Ser Empl Intl Union v. Mun Mt Lebanon ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-28-2006
Ser Empl Intl Union v. Mun Mt Lebanon
Precedential or Non-Precedential: Precedential
Docket No. 04-4646
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PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4646
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 3; RACHEL CANNING;
VELVET HAZARD,
Appellants
v.
MUNICIPALITY OF MT. LEBANON
On Appeal From the United States
District Court
For the Western District of Pennsylvania
(D.C. Civil Action No. 04-cv-01651)
District Judge: Hon. Arthur J. Schwab
Argued December 13, 2005
BEFORE: SLOVITER, SMITH and STAPLETON,
Circuit Judges
(Opinion Filed: April 28, 2006)
Michael J. Healey
Healey & Hornack
1100 Liberty Avenue
The Pennsylvania - Suite C-2
Pittsburgh, PA 15222
and
Witold J. Walczak (Argued)
American Civil Liberties Union
313 Atwood Street
Pittsburgh, PA 15213
Attorneys for Appellants
James H. Roberts (Argued)
Kathryn L. Hunter
Eckert Seamans Cherin & Mellott
600 Grant Street - 44th Floor
Pittsburgh, PA 15219
Attorneys for Appellee
Paul D. Polidoro
Watchtower Bible & Tract Society of New York, Inc.
Legal Department
100 Watchtower Drive
Patterson, NY 12563
Attorney for Amicus Curiae
2
OPINION OF THE COURT
STAPLETON, Circuit Judge:
The Municipality of Mt. Lebanon (“Mt. Lebanon”), by
ordinance, requires door-to-door canvassers who plan to “hand
pamphlets or other written material” to residents or discuss with
them “issues of public or religious interest” to first register with
the police department. We conclude that this ordinance violates
the First and Fourteenth Amendments’ guarantee that no State
shall abridge the freedom of speech.
I.
The plaintiffs are a local labor organization, Service
Employees International Union, Local #3, and two volunteers,
Rachel Canning and Velvet Hazard (collectively, “SEIU”), who
were involved in a get-out-the-vote campaign preceding the
2004 presidential election. SEIU recruited over 1,000
volunteers to go door-to-door in Allegheny County,
Pennsylvania, including in Mt. Lebanon, to emphasize the
importance of the election, to encourage people to vote, and to
help them locate their assigned polling places.
The defendant, Mt. Lebanon, is one of a number of
municipalities in Allegheny County that regulate door-to-door
canvassing and solicitation. Part 3 of Mt. Lebanon’s municipal
code regulates those who “solicit” and “canvass” in Mt.
Lebanon. It provides, in pertinent part:
3
§ 302 Permit Required. It shall be unlawful for
any Person to Solicit in the Municipality
without first obtaining a permit therefor as
provided in this Part 3. It shall be
unlawful for any Person to Canvass in the
Municipality without first registering with
the Police Department as provided in this
Part 3.
§ 303 Definitions. . . .
***
Canvass: To go from door-to-door in the
Municipality, other than to “solicit” as
defined in this Part 3, to hand pamphlets or
other written material to an occupant of a
residence, or to discuss with such occupant
issues of public or religious interest.
***
Solicit: To go from door to door in the
Municipality (i) soliciting contributions or
pledges for contributions, or (ii) selling or
attempting to sell subscriptions, products
or services, or taking orders or attempting
to take orders for subscriptions, products
or services from or to an occupant of a
residence.
4
Ohio App. at 38. Section 316 provides that to register as a
“Canvasser” with the police department, individuals must
present photo identification and the following information in
writing:
316.1 The name and the home address of the
individual or individuals who will be
canvassing in the Municipality.
316.2 The dates and hours during which the
individual(s) will canvass in the
Municipality.
316.3 The locations in which the individual(s)
will canvass in the Municipality.
Id. at 42. Those who intend to “solicit” must present more
detailed information in a sworn application. In addition, there
is a $50 fee for each solicitation permit, which is waived for
those persons soliciting only one time within any calendar year.
