Martin v. City of Struthers/Opinion of the Court

by Hugo Black

United States Supreme Court

319 U.S. 141

Martin  v.  City of Struthers

 Argued: March 11, 1943. --- Decided: May 3, 1943

For centuries it has been a common practice in this and other countries for persons not specifically invited to go from home to home and knock on doors or ring doorbells to communicate ideas to the occupants or to invite them to political, religious, or other kinds of public meetings. Whether such visiting shall be permitted has in general been deemed to depend upon the will of the individual master of each household, and not upon the determination of the community. In the instant case, the City of Struthers, Ohio, has attempted to make this decision for all its inhabitants. The question to be decided is whether the City, consistently with the federal Constitution's guarantee of free speech and press, possesses this power. ^[1]

The appellant, espousing a religious cause in which she was interested-that of the Jehovah's Witnesses-went to the homes of strangers, knocking on doors and ringing doorbells in order to distribute to the inmates of the homes leaflets advertising a religious meeting. In doing so, she proceeded in a conventional and orderly fashion. For delivering a leaflet to the inmate of a home she was convicted in the Mayor's Court and was fined $10.00 on a charge of violating the following City ordinance:

'It is unlawful for any person distributing handbills, circulars or other advertisements to ring the door bell, sound the door knocker, or otherwise summon the inmate or inmates of any residence to the door for the purpose of receiving such handbills, circulars or other advertisements they or any person with them may be distributing.'

The appellant admitted knocking at the door for the purpose of delivering the invitation, but seasonably urged in the lower Ohio state court that the ordinance as construed and applied was beyond the power of the State because in violation of the right of freedom of press and religion as guaranteed by the First and Fourteenth Amendments. ^[2]

The right of freedom of speech and press has broad scope. The authors of the First Amendment knew that novel and unconventional ideas might disturb the complacent, but they chose to encourage a freedom which they believed essential if vigorous enlightenment was ever to triumph over slothful ignorance. ^[3] This freedom embraces the right to distribute literature, Lovell v. Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949, and necessarily protects the right to receive it. The privilege may not be withdrawn even if it creates the minor nuisance for a community of cleaning litter from its streets. Schneider v. State, 308 U.S. 147, 162, 60 S.Ct. 146, 151, 84 L.Ed. 155. Yet the peace, good order, and comfort of the community may imperatively require regulation of the time, place and manner of distribution. Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 128 A.L.R. 1352. No one supposes, for example, that a city need permit a man with a communicable disease to distribute leaflets on the street or to homes, or that the First Amendment prohibits a state from preventing the distribution of leaflets in a church against the will of the church authorities.

We are faced in the instant case with the necessity of weighing the conflicting interests of the appellant in the civil rights she claims, as well as the right of the individual householder to determine whether he is willing to receive her message, against the interest of the community which by this ordinance offers to protect the interests of all of its citizens, whether particular citizens want that protection or not. The ordinance does not control anything but the distribution of literature, and in that respect it substitutes the judgment of the community for the judgment of the individual householder. It submits the distributer to criminal punishment for annoying the person on whom he calls, even though the recipient of the literature distributed is in fact glad to receive it. In considering legislation which thus limits the dissemination of knowledge, we must 'be astute to examine the effect of the challenged legislation' and must 'weigh the circumstances and * * * appraise the substantiality of the reasons advanced in support of the regulation.' Schneider v. State, surpa, 308 U.S. 161, 60 S.Ct. 151, 84 L.Ed. 155.

Ordinances of the sort now before us may be aimed at the protection of the householders from annoyance, including intrusion upon the hours of rest, and at the prevention of crime. Constant callers, whether selling pots or distributing leaflets, may lessen the peaceful enjoyment of a home as much as a neighborhood glue factory or railroad yard which zoning ordinances may prohibit. In the instant case, for example, it is clear from the record that the householder to whom the appellant gave the leaflet which led to her arrest was more irritated than pleased with her visitor. The City, which is an industrial community most of whose residents are engaged in the iron and steel industry, ^[4] has vigorously argued that its inhabitants frequently work on swing shifts, working nights and sleeping days so that casual bell pushers might seriously interfere with the hours of sleep although they call at high noon. In addition, 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. ^[5] Crime prevention may thus be the purpose of regulatory ordinancies.

While door to door distributers of literature may be either a nuisance or a blind for criminal activities, they may also be useful members of society engaged in the dissemination of ideas in accordance with the best tradition of free discussion. The widespread use of this method of communication by many groups espousing various causes atests its major importance. 'Pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people.' Schneider v. State, supra, 308 U.S. 164, 60 S.Ct. 152, 84 L.Ed. 155. Many of our most widely established religious organizations have used this method of disseminating their doctrines, ^[6] and laboring groups have used it in recruiting their members. ^[7] The federal government, in its current war bond selling campaign, encourages groups of citizens to distribute advertisements and circulars from house to house. ^[8] Of, course, as every person acquainted with political life knows, door to door campaigning is one of the most accepted techniques of seeking popular support, while the circulation of nominating papers would be greatly handicapped if they could not be taken to the citizens in their homes. ^[9] Door to door distribution of circulars is essential to the poorly financed causes of little people.

Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The 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.

Traditionally the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off. General trespass after warning statutes exist in at least twenty states, ^[10] while similar statutes of narrower scope are on the books of at least twelve states more. ^[11] We know of no state which, as does the Struthers ordinance in effect, makes a person a criminal trespasser if he enters the property of another for an innocent purpose without an explicit command from the owners to stay away. ^[12] The National Institute of Municipal Law Officers has proposed a form of regulation to its member cities ^[13] which would make it an offense for any person to ring the bell of a householder who has appropriately indicated that he is unwilling to be disturbed. This or any similar regulation leaves the decision as to whether distributers of literature may lawfully call at a home where it belongs-with the homeowner himself. 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. ^[14] In any case the problem must be worked out by each community for itself with due respect for the constitutional rights of those desiring to distribute literature and those desiring to receive it, as well as those who choose to exclude such distributers from the home.

The Struthers ordinance does not safeguard these constitutional rights. For this reason, and wholly aside from any other possible defects, on which we do not pass but which are suggested in other opinions filed in this case, we conclude that the ordinance is invalid because in conflict with the freedom of speech and press.

The judgment below is reversed for further proceedings not inconsistent with this opinion.

Reversed.

Notes

1  This ordinance was not directed solely at commercial advertising. Cf. Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262; Town of Green River v. Fuller Brush Co., 10 Cir., 65 F.2d 112, 88 A.L.R. 177. Compare for possible different results under state constitutions Prior v. White, 132 Fla. 1, 180 So. 347, 116 A.L.R. 1176; City of Orangeburg v. Farmer, 181 S.C. 143, 186 S.E. 783.

2  The appellant's judgment of conviction was appealed to the Supreme Court of Ohio which dismissed the appeal on the stated ground that: 'No debatable constitutional question is involved.' City of Struthers v. Martin, 139 Ohio St. 372, 40 N.E.2d 154. We at first dismissed the appeal, thinking that the Supreme Court of Ohio meant that no constitutional question had been properly raised in accordance with Ohio procedure. 317 U.S. 589, 63 S.Ct. 49, 87 L.Ed. --. Upon reconsideration we concluded that since a constitutional question had been presented in the lower State court, the language of the Order of the Supreme Court of Ohio should be construed as a decision upon the constitutional question. 318 U.S. 739, 63 S.Ct. 528, 87 L.Ed. --.

3  'The only security of all is in a free press. The force of public opinion cannot be resisted, when permitted freely to be expressed. The agitation it produces must be submitted to. It is necessary to keep the waters pure.' Jefferson to Lafayette, Writings of Thomas Jefferson, Washington ed., v. 7, p. 325.

4  16th Census, 'Population-2d Series-Ohio', 133, 151.

5  For a discussion of such practices see Soderman and O'Connell, Modern Criminal Investigation, chap. 13 and chap. 20; Federal Bureau of Investigation Law Enforcement Bulletin, July, 1938; 20 Public Management 83 (an analysis of the criminal records of a group of canvassers in Winnetka, Illinois). Sacramento, California, has rested a canvassing ordinance on crime prevention, In re Hartmann, 25 Cal.App.2d 55, 76 P.2d 709, and courts have been aware of this aspect of the problem in dealing with such ordinances. Allen v. McGovern, 169 A. 345, 12 N.J.Misc. 12, 13; Dziatkiewicz v. Maplewood, 115 N.J.L. 37, 178 A. 205.

6  Representatives of the American Tract Society, an interdenominational organization engaged in colportage since 1841, have visited over twenty-five million families. Article on 'American Tract Society', 1 Encyclopedia Americana (1932 ed.) 566; Annual Reports of the American Tract Society (e.g. the 116th Report, 1941, 37-38; 117th Report, 1942, pp. 37-38); Baird, Religion in America (1856), 334-340.

See also the activities of the American Bible Society. Jones, Colportage Sketches (1883); Dwight, The Centennial History of he American Bible Society (1916) 177-81, 293-95, 460; Annual Reports of the American Bible Society (e.g., 126th Report, 1942, passim.).

For the world-wide colportage activities of the British and Foreigh Bible Society, see the Society's 137th Report, 1941, passim; For Wayfaring Men, (1939), 31-78; Ritson, The World Is our Parish (1939), 116-18.

