February 7, 2008
Dear City Attorney:
You asked me to review the City’s solicitation ordinance to determine whether it would
pass legal muster.
The answer to that question is no, for several reasons:
It is void for vagueness.
It violates the First Amendment to the U.S. Constitution for several reasons indicated
below.
The legal memorandum sent to you by Southwestern Company appears quite accurate. It
is within the power of a municipality to adopt rules and regulations governing door-to-door
solicitations. In fact, the last paragraph accedes to regulations on Southwestern Company’s
solicitors, and on solicitors in general that, in some cases, probably go beyond what the courts in
many places require. However, that fact points to an obvious difficultly in drawing solicitation
ordinances: The cases are all over the map on what regulations will, and what regulations will
not, pass legal muster. There are no Tennessee state cases on that subject, and while the Sixth
Circuit upheld the regulations that were at issue in Watchtower Bible and Tract Society of New
York, Inc. v. Village of Stratton, 536 U.S. 150 (2002), the U.S Supreme Court struck them down,
at least as to their application to “canvassers” for political and religious causes. Apparently some
of the regulations as to commercial solicitors would have been upheld had they been at issue. As
I will point out below, the City’s ordinance appears to be capable of being read to encompass
political, and at least some religious, solicitations. For that reason, Watchtower Bible and Tract
Society, applies to that ordinance.
.
But it is very difficult to draw an ordinance that is not excessively restrictive as to
political and religious solicitors; most solicitation ordinances are written to apply to both
commercial solicitors and solicitors for other purposes, and they generally do not do a good job
of sorting out the differences for the purpose of enforcing the ordinance. It occurs to me that
separate ordinances, one for commercial solicitations, the other for other kinds of solicitations,
might be a good route to go. The Memorandum correctly asserts that commercial speech
generally receives the same protection as political and other forms of speech. I say “generally,”
because as often as the courts have put both kinds of speech on the same plane, their cases on
that point are inconsistent, and they are still more solicitous toward the protection of political and
religious speech.
February 7, 2008
Page 2
The Memorandum concedes that governments can place some time, place and manner
restrictions on solicitations, but it seems quite clear from the recent U.S. Supreme Court case of
Watchtower Bible and Tract Society, above, that governments can place more restrictions on
solicitations made for commercial purposes than they can for solicitations or “canvassing” made
for religious and political purposes. As the Memorandum also correctly points out, restrictions
on any kind of solicitors must meet significant legitimate governmental interests, and must be
narrowly tailored to meet those interests. However, contrary to what the Memorandum suggests,
it is not clear that the regulation under challenge must be the least restrictive way to accomplish
the governmental interest; it may be enough that the regulations must simply be a “good fit.”
[See the U.S. Supreme Court’s discussion on that question in Board of Trustees of State
University of New York v. Fox, 492 U.S. 469 (1989)]. How even lawyers cut such a fine line
isn’t clear to me.
The Memorandum also correctly points to other legal doctrines solicitation ordinances
must meet.
I will discuss some of the issues raised by the Memorandum in connection with the City’s
ordinance, but here I want to point to a threshold problem with the ordinance that dooms it before
any of those legal issues come into play: it is void for vagueness.
Your ordinance provides in Section 1, that:
No merchant, peddler, vendor or other party engaged in collection
or in the sale of goods for profit may engage in residential or
business door-to-door [sic.] solicitations for orders for the sale or
offering for free of such goods or collections, unless invited to do
so by the resident or owner of such abode or business.
That section requires the prior request or invitation of the owner of the abode or business
before the merchant, peddler, vendor or the other party engaged in collection or the sale of goods
can carry out the activities contemplated by that section.
The first thing that strikes me about that provision is that, read even with the benefit of
the WHEREAS’es, it is bafflingBindeed, impossible to understand. It speaks of merchants,
peddlers, vendors “or other party engaged in collections or in the sale of goods for profit....”
