Do Not Knock? Lovell to Watchtower and Back Again

• Author: Geoffrey D. Korff
• Position: J.D. Syracuse University College of Law; B.A. The Ohio State University
• Pages: 535-566

DO NOT KNOCK?

LOVELL TO WATCHTOWER AND BACK AGAIN

GEOFFREY D. KORFF1

I. INTRODUCTION

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).

536 CAPITAL UNIVER SITY LAW REVIEW [38:535

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

question.

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

uniformity).

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

doctrine.

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).

2010] LOVELL TO WAT CHTOWER AND B ACK AGAIN 537

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.

II. COMMERCIAL SPEECH GENE RALLY

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.

amlegal.com/nxt/gateway.dll/O 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

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Tim Pudlowski1 4/21/10 10:01 AM

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