The police chief must issue the permit if the information is
complete and the requisite fees are paid.
SEIU filed suit against Mt. Lebanon just before the 2004
presidential election, alleging that the solicitation and
canvassing ordinance violated the First Amendment, both
facially and as applied. SEIU sought declaratory relief and
preliminary injunctive relief. The complaint alleged that SEIU’s
volunteers planned “to go door-to-door” in Mt. Lebanon.
Compl. ¶ 10, App. at 30. Those volunteers, it alleged, “will
hand out literature, emphasize the importance of this year’s
5
presidential election, encourage the people to vote, and help the
voters determine their proper polling location.” Compl. ¶ 11;
App. at 30. SEIU further alleged that it did “not have the time
and resources to register each canvasser individually.” Compl.
¶ 39; App. at 35.
SEIU simultaneously filed a motion for temporary
restraining order and/or preliminary injunction. After a hearing,
SEIU and Mt. Lebanon resolved the preliminary-injunction
motion through a consent order that delineated the terms under
which the canvassers could canvass in the municipality until
Election Day. The parties subsequently filed cross-motions for
summary judgment on SEIU’s remaining claims for declaratory
and permanent injunctive relief.
The District Court ruled that SEIU does not have
standing to challenge the solicitation permitting requirement
because the plaintiffs “are not soliciting and have no plans to do
so” and there is no concrete injury in fact sufficient to create a
justiciable “case or controversy” under Article III of the
Constitution. App. at 20. It granted summary judgment in favor
of Mt. Lebanon, however, with respect to the “canvassing”
segment of the ordinance. This timely appeal followed.
II.
SEIU seeks to mount facial challenges both to Mt.
Lebanon’s regulation of canvassing and to its regulation of
soliciting. We agree with the District Court that SEIU lacks
standing to mount a challenge to Mt. Lebanon’s regulation of
soliciting.
6
At the outset, we note that under the terms of the
ordinance, canvassing and soliciting are two distinct and
mutually exclusive activities. Further, separate regulatory
requirements attach depending on which activity an individual
plans to engage in. Accordingly, we separately consider SEIU’s
two challenges to the ordinance, including SEIU’s standing to
bring each challenge. See Allen v. City of Louisiana, 103 U.S.
80, 83-84 (1881) (“It is an elementary principle that the same
statute may be in part constitutional and in part unconstitutional,
and that if the parts are wholly independent of each other, that
which is constitutional may stand while that which is
unconstitutional will be rejected.”); Granite State Outdoor
Adver., Inc. v. City of Clearwater, 351 F.3d 1112, 1116-1119
(11th Cir. 2003) (separately examining plaintiff’s injury-in-fact
for each provision of facially challenged ordinance);1 cf.
Contractors Ass’n of Eastern Pennsylvania, Inc. v. City of
Philadelphia, 6 F.3d 990, 996 (3d Cir. 1993) (“Severing statutes
to limit standing promotes the twin goals of avoiding
unnecessary constitutional adjudication and sharpening the
presentation of the issues.”).
Article III of the Constitution limits the jurisdiction of
1
A subsequent Eleventh Circuit decision questioned the City
of Clearwater court’s approach of separately examining
standing for each provision of the city ordinance in a facial
challenge to the ordinance. See Tanner Adver. Group, L.L.C. v.
Fayette Cty., 411 F.3d 1272, 1275-77 (11th Cir. 2005). The
Tanner opinion has since been vacated for en banc rehearing.
Turner Adver. Group L.L.C. v. Fayette Cty., 429 F.3d 1012
(11th Cir. 2005).
7
federal courts to resolving “cases” and “controversies.” “To
satisfy the ‘case’ or ‘controversy’ requirement of Article III,
which is the ‘irreducible constitutional minimum’ of standing,
a plaintiff must, generally speaking, demonstrate that he has
suffered ‘injury in fact,’ that the injury is ‘fairly traceable’ to the
actions of the defendant, and that the injury will likely be
redressed by a favorable decision.” Bennett v. Spear, 520 U.S.
