240 F.3d 553, reversed and remanded.
[ Stevens ]
[ Breyer ]
[ Scalia ]
[ Rehnquist ]
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Rehnquist, C. J., dissenting


No. 00—1737



[June 17, 2002]

Chief Justice Rehnquist, dissenting.

Stratton is a village of 278 people located along the Ohio River where the borders of Ohio, West Virginia, and Pennsylvania converge. It is strung out along a multilane highway connecting it with the cities of East Liverpool to the north and Steubenville and Weirton, West Virginia, to the south. One may doubt how much legal help a village of this size has available in drafting an ordinance such as the present one, but even if it had availed itself of a battery of constitutional lawyers, they would have been of little use in the town’s effort. For the Court today ignores the cases on which those lawyers would have relied, and comes up with newly fashioned doctrine. This doctrine contravenes well-established precedent, renders local governments largely impotent to address the very real safety threat that canvassers pose, and may actually result in less of the door-to-door communication that it seeks to protect.

More than half a century ago we recognized that canvassers, “whether selling pots or distributing leaflets, may lessen the peaceful enjoyment of a home,” and that “burglars frequently pose as canvassers, either in order that they may have a pretense to discover whether a house is empty and hence ripe for burglary, or for the purpose of spying out the premises in order that they may return later.” Martin v. City of Struthers, 319 U.S. 141, 144 (1943). These problems continue to be associated with door-to-door canvassing, as are even graver ones.

A recent double murder in Hanover, New Hampshire, a town of approximately 7,500 that would appear tranquil to most Americans but would probably seem like a bustling town of Dartmouth College students to Stratton residents, illustrates these dangers. Two teenagers murdered a married couple of Dartmouth College professors, Half and Susanne Zantop, in the Zantop’s home. Investigators have concluded, based on the confession of one of the teenagers, that the teenagers went door-to-door intent on stealing access numbers to bank debit cards and then killing their owners. See Dartmouth Professors Called Random Targets, Washington Post, Feb. 20, 2002, p. A2. Their modus operandi was to tell residents that they were conducting an environmental survey for school. They canvassed a few homes where no one answered. At another, the resident did not allow them in to conduct the “survey.” They were allowed into the Zantop home. After conducting the phony environmental survey, they stabbed the Zantops to death. See ibid.

In order to reduce these very grave risks associated with canvassing, the 278 “ ‘little people,’ ante, at 12, of Stratton, who, unlike petitioners, do not have a team of attorneys at their ready disposal, see Jehovah’s Witnesses May Make High Court History Again, Legal Times, Feb. 25, 2002, p. 1 (noting that petitioners have a team of 12 lawyers in their New York headquarters), enacted the ordinance at issue here. The residents did not prohibit door-to-door communication, they simply required that canvassers obtain a permit before going door-to-door. And the village does not have the discretion to reject an applicant who completes the application.

The town had little reason to suspect that the negligible burden of having to obtain a permit runs afoul of the First Amendment. For over 60 years, we have categorically stated that a permit requirement for door-to-door canvassers, which gives no discretion to the issuing authority, is constitutional. The District Court and Court of Appeals, relying on our cases, upheld the ordinance. The Court today, however, abruptly changes course and invalidates the ordinance.

The Court speaks of the “historical and analytical backdrop for consideration of petitioners’ First Amendment claim,” ante, at 9. But this “backdrop” is one of longstanding and unwavering approval of a permit requirement like Stratton’s. Our early decisions in this area expressly sanction a law that merely requires a canvasser to register. In Cantwell v. Connecticut, 310 U.S. 296, 306 (1940), we stated that “[w]ithout doubt a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent.” In Murdock v. Pennsylvania, 319 U.S. 105, 116 (1943), we contrasted the license tax struck down in that case with “merely a registration ordinance calling for an identification of the solicitors so as to give the authorities some basis for investigating strangers coming into the community.” And Martin, supra, at 148, states that a “city can punish those who call at a home in defiance of the previously expressed will of the occupant and, in addition, can by identification devices control the abuse of the privilege by criminals posing as canvassers.”

It is telling that Justices Douglas and Black, perhaps the two Justices in this Court’s history most identified with an expansive view of the First Amendment, authored, respectively, Murdock and Martin. Their belief in the constitutionality of the permit requirement that the Court strikes down today demonstrates just how far the Court’s present jurisprudence has strayed from the core concerns of the First Amendment.

We reaffirmed our view that a discretionless permit requirement is constitutional in Hynes v. Mayor and Council of Oradell, 425 U.S. 610 (1976). Hynes, though striking down a registration ordinance on vagueness grounds, noted that “the Court 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 officials the undefined power to determine what messages residents will hear, may serve these important interests without running afoul of the First Amendment.” Id., at 616—617.

