What does United States law
Say about sharing your Faith
Sunday, August 18, 2013
Below is a short legal analysis prepared by ACLJ (American Center for Law and Justice)
attorneys on this topic. A more in-depth legal analysis is available here.
The streets and sidewalks of the United States are an open forum for evangelism. The Constitution guarantees the right to preach the Gospel in public places. The Supreme Court’s many cases involving preaching (or other speech activities) on the streets provide ready answers to those who challenge your right to give away religious tracks, pamphlets, and other printed materials and to speak with people on the street about your faith.
What laws protect my right to witness and share my faith in public?
When you give away religious tracts in public places – streets, sidewalks, and parks – you are engaged in a form of speech and publication protected by the United States Constitution and civil rights laws. When you speak with someone about the Gospel while in a public place, you enjoy constitutional protection.
As American citizens, we are protected by the United States Constitution from government interference with our right of free speech. This includes the right to evangelize. Also, the Constitutions of every state in our country include guarantees of free speech, which are at least as protective of free speech as the federal Constitution.
The First Amendment to the United States Constitution provides, “Congress shall make no law . . . abridging the freedom of speech,” and the Fourteenth Amendment states, “[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .” The Supreme Court has ruled that these two provisions of the Constitution severely limit the power of federal, state, and local governments to interfere with speech activities on sidewalks, streets and in parks. Moreover, Supreme Court “precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression.” Capitol Square & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995).
It is a constitutional axiom that the distribution of free religious literature is a form of expression protected by the First Amendment. Heffron v. International Society for Krishna Consciousness, 452 U.S. 640 (1981); Lovell v. City of Griffin, 303 U.S. 444 (1938). As the Supreme Court unequivocally held in Murdock v. Pennsylvania:
The hand distribution of religious tracts is an age old form of missionary evangelism — as old as the history of printing presses. It has been a potent force in various religious movements down through the years. . . . It is more than preaching; it is more than distribution of religious literature. It is a combination of both. Its purpose is as evangelical as the revival meeting. This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits.
319 U.S. 105, 108-09 (1943) (footnotes omitted).
Am I soliciting when I hand out religious literature and share my faith?
No! Giving away free Gospel tracts and talking to people about salvation are not the same thing as soliciting. The Supreme Court has held that there is a difference between soliciting and leafleting. In United States v. Kokinda, 497 U.S. 720 (1990), the Supreme Court permitted the postal service to enforce a rule against asking (soliciting) for donations on postal property. However, the Court suggested that it would reject a rule that banned free distribution of literature on such properties, stating:
As residents of metropolitan areas know from daily experience, confrontation by a person asking for money disrupts passage and is more intrusive and intimidating than an encounter with a person giving out information. One need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone’s hand, but one must listen, comprehend, decide and act in order to respond to a solicitation.
Id. at 734 (plurality).
In ISKCON v. Lee, 505 U.S. 672 (1992), and Lee v. ISKCON, 505 U.S. 830 (1992), the Supreme Court considered a restriction on leafleting and another restriction on solicitation of donations in airport terminals. The Court concluded that solicitation is separate from literature distribution and that, despite the fact that the airport terminals were nonpublic forums, a regulation barring the distribution of free literature in the terminals was unreasonable and unconstitutional. Accordingly, while a city official may, in some instances, not allow solicitation, such a regulation may not be broadened to include literature distribution. As long as you are giving away your literature for free, and not asking for donations, you are engaging in the most protected form of speech.
Where can I go to hand out Gospel tracts to the public?
You can go to any publicly owned street, sidewalk, or park. In legal terms, streets, sidewalks, and parks are called “traditional public forums.” The Supreme Court has held that a traditional public forum is government property that is traditionally opened to public speech, Hague v. C.I.O., 307 U.S. 496, 515 (1939), including such places as streets, sidewalks, and parks, see United States v. Grace, 461 U.S. 171, 177 (1983). That means that these are the places that are open to public speeches, leafleting, newspaper distribution, political rallies, public marches, and other speech activity.
