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JEHOVAH’S WITNESSES

My constitutional law professor, the great Paul Freund, remarked in class that it seemed most of constitutional law was made by the milk industry and the Jehovah’s Witnesses. Indeed, the milk industry was frequently involved in disputes over such Commerce Clause issues as state and local laws establishing minimum prices, requiring local pasteurization, protecting against out-of-state competition, and so on. These cases were possibly of economic significance but were not thrilling for law students to read.

The Jehovah’s Witnesses cases, on the other hand, raised issues that go to the heart of what it means to be an American. You might expect the cases to involve the religious clauses of the First Amendment. But in fact the most important decisions have been based on the Free Speech Clause. The decisions do not simply protect the Witnesses’ right to practice their religion but protect the freedom of speech for all of us.

The Witnesses have been prolific Supreme Court litigants, accounting for an astonishing 72 decisions by the Court. They are unlikely users of the legal system, believing as they do that all the answers are in the Bible, not in law books. They proclaim that they “believe in the Bible as the Word of God. They consider its 66 books to be inspired and historically accurate.” Based on their interpretation of Scripture, they avoid all involvement in politics, discourage voting, and refuse to serve on juries or in the military.

Their role as First Amendment heroes has been somewhat forced on them. One of the obligations placed on Witnesses is to preach and proselytize. They take literally the mandate of the Scriptures: “Go ye into all the world, and preach the gospel to every creature” (Mark 16:15). As their literature says, “You may have seen them on the street, offering their magazines to passersby. Or you may have spoken briefly with them at your door.” Indeed, greeting strangers on street corners to hand out their Watchtower leaflets and going door to door to preach and distribute their literature are activities that have not endeared the Witnesses to many towns and their residents, and officials have tried to enact laws to rid them of this “nuisance.”

It all started in 1938 when Witness Amy Lovell was arrested in Griffin, Georgia, for distributing literature without first obtaining written permission from the city manager as required by the town ordinance. Lovell had not applied for a permit, as she regarded herself as sent by Jehovah to do his work. She was convicted and sentenced to 50 days in jail.

The Supreme Court reversed Lovell’s conviction, finding that the ordinance was “invalid on its face.” The law prohibited distributing any kind of literature—newspapers, magazines, leaflets—at any time or place and in any manner without the permission of a government official. It thus struck “at the very foundation of the freedom of the press by subjecting it to license and censorship.” Treating the Witnesses as “the press” might seem odd, as I am sure the Witnesses saw themselves as delivering eternal verities, not the news of the day. Using the pamphlets of Thomas Paine and others to illustrate the point, the Court said: “The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets [which have been] historic weapons in the defense of liberty.... The press ... comprehends every sort of publication which affords a vehicle of information and opinion.” (Presumably that would include 21st-century bloggers.)

The broad principle established by Lovell v. City of Griffin—that the exercise of First Amendment freedoms cannot be made subject to licensing and government approval—has often been invoked by magazine and film distributors, civil rights and antiwar demonstrators, and others. (“Parading without a permit” was a favorite excuse for local authorities to try to shut down demonstrations.) The principle also serves as a caution to those who see the press as arrogant and irresponsible and wish to impose accountability by licensing journalists the way states license lawyers, doctors, plumbers, and barbers. We have always assumed that government could not license reporters, but the Jehovah’s Witnesses case made it law.

Not long after Lovell, three Jehovah’s Witnesses were arrested in New Haven, Connecticut, and charged with violating a state law that prohibited religious soliciting without a certificate from a government official; they also were charged with breach of the peace. They were going door to door in a heavily Catholic neighborhood, passing out their literature and playing a phonograph record of one of their books. The record was of a book called Enemies, which was an attack on “all organized religious systems as instruments of Satan and injurious to man,” but singled out Catholicism in terms likely to offend Catholics. In Cantwell v. Connecticut, the Court reversed the convictions. It invalidated the statute as an impermissible “prior restraint” on speech because it prohibited solicitation unless the state official determined that “the cause is a religious one” and issued a permit. And it found no breach of the peace: there was no “clear and present” danger from the Witnesses’ conduct—no “threatening of bodily harm, no truculent bearing, no intentional discourtesy, no personal abuse.”

