Hynes v. Mayor and Council of Oradell

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins, concurring in part.

I join Part 3 of the Court’s opinion holding that Oradell Ordinance No. 598A must be invalidated as im-permissibly vague. The Court reserves decision on other constitutional contentions alleged to invalidate the ordinance. Ante, at 620-621, n. 4. Despite this reservation, Part 2 of the Court’s opinion may be read as suggesting that, vagueness defects aside, an ordinance of this kind would ordinarily withstand constitutional attack. Because I believe that such ordinances must encounter substantial First Amendment barriers besides vagueness, I cannot join Part 2 and briefly state my reasons.

In considering the validity of laws regulating door-to-door solicitation and canvassing, Mr. Justice Black, speaking for the Court in Martin v. Struthers, 319 U. S. *624141 (1943), properly recognized that municipalities have an important interest in keeping neighborhoods safe and peaceful. But unlike the Court today, he did not stop there. Rather, he- emphasized the other side of the equation — that door-to-door solicitation and canvassing is a method of communication essential to the preservation of our free society. He said:

“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 attests 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, [308 U. S. 147, 164 (1939)]. Many of our most widely established religious organizations have used this method of disseminating their doctrines, and laboring groups have used it in recruiting their members. The federal government, in its current war bond selling campaign, encourages groups of citizens to distribute advertisements and circulars from house to house. 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. Door to door distribution of circulars is essential to the poorly financed causes of little people.” Id., at 145-146.

It can hardly be denied that an ordinance requiring *625the door-to-door campaigner to identify himself discourages free speech. Talley v. California, 362 U. S. 60 (1960), invalidated a Los Angeles ordinance requiring handbills to carry the name and address of persons writing, printing, or distributing them. Since the requirement destroyed anonymity, “[t]here [could] be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression/' id., at 64, for:

“Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. . . . Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.” Id., at 64r-65.

No less may be said of anonymity sought to be preserved in the door-to-door exposition of ideas. That anonymity is destroyed by an identification requirement like the Oradell ordinance.1 “ [Identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance,” id., at 65, particularly where door-to-door solicitation seeks discussion of sensitive and controversial issues, such as civilian police *626review boards, the decriminalization of specified types of conduct, or the recall of an elected police oficial. Deplorably, apprehension of reprisal by the average citizen is too often well founded. The national scene in recent times has regrettably provided many instances of penalties for controversial expression in the form of vindictive harassment, discriminatory law enforcement, executive abuse of administrative powers, and intensive government surveillance.2

Nor is the threat to free expression by ordinances of this type limited to their jeopardization of anonymity. Perhaps an even greater threat lies in the impermissible burden they impose upon political expression, the core conduct protected by the First Amendment.3 Unques*627tionably, the lifeblood of today’s political campaigning must be the work of volunteers. The oppressive financial burden of campaigns makes reliance on volunteers *628absolutely essential and, in light of the enormous significance of citizen participation to the preservation and strength of the democratic ideal, absolutely desirable, indeed indispensable. Offensive to the sensibilities of private citizens, identification requirements such as the Oradell ordinance, even in their least intrusive form, must discourage that participation.

I recognize that there are governmental interests that may justify restraints on free speech. But in the area of First Amendment protections, “[t]he rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice.... Accordingly, whatever occasion would restrain orderly-discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending.” Thomas v. Collins, 323 U. S. 516, 530 (1945). Restraints implicit in identification requirements, however, extend beyond restrictions on time and place — they chill discussion itself. The Oradell type of ordinance therefore raises substantial First Amendment questions not presented by the usual time, place, and manner regulation.4 See Grayned v. City of Rockford, *629408 U. S. 104, 115 (1972). Under the ordinance, no authentication of identity need be submitted, and therefore the requirement can be easily evaded.5 In that circumstance, the requirement can hardly be justified as protective of overriding governmental interests since evasion can easily thwart that objective. See Buckley v. Valeo, 424 U. S. 1, 45 (1976). But imposition of more burdensome identification requirements, such as authentication, would doubtless only serve further to discourage protected activity and, therefore, not eliminate the First Amendment difficulty. Moreover, the purported aid to crime prevention provided by identification of solicitors is not so self-evident as to relieve the State of the burden of proving that this asserted interest would be served. What Mr. Justice Harlan said of the handbill ordinance invalidated in Talley may equally be said of ordinances of the Oradell type:

“Here the State says that this ordinance is aimed at the prevention of ‘fraud, deceit, false advertising, negligent use of words, obscenity, and libel/ in that *630it will aid in the detection of those responsible for spreading material of that character. But the ordinance is not so limited, and I think it will not do for the State simply to say that the circulation of all anonymous handbills must be suppressed in order to identify the distributors of those that may be of an obnoxious character. In the absence of a more substantial showing as to Los Angeles’ actual experience with the distribution of obnoxious handbills, such a generality is for me too remote to furnish a constitutionally acceptable justification for the deterrent effect on free speech which this all-embracing ordinance is likely to have.” 362 U. S., at 66-67 (concurring opinion).6

Contrary to the thrust of Part 2 of the Court’s opinion, it seems inescapable that ordinances of the Oradell type, however precisely drafted to avoid the pitfalls of vagueness, must present substantial First Amendment questions. The imperiling of precious constitutional values, for reasons however justifiable, cannot be taken lightly. The prevention of crime is, of course, one of the most serious of modern-day problems. But our perception as individuals of the need to solve that particular problem should not color our judgment as to the constitutionality of measures aimed at that end.

