Hynes v. Mayor and Council of Oradell , 96 S. Ct. 1755 ( 1976 )

Mr. Chief Justice Burger

delivered the opinion of the Court.

The question presented in this case is whether a municipal ordinance requiring advance notice to be given to the local police department by “[a]ny person desiring to canvass, solicit or call from house to house ... for a recognized charitable cause . . . or . . . political campaign or cause ... in writing, for identification only” violates the guarantees of freedom of speech and due process of law embodied in the Fourteenth Amendment.

(1)

The Borough of Oradell, N. J., has enacted two ordinances that together regulate most forms of door-to-door canvassing and solicitation. A broad ordinance, No. 573, requires all solicitors to obtain a permit from the borough clerk, by making a formal application, accompanied by a description and photograph of the applicant, the description and license number of any automobile to be used in soliciting, a driver’s license, and other data. The ordinance apparently requires that the chief of police approve issuance of the permit.¹

The ordinance at issue here, Ordinance No. 598A, is an amendment to this broader scheme, and imposes no permit requirement; it covers persons soliciting for “a recognized charitable cause, or any person desiring to canvass, solicit or call from house, to house for a Federal, State, County or Municipal political campaign or cause.” Ordinance No. 598A also applies to “representatives of Borough Civic Groups and Organizations and any veterans honorably discharged or released under honorable circumstances” from the Armed Forces. Those covered by this ordinance are required only to “notify the Police Department, in writing, for identification only.” Once given, the notice is “good for the duration of the campaign or cause.” ²

Appellants are Edward Hynes, a New Jersey state assemblyman whose district was redrawn in 1973 to include the Borough of Oradell, and three Oradell registered voters. They brought suit in the Superior Court of Bergen County, N. J., seeking a declaration that Ordinance No. 598A was unconstitutional and an injunction against its enforcement. Appellant Hynes alleged that he wished to campaign for re-election in Oradell. The other appellants alleged either that they wished to canvass door to door in the borough for political causes or that they wished to speak with candidates who campaigned in Oradell. Each appellant claimed that the ordinance would unconstitutionally restrict such activity.

The Superior Court held the ordinance invalid for three reasons. First, the court noted that it contained no penalty clause, and hence was unenforceable under New Jersey law; second, the court held that the ordinance was not related to its announced purpose — the prevention of crime — since it required only candidates and canvassers to register.³ Finally, the court concluded that the ordinance was vague and overbroad — unclear “as to what is, and what isn’t required” of those who wished to canvass for political causes. The Appellate Division of the Superior Court affirmed, reaching and accepting only the first ground for the trial court’s decision.

The Supreme Court of New Jersey reversed. 66 N. J. 376, 331 A. 2d 277 (1975). It noted that a penalty clause, enacted during the pendency of the appeal, cured the defect that had concerned the Appellate Division. Relying largely on a decision in a case dealing with a similar ordinance, Collingswood v. Ringgold, 66 N. J. 350, 331 A. 2d 262 (1975), appeal docketed, No. 74-1335, the court held that Ordinance No. 598A was a legitimate exercise of the borough’s police power, enacted to prevent crime and to reduce residents’ fears about strangers wandering door to door. The ordinance regulated conduct— door-to-door canvassing — as well as speech, and in doing so “it could hardly be more clear.” 66 N. J., at 380, 331 A. 2d, at 279. The ordinance, the court thought, imposed minimal requirements which did not offend free speech interests:

“It may be satisfied in writing, suggesting that resort may be had to the mails. It need be fulfilled only once for each campaign. There is no fee. The applicant does not have to obtain or carry a card or license. And perhaps most importantly, no discretion reposes in any municipal official to deny the privilege of calling door to door. The ordinance is plainly an identification device in its most basic form.” Ibid.

Two of the court’s seven members dissented. One justice thought the ordinance “plain silly” as a crime-prevention measure, for the reasons given by the trial court. Id., at 382, 331 A. 2d, at 280; another justice thought that the “ordinance has the potential to have a significant chilling effect on the exercise of first amendment rights and thus infringes on these rights.” Id., at 389, 331 A. 2d, at 284.

(2)

We are not without guideposts in considering appellants’ First Amendment challenge to Ordinance No. 598A. “Adjustment of the inevitable conflict between free speech and other interests is a problem as persistent as it is perplexing,” Niemotko v. Maryland, 340 U. S. 268, 275 (1951) (Frankfurter, J., concurring in result), and this Court has in several cases reviewed attempts by municipalities to regulate activities like canvassing and soliciting. Regulation in this area “must be done, and the restriction applied, in such a manner as not to intrude upon the rights of free speech and free assembly,” Thomas v. Collins, 323 U. S. 516, 540-541 (1945). But in these very cases the Court has consistently recognized a municipality’s power to protect its citizens from crime and undue annoyance by regulating soliciting and canvassing. A narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents will hear, may serve these important interests without running afoul of the First Amendment.