154, 162 (1997).
The Supreme Court has also identified a number of
prudential limits on standing. See Sec’y of State of Md. v.
Joseph H. Munson Co., 467 U.S. 947, 955 (1984). Among these
prudential limits is the requirement that a plaintiff “generally
must assert his own legal rights and interests, and cannot rest his
claim to relief on the legal rights or interests of third parties.”
Id. (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). In the
First Amendment context, however, courts relax the prudential
requirement that a litigant raise his own rights and interests.
Under the First Amendment overbreadth doctrine, even though
a party whose conduct could constitutionally be proscribed by
statute may not normally be heard to complain that the statute
under which he is prosecuted is so broad that it proscribes
constitutionally protected conduct, courts will allow the party to
raise the claims of others when protected speech is at issue.
Courts do so out of concern that protected speech will be chilled
by the statute. Id. at 956-57. “Litigants, therefore, are permitted
to challenge a statute not because their own rights of free
expression are violated, but because of a judicial prediction or
assumption that the statute’s very existence may cause others
not before the court to refrain from constitutionally protected
speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601,
8
612 (1973). But such litigants, of course, must still meet the
constitutional requirement of injury-in-fact because their own
constitutionally unprotected interests will be adversely affected
by application of the statute. See Note, Standing to Assert
Constitutional Jus Tertii, 88 Harv. L. Rev. 423, 424 (1974)
(“[O]verbreadth attacks involve both the application of the
challenged law to the claimant and a different, hypothetical
application of the law to third parties.”); see also Richard H.
Fallon, Jr., Making Sense of Overbreadth, 100 Yale L. J. 853,
860 n.33 (1991).
The Supreme Court’s decision in Munson is illustrative.
In that case, the Supreme Court allowed a professional
fundraiser, Munson, to raise the First Amendment rights of his
clients, charitable organizations. Munson challenged a statute
that prohibited charitable organizations, “in connection with any
fundraising activity, from paying or agreeing to pay as expenses
more than 25% of the amount raised.” 467 U.S. at 950.
Munson suffered actual and threatened injury from the statute
because Munson’s contracts called for payments in excess of 25
percent of the funds raised for a given event and one of
Munson’s charitable clients was consequently reluctant to enter
into a contract with Munson. Id. at 954-55. The Court allowed
Munson to invoke the First Amendment rights of his clients
because he met the constitutional requirements for standing:
The fact that, because Munson is not a charity,
there might not be a possibility that the
challenged statute could restrict Munson’s own
First Amendment rights does not alter the
analysis. Facial challenges to overly broad
9
statutes are allowed not primarily for the benefit
of the litigant, but for the benefit of society–to
prevent the statute from chilling the First
Amendment rights of other parties not before the
court. Munson’s ability to serve that function has
nothing to do with whether or not his own First
Amendment rights are at stake. The crucial issues
are whether Munson satisfies the requirement of
“injury-in-fact,” and whether it can be expected
satisfactorily to frame the issues in the case.
Id. at 958 (emphasis added); Mothershed v. Justices of the
Supreme Court, 410 F.3d 602, 610 (9th Cir. 2005) (citing
Munson, 467 U.S. at 958); see also Powers v. Ohio, 499 U.S.
400, 410-11 (1991) (stating that litigants may bring actions on
behalf of third parties provided, inter alia, that the litigant has
“suffered an ‘injury in fact,’ thus giving him or her a
‘sufficiently concrete interest’ in the outcome of the case”);
Eisenstadt v. Baird, 405 U.S. 438, 443-46 (1972) (allowing
individual convicted of distribution of contraceptives to raise
Due Process rights of unmarried persons in part because “[t]here
can be no question, of course, that [the litigant] has sufficient
interest in challenging the statute’s validity to satisfy the ‘case
or controversy’ requirement of Article III of the Constitution.”);
Harp Adver. Illinois, Inc. v. Vill. of Chicago Ridge, 9 F.3d 1290,
1292 (7th Cir. 1993) (holding that overbreadth doctrine “does
not imply . . . that the requirement of standing to sue has been
elided.”).