Our recent decision in Buckley v. Valeo, 424 U. S. 1 (1976), is wholly consistent with this view. Buckley clearly recognized that “compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.” Id., at 64. See id., at 68, 71, 81-82. In Buckley, the Court did uphold the disclosure provisions of the Federal Election Campaign Act despite their effect on anonymity, distinguishing Talley v. California, 362 U. S. 60 (1960), as involving a disclosure law not narrowly limited to situations where the information sought has a substantial connection with the governmental interest sought to be advanced. Here, however, there are substantial questions whether identification requirements like Oradell’s are so adequately related to their purpose as to withstand First Amendment challenge. See infra, at 628-630. Moreover, door-to-door solicitation, unlike the contribution of money, is an activity of high visibility. Consequently, the danger of deterrence is much greater here than with respect to contributions. Indeed, Buckley, in expressing its concern for the special problems of minority parties, recognized the greater threat posed to free speech where smaller numbers result in the clearer association of individuals with a cause. See 424 U. S., at 68-72.

Ordinance 598A does not expressly require solicitors to identify the political campaign or candidate for whose cause they solicit. It may be that such a requirement is implicit in the provision that “notification [to the police] shall be good for the duration of the campaign or cause.” If so, there may be a First Amendment question whether that disclosure can be compelled. Indeed, that question would be presented even if a requirement of personal identification could withstand First Amendment challenge.

"Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order *627‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ Roth v. United States, 354 U. S. 476, 484 (1957). Although First Amendment protections are not confined to ‘the exposition of ideas,’ Winters v. New York, 333 U. S. 507, 510 (1948), ‘there is practically universal agreement that a major purpose of th[e] Amendment was to protect the free discussion of governmental affairs, ... of course includ[ing] discussions of candidates . . . .’ Mills v. Alabama, 384 U. S. 214, 218 (1966). This no more than reflects our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,’ New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. As the Court observed in Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971), ‘it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.’ ” Buckley v. Valeo, supra, at 14-15.

“The First Amendment does not protect a ‘freedom to speak.’ It protects the freedom of those activities of thought and communication by which we ‘govern.’...

“In the specific language of the Constitution, the governing activities of the people appear only in terms of casting a ballot. But in the deeper meaning of the Constitution, voting is merely the external expression of a wide and diverse number of activities by means of which citizens attempt to meet the responsibilities of making judgments, which that freedom to govern lays upon them. . . .

“The responsibilities mentioned are of three kinds. We, the people who govern, must try to understand the issues which, incident by incident, face the nation. We must pass judgment upon the decisions which our agents make upon those issues. And, further, we must share in devising methods by which those decisions can be made wise and effective or, if need be, supplanted by others which promise greater wisdom and effectiveness. . . . These are the activities to whose freedom [the First Amendment] gives its *628unqualified protection.” Meiklejohn, The First Amendment is an Absolute, 1961 Sup. Ct. Rev. 245, 255.

To be sure, Mr. Justice Black did observe in Martin v. Struthers, 319 U. S. 141, 148 (1943), that “[a] city can ... by identification devices control the abuse of the privilege by criminals posing as canvassers.” The validity of that passing remark, however, may be questioned in light of the later decisions in Talley v. California, supra, and Thomas v. Collins, 323 U. S. 516 (1945). Moreover, the footnote accompanying that statement apparently limited its applicability to solicitation of money. The footnote states: “ '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 repre*629sent' ” 319 U. S., at 148 n. 14 (emphasis added) (quoting Cantwell v. Connecticut, 310 U. S. 296, 306 (1940)). But, as I suggest in the text, solicitation of support for a candidate in a political campaign presents a First Amendment question of a very different order. The opinion in Thomas draws the distinction:

“We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment.
“Once the speaker goes further, however, and engages in conduct which amounts to more than the right of free discussion comprehends, as when he undertakes the collection of funds or securing subscriptions, he enters a realm where a reasonable registration or identification requirement may be imposed. . . .” 323 U. S., at 540.

Indeed, the opinion of the New Jersey Supreme Court suggests that mailing the information would satisfy the ordinance’s identification requirements. See 66 N. J. 376, 380, 331 A. 2d 277, 279 (1975).

See also Buckley v. Valeo, 424 U. S., at 64: “We long have recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. Since [NAACP v. Alabama, 357 U. S. 449 (1958)] we have required that the subordinating interests of the State must survive exacting scrutiny. We also have insisted that there be a ‘relevant correla*631tion’ or ‘substantial relation’ between the governmental interest and the information required to be disclosed.”