This practice has been followed by many religious groups. See, e.g., Barnes, Barnes and Stephenson, Pioneers of Light (1924), 81-104; Stevens, The First Hundred Years of the American Baptist Publication Society (1925), 30-32. During the fiscal year 1939-1940, representatives of the American Baptist Publication Society visited 52,832 families. More than six million families have been visited over a one hundred year period. Annual of Northern Baptist Convention, 1940, 671, 673; Year Book of the Northern Baptist Convention, 1942, 332-335. See for the practice of other religions, Stewart, Sheldon Jackson (1908), 32; Goodykoontz, Home Missions on the American Frontier (1939), 120 122; Keller, The Second Great Awakening in Connecticut (1942), 117 121.

7  Lorwin and Flexner, The American Federation of Labor, 352; International Ladies Garment Workers Union, Handbook of Trade Union Methods, 10; Brooks, When Labor Organizes, chap. 1 ('Organizing a Union').

8  'Women's Handbook', pp. 22 and 63, a publication of the Women's Section of the War Savings Staff of the Department of the Treasury; The Home Front Journal, April 1943, p. 1, a publication of the same group; 'A Program of Action for Clubs', p. 3, a publication of the Department of the Treasury. Presumably a citizen of Struthers distributing to homes the pamphlets recommended in 'A Program of Action' would violate the City's ordinance.

9  Merriam and Gosnell, The American Party System, 317 (The Canvass); Bruce, American Parties and Politics, 407; Ostogoskii, Democracy, 153-155, 453; Pierson, In the Brush, 142 (politics in the old Southwest); Barnes, The Antislavery Impulse, 137-143 (circulation of antislavery petitions). The American Politician, ed. by J. T. Salter, 19, 235, 310, 339, and The American Political Scene, ed. by Edward Logan, 64, 150, indicate by passing references to practices in many states the extent to which the door to door canvass is a staple of political life.

For encouragement of this practice see Handbook of Club Organization, National Federation of Women's Republican Clubs (1942) 21; and Precinct Organization in War Time, a recent publication of the Democratic National Committee.

10  Alabama Code (1940), Tit. 14, § 426; Connecticut Gen.Stat. (1930), § 6119; Florida Stat. (1941), § 821.01; Georgia Code Ann. (1938), § 26-3002; Illinois Ann.Stat. (Smith Hurd, 1935), Ch. 38, § 565; Indiana Stat. (Burns, 1933), § 10-4506; Maryland Ann.Code (Flack, 1939), Art. 27, §§ 24, 286; Massachusetts Ann.Laws (1933), v. 9, Ch. 266, § 120; Mississippi Code Ann. (1930), § 1168; Nebraska Comp.Stat. (1929), §§ 76-807, 76-808; Nevada Comp.Laws (1929), § 10447; North Carolina Code (1943), § 14-134; Ohio Code Ann. (Throckmorton, 1942), § 12522; Oklahoma Stat. (1937), Tit. 21, § 1835; Oregon Comp.Laws Ann. (1940), §§ 23-593, 23-594; Pennsylvania Ann.Stat. (Purdon, 1942 pocket part), Title 18, § 4954; South Carolina Code (1942), § 1190; Virginia Code (1936), § 4480a; Washington Rev.Stat. (Remington, 1932), § 2665; Wyoming Rev.Stat. (1931), § 32-337.

11  Arkansas Stat. (Pope, 1937), § 3181; California Penal Code (Deering, 1941), §§ 602, 627; Colorado Stat.Ann. (1935), vol. 3, Ch. 73, § 118; Kentucky Rev.Stat. (Baldwin, 1942), §§ 433.720, 433.490; Louisiana Gen.Stat. (Dart, 1939), § 9463; Maine Rev.Stat. (1930), Ch. 139, § 22; Minnesota Stat. (1941), § 621.57; Montana Rev.Code Ann. (1935) § 11482; New Hampshire Public Laws (1926), Ch. 380, § 11; New Jersey Rev.Stat. (1937), Tit. 4, § 17-2, N.J.S.A. 4:17-2; New York Consol.Laws Ann. (McKinney, 1941), Conservation Law, §§ 361-364; Texas Stat. (Vernon, 1936), P.C. Art. 1377.

12  Municipalities have occasionally made canvassers trespassers without requiring that the householder give an explicit notice, as the instant ordinance testifies. See e.g. People v. Bohnke, 287 N.Y. 154, 38 N.E. 478.

13  Municipalities and the Law in Action (1943), National Institute of Municipal Law Officers, 373. We do not, by this reference, mean to express any opinion on the widsom or validity of the particular proposals of the Institute.

14  'Nothing we have said is intended even remotely to imply that, under the cloak of religion, persons may, with impunity, commit frauds upon the public. Certainly penal laws are available to punish such conduct. Even the exercise of religion may be at some slight inconvenience in order that the state may protect its citizens from injury. Without 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.' Cantwell v. Connecticut, 310 U.S. 296, 306, 60 S.Ct. 900, 904, 84 L.Ed. 1213, 128 A.L.R. 1352.