The Stratton ordinance suffers from none of the defects deemed fatal in these earlier decisions. The ordinance does not prohibit door-to-door canvassing; it merely requires that canvassers fill out a form and receive a permit. Cf. Martin, supra. The mayor does not exercise any discretion in deciding who receives a permit; approval of the permit is automatic upon proper completion of the form. Cf. Cantwell, supra. And petitioners do not contend in this Court that the ordinance is vague. Cf. Hynes, supra.

Just as troubling as the Court’s ignoring over 60 years of precedent is the difficulty of discerning from the Court’s opinion what exactly it is about the Stratton ordinance that renders it unconstitutional. It is not clear what test the Court is applying, or under which part of that indeterminate test the ordinance fails. See ante, at 13 (finding it “unnecessary … to resolve” what standard of review applies to the ordinance). We are instead told that the “breadth of speech affected” and “the nature of the regulation” render the permit requirement unconstitutional. Ante, at 13. Under a straightforward application of the applicable First Amendment framework, however, the ordinance easily passes muster.

There is no support in our case law for applying anything more stringent than intermediate scrutiny to the ordinance. The ordinance is content neutral and does not bar anyone from going door-to-door in Stratton. It merely regulates the manner in which one must canvass: A canvasser must first obtain a permit. It is, or perhaps I should say was, settled that the “government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’ Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Community for Creative Non&nbhyph;Violence, 468 U.S. 288, 293 (1984)). Earlier this Term, the Court reaffirmed that this test applies to content-neutral time, place, or manner restrictions on speech in public forums. See Thomas v. Chicago Park Dist., 534 U.S. 316 (2002).

The Court suggests that Stratton’s regulation of speech warrants greater scrutiny. Ante, at 13. But it would be puzzling if regulations of speech taking place on another citizen’s private property warranted greater scrutiny than regulations of speech taking place in public forums. Common sense and our precedent say just the opposite. In Hynes, the Court explained: “ ‘Of all the methods of spreading unpopular ideas, [house-to-house canvassing] seems the least entitled to extensive protection. The possibilities of persuasion are slight compared with the certainties of annoyance. Great as is the value of exposing citizens to novel views, home is one place where a man ought to be able to shut himself up in his own ideas if he desires.’ ” 425 U.S., at 619 (quoting Z. Chafee, Free Speech in the United States 406 (1954)). In Ward, the Court held that intermediate scrutiny was appropriate “even in a public forum,” 491 U.S., at 791 (emphasis added), appropriately recognizing that speech enjoys greater protection in a public forum that has been opened to all citizens, see ibid. Indeed, we have held that the mere proximity of private residential property to a public forum permits more extensive regulation of speech taking place at the public forum than would otherwise be allowed. See Frisby v. Schultz, 487 U.S. 474, 483—484 (1988). Surely then, intermediate scrutiny applies to a content-neutral regulation of speech that occurs not just near, but at, another citizen’s private residence.

The Stratton regulation is aimed at three significant governmental interests: the prevention of fraud, the prevention of crime, and the protection of privacy.1 The Court concedes that “in light of our precedent, … these are important interests that [Stratton] may seek to safeguard through some form of regulation of solicitation activity.” Ante, at 13. Although initially recognizing the important interest in preventing crime, the Court later indicates that the “absence of any evidence of a special crime problem related to door-to-door solicitation in the record before us” lessens this interest. Ante, at 17—18. But the village is entitled to rely on our assertion in Martin that door-to-door canvassing poses a risk of crime, see Erie v. Pap’s A. M., 529 U.S. 277, 297 (2000) (citing Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)), and the experience of other jurisdictions with crime stemming from door-to-door canvassing, see 529 U.S., at 297; Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 393, n. 6 (2000).

The double murder in Hanover described above is but one tragic example of the crime threat posed by door-to-door canvassing. Other recent examples include a man soliciting gardening jobs door-to-door who tied up and robbed elderly residents, see Van Derbken, 98-Year-Old Latest Victim in Series of Home Invasions, San Francisco Chronicle, Sept. 13, 2000, p. A18, a door-to-door vacuum cleaner salesman who raped a woman, see Employers Liable for Rape by Salesman, Texas Lawyer, Jan. 11, 1999, p. 2, and a man going door-to-door purportedly on behalf of a church group who committed multiple sexual assaults, see Ingersoll, Sex Crime Suspect Traveled with Church Group, Wis. State Journal, Feb. 19, 2000, p. 1B. The Constitution does not require that Stratton first endure its own crime wave before it takes measures to prevent crime.