Mt. Lebanon’s ordinance only requires solicitors to
obtain permits if they intend:
To go from door to door in the Municipality (i)
soliciting contributions or pledges for
contributions, or (ii) selling or attempting to sell
subscriptions, products or services, or taking
10
orders or attempting to take orders for
subscriptions, products or services from or to an
occupant of a residence.
Ordinance § 303; App. at 38. SEIU has not alleged that it
desires or intends to solicit in Mt. Lebanon. Its complaint
alleges only that its “volunteers will hand out literature,
emphasize the importance of this year’s presidential election,
encourage the people to vote, and help the voters to determine
their proper polling location.” Compl. ¶ 11; App. at 30. SEIU
is completely unaffected by the permitting requirement
applicable to solicitors. Consequently, it cannot establish
“injury-in-fact” and lacks constitutional standing to challenge
the permitting requirement either under the guise of a facial or
an “as applied” challenge. See Munson, 467 U.S. at 958; Harp,
9 F.3d at 1292.
SEIU argues that we should apply the “relaxed standing
principles” used in the First Amendment overbreadth context.
But, as noted, those principles are only applicable to prudential
standing requirements, not the constitutional requirements of
Article III jurisdiction.2 We are not free to hear a party’s facial
challenge to a municipal regulation that is wholly inapplicable
2
SEIU’s reliance on Peachlum v. City of York, 333 F.3d 429
(3d Cir. 2003), is misplaced. In that case, we ruled that facial
First Amendment challenges are subject to a “relaxed ripeness
standard.” Id. at 434. We allowed the plaintiff to pursue her
claim even though administrative review of the enforcement
action taken against her was not yet complete. We specifically
noted that she had established “concrete injury.” Id. at 437
(“[W]here a party suffers a concrete injury prior to final
administrative disposition, such as fines or unreasonable appeal
fees, the claim may be considered sufficiently ripe.”). We by no
means relaxed the constitutional requirements for standing.
11
to the party. While the canvassing registration requirement and
the solicitation permitting requirements are both found within
the ordinance, they clearly establish distinct and independent
requirements for their application. Overbreadth doctrine
effectively allows a party to challenge separate and hypothetical
applications of a regulation only when an otherwise valid
application of that same regulation causes the party injury-in-
fact. It does not allow a party to challenge a regulation that is
wholly inapplicable to the party, regardless of the regulation’s
location in the statute books. Based on SEIU’s complaint, there
is no reason to believe that SEIU has or will suffer injury from
the solicitation permitting requirement.
III.
Having thus limited the scope of permissible review, we
now turn to SEIU’s challenge to Mt. Lebanon’s registration
requirement for those who wish to canvass. In cases raising
First Amendment questions, “an appellate court has an
obligation to ‘make an independent examination of the whole
record’ in order to make sure that ‘the judgment does not
constitute a forbidden intrusion on the field of free expression.’”
Bose Corp. v. Consumers Union of United States, Inc., 466 U.S.
485, 499 (1984); United States v. Various Articles of Merch.,
230 F.3d 649, 652-53 (3d Cir. 2000).
The latest Supreme Court precedent governing the
regulation of door to door canvassing is Watchtower Bible &
Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150
(2002). Faithfully following the teachings of that precedent
leads to the conclusion that Mt. Lebanon’s regulation of
canvassing does not pass constitutional muster.
