1 Jehovah’s Witnesses Help Expand First Amendment Rights

2 The Jehovah’s Witnesses were the first organized group in America to generate what has been termed “vigilant” or “disciplined” plan of litigation to expand the boundaries of the First Amendment. In a period of 15 years, Watchtower Bible and Tract Society lawyers won Witnesses the right to distribute literature door-to-door, on public streets and on streets owned by private corporations and the federal government; the right to carry out these activities without first securing a permit or paying a tax; the right to use sound-amplifying equipment to spread their beliefs; and the right to be protected from continued arrests under unconstitutional ordinances. By implementing an extensive, detailed legal plan to overturn ordinances that interfered with their evangelical mission, the Watchtower Bible and Tract Society broadened protection under the First Amendment not just for their members, but for all Americans. The overwhelming success of the plan shaped mass media law, the application of the First Amendment, and group litigation in the United States. This book explores these issues and examines the Jehovah’s Witnesses’ plans to expand the First Amendment even further.

3 Dr. Jennifer Jacobs Henderson is an associate professor of communication at Trinity University, specializing in issues of media law, the ethics of media, and the use of online social networking and virtual worlds for political and social action.

4 ISBN 978-0-922993-84-0

This book is dedicated to Blossom, Barbara and Maddie, who taught me that education, hope, laughter, and cookie dough are the secret ingredients of a successful life.

Acknowledgments

1 I am truly indebted to hundreds of people for their help with making this book a reality. There is no way to properly acknowledge them all — from the librarians who saved me from ignorance to my students who have endured my tales. I do want to offer a special thanks, though, to my undergraduate mentors at Drake University in Des Moines, Iowa, Donald V. Adams and Michael R. Cheney, as well as the graduate faculty who supported my intellectual development at the University of Washington, particularly Richard Kielbowicz and Richard S. Kirkendall who encouraged rather than mocked my first efforts at understanding and writing history; Jerry Baldasty, who stoked my interest in minority rights, was the first to treat me as a colleague and collaborator rather than a graduate assistant, and taught me to be a teacher; and most especially, Don R. Pember, who introduced me to the compelling stories of First Amendment litigants, nurtured my passion for free expression, spent countless hours discussing the intricacies of Supreme Court jurisprudence, and still today mentors my intellectual life. It is also essential to specifically acknowledge my colleagues in the Department of Communication at Trinity University in San Antonio, Texas, who have supported my work unconditionally, offered friendship freely, and created the kind of academic environment only dreamed about in many institutions.

2 At its heart, this book is a history of lives lived for a cause. It could not have been written without the cooperation and compassion of those who participated in that story — Dorothy Covington, Lynn Elfers, and Jerry Bergman. Without your insights and inspiration, this book would be a dry recitation of events rather than a compelling human narrative. Thank you, also, to the Watchtower Bible and Tract Society who had no hand in the research or writing of this work but who compelled its very existence through its struggle to expand First Amendment freedoms for its members.

3 And, of course, thank you to my family — my husband Aaron Delwiche, my partner in life and work, who challenges my every assumption and supports my every whim; my mother, Barbara Jacobs, who still thinks I could be President; my father, William Jacobs, who first nurtured my intellectual curiosity; my brother Bruce Jacobs, who taught me early on that everything worth having takes time, effort and practice; and my brilliant, beautiful daughter Maddie, who inspires me daily.

Foreword

1 Decisions by courts in the United States — local, state, and federal — are among the most unreported activities of government in America. Even rulings by the Supreme Court of the United States are generally ignored by the mainstream mass media and the public in general, even though today they are readily accessible online. Stories about decisions that are reported are generally reactive accounts, e.g., “Pharmaceutical Companies Say Ruling Will Raise Drug Prices,” “Police Assert Ruling Will Handcuff Them in War on Drugs,” “Ruling a Victory for Sea Lions, Environmentalists Say.” So usually Americans get the news about the courts third hand: from judicial rulings, to groups or individuals who are affected by the rulings, to reporters. But this isn’t new; it has been this way throughout the nation’s history. One of the refreshing aspects of Professor Jennifer Henderson’s account of litigation by the Jehovah’s Witnesses to protect both their religious freedom and their freedom of speech is the demonstration of how the press — the primary channel of news about the courts for the people — can miss important rulings that later become a mainstay of our constitutional freedoms.

2 Mrs. Alma Lovell was arrested and later convicted in 1936 in Recorders Court in Griffin, Georgia. She was sentenced to 50 days in jail for refusing to pay a $50 fine, for distributing Jehovah’s Witnesses publications without first getting permission from the City Manager, as required by a city ordinance. Outside of the members of the religious sect, and a few officials in the Georgia town, it is doubtful that anyone else really cared what happened to Mrs. Lovell. Two years later the Supreme Court of the United States in an 8 to 0 ruling overturned the conviction, ruling that the ordinance requiring prior permission before literature could be distributed was a violation of the First Amendment’s guarantee of freedom of speech that was applicable to the states through the Fourteenth Amendment. While the decision was duly and briefly reported in some publications, the mainstream press largely ignored it. The petitioner was, after all, a member of a rather obscure (and some thought), confrontational and disagreeable religious sect. Yet today, in virtually every case in which a newspaper or magazine challenges an ordinance which limits the right to distribute a publication on a street corner, in a news rack, at an airport, etc., the ruling in Lovell v. Griffin is cited as one of the leading precedents against the constitutionality of such a regulation. The press has warmly adopted it. There is no question that the term “landmark decision” is grossly overused in modern America; but Lovell v. Griffin is truly a landmark ruling, one that affects the lives of tens of millions American beyond the austere ranks of the Witnesses and other door-to-door religious vagabonds. It just took the Fourth Estate several years to figure that out.

3 The Witnesses litigated 19 cases involving distribution of literature before the Supreme Court of the United States between 1938 and 1953. At first glance it would appear that these cases were the quixotic efforts of a pugnacious religious sect, tilting at legal windmills. But as the author explains, this was a well-planned, well-financed, and extremely well executed assault on regulations that limited the Witnesses from undertaking some of the basic tenets of their faith, such as proselytizing uninitiated members of the community. And without the efforts of attorney Hayden Cooper Covington, the focus of this book, it is doubtful that the litigation would have been so successful.

4 Covington never aspired to or attained the fame of Walter Pollak or other lawyers who litigated important First Amendment cases before the Supreme Court in the first half of the 20th Century. He served as chief legal counsel for the Watchtower Bible and Tract Society (the Witnesses) for 24 years from 1939 to 1963 and argued all but two of the literature distribution and permit cases before the high court. The constitutional issue closest to his heart was surely religious freedom for members of this small sect. But he built his legal arguments around constitutional guarantees of freedom of expression because the high court had yet to firmly rule that freedom of religion was protected from state action under the First Amendment by the due process clause of the 14th Amendment. (This would not occur until the 1940s.) Working with a legal team, Covington constructed his case around four legal points, including the argument that distribution must be protected for freedom of expression to be a meaningful right, and that the power of local government officials with vast discretionary power to control distribution must be curbed.

5 Prof. Henderson’s book demonstrates several other key points about the growth and importance of constitutional law. In our system of justice, courts play a passive role until an issue is brought before them. It is not necessarily the importance of the issue, or even the obvious need for resolution of the issue that brings it to the court’s attention. It is whether someone or some organization is willing to take the time and spend the money to get the matter before the court. And success in this litigation usually depends upon how well the litigants are prepared, and how well the case is argued, not some theoretical notion of what outcome might be right or wrong. Without a Hayden Covington, and a tenacious religious sect like the Witnesses, a basic First Amendment value we now take for granted (the right to freely distribute materials without first gaining government permission) might never have accrued to the press (and the people) when it did. Prof. Henderson’s account of this legal struggle is both lucid and eye opening.

6 Don R. Pember

7 Professor Emeritus of Mass Communication Law

8 Seattle, Washington

Introduction

1 The minorities whose civil rights are threatened are always small and, to many, obnoxious. They may or may not be unworthy. Yet their treatment is the test, and will always be the test, of the sincerity with which we cling to the Bill of Rights.

2   — The New York Times Editorial Board[1]

3 On Palm Sunday, 1938, Newton Cantwell and his two sons Jesse and Russell were going from door-to-door preaching the gospel as was their mission. The Cantwells were members of the Watchtower Bible and Tract Society, more commonly known as the Jehovah’s Witnesses. Each carried a bag that contained books, pamphlets, a phonograph and records. Each record provided a description of a book that could be obtained for a small contribution to the Watchtower. At each house, the Cantwells asked the homeowner if they were willing to listen to the records. If given permission, the phonograph was assembled, the record was played, and the homeowner was asked if he or she wished to purchase the accompanying book. Homeowners who were not interested in buying the book were then asked if they would like to purchase less expensive pamphlets or a subscription to one of the Watchtower’s many magazines. If the homeowner appeared uninterested in providing a contribution for the books, pamphlets or magazines, the Cantwells could choose to leave one or more of the publications at no cost, or move on to continue their work at the next house.

4 Neither Newton Cantwell nor his sons applied for a permit to carry out their work in New Haven, Connecticut, this Sunday although a state statute made it unlawful for anyone to “solicit money, services, subscriptions or any valuable thing for any alleged religious, charitable or philanthropic cause.”[2] The Cantwells had been told by zone servants, members appointed by the Watchtower to oversee a geographical region, never to apply for a permit because it would be “an insult to the Almighty” and an “act of disobedience to God.”[3]

5 On this Palm Sunday, the Cantwells were proselytizing on Cassius Street in New Haven, a neighborhood that was 90 percent Catholic. On one street corner Jesse, the 16-year-old son of Newton Cantwell, played a record to two pedestrians who had given him permission. The record described the book, Enemies, written by the president of the Watchtower Bible and Tract Society, “Judge” Joseph Rutherford, and included an attack on the Roman Catholic Church. The two men, both Catholics, then suggested Newton Cantwell and his sons leave town “if they wanted to keep their skins intact.”[4] Mr. Cantwell and his sons promptly packed up their materials and left the street corner to avoid any possible violence.

6 For this run-in, the Cantwells were arrested for violating state solicitation and breach of peace ordinances. The Cantwells were not afraid of their legal situation, however, although none of them had been arrested prior to this time. Each was sure that the Watchtower Bible and Tract Society legal department had thought of everything they would need. They had already been issued identification cards to carry while canvassing, which each showed to the arresting officer along with their slightly tattered copies of a document titled, “Liberty to Preach” that outlined their right to proselytize door-to-door. They had been given the names of local attorneys sympathetic to the Witnesses’ cause and instructed in trial and appeal procedures. They were prepared to test the laws of New Haven, ready to “legally defend and establish the good news.”[5]

7 The story of the Cantwells was played out over and over again, in cities and towns and farming communities by hundreds of Witnesses prepared to challenge local ordinances that hindered the door-to-door distribution of literature and the use of public spaces to spread the Word of God. Their stories are the outcome of a comprehensive legal plan developed by the Watchtower Bible and Tract Society in the late 1930s. This plan, used to combat ordinances they found to be unconstitutional infringements of free speech, press, assembly and exercise of religion, led to 19 Supreme Court cases between 1938 and 1953. Of these 19 First Amendment cases, the Jehovah’s Witnesses secured victories in 14.

8 When the Witnesses’ legal plan was initially conceived in the mid-1930s, the country was moving from the Great Depression to an economic and social revolution brought about by the New Deal. The federal government was intervening in economic stabilization, agricultural support, and social welfare policy to a much greater extent than it had in the past. For the first time, the federal government was now employer and insurer of many in the nation. Old institutions had been discredited, and new ones not yet embraced. Historian Arthur Schlesinger Jr. wrote of the state of mind of American citizens at the midpoint of the 1930s: “[T]he combination of the two shocks — the swift passage from black discouragement [The Great Depression] to exaggerated optimism [The New Deal], left many people excited and vulnerable.”[6]

9 Enter Jehovah’s Witnesses, a small religious sect that aggravated most citizens. Witnesses fervently and loudly criticized organized religions, calling them “a racket and a snare.”[7] At a time when “organized religion played a distinguishable and significant part in the everyday lives of most Americans,”[8] an attack on organized religion was an attack on the masses, not the minority. This criticism was leveled most often at the Roman Catholic Church, with Judge Joseph F. Rutherford, president of the Watchtower Bible and Tract Society, saying it “carries on a racket in the name of Christ, and is the great enemy of God and of the people.”[9]

10 Witnesses took their beliefs to houses and street corners all over the country, morning, noon and night. They were frequent visitors to the community, and always persistent. While the Witnesses were annoying, especially when they interrupted Sunday dinner with their message of eternal destruction, most citizens in the 1930s regarded the Jehovah’s Witnesses as annoying but harmless. Until they refused to salute the flag. Then Jehovah’s Witnesses were labeled “communists,” “fascists,” and “fifth columnists,” secret underground Nazi spies.[10] “To say that they are subversive and a most pernicious menace to the American way of life is a magnificent understatement,” wrote H. C. McGinnis in the Catholic-backed America magazine in 1941.[11]

11 By the time the Watchtower legal plan was in full swing in the early 1940s, Americans were facing the dual threat of fascism from Europe and military intervention from Japan. When Jehovah’s Witnesses also refused to participate in any war overseen by secular governments during a time when everyone was sending sons and brothers to war, the country was outraged. “For conscientious cussedness on the grand scale,” wrote journalist Stanley High in The Saturday Evening Post, “no other aggregation of Americans is a match for Jehovah’s Witnesses. Defiance of what others cherish and revere is their daily meat. They hate all religions — and say so from the housetops. They hate all government with an enthusiasm that is equally unconcealed.”[12] Newspaper and magazine accounts of the early 1940s portrayed Witnesses as “freakish,”[13] “Bible-dizzy,”[14] “a particularly odious and fanatical sect,”[15] and “pretty trying zealots.”[16]

12 The Jehovah’s Witnesses’ unending door-to-door campaign of literature distribution, coupled with their refusal to salute the American flag or participate in wartime activities, led to hundreds of acts of vigilante violence directed against sect members. In June of 1941, the American Civil Liberties Union reported that “by far the most numerous attacks on civil liberties of any single minority were directed at Jehovah’s Witnesses.”[17] For example, in Kennebunk, Maine, the Kingdom Hall, a Jehovah’s Witnesses’ “church” was burned to the ground; in Litchfield, Illinois, 60 Witnesses were driven from their canvassing by the whole of the town’s population; in West Virginia, Witnesses were forced to drink castor oil and were paraded through the town tied together; and in Nebraska, a Witness was taken from his home and castrated.[18] Between May and October of 1940, the ACLU documented 1,488 cases of violence against Jehovah’s Witnesses. This staggering amount of violence led the ACLU to conclude: “Jehovah’s Witnesses have been subjected to a religious persecution unmatched in our history as a nation save for the violence years ago against the Mormons.”[19]

13 Amid this fervor, the federal government stepped in to calm tensions. On June 16, 1940, the Justice Department dedicated its monthly radio address to the escalating anti-Witness violence. “Jehovah’s Witnesses have been repeatedly set upon and beaten,” reported a Justice Department spokesman. “The Attorney General has ordered an immediate investigation of these charges. The people must be alert and watchful, and above all cool and sane.”[20] President Franklin D. Roosevelt reiterated this concern for free expression and religion in a September 1941 question and answer session where he articulated what he believed to be “the four freedoms.” Roosevelt explained that the “freedom of information” was important so “inhabitants of a country can get news of what is going on in every part of the world,” and “freedom of religion” was also important. “Freedom of religion,” Roosevelt concluded, “has always — not always but almost all the time been fairly well maintained” in democracies, and this must continue.[21] While the call for calm by government officials quieted some citizens, violence against the Witnesses continued unabated until the bombing of Pearl Harbor, Hawaii, in December of 1941 when suddenly Jehovah’s Witnesses were no longer the primary target of Americans’ fear and aggression.

14 In 1942, even more protection was granted to Jehovah’s Witnesses when the Supreme Court of the United States concluded they had been wrong in voting for a forced flag salute in public schools two years earlier.[22] By 1943, the ACLU could report that “the public attitude has … become more tolerant” toward Jehovah’s Witnesses. “It is remarkable,” the ACLU staff concluded, “that a quarter of a million zealous propagandists, scattered all over the country should have been accorded in wartime even greater rights than in time of peace.”[23]

15 The Witnesses’ legal plan survived the campaign of hate against them. It was, in fact, strengthened by these acts of vigilante violence. As Jehovah’s Witnesses believed they would be tested on earth to earn life everlasting, violence against them was seen as a confirmation of their beliefs rather than a condemnation of them. This caused Witnesses to be ever more vigilant in their work, which in turn, produced ever more arrests, trials and appeals. In the end, the years of World War II were a boom time for the Jehovah’s Witnesses. Not only did violence against them abate, but they also piled success upon success in the United States Supreme Court.

16 By the time Witnesses had secured their final victories in literature distribution and permit cases in 1953, the country had all but forgotten about this sect they found so offensive and threatening just 15 years before. Communists were now the target of political hate and Witnesses faced little more than slamming doors in retaliation for their efforts.