What is more, the Court soon forgets both the privacy and crime interests. It finds the ordinance too broad because it applies to a “significant number of non-commercial ‘canvassers.’ Ante, at 14. But noncommercial canvassers, for example, those purporting to conduct environmental surveys for school, see supra, at 2, can violate no trespassing signs and engage in burglaries and violent crimes just as easily as commercial canvassers can. See Martin, 319 U.S., at 144 (canvassers, “whether selling pots or distributing leaflets, may lessen the peaceful enjoyment of a home” and “sp[y] out” homes for burglaries (emphasis added)). Stratton’s ordinance is thus narrowly tailored. It applies to everyone who poses the risks associated with door-to-door canvassing, i.e., it applies to everyone who canvasses door-to-door. The Court takes what should be a virtue of the ordinance–that it is content neutral, cf. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996) (“[O]ur commercial speech cases have recognized the dangers that attend governmental attempts to single out certain messages for suppression”)–and turns it into a vice.

The next question is whether the ordinance serves the important interests of protecting privacy and preventing fraud and crime. With respect to the interest in protecting privacy, the Court concludes that “[t]he annoyance caused by an uninvited knock on the front door is the same whether or not the visitor is armed with a permit.” Ante, at 17. True, but that misses the key point: the permit requirement results in fewer uninvited knocks. Those who have complied with the permit requirement are less likely to visit residences with no trespassing signs, as it is much easier for the authorities to track them down.

The Court also fails to grasp how the permit requirement serves Stratton’s interest in preventing crime.2 We have approved of permit requirements for those engaging in protected First Amendment activity because of a common-sense recognition that their existence both deters and helps detect wrongdoing. See, e.g., Thomas v. Chicago Park Dist., 534 U.S. 316 (2002) (upholding a permit requirement aimed, in part, at preventing unlawful uses of a park and assuring financial accountability for damage caused by the event). And while some people, intent on committing burglaries or violent crimes, are not likely to be deterred by the prospect of a misdemeanor for violating the permit ordinance, the ordinance’s effectiveness does not depend on criminals registering.

The ordinance prevents and detects serious crime by making it a crime not to register. Take the Hanover double murder discussed earlier. The murderers did not achieve their objective until they visited their fifth home over a period of seven months. If Hanover had a permit requirement, the teens may have been stopped before they achieved their objective. One of the residents they visited may have informed the police that there were two canvassers who lacked a permit. Such neighborly vigilance, though perhaps foreign to those residing in modern day cities, is not uncommon in small towns. Or the police on their own may have discovered that two canvassers were violating the ordinance. Apprehension for violating the permit requirement may well have frustrated the teenagers’ objectives; it certainly would have assisted in solving the murders had the teenagers gone ahead with their plan.3

Of course, the Stratton ordinance does not guarantee that no canvasser will ever commit a burglary or violent crime. The Court seems to think this dooms the ordinance, erecting an insurmountable hurdle that a law must provide a fool-proof method of preventing crime. In order to survive intermediate scrutiny, however, a law need not solve the crime problem, it need only further the interest in preventing crime. Some deterrence of serious criminal activity is more than enough to survive intermediate scrutiny.

The final requirement of intermediate scrutiny is that a regulation leave open ample alternatives for expression. Undoubtedly, ample alternatives exist here. Most obviously, canvassers are free to go door-to-door after filling out the permit application. And those without permits may communicate on public sidewalks, on street corners, through the mail, or through the telephone.

Intermediate scrutiny analysis thus confirms what our cases have long said: A discretionless permit requirement for canvassers does not violate the First Amendment. Today, the Court elevates its concern with what is, at most, a negligible burden on door-to-door communication above this established proposition. Ironically, however, today’s decision may result in less of the door-to-door communication that the Court extols. As the Court recognizes, any homeowner may place a “No Solicitation” sign on his or her property, and it is a crime to violate that sign. Ante, at 17. In light of today’s decision depriving Stratton residents of the degree of accountability and safety that the permit requirement provides, more and more residents may decide to place these signs in their yards and cut off door-to-door communication altogether.


1. Of course, fraud itself may be a crime. I assume, as does the majority, that the interest in preventing “crime” refers to a separate interest in preventing burglaries and violent crimes.

2. It is sufficient that the ordinance serves the important interest of protecting residents’ privacy. A law need only serve a governmental interest. Because the Court’s treatment of Stratton’s interest in preventing crime gives short shrift to Stratton’s attempt to deal with a very serious problem, I address that issue as well.

3. Indeed, an increased focus on apprehending criminals for “petty” offenses, such as not paying subway fares, is credited with the dramatic reduction in violent crimes in New York City during the last decade. See, e.g., M. Gladwell, The Tipping Point: How Little Things Can Make a Big Difference (2000). If this works in New York City, surely it can work in a small village like Stratton.