First Amendment — Free Speech Clause: Symbolic Speech

Amdt1.7.14.1 Overview of Symbolic Speech

Communication of political, economic, social, and other views is not accomplished solely by face-to-face speech, broadcast speech, or writing in newspapers, periodicals, and pamphlets. There is also “expressive conduct” or “symbolic speech,” which includes activities such as picketing and marching, distribution of leaflets and pamphlets, door-to-door solicitation, flag desecration, and draft-card burnings.¹ Sit-ins and stand-ins may effectively express a protest about certain things.²

The Supreme Court has said that conduct will be sufficiently “communicative . . . to bring the First Amendment into play” if there is an “intent to convey a particularized message, and . . . the likelihood was great that the message would be understood by those who viewed it.”³ Further, the conduct must itself be “inherently” expressive—merely “combining speech and conduct” is not sufficient to “transform conduct into ‘speech.’”⁴ Expressive conduct is evaluated under a “less stringent” constitutional standard than pure speech and thus more subject to regulation and restriction.⁵ Some expressive conduct may be forbidden altogether, when “a sufficiently important governmental interest in regulating the nonspeech element” of the activity justifies “incidental limitations” on the protected expression.⁶ The relevant test is an intermediate scrutiny standard that was announced in United States v. O’Brien: “a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”⁷ This intermediate standard is related to the idea that even regulations of pure speech may sometimes be justified if they regulate only the time, place, or manner of the speech—that is, focusing on non-content elements of the speech.⁸ If speech is oral, it may be noisy enough to be disturbing,⁹ and, if it is written, it may be litter;¹⁰ in either case, the noise or litter aspects of the speech may be regulable.¹¹

United States v. O’Brien¹² affirmed a conviction and upheld a congressional prohibition against destruction of draft registration certificates; O’Brien had publicly burned his draft card. Finding that the government’s interest in having registrants retain their cards at all times was an important one and that the prohibition of destruction of the cards worked no restriction of First Amendment freedoms broader than necessary to serve the interest, the Court upheld the statute. Subsequently, the Court upheld a “passive enforcement” policy singling out for prosecution for failure to register for the draft those young men who notified authorities of an intention not to register for the draft and those reported by others.¹³

Amdt1.7.14.2 Leaflets and Handbills

In Lovell v. City of Griffin,¹ the Supreme Court struck down a permit system applying to the distribution of circulars, handbills, or literature of any kind. The First Amendment, the Court said, “necessarily embraces pamphlets and leaflets,” which “have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest.”² State courts, responding to what appeared to be a hint in Lovell that prevention of littering and other interests might be sufficient to sustain a flat ban on literature distribution,³ upheld total prohibitions and were reversed in Schneider v. State.⁴ The Court held that “[m]ere legislative preferences” for keeping “the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it.”⁵ In Talley v. California,⁶ the Court struck down an ordinance that banned all handbills that did not carry the name and address of the author, printer, and sponsor. The Court noted that “[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind,” allowing criticism of “oppressive practices and laws either anonymously or not at all.”⁷ Imposing identification requirements “might deter perfectly peaceful discussions of public matters of importance.”⁸ Responding to the city’s defense that the ordinance was aimed at providing a means to identify those responsible for fraud, false advertising, and the like, the Court noted that “the ordinance is in no manner so limited,” saying the Court would not, therefore, “pass on the validity of an ordinance limited to these or any other supposed evils.”⁹

Talley’s anonymity rationale was strengthened in McIntyre v. Ohio Elections Comm’n,¹⁰ invalidating Ohio’s prohibition on the distribution of anonymous campaign literature. There is a “respected tradition of anonymity in the advocacy of political causes,” the Court noted, and neither of the interests asserted by Ohio justified the limitation. The Court held that the state’s interest in informing the electorate was “plainly insufficient,” and, although the more weighty interest in preventing fraud in the electoral process might be accomplished by a direct prohibition, it could not be accomplished indirectly by an indiscriminate ban on a whole category of speech.¹¹ Ohio could not apply the prohibition, therefore, to punish anonymous distribution of pamphlets opposing a referendum on school taxes.¹²