17 While legal scholars have uniformly noted the constitutional importance of the Witnesses’ decisions in the distribution and permit cases, they have also uniformly ignored the Witnesses’ systematic plan to reach the Supreme Court with these cases. In most research, scholars have dismissed the Witnesses’ cases as mere unintended consequences of fanatical preaching. Lawyer Louis B. Boudin explained in 1944 that the “civil liberties cases are usually the outgrowth of temporary excitement.”[24] Witnesses, he would have us believe, simply got caught up in the excitement of the moment. Professor Frank J. Sorauf extended this argument to all religious groups, noting that none have implemented a comprehensive strategy for advancing legal questions. Cases involving issues of church and state arise merely to solve a dispute at hand, he argued, not to advance a more extensive plan or philosophy. There has been “no great master plan for litigating church-state issues,” he wrote. “The increment in strategic effectiveness that groups have brought to the litigation of church-state issues has the flavor of the ad hoc. Theirs is often short-range or short-term strategy, frequently a strategy that sees no further than the case at hand.”[25] Law professor William Shepard McAninch echoed this sentiment 10 years later when he wrote, “It bears repeating that there is nothing to indicate that the Witnesses have ever been interested in law reform per se … They have simply lived their lives according to the dictates of their own religious beliefs, but in doing so have found themselves at odds with the rest of society.”[26]

18 While these scholars all espoused a common view of the Jehovah’s Witnesses and civil liberties litigants more generally, they were in the main, wrong. These scholars, like others before and since, have perpetuated a continuing myth in the study of First Amendment law — that of the unwitting litigant.

19 The Watchtower Bible and Tract Society legal plan developed in an atmosphere of increasing litigation among groups and organizations. As early as the 1910s, organizations such as the National Consumers’ League developed a legal plan to support protective labor legislation.[27] The American Civil Liberties Union (ACLU) picked up this strategy during the 1920s, when it attempted to generate test cases on various civil liberties issues. What it found lacking was control of the litigants, many who did not want to follow the ACLU lead from arrest to appeal.[28] Instead of instigating trouble, the ACLU instead developed a strategy of coming to the assistance of those already in trouble. The ACLU litigation guide explained, “The ACLU cannot take every case where there is a civil liberties question being raised. Rather, it should direct its efforts to cases which have some reasonable promise of having a broad impact on other cases.”[29]

20 In 1934, the National Lawyer’s Committee of the American Liberty League, a group of conservative businessmen opposed to economic reforms, joined together to challenge New Deal legislation in court. A year later, the National Association for the Advancement of Colored People (NAACP) began a plan to “secure decisions, rulings and public opinion on the broad principle” of accepting African-Americans in the mainstream of society.[30] By 1938, the NAACP created the Legal Defense and Education Fund to incorporate litigation into its mission, and hired Thurgood Marshall, later a Supreme Court Justice, to lead its staff.[31] The NAACP’s first nationwide legal plan began in earnest in 1945 when attorneys met to devise a strategy to combat unfair housing laws. While the NAACP lawyers did not mention the Jehovah’s Witnesses in this strategy session, it is clear the Witnesses’ very successful challenge to local ordinances was a blueprint for their own organizational litigation.[32]

21 Like these other active civil liberties organizations, the Jehovah’s Witnesses do not fit neatly into the historical myth of unwitting litigant. In fact, the Jehovah’s Witnesses planned and implemented the most far-reaching plan for civil liberties litigation in the history of the First Amendment. To accomplish their plan, Witnesses employed a legal tactic now termed “vigilant,” “disciplined” or “planned” litigation.[33] They neither stumbled nor fell into these cases. The cases were not chosen on an ad hoc basis, nor were they appealed to higher courts through accident, whim or chance. The Watchtower Bible and Tract Society had a comprehensive plan that outlined each step in the process of litigation, from preparation, proselytizing and arrest to trial and appeal.

22 The primary creator and executor of this plan was Hayden Cooper Covington, a brilliant Texas lawyer who joined the Watchtower staff in 1939. Covington, with the full support of Watchtower President Judge Joseph Rutherford, masterminded a plan to eliminate local ordinances that kept Witnesses from participating in their daily house-to-house canvassing and Sunday information meetings in local parks. Under Covington’s guidance, thousands of Witnesses were arrested for violating these local ordinances and more than 190 of their cases were appealed to higher courts.[34] Never before and never since has one single organization, under the guidance of one man, brought forth a nationwide First Amendment litigation strategy that ended in such success in the Supreme Court of the United States. Never before has one organization so shaped the interpretation of the First Amendment.

23 While many people assume First Amendment Supreme Court cases have always been brought by well-funded businesses, the history of the First Amendment is really the story of the “little guy.” First Amendment litigation in the first half of the 20th Century was overwhelming instigated by “outsiders” — odd, arrogant, or overzealous groups or citizens who came to challenge the laws of free speech and press. First Amendment cases involving religious organizations arose from small sects on the fringes of society rather those in the mainstream. Legal historian Leo Pfeffer explained, “It is often the less conventional faiths, those with few or even a single adherent, which clash with Caesar and appeal to the Supreme Court for the vindication of their rights.”[35] While in recent years, the courts have been swamped with mainstream corporations protecting and expanding their rights, the foundation of the First Amendment was built by insignificant players who took significant risks to challenge the boundaries of free expression. At its heart, this book examines how a small religious sect orchestrated a concerted effort to broaden First Amendment protections. Their efforts led to unprecedented success in the area of First Amendment litigation and a reshaping of mass media law.

24 This book is patterned after historian Clement Vose’s 1959 work, Caucasians Only.[36] In his book, Vose detailed the legal plan implemented by the National Association for the Advancement of Colored People (NAACP) to fight restrictive covenant ordinances that kept Blacks from living in what were then solely White neighborhoods. Clement Vose was the first scholar to thoroughly examine an organization involved in Supreme Court litigation as well as the first scholar to analyze a deliberate plan to change the law. His book provides an important outline for the discussion of the Jehovah’s Witnesses’ plan to change the protections of the First Amendment.

25 This book focuses only on the legal plan to overturn local ordinances that hindered the free speech and free distribution of literature by Jehovah’s Witnesses. It does not address other important Jehovah’s Witnesses’ legal battles such as the flag salute cases, those involving conscientious objection from military service, or blood transfusions. The literature distribution and permit cases that stem from the Witnesses’ legal plan were chosen for examination because they are the First Amendment cases that most directly impacted broader legal considerations in organizational litigation and media law. These 19 cases, at their core, were about free speech and press.

26 This book is about the advancement of speech and press protections by a religious organization. It is not about religion, per se. Therefore, the history of church-state relations in the United States is left to other scholars, as is the Witnesses’ place in this history.[37] While the Jehovah’s Witnesses clearly came into conflict with local governments over ordinances that restricted what they considered to be religious rites, the door-to-door distribution of literature and the convening of Bible study meetings in public parks, their conflict was not about government restrictions of their beliefs, but rather, government restrictions of their expression. Religion was not the focus of the literature distribution and permit cases, and therefore, is not the focus of this book.[38]

27 This research is limited to an examination of the 19 literature distribution and permit cases that reached the Supreme Court for decision between 1938 and 1953. The Supreme Court cases were chosen for study because decisions in these cases established the precedents on which many other important First Amendment cases rest. The time period was chosen simply because all of the literature distribution and permit cases fall within this window.[39]

28 This book does not attempt to explain in detail the litigants or decisions of the 19 literature distribution and permit cases. Instead, its focus is on how and why a plan to bring about these cases was devised, implemented and ultimately successful. This is primarily a story about process, a process that changed modern day interpretations of the First Amendment.

29 The book is arranged into five chapters. Chapter 1 contains a detailed history of the Jehovah’s Witnesses, offering a foundation upon which the other four chapters are built. Examining the Jehovah’s Witnesses beliefs and practices is essential in understanding why the Witnesses repeatedly came into conflict with local literature distribution and permit ordinances as well as local law enforcement and citizens’ groups. Uncovering the personalities behind the leadership at the Watchtower Bible and Tract Society reveals why the law was used as a weapon to advance the Witnesses’ religious cause. Finally, a history of the Watchtower Bible and Tract Society’s organizational structure sheds light on how and why this litigation strategy succeeded for the Witnesses.

30 Chapter 2 provides an overview of the life of the chief architect of the Watchtower legal plan — Hayden Cooper Covington. Covington served as the chief legal counsel for the Watchtower Bible and Tract Society for 24 years, from 1939 to 1963. He argued all but two of the literature distribution and permit cases before the Supreme Court of the United States. A review of Covington’s life before joining the Watchtower offers insight into how his plan to confront authority developed. An examination of Covington’s life during his tenure at Watchtower headquarters provides a better understanding of the organization, coordination and time spent on developing a comprehensive legal plan to challenge First Amendment violations.

31 Chapter 3 outlines Covington’s plan to “defend and legally establish the good news.”[40] Hayden Covington and the Watchtower legal staff systematically devised and implemented a plan to challenge local ordinances that infringed on the Witnesses’ proselytizing activities. The Watchtower Bible and Tract Society’s legal plan included the distribution of identification cards to all Witnesses ordaining them as ministers of Jehovah God and making “official” religious acts of their door-to-door visits. Members were issued instructions on how to prepare for violence, arrest, trial, appeal and jail time. The plan detailed where Witnesses could seek sympathetic attorneys for defense and suggestions for obtaining bail. Witnesses were supplied letters of intent to distribute literature as well as summaries of Supreme Court decisions to present to local law enforcement in hopes of decreasing vigilante violence against the sect. In all, this chapter details the most sweeping and successful legal plan in the history of First Amendment litigation.

32 Chapter 4 addresses the 19 literature distribution and permit cases that arose out of the Watchtower legal plan to reach the Supreme Court between 1938 and 1953. This chapter serves two functions. First, it details the four basic legal arguments set forth by the Watchtower legal team. Second, it discusses the specifics of each of the 19 cases, describing how those arguments were used in pursuit of victories in the Supreme Court, as well as how the Supreme Court ruled in each case. The goal of the chapter is to describe the outcome of the Watchtower legal plan.

33 Finally, Chapter 5 explains how Covington’s plan was unique, detailed, comprehensive and widespread — the only coordinated campaign of its kind in First Amendment litigation. Chapter 5 also details how these 19 literature distribution and permit cases influenced contemporary mass media law, the whole of First Amendment law, and minority group litigation in the Supreme Court.

34 In the end, this book seeks to leave the reader with a new understanding of First Amendment litigants and the litigation process. The myth of the hapless litigant, so long preserved by legal scholars, will finally be laid to rest. In its place will be a more accurate representation of some of the First Amendment litigants — creative, patient, organized, successful, and planning, always planning, for the next test case.

Chapter 1. The Jehovah’s Witnesses

1 Jehovah’s Witnesses have a religion, and they take it seriously. Now, there is nothing more inconvenient, irritating, outrageous than to have in the community a group of people who actually believe their religion, and propose that other people shall believe it as well.

2   — John Haynes Holmes[41]

3 In 1872 Charles Taze Russell founded an apocalyptic Christian sect in Philadelphia, Pennsylvania. Known originally as “the Russellites,” those who followed Pastor Russell’s teaching would later be known as the Jehovah’s Witnesses. From the time of the organization’s inception until his death in 1916, Pastor Russell was viewed as a master at spreading the word of Christ’s return to earth. Sociologist Royston Pike noted that, “his followers hailed Russell as the greatest and most successful preacher of the Gospel in his generation.”[42]

4 Using dates set forth in the Bible, Russell predicted the Second Coming would occur in 1874 and the Kingdom on earth would follow in 1914. When 1914 came and went with no sign of Christ on earth, membership in the Society decreased dramatically. Russell explained the Scriptures could not be inaccurate, so the Second Coming must have occurred without notice, an invisible Advent. Armageddon would still take place, he predicted, only now it would happen “during the lifetime of the youngest generation alive in 1914.”[43] Pastor Russell died unexpectedly in 1916 during a whistle-stop tour of Texas and subsequently never saw his prophesized Armageddon.

5 Following Russell’s untimely death, “Judge” Joseph Franklin Rutherford, Russell’s former legal counsel, stepped in to fill the void. An outspoken lawyer from Missouri, Rutherford projected his personality onto the sect, promoting a more aggressive ministry. Rutherford encouraged his flock to “advertise, advertise, advertise” the Kingdom,[44] informing the masses that “millions now living will never die.”[45] As part of his advertising campaign, which included billboards and radio broadcasts,[46] Rutherford renamed members of the Society, “Jehovah’s Witnesses,” to better reflect their mission. Members of the Society were not merely Bible Students, as they had been previously called, they were now witnesses to the truth — Jehovah’s Witnesses.

6 His push for increased neighborhood solicitation and radio broadcasts led to an increased awareness of and reaction to the sect’s practices. Under Rutherford’s new policy of all-out in-your-face preaching, Witnesses faced violent mob attacks, charges of trespassing, invasion of privacy, sedition and disloyalty. They also dramatically increased their visibility as an organization. While it is fair to say few knew of the Witnesses when Rutherford took over in 1916, by the time of Rutherford’s death in 1942, Jehovah’s Witnesses were a household name, although not always positively spoken.

7 In addition to Rutherford’s plan to increase awareness of the Witnesses and their practices, he also moved to centralize power in the organization. While Pastor Russell began the movement away from congregational control and toward centralized authority, it was under Rutherford’s reign that this transformation was completed. All decisions regarding the Witnesses would be made from Bethel House, the Watchtower headquarters in Brooklyn, New York. In a June 15, 1938 issue of The Watchtower, Rutherford formally admonished congregations to relinquish their power to the Society.[47] For the first time, the leadership required “publishing,” door-to-door proselytizing and literature distribution, as a “condition of membership in the sect.”[48] Under Rutherford’s control, Jehovah’s Witnesses members were required to “‘report’ to the Watch Tower Society the number of hours spent in preaching and the amount of literature distributed.”[49]

8 Rutherford was the most charismatic and controversial of all the Watchtower leaders. He wore expensive clothes, traveled in luxury, and resided in plush accommodations. Rutherford admonished his directors, “when you travel, travel first class” because, as Covington remembered him saying, “the laborer is worthy of his hire.”[50] One reporter commented that Rutherford wore “stand-up collars of the Champ Clark era, black string blow ties, and a long black ribbon for his glasses.” “In fact,” he noted, Rutherford looked “more like a senator than most senators.”[51]

9 Rutherford was also known for his short temper and predilection for alcohol. Olin R. Moyle, the Witnesses’ legal counsel prior to Hayden Covington, accused Rutherford of “frequent scolding and upbraidings of the workers at Bethel House,” the Watchtower headquarters in Brooklyn, New York.[52] Rutherford’s successor, Nathan Homer Knorr, also complained of being “trimmed” and “given a public tongue” by the Watchtower leader.[53] Jehovah’s Witnesses scholar Jerry Bergman wrote that Rutherford “had a violent temper and could be exceedingly vengeful toward those who did not obey his whims. He saw himself as God’s messenger, having authority without fear.”[54] Even Covington, who was “very, very close” to the “Judge”, said Rutherford could “fly off the handle,” but concluded this was a human weakness rather than a character flaw.[55]

10 Hayden Covington, Fred Franz and Nathan Knorr were Rutherford’s three most trusted advisers among the Bethel House staff. Covington was his legal counsel, Franz his biblical scholar, and Knorr his business manager. Two of these men, Knorr and Franz, would later become presidents of the Watchtower, and Covington would go on to win 36 cases in the United States Supreme Court in the name of Jehovah.

11 The three men traveled from Brooklyn to San Diego upon Rutherford’s request in 1942. He was dying of colon cancer and wanted their counsel one last time. At their last meeting, Rutherford asked the three to “stick together.” Covington replied, “We’ll fight them together till hell freezes over.”[56]

12 Upon “Judge” Rutherford’s death, the position of president of the Watchtower Bible and Tract Society fell to Nathan Knorr. Previously the general manger and director of the Watchtower’s Brooklyn printing plant, Knorr became vice president two years before his succession to the presidency of the organization.[57] Knorr was more business-oriented, less charismatic and much less eloquent than either of his predecessors. He was, therefore, committed to advancing “loyalty to the organization” over that of “any personality.”[58] Above all else, Knorr wanted to restore a sense of respectability to the Watchtower Bible and Tract Society, one he thought had been lost in large part to Rutherford’s aggressive tactics.[59]

13 As Knorr had “little if any ability as a writer,”[60] he turned over the writing functions to other staff members, primarily Franz. Simultaneously, Knorr also removed all trace of personal authorship from Watchtower Publications to cover up his lack of skill with the written word. From then on, the Watchtower Bible and Tract Society would be sole author of all materials published in its printing houses.

14 During the Knorr presidency, the Watchtower Bible and Tract Society reflected his skill and interest in business matters. For example, during his tenure “profit margins on publications” rose “as high as 500 percent.”[61] Although Knorr was clearly more interested in business matters than intellectual ones, he “stressed theocratic education” during his time as president. As part of the educational mission of the Society, Knorr established the first official training school for Witnesses in 1943. The Gilead School, still in existence today, was developed primarily as a “training place for elders.”[62]

15 Under Knorr’s leadership, Watchtower membership also increased dramatically at a rate of about “400 percent a decade.” In 1942, Witnesses numbered about 115,000 worldwide; by 1953 that number had risen to more than 500,000.[63] To build a larger membership base as well as reinvigorate practicing Witnesses, Knorr began semi-annual circuit conventions in 1946 and in 1948 added annual district conventions to supplement the very popular national conventions.[64]

16 Hayden Covington, Rutherford’s chief legal counsel, became Knorr’s vice-president in 1942. The two men, although promising Rutherford on his deathbed they would “stick together,” did not get along. Covington believed the presidency should have been his as “99 percent of the votes for president” were cast in his favor.[65] Jehovah’s Witnesses scholar M. James Penton wrote that Covington and Knorr “frequently clashed over various issues and developed a deep sense of resentment towards one another.” Their disagreements were “public knowledge among Jehovah’s Witnesses who knew both at the Brooklyn Bethel, although there is, of course, no public documentation of it.”[66]

17 Upon Knorr’s death in 1977, Frederick Franz, the Society’s most well known biblical scholar and Knorr’s close friend, took control of the Watchtower operations as its president. For more than 50 years, Franz had been the “driving intellectual force behind the Society.”[67] Franz was described as a “first-class scholar” with a “photographic memory,” and “fluent in six languages.”[68]

18 Franz was, by far, the least controversial of the Witnesses’ presidents. Never married, Franz led a life of scholarship, reflection and study. Unlike his predecessors, Franz’s personality and work habits did not alienate the directors or members of the Society. Franz was said to be “respected by both friend and foe.” He died a respected elder in the Watchtower in 1992 at the age of 99.[69]

19 The fifth and current president of the Watchtower Bible and Tract Society is Milton G. Henschel. Henschel is a third-generation Witness who began preaching door-to-door at the age of 14. Under Henschel’s watch, power has been distributed between all members of The Governing Body, allowing for fewer dictatorial decisions and more moderate stances. Currently, college education, holidays and school sports are tolerated where in the past these kinds of activities had been forbidden.

