Church of Free Speech: the Jehovah's Witnesses this month wage the latest in a storied line of cases before the high court.
AT THE WATCHTOWER EDUCATIONAL Center in Patterson, New York, about 50 miles northeast of Manhattan, lunchtime for everyone is 12:15. At the vast dining hall, on this day in late autumn, more than 1,000 people will be fed in less than an hour. Jehovah's Witnesses, clean cut, well dressed and very multicultural, stream into the dining room, smiling, looking unstressed and unburdened. They begin and end the hearty meal--turkey, mashed potatoes, vegetables, pumpkin pie, plain water--with a prayer to Jehovah.
At the table reserved for the legal department, colleagues joke good-naturedly that all eyes will be on Paul Polidoro on February 26, when he will argue Watchtower Bible and Tract Society of New York v. Village of Stratton, Ohio, the latest in an honored line of Jehovah's Witness cases before the U.S. Supreme Court. Polidoro, the denomination's associate general counsel, smiles, turns to his guest, and says, "One thing is certain. Even if I lose this case, I will still have my job."
Polidoro later calls this a joke, but he is almost certainly fight. His case, like all of his life, is subject to the will of Jehovah, in his view, and if Jehovah means for him to lose, then so be it. No amount of preparation or skill on his part could keep it from happening, so he won't be blamed if the Court rules against him. "I don't think any attorney wants to lose, but there's a bigger picture," says Polidoro, 45. "These matters are ultimately in Jehovah's hands."
It was Jehovah's will, he explains, that led the Supreme Court to rule against the Witnesses in Minersville School District v. Gobitis, a 1940 case that upheld mandatory flag salutes in public schools. The ruling unleashed a wave of anti-Witness violence; three years later the Court reversed itself in West Virginia State Board of Education v. Barnette, also a Witness case. In Barnette, Justice Robert Jackson penned one of the Court's most eloquent defenses of individual liberty ever: "If there is any fixed star in our constitutional constellation it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us." Says Polidoro: "The result in Gobitis wasn't the best, but three years later it was overturned. So we do our best and leave it in Jehovah's hands."
Doing his best in the case now before the Court will mean convincing the justices that it was unconstitutional for Stratton, Ohio, to require door-to-door advocates to obtain a permit and reveal their names. The Supreme Court, mindful that the Federalist Papers were written under pseudonyms, has accorded anonymous speech an honored place in the First Amendment pantheon. The mayor of Stratton had a documented history of hostility--once telling a group of Witnesses that people had moved to his town with the understanding they would not be bothered by Witnesses--so the ordinance may fall easily.
But the Court has also begun, most notably in the 2000 abortion protest case of Hill v. Colorado, to pay heed to the desire of government to protect the "unwilling listener" from having to listen to unwanted communication. Polidoro's case is not a slam dunk. "I would have thought this issue was resolved decades ago," says Polidoro. "If the mayor had said people moved to Stratton so they wouldn't have to deal with blacks or Jews, it is hard to imagine that wouldn't come to the fore."
Soon after the Court granted review in the case, Polidoro said, several individuals and groups steeped in First Amendment law offered help, some volunteering to argue the case for Polidoro, who has never argued before the Supreme Court. Polidoro chuckled and said that the offers were appreciated, but general counsel Philip Brumley decided to keep the case in-house, among lawyers who know the life and history of the Jehovah's Witnesses and the obstacles they still face in bringing their message to the public.
How will Polidoro prepare? An internal court, followed by one set up by Georgetown University Law Center's Supreme Court Institute. But his main preparation, he says, be "to pray, a lot, on several levels." Not typical Supreme Court litigation strategy, but nothing is typical about Polidoro or the legal department of the Watchtower Bible and Tract Society, the legal name for the Witnesses and their huge publishing operation. The denomination, active since the 1880s, claims 1 million adherents in the United States and 6 million worldwide.
Strictly speaking, Polidoro and the 12 other lawyers--some of whom work at the better-known Brooklyn headquarters--are volunteers, like Roman Catholic priests. They work in a corner of the sprawling main building of the recently built education center here, where missionaries and ministers train. It is a bland, unadorned, gray-painted office complex where the only art on the walls are stylized of Bible scenes. The lawyers receive free room and board but no salary, except for a small monthly stipend. All are Jehovah's Witnesses, and all go door to door preaching the Bible for at least part of every month.
And most, like Polidoro, were lawyers before they became Witnesses. Polidoro, formerly a devout Roman Catholic, followed a typical path from Pace University School of Law to the Bronx district attorney's office, then to private practice and finally to his own firm in White Plains, New York. "It was the first time in my career that I was making real money," he recalls. But he became more and more interested in the Bible--though not through a door-to-door visit from a Witness--and in 1987 was baptized as a Jehovah's Witness. To devote himself more to his new religion, he left his firm and began volunteering, essentially full time, in the legal department. Polidoro, who is single, lives on the campus.
