Church of Free Speech

by MavMan 5 Replies latest social current

  • MavMan

    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."

    COPYRIGHT 2002 American Lawyer Media L.P.

    COPYRIGHT 2002 Gale Group

  • MavMan

    Court sees no redemption in limits on Jehovah's Witness solicitations.


    Supreme Court justices on Tuesday criticized and even ridiculed a local Ohio ordinance that requires anyone who goes door to door -- including Jehovah's Witnesses -- to obtain a permit from the mayor beforehand.

    Justice Anthony Kennedy called the ordinance "astounding," Justice Antonin Scalia suggested it was the broadest anti-speech ordinance to come before the Court in two centuries and Justice Sandra Day O'Connor said it could be used against Halloween trick-or-treaters or anyone who visits a neighbor to "borrow a cup of sugar."

    The justices seemed to shrug off arguments by lawyers for Stratton, Ohio, and the state of Ohio that the ordinance was a harmless and speech-neutral regulation aimed at protecting residents from fraud, robbery and the "annoyance" of unwanted visitors.

    The Stratton ordinance, passed in 1998, appeared likely to join a cavalcade of speech restrictions successfully challenged by Jehovah's Witnesses over the past 70 years. The case before the Court was Watchtower Bible and Tract Society of New York v. Village of Stratton, No. 00-1737.

    Paul Polidoro, associate general counsel for the Witnesses, started with a dramatic flourish, knocking on the Court lectern as if he were a Jehovah's Witness knocking on the door of a Stratton residence.

    But soon justices were asking him a flurry of questions, confused about the requirements of the ordinance and to which portions the Witnesses objected. Was the requirement that permit applicants give their names the main problem? And where would the names be given -- just back at the mayor's office, or would people with permits be required to give their names as they go door to door?

    Polidoro focused at first on name issue, citing McIntyre v. Ohio, the 1995 decision that gave anonymous speech First Amendment protection. Jehovah's Witnesses, he said, had a "long constitutional memory" of the reprisals they could face if their identities are known. But Polidoro also said Witnesses freely identify themselves when asked by residents.

    Justice Stephen Breyer asked Polidoro whether his position on anonymous speech would have implications for campaign finance reform -- in which disclosure of the names of campaign donors is required. Polidoro distanced himself from that issue, attacking the Stratton ordinance more broadly as a "censorial weapon."

    Chief Justice William Rehnquist was the only member of the Court who sounded sympathetic to the ordinance, recalling news reports of the murder last year of two Dartmouth College professors. Their alleged killers apparently sought out potential robbery victims by going door to door pretending to conduct a survey, Rehnquist noted. He suggested that the government is entitled to "take that into account" in fashioning laws that protect citizens.

    The Court's clearest expressions of disdain for the ordinance came when Stratton lawyer Abraham Cantor rose to defend it. Cantor said the village was acting within its police powers to protect privacy and prevent crime.

    But soon Justice O'Connor asked about trick-or-treaters, with Justice Scalia chiming in that they, unlike Witnesses, could be categorized as "solicitors." Amid laughter, O'Connor bore in: "Does it cover them? I'm serious." Cantor's answer was unclear.

    More than once Scalia quoted the words of the ordinance that refer to the permit as a "privilege." His point was that under the First Amendment, the ability to communicate is a right, not a privilege.

    Justices Kennedy and David Souter teamed up to ask Cantor whether a Stratton resident who merely wanted to discuss the town's garbage pickup service with neighbors would have to obtain a permit. "That's a cause, isn't it?" asked Souter.

    Cantor did not bolster his argument that the ordinance was content-neutral when he answered, "That's not the type of cause" the ordinance was intended to license.

    Ohio Solicitor General David Gormley fared slightly better when he defended the ordinance as a public safety measure aimed only at people who go onto private property, emphasizing that it was justified as a way of getting a minimum of information on the record in case problems crop up later. "It is a very modest restriction," Gormley said.

    But whatever success Gormley had at rehabilitating the ordinance seemed to crumble when Justice Scalia said that the safest places on earth were totalitarian regimes. As a price of liberty, Scalia said, the public has learned to put up with the risk of being uncertain about who is knocking on doors.

    Tony Mauro is Supreme Court correspondent for American Lawyer Media.

    COPYRIGHT 2002 American Lawyer Media L.P.

    COPYRIGHT 2002 Gale Group

  • Simon

    ha ha ... I like how you included the copyright notice ...

  • SYN

    Interesting, thanks MavMan! It's weird, I flame you on one thread, then on another I thank you...probably, I should stop mixing my medications!

    It really is such an amazingly beautiful series of interlocking systems that comprise what a human is. It's too bad we're working backwards from the object code, everything would be simpler with the source and a comment or three thrown in.

  • 4christ

    Hi Mavman,
    Its a shame that the WT doesn't allow its own members the basic human rights they make such a show of fighting for..... like freedom of thought.

    BTW, are you going to answer my questions on the other thread?

    Peace to all-L

    "Watch out for the teachers of the law" -Jesus Christ, Mark 12:38

    edited for spelling

  • Dutchie

    "worldwide real estate owner and publishing enterprise--it published in more than 300 languages--" operating under the guise of a religion.

Share this