The language “or other party engaged in collections” appears to establish a category of people
covered by that section separate from the categories of merchant, peddler, and vendor. Who are
the collectors? Does that term include “collectors” for religious and political purposes. What do
the collectors collect? Money? Goods? The language “solicitations for orders for the sale of or
February 7, 2008
Page 3
offering for free of such goods or collections....” is, frankly, dumbfounding. Merchants, peddlers
and vendors, generally attempt to solicit orders for, or sell, goods of some kind, for profit. But
the section also prohibits “or offering for free of such goods or collections...” unless there has
been a previous request or invitation by the resident or owner. If a person in the form of “other
party engaged in collections....” is, as that language suggests, taking some kind of collection, is
he or she now “also offering for free of such goods or collections?” Does such a person collect
whatever that person collects at, say, Apartment A, and at, say, Apartment B, offer for free his
or her “collections”?
The standard for determining whether an ordinance is void for vagueness is whether it
informs the public what kind of conduct is prohibited and does not provide law enforcement
authorities adequate guidelines for its enforcement. [See City of Chicago v. Morales, 527 U.S.
41 (1999); Smith v. Gogeun, 415 U.S. 566 (1974) and literally hundreds of U.S. Supreme Court
and Federal Courts of Appeals cases.] I suspect that a substantial part of the public, and the law
enforcement officers designated to enforce the ordinance, cannot understand Section 1. of the
ordinance. It does not appear to me that the ordinance is clear enough to inform the public what
it can and cannot do under the ordinance in question, and what law enforcement officials can and
cannot do to enforce it.
The requirement that solicitors or canvassers must have a prior invitation or permission
to make political and religious solicitations or canvasses, and in cases where the solicitor has no
prior invitation or permission to solicit, obtain a permit from the from the city was most recently
struck down by the U.S. Supreme Court in Watchtower Bible and Tract Society. That case
involved an ordinance that covered a wide range of commercial solicitors and their activities, but
also included other kinds of solicitations. Section 116.01 provided that:
The practice of going in and upon private property and/or the
private residence of Village residents in the Village by canvassers,
solicitors, peddlers, hawkers, itinerant merchants or transient
vendors of merchandise or services not having been invited to do
so by the owners or occupants of such private property or
residences, and not having first obtained a permit pursuant to
Section 116.03 of this Charter, for the purpose of advertising,
promoting, selling and/or explaining any product, service,
organization or cause, or for the purpose of soliciting orders for
the sale of goods, wares, merchandise for services, is hereby
declared to be a nuisance and is prohibited. [At 156] [Emphasis is
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mine.]
Section 116.03 of the ordinance provided that:
No canvasser, solicitor, peddler. Hawker, itinerant merchant or
transient vendor of merchandise or services who is described in
Section 116.01 of this Chapter and who intends to go in or upon
private property or a private residence in the Village for any of the
purposes described in Section 116.01, shall go in or upon such
private property or residence without first registering in the office
of the Mayor and obtaining a Solicitation permit.
But the case involved canvassing by Jehovah’s Witnesses, and the Court framed the
question in a way that does not, at first glance, does not appear to apply to commercial solicitors:
Does a municipal ordinance that requires one to obtain a permit
prior to engaging in the door-to-door advocacy of a political cause
and to display upon demand the permit, which contains one’s
name, violate the First Amendment protection accorded to
anonymous pamphleteering or discourse?
No, held the Court, reasoning, in part, that the ordinance prohibited:
“canvassers” from going on private property for the purpose of
explaining or promoting any “cause,” unless they receive a permit
and the residents visited have not opted for a “no solicitation” sign.
Had this provision been construed to apply only to commercial
activities and the solicitation of funds, arguably the ordinance
would have been tailored to the Village’s interest in protecting the
privacy of its residents and preventing fraud. Yet, even though the
Village has explained that the ordinance was adopted to serve
those interests, it has never contended that it should be so
narrowly interpreted. To the contrary, the Village’s
administration of its ordinance unquestionably demonstrates that
the provisions apply to a significant number of noncommercial
“canvassers” promoting a wide variety of “causes.” Indeed, on
the “No Solicitation Forms” provided to the residents, the
canvassers include “Camp Fire Girls,” “Jehovah’s Witnesses,”
“Political Candidates,” “Trick or Treaters during Halloween
season,” and “Person Affiliated with Statton Church.” The
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ordinance unquestionably applies not only to religious causes, but
to political activity as well...[At 165] [Emphasis is mine.]
