Do Not Knock? Lovell to Watchtower and Back Again

AuthorGeoffrey D. Korff
PositionJ.D. Syracuse University College of Law; B.A. The Ohio State University
Since the United States Supreme Court decided Lovell v. City of
Griffin1 in 1938, there has b een an ongoing struggle between the courts and
municipalities that have passed laws limiting the ability of charitable,
political, and religious groups to speak to residents and solicit funding for
their resp ective organizations.2 In 2002, it appeared the Court provided a
definitive blow against those muni cipalities attempting to limit the abilit y
of religi ous and poli tical groups to go door-to-door and spread th eir
messages. In Watchtower Bibl e & Tra ct Society of New York, Inc. v.
Village of Stratton,3 the Court stated unequivocally that “[i]t is
offensive . . . to the very notion of a free society—that in the cont ext of
everyday public discourse a citizen must first i nform the government of her
desire to speak to h er neighbors . . . .”4 Even with such strong language,
the core of Watchtower has eroded over the course of the past several
years, and new quest ions have been raised as to its effe ct.
It is well establi shed in American constitut ional jurisprudence that
commercial speech is afforded less protection th an is non-commercial or
“pure speech” under the First Amendment;5 yet ther e is no bright-line
Copyright © 2010, Geoffrey D. Korff
1 J.D. Syracuse University College of Law; B.A. The Oh io St ate Unive rsity. This
article would not have been possible without the knowledge and efforts of Attorney Ed ward
Icove of the Icove Legal Group , Ltd., and Ohio Citizen Action. All mist akes are my own.
1 303 U.S. 444 (1938).
2 See, e.g., Murdock v. Pennsylvania, 319 U.S. 105, 116–17 (1943) (invalidating a
municipal ordinance requ iring a license to canvass); Cantwe ll v. Connecticut, 310 U.S. 296 ,
304 (1940) (inval idating a state law prohibiting solicitation fo r religious, charitable, and
philanthropic causes without governmental approval); Schneider v. State, 308 U.S. 147,
163–65 (1939) (invalidating a muni cipal ordinance requiring a license to canvas s).
3 536 U.S. 150 (2002).
4 Id. at 165–66.
5 E.g., Cent. Hu dson Gas & Elec. Corp. v. Pub. Serv. C omm’n of N.Y., 447 U.S. 5 57,
562–63 (1980).
between the two concepts, and deter mining what level of protection is
warranted has prov en difficult.6
The Court has not s et forth an easily understood or e asily applicabl e
definition of com mercial speech. This is perhaps because segregating
commercial and non-commercial speech int o di stinct categories has not
proven to be a simple undertaking.7 Thi s struggle over definitions has left
both practitioners and academics to ask the obvious question: What is
commercial speech?8 Groups that depend on their ability to cou ple
fundraising with political advocacy place profound importance on this
Regardless o f the mix ed feelings t hat surround the issue, the
commercial speech doctrine is firmly embedded within the First
Amendment.9 The purpose o f this article is to analyze the distinction
between co mmercial and pure speech as it pertains to political expressi on
that is “inextricably intertwin ed” with a co mmercial interest.10 The article
then examines a n ew trend in lawmaking, whereby ci ties, taking a cue from
the federal government , prevent political and religious group s from
knocking on their resi dents’ doors.
Part II of this article addres ses commercial speech generally and th e
judicial developments that led to its existence. Part III addresses a recent
outgrowth of th e commercial speech doctrine, th at being the Telemarketing
Sales Rule11 and the “ Do Not Call” regi stry.12 Part IV identifies several
6 See, e.g., David F. McGowan, Comment, A C ritical Analysis of Commercial Sp eech,
78 CAL. L. REV. 359, 360 (1990) (finding no definition of commercial speech and no
coherent theory for p rotecting such speech in F irst Amendment jurisprudence); C aren
Schmulen Sweetland, Note, The D emise of a Workable Commercial S peech Doctrine:
Dangers of Extending First Amendment Protection to Commercial Disclosure
Requirements, 76 TEX. L. REV. 471 , 472 (1997) (stating commercial speech regulations lack
7 See, e.g., McGowan, supra n ote 6.
8 See generally Erwin Chem erinsky & Catherine Fisk, Wh at Is Commercial Speech?
The Issue Not Decided in Nike v. Kasky, 54 CASE W. R ES. L. REV. 1143 (2004) (providing
a brief history of the complex judicial history of commercial speech and discussing the
increasingly blurry line betw een commercial and non-commercial speech).
9 This ar ticle presents the necessary and unavoidable history of the commercial speech
doctrine, but it is admitted ly a duplicativ e effort. Se e Alan B. Morrison, How W e Got the
Commercial Speech Do ctrine: An Originalist’s Recollections, 54 CASE W . RES. L. REV.
1189 (2004), for a thorough recounting of the d evelopment of the commercial speech
10 See, e.g., Riley v. Nat’l Fed’n of th e Blind of N.C., Inc., 487 U.S. 781, 796 (1988).
11 Telemarketing Sales Rule, 16 C.F.R. § 310 (2009).
past attempts to restrict door-to-do or advocacy and support for various
causes, and ho w the Supreme Court has dealt with these issu es. Part V
addresses a rec ent development in Ohio, where a municipality at tempted to
adopt a “Do Not Knock” ordinance13 mirrored after the national “Do Not
Call” reg istry. Part VI highlights a recent case out of the Fou rth Circuit,
noting the al lowable limitations on charitable solicitation. Finally, Part VII
concludes t he article, and offers some p redictions and expectations for th e
future of this issu e.
The comm ercial speech doctrine has d eveloped into a bit of a jumble.
Courts have struggl ed to co nstruct a straightforward definition of
commercial speech and to develop rationale as to why commercial spee ch
should be afforded less protection.14 Central Hudson Gas & Electric Corp.
v. Public Service Commission of New York15 is the most frequ ently cited
case when courts address co mmercial speech issues b ecause of the test it
provides, but it is not the fountainhead of the doctrine. The sep aration of
commercial speech from other speech with regard to First Amendment
protection original ly occurred in Valentine v. Chresten sen.16
The Co urt’s announcement of the commercia l speech doctrine i n
Chrestensen was almost cavalier . In passing, the Court set forth the
general rule that government may not impede a person’s use of public
places for the dissemination of ideas,17 but then opin ed that “the
12 § 310.4(b)(1)(iii)(B).
13 PARMA, OHIO, CODI FIED ORDINANCES § 757.06(g) (2009), a vailable at http://www. hio/parma_oh/codifiedordinan cesofthecityofparmaohio?f=t e
mplates$fn=default.htm$3.0$ vid=amlegal:parma_oh.
14 See Note, Dissent, Corporate Cart els, & the Commercial Speech Doctrine, 120
HARV. L. REV. 1892, 1898 (2007).
15 447 U.S. 557 (1980).
16 316 U.S. 52 (1942). Wh ere Chrestensen is cor rectly referred to as the fountainhead,
Va. Sta te Bd. of Pharmacy v. Va. Citizens Con sumer Council, Inc., 425 U.S. 7 48 (1976),
has been referred to as the “spr ingboard.” Morrison, supra note 9, at 1190.
17 The Court stated:
[S]treets are proper places for the exercise of the freedom of
communicating inform ation and disseminating o pinion and that, thoug h
the states and municipalities may approp riately regulate the privile ge in
the publi c interest, they may not u nduly burden or pro scribe its
employment in these public thoroughfares. We are equally clear that
Tim Pudlowski1 4/21/10 10:01 AM
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