Does the First Amendment Protect Door-to-Door Solicitation?

The free speech clause of the First Amendment to the U.S. Constitution reads:

“Congress shall make no law…abridging the freedom of speech…”

In other words, Congress can’t pass laws restricting our First Amendment right to free speech.

What Does First Amendment Free Speech Mean?

The U.S. Supreme Court has interpreted the First Amendment, along with the Fourteenth Amendment’s due process clause. It has been determined that this limitation on Congress extends to government action of any type and at any level.

Thus, the First Amendment protects our right to free speech by prohibiting government action restricting this right.

This is generally applicable to government restrictions on private speech. The First Amendment doesn’t constrain government restrictions on government speech. Generally, it does not apply to private restrictions on speech.

For example, private property owners don’t have to allow protestors on their property. Conversely, public areas must generally allow protests as a form of speech or expression protected by the First Amendment.

These First Amendment rights are, of course, not absolute. Supreme Court precedent has established several categories of unprotected speech, including child pornography, true threats, and defamation.  

The Supreme Court has also determined that First Amendment free speech includes the written word, symbolic speech, and other forms of expressive conduct. For example, wearing an armband to protest a war or refusing to salute the American flag are both considered First Amendment-protected speech or expression.

Legal Standards

The Court has also developed frameworks and legal standards for evaluating whether a restriction on speech is consistent with the First Amendment or violates it. They usually weigh the First Amendment rights burdened by a restriction against the state interests served by the restriction.

Strict scrutiny is the most difficult standard to satisfy. It requires that the restriction serve a compelling government interest in the least restrictive manner available.

Speech restrictions that are content-based are generally subject to strict scrutiny. This is because the unfettered exchange of ideas is fundamental to democracy.

The government may not control or select the messages, matters, and opinions that enter the marketplace of ideas. The First Amendment and the rest of the Bill of Rights were created in part to limit this type of government power and abuse of it.

How Has the Supreme Court Ruled on the Door-To-Door Solicitors and the First Amendment?

Local laws tend to restrict door-to-door solicitation for public safety, fraud prevention, and resident privacy. The Supreme Court has evaluated several such restrictions. Its opinions provide invaluable insight into the extent to which the First Amendment protects this activity.

Martin v. City of Struthers

In 1943, the Supreme Court decided Martin v. City of Struthers. The Martin Court reviewed a local community ordinance that banned knocking on residents’ doors by literature sellers or distributors.

The city claimed the ban served the state's interests in:

• Protecting individual's privacy

• Preventing burglars from pretending to be door-to-door canvassers

• Preserving the sleep of those who work night shifts

In a narrow 5-4 majority, the Court struck down the law as violating the First Amendment. The Court explained that reliance on traditional legal methods should be utilized to control dangers associated with the prohibited activity.

And residents can make their own decisions about whether they’d like to receive strangers at their homes. This strict ban, however, was an unconstitutional burden on speech. It restricted the dissemination of ideas, which is essential for democracy in America and elsewhere.

Murdock v. Pennsylvania

That same year, the Court decided Murdock v. Pennsylvania. The Murdock Court reviewed a local ordinance that taxed contributions collected by a religious organization. Jehovah’s Witness members went door-to-door collecting donations in exchange for literature about their religion.

The state regarded the activity as literature sales. The religious group sued, alleging the ordinance infringed upon First Amendment rights to free speech, a free press, and free exercise of religion.

The Court explained that no one should have to pay a tax for exercising their constitutional rights. And it reasoned that selling literature was as much a part of the Jehovah’s Witnesses’ religion as more traditional notions of worship. Thus, the Court invalidated the license tax.

Hynes v. Mayor of Oradell

Decades later, in Hynes v. Mayor of Oradell, the Court reviewed a local ordinance pertaining to door-to-door soliciting. The law required door-to-door canvassers and solicitors to provide the police department with prior advance notice.

The Court clarified that it has consistently recognized a municipality’s authority to regulate canvassing and soliciting in order to protect its people from crime and excessive annoyance. However, such restrictions must be narrowly drawn.

The Court found the ordinance was unconstitutionally vague. Specifically, it wasn’t clear which groups were affected and what type of information the notice required. The Court also cautioned against giving law enforcement undefined power to select which messaging its citizens hear.

Secretary of State v. Joseph H. Munson Co.

In 1984, the Court decided Secretary of State v. Joseph H. Munson Co. In this case, the Court reviewed a Maryland state solicitation statute.

The law restricted charitable organizations from using more than 25% of their contributions toward fundraising. The law also allowed for waiver of the restriction if it effectively prevented an organization from fundraising.

The Court held the restriction to be unconstitutionally overbroad. It did recognize the state’s interest in preventing fraud, but explained that this couldn’t justify the “direct restriction on protected First Amendment activity.''

The Court also noted that the statute was based on the “fundamentally mistaken premise that high solicitation costs are an accurate measure of fraud.''

Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton

In 2002, the Court decided Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton. At issue was an ordinance criminalizing door-to-door advocacy without a permit in a small Ohio town. The law restricted “canvassers, solicitors, peddlers, hawkers, itinerant merchants or transient vendors” from “going in and upon private property” without a permit.

Essentially, the ordinance required religious, political, and commercial advocates to first register with the mayor’s office and obtain a permit before engaging in such advocacy. The same ordinance allowed citizens to apply for a "No Solicitation" sign.

A group of Jehovah’s Witnesses challenged the law.

Justice Stevens penned the opinion of the Court, stating, “The mere fact that the ordinance covers so much speech raises constitutional concerns.” Likewise, a requirement to inform the government and obtain a permit before someone can speak to their neighbors offends our idea of a free society.

The Court determined that the burden on religious and political speech far outweighed the state’s interests in resident privacy and preventing fraud and crime. The Court also explained that the ordinance banned a considerable amount of spontaneous speech that could have occurred when permits weren’t available.

Thus, The Court reversed the district and circuit court of appeals rulings that upheld the ordinance.

Chief Justice Rehnquist filed a dissenting opinion challenging the determination that crime prevention was an insufficient state interest.

Illinois ex rel. Madigan v. Telemarketing Associates

The following year, the Court heard Illinois ex rel. Madigan v. Telemarketing Associates. The Madigan Court unanimously determined that the First Amendment doesn’t bar a state from pursuing fraud charges against solicitors.

Intentionally misleading communications don’t enjoy First Amendment protection. If a fundraiser falsely represents the percentage of donations used for charitable purposes, the First Amendment still allows for a fraud claim.

The government’s interest in regulating door-to-door solicitations presents some interesting First Amendment considerations. As long as people live in homes, we’re likely to see the Supreme Court continue to shape the limits of First Amendment protection for this exercise of speech and expression.