Jehovah’s Witnesses believe proselytizing is an essential part of their faith and, therefore, a religious obligation. As such, they preach on street corners, sell and/or distribute literature about their faith, and often engage in discussions with individuals about what the Witnesses believe. All of these are ‘‘activities,’’ and, under the old belief/action dichotomy enunciated by the Court in Reynolds v. United States (1879), would not be protected under the First Amendment and could thus be regulated by the states. In a series of cases beginning in the late 1930s, however, the Supreme Court gradually came to the position that the line between belief and action could not always be clearly drawn, especially when certain actions flowed ineluctably from the tenets of the faith.
The Court first brought the First Amendment to bear in Lowell v. City of Griffin (1938), when it struck down a municipal ordinance requiring groups to get a permit before handing out pamphlets. That decision, however, had been based on the speech clause; in Cantwell, the Court for the first time in the modern era began exploring the meaning of the First Amendment’s free exercise clause.
Newton Cantwell had gone door-to-door in overwhelmingly Catholic neighborhoods asking people if they would listen to a recording or receive one of the Witnesses’ pamphlets. The materials all included attacks on Catholicism. When the residents objected, police arrested Cantwell, and he was subsequently convicted of failure to secure the necessary permit for door-to-door solicitation from the secretary of public welfare.
The Supreme Court unanimously overturned the conviction, and the majority opinion, by Justice Owen Roberts, is notable for two reasons. First, it relied on the Free Exercise Clause of the First Amendment rather than the Speech Clause. The state had the power to license solicitors, Roberts held, but the arbitrary power lodged in the secretary of public welfare constituted an impermissible form of censorship over religion. The Court would still have trouble deciding whether religious activities came under the protection of the Speech Clause or the Free Exercise Clause (see, for example, Justice Jackson’s opinion in West Virginia Board of Education v. Barnette ), but in Cantwell at last began to move beyond the simplistic action/belief dichotomy that had been the untouched basis of Free Exercise interpretation since Reynolds.
In another important aspect of his opinion, Roberts set out what would become a universal rule of First Amendment jurisprudence, namely, that although a state may regulate the time, place, and manner in which groups hold public meetings or engage in solicitation, it may not ban them altogether or discriminate on the basis of the content of the message.
MELVIN I. UROFSKY
References and Further Reading
Cases and Statutes Cited