The handbilling cases were distinguished in City Council v. Taxpayers for Vincent,¹³ in which the Court held that a city may prohibit altogether the use of utility poles for posting of signs. Although a city’s concern over visual blight could be addressed by an anti-littering ordinance not restricting the expressive activity of distributing handbills, in the case of utility pole signs “it is the medium of expression itself” that creates the visual blight. Hence, the city’s prohibition, unlike a prohibition on distributing handbills, was narrowly tailored to curtail no more speech than necessary to accomplish the city’s legitimate purpose.¹⁴ Ten years later, however, the Court unanimously invalidated a town’s broad ban on residential signs that permitted only residential identification signs, “for sale” signs, and signs warning of safety hazards.¹⁵ Prohibiting homeowners from displaying political, religious, or personal messages on their own property entirely foreclosed “a venerable means of communication that is unique and important,” and that is “an unusually cheap form of communication” without viable alternatives for many residents.¹⁶ The ban was thus reminiscent of total bans on leafleting, distribution of literature, and door-to-door solicitation that the Court had struck down in the 1930s and 1940s. The prohibition in Vincent was distinguished as not removing a “uniquely valuable or important mode of communication,” and as not impairing citizens’ ability to communicate.¹⁷

Amdt1.7.14.3 Flags as a Case Study in Symbolic Speech

Very little expression is “mere” speech. Conduct may have a communicative content, intended to express a point of view. Expressive conduct may consist of flying a particular flag as a symbol¹ or in refusing to salute a flag as a symbol.²

In one case, the Supreme Court concluded that “the flag salute is a form of utterance,” explaining that symbolism is communication, and “[t]he use of an emblem or flag to symbolize some system, idea, institution, or personality is a short cut from mind to mind.”³ When conduct or action has a communicative content to it, governmental regulation or prohibition implicates the First Amendment, but this does not mean that such conduct or action is necessarily immune from governmental process.

The Court divided when it had to deal with one of the more popular forms of “symbolic” conduct of the late 1960s and early 1970s—flag burning and other forms of flag desecration. Thus, in Street v. New York,⁴ the defendant had been convicted under a statute punishing desecration “by words or act” upon evidence that when he burned the flag he had uttered contemptuous words. The conviction was set aside because it might have been premised on his words alone or on his words and the act together, and no valid governmental interest supported penalizing verbal contempt for the flag.⁵

A few years later the Court reversed two other flag desecration convictions, one on due process/vagueness grounds, the other under the First Amendment. In Smith v. Goguen,⁶ a statute punishing anyone who “publicly . . . treats contemptuously the flag of the United States” was held unconstitutionally vague, and a conviction for wearing trousers with a small United States flag sewn to the seat was overturned. The language subjected the defendant to criminal liability under a standard “so indefinite that police, court, and jury were free to react to nothing more than their own preferences for treatment of the flag.”⁷

The First Amendment was the basis for reversal in Spence v. Washington,⁸ which set aside a conviction under a statute punishing the display of a United States flag to which something is attached or superimposed. The defendant had hung his flag from his apartment window upside down with a peace symbol taped to the front and back. The act, the Court thought, was a form of communication, and because of the nature of the act, and the factual context and environment in which it was undertaken, the Court held it to be protected. The context considered by the Court included the fact that the flag was privately owned, that it was displayed on private property, and that there was no danger of breach of the peace. The Court also emphasized that the act was intended to express an idea and it did so without damaging the flag. The Court assumed that the state had a valid interest in preserving the flag as a national symbol, but left unclear whether that interest extended beyond protecting the physical integrity of the flag.⁹

