The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5378 September 25, 1978 CONSTITUTIONAL LAW: Freedom of Speech CONSTITUTION OF MICHIGAN: Art 1 Sec. 5 (Freedom of Speech) MUNICIPALITIES: Ordinance restricting canvassing CANVASSING & SOLICITATION: Statute or ordinance restricting Neither the state nor its municipal corporations may prohibit door-to-door solicitation or the distribution of handbills on behalf of a citizen organization. Neither the state nor its municipal corporations may require a citizen organization to provide information about its political goals and activities for evaluation by a public official before its members and agents may canvass door-to-door. Neither the state nor its municipal corporations may impose a tax or fee upon the activity of canvassing door-to-door by a citizen organization; nor may the state or its municipal corporations require the posting of a bond as a condition of engaging in this activity. Neither the state nor its municipal corporations may impose a residency requirement upon canvassers of citizen organizations. The state or its subdivisions may, however, require canvassers of citizen organizations to identify themselves in writing to state or municipal authorities. Neither the state nor its municipal corporations may impose a requirement of fingerprinting of canvassers going door-to-door. Honorable William Fitzgerald State Senate The Capitol Building Lansing, Michigan You have advised that certain citizen organizations have been forbidden entirely by some municipal governments from engaging in door-to-door canvassing while other municipal governments have subjected them to stringent limitations, such as examination of the organization, its aims, and prior approval, payment of fees or the posting of bonds, requiring canvassers to identify themselves to authorities, restricting canvassing to residents only, and fingerprinting of canvassers. Members of these organizations canvass door-to-door seeking citizen participation and support by informing citizens of their work, asking for support through signed petitions, contributions, membership or volunteer work. Based upon these facts, you request my opinion on the following question: May the State or any of its subdivisions impose a uniform prohibition on canvassing, requiring an organization to provide information about its political qualities and activities so that these can be evaluated by public officers before canvassing is allowed, obtain a license before canvassing, require the payment of a fee or the posting of a bond, require canvassers to identify themselves to authorities, allow canvassing only if done by residents of the community, or submit to fingerprinting? The First Amendment to the United States Constitution provides: 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.' The Michigan Constitution of 1963 contains a similar guarantee in art 1, Sec. 5, which states: 'Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.' The First Amendment rights of free speech, to assemble peaceably and to petition for redress of grievances have been appropriately enumerated as among the most precious of liberties safeguarded by the Bill of Rights. United Mine Workers of America District 12 v Illinois State Bar Assn, 389 US 217; 88 S Ct 353; 19 L Ed 2d 426 (1967). The courts, both federal and state, are vigilant in protecting the exercise of First Amendment rights against prior restraint and the possible 'chilling' effect of statute or ordinance. Staub v City of Baxley, 355 US 313; 78 S Ct 277; 2 L Ed 2d 302 (1958); Soof v City of Highland Park, 30 Mich App 400; 186 NW2d 361 (1971). The practice of persons not specifically invited to go from home to home and knock on doors or ring doorbells to communicate ideas to persons residing therein or to invite them to political religious or other kinds of public meetings is centuries old. While the authors of the First Amendment were well aware that novel and unconventional ideas might disturb the complacent, they deliberately elected to encourage a freedom which they believed essential to the well being of this land. It is possible that door-to-door distributors of literature or ideas may become a nuisance. Nevertheless, they are useful disseminators of ideas in accordance with the best traditions of free discussion. Door-to-door campaigning is and continues to be one of the most accepted techniques of seeking popular support. Circulation of nominating petitions would be greatly impeded if they could not be taken to the citizens in their homes. More importantly door-to-door distribution of circulars is essential to the poorly-financed causes of the disadvantaged. Thus, the freedom to distribute information is so important to the preservation of a free society that it must be vigilantly safeguarded. See the Opinion of the Court of Mr. Justice Black in Martin v City of Struthers, Ohio, 319 US 141, 142-147; 63 S Ct 862, 863-866; 87 L Ed 1313, 1314-1319 (1943). It is in this context of the protected First Amendment freedoms and the well-established practice of going from home to home and knocking on doors or ringing door bells to communicate ideas to occupants thereof as vital elements to the preservation of a free society that the limitations