Watchtower Bible v. Stratton
"Anonymity is a shield from the tyranny of the majority ... It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation--and their ideas from suppression--at the hand of an intolerant society."
Supreme Court Upholds Anonymity, Free Speech. The Supreme Court ruled today that an ordinance requiring door-to-door petitioners to obtain a permit and identify themselves upon demand violates the right of anonymity inherent in the First Amendment freedom of speech. In November 2001, EPIC, the ACLU, and 14 legal scholars filed an amicus curiae brief (PDF), arguing that the ordinance implicates privacy, as well as the First Amendment rights of anonymity, expression, and freedom of association. (June 17, 2002)
Anonymity--the ability to conceal one's identity while communicating--enables the expression of political ideas, participation in the government process, membership in political associations, and the practice of religious belief without fear of government intimidation or public retaliation.
In three cases, spanning from 1960 to 1999, the Supreme Court has reaffirmed the principle that sacrificing anonymity "might deter perfectly peaceful discussions of public matters of importance."
Disclosure laws have been upheld only where there is a compelling government interest at stake, such as assuring the integrity of the election process by requiring campaign contribution disclosures.
In the 1930s and 1940s, a series of Supreme Court cases involving the Jehovah's Witnesses established many of the civil liberties the average American now enjoys. More than any other religious group, the Jehovah's Witnesses have had a profound effect on religious freedom and free-speech issues in the United States.
"The cases that the Witnesses were involved in formed the bedrock of 1st Amendment protections for all citizens," said Paul Polidoro, a lawyer for the Watchtower Bible and Tract Society of New York,. "These cases were a good vehicle for the courts to address the protections that were to be accorded free speech, the free press and free exercise of religion.
Additionally, the cases marked the emergence of individual rights as an issue within the U.S. court system. The debate in Watchtower v. Stratton is almost a direct result of Cantwell v. Connecticut, a 1940 decision in which three Jehovah's Witnesses, Newton Cantwell and his two sons, were convicted of unlicensed soliciting of funds for charitable or religious purposes. A Connecticut statute required licenses for those soliciting for religious or charitable purposes. The Cantwells said they did not get a license because they did not believe the government had the right to determine whether the Witnesses were a religion. They maintained the statute denied the trio their due process rights under the 14th Amendment, and it also denied them their freedom of speech and religious expression.
The U.S. Supreme Court agreed. Justice Owen Roberts wrote in an unanimous opinion that "to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution." The Cantwell decision marked the first time the U.S. Supreme Court incorporated the free exercise clause into the 14th Amendment, something it would do from that time forward.
Following Cantwell, the free-speech cases involving Jehovah's Witnesses rolled on. In 1943 alone, three major decisions were decided in favor of the organization that had far broader implications for free speech. In May, the Court overturned a year-old decision in Jones v. Opelika and declared it unconstitutional to charge a flat fee to distribute literature.
"Freed from that controlling precedent," wrote Justice William O. Douglas, "we can restore to their high, constitutional position the liberties of itinerant evangelists who disseminate their religious beliefs and the tenets of their faith through distribution of literature."
In the same decision, in the companion case, Murdock v. Commonwealth of Pennsylvania, the majority also said found that a Pennsylvania town could not tax the distribution of Jehovah's Witness books and pamphlets.
In West Virginia State Board of Education v. Barnette, the Court reversed a 1940 decision that said it was constitutional for a school to compel students to salute the flag, a decision that has direct bearing on the current political climate.
The case concerns an ordinance requiring that door-to-door petitioners obtain a permit and identify themselves upon demand. The legal representatives of Watchtower filed suit against the village contesting the requirement that individuals need a permit to engage in door-to-door activity. Both the District Court and the Court of Appeals upheld the village requirement.
In 1998, the village of Stratton, Ohio, passed an ordinance designed to regulate canvassing and soliciting of its residents at their homes. The ordinance required would-be canvassers to obtain a permit at no cost from the village. The ordinance required canvassers to carry their permits when they go door-to-door and show their identification when asked by either the police or a resident. The ordinance imposed criminal penalties on those who failed to comply.
In June 1999, the Watchtowers Bible and Tract Society of New York Inc. and individual Jehovah's Witnesses sued in federal court, seeking a declaration that the ordinance violated the First Amendment. They argued it infringed on their free-speech, free-press, free-association and free exercise of religion rights. They also argued that the ordinance was unconstitutional because it infringed on the right to engage in anonymous speech.
In August 1999, U.S. District Judge Edmund A. Sargus Jr. ruled that the ordinance validly applied to the Jehovah's Witnesses, who were "canvassers" who went to homes for the purpose of "explaining their cause."
On February 20, a three-judge panel of the 6th Circuit upheld the remaining portions of the ordinance in a 2-1 opinion. The court determined that the ordinance applied generally to everyone, rather than specifically targeting Jehovah's Witnesses. Furthermore, the court determined that the ordinance was designed to help prevent fraud and to protect residential privacy--both significant government interests. The court rejected the anonymity argument, finding that the canvassers already lose their anonymity when they reveal their physical identities at residents' doorsteps.
On October 15, 2001, the Supreme Court granted Watchtower's request for review. The Court heard oral arguments February 26, 2002.
On June 17, 2001, the Court ruled 8-1 that the ordinance violated the First Amendment. The Court stated that "it is offensive, not only to the values protected by the First Amendment, but to the very notion of a free society, that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so."
EPIC defends Jehovah's Witnesses' First Amendment right to anonymity
On October 15, 2001, the Supreme Court granted Watchtower's request for review. EPIC, the ACLU, and 14 legal scholars filed an amicus curiae brief (PDF) with the Supreme Court in Watchtower Bible v. Stratton, Ohio. EPIC argues that the ordinance implicates privacy, as well as the First Amendment rights of anonymity, expression, and freedom of association.
Supreme Court Briefs
- Brief [pdf] of Watchtower Bible and Tract Society, petitioner
- Brief [pdf] of Stratton, Ohio, respondent
- Reply brief [pdf] of Watchtower Bible and Tract Society, petitioner
- Brief [pdf] of Amicus Curiae EPIC, the ACLU, and 14 Legal Scholars, in support of petitioners
- Brief [pdf] of Amicus Curiae the Center for Individual Freedom (CFIF), in support of petitioners
- Brief [pdf] of Amicus Curiae the RealCampaignReform.org, Inc., Free Speech Defense and Education Fund, Inc., Lincoln Institute for Research and Education, Capitol Hill Prayer Alert Foundation, U.S. Justice Foundation, Gun Owners of America, Inc., and Conservative Legal Defense and Education Fun, in support of petitioners
- Brief [pdf] of Amicus Curiae Independent Baptist Churches of America, in support of petitioners
- Brief [pdf] of Amicus Curiae Brennan Center for Justice, in support of neither party
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Communications Law and Policy
Jerry Kang and Alan Butler