Here, as in Watchtower, it is unnecessary to resolve the
issue of whether the ordinance at issue should be subjected to
12
“strict scrutiny.”3 This is the case because here, as there, “the
breadth of the speech affected by the ordinance and the nature
of the regulation make it clear that” the ordinance cannot be
sustained. Id. at 164. Our task here, as there described by the
Supreme Court, is to “look . . . to the amount of speech covered
by the ordinance and whether there is an appropriate balance
between the affected speech and the governmental interest that
the ordinance purports to serve.” Id. at 165. “We must ‘be
astute to examine the effect of the challenged legislation’ and
must ‘weigh the circumstances and . . . appraise the
substantiality of the reasons advanced in support of the
regulation.’” Id. at 163 (quoting Martin v. City of Struthers, 319
U.S. 141, 144 (1943) (quoting Schneider v. State (Town of
Irvington), 308 U.S. 147, 161 (1939))). We agree with Mt.
Lebanon that this balancing test does not require it to show that
its canvassing regulation is the least restrictive or least intrusive
means of serving its legitimate governmental interests.
Nevertheless, to the extent that the ordinance “is not tailored to
the [municipality’s] stated interest,” there is a commensurate
reduction in the municipality’s interest in its enforcement. Id.
at 168.
In Watchtower, an ordinance of the Village of Stratton,
Ohio, prohibited door to door canvassing for “the purpose of
3
“Content based” regulation of speech is normally subjected
to “strict scrutiny” when judicially reviewed. Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994). Mt. Lebanon’s
singling out of canvassing involving discussion of “issues of
public or religious interest” arguably renders that segment of the
ordinance “content based.” Cf. McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334, 345 (1995) (ordinance banning
distribution of anonymous campaign literature held to be “direct
regulation of the content of speech” and subject to “strict
scrutiny”).
13
promoting any ‘cause’ without first” obtaining a permit. Id. at
154. Like the Mt. Lebanon ordinance, it contained an
unchallenged provision under which residents could prohibit
even those canvassing with permits. The Watchtower Court
began its analysis by assessing the amount and character of the
speech covered and the manner in which it was burdened:
[T]he Village’s ordinance prohibits “canvassers”
from going on private property for the purpose of
explaining or promoting any “cause,” unless they
receive a permit and the residents visited have not
opted for a “no solicitation” sign. . . . The
ordinance unquestionably applies, not only to
religious causes, but to political activity as well.
It would seem to extend to “residents casually
soliciting the votes of neighbors,” or ringing
doorbells to enlist support for employing a more
efficient garbage collector.
The mere fact that the ordinance covers so
much speech raises constitutional concerns. 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. Even
if the issuance of permits by the mayor’s office is
a ministerial task that is performed promptly and
at no cost to the applicant, a law requiring a
permit to engage in such speech constitutes a
dramatic departure from our national heritage and
constitutional tradition.
Watchtower, 536 U.S. at 165-66 (footnote omitted).
14
The Court went on to note “three obvious examples [to]
illustrate the pernicious effect of” the ordinance. First, the
ordinance burdened the “significant number of persons who
support causes anonymously” by requiring them to identify
themselves in the course of the permit application process. Id.
at 166-67. Second, the permit requirement imposed an
“objective burden” on those whose “religious scruples will
prevent them from applying for such a license” and on those
“patriotic” citizens whose “firm convictions about their
constitutional right to engage in uninhibited debate” would lead
them to “prefer silence to speech licensed by a petty official.”
Id. at 167. And third, the ordinance effectively banned “a
significant amount of spontaneous speech.” Id. The Court
reasoned that:
A person who made a decision on a holiday or a
weekend to take an active part in a political
campaign could not begin to pass out handbills
until after he or she obtained the required permit.
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.
Id. at 167.
The scope of Mt. Lebanon’s ordinance and the burden it
places on free speech are comparable to the scope and
“pernicious” effects found in Watchtower. Mt. Lebanon’s
registration requirement extends to the core First Amendment
areas of religious and political discourse, and its regulation of
written material encompasses all subject matter without
15
limitation. Moreover, its effect on spontaneous speech,4
anonymous advocacy,5 and advocacy by those with religious or
patriotic scruples is indistinguishable from that of the
Watchtower ordinance.
