Watchtower Bible & Tract Society of New York v. Village of Stratton - Oral Argument

ORAL ARGUMENT OF PAUL D. POLIDORO ON BEHALF OF THE PETITIONERS

Chief Justice Rehnquist: We'll hear argument next in Number 00-1737, The Watchtower Bible and Tract Society of New York, v. The Village of Stratton, Ohio.

Mr. Polidoro.

Mr. Polidoro: Mr. Chief Justice and may it please the Court:

It's 11:00 Saturday morning in the Village of Stratton.

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.

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.

It is also illegal to go from door to door and hand out a leaflet that says, democracy is wonderful, please vote next week.

In drafting a permit scheme designed to address fraud and privacy that includes those interested in pure discourse, Stratton has eliminated the ability to engage in door-to-door, one-on-one political advocacy.

As such, we submit the ordinance is overbroad and unconstitutional.

Unidentified Justice: I don't see how it has eliminated any chance of a political... going door to door in a political discourse if you register with the mayor and you can't be turned down if you fill out that form.

You can go door to door, except where there's a no-trespassing sign.

Mr. Polidoro: Your Honor, we are not suggesting at all that a resident cannot post a no-trespassing sign and keep all away from their door.

However, in order to get the right to go to that door, one must go to the mayor, give his name, give a brief description of the cause they want to speak about, as well as their association or affiliation.

We believe that this Court in McIntyre said there's an interest in having anonymous works enter the marketplace of ideas, and that unquestionably outweighs any interest in requiring disclosure as a precondition to entry.

Unidentified Justice: Well, do you focus on the right of anonymity, or the right of unrestricted speech, as of the time you get to the door, or when you go to the mayor's office, because our most recent cases talk about going to the door, and that's where your brief focuses on.

It seems to me that what you've begun with, and it's also troubling to me, is that you have to make the disclosure to the mayor as well, so I take it those are two different parts of your case.

Mr. Polidoro: Correct, Justice Kennedy.

Unidentified Justice: But you emphasize only the latter, really, in your briefs.

Are the records that the mayor keeps, are they open to the public?

Mr. Polidoro: They are, absolutely, indeed, Your Honor.

Under Ohio State law those records are open to the public, so anyone would be able to go to look at the record, which would include the name, your message, and your associations.

Unidentified Justice: So you would have no objection to this statute if you didn't have to give your name?

Mr. Polidoro: Your Honor, we--

Unidentified Justice: It's perfectly okay to say, you can't talk to anybody without getting a permit, so long as you don't have to give your name when you get the permit?

Mr. Polidoro: --Your Honor, we believe the name is the constitutional infirmity in deed.

Unidentified Justice: That's the only problem, so if this were revised somehow so that all you had to give was a reference, maybe somebody in the community who would vouch for the integrity of these Jehovah's Witnesses, that would then be okay, because they wouldn't have to--

Mr. Polidoro: Your Honor--

Unidentified Justice: --The only problem is if they have to give their name.

You see, I would have thought you would have objected to the necessity of going to the mayor and saying, please, Mr. Mayor, can I talk to your citizens going house-to-house, but that's not your problem.

Your only problem is that you have to disclose your identity.

Mr. Polidoro: --No, Your Honor.

We do not believe that anyone needs to go to the Government for permission to speak to their neighbor about any message, most importantly, a message--

Unidentified Justice: I think that's the strongest part of your case.

Mr. Polidoro: --Yes, Your Honor.

Unidentified Justice: But you call them neighbors, but I take it in many cases they're simply strangers who come into town.

Mr. Polidoro: Well, actually, Your Honor, in this circumstance the Village of Wellsville, which is a neighboring village, has assumed responsibility for preaching door to door in the Village of Stratton, and many individuals are, in fact, known to each other, and that's common in most areas of this country.

We don't believe that one is required to go to the Government to get permission to speak to a private resident owner when the power belongs to that private resident owner to keep all away from their door if that owner so chooses.

Unidentified Justice: Can you tell me why that is?

I agree that at some level it seems contrary to our traditions, but if we can focus just on going to the mayor's office, it seems to me that one of the strongest parts of your case is that you have to identify your cause.

That seems problematic to me.

Is that part of your case, and if so, what is the root constitutional principle that's violated there?

Mr. Polidoro: Your Honor, Jehovah's Witnesses have a long historical memory as to what they've suffered at the hands of municipalities--

Unidentified Justice: Well--

Mr. Polidoro: --purely to go door to door to speak the good news.

In this instance, the village is compelling disclosure of name, cause, and associational information.

Unidentified Justice: --What's wrong with identifying the cause?

Mr. Polidoro: Your Honor, we believe that under this Court's holding there are some individuals who do not want to identify their cause.

It opens them up, as McIntyre said, to official retaliation, to economic retaliation, to social ostracism, and perhaps, as McIntyre said, they just don't want to disclose more of their privacy than they have to.

We don't believe that on this record the village has shown a necessity to so incumber pure discourse that is not the source of harm.

There's no allegation in this case that pure religious speech, or pure political speech, cause the harm that the village seeks to protect its residents against.

Unidentified Justice: But I take it your argument only goes to the political speech, because as I understand it, Jehovah's Witnesses do not object to identifying themselves, and your concern is with the overbreadth that goes into the political sphere, is that correct?

Mr. Polidoro: That is absolutely correct, Justice Souter.

Jehovah's Witnesses will, indeed, identify themselves at the door, but it's their personal decision to do so.

Unidentified Justice: And yet the question that you phrase says that this permit, which contains one's name, now, when we turn to the village's brief, they say, no, it doesn't.

The permit doesn't require any names.

You have to have your name at the mayor's office, the mayor has to accept all-comers, as long as you're not fraudulent.

There's no discretion that is what infected the old prohibitions against the Jehovah Witnesses' speech, so here anybody can go door to door.

The name is at the mayor's office.

The name doesn't have to be disclosed to the homeowner.

Now, you said in your brief the name has to be disclosed to the homeowner.

They say in their brief, no, it doesn't, so which one is right?