Jehovah’s Witnesses established not only the right to speak, preach, and proselytize. They also established the First Amendment right not to speak. Unlike Yetta Stromberg and her red flag–saluting campers, the Witnesses believe that a flag is a “graven image” that they are religiously forbidden to “bow down” to. Accordingly, they refuse to salute the American flag, recite the Pledge of Allegiance to it, or sing “the Star Spangled Banner.”

In the patriotic fervor of World War II, public school districts throughout the country began requiring flag salutes as part of students’ daily routine. When the West Virginia Board of Education instituted a mandatory pledge of allegiance and Jehovah’s Witnesses refused to participate, their children were expelled and threatened with being sent to reformatories, and parents were threatened with prosecution for causing delinquency. The Supreme Court stepped in and taught a few civics lessons. In an eloquent opinion, Justice Robert Jackson pointed out, “We are dealing with a compulsion of students to declare a belief.” The issue was whether in our democracy the majority may compel citizens to state patriotic beliefs that they may not hold. Justice Jackson noted: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials.... [F]ree speech ... and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

Rejecting the state’s argument that the flag salute promoted national unity (foreshadowing the state’s argument in the Texas flag-burning case in Chapter 1), Justice Jackson said national unity is unquestionably a value that officials may foster “by persuasion and example,” but they may not do so by coercion. Moreover, to illustrate how compelling unity of belief is ultimately futile, Jackson provided examples:

the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.... It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.... We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent.

As a result of the 1943 decision, Jehovah’s Witnesses’ children could not be compelled to salute the flag. More generally, the decision confirms that citizens cannot be compelled to say what they do not believe: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Justice Felix Frankfurter wrote a spirited dissent in the West Virginia case. The lone Jewish member of the Court, Frankfurter started on a very personal note: “One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution.” Frankfurter’s thesis was a classic statement of judicial conservatism. He argued that a judge’s “own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one’s duty on the bench.” The judge’s duty was not to evaluate whether a law was sound policy, as Frankfurter states: “As a member of this Court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them.” Judges can’t act as though they are a “super-legislature.” This principle of “judicial self-restraint” limits the power of courts to declare laws unconstitutional even though passed by democratic majorities (a principle given short shrift in the 2010 Citizens United case). Constitutionality is not synonymous with wisdom, and courts have to accept that there will be unwise laws restricting speech. Justice Frankfurter asserted: “Much which should offend a free-spirited society is constitutional” and counseled that instead of looking to the courts to invalidate bad laws, one should rely on the “convictions and habits and actions of a community” to guard against “temptations to fetter the human spirit.” Frankfurter’s views were principled, but wrong. His approach of giving almost complete deference to legislatures would put the rights of dissidents and racial and religious minorities at the mercy of majoritarian sentiment.

A variation on the right-not-to-speak problem came up in a more recent Jehovah’s Witnesses case and has become a 21st- century issue. New Hampshire’s automobile license plates are embossed with the state motto: “Live Free or Die.” Witness George Wooley objected to being “coerced by the State into advertising a slogan which [he found] morally, ethically, religiously, and politically abhorrent.” He put duct tape over the motto on his plates, and was convicted of a misdemeanor for doing so. In the Supreme Court, referring back to the Witnesses’ World War II–flag-salute case, Chief Justice Warren Burger said: “We are [again] faced with a state measure which forces an individual as part of his daily life—indeed constantly while his automobile is in public view—to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable.” The Court concluded that the license plate requirement violated the Witnesses’ right to “refrain from speaking: [T]he freedom of thought protected by the First Amendment [includes] both the right to speak freely and the right to refrain from speaking at all.” Forcing a citizen to be a “mobile billboard” for the state’s ideological message “invades the sphere of intellect and spirit which it is the purpose of the First Amendment [to] reserve from all official control,” quoting the flag-salute case.

