Laughter]Very favorably, I would say.
Mr. James A. Major: Very well, sir.
It has not done me any harm, sir.
[Laughter]In this particular case, the problem that we have, and I would like to lay it right on the table so that you understand what we are driving at.
We do have a small community.
We do not have what you would call policemen on regular troll and what not, and we have people coming into the town.
I am going to say, for instance, Justice Jackson pointed this out in one of his dissenting opinions, what happens and it will lead up to what I say is the reason we adapt these ordinances.
People will come to town in a colony and they will descend on your town and they will debauch a group of canvassers and through your town they go knocking at doors, “we are soliciting this,” “we are soliciting that,” and so forth and so on.
Now, as I point out in my brief and I think as Justices will recognize, the man who has in mind casing a house for future burglary does not announce that fact.
He is going on the guise of a solicitor whether for a charitable campaign or whatever it is.
Now, ever since this Court laid down the decision in the Valentine case, we have taken the position that commercial free speech, if I can coin the phrase, is subject to regulation and, in some cases, to prohibition.
Now, we have adapted and you will find it, if you ask counsel about the initial ordinance, you will find it at E1 which is our original canvassing ordinance and you will notice there that the person who applies for a permit must fill out a form, answer certain questions, and the like, describe the goods that he is soliciting, and so forth.
Those ordinances have been upheld in the State of New Jersey and I understand, are not attacked here.
Now, we take a step further.
We have people come to the town.
They say “we are soliciting votes.”
“We are running for this,” “we are running for that,” and “we want to go from house to house.”
Now, as carefully as I have read the decisions of this Court, and I read them in preparing this particular ordinance, I have found nowhere does it say there is a premise that a person has a right to ring my doorbell.
I may forbid him and the Court probably is familiar with buildings where there are signs, “solicitors prohibited,” “soliciting prohibited,” and the like.
Now, these people come in and say “we are soliciting” or “running for office,” so forth and so on.
The question then is, should we have some idea who they are?
And, I think when counsel says “there is nothing in the record to indicate why this was done, I think the Court would really sit up in its respective chairs, if I said that we have 12 unsolved murders in our vicinity, and therefore, there is fear in the minds of the householders.
Now, you may say “well, it is an unjustifiable fear.”
It is one of the incidents you have to put up with in living in civilized society, but if a legislative body is going to be responsive to the will of its people, it has to recognize these conditions, and therefore, the First Amendment to this ordinance was passed.
Now, here is where we had trouble.
It came before the Trial Judge on the return of an order to show cause.
There was not a plenary hearing.
No testimony was taken, and counsel who then appeared for Mr. Hynes and his fellows, took the position that this was an unreasonable regulation and I emphasize that position, an unreasonable regulation of the right of free speech, and it was on that hypothesis that the case was argued.
Along came the Trial Judge, and counsel and I are agreed on one thing, it is very hard to follow that opinion.
I do not know whether it was correctly transcribed or what, but the upshot of it was that he said that if you are running for office, you do not have to comply with any regulations.
You are right to run for office is absolute.
Now, I know of no decision by this Court, going back to Justice Black and the other who were absolutists to the effect to the right of free speech was not subject to regulation, which took that position.
So, we try I might say, parenthetically, the amended ordinance was defective because it had no sanctions and an ordinance without sanctions is no ordinance.
So, we amended it and amended it in the light of the challenge that was made.
Compare the amended ordinance with the one which you will find at E1 which requires answer to questions, identification, and so forth.
The only requirement that we put in here, and we thought we were compliant not, Justice Brennan, the idea of keeping democrats out of Oradell or anything of the sort, but with the idea of analyzing competing principles.
Surely, a man has a right to run for office.
Surely, he has a right to solicit signatures on nominating petitions and the like.
Also, we ought to have some idea of who you are, and therefore, we only said one thing, identify yourself in writing to the Police Chief.
Say you are Mr. Hynes and you are going to be in Oradell soliciting house to house.
Say you are so and so and you are going to --
Justice Lewis F. Powell: Mr. Major, may I interrupt you at this point?
How would you construe the requirement of identification in writing, would a postcard suffice?
Mr. James A. Major: I would say that it can be done in writing.