Mr. Polidoro: Justice Ginsburg, if I might, at the joint appendix on page 248a there's a copy of the blank permit and it says, permit to canvass, to solicit, et cetera, and it says, in accordance with the relevant provision of the statute, the mayor of the Village of Stratton, Ohio, has issued to the above applicant a permit, the above applicant a permit, so we believe on the plain language of the permit, the name is, indeed, disclosed.

Unidentified Justice: Did you ever apply for a permit?

Mr. Polidoro: We never did, Chief Justice Rehnquist.

Unidentified Justice: So you don't know, as a matter of practical fact, how that would work out?

Mr. Polidoro: That's correct, with respect to Jehovah's Witnesses.

Unidentified Justice: It might be a number, applicant number 5.

Mr. Polidoro: There's no showing, Justice Souter, in the ordinance that there's any sort of numbering scheme.

Unidentified Justice: Well, no, there's no... that's the trouble, I think, with the argument.

There is no showing, but I suppose the exhibit is consistent with a numbering as well as a naming system on the permit card.

Mr. Polidoro: But Justice Souter, I believe the exhibit would be inconsistent with the concession of the village that name disclosure is, in fact, required at the door.

At page 27 of their brief, and page 29 to 30 of their brief, they do say that name identity is compelled to be disclosed by a resident or by a police officer in further of his official business.

Unidentified Justice: They said about five times in their brief that the permit that must be shown to the police officer or the homeowner does not have a name on it... does not have a name on it.

Now, it's very confusing, but this... I looked at this and said, well, maybe this is the bottom... you have the application, then, you know, you tear off the bottom, and this is the bottom, and the applicant is above, but the permit that you put in your pocket doesn't have that name.

If that's the case, then why isn't this case just like the Buckley case, where this Court said, the badge doesn't have to have the name on it, but we recognize that the Colorado law also says that with every set of petitions the circulator has to have an affidavit, and that affidavit is filed with the petition, so there is an official record of the name and the address of the circulator.

Why isn't this just the same thing?

Mr. Polidoro: It's different for two reasons, Justice Ginsburg.

First, Buckley dealt with the mechanics of the electoral process, and clearly that's a compelling governmental interest to ensure there's no corruption in that process.

The circulator in Buckley wanted to make herself part of that process.

The rules of that game are that you submit your name when you submit the affidavits.

We have something different here indeed.

We have just pure speech unrelated to the mechanics of the electoral process.

The interesting--

Unidentified Justice: I thought you were saying it only applied to those who were engaged in the political... I thought that was the point of your overbreadth objection.

Mr. Polidoro: --I think there's a distinction, Justice Souter, to just pure speech, the dissemination of information and ideas, and speech that in some way involves the mechanics of the electoral process.

You're going to do something with the information that you obtain from that householder, and then submit yourself to an area, an arena that the Government has a right to have some play in.

We don't submit that the Government does have a right in one-on-one intimate conversation about religion or politics, to have a play there.

Unidentified Justice: But one of your examples was that door to door solicitation of signatures for an initiative to put on the ballot, and that's exactly what was involved in the Buckley case.

Mr. Polidoro: Yes, Justice Ginsburg, but that disclosure took place after the one-on-one dissemination of information was done.

If that individual did not want to submit those affidavits, she could have maintained her anonymity.

The question is, when can the Government compel you--

Unidentified Justice: She could not have been a circulator, then, because a condition of being a circulator... she could not have submitted her petition, because to submit her petition she has to have this affidavit, and I don't see... I really can't see any difference in consequence whether the official form is made before or made after.

The point is that the name and address is in an official record.

Mr. Polidoro: --Because of the compelling governmental interest that's involved, Justice Ginsburg, and that's the distinction.

When we have one-on-one--

Unidentified Justice: That doesn't handle your example.

I mean, why don't you just say it was a bad example?

You shouldn't have used the example.

It's not worth your time.

You shouldn't have used the example of a petitioner circulator.

You are concerned about people who just want to come up and say, I want to talk to you about why you should vote for Smith.

Mr. Polidoro: --That's correct, Justice Scalia.

Unidentified Justice: Is that the case?

Mr. Polidoro: It is, indeed, the case.

Unidentified Justice: Is it the case that your clients don't ask for any money, not a penny, and 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?

They don't ask for any--

Mr. Polidoro: 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 arrangement.

However, to make our interest absolutely clear, what we're involved with in Stratton, we did not mention the voluntary donation arrangement.

We are not seeking a solicitation of funds.

We're merely seeking to talk to people about the Bible.

Now, Justice Ginsburg--

Unidentified Justice: --Don't you hand out the Watchtower, too?

Mr. Polidoro: --We do, Your Honor, on a no-cost basis if someone's interested in reading it.

We would send that out.

Unidentified Justice: So you said just... you briefly mentioned... because you know, I've had many fine conversations with Jehovah's Witnesses.

It's fine.

But I've never noticed any of them objecting to anything about giving their name.

I mean, is this a real issue here, that for some reason this particular group objects to giving their name?

What's the situation?

Mr. Polidoro: No, Your Honor, Jehovah's Witnesses have no objection to giving their name.

The objection to giving their name comes in the realm of anonymous political discourse.

Jehovah's Witnesses have felt that this ordinance, which is designed to regulate business transactions, need not have reached pure religious speech, need not have reached pure political speech.

Unidentified Justice: But you would say that without reference to the name.

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?

Mr. Polidoro: That's correct, Your Honor.

That's quite correct.

Unidentified Justice: Is that here in front of us?

I mean, what I'm having a hard time getting our hands on is, it looks as if a group of people who really don't mind giving their name are objecting to the name of a different group of people who might not, and those might be people who might want to say, vote for Smith, and what's worrying me about deciding this case in the context which is obvious from the briefs is, that might have considerable legal implications for the question of whether you can require disclosure of campaign contributions, which is a totally different issue, but would seem legally related, so I'd appreciate those three things that I've mentioned... you see what I'm... what the blur is in my mind, and I'd appreciate your views on that.

Mr. Polidoro: Justice Breyer, it has been our contention that the ordinance was drafted in an overbroad manner, meaning reaching speech that was not the source of harm, including our religious speech, but also including pure political speech.