Major Beliefs and Practices of the Jehovah’s Witnesses

1 Literalists. The Jehovah’s Witnesses’ beliefs are founded on a literal interpretation of the Bible. The Watchtower Bible and Tract Society teaches that “all 66 books of the Bible are the ‘inspired word of God’ and are historically accurate.”[70] Witnesses “read the New Testament as an infallible Scripture, and believe what they read.”[71] Their belief in the power and purpose of witnessing comes from this literal translation, trusting that Jesus spoke directly to them when saying: “Go ye into all the world, and preach the gospel to every creature.”[72]

2 “Religion is a Racket! Religion is a Snare!” One of the most controversial of the Jehovah’s Witness beliefs is that all organized religions, especially the Roman Catholic Church, are a “racket” as they take members’ money in return for the promise of salvation. Under Rutherford’s reign, the Jehovah’s Witnesses became highly vocal about their dislike for traditional Christian religions. In a common evangelical attack, “Judge” Rutherford announced to his weekly broadcast audience, “Organized Christianity is hypocritical and selfish in the extreme.”[73] Of the Roman Catholic Church, he remarked, it is a “great racket.”[74] In his 1938 book, Enemies, Rutherford lambasted Protestants and Jews along with Catholics, accusing them of being “foolish simpletons,” who “aid the Hierarchy [Catholic Church] to carry on her commercial, religious traffic and increase her revenue … The Hierarchy takes the lead, and the simpletons follow.”[75] In Detroit in 1939, Witnesses blared through a loudspeaker in a public park, “Religion is a racket! Religion is a snare!” As could be expected, the preaching of this belief often turned potential converts into enemies and brought about violent responses from otherwise peaceful people.

3 The Chosen Few. Among the Jehovah’s Witnesses, there are two kinds of believers prepared for the Second Coming: the “heavenly class,” commonly called the “little flock,” and the “earthly class,” also referred to as the “other sheep.” The heavenly class, limited to 144,000 chosen ones,[76] will live with Christ in heaven and rule over earth following Armageddon. In 1956, approximately 16,000 chosen spaces were left in heaven; today only 9,000 remain. The earthly class is comprised of all other Witnesses. According to Witness teachings, they will be reborn following Armageddon to live on earth and create a new flock of believers.

4 This doctrine underlies the Witness approach to ministry. In order to become one of the earthly class, “one must accept the message preached by the Witnesses, and, for someone to accept this message it must be preached.”[77] Explained Watchtower President Knorr in 1943:

5 A responsibility falls upon everyone of Jehovah’s Witnesses now to see that, God willing, these peoples of the world are given the opportunity to hear. If they hear, they will be blessed. If they do not have an ear to hear, they will go on into destruction along with the Devil’s organization at Armageddon.[78]

6 If a Jehovah’s Witness fails to convert someone, they too may miss out on everlasting life because of their failure. Their “primary purpose,” explained H. Rutledge Southworth, “is not to convert the listener, though that is desired, but to carry out their conception of God’s commandments and thereby insure themselves a place in the kingdom of Jehovah God.”[79] This doctrine, called “blood guilt,” is a strong motivation for spreading the word of the new Kingdom of heaven on earth.

7 No Hell Doctrine. Witnesses do not believe in Hell. Under Russell, this belief became known as the “no-Hell doctrine” or “turning the hose on Hell.” Russell often put forth the following scenario to prove there was no Hell: “Would you hold a puppy dog’s tail in the fire three minutes? Of course not, unless you were subhuman. Yet we are taught that God himself consigns creatures to everlasting torture in fire hotter than any we can imagine.”[80] Eternity will be comprised of two heavens, then, one on earth and one above; one for the heavenly class and one for the earthly class. Because the Devil resides on earth, when earth is destroyed during Armageddon, so too, will the devil.

8 The Flag Salute. Jehovah’s Witnesses believe saluting the flag or any other earthy object is forbidden by the Bible. They read Exodus 20: 3–5, “You shall have no gods before me. You shall not make for yourself a graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; you shall not bow down to them or serve them,” as a commandment not to prostrate oneself before any object, including a flag. The Watchtower Society taught “that saluting the flag is a violation of His law.”[81] The pronouncement of this sin was outlined in a pamphlet distributed by the Watchtower Bible and Tract Society titled Loyalty that enumerated the reasons why the Witnesses should not embrace the flag. “Judge” Rutherford declared in a 1935 radio address that “The law of the nation or government that compels the child of God to salute the national flag compels that person to salute the Devil as the invisible god of the nation.”[82]

9 The Law of the Land, The Law of God. Under Pastor Russell, Witnesses were taught to believe secular governments were “under the rule of Satan” as were all people on earth who had not yet embraced the Witnesses’ literal interpretation of the Bible. These governments were “bound to be destroyed during Armageddon” because they had not accepted the truth of the Second Coming. Consequently, adherence to laws established by states were often ignored or rebuked. Pastor Russell specifically told Witnesses they should “avoid voting, holding public office, or enlisting in military service.”[83]

10 During Rutherford’s reign, the position on state authority hardened even further. Now, governments were seen as having “no divine authority” whatsoever. Rutherford admonished Witnesses to “pay taxes for the services they received,” but not to follow any other “human law unless it was in harmony with God’s.”[84] With this decree in hand, Witnesses “uniformly refused combat service” during World War I.[85] In 1917, Rutherford and seven directors of the Watchtower Bible and Tract Society were imprisoned for this belief, publicly condemning those who participated in World War I. Charged with sedition, Rutherford was kept in an Atlanta jail for almost two years until his conviction was reversed in 1919.[86]

11 During World War II, about 8,000 Witnesses applied for ministerial status to be exempted from the draft. Approximately one-half of these requests[87] by Witnesses in full-time service to Jehovah were granted by the Selective Service, who categorized them as a “peace group.”[88] The other half, mostly part-time ministers in the Watchtower organization, chose imprisonment over fighting. In all, about 4,000 Jehovah’s Witnesses men went to court in the 1940s for their refusal to participate in a war not of God. Of those, an estimated 2,500 actually served time.[89]

12 Although Rutherford and many other Witnesses were imprisoned for speaking out about and refusing to fight in wars, they were not pacifists. Witnesses did not refuse to fight, they simply refused to fight in a war for a secular state. They would, without hesitation, fight in a war for Jehovah, but “that is all they would fight for.”[90] In addition, Witnesses found fighting a secular war a waste of time when the second coming was fast approaching. There was no need to fight evil in the world as “the forces of godliness will defeat those of worldly evil at the Battle of Armageddon.”[91]

13 Persecution. Between 1940 and 1944, there were 2,500 cases of violence against Witnesses in 44 states. Most of these persecutions arose from the Witnesses refusal to salute the American flag and to participate in military service during World War II. The violence was often extreme and relentless. For example, when one Witness was arrested in Winnsboro, Texas, he was “promised protection if he would salute the flag. When he refused, he was turned over to a mob,” and “beaten to unconsciousness, revived with water, beaten again, dragged by a rope around his neck to the city hall and hanged to a post.”[92] In Klamath Falls, Oregon, members of the American Legion “attacked the Witnesses and besieged their hall, breaking windows, tossing in stink bombs, ammonia, and burning kerosene rags.”[93] Covington explained that following the flag salute decision by the United States Supreme Court, Witnesses “were beaten, kidnapped, tarred and feathered, throttled on castor oil, tied together and chased through the streets, castrated, maimed, hanged, shot and otherwise consigned to mayhem.”[94]

14 The Jehovah’s Witnesses believe their persecution is both a fight against Satan and a mark of the Second Coming. A Watchtower magazine from 1935 states, “The more opposition and persecution from Satan’s organization we endure, the nearer we know we are to his final destruction and to the vindication of Jehovah’s name.” Almost 20 later, the Witnesses held fast to this position in a pamphlet titled “Make Sure of All Things,” reiterating that “persecution to break Jehovah’s Witnesses [is] Satan’s main effort.”[95]

15 As part of the weekly service meetings, Witnesses would tell stories of their persecution encountered during their door-to-door ministry. Similar stories would also appear in Witnesses’ publications. In a 1959 book titled “Jehovah’s Witnesses in The Divine Purpose,” several incidents of violence against Witnesses were related to potential converts. Along with the scenarios was a running commentary between John, a Witness, and Lois, who was considering life in the Witnesses’ faith. In one exchange, John told Lois why they face persecution week after week. Lois said, “If I were confronted with experiences like those you related I don’t know whether I could hold on or not.” John replied, “We don’t want to give credit to individuals even for manifesting an abiding faith … Jehovah has raised up a people in our day especially to be his witnesses for his own purpose. Jesus said to his disciples, ‘You will be hated by all people on account of my name.’”[96] Because the Witnesses see persecution as a badge of honor, they never fail to return to their calling day after day, no matter what violence the previous day has brought. Witnesses are determined to “keep on keeping on” until “our course is finished in death.”[97] “They do not wait to be thrown to the lions,” wrote Malcolm Logan of the New York Post, “they walk into the lions den, and bat its occupants over the head with the complete works of ‘Judge’ Rutherford.”[98]

16 Disfellowship. Jehovah’s Witnesses are entirely intolerant of members who question the Watchtower organization or its interpretation of biblical scripture. Members who have been identified as “unbelievers” are “disfellowshipped” — ordered to leave the organization by Watchtower leaders and shunned for eternity by the rest of the Witnesses’ members. The “abolition of voting” by congregation members in 1938 “also applied to voting in disfellowshipping cases.”[99] Subsequently, under the Rutherford presidency, “disfellowshipment became a terrible weapon” wielded by the leader, M. James Penton explained in his book Apocalypse Delayed: The Story of the Jehovah’s Witnesses. Witnesses true to the cause “were not to speak to disfellowshipped persons or even to greet them. In business dealings, they were to relate to them as little as possible. When they died, they were not to attend their funerals. For all intents and purposes they were regarded as eternally damned.”[100]

17 Anyone, no matter what his or her status in the organization can be disfellowshipped “by reason of unfaithfulness to the kingdom.”[101] Hayden Covington, as well as his predecessor Olin Moyle, were both driven from the Society — Moyle for his public criticism of Rutherford’s personal behavior and Covington for excessive use of alcohol.

The Jehovah’s Witness at Work

1 Witnesses, depending on the amount of time they dedicate to proselytizing, fall into categories in the overall hierarchy of the Watchtower organization: publishers, pioneers, Zone and Circuit Servants. Publishers are part-time ministers who hold other jobs, often confining their proselytizing to weekends and evenings. Publishers pledge a “certain minimum number of hours per month,” usually 30–60 hours. Pioneers are full-time ministers who work door-to-door solicitation on a daily basis. They are the “backbone of the Witness organization for it is chiefly they who go about from town to town distributing the literature and seeking converts.”[102] Their monthly workload is substantially higher, with 150–200 hours per month expected. Zone Servants are in charge of a small area of a city, county or state, depending on the population, and oversee all Witnessing in that area. Circuit Servants, representatives of the Watchtower president, are Witnesses “engaged in organizational and guidance work among the congregations.”[103] Unlike Publishers and Pioneers, Circuit Servants spend roughly half of their time teaching new Publishers the art of giving “witness of the Kingdom to come,” and the other half leading Bible-study sessions for Witnesses’ members and potential converts.[104]

2 Every member of the Jehovah’s Witnesses is considered an ordained minister, as the goal is to prepare as many people as possible for the Second Coming, and the “principal work is that of preaching the gospel of the Kingdom from house to house as did Jesus and the apostles.”[105] Publishers and Pioneers are annually issued membership cards that identify their “capacity and connection with the Society.”[106]

3 While the vast majority of training for Witness members was conducted in the field, on February 1, 1943 a special training school was established in Ithaca, New York. The Watchtower Bible School of Gilead graduated about 100 students two times yearly during the 1940s and 1950s.[107] Graduates of the School of Gilead were most often assigned to Bethel House in Brooklyn for work.

4 Witnessing among Watchtower members was and is a systematic process. In 1940, the United States was divided into six major regions with 153 zones, each overseen by a Servant.[108] The Zone Servant was responsible for all of the households within his or her zone. Within a year, the Zone Servant ensured that each household was visited three or four times. To accomplish this task, Witnesses traveled from house-to-house in pairs. One Witness would ring the doorbell, while the other would hold the phonograph “ready to put the needle on the record the moment the door is answered.”[109]

5 More concentrated efforts were also undertaken in the name of Jehovah. Justice Robert H. Jackson, in his dissenting opinion in Douglas v. City of Jeanette, summarized a “Watch Tower Campaign” that occurred in Jeannette, Pennsylvania, in 1939. Jackson wrote: “Each home was visited, a bell was rung or the door knocked upon, and the householder advised that the Witness had important information. If the householder would listen, a record was played on the phonograph … The householder was asked to buy a variety of literature for a price or contribution.”[110] During the initial campaign, several Witnesses were arrested. In response, the Zone Servant conferred with the Mayor, explaining they had a right to Witness in Jeannette because of the decision in Lovell v. Griffin. The Mayor, in turn, told the Zone Servant they could talk to anyone on the streets and distribute literature free of charge without trouble, but could not sell material door-to-door without arrest. The Zone Servant then threatened to bring so many people to Jeannette that the police force would be overwhelmed. “On Palm Sunday of 1939,” Justice Jackson writes, “that threat was made good. Over 100 of the Witnesses appeared.[111]

6 While Witnesses gather in weekly meetings with fellow brothers and sisters, they come together just once a year with other Witnesses from across the nation at the annual convention. The first national convention was held in Chicago in 1893 and was attended by 360 followers. The last national convention was held in New York City in 1958, where 253,922 Witnesses attended.[112] Today, regional conventions are held to accommodate the large attendance. At these conventions, new publications are unveiled, mass baptisms are conducted, biblical questions are addressed and Watchtower leaders speak on important doctrinal issues. As with all Witness activities, conventions are also used to pass on the word of Jehovah to the masses. While attending the convention, Witnesses conduct door-to-door canvassing in the host city, “thus saturating the large convention city to a degree otherwise impossible.”[113]

The Business of the Watchtower

1 The first corporation associated with the Jehovah’s Witnesses was Zion’s Watchtower Tract Society. Established in 1879, the Society had its headquarters in Allegheny, Pennsylvania, with Russell at its helm. Five years later, the Watchtower Bible and Tract Society was established as a non-profit corporate entity.

2 By 1940, the Watchtower Bible and Tract Society ran a number of businesses, including printing plants in Brooklyn near Bethel House as well in several foreign countries.[114] A 1956 article in The New Yorker described life at Bethel House, the Watchtower headquarters, as a self-sufficient community. Ulysses Glass, the Watchtower public relations officer at the time explained, “We have our own laundry, dry cleaning plant, and shoe repair shop … Most of our food comes from our own farms … We also make and repair our furniture and most of our equipment, and we even have our own doctor and our own chiropractor.”[115]

3 The Watchtower Bible and Tract Society derive the bulk of its profits from the sale of books, tracts and pamphlets. As an example of the output of the Watchtower printing machine, “[d]uring 1939, 4,500,000 copies of The Watchtower were printed, 5,000,000 copies of Consolation, another semi-monthly publication, and 2,000,000 copies of Kingdom News.”[116] In 1940, books “placed” in homes cost the recipient 25 cents, while pamphlets were a nickel.[117] Sixteen years later, the cost of pamphlets remained constant, while some Watchtower books cost up to 50 cents.[118] A year’s subscription to the Watchtower magazine was $1 from the time of its introduction in 1879 until 1981. At that time, the cost of an annual subscription to the Watchtower rose to $2.50. Currently, there is no set fee for Watchtower publications. Because of a Supreme Court ruling that required religious publishing houses to pay taxes on books sold, the Watchtower Bible and Tract Society claim they never sell any publications. In fact, congregation members continue to pay the complete fee for the publications they distribute, with their outlay supplemented only by donations from the public.[119]

4 Along with printed materials, the Watchtower Bible and Tract Society also manufactured portable phonographs and accompanying records for its members in the field. In 1942, the “Society reported it had placed over 35,000 of these phonographs in the hands of Witnesses and it was distributing about 300,000 records each year.”[120] Along with portable phonographs, the Watchtower Bible and Tract Society also owned several “sound cars,” which were “rigged with amplifying systems of sufficient volume to reach large audiences.” In 1941, “343 of these units were being used in this country.”[121]

5 The Society also ran a radio station, WBBR, in Brooklyn, New York. The station was established in 1922 and operated continuously until 1957. “Judge” Rutherford used the radio station extensively to broadcast weekly programs and convention speeches. At its peak in 1933, 403 stations broadcast the Watchtower word.[122]

6 Witness members pay the Watchtower Headquarters for each publication distributed. Therefore, if a pamphlet or book is left without collecting the allotted fee, the individual Witness member must pay the cost of the publication. After a day’s work, Jehovah’s Witnesses members are required to fill out a “Field Service Report” that notes the number of publications “placed,” sound recording played and back-calls (returning visits) completed during the day. Quotas for distribution are set by Watchtower headquarters and announced in The Watchtower magazine. For example, in January 1943, members were reminded that “the goal for the three months is 100,000 subscriptions, at least, in the United States and territories.”[123]

7 Pioneers and Publishers are not paid a salary by the Watchtower organization for their ministerial efforts nor are they required to pay dues or other assessments to the Society. At Witness Kingdom Halls, no collections are taken, although “boxes are placed so that it is convenient for any who wish to contribute to do so.”[124] Zone Servants and all Witnesses employed at Bethel are paid a small stipend each week for their work. In 1940, the weekly stipend for workers at Bethel was $10.[125] Cars, housing and food are also supplied to all who live and work at Bethel in a communal arrangement.