The underlying assumption that flag burning could be prohibited as a means of protecting the flag’s symbolic value was later rejected. Twice, in 1989 and again in 1990, the Court held that prosecutions for flag burning at a public demonstration violated the First Amendment. First, in Texas v. Johnson¹⁰ the Court rejected a state desecration statute designed to protect the flag’s symbolic value, and then in United States v. Eichman¹¹ rejected a more limited federal statute purporting to protect only the flag’s physical integrity. Both cases were decided by 5-4 votes, with Justice William Brennan writing the Court’s opinions.¹² The Texas statute invalidated in Johnson defined the prohibited act of “desecration” as any physical mistreatment of the flag that the actor knew would seriously offend other persons. This emphasis on causing offense to others meant that the law was not “unrelated to the suppression of free expression” and that consequently the deferential standard of United States v. O’Brien, discussed in an earlier essay, was inapplicable.¹³ Applying strict scrutiny instead, the Court ruled that the state’s prosecution of someone who burned a flag at a political protest was not justified under the state’s asserted interest in preserving the flag as a symbol of nationhood and national unity. The Court’s opinion left open the question whether the Court would uphold a “content-neutral” statute protecting the physical integrity of the flag.

Immediately following Johnson, Congress enacted a new flag protection statute providing punishment for anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States.”¹⁴ The law was designed to be content-neutral and to protect the “physical integrity” of the flag.¹⁵ Nonetheless, the 1990 decision in United States v. Eichman overturned convictions of flag burners, as the Court found that the law suffered from “the same fundamental flaw” as the Texas law in Johnson.¹⁶ The government’s underlying interest, characterized by the Court as resting upon “a perceived need to preserve the flag’s status as a symbol of our Nation and certain national ideals,”¹⁷ still related to the suppression of free expression. Support for this interpretation was found in the fact that most of the prohibited acts are usually associated with disrespectful treatment of the flag; this suggested to the Court “a focus on those acts likely to damage the flag’s symbolic value.”¹⁸ As in Johnson, such a law could not withstand strict scrutiny analysis.

Amdt1.7.14.4 Public Issue Picketing and Parading

In its early cases, the Supreme Court held that picketing and parading were forms of expression entitled to some First Amendment protection.¹ Those early cases did not, however, explicate the difference in application of First Amendment principles that the difference between mere expression and speech-plus would entail. Many of these cases concerned disruptions or feared disruptions of the public peace occasioned by the expressive activity and the ramifications of this on otherwise protected activity.² A series of other cases concerned the permissible characteristics of permit systems in which parades and meetings were licensed, and expanded the procedural guarantees that must accompany a permissible licensing system.³ In Hughes v. Superior Court, however, the Supreme Court upheld an injunction against picketers asking a grocery store to adopt a quota-hiring system for Black employees, affirming the state court’s ruling that picketing to coerce the adoption of racially discriminatory hiring was contrary to state public policy.⁴

A series of civil rights picketing and parading cases led the Court to formulate standards seemingly more protective of expressive activity. The process began with Edwards v. South Carolina,⁵ in which the Court reversed a breach of the peace conviction of several Black protesters for their refusal to disperse as ordered by police. The statute was so vague, the Court concluded, that the demonstrators had been convicted simply because they peaceably expressed unpopular views. Describing the demonstration upon the grounds of the legislative building in South Carolina’s capital, Justice Potter Stewart observed that “[t]he circumstances in this case reflect an exercise of these basic [First Amendment] constitutional rights in their most pristine and classic form.”⁶ In subsequent cases, however, the Court rejected the idea that the First Amendment “afford[s] the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as . . . to those who communicate ideas by pure speech.”⁷ The Court emphasized that “certain forms of conduct mixed with speech may be regulated or prohibited,” and further concluded that picketing and parading may be regulated under a sufficiently narrowly drawn statute “even though [such conduct is] intertwined with expression and association.”⁸

The Court must determine, of course, whether the regulation is aimed primarily at conduct, or whether instead the aim is to regulate the content of speech. In a series of decisions, the Court refused to permit restrictions on parades and demonstrations, and reversed convictions for breach of the peace and similar offenses, when, in the Court’s view, opponents of the demonstrators’ messages had created the disturbance.⁹ Subsequently, however, the Court upheld a ban on residential picketing in Frisby v. Shultz,¹⁰ finding that the city ordinance was narrowly tailored to serve the “significant” governmental interest in protecting residential privacy. As interpreted, the ordinance banned only picketing that targeted a single residence, and it is unclear whether the Court would uphold a broader restriction on residential picketing.¹¹