When we put forth the interest of those interested in anonymous political discourse, that was under this Court's overbreadth doctrine, and we don't believe that the Court has to wait until a violation takes place to remove this potential weapon, some sort of weapon from the hands of the village.

Unidentified Justice: Of course, to do that we would just say, you can't require the names to be disclosed.

We can still require you to check in with the mayor before you go door to door.

Mr. Polidoro: Your Honor, we don't see how--

Unidentified Justice: Have you photograph taken, maybe, you know.

You don't have to give a name, but we'll have your photograph on file just in case.

That's okay, then, right?

Mr. Polidoro: --No, Justice Scalia.

Unidentified Justice: That's what you want us to do?

Mr. Polidoro: No, not at all.

We don't believe--

Unidentified Justice: I didn't think so.

Mr. Polidoro: --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.

Unidentified Justice: Okay, but the basis... as I understand the nub of your argument is... goes back to your answer to Justice Ginsburg, and that is... in distinguishing Buckley, and I think what you were saying was, in Buckley the Government had an interest because it had an interest in checking the veracity of the endorsement solicitation, the petition solicitation process, are these real people, go to the person who asked and check, whereas here, if we're not talking about the solicitation of money and of signatures in a political sphere, there's nothing for the Government to verify, and therefore there is no interest here, whereas there was an interest in Buckley, and that's the distinction.

Is... am I--

Mr. Polidoro: Precisely.

Unidentified Justice: --stating your argument correctly?

Mr. Polidoro: Precisely, Justice Souter.

Unidentified Justice: Okay.

Mr. Polidoro: Precisely.

Unidentified Justice: The brief didn't mention... you took Buckley as being 100 percent in your favor, and that's what surprised me, is that Buckley made the very distinction that you say is inappropriate here, that is, face-to-face encounter, you don't have to have your name, but back in an official's office, you do.

Mr. Polidoro: Your Honor, I think that Buckley followed on language in Your Honor's portion of the opinion in McIntyre, where you spoke to limited... there might be larger circumstances where identification might be required, and in the electoral process, the mechanics of how an election works, those are larger purposes.

We don't think those larger purposes are present in one-on-one conversations--

Unidentified Justice: You have in your case... most of the Jehovah's Witnesses cases dealt with that official who was exercising discretion to keep out the Witnesses but letting in the Republicans, and that was that line of cases.

Then we have the, what I call the Village Green line of cases.

McIntyre would fit in that category.

But is there any precedent for saying that if you want to go into private homes in this town, we want to know who you are, and... but anybody, that applies to anybody, and we will give the permit to anybody.

Mr. Polidoro: --Justice Ginsburg, the only precedent that I'm aware of with respect to identification schemes comes from the dicta in Cantwell and Martin that speaks about a municipality, a municipality's interest in knowing strangers in the community when connected with the solicitation of funds.

I don't believe there's any--

Unidentified Justice: Don't you think that the practice around the country of various towns and cities is to require permits for people to go door to door in residential areas?

I think I even live in a community that probably does that.

The concern may stem from a concern about preventing burglaries and unfortunate incidents in the area, and they want to identify the people who are going door to door.

Mr. Polidoro: --Justice O'Connor, my experience is quite to the opposite, that after the battles between Jehovah's Witnesses and the municipalities in the thirties and forties, municipalities have stopped attempting to regulate Jehovah's Witnesses by forcing them to get a permit to go from door to door.

This is an experience that we're having in the past few years, that more and more municipalities are now requiring not only a permit but, as Justice Scalia touched on, finger-printing.

Unidentified Justice: Well, there was a story in the paper just last week here about the double murder up at Dartmouth, how the kids who did it went from house to house purporting to be taking a survey, and then what they were actually doing was casing the houses for robbery, so that's certainly something that a municipality can take into consideration, isn't it?

Mr. Polidoro: Chief Justice Rehnquist, we think it's implausible to think that someone intent on committing a violent crime would stop at the city hall to get a permit or in any way be deterred, and in the circumstance Your Honor posits of someone just going door to door and observing, or taking notes, the ordinance in this instance doesn't prevent that.

The only time the ordinance comes into play is--

Unidentified Justice: But it does give a record of who it was, which would probably deter someone.

I think you're wrong when you said, only if they speak, that the mayor requires anybody who rings door to door.

That was my understanding of this ordinance.

Anybody who rings door to door has to sign up in the mayor's office.

Mr. Polidoro: --No, Chief Justice... no, Justice Ginsburg, I believe it's anyone who wants to go door to door to discuss a cause, and that's the language of the ordinance.

It's the--

Unidentified Justice: Now, suppose--

--It goes broader than that.

It would apply if you were leaving a leaflet saying, I repair roofs, or I do painting, and I'm just going to leave it at the door.

It obviously covers all of that without saying a thing.

Mr. Polidoro: --Which is a speech interest, Justice O'Connor.

That is a speech interest.

Unidentified Justice: But suppose I am concerned that the mayor, in my view, or the Government has no right to demand previous registration or to give his consent before I go to my neighbors to talk about neighborhood problems, or whatever.

What case do I put down when I write the opinion to that effect for--

Mr. Polidoro: Excuse me, Justice Kennedy, I--

Unidentified Justice: --What's your best case, or best... what are your best cases for the proposition that it is simply unconstitutional for the Government to require a permit before you go door to door to talk about a cause?

What are your best cases?

Mr. Polidoro: --Martin, predicated on Lovell, predicated on Schneider.

There are interests that the Government may have to interpose themselves into that process, Your Honor, but there has to be some sort of real substantial basis.

We think the equity lies with--

Unidentified Justice: Most of those cases... I think they're the closest, too, but they're not right on point, because they were concerned with the discretion--

Mr. Polidoro: --Justice Kennedy--

Unidentified Justice: --that the official had--

Mr. Polidoro: --there is discretion in this instance.

If we look at the ordinance--

Unidentified Justice: --And also may I say there's language in those cases that suggests that it would be... you read it yourself, this stranger has to identify himself or herself.