8 Among its other assets, the Watchtower Bible and Tract Society constructed and maintains a mansion in San Diego, California. Built in 1930 at the cost of $75,000,[126] the Spanish mansion named Beth-Saarim (house of the princes) was built to house the biblical prophets upon their return to earth. Said Rutherford of the mansion’s grounds, “I purposely had the grounds landscaped with palm trees and olive trees so these princes of the universe will feel at home.”[127]

9 While waiting for the Second Coming, “Judge” Rutherford inhabited the facility, especially during the winter months when he had recurring health problems. One former Witness claimed that Rutherford spent “most of his presidency” at Beth-Saarim. If not for conflict with local officials, Rutherford would have been buried in a vault there.[128]

10 The mansion in San Diego was clearly the West Coast headquarters for the Watchtower during Rutherford’s presidency. Other Watchtower leaders regularly made the journey by train between Brooklyn and San Diego when called for counsel by Rutherford. For example, Covington traveled to San Diego in 1939 to work with Rutherford on the Supreme Court brief for the first flag salute case, Minersville School District v. Gobitis.[129]

11 At the end of the 20th Century, the Watchtower Bible and Tract Society earned an income well over $1 billion annually, and owned more than 30 properties in the United States valued near $200 million. The Society’s international operations were even more far-reaching, with Watchtower holdings in almost every nation of the world valued at more than $300 million.[130] To facilitate its nearly 90,000 congregations worldwide, the Watchtower Bible and Tract Society published books and pamphlets in 125 different languages, with The Watchtower magazine reaching more people in more languages “than any other existing journal.”[131]

Chapter 2. Hayden Cooper Covington

1 I think he was a crusader. He was a fighter. He needed a cause to fight for, and this was a cause he found.

2   — Dr. Jerry Bergman[132]

3 Hayden Cooper Covington was the mastermind behind the Jehovah’s Witnesses’ First Amendment legal victories in the 1940s. Covington, in consultation with Judge Joseph Rutherford, developed a plan to cultivate, appeal and win First Amendment cases for the Watchtower. Along the way, he had a success rate before the United States Supreme Court higher than any man except former NAACP attorney and Supreme Court Justice Thurgood Marshall,[133] claiming victory in 36 of 42 Supreme Court cases.

4 Hayden Covington saw his work in the courts as a mission, much like his brethren saw their door-to-door ministry. Covington joined the faith as a young man, and after much turmoil, died a practicing Witness. In the interim, Covington served faithfully as the chief legal counsel of the Watchtower Bible and Tract Society for 24 years. In this position, he secured a place for the Jehovah’s Witnesses in First Amendment history.

Finding the Witnesses’ Way

1 Born in 1911 in the small town of Nelta in eastern Texas, Hayden Cooper Covington was the son of a Texas Ranger. At a young age, Hayden moved with his family to San Antonio where he spent much of his youth. When the Rangers transferred Hayden’s father from their home “down to the [Rio Grande] Valley,” at the southern tip of Texas, the younger Covington stayed in San Antonio with the family of two school friends. Every Sunday, his friends’ father “had all the boys come in” to talk to them about “world conditions.”[134] As Covington was “dissatisfied with the establishment,” and “flirting with controversial ideas,” he was an astute pupil of the boys’ father who was “full of controversy against the system of things.”[135] As part of the Sunday lesson, the boys’ father would turn on the radio to hear the Watchtower Bible and Tract Society president Judge Joseph Rutherford on the radio. Covington later said, “I was very pleased with what I heard” in these weekly broadcasts.[136]

2 Covington’s commitment to serve the Witnesses seemed to come at least as much from his desire to defend the underdog as his desire for salvation. “He wanted to fight against something,” Witnesses’ scholar Jerry Bergman said after having interviewed Covington. “I think if the Witnesses wouldn’t have come along, someone else would, and he would have joined that and would have fought. He was a crusader, and this was a cause he found.”[137]

3 In 1934 at the age of 23, Covington was baptized a Jehovah’s Witness.[138] Covington’s father was quite unhappy with Hayden’s attendance at the Witnesses’ meetings. He was so infuriated with Hayden’s preoccupation with the Witnesses that on one occasion, he threatened Hayden’s life. When he found Hayden and his mother studying the Bible one evening, he “came in, whipped out the gun, and put it right to his head. He said ‘if you don’t give up this religion I’m going to blow your brains out.’ Hayden replied, ‘If you’ve got the guts, pull the trigger.’”[139]

4 The elder Covington had hoped Hayden would pursue a life in politics, one already begun with a job in the county clerk’s office. “He wanted him to go into politics and got mad that he didn’t,” Lynn Elfers, Covington’s daughter explained “He didn’t want Dad to work for nothing basically.”[140] The young Hayden Covington had other plans. “Whenever they were out campaigning, I was out preaching,” he said “I had a political job and a political office, but I didn’t go along with it.”[141]

Legal Experience

1 Hayden Covington was admitted to the Texas bar in 1933, one year before he graduated from the San Antonio Bar Association School of Law. Following graduation, Covington worked for Morrison-Burkeson, a large firm in San Antonio, and later R. H. Mercer, a company that defended damage suits for the Maryland Casualty Company. In his early years as a lawyer, Covington was unconcerned with constitutional issues, working instead on “casualty insurance defense, personal injury, and representing insurance companies.” Later he focused on “bond forfeiture cases and bond obligation cases.”[142]

2 While working in San Antonio, Covington began representing fellow Witnesses in pro-bono cases. His first case involved “some brothers who got arrested down in the valley because of a meeting that was held down there.” Covington “went down and appeared on their behalf and got the case thrown out.”[143] Leaders at the Watchtower Bible and Tract Society quickly learned of Covington’s reputation as a competent lawyer and a faithful Witness. He was contacted by the Society on a regular basis to represent Witnesses in need of legal service. Sometimes Covington would be asked to represent clients in simple legal matters such as a contested will. More often, however, Rutherford and his legal staff would call on Covington to help Witnesses held on licensing violations or sedition charges.

3 Covington’s first foray into constitutional law came in these early years while representing Witnesses in Texas. The Jehovah’s Witnesses had staged a series of “information marches” in San Antonio. Members carried signs that read, “Religion is a racket! Religion is a snare!” The San Antonio police were prepared to arrest the Witnesses for their public proselytizing when Covington began negotiations with Mayor Maury Maverick. Covington recalled that “by pleading with the Mayor he saw that we had the right [to march], I made him, well I didn’t make him, the Lord made him, but I was the one that offered the proposition.”[144]

4 Most of the Watchtower leaders met Covington for the first time in the summer of 1939 when he attended the annual Witnesses’ convention at Madison Square Garden. On the final day of the convention, a group comprised of Father Coughlin’s Catholic Action members began to “throw things on the speaker stand,” and booed Rutherford, trying to “disrupt the meeting.”[145] Several Witnesses reported that the uprising began when Judge Rutherford began attacking other organized religions.[146] Instead of stopping the proceedings, Rutherford continued with his speech announcing, “By God’s grace the Nazis and Fascists will not break up this meeting.”[147]

5 When ushers asked the group to leave the building, a fight broke out with Covington at the fore. Bergman said Covington had “no qualms about fighting physically. He loved a good fight.” “If someone looks at me the wrong way,” Bergman recalled Covington saying, “I’ll beat the **** out of him.”

6 One of the Jehovah’s Witnesses, William J. Heath, was arrested for hitting a member of the opposition with a cane. Covington became the chief witness in the case against Brother Heath, making trips by train from San Antonio to New York for the trial. Covington’s testimony became the turning point in the trial, convincing the judge that Brother Heath was acting in self-defense.[148]

Covington at the Watchtower

1 In 1939, Judge Joseph F. Rutherford, president of the Watchtower, needed to fill a vacancy in his legal department and needed to do it quickly. Olin Moyle, the Watchtower’s counsel for four years had just left the position, citing the Judge’s “personal behavior” and “improper conduct” as reasons for his resignation. On July 21, 1939, Moyle submitted an open letter to the Bethel family accusing Rutherford of “unkind treatment of the staff, outbursts of anger, discrimination, and vulgar language.”[149] Rutherford answered Moyle’s accusations in a letter printed in the October 15, 1939 issue of The Watchtower magazine. Rutherford said Moyle, who was “entrusted with the confidential matters of the Society,” now “libels the family of God at Bethel, and identifies himself as one who speaks evil against the Lord’s organization, and who is a murmurer and complainer.”[150]

2 Judge Rutherford called Hayden Covington to work at Bethel soon after the Moyle controversy erupted. Covington remembered receiving an invitation “special delivery from Brother Rutherford,” and “immediately went,”[151] joining the staff on August 21, 1939.[152] Covington had worked for just six years in San Antonio for private firms before joining the Watchtower, with none of his “official” work addressing constitutional issues.

3 Ironically, one of Covington’s first jobs at the Watchtower was to defend the Society from a libel suit brought by Moyle. Covington argued that Moyle made “vicious, scurrilous charges as a cover for his resignation,” and added, “but there is no voluntary resignation in our organization.” “It is true,” Covington wrote, “that he became a servant of the Evil One.”[153] The judge in the case disagreed, awarding Olin Moyle $30,000 in damages.

4 In his early years at Bethel, Hayden Covington acted as Judge Rutherford’s legal assistant, providing research and writing support for the Judge’s Supreme Court appearances. Covington recalled that he “worked along with Brother Rutherford” on the first flag salute case in 1940,[154] but “Brother Rutherford argued that.”[155] Covington’s real work at this time was defending cases in the lower courts the Society deemed important. These local trials, scattered across the country, took up much of Covington’s time in the first years. These cases did not receive a great deal of publicity, but they were essential to laying a foundation for appeal. They were also risky.

5 The local cases often resulted in threats to Covington’s life. Covington, as the primary representative of the Watchtower Bible and Tract Society in these localities, was often the target of patriotic violence directed toward the sect. While representing Witnesses charged with sedition in Connersville, Indiana, for example, he was threatened by a vigilante mob that shouted, “we want to kill Covington.”[156] The prosecuting attorney in Harlan, Kentucky, announced he would “boil” Covington “in oil.”[157]

6 By 1941, the same year he was officially admitted to the New York Bar,[158] Hayden Covington was “fully in charge of all U.S. Jehovah’s Witnesses’ legal affairs.”[159] In 1942, upon Rutherford’s death, Covington was given the title “chief legal counsel” to match his responsibilities. At that time, Covington took over all Supreme Court appeals for the organization. While he had argued many cases before the Supreme Court prior to this time, Rutherford’s death left him firmly in charge of the Witnesses’ constitutional battles. During one week in 1943, Covington argued 14 cases before the United States Supreme Court.[160]

7 In addition to his appearances before the Supreme Court, Hayden Covington coordinated all of the Witnesses’ cases in lower courts. Covington received regular dispatches from congregations across the United States updating him on current litigation as well as potential test cases. Covington personally selected which cases the Society legal staff would litigate and allocated lawyers and resources for these efforts.[161] Covington also decided which communities were ripe for potential legal action and sent Witnesses into these areas to test local ordinances.[162]

8 Covington was constantly busy with legal work. On average, Covington handled 50 major cases involving Jehovah’s Witnesses each year.[163] Colin Quackenbush, a colleague at Bethel, called Covington a “workaholic,” saying he worked “18–20 hours a day whether he was at Bethel, in his office there, or whether on the road fighting cases.”[164] As lead attorney in the legal department, Covington “traveled incessantly to near and distant parts of the country for trials involving Witnesses.”[165] Dorothy Covington, Hayden’s wife, explained that he also did the “research on all the cases.” “He didn’t assign others to do the research,” she said. “He kept secretaries, several, busy” with work.[166] Covington agreed that he was consumed with legal matters during his time at Bethel, but explained that he enjoyed the work seeing it as advancing the Witnesses’ cause. In the early 1940s, he said, the cases were “coming at us fast and furious … but I was young and dedicated and devouring of any opposition that we had.”[167]

9 Like the Witnesses themselves, Covington had an unconventional method of presenting his legal cases. A reporter for Newsweek described Covington’s presentation before the Supreme Court in this way: “Locking his hands behind his back and bending his body into a right angle, or tucking his thumbs into this green vest and lifting his head, he roared, first at the black-robed justices and then at the audience.”[168] A Supreme Court clerk was to have said of Covington, “He may not have done more talking than anyone I’ve heard here, but he did more calisthenics.”[169]

10 Peculiarities aside, Covington was considered an excellent orator and a highly competent lawyer, respected inside and outside the Watchtower organization. Sociologist Herbert Hewitt Stroup noted “I have heard Witnesses say of Covington that he was ‘smart,’ that he certainly was a devout Witness (which to them made considerable difference in the quality of a man), and that he was a hard worker.”[170] Covington was also confident of his abilities. Said Jehovah’s Witnesses scholar M. James Penton, he “was a rather proud, sometimes arrogant man.”[171] When speaking to interviewers, Covington often attributed court victories to his own talent, then quickly added thanks to Jehovah or the Lord for his success.

11 Covington was a “very imposing man,” said Witnesses expert Jerry Bergman, “very articulate,” and “very free in his use of profanity.”[172] Marley Cole, a practicing Witness with strong ties to the Watchtower headquarters, said Covington was a gifted speaker, “a Texan with a flair for metaphors that stand up and walk.”[173] Far from a backwater lawyer who relied on clever tales to win cases, however, Covington constantly worked to improve his oratory skills. Bergman remembered Covington had “at least 30 or 40 books on vocabulary” at his home that he used to polish his verbal skills.[174]

12 Covington’s gift at oration was matched only by his fearlessness in the courtroom. When Covington presented oral arguments before the Supreme Court, the courtroom was always packed, and not just with Witnesses. Lynn Elfers, Covington’s daughter, explained “All the clerks would come when they heard it was one of our cases,” because they “knew it was going to be sparks flying … Papa wasn’t afraid of anything.”[175]

13 Covington straddled the world between the Watchtower and the law. He would “combine libertarian arguments, which he characteristically used in courts of law, with the most completely authoritarian views imaginable when speaking of the spiritual and organizational authority of the board of directors of the Watch Tower Society.”[176] Covington had to, on the one hand, believe in the process of the court system while at the same time maintaining allegiance to one man, the president of the Watchtower, and to one God, Jehovah, for all answers no matter how irrational.

14 Covington was very good at this balancing act, able to apply legal reasoning to Biblical questions and Biblical reasoning to legal concerns. For example, during one morning question and answer session at Bethel, Covington suggested Adam and Eve’s sin was “disobedience.” “It was a legal matter,” he said. “The tree served as a legal sign, a guidepost, between the God-King and the man in their governmental dealings with each other. Adam and Even failed to fulfill their contract.”[177] Bergman explained that Covington “didn’t have that good a knowledge of the scriptures. He didn’t know, and he didn’t care. His interest was the scripture related to the law.”[178]

15 Along with his promotion to chief legal counsel in 1942, Hayden Covington was also named vice president of the Watchtower Bible and Tract Society. Covington claimed he received “99 percent of the votes for president,”[179] although Nathan H. Knorr was given the position. The official Witness publications reported that Nathan H. Knorr and Hayden C. Covington “were respectively nominated and unanimously elected,” citing no conflict in the proceedings.[180]

16 Contrary to the amicable relationship the Watchtower projected between Knorr and Covington, in reality, these two very different men were constantly at odds with one another. Bergman said that Covington made it clear he “detested Knorr.” During his interview with Bergman, Covington repeatedly called Knorr a “cobra” because “they’re sneaky, they’ll slither behind you, and they’ll strike.”[181] While Covington never articulated a Society policy or position he and Knorr disagreed on, it was clear Covington had a serious dislike for the man he call a “coward.” At the Madison Square Garden convention in 1939, Knorr left the auditorium without confronting the protestors while Covington and many other Witness brothers stayed to fight. Covington found Knorr’s actions at the convention deplorable and “as a result, lost respect for Knorr.”[182]

17 Covington only served on the Watchtower Board for three years. On Sept. 24, 1945, Covington resigned his position as vice president. In a letter to the Watchtower Board of Directors, Covington said he must resign because he was not one of the “heavenly class,” the selected few who would join Christ in heaven and rule over earth following Armageddon. Covington felt he was one of the “other sheep,” who would be reborn following Armageddon to create a new flock of believers. Because all members of the board were required to be of the “heavenly class,” Covington offered his resignation. The Society explained that Covington’s “resignation was not an evasion of responsibilities but was rather an effort to comply with what appeared to be the Lord’s will.”[183]

18 Even after Covington resigned his position on the board of directors, he remained the Society’s leading attorney, serving an additional 18 years in this capacity. The last decade of Covington’s tenure at the Watchtower, however, were not as active as his first. As the Witnesses accumulated Supreme Court victories in the 1940s, fewer and fewer controversial, high profile issues remained.