In Lovell v. Griffin, 303 U. S. 444 (1938), the Court held invalid an ordinance that prohibited the distribution of “literature of any kind . . . without first obtaining written permission from the City Manager,” id., at 447. The ordinance contained “no restriction in its application with respect to time or place,” and was “not limited to ways which might be regarded as inconsistent with the maintenance of public order or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets.” Id., at 451.

A year later, in Schneider v. State, 308 U. S. 147 (1939), the Court held unconstitutional an Irvington, N. J., ordinance that dealt specifically with house-to-house canvassers and solicitors. The ordinance required them to obtain a permit, which would not issue if the chief of police decided that “the canvasser is not of good character or is canvassing for a project not free from fraud.” Id., at 158. Because the Court concluded that the canvasser’s “liberty to communicate with the residents of the town at their homes depends upon the exercise of the officer’s discretion,” id., at 164, the Court held the ordinance invalid. In Cantwell v. Connecticut, 310 U. S. 296 (1940), the Court held that a similar permit ordinance, as applied to prevent Jehovah’s Witnesses from soliciting door to door, infringed upon the right to free exercise of religion, guaranteed by the First and Fourteenth Amendments. And in Martin v. Struthers, 319 U. S. 141 (1943), the Court struck down a municipal ordinance that made it a crime for a solicitor or canvasser to knock on the front door of a resident’s home or ring the doorbell. See also Staub v. City of Baxley, 355 U. S. 313 (1958).

In reaching these results, the Court acknowledged the valid and important interests these ordinances sought to serve. In Martin, supra, at 144, Mr. Justice Black writing for the Court stated:

“Ordinances of the sort now before us may be aimed at the protection of the householders from annoyance, including intrusion upon the hours of rest, and at the prevention of crime. Constant callers, whether selling pots or distributing leaflets, may lessen the peaceful enjoyment of a home as much as a neighborhood glue factory or railroad yard which zoning ordinances may prohibit. . . . In addition, burglars frequently pose as canvassers, either in order that they may have a pretense to discover whether a house is empty and hence ripe for burglary, or for the purpose of spying out the premises in order that they may return later. Crime prevention may thus be the purpose of regulatory ordinances.”

As Mr. Justice Black suggested, the lone housewife has no way of knowing whether the purposes of the putative solicitor are benign or malignant, and even an innocuous caller “may lessen the peaceful enjoyment of a home.” Ibid. In his view a municipality “can by identification devices” regulate canvassers in order to deter criminal conduct by persons “posing as canvassers,” id., at 148, relying on. the Court’s statement in Cantwell, supra, at 306:

“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 represent.”

These opinions of the Court and the dissenting opinions found common ground as to the important municipal interests at stake. See Martin v. Struthers, supra, at 152 (Frankfurter, J., dissenting); id., at 154 (Reed, J., dissenting); Douglas v. Jeannette, 319 U. S. 157, 166 (1943) (Jackson, J., dissenting in Martin v. Struthers). Professor Zechariah Chafee articulated something of the householder's right to be let alone, saying:

“Of all the methods of spreading unpopular ideas, [house-to-house canvassing] seems the least entitled to extensive protection. The possibilities of persuasion are slight compared with the certainties of annoyance. Great as is the value of exposing citizens to novel views, home is one place where a man ought to be able to shut himself up in his own ideas if he desires.” Free Speech in the United States 406 (1954).

Professor Chafee went on to note: “[These cases] do not invalidate all ordinances that include within their scope . . . doorway dissemination of thought. Several sentences in the opinions state that ordinances suitably designed to take care of legitimate social interests are not void.” Id., at 407.

There is, of course, no absolute right under the Federal Constitution to enter on the private premises of another and knock on a door for any purpose, and the police power permits reasonable regulation for public safety. We cannot say, and indeed appellants do not argue, that door-to-door canvassing and solicitation are immune from regulation under the State’s police power, whether the purpose of the regulation is to protect from danger or to protect the peaceful enjoyment of the home. See Rowan v. Post Office Dept., 397 U. S. 728, 735-738 (1970).

(3)

There remains the question whether the challenged ordinance meets the test that in the First Amendment area “government may regulate . . . only with narrow specificity.” NAACP v. Button, 371 U. S. 415, 433 (1963). As a matter of due process, “[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). The general test of vagueness applies with particular force in review of laws dealing with speech. “[S] tricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser.” Smith v. California, 361 U. S. 147, 151 (1959). See also Buckley v. Valeo, 424 U. S. 1, 76-82 (1976); Broadrick v. Oklahoma, 413 U. S. 601, 611-612 (1973).