That runs in those cases as well, but those were all cases where the danger was the official who was going to pick and choose, and it was wide-open discretion.

Mr. Polidoro: --If I might, Justice Ginsburg and Justice Kennedy, when we look at the ordinance on appendix 4a, and it's section 116.03(b)(6), it says that the mayor can ask for such other information--

Unidentified Justice: 4a of the petition?

Mr. Polidoro: --Of... I'm sorry, it's our brief for petitioners, Chief Justice Rehnquist, page 4a, section (b)(6), such other information concerning the registrant and its business or purpose as may be reasonably necessary to accurately describe the nature of the privilege desire.

Now, in this instance--

Unidentified Justice: That has been taken out of the case.

Mr. Polidoro: --No.

No, Justice--

Unidentified Justice: I thought that the only thing that the mayor asked... isn't... wasn't there something in the district court opinion that cut that back?

Mr. Polidoro: --No, Your Honor.

That is still very much in the case, and very much part of the case.

The only thing the district court cut out was the reference to Jehovah's Witnesses in the administrative paperwork.

The Court also said that it was an onerous requirement to make individuals list all the addresses one wanted to visit, and said the village could cure that.

Unidentified Justice: But I thought the village made a concession.

It says, all we're going to ask is the name.

Didn't the village make that concession in some court?

Mr. Polidoro: No, Your Honor, not at all.

This provision--

Unidentified Justice: I'll ask the village if they did, because I remember something that said we're going to ask only for the name and the address.

Mr. Polidoro: --No, it--

Unidentified Justice: Even if that's so, I mean, where a slight state of confusion is, I thought this case now sounds very theoretical.

I thought it would have to do with requiring your name on a permit.

Now I get into it, and I discover we don't know if they require the name on a permit.

Then I thought, well it had to do with requiring the name when you go to the city hall, and now I see there's a problem here because your group doesn't mind, but you're trying to talk through somebody else.

Then I thought, well, maybe it requires a matter of discretion at the city hall, but then I get a record which is forcing me to decide this on the assumption, all you do is go to city hall, and they give it to you automatically.

Then I thought it had to do with fraud, but there's no money.

So now I think it has to do with somebody who goes there and asks for a permit, which he gets automatically, and what's the objection to that?

You don't want to do it, and what's to be said on the other side, not much--

[Laughter]

--but I guess they'll say, well, here at least he'll read the rules.

At least he'll see that there are some people who don't want any solicitation, and we can be sure that that will happen, so it looks like there's something on the one side and I don't know how much on the other.

Mr. Cantor, I'm confused here.

I thought that you object to this even if the name doesn't have to be disclosed, and even if there is not excessive discretion with the mayor.

Mr. Polidoro: --Exactly, yes.

Unidentified Justice: Is that your objection, that you do not want to have to go to city hall in order to ring doorbells--

Mr. Polidoro: Precisely, Justice Scalia.

Unidentified Justice: --no matter what?

Mr. Polidoro: Precisely.

Unidentified Justice: They want you there because they know at least you'll find out which homeowners don't want people around, and you'll read what the rules are, all right.

Is that good enough?

Mr. Polidoro: Justice Breyer, we have not contested that provision of the ordinance, section 116.07, which allows a homeowner to post a no-solicitation sign and then go to the village and say, I want this group and not this group, has not been contested.

Unidentified Justice: But your position is, of course, that Governments always want to know what it's people are thinking, but they don't have any right to find out.

Mr. Polidoro: Well, that's an expression of the residents' interest in who they want.

It's not the Government making the decision for them.

Now, with respect to the--

Unidentified Justice: I'm talking about your clients.

Mr. Polidoro: --Your Honor, we--

Unidentified Justice: Take it.

Take it.

It's good.

[Laughter]

Mr. Polidoro: --I think that's an appropriate point Chief Justice Rehnquist asked.

If I may reserve the balance of my time.

Unidentified Justice: Very well, Mr. Polidoro.

Mr. Polidoro: Thank you.

Unidentified Justice: Mr. Cantor, we'll hear from you.

ORAL ARGUMENT OF ABRAHAM CANTOR ON BEHALF OF THE RESPONDENTS

Mr. Cantor: Mr. Chief Justice, and may it please the Court:

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.

Unidentified Justice: Do you know 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 even, you know, I want to talk about Jesus Christ, or I want to talk about protecting the environment?

Is there... have we had a case like that?

Mr. Cantor: There is--

Unidentified Justice: The mere fact that... I'm familiar with something like... maybe they've become current now, but the mere fact that I don't even know of such cases, over two centuries, makes me--

--You haven't been around that long.

[Laughter]

I... do you know of any?

Mr. Cantor: --Your Honor, there's no holding by this Court that identifies this--

Unidentified Justice: Never mind a holding, a case.

A case in this Court involving... the breadth of this thing is novel to me.

Mr. Cantor: --There is no case that identifies the breadth of this case, but perhaps that might be part of the beauty, beauty in the sense that it is content-neutral, and that is--

Unidentified Justice: 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, I wave to them but I don't really know them, 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?

Mr. Cantor: --No, Your Honor--

Unidentified Justice: It's astounding.

Mr. Cantor: --No, Your Honor.

What we are talking about is canvassers, hawkers, and those who are going door to door for a cause.

Unidentified Justice: Well, how about trick-or-treaters?

Do they have to go get a permit?

[Laughter]

Mr. Cantor: Interesting--

Unidentified Justice: Under this ordinance it looks like it, doesn't it?

Mr. Cantor: --Your Honor--

Unidentified Justice: And they're soliciting, too.

[Laughter]

They are.

Does it cover them?

I'm serious.

Mr. Cantor: --The answer is no, and--

Unidentified Justice: Why not?

Literally it does.

Mr. Cantor: --The track--

Unidentified Justice: You may not enforce it, but it literally covers them, doesn't it?

Mr. Cantor: --That hypothetical was raised by the trial court judge, Your Honor, and it was answered by Mr. Bruzzese to the negative, and the reason why it was answered to the negative is that these people are not... who are going door to door are not seeking to communicate, they are begging candy, and therefore--

Unidentified Justice: That's Girl Scouts.

