Most people are familiar with the Constitution’s protection of freedom of speech. But, as you might expect, the First Amendment doesn’t protect all speech, all the time. Over the years, the Supreme Court has had to interpret the First Amendment to figure out when and where the government has a legitimate interest in regulating speech. One such area is solicitation, including door-knocking and leafleting.
"Congress shall make no law…abridging the freedom of speech,”
In Martin v. City of Struthers, 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.1
Later, although 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.2 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 that 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 in Schaumburg v. Citizens for a Better Environment.3 A privacy rationale was rejected, as just as much intrusion was likely by permitted as by non-permitted solicitors. A rationale of prevention of fraud was unavailing, 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.
Schaumburg was extended in Secretary of State v. Joseph H. Munson Co.,4 and Riley v. National Federation of the Blind.5 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. In Riley, the Court invalidated a North Carolina fee structure containing even more flexibility.6 The Court saw no nexus between the percentage of funds retained by the fundraiser and the likelihood that the solicitation is fraudulent, and was similarly hostile to any scheme that shifts the burden to the fundraiser to show that a fee structure is reasonable.7 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.8
In Watchtower Bible & Tract Soc’y 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.9 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.10 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.11
Does the First Amendment Protect Protestors?
3. 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 the 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).
4. 467 U.S. 947 (1984).
5. 487 U.S. 781 (1988).
6. A fee of up to 20% of collected receipts was deemed reasonable, a fee of 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.
7. 487 U.S. at 793.
8. 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.
9. 536 U.S. 150 (2002).
10. 536 U.S. at 165–66.
11. 536 U.S. at 167.