Other language in Watchtower Bible and Tract Society stands for the proposition that a
municipality can enact an ordinance regulating commercial sales and other solicitations for
money:
Our opinion [its earlier case of Cantwell v. Connecticut, 310 U.S.
296, 60 S.Ct. 900, 84 L.Ed 1213 (1940)] recognized that “a state
may protect its citizens from fraudulent solicitations 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.” Id. At 306, 60
S.Ct. 900. Similarly, in Martin v. City of Struthers, the Court
recognized crime prevention as a legitimate interest served by these
ordinances and noted 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 he may return later.” 319 U.S.
at 144, 63 S.Ct. 862. Despite recognition of these interests as
legitimate, our precedent is clear that there must be a balance
between these interests and the effect of the regulations on First
Amendment rights. We must be ‘astute to examine the effect of
the challenged legislation’ and must weigh the circumstances and
... appraise the substantiality of the reasons advances in support of
the regulation. A ibid. (Quoting Schneider, 308 U.S., at 161, 0
S.Ct. 146). [At 163]
.
Section 1 of the City’s ordinance applies to “merchants[s], peddler[s], vendor[s] or other
part[ies] engaged in collections or in the sale of goods for profit...” But the “other part[ies]
engaged in collections...” provision of that section appears to sweep in a wide range of solicitors
who may be taking collections for one cause or another, but who do not fit into the above
categories of solicitors for commercial purposes. In that respect alone, the ordinance is too
broad.
The titles and WHEREAS’es are not substantive provisions of ordinances, but they are an
aid in finding the intent of the city’s governing body in adopting it. The title of the ordinance is
AAN ORDINANCE PROHIBITING DOOR TO DOOR SOLICITATIONS OF ORDERS FOR
THE SALE OF GOODS, OR OFFERING FOR FREE, AND COLLECTIONS. The first
WHEREAS, declares that “The practice of some entities/persons engaging in uninvited
February 7, 2008
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collections and door to door sales of good, or offering for free has become common in our city.”
The Second WHEREAS, declared that “This practice is disruptive to the lives of citizens and
uninvited calls resulting in an intrusion on the privacy of the citizenry and causing a nuisance.”
That title and the WHEREAS’es seem to apply to “offering for free” (of what?) which appears
to apply to anyone, including people canvassing for political or religious causes. Such language
would prohibit the offering for free of handbills, religious tracts, political tracts, and so on.
Watchtower Bible and Tract Society had three problems with restrictions on political
and religious canvassing that required the disclosure of the names of the canvassers:
1. Interferes with the anonymity of persons exercising political or religious speech.
Pointing to its line of cases involving the distribution of unsigned handbills, the Court declared
that:
...[T]here are a significant number of persons who support causes
anonymously. “The decision in favor of anonymity may be
motivated by fear of economic or official retaliation, by concern
about social ostracism, or merely by a desire to preserve as much
of one’s privacy as possible.” [Citation omitted by me.] The
refinement that a canvasser must be identified in a permit
application filed in the mayor’s office and available for public
inspection necessarily results in a surrender of that anonymity....In
the Village [of Stratton] strangers to the resident certainly maintain
their anonymity, and the ordinance may preclude such persons
from canvassing for unpopular causes. Such preclusion may well
be justified in some situations: for example, by the special state
interest in protecting the integrity of a ballot initiative process....or
by the interest in preventing fraudulent commercial transactions.
The Village ordinance, however sweeps more broadly, covering
unpopular causes unrelated to commercial transactions or to any
special interest in protecting the electoral process. [At 167]
2. It excessively burdens free speech:
Second, requiring a permit as a prior condition on the exercise of
the right to speak imposes an objective burden on some speech of
citizens holding religious or patriotic views. As our World War IIera cases dramatically demonstrate, there are a significant number
of persons whose religious scruples will prevent them from
applying for such a license. There are no doubt other patriotic
citizens, who have such firm convictions about their constitutional
February 7, 2008
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rights to engage in uninhibited debate in the context of door-todoor advocacy, that they would prefer silence to speech licensed by
a petty official. [At 167]
3. It bans a significant amount of “spontaneous speech.”:
A person who has made a decision on a holiday or weekend to take
an active part in a political campaign could not begin to pass out
handbills until after he or she obtained the required permit. [At
167]
But the Court had other reasons for striking down the Village of Stratton’s
ordinance that are important to the City’s ordinance:
The breadth and unprecedented nature of this regulation does not
alone render the ordinance invalid. Also central to our conclusion
that the ordinance does not pass First Amendment scrutiny is that it
is not tailored to the Village’s stated interests. Even if the interest
in preventing fraud could adequately support the ordinance insofar
as it applies to commercial transactions and the solicitation of
funds, that interest provides no support for its application to
petitioners, to political campaigns, or to enlisting support for
unpopular causes. The Village, however argues that the ordinance
is nonetheless valid because it serves the two additional interests of
protecting the privacy of the resident and the prevention of crime.