Mr. Cantor: --Yes, Girl Scouts would be covered.

Unidentified Justice: Or Christmas carollers?

Mr. Cantor: Sale... sale would constitute conduct that would be require--

Unidentified Justice: Or how about borrowing--

--This is really--

--a cup of sugar from your neighbor?

Do I have to get a permit to go borrow a cup of sugar from my neighbor?

Mr. Cantor: --No, Your Honor, I don't believe--

Unidentified Justice: This is really a novel argument.

You're saying this thing is okay, this ordinance is okay because it addresses only communication.

[Laughter]

Anything else is okay.

It's only communication that we're concerned about.

Mr. Cantor: --The limiting language, Your Honor, deals with canvassing and hawking of the area.

Unidentified Justice: Okay, go back to Justice Kennedy's example that started all of this.

The neighbor wants to go up and down the street because he doesn't think the garbage collection is very good.

That's a cause.

He's got to register, right?

Mr. Cantor: No, Your Honor.

Unidentified Justice: Why?

Mr. Cantor: Because it is not the type of cause that the communication is directed at.

Unidentified Justice: Well, who knows?

I mean, where's the restricted definition of cause?

Mr. Cantor: Within the beginning of the ordinance.

Unidentified Justice: And what's the language that you rely on?

All right, you're on page what?

Mr. Cantor: I'm looking at section 116.03.

It is in the respondent's brief, page 3a.

Unidentified Justice: 3a, okay.

Okay, now tell me where you're reading from, and let's go--

Mr. Cantor: No canvasser, solicitor, peddlar, hawker, itinerant merchant, or transient vendor of merchandise or services who is described in 116.01 of this chapter, and who intends to go in or upon private property, or a private resident of the village, for any other purposes described in.01, shall go in or upon such private property or residence without first registering.

Unidentified Justice: --Okay.

Well, in.01, where does the definition exclude people with a cause, like Justice Kennedy's neighbor who wants the garbage picked up?

I mean, unless you're interpreting canvasser very literally, in which case it wouldn't include Jehovah's Witnesses... 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?

Mr. Cantor: The district court determined that they were canvassers.

Unidentified Justice: They were canvassers.

So you have a very broad definition of canvassers, if it includes Jehovah's Witnesses.

I would have thought a canvasser was somebody who said, I'm doing a survey, I'm canvassing public opinion, or something like that, but if it includes Jehovah's Witnesses, it certainly includes the, you know, the garbage canvasser, so--

--The dictionary says canvasser is a person who's looking for a vote.

It doesn't include them at all, at least the dictionary definition wouldn't, but you've... it's conceded that the city does... what's the purpose?

That is, what... your brief is all about fraud, but fraud seemed to have to do with money, and the ordinance seems to have to do with money.

I haven't read anything in your brief that says what the purpose is for requiring these people who are not interested in money, not interested in selling, not even interested in votes, to go the city hall and register.

What's the city's purpose?

Mr. Cantor: The city's purpose is to prevent annoyance of the property owner.

Chief Justice Rehnquist mentioned that there was a no-trespassing provision within the ordinance.

There is also a no-solicitation... there's a no-trespassing portion in the ordinance.

There's a no-solicitation portion in the ordinance.

That portion allows a registrant who lives within the community and who has private property to register with the community and indicate they do not want to be solicited, they don't want to be canvassed.

Unidentified Justice: That's not challenged, as I understand it.

Mr. Cantor: That is correct, Your Honor, that is not challenged.

Unidentified Justice: All right, so given that, what's the purpose of the registration?

Mr. Cantor: The purpose is to prevent... the purpose of the registration, the initial registration is to identify who in the community is going door to door.

Unidentified Justice: Because?

Mr. Cantor: Because of two factors, the privacy of the person who is--

Unidentified Justice: How does it work?

Spell it out.

I mean, how does it work?

I mean, what's the connection between the purpose and the result, which is you have to come to the mayor and get a permit?

It's not obvious to me.

Maybe I'm being dim, but I don't see it.

I see it with asking for money.

You want to know who's asking for money so if they lie, you find out later, but where they're just interested in a cause, spell it out, if you can, please, for me.

Mr. Cantor: --In Martin v. Struthers, Your Honor, in footnote 5, this Court relied upon the utilization of a book as well as an FBI bulletin to determine that those who go door to door may be doing so as a guise.

The Sixth Circuit Court of Appeals identified that you cannot determine who is going door to door with regard to the criminality aspect of it, and therefore it would not suffice to simply say that just because you are having a concern over money or sales, that that's enough.

You can go door to door for a purpose such as spreading the new, giving additional information.

That can be the outward, the outward point of view, but in reality it could be something very different.

Unidentified Justice: It could be, and I suppose you could say everybody who gets up on a soapbox may provoke a riot, but you know, this seems to me one of the normal risks of life.

It doesn't let the Government go around making it a privilege to go... I love the last provision of the ordinance... what is it, 116.03(b)(6) says that the mayor can demand such other information concerning the registrant and its business or purpose as may be reasonably necessary to accurately describe the nature of the privilege desired, the privilege of going about to persuade your fellow citizens about one thing or another.

I just can't understand that.

That was the provision that I thought was out of it because of the concession that the city made.

If I'm wrong on that--

Mr. Cantor: Your Honor, the provision remains.

The provision is a catch-all to determine... make sure that the identifying information is present, the identification of the individual as well as the cause.

Unidentified Justice: --Wasn't there some point when the mayor said, all I'm going to ask is the name and the address?

Mr. Cantor: The first five sections of that subsection give the information.

That information is consistent with this Court's suggestion in Martin v. Struthers at footnote 14 as well as Cantwell.

The purpose has also been discussed in the context, Your Honor, of how it would benefit the community.

There was testimony at the time of trial from Helen MacMurray, chief of the public... chief of the Consumer Affairs Section of the Iowa Attorney General's Office, and she determined that legislation of this type is helpful because it deters individuals who have an improper motive from signing up and going door to door.