I would say anything in a way of a driver’s license or anything that I am what I pretend to be.
Justice Lewis F. Powell: Your answer suggests that one would have to go to the police station and prove the correctness of his identity, is that in your thinking?
Mr. James A. Major: The ordinance says “in writing.”
It does not require a personal appearance at the police station.
Now, the only time I think that the suggestion you have in mind or the thought that may be troubling you would come into play is if the person were not recognized by his writing.
In other words --
Justice Lewis F. Powell: Well, suppose I lived in Trenton and I just sent a postcard into the police saying that one of these days I am going to be soliciting for this charity or that charity or that candidate or some other, what would happen from then on?
Would that be adequate to comply with the statute or the ordinance?
Mr. James A. Major: I would definitely say, contrary to what is said in the opponent’s brief that there will be no discretion in the Police Chief to say that is not a recognized charity or anything of the sort.
Justice Lewis F. Powell: (Inaudible) Trent from saying “my name is Powell, I live in such and such street”?
Mr. James A. Major: I had in mind Cantwell against Connecticut.
Justice Lewis F. Powell: But you cannot answer my question?
Mr. James A. Major: The Secretary of State was in power to determine whether it was a recognized charity and so forth.
We have not gone into that.
Justice Lewis F. Powell: What I am leading up to is whether you think, I agree, that the ordinance has not been put into effect yet but a postcard would suffice, and I take it you do?
Mr. James A. Major: I would say that would be sufficient.
Justice Lewis F. Powell: Right, now, would you file out and discuss for an appropriate theory on how you think that sort of regulation would prevent crime?
Mr. James A. Major: Definitely not.
Justice Lewis F. Powell: It would not?
Mr. James A. Major: No, sir.
Justice Lewis F. Powell: Do you think the ordinance does not serve the purpose for which it was enacted?
Mr. James A. Major: Definitely.
Justice Lewis F. Powell: Does that not dispose of the case?
Mr. James A. Major: I call to your attention, in the opinion of the Supreme Court which you will find on A11, I beg your pardon, that is on the dissenting opinion, but on page 87 quoting from that opinion, “at oral argument the attorney for plaintiff Hynes candidly admitted as indeed he was obliged to by the circumstances that he conceive of no less a form of intrusion on the right of free speech other than absolutely no intrusion than the identification device here.
Now, contrary wise, Justice Harshman on whom the appellant relies and comments him on his learning, says this “the Oradell ordinance,” and I am reading from A11, “the Oradell ordinance which, in its amended form, merely requires a single registration by each canvasser during each campaign solely for purposes of identification would on its face appear to impose no serious burden on the exercise of First Amendment rights.”
Then, having said that, he goes on to imagine what might happen.
Now, after all is said and done, the best we can do is draft an ordinance which we think has fit everybody, and of course if you draw the language to its extreme, I suppose you can make it almost nonsensical, but as I say, that is the purpose we had in mind, identification and not only that and, in the brief that I filed here, I have pointed out to the Court that the last thing in the world we want to do is deprive Hynes or anybody else of the right to come in and solicit so long as we know who they are.
Now, Justice Pachman, in his dissenting opinion referred to some of the cases which are before this Court, particularly those involving Jehovah Witnesses and the like where they were very much in the minority.
As I have heard it said many times, a majority does not need a constitution and a majority does not need anything else, got the votes.
Now, in this particular case, I cannot conceive that this ordinance or any of its prototypes enacted in other places would prevent democrats or republicans or anybody else from soliciting votes.
Justice Byron R. White: Well, does the ordinance not require you to register while a campaign is going on?
Mr. James A. Major: Does it not require what, sir?
Justice Byron R. White: When do you have to register?
When do you have to identify yourself?
Mr. James A. Major: Before you start soliciting from house to house.
If you are not soliciting from house to house, you need not register with anybody.
Justice Byron R. White: I understand that, but do you think that you have to say what campaign you are interested in?
Mr. James A. Major: I do not know if he would do to go that far.
Justice Byron R. White: You mean you just send in a name and just say “someday I am going to either solicit for a charity or solicit for a candidate for office.”