License plate speech is also a current issue. With the advent of customized specialty plates offered by many states, politically controversial mottos can, at the owner’s option, be embossed on the plates. Twenty or so states now offer Choose Life plates. Illinois, while offering specialty plates for college alumni, hunters, sports fans, and a salute to President Obama, refused to offer a Choose Life plate. Naturally, both offering what appear to be anti-abortion plates and refusing to offer them has resulted in litigation. In Illinois, anti-abortion activists claimed discrimination against their speech; the state argued it wished to remain neutral on the abortion issue. On October 5, 2009, the Supreme Court declined to hear the Illinois case. Unlike the Jehovah’s Witnesses case, the new license plate cases do not involve coerced speech; they ask whether government must allow motorists to subject the rest of the public to state-sponsored political statements with which many people may morally or politically disagree. The Court will not be able to resolve these cases without confronting the precedents established in the Jehovah’s Witnesses cases.

Alas, not every trip to the Supreme Court by the Jehovah’s Witnesses resulted in advancing our First Amendment freedoms. When Walter Chaplinsky was proselytizing on the streets of Rochester, New Hampshire, he attracted a restless crowd by denouncing all organized religion as a “racket.” A city marshal warned him to “go slow” since listeners were getting upset. A police officer led Chaplinsky toward the police station without arresting him. On the way, they encountered the same city marshal. In an argument about whether anyone should be arrested (including unruly listeners), Chaplinsky called the marshal a “goddamned racketeer” and “a damned Fascist,” adding for good measure, “the whole government of Rochester are Fascists or agents of Fascists.” Chaplinsky was prosecuted under a state law prohibiting anyone from addressing “any offensive, derisive, or annoying word to any other person” in a public place or calling him “by any offensive or derisive name.” His appeal was decided in 1942.

The Supreme Court upheld the conviction. The Court reasoned:

There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.... [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Thus was born the fighting-words exception to freedom of speech. The Court invented an entire category of speech which, like obscenity and libel, has no First Amendment protection. It did so without any evidence that Chaplinsky’s outburst caused any harm at all or even offended the city marshal (who might be presumed to have a thicker skin than most). The Court took it as obvious that the names that Chaplinsky called the law enforcement officer were “epithets likely to provoke the average person to retaliation” and a breach of the peace. The Court concluded that fighting words bear no relationship to the search for truth and therefore can be excluded from the First Amendment marketplace of ideas—they are not ideas.

The fighting-words doctrine carries great peril for free speech, allowing law enforcement officers to arrest speakers of angry words, even when the words do not result in violence, on the ground that courts deem them to be of “slight social value.” It’s always dangerous for judges to be the arbiters of what speech is valuable and what isn’t.

Labeling Walter Chaplinsky a First Amendment villain on the ground that the fighting-words limitation on speech is attributable to him would not be fair. It was the Court’s mistake. Fortunately, the Court in subsequent cases has partially rectified the mistake by narrowly limiting Chaplinsky. Since 1942 no conviction has been sustained by using the fighting-words doctrine, and later cases have interpreted Chaplinsky as requiring a direct tendency to cause violence by the person to whom epithets are addressed face to face, not by an offended audience. These cases have also emphasized that courts cannot outlaw words without considering the context within which they are used.

Moreover, the categorical approach to free-speech protection—assuming that speech falls into protected or unprotected categories—has not found favor in the Court’s modern First Amendment jurisprudence. Instead of simplistically looking to see if certain speech falls within a particular category, the Court is more likely to look closely at the factual context of each case and to balance the individual’s interest in the particular speech against the state’s interest in suppressing it, to weigh the competing values. Indeed, in the decades since Chaplinsky the Court has narrowed all of the previously identified categories of unprotected speech. In addition to closely confining the fighting-words exception, the Court has limited the category of obscenity to hard-core material that meets the Court’s three-part definition (see Chapter 8). The Court also has narrowed the category of libel, holding in New York Times v. Sullivan and its progeny that false statements defaming public officials and figures do not lose First Amendment protection unless they basically amount to deliberate lies. And the Court refused to expand the unprotected category of child pornography, holding unconstitutional Congress’s attempt to ban “virtual” child pornography—images that do not use real children in their production (see Chapter 8).