Unidentified Justice: Well, footnote 14 of Martin has to do with solicitation of funds.

Mr. Cantor: That's correct, Your Honor.

Unidentified Justice: And your ordinance is much broader than that.

Mr. Cantor: That's correct, Your Honor.

There... it is indistinguishable to determine who was going door to door.

The... Justice O'Connor had indicated a situation where people were claiming they were going door to door prior to the commission of a murder.

They were going for a reason that was--

Unidentified Justice: No.

No.

No, the... footnote 14 of Martin v. Struthers--

Mr. Cantor: --Yes, Your Honor.

Unidentified Justice: --you cited when we were talking about whether or not you can at least give your name, said this is necessary for those who solicit funds, but your ordinance goes much... sweeps much more widely than the solicitation of funds, so footnote 14 doesn't support the ordinance that is now before us.

Mr. Cantor: I'm going to suggest to Your Honor that it does, and the reason that it does is because it requires identification information, and that identification information is necessary regardless of whether someone is going to solicit funds, or whether or not he is going to go door to door for some other purpose, as a pretext.

Unidentified Justice: Well, what about using the telephone?

I... you know, that's a common ploy of people who want to commit a crime.

You know, my car broke down, can I use the telephone.

Is there a risk of that?

Of course.

Of course there's a risk.

So should you require everybody who rings a doorbell to get finger-printed at city hall before you 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.

Mr. Cantor: The determination of the nature and the amount of risk is perhaps highlighted by MacMurray's testimony.

She found that legislation of this nature had previously been suggested in communities where disasters had occurred.

It was her opinion that, as a result of this type of legislation, that potential fraudulent transactors decided to not register within the community and would bypass it.

In addition, it was an aid to law enforcement in the event that there was, in fact, some type of criminality, and finally, it was an aid to the elderly, and it was an aid to the elderly because it gave them a bright line to determine whether or not the individual before them was one that was properly registered.

In otherwise, it heightened the awareness of the propriety of the individual at the door.

Both the district court as well as the Sixth Circuit Court of Appeals determined that this was content-neutral legislation, that it applied to the parties in this case--

Unidentified Justice: Well, McIntyre suggests that an anonymity requirement makes it content-based.

What are we to do about that?

Mr. Cantor: --Your Honor, the issue in... at the registration aspect deals with that we are not at the point of persuasion.

McIntyre was a automatic inclusure of information when the reader took the document and was attempted to be persuaded.

The pre-registration format is probably closer to Buckley, where that is the other end of the book end, where this is not at the point of persuasion.

Buckley is after the persuasion occurs, so we would suggest to you that it is appropriate to register in advance of going door to door to prove the purpose of the ordinance.

Unidentified Justice: Well, the disclosure means that it certainly is not anonymous.

How do we resolve the dispute on what the permit has to contain, whether it contains the name or not?

Mr. Cantor: Your Honor, I would suggest that you would resolve it based on the record.

The record identifies the permit.

The record identifies an identification of that permit, which is the testimony of the village's mayor, and it is found at page 386 of the joint appendix.

That is the only information concerning the identification of the permit.

Unidentified Justice: Well, we're not supposed to be resolving these back-door questions.

In the first instance you can't tell from that form whether it has an applicant's name or a number or nothing.

Mr. Cantor: Your Honor, this case was tried on the registration requirement.

This, we would suggest to you, is a belated attempt on the issue of the content of the permit to bring it before the Court.

Unidentified Justice: Well--

--You mean, it originally was that they just didn't want to register, anonymous or not?

Mr. Cantor: No, Your Honor.

The attack was always on the registration issue.

The attack was always to determine whether or not they were included within the phraseology--

Unidentified Justice: Right.

Right.

Mr. Cantor: --of the language.

Unidentified Justice: Well, the question we took refers to display upon demand.

Mr. Cantor: The permit--

Unidentified Justice: We've not limited the case to that.

Mr. Cantor: --The display, there is a display of the permit required on demand.

Unidentified Justice: One of the things in this record that you did delete, at one time you gave the homeowners a choice specifically of Jehovah Witnesses in or out, but--

Mr. Cantor: Yes, Your Honor.

Unidentified Justice: --And that, now you've deleted that, but could the village say to the homeowner, it's your choice, you tell us who you want and you don't want, and we'll enforce that, so if you don't want the Jehovah Witnesses you don't have to have them, you don't want the Democrats you don't have to have them?

Would that be permissible for the village to do to facilitate the homeowner's choice?

Mr. Cantor: The village would be acting as a bulletin board.

It would be the homeowner, the private resident would be making a determination as to who would be making the content, so in that type of a context--

Unidentified Justice: And the village could enforce that private discrimination?

Mr. Cantor: --Your Honor, there is no requirement that anyone decide that anyone allow someone else to come into their home whether for a good or a bad purpose.

The individual has the right to exclude even valid ideas from their home place.

It is the privacy issue here that we are suggesting--

Unidentified Justice: Does the State... when the State assists that private choice... we're talking about limitations on the State, not on the homeowner.

Mr. Cantor: --Well, we're only assisting... the prior cases that this Court has considered deals with the Government being some type of a censor or a limiter of the speech that is going.

Stratton doesn't do that.

Instead, it says, everyone's going to come to your door unless you register to indicate no solicitation.

At that point in time, the identification of who can come to the door is identified by the resident of that dwelling.

That information is provided to the person who is going door to door not to go to this particular place if you fall within the framework.

Unidentified Justice: Suppose the homeowner said, only Caucasian solicitors?

Mr. Cantor: No, I believe that that would be invalid on its face.

The... it would not be different from something in a title search situation, where there would be something, a remnant from the forties.

Unidentified Justice: How is that any different from no Jehovah Witnesses?

Mr. Cantor: Because the issue there is that this is a speech that is not... that they do not wish to accept.

Unidentified Justice: That's very nice.

I don't know.

I don't know.

We have general trespass laws, and I suppose if somebody doesn't want a Jehovah's Witness to trespass and is perfectly willing to let everybody else trespass, I guess the State might enforce that.

I don't know.