Notwithstanding the undoubted power of a municipality to enforce reasonable regulations to meet the needs recognized by the Court in the cases discussed, we conclude that Ordinance No. 598A must fall because in certain respects “men of common intelligence must necessarily guess at its meaning.” Connally v. General Constr. Co., 269 U. S. 385, 391 (1926). Since we conclude that the ordinance is invalid because of vagueness, we need not reach the other arguments appellants advance.⁴

First, the coverage of the ordinance is unclear; it does not explain, for example, whether a “recognized charitable cause” means one recognized by the Internal Revenue Service as tax exempt, one recognized by some community agency, or one approved by some municipal official. While it is fairly clear what the phrase “political campaign” comprehends, it is not clear what is meant by a “Federal, State, County or Municipal... cause.” Finally, it is not clear what groups fall into the class of “Borough Civic Groups and Organizations” that the ordinance also covers.⁵

Second, the ordinance does not sufficiently specify what those within its reach must do in order to comply. The citizen is informed that before soliciting he must “notify the Police Department, in writing, for identification only.” But he is not told what must be set forth in the notice, or what the police will consider sufficient as “identification.” This is in marked contrast to Ordinance No. 573 which sets out specifically what is required of commercial solicitors; it is not clear that the provisions of Ordinance 573 extend to Ordinance 598A. See n. 1, supra. Ordinance No. 598A does not have comparable precision. The New Jersey Supreme Court construed the ordinance to permit one to send the required identification by mail; a canvasser who used the mail might well find — too late — that the identification he provided by mail was inadequate. In this respect, as well as with respect to the coverage of the ordinance, this law “may trap the innocent by not providing fair warning.” Grayned v. City of Rockford, 408 U. S. 104, 108 (1972). Nor does the ordinance “provide explicit standards for those who apply” it. Ibid. To the extent that these ambiguities and the failure to explain what “identification” is required give police the effective power to grant or deny permission to canvass for political causes, the ordinance suffers in its practical effect from the vice condemned in Lovell, Schneider, Cantwell, and Staub. See also Papachristou v. City of Jacksonville, 405 U. S. 156, 162 (1972); Coates v. City of Cincinnati, 402 U. S. 611, 614 (1971); Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 75-85 (1960).

The New Jersey Supreme Court undertook to give the ordinance a limiting construction by suggesting that since the identification requirement “may be satisfied in writing, . . . resort may be had to the mails,” 66 N. J., at 380, 331 A. 2d, at 279, but this construction of the ordinance does not explain either what the law covers or what it requires; for example, it provides no clue as to what is a “recognized charity”; nor is political “cause” defined. Cf. Colten v. Kentucky, 407 U. S. 104, 110-111 (1972); Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); Cox v. New Hampshire, 312 U. S. 569 (1941). Even assuming that a more explicit limiting interpretation of the ordinance could remedy the flaws we have pointed out— a matter on which we intimate no view — we are without power to remedy the defects by giving the ordinance constitutionally precise content.⁶ Smith v. Goguen, 415 U. S. 566, 575 (1974).

Accordingly, the judgment is reversed, and the case is remanded to the Supreme Court of New Jersey for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Stevens took no part in the consideration or decision of this case.

1 Ordinance No. 573 provides in relevant part:

“Section 1. Permit Required

“No person shall canvass or solicit or call from house to house in the Borough to sell or attempt to sell goods by sample or to take or attempt to take orders for the future delivery of goods, merchandise, wares, or any personal property of any nature whatsoever, or take or attempt to take orders for services to be furnished or performed in the future, without first having received a written permit therefor.

“Sections. Application for Permit: Contents Thereof

“a) Any person desiring a permit to canvass or solicit in the Borough shall file, on a form to be supplied by the Borough Clerk, an application with the Borough Clerk stating:

"(1) Name of applicant;

“(2) Permanent home address;

"(3) Name and address of employer or firm represented;

"(4) Place or places of residence of the applicant for the preceding three years;

“(5) Date on which he desires to commence canvassing or soliciting;

“(6) Nature of merchandise to be sold or offered for sale or the nature of the services to be furnished;

“(7) Whether or not the applicant has ever been convicted of a crime, misdemeanor, or violation of any ordinance concerning canvassing or soliciting, and if so, when, where and the nature of the offense;

“(8) Names of other communities in New Jersey in which applicant has worked as a solicitor or canvasser in the past 2 years.

“b) Said application shall also be accompanied by a letter or other written statement from the individual, firm or corporation employing the applicant, certifying that the applicant is authorized to act as the employer’s representative.

“c) No such application shall be filed more than 3 months prior to the time such canvassing or soliciting shall commence.