19 In 1963, 24 years after Hayden Covington accepted the job at the Watchtower Bible and Tract Society, he was disfellowshipped from the organization. The official reason behind Covington’s removal from the Watchtower Bible and Tract Society was alcohol abuse. Colin Quackenbush described Covington’s drinking problem during his memorial service as falling “into the trap of drinking too much.”[184] Covington’s family members explained that he “would drink more than he should which was his way of relaxing and escaping” from “working so many years, eighteen to twenty hour days.”[185] M. James’ Penton, in Apocalypse Delayed also suggested that Covington’s drinking problem was a symptom of “overwork and tension” from almost 25 years of service in the legal department.[186]

20 Covington’s most high profile case after leaving the Watchtower was representing Muhammad Ali in his case for draft evasion. Ali had been “sentenced to five years in prison and a ten-thousand dollar fine — the maximum” for avoiding the draft.[187] Here, Covington made the same arguments he had used for Witnesses for decades. Muhammad Ali, as a member of the Muslim faith, was a minister and therefore not subject to the rules of the draft. In 1971, after missing out on three and a half years of his boxing prime, Ali won the support of Supreme Court of the United States, exempting him from service in the armed forces. Interestingly, Ali never paid Covington for his work on the case. Lynn Elfers, Covington’s daughter remembered that Ali “never paid a penny, but he gave us a cuckoo clock that he got in Germany.”[188] Most importantly, she noted, “He got out of jail.”[189]

21 Covington was formally reinstated to the Watchtower Bible and Tract Society just prior to his death in 1978. Covington was a dedicated Witness upon his return to the Society, choosing fieldwork as a new mission. Colin Quackenbush reported that the Sunday prior to Covington’s death, he was “out in the field for seven hours.”[190]

Chapter 3. The Plan

1 You are writing your faith into the laws of the land.

2   — Hayden Cooper Covington

3 In 1942, University of Pennsylvania law professors John E. Mulder and Marvin Comisky concluded that “seldom, if ever, in the past, has one individual or group been able to shape the course, over a period of time, of any phase of our vast body of constitutional law. But it can happen, and it has happened, here. The group is Jehovah’s Witnesses.”[191] Forty-five years later, William Shepard McAninch, professor of law at the University of South Carolina, supported Mulder and Comisky’s claim, noting that the Witnesses have had “a profound and extensive impact on the development of our law.”[192]

4 While this well-deserved praise speaks to the outcomes of Jehovah’s Witnesses’ court cases, to most First Amendment scholars, the Witness successes in court, especially the Supreme Court, were accidental. Legal scholars have uniformly dismissed the Witnesses’ methods for bringing about First Amendment cases, referring to their legal successes as mere unintended consequences of fanatical preaching. For example, legal scholar Bernard Schwartz noted that Jehovah’s Witnesses, “who became involved in trouble with the law were only seeking to propagate their unpopular creed.”[193] Law professor Charles Hasson queried that there must “be some basic difference within the tenets of the Witnesses’ religion to produce this flood of litigation.” His conclusion, Witnesses “trample upon the sensitive nature of modern society.”[194] Legal scholar Louis Boudin speculated that civil liberties cases generally, and the Jehovah’s Witnesses’ cases more specifically, “are usually the outgrowth of temporary excitement, either general or local; and are frequently the result of action which is the reverse of deliberate.”[195] To these scholars and others, the Jehovah’s Witnesses had no legal strategy. They simply fell headlong into Supreme Court litigation.

5 These simple explanations for Witnesses’ legal activities disregard the complex plan devised by Watchtower executives and carried out by hundreds of men and women to combat local literature distribution and permit ordinances. In reality, the Witnesses’ success in the Supreme Court was more organizational than accidental. Judge Joseph Franklin Rutherford, president of the Watchtower Bible and Tract Society from 1917–1942, originally formed a national legal team[196] in 1935 to protect those spreading the “Word of God.” In that year, the Watchtower Bible and Tract Society hired Olin Moyle as the Jehovah’s Witnesses head legal counsel to replace Rutherford upon his ascendancy to president. Moyle, under Rutherford’s close watch, created the first centralized clearinghouse for Jehovah’s Witnesses’ legal actions and began to draw up plans and instructions for a wide spread legal assault.

6 Moyle’s tenure was short-lived, however, following his accusations that Judge Rutherford engaged in “unkind treatment of the staff, outbursts of anger, discrimination and vulgar language.”[197] Only four years into his legal career with the Watchtower, Moyle was replaced by a young Texas lawyer, Hayden Covington. In conjunction with Rutherford, Covington created a plan for addressing and overcoming legal obstacles that stood in the way of Witnesses preaching. “Under the leadership of Rutherford,” historian Merlin Owen Newton concluded, “Witnesses prepared for Armageddon in a nationally orchestrated, aggressive campaign. In the streets and courtrooms throughout the land they confronted state and local officials whose ordinances hindered the coming of Jehovah’s Kingdom.”[198]

7 The Watchtower lawyers implemented a comprehensive campaign to prepare Witnesses for the legal battles they would face.[199] Witnesses were instructed in how to prepare for violence, arrest, trial, appeal and jail time. They were provided names of attorneys and suggestions for obtaining bail. When Witnesses went to the streets with the Word of God, they also carried summaries of Supreme Court decisions. Spiritually and legally, Witnesses were prepared to face the unfaithful.

What Instigated the Plan

1 Arrests of Witnesses began in 1928 soon after Rutherford commanded all members to go forth on Sundays.[200] This intrusion on the Sabbath particularly infuriated practicing Christians who were the target of hateful rhetoric from the Witnesses. Complaints began to pour into local police stations across the country. In response, many communities instituted new ordinances aimed at halting the Witnesses’ activities. As early as 1930, incidents of persecution against Witnesses were noted in local newspapers. The St. Louis Post-Dispatch included an editorial in its October 12, 1930, issue describing the lack of sympathy for a Witness who had been cut from the relief rolls because of his affiliation with the Watchtower.[201] H. Rutledge Southworth explained in The Nation that legal victories “seemed to impel the Witnesses to greater zeal — and their opponents to extra-legal means to defeat them.”[202]

2 In the early 1930s, Witnesses were regularly charged with violations of licensing ordinances and disturbing the peace. The number of Witnesses arrested for violations of such laws increased more than four-fold, from 268 in 1933 to 1,149 in 1936.[203] Much of this increase can be attributed to Rutherford’s introduction of new witnessing methods. In addition to regular radio broadcasts, in December of 1932 the Watchtower announced a portable transcription machine would be made available for use in the field so those who did not have access to radio could still hear Rutherford’s sermons.[204] The machines were offered “at $100, complete [with battery and battery charger, so that it can be kept up to its full strength], to brethren in the United States.”[205] And on June 11, 1934, Rutherford introduced, via a letter to all pioneers, new spring-wound phonograph machines produced by the Watchtower. These portable phonographs could be carried door-to-door and were to be used to play short, four-and-a-half minute sermons.[206] Along with the phonograph, Watchtower Headquarters also encouraged the use of testimony cards in the mid-1930s. These cards contained a short witnessing statement and introduced the Witnesses’ beliefs. The testimony cards also allowed time for the Jehovah’s Witness to set up the phonograph machine as well as time for the homeowner to immediately decide whether he or she wanted to hear more.[207]

3 In the late 1930s, when Rutherford’s campaign against organized religion heated up, Witnesses also began to be charged with group libel.[208]

4 In February of 1940, the Watchtower Bible and Tract Society implemented “street corner witnessing,” with one or two workers placed on downtown street corners handing out literature to those who passed by.[209] This new practice also stirred up long-forgotten ordinances, and Witnesses were arrested for being public nuisances, clogging sidewalks and impairing public safety. Legal historian Leo Pfeffer explained, “New laws were enacted and old laws resurrected to supply the weapons necessary to curb the Witnesses. All kinds of laws were used or attempted to be used for this purpose; laws against disturbing the peace, antipeddling ordinances, laws against the use of sound trucks, traffic regulations, revenue laws — these and many others have been invoked in one way or another against the Witnesses.”[210] Laws designed to thwart Witness activity included “Green River” ordinances, which required a prior invitation before visiting a home, as well as “Blue Laws”, which prohibited certain types of activities on Sundays.[211]

5 Some ordinances, like one submitted for review to the American Civil Liberties Union by a sympathetic clergyman in Waynoka, Oklahoma, mentioned the Witnesses and their activities by name. The ordinance read in part, “It shall be unlawful for any person to distribute in any manner the pamphlet issued by the sect or organization known as ‘Jehovah’s Witnesses,’ or to play any phonograph records upholding the belief of the said ‘Jehovah’s Witnesses,’ within the corporate limits of the town of Waynoka, Oklahoma.”[212] Other ordinances were constructed more broadly but still affected Witnesses to a greater degree than members of more traditional religions. For example, ordinances that restricted the door-to-door dissemination of religious literature, banned religious groups from gathering in public parks, or forbid the distribution of printed materials without a license directly impacted the Jehovah’s Witnesses’ ministry while barely affecting religious groups with fixed congregational sites. For example, ordinances from the town of McCormick, South Carolina, that required a license for “agents selling books,”[213] or Paris, Texas, that required a permit from the mayor “to sell books, wares, merchandise or any household articles,”[214] had little bearing on those with traditional religious affiliations.

6 Writer H. Rutledge Southworth noted that Catholics in positions of power in local governments often developed these ordinances. “For years the Catholic church, firmly intrenched in local politics, has tried to restrict the activities of the Witnesses by city ordinances and police regulations,” he wrote.[215] While there is little evidence to support a Catholic conspiracy to thwart Witnesses’ activities at the local level, Catholic communities were often targets of Witnesses’ canvassing, and therefore, more likely to implement regulations to hinder Witnesses’ activities.

7 Whenever local ordinances conflicted with the Witnesses’ work, Watchtower lawyers “alleged that the local legislation infringed upon their freedom of speech and religion.”[216] In most cases, these ordinances were written to specifically target Witnesses. In some instances, however, the regulations were an attempt to implement true time, place and manner restrictions. The intent of the laws was unimportant to Witnesses who were bent on carrying the message of Jehovah to whomever would listen. “The Witnesses felt they were commanded by Jehovah God to preach,” Covington said. “They ran up against a barrage of petty laws that said you could not preach that way,” but could not obey these laws of man.[217]

The Plan

1 The plan to fight for souls through use of the law was originally Judge Rutherford’s idea. Historian Merlin Owen Newton wrote, “In order for the kingdom to advance, Rutherford determined, Witnesses must find a shield against escalating resistance. As a lawyer, he logically turned to the law.”[218] Former Witness Barbara Grizzuti Harrison contended that the Witnesses “had something to gain by initiating lawsuits.” “They had no material emblems to suggest or represent their singular glory,” she explained “They felt reposed in them … To sustain their image of themselves, perhaps they needed to have something immense and extraordinary occur, something that would raise them above themselves, justify and exalt them. Rutherford had one weapon, the law. He used it. He made things happen.”[219]

2 To initiate the new legal offensive, a new institutional structure had to be created within the Watchtower organization. In 1935, Rutherford asked Olin Moyle to take over a legal department that had been inactive since 1907 when Rutherford left the position to take over the presidency.[220] This legal department would be the central clearinghouse for all Jehovah’s Witnesses cases. From this office at the Watchtower headquarters, Bethel House in Brooklyn, New York, every arrest, defense and appeal would be coordinated.

3 Prior to the reinstatement of a formal legal department, Witnesses in the field had little formal legal support from the Watchtower Bible and Tract Society headquarters. While a standardized protocol for dealing with legal matters was available to all members in 1935, Witnesses who had been arrested were “expected to conduct their own defenses at the trial level, following a standard set of instructions issued by the Society.”[221] If Witnesses were issued fines by the courts, they were instructed to refuse to pay, choosing jail time instead.[222] Prior to 1933, no formal plan to appeal cases was in place. Therefore, many of these early cases ended with Witnesses serving time in local jails.

4 The legal department was up and running when Hayden Covington joined the staff in 1939. At the time of Covington’s arrival, the Watchtower legal department consisted of the chief legal counsel, several assistants and a clerical staff. Many of the practices for gathering information from local congregations and contacting attorneys had already been established. Booklets providing legal instructions to Witnesses in the field had been distributed. The legal department was not proactive, however, until Hayden Covington arrived. Covington’s first task was to develop a legal strategy as aggressive as Rutherford’s spiritual one. The first step of his plan was to identify local communities where Witnesses faced legal roadblocks to their ministry.

Identifying Locations

1 Covington would determine which communities were targeted for intensive fieldwork, and thus, potential future litigation. Covington would “send people into areas they knew would be a problem, especially if there was a large Catholic population,”[223] “an active priest,”[224] or “previous opposition.”[225] Covington would simply inform a certain congregation that they needed to preach in a certain territory, often adding, “It hasn’t been preached in awhile.”[226] For example, in New Haven, Connecticut, three Witnesses and two of their sons were canvassing Cassius Street with a new Judge Rutherford recording attacking the Roman Catholic Church. About 90 percent of the residents of Cassius Street were Roman Catholic.[227] While Covington never admitted to deliberately provoking local residents or law enforcement agents, his tactics often produced the desired outcome — arrest.

2 Identifying localities ripe for litigation was a long, often challenging process. When communities initially targeted produced little response from law enforcement, Witnesses were sent on to the next potential test site. Professor Jerry Bergman, a former Jehovah’s Witness, explained, “They would deliberately send them into this area and if there was no problem, send them into another area.”[228] Covington “probed in community after community,” historian Merlin Owen Newton wrote, “to determine local limits.”[229] Covington saw the process of cultivating arrests and appeal as a “long-term struggle,” one that would not end by “winning a case tomorrow.”[230]

3 Witnesses were often sent into confrontational situations unaware of the danger,[231] but they did not question Covington’s plan. Even when they may have suspected trouble, Witnesses were taught not to question decisions from the Watchtower leadership who claimed they had a direct line to God. Also, Witnesses saw themselves as instruments of God, and “God was fighting this battle.”[232] Witnesses believed that they should be used in whatever way necessary to advance the cause. Newton explained that Roscoe and Thelma Jones, whose case Jones v. Opelika would reach the Supreme Court in 1942, believed “if their convictions could be used to further the larger cause … then their convictions must be part of Jehovah’s divine plan.”[233]

Clogging the Jails

1 The Watchtower Bible and Tract Society also created divisions of mobile Witnesses who would go to the assistance of their brethren in case of trouble. The country was divided into 78 areas, each patrolled by a division of mobile Witnesses who would descend on any “hot spot” where local members had been arrested. These mobile Witnesses would blanket a town, visiting each house within an hour of their arrival. The job of these Witnesses, in addition to spreading the Word of God, was to get arrested thus clogging the local jail and legal system and freeing up local members to return to their work.[234] In Griffin, Georgia, for example, 82 Witnesses who had blanketed the town with literature were arrested. As there was not enough room for all of those arrested, the 42 female Witnesses were locked out of their cells, forcing them to leave the jail.[235]

2 By replacing local members with mobile Witnesses in the jails, Covington was able to ensure the Watchtower could continue to spread the Word of God and generate test cases. Covington believed the legal process would “move faster” if pressured by many litigants rather than “one little person” who could be ignored or overlooked by local authorities.[236] With law enforcement and court officials tied up in processing the newly arrived Witnesses, local members were free to continue proselytizing. The mobile Witnesses, recently arrested under the same questionable ordinances, provided new opportunities for trial and appeal.

3 In addition to returning local Witnesses to their ministry, the plan had a secondary effect. By prompting arrests in so many localities, the Witnesses generated test cases in multiple jurisdictions. Subsequently, the legal team at Watchtower headquarters could choose which cases to pursue based on the level of constitutional violation, the amount of persecution, or the predilections of sitting judges.