Mr. Cantor: Well, the issue here, Your Honor, is dealing with whether or not this is a consensual intrusion.

If it's with consent, then there is no trespass.

With regard to no solicitation, it should be reminded that the record below would indicated that the Jehovah Witnesses do not consider themselves as solicitors, and therefore would not abide by a no solicitation sign, and that... they, however, would abide by a no trespassing sign.

Unidentified Justice: I take it there are many gated, so-called private communities where the solicitor can never go in at all.

I don't know, maybe that... I assume that's the way they work.

I'm not sure.

Mr. Cantor: In the Village of Stratton--

Unidentified Justice: And in a sense, I guess you're just trying to give your residents the protection that people have when they live in a closed-in place.

Mr. Cantor: --That would be appropriate to compare it to.

Unidentified Justice: Although I don't... I haven't seen any cases.

That would be like Marsh v. Alabama, perhaps.

Mr. Cantor: Thank you, Your Honor.

Thank you.

Unidentified Justice: Thank you, Mr. Cantor.

We'll hear from you, Mr. Gormley.

ORAL ARGUMENT OF DAVID M. GORMLEY ON BEHALF OF OHIO, ET AL., AS AMICUS CURIAE, SUPPORTING THE RESPONDENTS

Mr. Gormley: Mr. Chief Justice, and may it please the Court:

The ordinance in this case differs from the statute in McIntyre in two critical ways.

First, it applies only when someone goes onto the private property of a village resident.

Of course, in McIntyre, that Ohio statute required Mrs. McIntyre to put her name on a piece of paper wherever she wanted to distribute it, on a public sidewalk, even in her own home, outside a polling place, anywhere.

This ordinance is much more narrow.

It only applies when the speaker wants to go onto someone else's private property.

Unidentified Justice: Not necessarily.

I mean, you're envisioning little cottages with a pathway up to the door.

Don't you have anybody who's in an apartment building, where the Jehovah's Witness knocks on the door?

He's not on that person's private property.

He just knocks on the door.

Mr. Gormley: But Your Honor, the ordinance--

Unidentified Justice: Or maybe another house, that they don't have a setback restriction, the door is right, you know, right on the public sidewalks, knocks on the door.

Mr. Gormley: --But the point is, Your Honor, the ordinance is designed to protect the concerns that village residents have, no matter how much space is between them and a sidewalk.

Unidentified Justice: That's a different point, but I mean, I don't think you can say that the difference is that this involves only speech that occurs on private property, not necessarily.

Not necessarily.

Mr. Gormley: Nonetheless, Your Honor, the point would be that when someone knocks on a door, no matter how far away they are from a sidewalk or a street, there is concern on the part of the resident that this often a stranger, certainly an uninvited person, is here on my property, perhaps just a few inches away from a public way, but nonetheless coming to my home, perhaps asking to actually enter my home, and I think the village is entitled to say, we're concerned about that kind of activity.

Unidentified Justice: Oh, you're concerned about people who were even not concerned about it.

I mean, that's the problem.

Those people that are concerned can put up a sign that says, no solicitors, but the village is saying even those people who welcome Jehovah Witnesses, they're sitting their lonely, they would love to talk to somebody about anything--

[Laughter]

--and these people still have to go register with the mayor to get the privilege of ringing their doorbell.

Mr. Gormley: But Your Honor, that's no different than the Frisby case decided by this Court 14 years ago.

It may well be that some people are not concerned about picketing outside a home.

Nonetheless, the Court upheld an ordinance there that was content-neutral and so described by the Court, and said a village, a city was entitled to enforce it.

The same is true--

Unidentified Justice: Well, we have always said that picketing is an activity which is focused, it's constant, it repeats a message over a long period of time, and that's simply different from a single encounter, which is what you prevent.

Mr. Gormley: --Nonetheless, I think in both situations, Your Honor, the Government is rightly concerned about an activity that causes some public problem.

In the one case, certainly annoyance of a continuous nature, in the other, natural fear on the part of people when some uninvited person shows up on their property, and--

Unidentified Justice: But that is met, as has already been pointed out, by the opportunity to put up a no-trespassing, no solicitor sign.

Mr. Gormley: --It addresses--

Unidentified Justice: Why does the ordinance have to do more?

Mr. Gormley: --Sure, well, certainly no trespassing signs address some of the problem, but those often provide after-the-fact remedies, if someone actually invades the space you can prosecute, but by then you may well not be able to find the person any more, and even with the no-solicitation registration form that the petitioners have not challenged, that does not protect the person who, for whatever reason, chooses not to put up such a sign.

Perhaps people want to be visited by solicitors once they've registered and, in fact, it may well encourage some people who would otherwise put up a no-solicitation sign on their property to take that down, because they now have confidence in this village that these people are registered, there'll be some way to track them down if something goes wrong.

Unidentified Justice: Well, what standard of review should we apply, do you suppose, in looking at this ordinance?

Mr. Gormley: Well, I think that both of the courts below applied the proper approach.

It's a content-neutral, time, place and manner regulation.

The mayor has no discretion in terms of issuing the permits.

Unidentified Justice: Well, that would be intermediate scrutiny?

Mr. Gormley: That's what the court of appeals called it, Your Honor.

Unidentified Justice: And under that standard, aren't you... the Government required to show that it restricts no more speech than is reasonably necessary to accomplish its interests?

Mr. Gormley: That's correct.

Unidentified Justice: I take it that's the standard?

Mr. Gormley: Yes, Your Honor, and I think that's true here, because every time that someone approaches the private property, comes onto the private property of a village resident, those residents are rightly concerned about who this uninvited person is, and what are they going--

Unidentified Justice: Why couldn't you serve all those purposes if you just print up some signs that people can put up if they want saying, no canvassers without a permit.

People who want to get all that assurance can get it, people who don't, don't have to.

Mr. Gormley: --But I think the village rightly is concerned with having some information--

Unidentified Justice: Given, say, the imaginary signs, what is the purpose?

What is the purpose to require them just to come down to the mayor?

