Legal Corner: Regulating door-to-door canvassing and commercial solicitation

When thinking of constitutionally protected activities, door-to-door solicitation may not spring to mind. The reality, however, is that door-to-door solicitation receives a perhaps surprising amount of First Amendment protection. Therefore, if a municipality wants to regulate solicitation, it is helpful to understand the scope of that protection.

Canvassing

At the outset, it is important to note that courts view door-to-door sales very differently than canvassing. Individuals who are canvassing, i.e. spreading information about political or religious matters, are viewed as distinct from individuals selling products door-to-door. Mark Strasser, Preaching, Fundraising and the Constitution, 85 Denv. U. L. Rev. 405, 406 (2007).  Courts have found that canvassing activities are fundamental to the exercise of religious expression and freedom of the press. Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 162 (2002).  Therefore, the regulation of canvassing, even on private property, is granted extensive First Amendment protection. Colorado’s constitution provides a similar level of protection. Even if individuals are soliciting donations while canvassing, this is still considered to be canvassing and it is afforded the same strong protections.

This broad constitutional protection means that municipalities have a very narrow ability to regulate canvassing on private property.  Any such regulation must meet a stringent standard of allowing for the "free and unhampered" distribution of information. Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 162 (2002).  Even the arguably minimal requirement that canvassers register for a free permit before contacting residents has been found to violate this standard.

However, while a municipality may be limited in the regulation of canvassers, private citizens maintain control over their own property. When the activity is occurring on private property, residents have the right to exclude solicitors and canvassers from their property through fencing or signage, although they must explicitly and unambiguously state so. United States v. Carloss, 818 F.3d 988, 996-98 (10th Cir. 2016). Courts in Colorado have also upheld the ability of municipal officers to issue trespass notices on private property, provided the municipality has authorized them to do so. Montgomery v. Anderson, No. 21-cv-03191 (D. Colo. Aug. 22, 2022).

Door-to-door commercial solicitation

As opposed to canvassing, a municipality theoretically has much broader authority to regulate door-to-door sales. Door-to-door commercial solicitation does not implicate the same level of First Amendment protection as canvassing, although it is still a protected activity. Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1231(10th Cir. 2005). Courts will likely examine an ordinance regulating commercial solicitation under the controlling test, which asks three questions: (1) is the government protecting a substantial interest or preventing a real harm, (2) does the regulation materially advance the government's interest, (3) and would a less restrictive regulation achieve the same effect.

Governing bodies should have specific evidence of real harms to satisfy this test, as opposed to speculative concerns or complaints. While previous court decisions accepted anecdotal testimony, more recent court decisions indicate that municipalities may be required to provide a higher standard of proof. In Aptive Environmental, LLC v. Castle Rock, 959 F.3d 961 (10th Cir. 2020), the Tenth Circuit Court of Appeals found that a town ordinance prohibiting door-to-door commercial solicitation after 7 p.m. unconstitutionally burdened the solicitor's First Amendment rights because the town had not adequately demonstrated that the ordinance materially advanced the town's interest in public safety. The town relied on a record of complaints regarding door-to-door solicitation to justify the ordinance, but the court found that the complaints did not sufficiently demonstrate that evening commercial solicitors constituted a threat to public safety. The court also discounted testimony from town officials regarding the perceived link between evening solicitation and crime.

The Castle Rock decision suggested examples of evidence that would be sufficient in a similar case. Even "anecdotes, history, or common sense" could be evidence, but would need to be sufficiently robust, such as "a two-year study of the impact of lawyer advertising and solicitation" or a "106-page summary of ... survey results, newspaper editorials, and complaints filed by citizens." As an alternative, municipalities could cite studies conducted by similar municipalities. However, simply stating that other municipalities have similar ordinances would not suffice.

The Castle Rock case demonstrates that municipalities wishing to restrict door-to-door commercial solicitation will bear the burden of proving that their ordinance is tailored to address actual harm. This does not mean, however, that municipalities cannot regulate door-to-door solicitation. In fact, the Tenth Circuit has indicated that ordinances requiring solicitors to register their fingerprints with town hall or put up a thousand-dollar bond before soliciting could be upheld, as long as there is sufficient evidence justifying the requirement. Pac. Frontier, 414 F.3d at 1221.

Municipal ordinances prohibiting commercial door-to-door solicitation may also be challenged under other Constitutional provisions. For instance, solicitors may challenge the ordinance under the Dormant Commerce Clause, a constitutional concept which prohibits state laws from interfering with the free flow of interstate commerce. However, the Tenth Circuit Court of Appeals has held that imposing licensing fees does not violate the Commerce Clause as long as they are imposed equally on local and non-local merchants. Quik Payday, Inc. v. Stork, 549 F.3d 1302 (10th Cir. 2008). Courts in other states have struck down solicitation license fees under the Dormant Commerce Clause if they are too expensive and therefore unduly burden commerce. Nippert v. City of Richmond, 327 U.S. 416, 434 (1946). In sum, under current Colorado case precedent, ordinances imposing reasonable licensing fees on all door-to-door solicitors are unlikely to be found in violation of the Dormant Commerce Clause.

Taking steps to fully understand the issue, the harms it poses, and how regulations can minimize those harms, and documenting those efforts, can help reduce the chance that a solicitation ordinance will be overturned in court. For municipalities that have an existing ordinance, confirming that the ordinance is narrowly tailored, reasonable in scope and cost, and being enforced in a consistent manner can help protect against constitutional challenges. For municipalities looking to adopt an ordinance addressing door-to-door solicitation, factors to consider include: what time the solicitation is occurring, whether the solicitor attempted to register with the municipality, and what citizens' specific concerns are regarding solicitation. Working closely with your municipality’s attorney is critical to ensuring the success of your ordinance.

This column is not intended and should not be taken as legal advice. Municipal officials are always encouraged to consult with their own attorneys.