On April 20, 2010, the Court rejected the government’s claim that depictions of animal cruelty should constitute a new category of unprotected speech. Seizing on Chaplinsky’s idea that some speech is of “slight social value” and therefore merits no protection at all, the government urged that “crush videos” and other pictures of cruelty to animals should be treated the same as child pornography—wholly without First Amendment protection. The government asked the Court to create an unprotected category by “balancing ... the value of the speech against its societal costs.” Chief Justice Roberts, in his opinion for the Court in the 8–1 decision, found that this “free-floating test for First Amendment coverage” was “startling and dangerous.” The free-speech guarantee extends beyond categories of speech that “survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.” No “freewheeling authority” exists to “declare new categories of speech outside the scope of the First Amendment.” The decision sounds the death knell for expanding the categorical approach to speech regulation.

The Court in the animal videos case, United States v. Stevens, also nipped in the bud another legislative technique that is extremely dangerous to speech freedoms. The animal cruelty statute had an exceptions clause, stating that it did not prohibit “any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” The Court said this did not save the law. “Most of what we say to one another” does not fall within one of these categories (speech with entertainment value, for example), “but it is still sheltered from government regulation.” First Amendment protection “extends to many forms of speech that do not qualify for the serious-value exception.” In other words, Congress can’t pass a law outlawing whatever kind of speech it disfavors so long as it makes an exception for redeeming social value. That technique would allow Congress to reverse a basic principle of American life: instead of having the right to say whatever we want unless an overriding competing interest requires us to be silent, government would prevent us from speaking unless our particular speech was deemed to be societally valuable.

In one case, Jehovah’s Witnesses succeeded where a variety of dissidents, socialists, and Communists had failed. Witnesses are conscientious objectors and refuse to do military service. They also urge their adherents and those to whom they preach not to support war, and they did so during World War II. Three Witnesses were convicted under a freshly minted Mississippi law for disseminating literature calculated to encourage disloyalty to the national and state governments and to “create an attitude of stubborn refusal to salute, honor, or respect the flag or government of the United States, or of the State of Mississippi.” This was a felony, and they were sentenced to prison for the duration of the war. Their literature said, among other things, that “Satan influences public officials and others to compel little children to indulge in idolatrous practices by bowing down to some image or thing, such as saluting flags ... which is in direct violation of God’s commandment.” The evidence also showed that one Witness, in speaking with several women, the sons of two of whom had been killed in battle overseas, offended them by declaring that it was “wrong for our president to send our boys across in uniform to fight our enemies.”

On June 14, 1943, in the midst of war, the Court quite summarily ruled that criminal sanctions cannot be imposed for such communications. The Court said no evidence was presented that the Witnesses had done anything “with an evil or sinister purpose,” had “advocated or incited subversive action against the nation or state,” or had threatened any “clear and present danger to our institutions.” This was the rare case in history in which the clear-and-present-danger test actually resulted in freeing an alleged subversive speaker.

The test originated in Justice Oliver Wendell Holmes’s famous opinion in Schenck v. United States, the Court’s first foray into the subversive speech arena and indeed the Court’s first significant decision on free speech under the First Amendment. (As noted in Chapter 1, the 1798 Sedition Act cases never reached the Court before the act expired.) Charles Schenck was convicted under the World War I–Espionage Act, making it a crime to cause “disloyalty” or “insubordination” in the military forces. He had distributed leaflets exhorting men subject to the military draft to assert their rights. The leaflets cited and discussed the Thirteenth Amendment to the Constitution and denounced conscription as slavery. Justice Holmes, for a unanimous Court, ruled against Schenck. He prefaced the ruling by announcing, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” (This vivid metaphor has endured but should never have been applied to a case involving criticism of government policy.)

In the process of deciding Schenck, Justice Holmes also announced that the proper test for determining whether allegedly subversive speech could be punished was whether the speaker’s words create “a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” In the same month of March, 1919, Justice Holmes and the Court upheld the conviction of Eugene Debs, the leader of the Socialist Party and five-time candidate for president. Debs was convicted for having made a speech mostly about socialism but including praise for three young men who had refused to register for the draft; he was sentenced to 10 years in prison.

Later the same year, for mysterious reasons, Holmes seems to have changed his mind about this kind of speech and realized how unthreatening it really was, and he wrote an eloquent dissent in Abrams v. United States, in which he condemned “persecution for the expression of opinions” and introduced the marketplace-of-ideas concept: “The best test of truth is the power of the thought to get itself accepted in the competition of the market.” He said this was the theory of the First Amendment. “It is an experiment, as all life is an experiment.... While that experiment is part of our system, I think we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.”