While it is true, as Mt. Lebanon stresses, that this
4
Mt. Lebanon points out that its police department is open
twenty-four hours a day, seven days a week, and contends that
therefore even spontaneous decisions to canvass are
accommodated by the ordinance. This does mitigate the burden
on spontaneous speech to some extent as compared to the
situation in Watchtower, but the primary burden Mt. Lebanon’s
ordinance places on spontaneous speech stems from its
requirement that an individual, before walking down the street
to discuss a public issue or to hand out fliers, must first travel to
the police station, identify himself, and announce his intentions.
Here, as in Watchtower, “[e]ven a spontaneous decision to go
across the street and urge a neighbor to vote against the mayor
could not lawfully be implemented without first” taking a trip to
advise the authorities. Watchtower, 536 U.S. at 167. The
interest in protecting spontaneous speech is especially strong for
political speech because “timing is of the essence in politics. It
is almost impossible to predict the political future; and when an
event occurs, it is often necessary to have one’s voice heard
promptly, if it is to be considered at all.” Shuttlesworth v. City
of Birmingham, 394 U.S. 147, 163 (1969) (Harlan, J.,
concurring).
5
While canvassers in Mt. Lebanon are not required to carry
a permit or other identifying material with them when they
canvass, their anonymity is nonetheless sacrificed. The
ordinance specifically requires canvassers to present photo
identification, their names, and home addresses at the time of
registration. Such a requirement “necessarily results in a
surrender of . . . anonymity.” Watchtower, 536 U.S. at 166.
16
segment of its ordinance requires registration rather than a
permit, we do not regard this as a material distinction.
Permitting schemes do raise additional constitutional concerns
because they present an opportunity for state officials to exercise
discretion concerning content or cause delay in the approval
process. See, e.g., Schneider, 308 U.S. at 163 (striking down
ordinance that “permits canvassing only subject to the power of
a police officer to determine, as a censor, what literature may be
distributed from house to house and who may distribute it”).
But, as we have noted, the Watchtower Court found its
ordinance to constitute “a dramatic departure from our national
heritage and constitutional tradition,” even “if the issuance of
permits by the mayor’s office is a ministerial task that is
performed promptly and at no cost to the applicant.” 536 U.S.
at 166.
Having found the burdens here imposed on First
Amendment values comparable to those in Watchtower, we turn
to the other side of the balance we are required to strike and
evaluate the degree to which the ordinance is tailored to serve
the interests which it purports to serve. Here also we find our
case indistinguishable from Watchtower.
Mt. Lebanon insists that its ordinance serves two
governmental interests: the prevention of fraud and the
prevention of crime. Both were advanced in justification of the
Watchtower ordinance. Like the Supreme Court there, we have
no difficulty concluding that “these are important interests that
[a municipality] may seek to safeguard.” Id. at 165. We also
conclude in accordance with Watchtower, however, that Mt.
Lebanon’s ordinance “is not tailored to the [municipality’s]
stated interests.” Id. at 168.
As the Watchtower Court concluded, “[e]ven if the
interest in preventing fraud could adequately support [an]
ordinance [regulating] commercial transactions and the
17
solicitation of funds, that interest provides no support for its
application to [Jehovah’s Witnesses], to political campaigns, or
to enlisting support for unpopular causes.” Id. at 168. It
necessarily follows that prevention of fraud provides no support
for the ordinance here at issue.
With respect to preventing crime, the Watchtower Court
acknowledged that there are those who use canvassing to
facilitate crime. It concluded, however, that the permit scheme
did not serve this interest effectively:
[I]t seems unlikely that the absence of a permit
would preclude criminals from knocking on doors
and engaging in conversations not covered by the
ordinance. They might, for example, ask for
directions or permission to use the telephone, or
pose as surveyers [sic] or census takers. Or they
might register under a false name with impunity
because the ordinance contains no provision for
verifying an applicant’s identity or organizational
credentials.