In 1982’s NAACP v. Claiborne Hardware Co.,¹² the Justices confronted a case, that, like Hughes v. Superior Court,¹³ involved a state court injunction on picketing, although this one also involved a damage award. The case arose in the context of a protest against racial conditions by Black citizens of Claiborne County, Mississippi. Listing demands that included desegregation of public facilities, hiring Black policemen, hiring more Black employees by local stores, and ending verbal abuse by police, the local chapter of the National Association for the Advancement of Colored People, Inc. (NAACP) unanimously voted to boycott the area’s White merchants. The boycott was carried out through speeches and nonviolent picketing and solicitation of others to cease doing business with the merchants. Individuals were designated to watch stores and identify Black people patronizing the stores; their names were then announced at meetings and published. Persuasion of others included social pressures and threats of social ostracism. Acts of violence did occur from time to time, directed in the main at Black people who did not observe the boycott.

The state Supreme Court imposed joint and several liability upon leaders and participants in the boycott, and upon the NAACP, for all of the merchants’ lost earnings during a seven-year period on the basis of the common law tort of malicious interference with the merchants’ business, holding that the existence of acts of physical force and violence and the use of force, violence, and threats to achieve the ends of the boycott deprived it of any First Amendment protection.

Reversing, the Supreme Court observed that the goals of the boycotters were legal and that most of their means were constitutionally protected; although violence was not protected, its existence alone did not deprive the other activities of First Amendment coverage, particularly where there was no evidence that the boycott organizers authorized, ratified, or even had specific knowledge of the violence. Thus, speeches and nonviolent picketing, both to inform the merchants of grievances and to encourage others to join the boycott, were protected activities, and association for those purposes was also protected.¹⁴ The Court ruled that the activity was protected even though nonparticipants had been urged to join by threats of social ostracism: “[s]peech does not lose its protected character . . . simply because it may embarrass others or coerce them into action.”¹⁵ The boycott had a disruptive effect upon local economic conditions and resulted in loss of business for the merchants, but in the Court’s view, these consequences did not justify suppression of the boycott. Government may regulate certain economic activities having an incidental effect upon speech (for example, labor organizing or business conspiracies to restrain competition),¹⁶ but that power of government does not extend to suppression of picketing and other boycott activities involving, as this case did, speech upon matters of public affairs with the intent of affecting governmental action and motivating private actions to achieve racial equality.¹⁷

The critical issue for the lower court, however, had been the occurrence of violent acts. The Supreme Court first affirmed that the “First Amendment does not protect violence” or prevent a state “from imposing tort liability for business losses that are caused by violence and by threats of violence.”¹⁸ Nonetheless, the Court stressed that the First Amendment demands precision of regulation “[w]hen such conduct occurs in the context of constitutionally protected activity,” limiting “the grounds that may give rise to damages liability and . . . the persons who may be held accountable for those damages.”¹⁹ In other words, the states may impose damages for the consequences of violent conduct, but they may not award compensation for the consequences of nonviolent, protected activity.²⁰ Thus, the state courts had to compute, upon proof by the merchants, what damages had been the result of violence, and only those nonviolent persons who associated with others with an awareness of violence and an intent to further it could similarly be held liable.²¹ Because most of the acts of violence had occurred early on, in 1966, there was no way constitutionally that much if any of the later losses of the merchants could be recovered in damages.²² As to the field secretary of the local NAACP, the Court refused to permit imposition of damages based upon speeches that could be read as advocating violence, because they did not meet the standard for speech likely to incite imminent lawless action.²³ The award against the NAACP fell with the denial of damages against its local head, and, in any event, the protected right of association required a rule that would immunize the NAACP without a finding that it “authorized—either actually or apparently—or ratified unlawful conduct.”²⁴