You are not merely limited to streets, parks, and sidewalks for tract distribution; courts have found many other places to be appropriate. Subject to local laws and ordinances, airport terminals, bus and train stations, and walkways surrounding government-owned coliseums, stadiums, and memorials may be appropriate locations for leafleting. See, e.g., Bd. of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569 (1987) (resolution banning all first amendment expression in the public forum of an airport was unquestionably overbroad); Grace, 461 U.S. at 180 (holding that the sidewalks surrounding the Supreme Court constitute a public forum); Jews for Jesus v. Mass. Bay Transp. Auth., 984 F.2d 1319 (1st Cir. 1993) (overturning a complete ban on noncommercial expressive activity in a train station).
Sometimes a city official will get confused about these “traditional public forums.” For example, in Frisby v. Schultz, 487 U.S. 474 (1988), the Supreme Court rejected a Wisconsin city’s argument that the streets and sidewalks of a residential area were not the sort of “traditional public forums” that the Court had held were generally open to free speech and activities.
The Court noted in Frisby, however, that some time, place, and manner restrictions are permissible depending on the nature of the streets at issue. Id. at 481. For example, a rule against parades between sunset and sunrise on residential streets serves a valid purpose of protecting the peace of a neighborhood when most residents are resting. It is wise to look up local laws and ordinances ahead of time. You can always call the local police station if you have questions.
If I am witnessing on the public sidewalk in front of a business, am I “loitering,” and can I be required to move away from the business?
No! “Loitering” is the criminal offense of remaining in a certain place (such as a public street) for no apparent reason. BLACK’S LAW DICTIONARY 1027 (Bryan A. Garner ed., 9th ed. 2009). Evangelism activities, however, are a legitimate purpose for standing on a public sidewalk. See Chicago v. Morales, 527 U.S. 41, 53 (1999) (noting the difference between remaining in one place with no apparent purpose and conduct intended to convey a message).
Do not stand in the middle of the street where you will be obstructing the flow of traffic. The government may prohibit this in the interest of vehicle and pedestrian safety. See, e.g., Sun-Sentinel Co. v. Hollywood, 274 F. Supp. 2d 1323 (S.D. Fla. 2003). Your right to use the sidewalks, streets and parks is not a license to make them unusable for others, e.g., barricading a sidewalk, allowing only those who will take a tract to pass. See, e.g., Cox v. Louisiana, 379 U.S. 536, 555 (1965).
Do I have the same rights to witness on the streets of a town in which I don’t live?
The constitutional protection of free speech under the First Amendment applies to all citizens and aliens and extends throughout the United States. Thus you are not limited to sharing your faith on the streets, sidewalks, and parks in your town. The Supreme Court has acknowledged that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983). Many cases which the ACLJ has won involve visitors from other towns or other states.
What should I do to get started witnessing and sharing my faith in public?
First, devote time to prayerful preparation. Next, select a location. You may choose a place because of the opportunity to reach many people – outside a sports stadium or near an historic monument. You may also have a target group in mind. For example, if your burden is for young people, you will want to pick locations where they pass by or gather.
If the location you choose is not a nice, simple sidewalk location, you should speak to the appropriate authority to discover what rules have been adopted to govern your activities. (This does not mean that you must always accept, as good law, a rule barring leafleting.) Check with a county clerk, the police department, the security office at the stadium, or similar offices. This will let you know what to expect when you witness.
If you are in a public place and are stopped from distributing free literature, do not assume that it was correct for you to be stopped. Too many Supreme Court cases have been decided against governments on these matters to assume that the government is always right. Just by challenging them, the government often changes their policies.
First Amendment FAQ
Are people allowed to take photographs or videos of students who are protesting?
Know Your Rights:
Demonstrations and Protests
Can my free speech be restricted because of what I say—even if it is
No. The First Amendment prohibits restrictions based on the content of speech.
However, this does not mean that the Constitution completely protects all types
of free speech activity in every circumstance. Police and government officials are
allowed to place certain nondiscriminatory and narrowly drawn “time, place and
manner” restrictions on the exercise of First Amendment rights. Any such
restrictions must apply to all speech regardless of its point of view.
Where can I engage in free speech activity?
Generally, all types of expression are constitutionally protected in traditional
“public forums” such as streets, sidewalks and parks. In addition, your speech
activity may be permitted to take place at other public locations that the
government has opened up to similar speech activities, such as the plazas in
front of government buildings.