As the Court continued to apply Holmes’s clear-and-present-danger test and uphold convictions for subversive speech, Holmes continued to dissent (as in Benjamin Gitlow’s case discussed in Chapter 1). He also joined Justice Louis Brandeis’s magnificent opinion in Whitney v. California in 1927, in which Brandeis said the framers believed that “freedom to think as you will and to speak as you think “is indispensable, that “the greatest menace to freedom is an inert people,” and that “public discussion is a political duty” of a citizen.

Decades later, during the McCarthy era, the Court upheld the convictions of Communists including Eugene Dennis, finding that their conspiracy to organize the Communist Party and “advocate” overthrowing the United States government satisfied the clear-and-present-danger test. As interpreted in all the subversive speech cases from Schenck to Dennis, this test was a paper tiger.

While in later cases the Court seems to have abandoned clear and present danger as the standard for deciding whether supposed subversives can be punished for what they write or say, it is striking that only the Jehovah’s Witnesses found freedom under it: Schenck, Debs, Gitlow, Whitney, Dennis, and the Communists all lost when the Court applied it.

The Court’s willingness to allow government suppression of unpatriotic speech in wartime found a 21st-century friend in John Yoo, deputy assistant attorney general in the Bush administration. One of Yoo’s infamous memoranda, dated October 23, 2001, that supported enhanced presidential power to deal with terrorism within the United States, relied on and quoted Justice Holmes in Schenck; Yoo proclaimed for the administration, “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” I prefer President Barack Obama’s declaration in his inaugural speech: “Our founding fathers, faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience’s sake.”

The early Jehovah’s Witnesses cases were reaffirmed in the Witnesses’ most recent visit to the Supreme Court, in 2002. The town of Stratton, Ohio, enacted an ordinance prohibiting “canvassers” from going door to door to promote any “cause” without obtaining a permit from the mayor’s office. Again, the Witnesses did not apply for a permit because they derive their authority to preach from Scripture: “For us to seek a permit from a municipality to preach we feel would almost be an insult to God.” But the Court did not confine its decision to protecting the Witnesses’ religious freedoms. Harking back to the Jehovah’s Witnesses cases from the 1930s and 1940s, Justice John Paul Stevens’s opinion for the Court noted that the Witnesses’ efforts “to resist speech regulation have not been a struggle for their rights alone” but have benefited “the poorly financed causes of little people” generally. At stake were “door-to-door advocacy” and “anonymous pamphleteering,” both vehicles for the dissemination of ideas used by underfunded fringe causes both religious and political. Stevens noted that under the ordinance, “even a spontaneous decision to go across the street and urge a neighbor to vote against the mayor could not lawfully be implemented without first obtaining the mayor’s permission.” In ringing terms Stevens proclaimed, “It is offensive—not only to the values protected by the First Amendment, but to the very notion of a free society—that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.”

Again invoking the early Jehovah’s Witnesses decisions, the Court concluded: “The rhetoric used in the World War II–era opinions that repeatedly saved [the Witnesses] from petty prosecutions reflected the Court’s evaluation of the First Amendment freedoms that are implicated in this case. The value judgment that then motivated a united democratic people fighting to defend those very freedoms from totalitarian attack is unchanged. It motivates our decision today.”

Chief Justice William Rehnquist, alone, dissented. He was sympathetic with the 278-citizen village’s lack of sophisticated resources as compared to the 12 Jehovah’s Witnesses lawyers in their New York headquarters, and to the village’s concern for safety. Rehnquist accepted the village’s argument that uncontrolled door-to-door solicitation could cause not just nuisance but crime. He pointed out that the earlier Witnesses cases had involved discretionary permit schemes under which a government official could grant or deny a permit at his discretion, while the Stratton ordinance was merely a registration requirement, and the mayor had no discretion to deny a permit. But Rehnquist had no answer for Justice Stevens’s point that under the law you could not knock on your neighbor’s door to ask her to vote against the mayor without first getting a permit from the mayor.

The Jehovah’s Witnesses must be considered reluctant First Amendment heroes. Their efforts, while motivated by religion and not by free speech for its own sake, have benefited us all.