With respect to the former it seems clear that ' 107 of the
ordinance, which provides for the posting of “No solicitation”
signs and which is not challenged in this case, coupled with the
resident’s unquestioned right to refuse to engage in conversation
with unwelcome visitors, provides ample protection for the
unwilling listener. Schaumburg, 444 U.S. at 639, 100 S.Ct.
826(“[T]he provision permitting homeowners to bar solicitors from
their property by posting [no solicitation signs ... suggests] the
availability of less intrusive and more effective measures to protect
privacy.”) The annoyance caused by an uninvited knock at the front
door is the same whether or not the visitor is armed with a permit.
With respect to the latter, it seems unlikely that the absence of a
February 7, 2008
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permit would preclude criminals from knocking on doors and
engaging in conversations not covered by the ordinance. They
might, for example, ask for directions or permission to use the
telephone, or pose as surveyors or census takers.... Or they might
register under a false name with impunity because the ordinance
contains no provision for verifying an applicant’s identity or
organizational credentials. Moreover, the Village did not assert an
interest in crime prevention below, and there is an absence of any
evidence of a special crime problem related to door-to-door
solicitation in the record before us. [At 179]
That language virtually closes the door on an ordinance that restricts political and
religious speech based on a premise that citizens have a right to be unburdened by people
attempting to approach them in their homes with such speech. The answer to that problem, said
the Court, was a no solicitations sign.
The federal and state courts have gone both ways on the question of whether an ordinance
can prohibit solicitations for commercial purposes without a prior invitation. But Watchtower
Bible and Tract Society arose in the U.S. Sixth Circuit Court of Appeals, where the ordinance
was upheld (as modified by the U.S. District Court). That case seems to demonstrate that
somehow a solicitations ordinance must clearly separate political and religious solicitations from
commercial ones, and that the ordinance must be tailored with respect to each kind solicitation.
Under that case, as decided by the U.S. Supreme Courts, It does not appear likely that a
solicitations ordinance that declares door-to-door political and religious (and perhaps)
commercial solicitations to be a nuisance, that requires a person to have a prior invitation to
solicit the owners and occupants of residences, unless the person has a permit, and that attempts
to base such an ordinance upon the right of privacy of the homeowners and occupants, will pass
legal muster.
There are also problems with Section 2 of the City’s ordinance. It exempts Aany
established church or school operated exclusively for charitable, educational, or religious
purposes if the solicitations are conducted exclusively by the members thereof, voluntarily and
without remuneration for making such solicitations. Each of these organizations must obtain a
permit from city hall.
That section is also defective in the respect that it does not make it clear what is an
“established: church.” The other side of that coin is that the ordinance is probably too broad in
that it limits the exemption to “established” churches. It has also been regularly held that
regulations of First Amendment activities must be content neutral. In the solicitations ordinance
context, the Tenth Circuit Court of Appeals in Association of Community Organizations for
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Reform Now v. Municipality of Golden, 744 F.2d 739 (1984) struck down a solicitations
ordinance for failing to be content neutral because it made an exception for charitable, religious,
patriotic and philanthropic and other purposes. The City’s ordinance is not content neutral
because it purports to exempt solicitations for school and religious activities. It is also defective
in the respect that it contains a permit requirement even in cases where there is no solicitation
going on, but perhaps “free offering” of whatever is being freely offered.
I am presently in the process of locating an ordinance or ordinances that are legally sound
alternatives to the City’s ordinance. I will be back in touch with you on that project.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/
.