What about free speech activity on private property?
The general rule is that the owners of private property may set rules limiting your
free speech. If you disobey the property owner’s rules, they can order you off
their property (and have you arrested for trespassing if you do not comply).
Do I need a permit before I engage in free speech activity?
Not usually. However, certain types of events require permits. Generally, these
- A march or parade that does not stay on the sidewalk, and other events
that require blocking traffic or street closure
- A large rally requiring the use of sound amplifying devices; or
- A rally at certain designated parks or plazas
Many permit procedures require that the application be filed several weeks in
advance of the event. However, the First Amendment prohibits such an advance
notice requirement from being used to prevent rallies or demonstrations that are
rapid responses to unforeseeable and recent events. Also, many permit
ordinances give a lot of discretion to the police or city officials to impose
conditions on the event, such as the route of a march or the sound levels of
amplification equipment. Such restrictions may violate the First Amendment if
they are unnecessary for traffic control or public safety, or if they interfere
significantly with effective communication with the intended audience. A permit
cannot be denied because the event is controversial or will express unpopular
If organizers have not obtained a permit, where can a march take place?
If marchers stay on the sidewalks and obey traffic and pedestrian signals, their
activity is constitutionally protected even without a permit. Marchers may be
required to allow enough space on the sidewalk for normal pedestrian traffic and
may not maliciously obstruct or detain passers-by.
May I distribute leaflets and other literature on public sidewalks?
Yes. You may approach pedestrians on public sidewalks with leaflets,
newspapers, petitions and solicitations for donations without a permit. Tables
may also be set up on sidewalks for these purposes if sufficient room is left for
pedestrians to pass. These types of free speech activities are legal as long as
entrances to buildings are not blocked and passers-by are not physically and
maliciously detained. However, a permit may be required to set up a table.
Do I have a right to picket on public sidewalks?
Yes, and this is also an activity for which a permit is not required. However,
picketing must be done in an orderly, non-disruptive fashion so that pedestrians
can pass by and entrances to buildings are not blocked.
Can government impose a financial charge on exercising free speech
Some local governments have required a fee as a condition of exercising free
speech rights, such as application fees, security deposits for clean-up, or
charges to cover overtime police costs. Charges that cover actual administrative
costs have been permitted by some courts. However, if the costs are greater
because an event is controversial (or a hostile crowd is expected)—such as
requiring a large insurance policy—then the courts will not permit it. Also,
regulations with financial requirements should include a waiver for groups that
cannot afford the charge, so that even grassroots organizations can exercise
their free speech rights. Therefore, a group without significant financial resources
should not be prevented from engaging in a march simply because it cannot
afford the charges the City would like to impose.
Do counter-demonstrators have free speech rights?
Yes. Although counter-demonstrators should not be allowed to physically disrupt
the event they are protesting, they do have the right to be present and to voice
their displeasure. Police are permitted to keep two antagonistic groups separated
but should allow them to be within the general vicinity of one another.
Does it matter if other speech activities have taken place at the same
Yes. The government cannot discriminate against activities because of the
controversial content of the message. Thus, if you can show that similar events
to yours have been permitted in the past (such as a Veterans or Memorial Day
parade), then that is an indication that the government is involved in selective
enforcement if they are not granting you a permit.
What other types of free speech activity are constitutionally protected?
The First Amendment covers all forms of communication including music,
theater, film and dance. The Constitution also protects actions that symbolically
express a viewpoint. Examples of these symbolic forms of speech include
wearing masks and costumes or holding a candlelight vigil. However, symbolic
acts and civil disobedience that involve illegal conduct may be outside the realm
of constitutional protections and can sometimes lead to arrest and conviction.
Therefore, while sitting in a road may be expressing a political opinion, the act of
blocking traffic may lead to criminal punishment.
What should I do if my rights are being violated by a police officer?
It rarely does any good to argue with a street patrol officer. Ask to talk to a
supervisor and explain your position to him or her. Point out that you are not
disrupting anyone else’s activity and that the First Amendment protects your
actions. If you do not obey an officer, you might be arrested and taken from the
scene. You should not be convicted if a court concludes that your First
Amendment rights have been violated.