Claiborne Hardware is, thus, a seminal decision in the Court’s effort to formulate standards governing state power to regulate or to restrict expressive conduct that comes close to or crosses over the line to encompass some violent activities; it requires great specificity and the drawing of fine discriminations by government so as to reach only that portion of the activity that does involve violence or the threat of violence.²⁵

More recently, disputes arising from anti-abortion protests outside abortion clinics have occasioned another look at principles distinguishing lawful public demonstrations from proscribable conduct. In Madsen v. Women’s Health Center,²⁶ the Court refined principles governing issuance of “content-neutral” injunctions that restrict expressive activity.²⁷ The appropriate test, the Court stated, is “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant governmental interest.”²⁸ Regular time, place, and manner analysis (requiring that regulation be narrowly tailored to serve a significant governmental interest) “is not sufficiently rigorous,” the Court explained, “because injunctions create greater risk of censorship and discriminatory application, and because of the established principle that an injunction should be no broader than necessary to achieve its desired goals.”²⁹ Applying its new test, the Court upheld an injunction prohibiting protesters from congregating, picketing, patrolling, demonstrating, or entering any portion of the public right-of-way within thirty-six feet of an abortion clinic—after concluding that the injunction targeted this particular group of protesters because of their past actions, rather than because of the content or viewpoint of their speech. The Court also upheld the injunction’s noise restrictions designed to ensure the health and well-being of clinic patients. Other aspects of the injunction, however, did not pass the test. The Court believed inclusion of private property within the thirty-six-foot buffer was not adequately justified, nor was inclusion in the noise restriction of a ban on “images observable” by clinic patients. A ban on physically approaching any person within 300 feet of the clinic unless that person indicated a desire to communicate burdened more speech than necessary, in the Court’s view. Also, a ban on demonstrating within 300 feet of the residences of clinic staff was not sufficiently justified, as the Court said the restriction covered a much larger zone than an earlier residential picketing ban that the Court had upheld.³⁰

In Schenck v. Pro-Choice Network of Western New York,³¹ the Court applied the Madsen test to another injunction that placed restrictions on demonstrating outside an abortion clinic. The Court upheld the portion of the injunction that banned “demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities”—what the Court called “fixed buffer zones.”³² It struck down a prohibition against demonstrating “within fifteen feet of any person or vehicles seeking access to or leaving such facilities”—what it called “floating buffer zones.”³³ The Court cited “public safety and order”³⁴ in upholding the fixed buffer zones, but it found that the floating buffer zones “burden[ed] more speech than is necessary to serve the relevant governmental interests”³⁵ because they made it “quite difficult for a protester who wishes to engage in peaceful expressive activity to know how to remain in compliance with the injunction.”³⁶ The Court also upheld a “provision, specifying that once sidewalk counselors who had entered the buffer zones were required to ‘cease and desist’ their counseling, they had to retreat 15 feet from the people they had been counseling and had to remain outside the boundaries of the buffer zones.”³⁷

In Hill v. Colorado,³⁸ the Court upheld a Colorado statute that made it unlawful, within 100 feet of the entrance to any health care facility, to “knowingly approach” within eight feet of another person, without that person’s consent, “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.”³⁹ This decision is notable because it upheld a statute, and not, as in Madsen and Schenck, merely an injunction directed to particular parties. The Court found the statute to be a content-neutral time, place, and manner regulation of speech that “reflect[ed] an acceptable balance between the constitutionally protected rights of law-abiding speakers and the interests of unwilling listeners.”⁴⁰ The restrictions were content-neutral because they regulated only the places where some speech may occur, and because they applied equally to all demonstrators, regardless of viewpoint. Although the restrictions did not apply to all speech, the Court deemed the “kind of cursory examination” that might be required to distinguish casual conversation from protest, education, or counseling not “problematic,” noting that it often would not be necessary to know the exact content of speech to determine whether a person’s course of conduct was covered by the law.⁴¹ The Court further held that the law was narrowly tailored to achieve the state’s interests, saying that the eight-foot restriction did not significantly impair the ability to convey messages by signs, and ordinarily allowed speakers to come within a normal conversational distance of their targets. Because the statute allowed the speaker to remain in one place, persons who wished to hand out leaflets could position themselves beside entrances near the path of oncoming pedestrians, and consequently were not deprived of the opportunity to get the attention of persons entering a clinic.