Preparing for Arrest, Trial and Appeal

1 Witnesses were trained in legal as well as spiritual matters. In addition to reviewing visitation quotas and discussing scripture at weekly service meetings, Jehovah’s Witnesses also learned legal strategy. Written instruction to Witnesses was quite detailed and included how to deal with police, what to do if arrested, and what to do if held for trial. Beginning in 1939, a pamphlet titled Advice to Kingdom Publishers was sent to all Pioneers and Publishers, full-time and part-time Jehovah’s Witnesses workers. The 16-page pamphlet included information on how to avoid arrest, as well as what to do if arrested.[237] The Watchtower legal office sent updated and more detailed instruction booklets to Witnesses in 1941,[238] 1943[239] and 1953.[240]

2 In these manuals, Witnesses were instructed to “be polite” and “meekly submit”[241] to law enforcement agents. Covington instructed Witnesses to “obediently accompany” the arresting officer, and “do not by force or any other means try to escape from custody.”[242] Witnesses practiced these instructions during weekly service meetings when brothers, dressed as law enforcement officials, would break up a meeting and conduct “mock arrests.”[243]

3 As Witnesses were usually carrying a great load of printed materials or sound equipment, they were also informed how to retrieve property confiscated during arrest. Because “police have a right to take portions of the literature being distributed as evidence,” Covington explained, Witnesses should suggest to the arresting officer that “two copies of each publication be kept” by the police and the remaining returned to them.[244] Witnesses were also told to “obtain a receipt for all property kept by the police.” “Should the police keep personal property,” Covington warned the congregants, “their action is unlawful. Make a vigorous protest and threaten to take legal action.”[245]

4 Witnesses were instructed how and when to report the arrest to Watchtower officials. They were told to inform their local congregations, via a written report, of the details of their arrest as soon as they were released from jail. “Give all the facts,” Covington instructed Witnesses: “(1) what the publisher was doing when arrested, and everything that happened; (2) what action was taken by the police” and “(3) what action can be expected in the future.”[246] Along with the report, Witnesses were to provide all legal documents, including the name of the court where they would appear and the date of the trial, as well as any “newspaper clippings.”[247]

5 Witnesses were also told how and when to contact an attorney. Pioneers and Publishers were supplied with cards identifying lawyers in their region sympathetic to the Watchtower cause.[248] Witness lawyers were not readily available in every part of the country, especially in communities hostile to the Witnesses and their messages. When lawyers affiliated with the Witnesses were not available, members in trouble with the law turned to other sympathetic organizations. For example, in August of 1941, the American Civil Liberties Union received a request for legal referral from George Carson, a Witness Company Servant. Mr. Carson wrote, “In this locality, Jehovah’s Witnesses find it very difficult to secure legal counsel … Without the aid of an attorney it is difficult to see justice done in such cases, particularly when Jehovah’s Witnesses are involved on account of so much prejudice against us. Will you please inform us of the name of an attorney … who would be willing to counsel and advise us free of charge or at a reasonable cost.”[249] This was far from an isolated request. A Life magazine article published in 1940 noted that the American Civil Liberties Union was involved in more than 200 cases representing more than 1,300 Witnesses.[250]

6 Beginning in 1933, Witnesses were provided instruction manuals outlining simple legal procedures in case no attorney was available and they had to defend themselves.[251] These procedures included the chronology of a trial, specifying who would speak, in what order, and with what opportunities for dissent.[252] Later manuals included detailed guidance on how to file a motion to dismiss, how to request an appeal from a judge, and how to secure a bond.[253] After 1941, Watchtower lawyers even included specific wording for arguments to be placed in court briefs.[254]

7 Covington, through pamphlets and congregational visits, also taught Witnesses how to prepare for a trial. In his booklet, Defending and Legally Establishing the Good News, Covington included lists of possible questions for direct- and cross- examination to aid litigants in preparing for an actual trial. “Questions pertinent to the case should be selected from among those listed below and propounded to you by your counsel or friend,” Covington wrote.[255] “You should be prepared to answer all questions,” Covington reminded Witnesses, “whether they may be material or based on prejudice.”[256] To practice these instructions, Witnesses held mock trials during service meetings, “some of them lasting for weeks, with overseers role-playing the parts of the prosecution and defense attorneys.”[257]

8 Along with trial procedures, Witnesses were also educated in legal etiquette. “You will show respect to the judge presiding and to the prosecuting attorney,” Covington wrote, but do not “show fear of men. A proper attitude of kindness and courtesy on the same dignified level that a judge of a court ordinarily exhibits should at all times be kept by us as ambassadors of God’s kingdom of righteousness.”[258]

9 Witnesses in the field were also taught how to behave when violence broke out. Witnesses were told by elders at service meetings to “get names of officials present, carry cameras and take pictures of any disorder.”[259] Company Servant C. R. Hessler, leading one service meeting, told his congregation that “written reports should be made and copies sent to the Department of Justice, the governor of the state, the mayor, police officials and the Civil Liberties Union.”[260] Witnesses followed these instructions without fail. For example, in a letter dated Jan. 12, 1942, Thomas Maddux, a practicing Witness, wrote to Hayden Covington detailing mob action against Witnesses and his own arrest in El Dorado, Arkansas.[261] In his letter, Maddux included times and dates of all violent actions, the outcomes of each incident, and the names, addresses and affiliations of local community members involved in the incidents. Maddux also described his own arrest and subsequent release including the name and address of the arresting officer and the chief of police.

10 Jehovah’s Witnesses were excellent pupils. They had been schooled for years in how to best reach the public with the news of salvation. A 1940 New York Post article explained that a Jehovah’s Witness, “knows the answer to every possible question, and once a prospect begins asking questions, it is only a matter of minutes before [she] is in the parlor.”[262] Learning the ins and out of the legal world was no different. To Witnesses familiar with taking orders and following directions, learning how to be arrested or the best way to get a case appealed to a higher court was no problem.

Preparing for Battle

1 Each Publisher and Pioneer carried an identification card indicating his or her ministerial status and connection with the Society. These membership cards were the Witnesses’ only “official” link to the headquarters and were used to identify themselves to the public, the police, and government officials. The Jehovah’s Witnesses’ identification cards read in part, “Jehovah’s [W]itnesses are ordained and commissioned by God, and the signer of this card Scripturally claims such ordination and commission, as set for this the Bible at Isaiah 43:9–12; Matt. 10:7–12; Matt. 24:14; Acts 20:20; 1 Peter 2:21; 1 Cor. 9:16. Being one of Jehovah’s [W]itnesses, in obedience to God’s commandments, preach the gospel and worship almighty God by calling upon people in their homes, exhibiting to them the message of the gospel of said Kingdom in printed form.”[263] Witnesses were instructed to show the card “to any policeman who arrests them,”[264] thus establishing themselves as clergy immediately upon being taken into custody.

2 The plan for legally establishing identification for Witnesses as ordained clergy was implemented prior to Covington’s tenure. Olin Moyle, Covington’s predecessor, also used the identification cards as evidence of ministerial work. In Schneider v. New Jersey, Moyle wrote that Clara Schneider’s work “consisted of visiting residents of Irvington, exhibiting to them her Testimony and Identification Card (R. 35–36) and leaving or offering to leave with them certain printed literature.”[265]

3 Identification as a minister was important to the legal cases of Witnesses. Covington insured that whenever possible these identification cards were introduced into evidence as proof of the appellant’s religious status. For example, Covington began the facts section of his brief in Marsh v. Alabama by noting that “Grace Marsh is an ordained minister of Almighty God … The Watchtower Bible and Tract Society, under the direction of which she carried forward her ministerial activities, issued to her a certificate of ordination and identification.”[266] “The Watchtower Society issues to its authorized agents, ordained ministers of Jehovah God, a certificate of identification and ordination (Exhibit 9, R 33),” Covington wrote in the Supreme Court brief for Largent v. Texas.[267]

4 Identification cards were used as the basis for two prominent legal arguments in Witness cases. First, the cards placed Witnesses squarely in the occupational category of clergy. Many of the community ordinances applied to specific vocations. By identifying themselves as ministers, Witnesses could be exempt from these regulations. Second, the identification cards issued by the Watchtower Bible and Tract Society allowed Witnesses to claim that the distribution of their literature was, in fact, worship.

5 The distribution of religious literature was also commonly exempted from regulation. For example, in Opelika, Alabama, where one of the Witnesses’ Supreme Court cases originated, the local licensing ordinance exempted “Book Agents” who “sold Bibles.”[268] By establishing themselves as clergy, Witnesses were able to claim the materials they delivered door-to-door were purely religious in nature. Covington was sure to include this distinction in each of his briefs. In Follett v. McCormick, Covington wrote, “The appellant, at the time of his arrest, was distributing literature dealing with Biblical subjects.”[269]

6 Witnesses doing fieldwork were also provided booklets that explained their rights under the First Amendment. These booklets included a “detailed analysis of the legality of Witnesses’ practices,”[270] with specific references to Supreme Court cases that reinforced their rights and explanations of penalties that could be exacted upon those who interfered with their rights. Like the identification cards, the booklets were to be shown to law enforcement representatives when confronted. The first such booklet, Liberty to Preach, was by written Olin Moyle and published just after the Witnesses’ Supreme Court victory in Lovell v. Griffin. It included sections on “Literature Distribution Ordinances,” “Canvassing and Peddling Laws,” “Soliciting of Contributions,” “Trespass Ordinances,” and “Offensive Literature.” In each section, the booklet described why the Witnesses’ constitutional rights protected them from arrest. For example, under the heading “Literature Distribution Ordinances,” the booklet explained, “Any law requiring a license to distribute printed matter, or prohibiting the distribution of printed matter, is invalid on its face. It is immaterial whether a fee is charged for such licenses or whether it is issued gratis. Distribution of informative material or opinion cannot be subjected to license.”[271]

7 As with the identification cards, Jehovah’s Witnesses clearly followed instructions for presenting these booklets to law enforcement officials. In the Jurisdictional Statement for New York v. Saia, Covington explained that Saia “attempted to show them [police officers] booklets and decisions containing legal arguments in favor of the right of Jehovah’s Witnesses to protection in the exercise of their rights of freedom of speech, press and worship.” The arresting officer replied that he “didn’t have a damn bit of use for what had been written about the Constitution protecting the rights of Jehovah’s Witnesses, nor the decisions of the Supreme Court of the United States.”[272] The first police officer on the scene to confront Mr. Saia, James Pittard, also reported that the Witnesses “showed us a book too, and read from it that all Police officers that make an arrest or cause an arrest to be made are subject to fifteen to fifty years in jail and fine of five thousand dollars.”[273] In Griffin, Georgia, a journalist for the local newspaper reported “There was much reading of a three-page, typewritten statement prepared for his followers by Judge Rutherford setting forth their rights and decrying the actions of those who sought to curb their activities.”[274]

8 Along with identification cards and booklets outlining legal decisions, after 1939 Witnesses were also provided an official letter from the Watchtower Bible and Tract Society to present to local police departments. The letter, titled, “To the Police Department of the City of ________” (to be filled in by the Witness), informed local law enforcement of Witnesses’ canvassing activities in their area. The letter was to be delivered to the local police station prior to the start of door-to-door or street corner work. The goal of the letter was to make local law enforcement officials aware of their activities (all guaranteed under the First Amendment) so they could intervene to prevent conflict with opposing groups.

9 While there is no evidence to support ulterior motives of Watchtower officials, the formal announcement of arrival may have tipped off those opposing the Witnesses and certainly could have led to more rather than fewer arrests in these communities. In most communities hostile to the Jehovah’s Witnesses’ activities, police officers were also opposed to the presence of Jehovah’s Witnesses. Mulder and Comisky concluded that Witnesses “found it necessary to struggle against a tremendous surge of unfriendly local opinion and opposition … aided and abetted by zealously antagonistic local law-enforcement authorities.”[275] For example, a 1940 article in Survey Graphic magazine detailed the passivity of law enforcement during the beating of several Witnesses as they were run out of a small, Southern town. As one female Witness was hit squarely in the back with a brick, the local sheriff “leaned against a telephone pole,” making “no move to join the crowd, or to check it.”[276]

No Permits, No Licenses

1 Witnesses were instructed by the Society not to obtain a permit or license for their canvassing activities, even if one were required. To them, asking for a permit to spread the word of Jehovah God would be an “insult to the Almighty.”[277] Witnesses believed that requesting a permit for speaking the Word of God could result in “everlasting destruction” as such a request would be an “act of disobedience” to God.[278] Olin Moyle, in the Petitioner’s Brief for Schneider v. New Jersey explained: “Petitioner did not apply for or obtain a permit from the police department because she regarded herself as sent by Jehovah to do His work and that such application would have been an act of disobedience to His commandment.”[279] Alma Lovell and Daisy Largent, two Watchtower litigants whose cases reached the Supreme Court, also followed these orders. Ms. Lovell stated that she did not seek a permit because she was sent “by Jehovah to do his work.”[280] In the Supreme Court brief for Largent v. Texas, Covington openly stated, “Appellant admittedly did not apply for or receive a permit or license.”[281] In the Supreme Court brief for Chaplinsky v. New Hampshire, Covington again submitted, “Jehovah’s Witnesses, including appellants named here in, did not apply for a permit and none was issued for such ‘information march.’”[282]

2 While the refusal to submit to a worldly government was clearly a part of the Witnesses’ theology, there was also a legal reason to refrain from seeking permits. In each licensing case, Covington set forth the premise that ministers cannot be licensed in the United States. “The constitutional ‘right’ to serve Almighty God cannot be taxed or licensed,” Covington wrote in the Jones v. City of Opelika brief “It is not a ‘privilege,’ but a right.”[283]

3 The Witnesses’ reasons for refusing to obtain a permit were not always accepted as valid by the Supreme Court justices. Justice William O. Douglas recalled Justice James McReynolds’ disgust with Judge Rutherford’s argument for supporting his client’s refusal to obtain a permit in Lovell v. Griffin. At one point in Rutherford’s oral arguments, McReynolds interrupted, saying, “Instead of applying for a permit, which seems to me a reasonable requirement, this lady defied the law. Tell me, why did she do it?” Rutherford pointed his finger to the sky and in his booming voice replied, “This lady did not get a permit, because Jehovah God told her not to.”[284] McReynolds left the bench for the remainder of that day’s arguments.

4 Witnesses did not always circumvent the permit process. Covington clearly viewed door-to-door canvassing and public assembly as separate legal concerns. Witnesses were regularly reminded to follow local ordinances unless these laws would keep them from their work. For example, Witnesses regularly sought permits for holding meetings and using sound equipment in public parks. Sometimes permits were granted to Witnesses who followed the proper procedure, other times, they were not. Either way, the Witnesses would hold their meetings. When Samuel Saia, a Witness established in upstate New York, was denied a permit for the use of sound equipment for a series of meetings to be held in the Lockport, New York, park, he held the meetings anyway. In this case, the Witnesses claimed they “did not desire to flout the law … but since the Mayor had denied the permit to use the sound equipment they regarded his action, as well as the ordinance prohibiting the use of the sound equipment, as being contrary to the law of Almighty God.”[285]

5 Like Saia, William Poulos, another Witness working in New England, requested a permit to a hold a public meeting in a local park. His petition to the City of Portsmouth, New Hampshire, was rejected because, as the city council explained, “they had never received a petition of a religious group to use the public parks, and that it was the policy not to permit any religious meetings in the park.”[286] Poulos held his meeting and delivered his speech titled, “Preserving Godliness Amid World Delinquency,” as scheduled without the required permit. In the appellant’s brief for the Supreme Court, Covington described why Poulos did not have a permit for the meeting. Poulos “did not have a permit,” Covington wrote, “because the City Council had denied the petition for a license.” Covington also added that Poulos, “did not have a permit because it was not necessary.”[287]

6 To avoid being arrested under ordinances that required a licensing fee or permit for the selling of literature, after 1937 Witnesses were instructed to offer their literature for “no fixed contribution.”[288] Witnesses’ identification cards, shown to all law enforcement officials with which they had contact, also contained an explanation of their policy on “selling” literature. “Bibles, books, booklets and magazines,” the identification card read, “are offered free to those that are poor, or on contribution, which contribution is accepted for the publishing of other literature so that the Word of the Lord may have greater circulation in all this world for a witness, giving other people the opportunity of learning of God’s gracious provision for them.”[289] Hayden Covington, in the Supreme Court brief for Marsh v. Alabama, explained that “Grace Marsh distributed the Watchtower and Consolation magazines each Saturday afternoon on the sidewalk in front of the business block … calling out in moderate tones, ‘Watchtower, announcing Jehovah’s Kingdom.’ She insisted that the magazines were not for sale and that she was not selling them, but she explained that she offered this literature freely to all persons with whom she came into contact.”[290] Walter Leckrone of the Detroit News reported in 1940 that “Judge Rutherford says they solicit neither money nor members, although contributions to the cause are freely made by followers.”[291] Covington further articulated this stance in his 1950 booklet, Defending and Legally Establishing the Good News, where he reminded Witnesses “we are not selling books but do accept contributions and freewill offerings when we leave literature.”[292] To Witnesses, distributing literature for a return offering was parallel to hearing a sermon and passing the collection plate.

7 When the legal issue of selling religious literature became too prominent to ignore, Watchtower lawyers devised an argument for court cases that was repeated each time the issue arose. It did not matter, Covington would argue, whether literature was given for free or distributed in return for a contribution as the First Amendment to the United States Constitution covered both acts. “It is clearly evident that to hold that the constitutional shield protecting freedom of press covers only ‘free’ or gift distribution of pamphlets and other printed informative material is to sound the death toll for that most vital of constitutional rights in this country,” Covington explained in Jones v. Opelika.[293] Representatives of established religious organizations such as the Catholic Church and the Salvation Army distributed pamphlets and solicited funds, he argued.[294] Salespeople peddled newspaper and magazine subscriptions door-to-door, and collected money for their products. Their words as well as their distribution methods were protected, so too should those of the Watchtower. Any tax on the distribution of literature, Covington argued repeatedly, was a prior restraint on free speech and press.[295]

8 Taxing the distribution of religious literature was also unconstitutional, Covington maintained, because it hindered the free expression of religion as practiced by the Jehovah’s Witnesses. Because the Witnesses practiced their religion through the door-to-door distribution of literature, any limitation on this practice would violate their First Amendment rights. “The activity of Jehovah’s Witnesses in distributing Bible literature is admittedly a ‘religious rite’,” Covington wrote. “Their accepting money contributions, free will offerings, while wholly incidental to their primary aim of encouraging recipients of literature to study the printed message,” he argued in the Supreme Court brief for Largent v. Texas, “is a necessary integral part of the entire act of worship.”[296]

Keep On Keeping On

1 Witnesses were expected to return to complete their ministerial work no matter what or whom they had encountered the previous day. No one had to tell them to continue, really, as their personal salvation relied on their successful proselytizing. Journalist Stanley High commented in a 1940 issue of The Saturday Evening Post, “they never retreat. On the contrary — fortified again by the Scripture — they welcome it.”[297] Lillian Gobitis, lead litigant in the first flag salute case, Minersville School District v. Gobitis, said that the threat of violence never caused Witnesses to stop their canvassing. She recollected, “Sometimes a bunch of us teenagers would go out, calling on the homes in a town, and pretty soon a group starts to form, throwing tin cans and rocks at us. We would keep a car nearby and just go to another part of the territory.”[298] Dorothy Covington reiterated Lillian Gobitis’ position. “We had the courage to go” even after the violence erupted, she said “We knew we had Jehovah’s backing.”[299] Day after day, no matter the weather, the legal restrictions or the mob violence, they returned to fulfill their mission. This repetition was the foundation for testing the legality of licensing restrictions in the 1930s and 1940s. In essence, the reappearance of Witnesses each day forced local law enforcement agents to apply existing regulations or create new ordinances, which in turn lead to arrest, trial, appeal and review. The Jehovah’s Witnesses, willing to fight at any cost to spread the truth, would face these new ordinances head on and test every one of them if need be, beginning with the most flagrantly unconstitutional. Covington claimed the Witnesses were the only group willing to confront the ordinances, what he termed, “mischief framed by law.”[300]

Test Cases and Appeals

1 Each congregation, after having gathered information from its members, was assigned the task of reporting any arrests or litigation in its territory to Watchtower headquarters. Covington then selected which cases to more closely follow or join. When sifting through reports from the congregations, Covington was looking for litigants “who had good reputations in the community, who were storeowners, who were shopkeepers.”[301] Most of all, Covington wanted to eliminate as many extraneous variables as possible. For example, if a Jehovah’s Witness appearing in court had a son who was kicked out of school, that Witness would be removed from consideration as a test case.[302] Covington wanted to be sure the judge or jury had no reason, before the case began, to vote against his client.