Mr. Gormley: --Because it gives some record on file about who these people are, thereby giving village residents a little greater sense of security that if something goes wrong when this person is on my land, I'm not going to be left without any--

Unidentified Justice: If that person turns out to be a con man, too, it would enable a better chance of locating him to make--

Mr. Gormley: --Absolutely.

In the worst case scenario though, the purposes are certainly clear, I think.

Unidentified Justice: --Can you give me an example of a con man who doesn't want any money or anything else?

[Laughter]

Mr. Gormley: Oh... just coming into--

Unidentified Justice: We're serious.

Mr. Gormley: --into your house, maybe he wants to steal your property.

I don't know if that's necessarily taking money, but he might want to come in and--

Unidentified Justice: Potential thief, a person--

Mr. Gormley: --Sure.

Unidentified Justice: --A potential thief who is willing to rape and burgle, but stops short of failing to register at city hall, right?

[Laughter]

Mr. Gormley: Your Honor--

Unidentified Justice: This gives your citizens treat confidence that--

[Laughter]

Mr. Gormley: --But, Your Honor, I think the fact that the ordinance is not going to catch everyone who's going to do something wrong doesn't mean that the village is not entitled to try to do something to give its residents some comfort.

You probably passed people this morning on the highway who don't have a license to drive.

It doesn't mean the Government can't--

Unidentified Justice: The question is, how much?

How necessary is it?

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.

Mr. Gormley: --I think it does, Your Honor, and it's a very modest restriction.

Remember, there's nothing that the mayor can do to prevent someone from getting the permit.

It's essentially a declaration that I intend to go door to door in your community, and whether the mayor wants to give it out or not, he's going to do it, but that seems to me much different than a--

Unidentified Justice: It's 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.

Mr. Gormley: --Well, but I think, Your Honor, it's a... it shows that this village is perhaps trying to take some proactive steps that other communities have not to try--

Unidentified Justice: Do we know where the village got it from?

I don't think it was original with this village, was it?

Mr. Gormley: --I'm not sure.

In Richard Riordo's amicus brief, he refers to similar ordinances in Plano, Texas, Oshkosh, Wisconsin, and Grand Rapids Township, Michigan.

I believe that the village solicitor... and odd title, the village's attorney came up with the draft of this ordinance on his own.

There had been, as I understand it, similar ordinances in this village dating back into the forties.

My guess as they probably had the same defects that Cantwell and other ordinances had.

Unidentified Justice: The mayor here said in his testimony... it's on 385a of the... I've never... I never have denied anybody a permit.

Nobody has ever asked for one.

[Laughter]

Mr. Gormley: I think--

Unidentified Justice: That's extraordinary.

Mr. Gormley: --I think he was speaking about the Jehovah's Witnesses, Your Honor.

At the time of the hearing in the district court, six people had requested permits and received them.

Those begin on page 230 of the joint appendix.

I believe now 15 people have received permits.

Unidentified Justice: Could the city say, to facilitate the homeowners' choice, we're going to say, nobody rings bells for anything, but the homeowner... make the homeowner the one to come to sign up in city hall to say, "I don't mind having solicitors"?

Mr. Gormley: Certainly that's the part of the ordinance that the petitioners have not challenged here.

Homeowners can both post the no--

Unidentified Justice: But suppose, in order to meet the objection that the solicitors don't want to sign up, or the canvassers don't want to sign up, the city says, well, we'll just have a total ban on ringing doorbells, but any homeowner who wants to have it can?

Mr. Gormley: --I mean, given your... the Court's decision in Martin, I'd be hesitant to say you can have an outright ban on ringing doorbells or knocking.

Unidentified Justice: Thank you, Mr. Gormley.

Mr. Gormley: Thank you, Your Honor.

Unidentified Justice: Mr. Polidoro, you have 4 minutes.

REBUTTAL ARGUMENT OF PAUL D. POLIDORO ON BEHALF OF THE PETITIONERS

Mr. Polidoro: Thank you, Mr. Chief Justice.

If I make a few points, please.

Justice O'Connor asked a question as to whether this would apply to trick-or-treaters.

I open to the joint appendix, page 199, which is one of the no-solicitation registration forms, Your Honor.

Indeed, trick-or-treaters are... and specifically, point 13, trick-or-treaters during Halloween are mentioned, so they're encompassed under the ordinance.

Too, I heard a point being made about the ordinance being a way to help track down the bad guys.

There's no independent verification mechanism in this ordinance at all.

I can go to the village hall and say I'm Abraham Cantor and get a permit and go from door to door.

Mr. Bruzzese at page, transcript page 174, and Ms. MacMurray, page 478a, both recognized the ordinance has no verification mechanism to tie in to the person who's asking for the permit.

With respect to discretion, Mayor Abdullah testified that... and this is in the transcript, pages 124 and 126, that if someone came, gave their name, address, cause, and said they were unaffiliated with an organization, he would likely not issue a permit to them.

We believe that this is manifestly exercise of discretion.

And lastly, Your Honors, I've heard our door-to-door activity be referred to as an annoyance to be compared to obnoxious picketing at the home.

I respectfully suggest that our activity indeed lies at the heart of the First Amendment.

Unidentified Justice: I wanted to ask you, if you're through--

Mr. Polidoro: Yes.

Unidentified Justice: --I don't want to take your rebuttal time... as I looked at page 199 and I thought that was a list of exceptions to the ordinance.

Mr. Polidoro: It is, and what--

Unidentified Justice: So that in other words the trick-or-treaters are expressly excepted, just like Christmas carollers and the others listed.

Mr. Polidoro: --Well, what had happened there, Justice Stevens, they would be accepted if the box was checked and they were allowed, and on that particular form, no one was allowed at the door.

Unidentified Justice: You mean the person applying for the ordinance has to check all these things to be... I don't quite understand how it--

Mr. Polidoro: No, what--

Unidentified Justice: --This is the homeowner who allows certain solicitations.

This is the homeowner's form.

Mr. Polidoro: --That's the homeowner's form.

Chief Justice Rehnquist: Thank you, Mr. Polidoro.

Mr. Polidoro: Thank you.

Chief Justice Rehnquist: The case is submitted.