Joseph Fulgham is the director of policy and communications for the Delaware House of Representatives’ Republican Caucus.
With Election Day looming, political candidates and their supporters throughout Delaware are actively campaigning, leading to more complaints and confrontations over confusion between solicitation and canvassing.
Solicitation involves situations in which individuals go door-to-door to sell goods or services. By contrast, canvassing is a noncommercial exercise of free speech, guaranteed by the First Amendment to the U.S. Constitution. In political canvassing, volunteers or candidates visit homes to share information, discuss public issues, register voters or encourage people to vote. Canvassing for political, religious and nonprofit groups is a protected right. Noncommercial canvassers are legally entitled to go door-to-door, speak with residents and distribute literature.
Federal court cases over more than 60 years have affirmed and framed these rights, striking down state and local attempts to prohibit or unreasonably restrict such activities.
In Lovell v. City of Griffin (1938), the Supreme Court of the United States found that a city ordinance requiring a permit to distribute “circulars, handbooks, advertising, or literature of any kind” was unconstitutional. The ruling established a precedent for broadly allowing canvassing and the distribution of flyers, declaring it a form of protected speech.
In Martin v. City of Struthers (1943), the Supreme Court found unconstitutional a municipal ordinance that barred anyone from contacting citizens in their homes to distribute handbills or circulars. Delivering the prevailing opinion, Justice Hugo Black noted that the ability to distribute information to every citizen was “so clearly vital to the preservation of a free society that … it must be fully preserved.”
Generally, constitutional freedoms cannot be suspended inside privately owned communities.
In Marsh v. Alabama (1946), the High Court considered a case in which religious materials were being distributed in Chickasaw, a town exclusively owned by a corporation. Company officials posted the notice, which stated: “This Is Private Property, and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted.”
A woman handing out literature for the Jehovah’s Witnesses was later arrested when she refused to comply with the declaration. In this case, the justices found that, even though the community was under exclusive private ownership, the owners could not arbitrarily curtail citizens’ constitutional rights. “Ownership does not always mean absolute dominion,” the court’s prevailing opinion stated. “When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position.”
A political canvasser cannot be required to obtain a license, pay a fee, wear an identification card, be subject to a criminal background check or get permission from any municipality or homeowners association — all rights affirmed in the decisions of: Murdock v. Pennsylvania (1943), Watchtower Bible & Tract Society of New York Inc. v. Village of Stratton (2002) and Lovell v. City of Griffin.
While political canvassing is legally protected and cannot be prohibited by state law, municipal ordinance or most homeowners associations, it is not without limits.
Private, gated communities, whose roads are not open to public access, can bar canvassers from entering.
Within reason, restrictions can limit the hours during which political canvassing can occur, such as between 9 a.m. and 9 p.m.
Homeowners have the right to bar canvassers from their properties by posting “No Trespassing” or “No Canvassing” signs.
Canvassers must also leave the property immediately if the homeowner asks them to. Under Delaware law, people who knowingly violate the property owner’s wishes could be found guilty of criminal trespass in the second or third degree.
Reader reactions, pro or con, are welcomed at civiltalk@iniusa.org.