He quickly learned that by lawyering for the Jehovah's Witnesses, he would be following in a tradition that helped flesh out the contours of the modern-day First Amendment. Through storied cases including Gobitis and Barnette, Cantwell v. Connecticut, Chaplinsky v. New Hampshire, Jones v. Opelika, and many others,
the Jehovah's Witnesses cases extended the application of the First to the states, and brought phrases like "time, place and manner" restrictions and "fighting words" into the legal lexicon. Justice Harlan Fiske Stone once wrote, "The Jehovah's Witnesses ought to have an endowment in view of the aid which they give in solving the legal problems of civil liberties."
By the Jehovah's Witnesses' own count, the Court has decided 71 cases involving its members. As recounted in Shawn Francis Peters's 2000 book Judging Jehovah k Witnesses, practitioners brought some of the controversies upon themselves, with an abrasive, confrontational style that included, ironically, a certain intolerance toward other religions. "A different era," says Polidoro now. "The message is the same, but the approach is different. We try to establish common ground with people."
Many of the Witness cases were handled by Hayden Covington, a colorful figure who is believed to have argued more First Amendment cases before the Supreme Court than any other lawyer in history. In a Newsweek report from 1943, Covington was described as arguing before the Court dressed in a bright green suit and a red plaid tie. In describing the Witnesses' religion, Covington reportedly glowered at Justice Frank Murphy, a Catholic, and said, "They don't preach in a dead language."
After a torrent of cases in the 1930s. 1940s, and 1950s, the docket of Witness cases has thinned, and until the mid-1980s, an in-house legal department was deemed unnecessary. But by then, the ordinary legal problems of a worldwide real estate owner and publishing enterprise--it published in more than 300 languages--led to the creation of a new legal team. Worldwide, Jehovah's Witnesses still face hostility as they conduct their ministry. But in the United States, except for "pockets around the country," Polidoro says, most municipalities have learned that, under the body of law created in part by the Witnesses, they must be allowed to go door to door unregulated.
Stratton is the most flagrant exception, and when the U.S. Court of Appeals for the Sixth Circuit upheld its ordinance, Polidoro anticipated a new wave of restrictions. The high court's decision to consider the Witnesses' appeal has staved off new regulations, at least until a decision comes down later this term.
In his appeal petition to the high court, Polidoro raised free speech, religion, and press claims, in addition to the anonymous speech issue. He sees it mainly as a free press issue, which is why the suit is captioned with the name of the society, rather than the name of an individual practitioner. His free press argument: If Witnesses are forced to register before going door to door, they cannot freely distribute their publications. The Court has recognized that a right to distribute is inherent in the right to publish. But when the Court granted review on October 15, it indicated that it was only interested in the permit process as it related to restriction of anonymous speech. The press and religion issues will not be before the Court. Polidoro still hopes to make some free press-related points at argument, but he knows what the Court wants to hear, and will focus on the permit process as a prior restraint. The town justifies the permit process requiring names and addresses, as a way of protecting residents against fraud from solicitors.
But Polidoro sternly says, "We are not solicitors. We are not selling anything." He turns to the Bible on his desk and looks up a passage from Corinthians: "We are not peddlers of the word of God." For that reason, Polidoro also sees a distinction between requiting Witnesses to reveal their names and requiring salesmen or, for that matter, campaign donors to disclose names--a requirement that has been upheld. "We're not involved in political affairs, and have no interest in anonymous political speech," he says. He acknowledges, nonetheless, that his case may have an impact on political speech and campaign finance reforms, which generally require donors to give their names. Door-to-door advocacy is a basic, nonnegotiable part of what Jehovah's Witnesses are, he insists. "It is God's command that we speak to people, and it is an offense to God to ask permission from man to do what God has commanded us to do," says Polidoro.
During the interview Polidoro refers often to his Bible, and it is clear that his legal argument is rooted deeply in religious views. But he knows that biblical arguments will not be welcomed at the Court. He will not have his Bible on the lectern, he says.
"At a Kingdom Hall, I am a minister," says Polidoro, referring to the Witnesses' local houses of worship. "In a court of law, I am an attorney. I will not be talking about Corinthians or Matthew." For a moment, the idea of leaving his Bible behind seems to scare him. But then his confidence returns: "This is not a sporting event. God doesn't have an interest in that. Here, I don't know what the timing will be, but I have reason to believe that He'd have an interest in the outcome of this case."
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