Mr. James A. Major: I would definitely say that it might be preferable to say --
Justice Byron R. White: Well, how about is it required?
Is it required to identify the campaign that you are interested in?
Mr. James A. Major: I would think so, yes, I would think so.
Justice Byron R. White: And do you have to say what side you are on?
Mr. James A. Major: No.
Justice Byron R. White: No, but you do have to say what campaign you are going on?
Mr. James A. Major: I would say that a letter to the Police Chief that “I am so and so and I will be soliciting house to house in Borough of Oradell in support of my candidacy” would be sufficient.
I do not think that a letter that “I will solicit house to house for some unnamed cause or some unnamed person” could answer the question of identity.
The question is what are you doing in the town?
Justice Byron R. White: So you do have to tell the police for whom you are going to be soliciting?
Mr. James A. Major: That would be y interpretation, yes sir.
Justice Byron R. White: And you do not think that is -- you do not think that would deter anybody from soliciting?
Mr. James A. Major: No, sir, and in the dissenting opinion below, it refers to what is called chilling, whatever that means.
I will take it.
I think it would have to be pretty close to a freeze to deter the average political candidate from announcing what he is running for because unless he says that, I do not know how I can solicit votes.
Justice Byron R. White: Yes, but this does not apply just to can candidates, it just applies to anybody who is soliciting on his behalf?
Mr. James A. Major: I suppose they are going to solicit signatures for a nominating petition, sir and they ring a door bell.
Surely, they would have to say “this is a nominating position for Mr. Hynes and Mr. Burn or somebody or other, would you sign it” and what they are running for.
Otherwise, you would be put in a position of saying “here, I have a petition, would you sign it” and in so far as amenity is concerned, assume it will take the town a size of Oradell that you are stopping at house to house, it becomes known that you are soliciting.
Now, in all of these cases, I recognize fully that you have competing principles driving for mastery.
The last thing in the world that we want, as I said, is to keep anybody from running for office or for soliciting.
We thought this was a way we could do it.
Now, in the arguments made here which was not made below, we have this question as to a type of identification and so forth and so on.
What we wanted to find out and what we dropped in the laps of the Supreme Court of New Jersey when we amended the ordinance is can we do this?
Now, if it is a fact that there are some facets of this ordinance which require amplification, no reason in the world why that cannot be done.
The point that we are leaving with the Court is we would like to know if consistent with the constitution, we can adapt an ordinance towards this end and the reason for it is quite obvious.
Now, they said to us “no testimony taken.”
Obviously, the Trial Court proceeded on what is called a facial attack on the ordinance.
If there was, in fact, some question as to whether the police needed this kind of an implement that testimony could have been produced by the number of unsolved murders.
As a matter of fact, while this case was pending, in the adjacent town of Howell, a woman by the name of Hynes not related to this petitioner was taken from a home, taken some place and killed, from her home.
Somebody is going to say “well, are the women of Oradell not constituted of sterner stuff?”
The answer is, “apparently they are not,” but that is the point I leave with the Court.
We are interested in this $64 question, is this a condition subject to municipal regulation?
If the particular ordinance goes too far, that is one thing, but as I understood, at the trial level, the Trial Judge said “you cannot do it at all” and there is where we parted company.
Chief Justice Warren E. Burger: Mr. Taylor.
Do you see anything in the ordinance, Mr. Taylor, that requires you to identify the particular objective of your solicitation, that is, would it be sufficient if you sent a postcard and said “beginning next week, I intend to solicit support for my favorite candidate in the upcoming election”?
Rebuttal of Telford Taylor
Mr. Telford Taylor: If the question, Your Honor, is whether it can be done by a postcard, that is to say by mail, that is one matter to which the New Jersey Court did advert, but in a somewhat ambivalent way.
It is on page A5 of the appendix and the Court said “the requirement may be satisfied in writing” suggesting that resort may be had to the mails.
I was going to make reference to that in connection with Justice Powell’s question.
Of course, that does not seem to me to be an interpretation.
It is a suggestion.
This might be so.
I believe that my basic answer to your question, Mr. Chief Justice, is that on most of these matters the ordinance is impossibly vague.
It does not tell us.