imposed by municipal governments upon canvassers of organizations must be addressed. TOTAL EXCLUSION OF CANVASSERS OF CITIZEN ORGANIZATIONS FROM COMMUNITY Neither the state nor any of its municipal corporations may enact statutes or ordinances barring persons, at risk of criminal penalty, from soliciting door to door in behalf of citizen organizations within the community without offending the First Amendment to the U.S. Constitution and Const 1963, art 1, Sec. 5. The City of Struthers, State of Ohio, enacted an ordinance making it a crime for any person distributing handbills or circulars to ring the door bell, sound the door knocker, or otherwise seek to reach persons residing in such dwelling. The Supreme Court of the United States struck down the ordinance as violating First Amendment rights of freedom of speech and freedom of press. Martin v City of Struthers, Ohio, supra. PRIOR REVIEW AND EVALUATION OF CITIZEN ORGANIZATIONS BY COMMUNITY OFFICIALS The law is settled beyond peradventure that any statute or ordinance which requires a prior examination of an organization, its aims, and approval by state or local officials, in their discretion, before soliciting or canvassing is permitted, offends the First Amendment to the Constitution of the United States and cannot stand. Lovell v City of Griffin, 303 US 444; 58 S Ct 666; 82 L Ed 949 (1938); Schneider v State (Town of Irvington), 308 US 147; 60 S Ct 146; 84 L Ed 155 (1939); Cantwell v Connecticut 310 US 296; 60 S Ct 900; 84 L Ed 1213 (1940), where the Court struck down a similar permit ordinance as it applied to members of religious organizations soliciting door to door. Staub v City of Baxley, supra. Thus, it must be concluded that any state statute or ordinance which would require a citizen organization to provide information about its political goals and activities so that these can be evaluated by public officers before canvassing is allowed violates the freedom of speech and freedom of press safeguarded by the First Amendment to the Constitution of the United States and Const 1963, art 1, Sec. 5. PAYMENT OF FEES OR THE POSTING OF BONDS In Follett v Town of McCormick, 321 US 573; 64 S Ct 717; 88 L Ed 938 (1944), the Supreme Court was asked to pass upon the constitutionality of a town ordinance which required a fee of $1.00 per day or $15.00 per year to license persons seeking to distribute religious tracts and receive contributions therefor within the township. The Court held that a flat license tax on the constitutional right of free exercise of religion violated the First Amendment to the Constitution of the United States. Relying upon Murdock v Pennsylvania, 319 US 105; 63 S Ct 870; 87 L Ed 1292; 146 ALR 81 (1943), the Court reiterated the controlling principle that the power to tax the exercise of the right of religious freedom is the power to control or supress its enjoyment. Moreover, the concurring opinion of Mr. Justice Reed in Follett, supra, a dissenter in Murdock v Pennsylvania, supra, indicates a clear understanding that the law of the land protects the free exercise of religion under the First Amendment as being immune from the interference of the requirement of a license. A like rule should apply for the exercise of freedoms of speech and press. The holdings of Follett, supra, and Murdock, supra, that the state may not require the payment of a flat tax as a condition to the exercise of the freedom of religion are equally applicable to the free exercise of speech by representatives of citizen organizations going from door to door within a community. Canvassers or solicitors of a citizen's organization cannot be required to pay a tax in order to exercise any First Amendment rights within a community. The only decision of the U.S. Supreme Court which has upheld a fee imposed by a municipality for the use of public streets for parades or processions by organizations, including religious organizations, at amounts ranging from a nominal sum, undisclosed in the opinion, to $300 was held by the U.S. Supreme Court in Cox v State of New Hampshire, 312 US 569; 61 S Ct 762; 82 L Ed 1049 (1941) not to violate First Amendment rights of assembly or freedoms of speech and press, since the fee imposed was not a tax, but one to meet the expenses incident to maintaining control of streets and public safety during the parade or procession. The Court noted that a parade or procession draws crowds of observers which requires policing of such events and the flexibility of adjustment of fees which, in light of varying conditions, would conserve the First Amendment liberties rather than impair them. Research discloses no decision (1) of the U.S. Supreme Court extending the holding in Cox, supra, to the imposition of fees or requiring of bonds as a condition precedent to state or municipal approval for representatives of citizen organizations to go from door to door within a community. On its face, the actions of individual canvassers within a community do not require attendant police surveillance. Therefore, it is my opinion that the imposition of fees or the posting of bonds as a condition precedent for representatives of citizen organizations to canvass or solicit door to door within a community is a prior restraint upon and 'chills' the