In McCullen v. Coakley, the Court applied the same content-neutral analysis as that in Hill, but nonetheless struck down a statutory thirty-five-foot buffer zone at entrances and driveways of abortion facilities.⁴² The Court concluded that the buffer zone was not narrowly tailored to serve governmental interests in maintaining public safety and preserving access to reproductive healthcare facilities, the concerns claimed by Massachusetts to underlie the law.⁴³ The opinion cited several alternatives to the buffer zone that would not curtail the use of public sidewalks as traditional public forums for speech, nor significantly burden the ability of those wishing to provide “sidewalk counseling” to women approaching abortion clinics. Specifically, the Court held that, to preserve First Amendment rights, targeted measures, such as injunctions, enforcement of anti-harassment ordinances, and use of general crowd control authority, as needed, are preferable to broad, prophylactic measures.⁴⁴

Different types of issues were presented by Hurley v. Irish-American Gay Group,⁴⁵ in which the Court held that a state’s public accommodations law could not be applied to compel private organizers of a St. Patrick’s Day parade to accept in the parade a unit that would proclaim a message that the organizers did not wish to promote. Each participating unit affects the message conveyed by the parade organizers, the Court observed, and application of the public accommodations law to the content of the organizers’ message contravened the “fundamental rule . . . that a speaker has the autonomy to choose the content of his own message.”⁴⁶

Amdt1.7.14.5 Labor Union Protests and Marches

The Supreme Court has suggested that “public-issue picketing” rests “on the highest rung of the hierarchy of First Amendment values,” while labor picketing might be treated somewhat differently.¹ Though the public issue cases are “logically relevant” to labor picketing, the cases dealing with application of economic pressures by labor unions are set apart by different “economic and social interests.”²

It was in a labor case that the Court first held picketing to be entitled to First Amendment protection.³ Striking down a flat prohibition on picketing with intent to influence or induce someone to do something, the Court said: “In the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution.”⁴ The Court further reasoned that “the group in power at any moment may not impose penal sanctions on peaceful and truthful discussion of matters of public interest merely on a showing that others may thereby be persuaded to take action inconsistent with its interests.”⁵

The Court soon recognized several caveats to this protection, saying, for example, that peaceful picketing may be enjoined if it is associated with violence and intimidation.⁶ Although initially the Court continued to find picketing protected in the absence of violence,⁷ it soon decided a series of cases recognizing a potentially far-reaching exception: injunctions against peaceful picketing in the course of a labor controversy may be enjoined when such picketing is counter to valid state policies in a domain open to state regulation.⁸ The apparent culmination of this course of decision was International Brotherhood of Teamsters v. Vogt, in which Justice Felix Frankfurter broadly rationalized all the cases and derived the rule that “a State, in enforcing some public policy, whether of its criminal or its civil law, and whether announced by its legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy.”⁹ Although the Court has not disavowed this broad language, the Vogt exception has apparently not swallowed the entire Thornhill rule.¹⁰ The Court has indicated that “a broad ban against peaceful picketing might collide with the guarantees of the First Amendment.”¹¹

Amdt1.7.14.6 Solicitation

In Martin v. City of Struthers, the Supreme Court struck down an ordinance forbidding solicitors or distributors of literature from knocking on residential doors in a community, the asserted 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 5-4 majority concluded that “[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” with a more “narrowly drawn ordinance, that does not vest in municipal officers the undefined power to determine what messages residents will hear.”² 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.³ The Court rejected a privacy rationale, as just as much intrusion was likely by permitted as by non-permitted solicitors. A rationale of prevention of fraud was also unavailing, as the Court did not believe 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.

The Court similarly invalidated laws regulating solicitation in Secretary of State v. Joseph H. Munson Co.,⁴ and Riley v. National Federation of the Blind.⁵ In Munson, the Court invalidated an overbroad 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 expressed concern about the law placing the burden on 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 Court ruled that 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