Door-to-Door Solicitation.—In one of the Jehovah’s Witness cases, the Court struck down an ordinance forbidding solicitors or distributors of literature from knocking on residential doors in a community, the aims of the ordinance being to protect privacy, to protect the sleep of many who worked night shifts, and to protect against burglars posing as canvassers. The five-to-four majority concluded that on balance “[t]he dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.”1305
More recently, while striking down an ordinance because of vagueness, the Court observed that it “has consistently recognized a municipality’s power to protect its citizens from crime and undue annoyance by regulating soliciting and canvassing. A narrowly drawn ordinance, that does not vest in municipal officers the undefined power to determine what messages residents will hear, may serve these important interests without running afoul of the First Amendment.”1306 The Court indicated that its precedents supported measures that would require some form of notice to officials and the obtaining of identification in order that persons could canvas house-to-house for charitable or political purposes.
However, an ordinance that limited solicitation of contributions door-to-door by charitable organizations to those which use at least 75% of their receipts directly for charitable purposes, defined so as to exclude the expenses of solicitation, salaries, overhead, and other administrative expenses, was invalidated as overbroad.1307 A privacy rationale was rejected, inasmuch as just as much intrusion was likely by permitted as by non-permitted solicitors. A rationale of prevention of fraud was unavailing, inasmuch as it could not be said that all associations that spent more than 25% of their receipts on overhead were actually engaged in a profit making enterprise, and, in any event, more narrowly drawn regulations, such as disclosure requirements, could serve this governmental interest.
1305 Martin v. City of Struthers, 319 U.S. 141, 147 (1943).
1306 Hynes v. Mayor of Oradell, 425 U.S. 610, 616-17 (1976). Justices Brennan and Marshall did not agree with the part of the opinion approving the regulatory power. Id. at 623.
1307 Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980). See also Larson v. Valente, 456 U.S. 228 (1982) (state law distinguishing between religious organizations and their solicitation of funds on basis of whether organizations received more than half of their total contributions from members or from public solicitation violates establishment clause). Meyer v. Grant, 486 U.S. 414 (1988) (criminal penalty on use of paid circulators to obtain signatures for ballot initiative suppresses political speech in violation of First and Fourteenth Amendments).
Schaumburg was extended in Secretary of State of Maryland v. Joseph H. Munson Co.,1308 and Riley v. National Federation of the Blind.1309 In Munson the Court invalidated a Maryland statute limiting professional fundraisers to 25% of the amount collected plus certain costs, and allowing waiver of this limitation if it would effectively prevent the charity from raising contributions. And in Riley the Court invalidated a North Carolina fee structure containing even more flexibility.1310 The Court sees “no nexus between the percentage of funds retained by the fundraiser and the likelihood that the solicitation is fraudulent,” and is similarly hostile to any scheme that shifts the burden to the fundraiser to show that a fee structure is reasonable.1311 Moreover, a requirement that fundraisers disclose to potential donors the percentage of donated funds previously used for charity was also invalidated in Riley, the Court indicating that the “more benign and narrowly tailored” alternative of disclosure to the state (accompanied by state publishing of disclosed percentages) could make the information publicly available without so threatening the effectiveness of solicitation.1312
In Watchtower Bible and Tract Society v. Village of Stratton, the Court struck down an ordinance that made it a misdemeanor to engage in door-to-door advocacy—religious, political, or commercial—without first registering with the mayor and receiving a permit.1313 “It is offensive to the very notion of a free society,” the Court wrote, “that a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.”1314 The ordinance violated the right to anonymity, burdened the freedom of speech of those who hold “religious or patriotic views” that prevent them from applying for a license, and effectively banned “a significant amount of spontaneous speech” that might be engaged in on a holiday or weekend when it was not possible to obtain a permit.1315
1308 467 U.S. 947 (1984).
1309 487 U.S. 781 (1988).
1310 A fee of up to 20% of collected receipts was deemed reasonable, a fee between 20 and 35% was permissible if the solicitation involved advocacy or the dissemination of information, and a fee in excess of 35% was presumptively unreasonable, but could be upheld upon one of two showings: that advocacy or dissemination of information was involved, or that otherwise the charity’s ability to collect money or communicate would be significantly diminished.
1311 487 U.S. at 793.
1312 487 U.S. at 800. North Carolina’s requirement for licensing of professional fundraisers was also invalidated in Riley, id. at 801-02. In Illinois ex rel. Madigan v. Telemarketing Assocs., 538 U.S. 600 (2003), the Court held unanimously that the First Amendment does not prevent a state from bringing fraud actions against charitable solicitors who falsely represent that a “significant” amount of each dollar donated would be used for charitable purposes.
1313 122 S. Ct. 2080 (2002).
1314 122 S. Ct. at 2089.
1315 122 S. Ct. at 2090.
Last modified: June 9, 2014