free exercise of speech and press guaranteed by the First Amendment to the U.S. Constitution and Const 1963, art 1, Sec. 5. CANVASSING PERMITTED ONLY BY RESIDENTS OF THE COMMUNITY Research reveals no decision of the United States Supreme Court upholding the right of the state or its political subdivisions to limit canvassing by citizen organizations only if done by residents of the community. It is abundantly clear that the guarantees of the First Amendment and Const 1963, art 1, Sec. 5 are not limited by the boundaries of local communities. Moreover, the U.S. Supreme Court has held in Shapiro v Thompson, 394 US 618; 89 S Ct 1322; 22 L Ed 2d 600 (1968), that a state may not impose residence requirements upon persons who seek public assistance since such restriction impedes the constitutionally-protected right of travel. Any state statute or municipal ordinance which would limit canvassing by residents only would deny national citizen organizations from the opportunity to speak with Michigan citizens. This 'chilling' effect upon the right of free speech cannot be sustained. Therefore, it is my opinion that neither the state nor any of its municipal governments may impose residence requirements upon canvassers of citizen organizations. IDENTIFICATION OF CANVASSERS TO COMMUNITY AUTHORITIES In Hynes v The Mayor and Council of the Borough of Oradell, 425 US 610; 96 S Ct 1755; 48 L Ed 243 (1976), the Supreme Court reviewed the constitutionality of an ordinance of the Borough of Oradell which required that any person, including representatives of citizen groups, desiring to canvass or solicit from house to house for a 'recognized charitable cause' or for any federal, state or local political campaign or cause must notify the police department in writing for identification purposes. The Court upheld the power of the municipality to protect its citizens from crime and undue annoyance by requiring that solicitors or canvassers going house to house identify themselves and the organizations they represent, in writing, to municipal officials. Nevertheless, the Court struck down the ordinance for vagueness and overbreadth because of the uncertainty of the meaning of the phrase 'recognized charitable cause'. It is noted that in upholding the authority to require identification of canvassers, the Court adopted the dicta in Cantwell v Connecticut, supra, and Martin v City of Struthers, Ohio, supra. Thus, the holding in Hynes v The Mayor and Council of the Borough of Oradell, supra, empowers the state and its municpalities to protect its citizens from crime and undue annoyances by requiring that persons going house to house in behalf of citizens or political groups identify themselves and the organizations they represent in writing to state or local authorities but this decision does not hold that license or permit systems are constitutional. It is my opinion, therefore, that the state or its subdivisions may require canvassers of citizen organizations to identify themselves to state or municipal authorities. FINGERPRINTING 2 OAG, 1955-1956, No 2651, p 423 (July 23, 1956) held a municipal ordinance which required certain persons to register and be fingerprinted before they could pursue lawful occupations within a municipality to be unconstitutional because it denied personal liberty and the right to pursue a lawful occupation. This opinion cited authorities from other jurisdictions which upheld fingerprinting of employees only in those occupations which were fraught with danger to the public, such as employees of cabarets, employees of liquor establishments, and the fingerprinting of persons selling personal property to pawn brokers. Moreover, there is no question but that the fingerprinting of canvassers for citizen organizations seeking to go door to door within a community would 'chill' the First Amendment right of free speech. Therefore, it is my opinion that neither the state nor a municipal government can impose a requirement of fingerprinting of canvassers of citizen organizations going door to door within a community without offending the First Amendment to the Constitution of the United States and Const 1963, art 1, Sec. 5. Giving full meaning to the precious rights of freedom of speech and freedom of press guaranteed by the First Amendment to the U.S. Constitution and Const 1963, art 1, Sec. 5 and the right of the state and its municipal governments to protect its citizens against crime and fraud, in summary, it is my opinion that the state and its municipal governments may require canvassers to identify themselves and the organization they represent, in writing, to municipal governmental authorities before they go from house to house in behalf of citizen organizations. However, both the First Amendment to the Constitution of the United States and Const 1963, art 1, Sec. 5 bar the state and its municipal governments from forbidding entirely representatives of citizen groups from canvassing door to door, requiring prior examination of the citizen's organization, its aims and approval before canvassing is permitted, requiring payment of fees or the posting of bonds, restricting canvassing to residents only, and requiring fingerprinting of canvassers. Frank J. Kelley Attorney General (1)