Id. at 169 (citation omitted).
Justice Breyer, joined by Justices Souter and Ginsberg,
while joining the Court’s opinion, wrote “separately to note that
the ‘crime prevention’ justification for [the Stratton] ordinance
[was] not a strong one.” Id. at 169. He went on to observe that
it was “intuitively implausible to think that Stratton’s ordinance
serve[d] any interest in preventing . . . crimes.” Id. at 170.
Mt. Lebanon insists that its registration requirement for
canvassers was intended to help prevent crime in general and
18
violent crime and burglary in particular.6 It argues that the
ordinance “prevents and detects violent crime by assuring that
a registered canvasser can be identified and by making it a crime
not to register.” Br. Appellee at 15. It presented evidence to the
District Court of crimes committed by solicitors and canvassers
in surrounding communities and across the nation. But Mt.
Lebanon fails to make a critical showing: that requiring
registration of individuals who distribute written material door-
to-door or who canvass to discuss issues of religious or public
interest is likely to have a material impact on the incidents of
burglary, violent crime or other crime in the municipality.
While it is true, as Mt. Lebanon stresses, that it is not required
to show that its ordinance is the most effective or least intrusive
means of fighting crime available to it, it does have the burden
of showing that the benefit to be gained from its ordinance
provides reasonable justification for its considerable burden on
First Amendment values. And as Justice Breyer noted in
Watchtower, the Supreme Court has “never accepted mere
conjecture as adequate to carry a First Amendment burden.”
536 U.S. at 170 (quoting Nixon v. Shrink Missouri Government
PAC, 52 U.S. 377, 392 (2000).
Here, as in Watchtower, those intent on burglary or
violent crime can easily avoid the registration requirement and
accomplish their mission by asking for directions or to use the
telephone, and by refraining from distributing written materials.
Alternatively, they can frustrate the ordinance’s effectiveness by
registering under a false name. More importantly, however,
here as in Watchtower, we think it “intuitively implausible to
think” that those determined to commit such crimes will comply
with the registration requirement. After all, if they are not
6
The District Court concluded, with record support, that a
desire to prevent crime was among the motivations of the Mt.
Lebanon Council.
19
deterred by the substantial criminal penalties which exist for
burglary and violent crime, it is not reasonable to expect that
they will alter their behavior because of a $300 fine for failing
to register.7
In sum, here as in Watchtower, the challenged ordinance
is not tailored to serve Mt. Lebanon’s legitimate interest in
preventing crime and fraud. At the same time, that ordinance
substantially burdens a broad range of speech which enjoys the
highest level of First Amendment protection. Accordingly, the
balance must be struck in SEIU’s favor.
IV.
7
The availability of direct punishment for crime has caused
the Supreme Court to repeatedly reject government arguments
that canvassing regulations are narrowly tailored to serve anti-
crime interests. See McIntyre, 514 U.S. at 357 (“The State may,
and does, punish fraud directly. But it cannot seek to punish
fraud indirectly by indiscriminately outlawing a category of
speech, based on its content, with no necessary relationship to
the danger sought to be prevented.”); Vill. of Schaumburg v.
Citizens for a Better Environment, 444 U.S. 620, 637 (1980)
(“The Village’s legitimate interest in preventing fraud can be
better served by measures less intrusive than a direct prohibition
on solicitation. Fraudulent misrepresentations can be prohibited
and the penal laws used to punish such conduct directly.”);
Schneider, 308 U.S. at 162 (rejecting anti-littering justification
for handbill prohibition in part because “[t]here are obvious
methods of preventing littering. Amongst these is the
punishment of those who actually throw papers on the streets.”);
id. at 164 (conceding that “fraudulent appeals may be made in
the name of charity” but noting that “[f]rauds may be denounced
as offenses and punished by law.”).
20
We will reverse the judgment of the District Court and
remand for further proceedings consistent with this opinion.
21