2 The Watchtower legal team also chose litigants who would play on the emotions of jurists. “They wanted women,” Professor Jerry Bergman recalled Covington saying, “especially women that had children.” These women, Covington believed, would be seen as “just a mother who was doing God’s will.”[303] This strategy seemed to work for the Watchtower as many of the literature distribution cases that reached the Supreme Court had women as litigants.[304]

3 Race was also a consideration. Covington said that they had some cases with black defendants they thought they could use, but were concerned prejudice would “mix the issues.”[305] Bergman noted that Covington felt “they may lose if they were black. So, almost all of the cases were white.”[306] One of the few Jehovah’s Witnesses cases to reach the Supreme Court with an African American as defendant was Jones v. Opelika. Interestingly, Covington and the Witnesses initially lost this case when it reached the Supreme Court in 1942, although the decision was overturned a year later.

4 In addition to choosing the proper litigant for a case, for the plan to be successful the Jehovah’s Witnesses legal team also had to ensure the case would be heard by a court beyond the local jurisdiction in which the violation had occurred. To implement this national strategy, by 1933 all Watchtower lawyers were instructed to appeal adverse decisions to a higher court.[307] Members were instructed in how to proceed once a court case was underway to “establish the basis for appellate review of conviction.”[308] If Witnesses lost in court, they were reminded not “to let a lower court stand against you without review of appellate courts.”[309] The biblical reasoning for appeal derived from Paul’s “appeal unto Caesar,” to escape death in Jerusalem (Acts 25:10,11).[310] The legal reasoning for appealing decisions was more obvious — to build a file of test cases from which to devote Society resources. Because appeal was an integral part of Covington’s plan, many cases reached higher courts for review. “Before the smoke of the war years cleared,” Jehovah’s Witness Marley Cole wrote, “190 appeals were taken to higher courts.”[311]

5 As part of the plan to appeal adverse decisions, Witnesses were instructed never to pay fines or pay bail levied by the state for their distribution activities. They always accepted jail time over fines or bail until represented by an official Watchtower representative. In Griffin, Georgia in 1936, 82 Witnesses were arrested for distributing literature. When “City Manager R. A. Drake set bonds at $10 … not a ‘Witness’ would agree to post bond.”[312] Witnesses were so adamant regarding their refusal to pay fines that they even sent corrections to local officials and newspapers that inaccurately reported their payment. For example, the Jeanette, Pennsylvania News-Dispatch printed the following retraction on February 27, 1940: “As a matter of record, it should be noted that the city of Jeannette made a public retraction regarding the payment of the $50 fines. The Witnesses never did pay these fines.”[313]

6 Once their clients were jailed and fines refused, Watchtower lawyers would pay the bail for their release until a higher court scheduled an appeals hearing. While many Jehovah’s Witnesses languished in jail for several months awaiting appeal, others were instantly released through the bail process.

7 In select instances, Watchtower lawyers from Brooklyn would be sent to oversee or take over representation of the cases from the beginning. More often, however, local or regional lawyers affiliated or sympathetic with the Society would handle lower court appeals for Jehovah’s Witnesses clients. Often these regional lawyers would assume control of a case after Witnesses themselves appealed the case from a lower court. The appeal process was a kind of pyramid, with higher-level attorneys joining for each level. Hayden Covington, while keeping abreast of the details of these test cases from the beginning, would not join the legal team until a case was to be appealed to the Supreme Court of the United States.

8 For example, Roscoe Jones, a Witness arrested in Opelika, Alabama, appealed his own case from the recorder’s court when he was “sentenced to pay a $50 fine or spend ninety days in jail.”[314] Grover Powell, a Witness lawyer working in Atlanta, joined the case after its first appeal from the recorder’s court in Opelika, Alabama. Powell “responded to the call of Roscoe Jones and prepared his case for trial in the Alabama Fifth Circuit.”[315] Powell continued as Jones’ primary counsel through the denial of appeal in the Alabama Supreme Court. Hayden Covington joined Powell in preparing the appeal for the United States Supreme Court, and shortly after, developing oral arguments for the Court. Covington, alone, presented the case before the Supreme Court.

After the Dust Settled

1 The Watchtower Bible and Tract Society expanded First Amendment protections in a precisely orchestrated, deliberately instigated plan. This plan did, first and foremost, protect Witnesses carrying forth the message of Jehovah God. It was not a simply a secondary effect that this plan guaranteed Witnesses’ rights of free speech, press and religion, however. Rutherford’s vision to protect Witnesses by use of the law was expanded by Covington’s desire to fight against unconstitutional ordinances. The plan, implemented by thousands of Jehovah’s Witnesses doing God’s work, produced a flood of cases, all appealed to a higher court. Those 190 appeals,[316] in turn, lead to the hearing of 19 literature distribution and permit cases before the Supreme Court of the United States between 1939 and 1950. Fourteen of these decisions favored the Witnesses. It was neither accidental nor coincidental that the Jehovah’s Witnesses protected their religious practices. It was neither accidental nor coincidental that the Jehovah’s Witnesses changed the meaning of the First Amendment.

Chapter 4. The Cases

1 Their action served like a sieve to strain out insidious by-laws that were cluttering up freedom of worship, speech and press. Not only for them. But for everybody alike — whether it was realized or not.

2   — Hayden C. Covington

3 Hayden Covington’s plan to appeal decisions to the highest court in the land was extraordinarily successful. Between 1938 and 1953, this plan to challenge local ordinances requiring permits for literature distribution, solicitation and the use of public spaces produced 19 Supreme Court cases.[317] Of these, Covington and his colleagues secured favorable decisions in 14.

4 In many ways, the Supreme Court cases described below were the last step in Covington’s plan to write the Witnesses’ religion “into the law of the land.”[318] Like the plan to bring cases to the courts, Covington’s plan to win cases in the courts was highly methodical. Win or lose, Covington continued on to fight the next case. As Covington viewed the Watchtower legal plan as a “long term struggle,” losing a case only meant learning more about “not making the same mistakes in the future.”[319] In the end, Covington made few mistakes during his Supreme Court appearances, standing firm on his religious beliefs and offering the most basic arguments protecting his clients’ rights to speech, press and religion.

The Arguments

1 While the details of the cases changed over the years, Covington remained committed to supporting the most fundamental protections of First Amendment rights. Covington was said to argue his cases by “standing flat on the Bill of Rights,” repeating arguments supporting Witness rights to free speech, press and religion as incorporated by the Fourteenth Amendment.[320] Covington rarely strayed from the most elementary issues in his cases. While he had a complex plan for getting cases before the high court, he had a very simple plan for winning cases there. Each of the Supreme Court briefs penned by Covington looked strikingly similar. Each contained a series of basic arguments defending his client’s rights to free speech, press and religion. While additional arguments were added to supplement cases and address specific circumstances, these four arguments reappeared in varying forms in Supreme Court briefs and other supplemental court documents.[321]

Distribution Must Be Protected

1 Society lawyers argued fervently that the Witnesses’ approach to preaching through door-to-door distribution of biblical literature and teaching aids must be protected under the constitutional rights of free speech, press and religion. This was, first and foremost, an argument to protect the Witnesses and their mission. Without a door-to-door ministry, the Witnesses could not prepare others for the forthcoming Armageddon, and in turn, could not save themselves. In Lovell v. Griffin, Watchtower lawyers plainly stated the ordinance enacted in Griffin, Georgia, “prohibits the free exercise of religion and practice of thereof by prohibiting the distribution of literature.”[322] Watchtower lawyers repeated this argument five years later in Largent v. Texas when they explained the Jehovah’s Witnesses way of conducting religious services. Appellant “was and is an ordained minister of Jehovah God,” they wrote, and “her way of worshiping Almighty God is to preach the gospel from house to house and on the streets by distributing literature.”[323]

2 The argument, however, was not solely one of self-preservation. The Watchtower lawyers knew that hindering the distribution of literature (religious or otherwise) was an unconstitutional prior restraint, and by repeatedly advancing this argument they would bind their plight to that of mainstream media. In 1936, in the case Grosjean v. American Press Company, the Supreme Court ruled it was unconstitutional to tax the circulation of newspapers and magazines as taxes could “limit the circulation of information to which the public is entitled in the virtue of constitutional guarantees.”[324] Covington extended this reasoning to Witnesses in their permit and taxation cases. By imposing limitation on the Witnesses’ distribution of literature, Covington contended, city ordinances violate their freedom of press. In the brief for Jones v. City of Opelika, for example, Covington pointed out, “There is no difference between proportionately taxing the publishing corporation having the larger circulation and imposing the license tax or fee upon a boy or other person distributing pamphlets or leaflets. The result, regardless of motives, is to discourage, hinder or destroy circulation.”[325]

3 In later years, the argument for protecting door-to-door distribution would also be expanded to include the protection of Witnessing activities in public places such as sidewalks and parks. In these public permit cases, Witnesses were uniformly denied the use of public facilities for preaching. Covington argued in these cases that religion had no boundaries. This was especially true, he explained, if the religious activities in question did not interfere with the normal functions of the community. For example, in Marsh v. Alabama, Covington argued that public streets and sidewalks were historically considered a gathering place for the communication of ideas. People have the “right to use the public ways and streets in the orderly exercise” of their freedom of speech, press and religion,” he wrote.[326] In Poulos v. New Hampshire, Covington reiterated this argument, maintaining that the common law recognized the use of public places for religious speech even prior to the adoption of the constitution. “History,” Covington wrote, “from the dawn of its records, shows that the market places, the plazas, the public beaches and the public streets are used as places of public preaching.”[327]

4 If Witnesses were denied the right to use public spaces, Covington contended, they would be hindered from carrying out their religious duties. In fact, Covington stated, there was a “practical reason” Witnesses’ religious rites must be discharged in public as well as private spaces. “Today,” Covington wrote, “millions of people do not remain at home during such hours as are ordinarily devoted to house-to-house calls. The only way to reach those people … is by going publicly upon the streets and the parks and other public places.”[328]

The Fourteenth Amendment: Due Process & Incorporation

1 Jehovah’s Witnesses lawyers, beginning with Olin Moyle in Lovell v. Griffin, argued against the vast discretionary power granted to local government officials in charge of granting permits to those wishing to distribute literature. Watchtower lawyers believed that allowing a single public official to determine who may distribute literature or use public facilities violated the Jehovah’s Witnesses’ right to the due process of law. In Lovell, Watchtower lawyers contended “that the ordinance denies to appellant due process of law and the equal protection of the law, for that her right to distribution literature in the City of Griffin, Ga., is made to depend upon the arbitrary discretion of the City Manager.”[329] This argument was advanced again in Largent v. Texas. Here, Covington argued that the ordinance in question abridged the appellant’s rights of speech and press because of the “unbridled and unlimited authority” given to the mayor to revoke or grant permits.[330] In Poulos v. New Hampshire, Covington refined this argument even further. Here Covington questioned whether a criminal ordinance that contained no method for “challenging the validity of the administration of the ordinance,” in effect, violated his client’s “procedural due process of law.”[331]

2 Covington faithfully argued local ordinances that infringed on Witnesses’ rights to free speech, press and religion could not be applied because of the incorporation of the First Amendment against the states via the Fourteenth Amendment. Covington fully believed the ruling 15 years earlier in Gitlow v. New York[332] extended First Amendment rights to the states and localities, protecting Jehovah’s Witnesses from ordinances that would be considered unconstitutional at the federal level. By 1931, the Supreme Court had extended incorporation to free speech in Fiske v. Kansas[333] and free press in Near v. Minnesota.[334] Covington believed the practice of incorporation should also be extended to freedom of religion. If all three freedoms under the First Amendment were applied to state and local ordinances, Covington felt, every aspect of the Jehovah’s Witnesses’ religious practice would be protected.

The Right to Hear and Be Heard

1 An important component of the Witnesses’ legal briefs was an argument for the right to be heard. In essence, this argument defended the right of citizens in communities where Witnesses worked to hear the Watchtower message, even though none of those citizens were appellants in the cases. This argument took varying forms depending on the circumstances. For example, in Martin v. City of Struthers,[335] a door-to-door distribution case, Covington argued that each individual homeowner had the right to decide whether or not to hear the Witnesses’ message. Imposing a blanket ordinance on all who approached private homes denied Witnesses the right to speak as well as denied those being solicited the right to listen, Covington explained. In cases involving sound-enhancement devices, such as loudspeakers and bullhorns, Covington argued that it was not enough to guarantee the right to free speech if those speaking could not be heard. “Just as the right of free press includes the right to distribute,” Covington wrote in the Jurisdictional Statement in New York v. Saia, “so freedom of speech includes the right to be heard.”[336]

2 Covington even tied this argument to taxation cases, arguing that a tax imposed on Witnesses attempting to distribute literature could have the secondary effect of keeping important information from the community’s citizens. “Could it possibly be contended,” Covington asked the Court, “that the municipality by way of burdensome taxation upon appellant’s ‘commercial’ distribution of the religious book, could constitutionally deprive the people of their right to have this information?”[337]

3 Covington summed up the Watchtower position on the right to hear and be heard in Follett v. McCormick when he wrote, “The founding fathers of this country envisioned that every person should have not only the right of freedom of press, but the right of freedom to read; not only the right of freedom of speech, but the right of freedom to listen; not only the right of freedom to worship God as His minister, but the right to have God’s Word explained to him.”[338]

Religion is Not a Commercial Transaction

1 Ironically, the Watchtower Bible and Tract Society, an organization made extraordinarily wealthy through the sale of books to its members, argued fervently that its members did not engage in any form of commercial activity. For instance, Covington explained that Daisy Largent, the appellant in Largent v. Texas, was distributing literature as a part of her religious mission, not selling books. In fact, Covington wrote, Ms. Largent actually lost money on her transactions. Ms. Largent, Covington said, “does not derive any income or pecuniary profit” from the distribution of her books or pamphlets. Instead, she more often gives away her literature at a “total monetary loss to her.”[339]

2 The Watchtower Bible and Tract Society was especially concerned about ordinances that applied fees or taxes to the Jehovah’s Witnesses’ activities. Because Jehovah’s Witnesses traveled door-to-door with the Word of God rather than speaking His Word from the pulpit, local communities often charged members with violating solicitation ordinances. As Witnesses also left materials with homeowners or those passing by on the streets for a nominal contribution, localities found their cases against the Witnesses even more compelling.

3 In each case where the issue of fees or taxation arose, Hayden Covington countered with a very basic argument: the free exercise of religion cannot be licensed. In Jones v. City of Opelika, Covington argued, “A minister of the gospel cannot be licensed to perform acts of worship of Almighty God … The constitutional ‘right’ to serve Almighty God cannot be taxed or licensed. It is not a ‘privilege,’ but a right.”[340] The ordinance in place in Paris, Texas, Covington asserted in Largent v. Texas, was “misused and misapplied” to his client who was engaged in the “proper and lawful worship of Almighty Jehovah God,”[341] not the commercial enterprise of selling “books, wares, merchandise or other household articles.”[342]

4 Covington broadened this argument in Follett v. McCormick to include occupational taxes as well as basic solicitation ordinances. In Follett, Covington argued that an occupational tax could not be applied to clergy simply because they resided within a community and practiced their religion by going from house-to-house with religious literature. Their occupation, he concluded, could not be taxed because it was protected under the First Amendment. Covington said the ordinance in McCormick, South Carolina, was a “flat occupational tax applied to the most cherished ‘privilege granted by the Bill of Rights.’”[343]

5 Covington’s arguments against the taxation of Witnesses activities were ultimately successful. While the Court initially voted against the Witnesses in Jones v. City of Opelika in 1942, its ruling in the 1943 case Murdock v. Pennsylvania reinstated the Jehovah’s Witnesses’ rights to be free from taxation. Covington was also successful in his extension of the solicitation argument to include occupational taxes. The Court also ruled in favor of the Witnesses in Follett v. McCormick, noting that earning a livelihood from a job in the ministry does not justify a tax on religious activities.