“Section 4- Investigation: Issuance of Permit

“The Borough Clerk shall give a copy of the application to the Chief of Police who shall cause such investigation to be made of the applicant’s business and moral character as he deems necessary for the protection of the public good. He shall use any information available in other New Jersey cities, towns or boroughs, where the applicant has canvassed or solicited within 2 years last past.

“Section 6. Penalty

“Any person, firm or corporation violating any provision of this ordinance shall, upon conviction thereof, be fined in an amount not exceeding $500.00 or be imprisoned in the County Jail for a period not exceeding ninety (90) days, or be both fined and imprisoned. Each day said violation is permitted or is permitted to continue, shall constitute a separate offense and shall be subject to a penalty hereunder.”

In Collingswood v. Ringgold, 66 N. J. 350, 331 A. 2d 262 (1975), appeal docketed, No. 74-1335, decided the same day as the ease reviewed here, the New Jersey Supreme Court held that an ordinance quite similar to Ordinance No. 573 was invalid insofar as it vested in the chief of police too much discretion in deciding whether or not to grant a canvassing permit. The court in Collingswood accordingly struck that provision of the ordinance, but let the remainder stand.

2 Ordinance No. 598A provides in relevant part:

“Whereas, The Borough of Oradell is primarily a one family residential town whose citizens are employed elsewhere, resulting in the wives of the wage earner being left alone during the day; and

“Whereas, because of the geographical location of most of the homes it is impossible to police all areas at the same time, resulting in a number of break and entries and larceny in the home; and

“Whereas, it is in the public interest and the public safety that persons not be permitted to call from house to house on the pretext of soliciting votes for a designated candidate or signatures for a nominating petition, or to solicit for a recognized charitable cause or borough activity, without such persons being first identified by the Police Department; and

“Whereas, the Mayor and Borough Council of The Borough of Oradell feel that it is in the public interest and for the protection of The Borough of Oradell that such persons be required to notify the Police Department for the purpose of identification.

“Now, therefore, be it ordained by the Borough Council of The Borough of Oradell, in the County of Bergen and State of New Jersey, that an ordinance entitled ‘An ordinance to regulate and prohibit canvassing and soliciting in The Borough of Oradell and establish fees and provide penalties for the violation thereof be amended and supplemented as follows:

“(1) That Section 1 be amended and supplemented by the addition of Section 1 (a) to be entitled ‘Exceptions to Permit' as hereinafter set forth:

“Section 1 (a): Exceptions to Permit

“Any person desiring to canvass, solicit or call from house to house in the Borough for a recognized charitable cause, or any person desiring to canvass, solicit or call from house to house for a Federal, State, County or Municipal political campaign or cause, shall be required to notify the Police Department, in writing, for identification only. Said notification shall be good for the duration of the campaign or cause. The provisions of this section shall also apply to representatives of Borough Civic Groups and Organizations and any veterans honorably discharged or released under honorable circumstances from active service in any branch of the Armed Forces of the United States. All other Sections of Ordinance No. 573, with the exception of the penalty clause designated as Section 7 [sic], shall not be applicable to such persons or groups as designated herein.

“(2) All ordinances or parts of ordinances inconsistent with this ordinance are hereby repealed."

3 The trial court’s opinion in this regard appears to ignore the provisions of Ordinance No. 573, which covers other forms of door-to-door solicitation, and to which Ordinance No. 598A is an amendment.

4 Appellants also argue that the ordinance bears no rational relationship to its announced purpose of crime prevention, that it is overbroad because it covers Oradell residents casually soliciting the votes of neighbors, and that it violates the Privileges and Immunities Clause of the Fourteenth Amendment by infringing on the right to meet and discuss national candidates. We intimate no view as to these contentions.

5 The flaw we find in this ordinance is vagueness, not the over-breadth at issue in Broadrick v. Oklahoma, 413 U. S. 601 (1973), on which the dissent relies. Several appellants alleged that their right to receive information would be infringed because persons canvassing for political causes would be uncertain whether the ordinance covered them. In the circumstances of this case these allegations are enough to put in issue the precision or lack of precision with which the ordinance defines the categories of “causes” it covers.

6 The agency charged with enforcement, the police department, has not adopted any regulations that would give more precise meaning to the ordinance — if indeed it has the legal power to do so. Cf. Broadrick, 413 U. S., at 616-617; CSC v. Letter Carriers, 413 U. S. 548, 575 (1973); Law Students Research Council v. Wadmond, 401 U. S. 154, 162-163 (1971). The chief of police suggested in an affidavit that neither a photograph nor fingerprints are required, and that the canvasser must simply “let us know who he is.” To the extent that this explanation adds any specificity to the ordinance, it does not purport to be binding on the enforcement authorities. Cf. ibid. Nor has the ordinance a history of “less formalized custom and usage” that might remedy the vagueness problems. Parker v. Levy, 417 U. S. 733, 754 (1974).