H. Permit Requirement for Solicitors Is Constitutional, Court Rules

     The U.S. Court of Appeals for the Sixth Circuit upheld the constitutionality of an ordinance requiring door-to-door solicitors to obtain a permit from the local government.  The court rejected the claims of a religious group that the permit requirement would prohibit political speech and deny the free exercise of religion.  Watchtower Bible and Tract Society of New York v. Village of Stratton, Ohio, 240 F.3d 553 (6th Cir. 2001).

     The Village of Stratton, Ohio, enacted an ordinance requiring “canvassers, solicitors, peddlers, [or] hawkers” who go on private residential property for the “purpose of advertising, promoting, selling and/or explaining any product, service, organization or cause” to obtain a permit by filling out a registration form.  The application asks about their cause, why they are canvassing, and “other information” concerning them and their business or purpose “as may be reasonably necessary to accurately describe the nature of the privilege desired.”  No fee is charged for the permit.  Failure to comply with the ordinance constitutes a misdemeanor of the fourth degree.

     The plaintiff, a religious organization, challenged the ordinance as violative of First Amendment guarantees of freedom of speech and of religion.  The group argued that the ordinance should be subject to judicial strict scrutiny, which would result in a declaration of its facial unconstitutionality.  The organization sought an injunction barring enforcement of the ordinance entirely, or at least as applied to the group itself.

     The Sixth Circuit, by a split vote, rejected the religious organization’s claims.  Regarding the free speech argument, the court ruled that the ordinance was content neutral and of general applicability because on its face it requires all potential canvassers to register, irrespective of the content of their message.  In addition, there was no evidence in the record that the village’s purpose was to regulate speech based on the message it conveys.  Instead, the record reflected that the village’s principal objectives were to prevent fraud against its residents and to protect their privacy interests.  The appeals court therefore applied an intermediate scrutiny standard.

     The court then considered the facial challenge and rejected the overbreadth claim.  The plaintiff had argued that the ordinance would have the effect of prohibiting political speech because the statute stripped away the canvassers’ anonymity as in McIntyre v. Ohio, 514 U.S. 334 (1995).  But the court distinguished McIntyre on the basis that face-to-face solicitation voluntarily and inherently compromises an individual’s anonymity.  As to the plaintiff’s claim of vagueness, the court found all of the operative terms clear and beyond misunderstanding.

      Regarding the “as applied” challenge, the plaintiff argued that the village had no significant interest to promote: First, the village’s interest in protecting its residents from annoyance was simply not significant.  Second, while the interest in preventing fraud was significant, the village had not shown that there was a real threat of fraud to its citizens.  The plaintiff also argued that the ordinance was not narrowly tailored because it did not leave open ample alternative channels of communication.

     The Sixth Circuit disagreed, saying that protecting people in their homes from fraud and undue annoyance are sufficient interests.  It added that the evidence of potential fraud in the record was overwhelming.  The appeals court also held that the ordinance left open ample alternatives of communication and, indeed, the ordinance did not foreclose the option of solicitors and canvassers going door-to-door so long as they registered first.  Furthermore, there were several alternatives to door-to-door contact, since the plaintiff could spread its religious message at stores, street corners, parks, and other public forums.

     As to the plaintiff’s claim that the ordinance denied it the free exercise of religion, the appeals court said the plaintiff offered no arguments to support that claim.