I think it does tell us the answer to Justice White’s question about campaigns because there is this sentence that the notification shall be good for the duration of a campaign or cause and it is hard to see how that can be implemented unless the campaign or cause is specified.
Whether you have to say which side of the campaign, Your Honor, is a further question which, again, I think the ordinance gives us no answer.
Might I just say, again, in response to Justice Powell’s colloquy with my brother at the bar here, I think, he remarked that the ordinance is not yet in effect.
I do not believe that is so.
The relief granted by the Trial Court was declaratory only.
That, of course, was reversed in the Supreme Court and my understanding is that the ordinance is in effect what the practical result has been in terms of the administration of it.
The record is, of course, silent on it.
I believe the ordinance is now in effect.
Chief Justice Warren E. Burger: New Jersey practice, if you are that familiar with it, could not the Courts, as most Courts could, have a narrowing construction of this ordinance say that you need not specify a party or a candidate, but merely are required to say that you will be soliciting support in connection with that election?
Mr. Telford Taylor: Well, I must confess that I do not know in detail the New Jersey decisions on the scope of an Appellate Court’s interpretative power there.
Chief Justice Warren E. Burger: (Inaudible) I mean, the State Courts --
Mr. Telford Taylor: That is why I say I do not know the scope of New Jersey law on the --
Justice William J. Brennan: (Inaudible)
Mr. Telford Taylor: I should hope so, Mr. Justice Brennan, yes.
Justice Byron R. White: Do you suppose a state could say to solicitors “please knock before you enter the house”?
Mr. Telford Taylor: Yes, I should think so.
If they do not, probably the criminal law would --
Justice Byron R. White: Well, so that is another criminal law like this one is.
It is a condition on this criminal law, is a condition on the place of where you are going to solicit.
If you want to enter a private property, we want to know who you are and if you want to enter on private property you are supposed to have consent before you enter?
Mr. Telford Taylor: Well, this Court said in Bird against Alexandria that failing some explicit withdrawal of the invitation on the part of the householder that the front pass or the door knocker relieve the entry of the character of trespass.
Justice Byron R. White: Up to the door?
Mr. Telford Taylor: Up to the door.
Chief Justice Warren E. Burger: I do not know that any times are indicated here, but would you think it would be fatal to such a provision if it said “during daylight hours only” or “not after 9 p.m.”?
Mr. Telford Taylor: The latter, certainly.
It would seem to me that a restriction of that kind ought to be okay.
I think we have to bear in mind that, with political canvassing, contrary to the impression one gets from this ordinance, it is not very effectively done until the latter part of the afternoon or evening when the working members of the family of which ever sex, Mr. Chief Justice, are at home when one would go canvassing until that was so.
So that the emphasis here on the daylight hours and all when the working man or a woman is away, it seems to be wrong in this place.
I do not believe in some summary that the ordinance exhibits a rational connection between the announced objective and the terms it imposes.
Chief Justice Warren E. Burger: In other words, the limitations of daylight hours might be unreasonable with limitation to canvassing up to 9 p.m., would be reasonable?
Mr. Telford Taylor: Well, certainly the impingement of First Amendment values would be much than a 9 p.m. case.
I have stressed that because of the recent decisions of this Court have exhibited great solicit to for the function of canvassing and their privacy too.
Justice Potter Stewart: Mr. Taylor, the basic ordinance to which this is an exception --
Mr. Telford Taylor: Yes.
Justice Potter Stewart: -- number 573 is, of course described in more detail --
Mr. Telford Taylor: Yes.
Justice Potter Stewart: Among other things, it has a 9 a.m. to 5 p.m. restriction, but it is my understanding, you tell me if I am mistaken in that understanding, that none of the provisions of 573 carry over it into this ordinance.
This ordinance stands and falls on its own?
Mr. Telford Taylor: Only the penalty provision that is carried over by way of --
Justice Potter Stewart: You mean that was remedy?
Mr. Telford Taylor: That was remedy, yes, Your Honor.
Justice Potter Stewart: So none of the substantive provision carry over into the ordinance now before us?
Mr. Telford Taylor: That is my understanding, that is my understanding.
Thank you, Mr. Justice.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.