Blog of Rights

Walling off the Witnesses

By Joel Engardio, ACLU at 3:57pm

(Originally posted on the Washington Posts's On Faith blog.)

When it comes to Jehovah's Witnesses sharing Watchtower magazines and Bible messages door-to-door, I'm impressed by what people will do to save themselves from the annoyance. A town in Ohio required the Witnesses to register at city hall for a permit that was always denied. In Puerto Rico, more drastic measures were taken: neighborhoods erected walls and gates around public residential streets to keep the Witnesses out.

But walls and gates keep Girl Scouts and their cookies out, too. Not to mention concerned citizens who need to circulate a petition on such annoying and pesky matters as government malfeasance. In 2002, the U.S. Supreme court struck down the Ohio ordinance as unconstitutional. "It is offensive," Justice John Paul Stevens wrote, "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."

It was not a unanimous decision, which means that even from the perspective of the Supreme Court, the most fundamental First Amendment rights are not an automatic guarantee. That's why unpopular groups like the Witnesses are left to fight for their rights time and again. The good news is that lots of people who aren't Jehovah's Witnesses benefit every time the Witnesses win a case.

"Freedom of expression is an essential element of human existence. It encompasses both the right to speak and the right to hear," says Philip Brumley, General Counsel for Jehovah's Witnesses, who oversaw the Ohio win and is directing the Puerto Rico case currently before the U.S. Court of Appeals. "The decisions confirming our free speech rights have ensured that all may enjoy open discourse. We would hope that all countries would embrace this principle."

Think of the activities of Jehovah's Witnesses as a necessary annoyance for living in a free society. After all, how we treat Jehovah's Witnesses only foreshadows what others will face when they have something unpopular to say.

Last month, the Russian Supreme Court upheld a ban on Jehovah's Witnesses. It was a troubling ruling for anyone in the so-called democratic Russia who has thoughts or beliefs outside the mainstream. The American Civil Liberties Union backed the Ohio Witnesses in 2002 by filing an amicus brief and is doing the same now for the 25,000 Witnesses who worship in Puerto Rico. There are 1 million Witnesses in the United States and 7 million worldwide.

"Jehovah's Witnesses unquestionably have a constitutionally protected right to proclaim their faith on the public streets of Puerto Rico," says Daniel Mach, who directs litigation for the ACLU's freedom of religion program.

The public street is a sacred spot for free speech. Laws that restrict access to the easiest place to exchange ideas are dangerous to democracy. Consider how expensive it is to publicize a message in today's media world. YouTube and the internet aside, campaigns still spend vast millions of dollars on media advertising that individuals or small advocacy groups cannot compete with. Limiting the ability of someone to simply share a message door-to-door — at a cost of only their shoe leather on the sidewalk — shuts down the most basic form of free speech.

Of course, there are lots of messages we'd rather not see or hear. Consider highway billboards. Gay pride parades in southern states are about as popular as Mormon jubilees in northern California. Yet each deserves constitutional protection because they mean something to someone. Isn't that the point of a marketplace of ideas? Every opinion gets its fair hearing.

More than the patience of its neighbors, Jehovah's Witnesses in Connecticut in 1940 tested the very boundaries of how we define the First Amendment today. Then, Newton Cantwell and his two sons were arrested for distributing Jehovah's Witness publications door-to-door in a mostly Catholic neighborhood. In ruling for Jehovah's Witnesses, the Supreme Court connected the First Amendment's free-exercise clause with the 14th Amendment's due-process clause for the first time. Before this case, state and local governments defined and enforced freedom of religion as they saw fit. The Supreme Court issued a federal standard: Jehovah's Witnesses and everyone else have the right to freely speak, worship, assemble and distribute publications on doorsteps and public streets without government regulation, as long as the speech does not incite bodily harm.

Decades later, the Witnesses still find themselves fighting the same case. In their last Supreme Court appearance in 2002, Justice Sandra Day O'Connor asked if banning Jehovah's Witnesses from knocking on doors would make it difficult for the neighbor who wanted to "borrow a cup of sugar." The walls and gates now restricting speech on the public streets in Puerto Rico provides an unsettling answer.

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