The Jehovah’s Witnesses Cases
In contrast to the Mormons, the sect known as Jehovah’s Witnesses, in many ways as unsettling to the conventional as the Mormons were,251 provoked from the Court a lengthy series of decisions252 expanding the rights of religious proselytizers and other advocates to utilize the streets and parks to broadcast their ideas, though the decisions may be based more squarely on the speech clause than on the free exercise clause. The leading case is Cantwell v. Connecticut.253 Three Jehovah’s Witnesses were convicted under a statute which forbade the unlicensed soliciting of funds for religious or charitable purposes, and also under a general charge of breach of the peace. The solicitation count was voided as an infringement on religion because the issuing officer was authorized to inquire whether the applicant did have a religious cause and to decline a license if in his view the cause was not religious. Such power amounted to a previous restraint upon the exercise of religion and was invalid, the Court held.254 The breach of the peace count arose when the three accosted two Catholics in a strongly Catholic neighborhood and played them a phonograph record which grossly insulted the Christian religion in general and the Catholic Church in particular. The Court voided this count under the clear-and-present danger test, finding that the interest sought to be upheld by the State did not justify the suppression of religious views that simply annoyed listeners.255chanrobles-red
251 For recent cases dealing with other religious groups discomfiting to the mainstream, see Heffron v. ISKCON, 452 U.S. 640 (1981) (Hare Krishnas); Larson v. Valente, 456 U.S. 228 (1982) (Unification Church). Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (Santeria faith).
252 Most of the cases are collected and categorized by Justice Frankfurter in Niemotko v. Maryland, 340 U.S. 268, 273 (1951) (concurring opinion).
253 310 U.S. 296 (1940).
254 310 U.S. at 303-07. “The freedom to act must have appropriate definition to preserve the enforcement of that protection [of society]. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.... [A] State may by general and non-discriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment.” Id. at 304.
255 310 U.S. at 307-11. “In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probabilities of excesses and abuses, these liberties are in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.” Id. at 310.
There followed a series of sometimes conflicting decisions. At first, the Court sustained the application of a non-discriminatory license fee to vendors of religious books and pamphlets,256 but eleven months later it vacated its former decision and struck down such fees.257 A city ordinance making it unlawful for anyone distributing literature to ring a doorbell or otherwise summon the dwellers of a residence to the door to receive such literature was held in violation of the First Amendment when applied to distributors of leaflets advertising a religious meeting.258 But a state child labor law was held to be validly applied to punish the guardian of a nine-year old child who permitted her to engage in “preaching work” and the sale of religious publications after hours.259 The Court decided a number of cases involving meetings and rallies in public parks and other public places by upholding licensing and permit requirements which were premised on nondiscriminatory “times, places, and manners” terms and which did not seek to regulate the content of the religious message to be communicated.260 Most recently, the Court struck down on free speech grounds a town ordinance requiring door-to-door solicitors, including persons seeking to proselytize about their faith, to register with the town and obtain a solicitation permit.261 The Court stated that the requirement was “offensive ... to the very notion of a free society.”
256 Jones v. Opelika, 316 U.S. 584 (1942).
257 Jones v. Opelika, 319 U.S. 103 (1943); Murdock v. Pennsylvania, 319 U.S. 105 (1943). See also Follett v. McCormick, 321 U.S. 573 (1944) (invalidating a flat licensing fee for booksellers). Murdock and Follett were distinguished in Jimmy Swaggart Ministries v. California Bd. of Equalization, 493 U.S. 378, 389 (1990) as applying “only where a flat license fee operates as a prior restraint”; upheld in Swaggart was application of a general sales and use tax to sales of religious publications.
258 Martin v. City of Struthers, 319 U.S. 141 (1943). But cf. Breard v. City of Alexandria, 341 U.S. 622 (1951) (similar ordinance sustained in commercial solicitation context).
259 Prince v. Massachusetts, 321 U.S. 158 (1944).
260 E.g., Niemotko v. Maryland, 340 U.S. 268 (1951); Kunz v. New York, 340 U.S. 290 (1951); Fowler v. Rhode Island, 345 U.S. 67 (1953); Poulos v. New Hampshire, 345 U.S. 395 (1953). See also Larson v. Valente, 456 U.S. 228 (1982) (solicitation on state fair ground by Unification Church members).
261 Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton 122 S. Ct. 2080 (2002).