Religion and Law

1 These four arguments were infused with Biblical as well as legal references. Religious language could be found in Witnesses court documents in all 19 literature distribution and permit cases. For example, in his Summary of Argument in Poulos v. New Hampshire, Covington concluded that voting against the Witnesses in a park meeting case would “mean the beginning of the end for religious freedom in this country.”[344] “It will spell godless disintegration of the religious institutions for the nations from the inside of its borders,” Covington warned.[345]

2 Covington also regularly included scriptural references to explain the Witnesses’ non-traditional worship style. When explaining why Witnesses must travel door-to-door, for example, Covington quoted the Book of Mark, “Go ye into the world and preach the gospel to every creature,”[346] and the Book of Acts, “And how I … have taught you publickly [sic], and from house to house.”[347]

3 The refusal to seek a permit for religious activities was also attributed to Jehovah God. Covington explained in Schneider v. New Jersey that Witness Clara Schneider could not obtain a permit because such an action would be in “disobedience to God.”[348] The appellant in Coleman v. Griffin asserted that to apply for a permit “would be an insult to Almighty God, and would in time result in my own destruction.”[349] Judge Joseph Rutherford, president of the Watchtower Bible and Tract Society, explained in oral arguments before the Supreme Court that Alma Lovell, the appellant in Lovell v. Griffin, did not secure a permit before beginning her house-to-house preaching because “Jehovah God told her not to.”[350]

4 Witnesses testifying in cases were also prone to Biblical reference. Sarah Prince, a Witness charged with violating child labor laws, and her niece, who was caught preaching, both testified that if they did not carry out their activities they would “find everlasting destruction at Armageddon.”[351]

5 Interestingly, in many of the Supreme Court decisions regarding Jehovah’s Witnesses, justices entirely ignored the issue of religion and crafted opinions dealing exclusively with free speech and press. The Jehovah’s Witnesses and their beliefs were extremely controversial in the 1940s. Even the Supreme Court, it seemed, did not want to tie its decisions to the religious beliefs of this odd sect. For example, the Court passed over the issue of religious freedom in the first two literature distribution cases, Lovell v. Griffin and Schneider v. New Jersey, opting instead to confine its remarks to issues of speech and press. The Court continued this pattern in Cox v. New Hampshire, when it concluded the Witnesses’ claim that their free exercise of religion extended to the use of public sidewalks for parades was “beside the point” because “no interference with religious worship or the practice of religion in any proper sense is shown.”[352]

6 In later cases, Justices identified religion as a component of the cases, but still made press and speech the focus of their conclusions. In Marsh v. Alabama, for example, the Supreme Court supported the rights of Witnesses to practice religion according to their own beliefs, but emphasized the right of citizens to be informed.[353] Only in Cantwell v. Connecticut did the Court break from the mold of combining speech, press and religion under the same heading, noting here that the Fourteenth Amendment extended the free exercise of religion to states.

7 In all, Watchtower lawyers employed religious language more for their use than that of the Supreme Court, and sometimes to their detriment. It is unclear from reading the decisions and accompanying scholarship why the Supreme Court avoided the issue of religion in the Witnesses cases. Most likely, the Court was stuck between a religious rock and a legal hard place. As the Witnesses were both fanatical and unpopular, the Court, one would assume, did not want to be seen as Witnesses supporters. This is especially true of Justice Frank Murphy, the only Roman Catholic on the Court, who found the Witnesses’ rhetoric particularly offensive. The Court could not entirely ignore religion, however, as these cases requested protection for religious activities. In the end, the Court struck a balance between the two concerns. By ruling the Witnesses literature distribution and permit cases were centered on issues of speech and press, they were able to avoid siding with the Witnesses while still expanding freedoms for all. While references were made to the need to protect religions outside of the mainstream, the decisions themselves fell very much into the mainstream of legal reasoning.

The Cases

1 Literature Distribution. Many of the 19 literature distribution and permit cases brought by the Jehovah’s Witnesses to the Supreme Court contained similar issues. The most common challenge by Witnesses was against the random approval of permits from government officials. A recurring point in Witnesses appeals queried, “Does the ordinance confer arbitrary and capricious discriminatory powers” upon the government official of this town?[354]

2 The first Jehovah’s Witnesses literature distribution case appealed to the Supreme Court of the United States addressing this issue was Coleman v. City of Griffin in 1937.[355] In this case, Witnesses lawyers challenged an ordinance that required anyone wishing to distribute literature within the city limits to secure a permit from the city manager. The Coleman case was based primarily on the city’s violation of Coleman’s freedom to worship. No mention was made of his right to free speech or press through the distribution of literature. The United States Supreme Court refused to hear the Coleman case for “lack of a substantial federal question,” and “for lack of a properly presented question.”

3 Griffin, Georgia, however, was not off the hook. During this same year, Lovell v. Griffin, a second case against the city, was accepted for hearing before the Court.[356] In this case, Alma Lovell was arrested for distributing literature within the city limits without first obtaining a permit. The town ordinance required Ms. Lovell to obtain permission from the city manager before “distributing, either by hand or otherwise, circulars, handbooks or literature of any kind.”[357] For her violation, Ms. Lovell was arrested and fined $50. When she refused to pay the fine, Alma Lovell was sentenced to 50 days in jail. Of course, under direction from the Watchtower legal office, Alma Lovell appealed her decision.

4 The Jehovah’s Witnesses legal team seemed to have learned a great deal over the course of a year about “substantial federal questions.” The legal arguments in this case were more complex and far reaching than in the first Griffin case. The prevailing theme behind the Watchtower Supreme Court brief in Lovell was the unconstitutionality of the ordinance itself. First and foremost, contended Watchtower legal counsel Olin Moyle, the ordinance violated the appellant’s freedom to worship. As the Witnesses’ practiced their religion by distributing literature door-to-door, the ordinance in place in Griffin, Georgia, by regulating who could participate in this activity, hindered their free exercise of religion.

5 While freedom of religion was clearly at the core of the case, Jehovah’s Witnesses lawyers also argued that Ms. Lovell’s rights of free speech and press had been abridged by the application of this licensing regulation. The argument for speech and press rights accomplished three important tasks. First, it tied their plight to the general citizenry by arguing for broader protections of basic liberties. Second, it reinforced their connection with the press by arguing against distribution ordinances. Third, it raised the question of incorporation of the First Amendment to the states via the Fourteenth Amendment. The Fourteenth Amendment must be applied in this situation, the Witnesses’ legal team argued, making null and void any ordinance that violated a federal protection.

6 In addition, Watchtower lawyers debated the merits of a permit system for the distribution of literature. The current permit process employed by the city of Griffin, Witness lawyers concluded, “involves a denial of due process and the equal protection of the law, in that the City Manager is clothed with unqualified discretion in granting or denying the permit.”[358] Placing such arbitrary power in the hands of one government official, Moyle argued, denied Alma Lovell access to a fair and just legal process.

7 Lawyers for the city of Griffin countered with the argument that the ordinance in question had nothing to do with religion, speech or press. “No reference therein to religion or to religious worship or to religious practices is to be found,” Griffin lawyers penned. “It contains nothing touching the right to speak or write freely as one may choose.” The ordinance was enacted to deal with the “sanitary problem” of literature thrown on public streets, not to curb speech. In addition, Ms. Lovell could not have been denied her due process of law as she never applied for and thus, was never denied, a permit from the city.

8 Chief Justice Charles Evans Hughes disagreed with the Griffin lawyers, declaring the licensing ordinance “invalid on its face.” Hughes wrote for a unanimous court, “Its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship.”[359] The Witnesses plan had produced its very first legal victory.

9 Watchtower lawyers knew the importance of these first literature distribution cases long before they reached the Supreme Court. Olin Moyle explained to American Civil Liberties Union lawyers in 1937 that “about 27 cases hang on these two”[360] He was right. Lovell v. Griffin turned out to be the foundation on which all future Jehovah’s Witnesses’ literature distribution and permit cases would rest.

10 In 1939, a year following the landmark Lovell decision, the Witnesses questioned a similar ordinance in Schneider v. New Jersey. In Schneider, Watchtower lawyers disputed a local ordinance that required solicitors and distributors to fill out detailed forms to obtain a permit from the chief of police. The forms contained spaces for “name, address, age, height, weight, place of birth, whether or not previously arrested or convicted of a crime, by whom employed, address of employer, clothing worn, and description of project for which he is canvassing.”[361] After having completed the report, those seeking a permit were also fingerprinted and photographed.[362] As instructed by the legal staff at Watchtower headquarters, Clara Schneider did not apply for or receive a permit for her daily proselytizing as a Jehovah’s Witness, and thus, was arrested in violation of the ordinance. As in Lovell, Watchtower lawyers in this case argued for Clara Schneider’s rights of free speech, press and exercise of religion. Although Ms. Schneider never applied for a permit, Rutherford and Covington argued that his permit system was especially onerous.

11 The New Jersey Supreme Court, from which this case was appealed, disregarded the Witnesses’ arguments, noting that this case differed substantially from Lovell. The ordinance in Schneider, they ruled, regulated door-to-door solicitation that fell squarely within the “valid exercise of police power.”[363] Supreme Court Justice Owen J. Roberts, writing for the majority in support of the Witnesses, concluded that it did not matter whether the ordinance specified the regulation of house-to-house canvassing. The discretionary nature of the ordinance alone made it unconstitutional. As in Lovell, the Court noted in Schneider that the house-to-house distribution of pamphlets and handbills was the essence of free speech and press. “To require a censorship through license which makes impossible the free and unhampered distribution of pamphlets,” Roberts concluded, “strikes at the very heart of the constitutional guarantees.”[364]

12 Four years later, the Supreme Court decided Martin v. City of Struthers, a case that involved both the right to distribute literature and the right to receive it. In this case, the city of Struthers, Ohio, implemented an ordinance to protect its citizens from possible criminal activity by banning all door-to-door canvassing within the city limits. The ordinance read in part, “It is unlawful for any person distributing handbills, circulars or other advertisements to ring the door bell, sound the door knocker, or otherwise summon the inmate or inmates of any residence to the door.”[365] A Witness working in the area delivered a handbill announcing an upcoming meeting of the Watchtower Bible and Tract Society. She was subsequently arrested under the city’s ordinance and fined $10 for the unlawful distribution of literature. While the Martin case dealt with the distribution of literature, Covington argued that the sweeping language in this local ordinance took away the rights of both the Witnesses and the rights of recipients receiving their message. The majority of Supreme Court justices agreed. Witnesses had a right to distribute literature, and community members had a right to receive that message if they chose. The breadth of the ordinance, the Supreme Court ruled, does not allow a distinction between those who want to hear the Witnesses’ message and those who do not. “The ordinance does not control anything but the distribution of literature,” Justice Hugo Black wrote in the majority opinion, “and in that respect it substitutes the judgment of the community for the judgment of the individual householder. It submits the distributor to criminal punishment for annoying the person on whom he calls, even though the recipient of the literature distribute is in fact glad to receive it.”[366]

13 Solicitation. Of the prior approval cases, the most frequently challenged cases were those that required approval of licenses for solicitors. As the Witnesses believed they should neither have to request a permit to carry out their religion nor garner a license for solicitation they did not conduct, these cases were of dual importance to the Watchtower.

14 The first of the solicitation cases to reach the Supreme Court, Cantwell v. Connecticut, hinged on whether a government official, in this case the Connecticut secretary of public welfare, could require prior approval for solicitation activities in the state. Under dispute was an ordinance from New Haven, Connecticut, which read in part, “No person shall solicit money, services, subscriptions or any valuable thing for an alleged religious, charitable or philanthropic cause … unless such cause shall have been approved by the secretary of the public welfare council.” The secretary of public welfare, in turn, would determine “whether such cause is a religious one or is a bona fide object of charity or philanthropy and conforms to reasonable standards of efficiency and integrity.”[367] In its second unanimous opinion favoring the Jehovah’s Witnesses, the Supreme Court concluded that government officials could not arbitrarily decide which individuals and organizations would be permitted to solicit money for charitable or religious causes and which would not. “[T]o condition the solicitation of aid for the perpetuation of religious views or systems upon a license,” Owen J. Roberts wrote for the court, “the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.”[368] While the state’s concern for criminal activity under the guise of charitable work was legitimate, Roberts explained, less burdensome regulations exist to prevent such occurrences.[369]

15 While Cantwell was an important addition to the growing wall against discretionary government oversight of local regulation, it was perhaps even more important in its application of the Fourteenth Amendment to religious activities. In Cantwell, Covington argued for the expansion of the incorporation doctrine to the free exercise of religion. In this case, Justice Roberts agreed with Covington’s pleading for broader protection of federal rights by application to the states. Writing for the Court, Roberts concluded that the “statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment.” “The Fourteenth Amendment,” he went on to conclude, “has rendered the legislatures of the states as incompetent as Congress to enact such laws.”[370]

16 In the Cantwell case, Watchtower lawyers also raised an argument that would reappear three years later in Douglas v. City of Jeannette. Here, Covington contended that if a public official made arbitrary decisions regarding the distribution of permits then his actions may be subject to court review. In Cantwell, the Supreme Court ignored this issue, leaving the broader question of violation without action for another day.

17 Laws that imposed a license fee or tax upon the Jehovah’s Witnesses’ work were of great concern to the Society. Watchtower lawyers saw these ordinances as imposing a fee on the free exercise of religion, an act unquestionably unconstitutional. Jones v. City of Opelika, Bowden v. Fort Smith and Jobin v. Arizona, three Witnesses cases combined for hearing at the Supreme Court, all contained questions of the constitutionality of licensing fees for the distribution of literature. In each case, a fee or tax was levied against individuals selling books. In each case, Witnesses were convicted under the statutes.

18 In Jones v. City of Opelika, Covington argued first for Jones’ right to worship freely by engaging in the house-to-house ministry common to Witnesses. Second, Covington argued that Jones’ free press rights had been hindered through the implementation of an ordinance taxing the distribution of his literature. In this case, Covington seemed to have led with the freedom of religion arguments to directly question the application of the ordinance to his client. The ordinance in this case did not have a licensing fee schedule for ministers, although one was applied to Jones. In addition, the ordinance specifically excluded from fee “agents selling Bibles.” Covington argued his client fit into this exclusion as he was selling Biblical teaching aids and Bible-related materials.

19 As in most Jehovah’s Witnesses cases, this first argument addressing religious practices was essentially dismissed by the Court. Covington’s second argument, linking Jehovah’s Witnesses to the mainstream press, however, was much more significant and could not be ignored. Here Covington argued that any restriction on the distribution or circulation of printed materials was an unconstitutional prior restraint on freedom of the press. Under the “guise of tax,” Covington wrote, “it licenses ‘distribution and circulation’ of printed information and opinion.”[371] The ordinance in place in Opelika, Alabama, Covington argued, “strikes at the very foundation of freedom of the press.”[372]

20 American Civil Liberties Union lawyer Osmond K. Frankel explained that the justices seemed unreceptive to Hayden Covington’s arguments in Jobin v. Arizona. Frankel, who at the time was arguing a conjoined case, Bowden v. Arkansas, on behalf of the American Civil Liberties Union, explained, “I attended the Supreme Court yesterday during the argument of the Jobin case by Mr. Covington and myself argued the Bowden case. The Court was very hostile, particularly Justices Jackson and Frankfurter, the former because he was affronted at the attitude of Jehovah’s Witnesses to organized religion, the latter on familiar grounds of allowing states wide latitude.”[373]

21 Frankel was right. In a 5–4 decision, the Supreme Court ruled that the ordinances in these three cases were “non-discriminatory” fees, “presumably in the proper amount.” These licensing fees, Justice Stanely Reed concluded, were time, place and manner restrictions where “nothing more is asked from one group than from another.”[374] Four of Reed’s colleagues disagreed. Chief Justice Harlan Fiske Stone’s dissent, joined by Justices Black, Douglas and Murphy, stated that the Jehovah’s Witnesses rights of free speech, press and religion could not be overlooked simply because their practices were labeled business activities. “The constitutional protection of the Bill of Rights is not to be evaded by classifying with business callings an activity whose sole purpose is the dissemination of ideas, and taxing it as business callings are taxed,” Stone wrote.[375]

22 More importantly, Stone’s dissent formally incorporated the idea of the “preferred position” into First Amendment Supreme Court doctrine.[376] All rights were not equal, Stone concluded, and any balancing of rights must tip in favor of the First Amendment. “The First Amendment is not confined to safeguarding freedom of speech and freedom of religion against discriminatory attempts to wipe them out,” Stone wrote. “On the contrary, the Constitution, by virtue of the First and the Fourteenth Amendments, has put those freedoms in a preferred position. Their commands are not restricted to cases where the protected privilege is sought out for attack. They extend at least to every form of taxation which, because it is a condition of the exercise of the privilege, is capable of being used to control or suppress it.”[377]

23 The unexpected loss in Jones v. City of Opelika was a sharp blow to the Witnesses’ legal organization that had churned out hundreds of cases now waiting for appellate review. Until Opelika, the Witnesses’ plan to contest local ordinances had been justified by victories in the Supreme Court. Now, local governments could implement ordinances specifically directed at Witnesses without fear of repercussion. Representatives of the Justice Department reported that immediately following the decision in Opelika, they received letters “requesting copies of the opinion for information as a basis for drafting peddler’s licensing ordinances for the avowed purpose of putting a stop to Jehovah’s Witnesses’ activities.”[378]

24 As Covington had broadened the issue in Opelika to include the prior restraint by taxation of all printed matter, the mainstream media took notice. In response to the Witnesses’ defeat in this case, newspapers and magazines that had been relatively quiet regarding the Jehovah’s Witnesses and their legal cases now spoke out strongly against the ruling. For example, writers for Time magazine called Jones v. City of Opelika an “ominous decision,” that placed limitations on “religious freedom, along with free speech and free press.”[379] Editors from The New York Times agreed. “The majority opinion,” they wrote, “lends itself to the whittling down of freedom of speech, freedom of religion and freedom of the press.” We must, the editorial board concluded, “defend the rights of persons with whom we disagree, and who we may actually detest.”[380] Columnist Raymond Moley wrote that the Opelika decision was “shocking in its implications.” “What greater irony can there be, when American boys are dying for the liberties of many peoples,” Moley queried, “than this impairment of this religious liberty in America by the constituted guardians of our liberty.”[381]

25 Rather than folding from the discouraging loss in Opelika, Covington and his colleagues saw this case as yet another test of their commitment to Jehovah God. And, as they had instructed Witnesses in the field to do, they “kept on keeping on.” Only a year later, two additional solicitation and fee cases involving the Jehovah’s Witnesses reached the Supreme Court. The first of these, Jamison v. Texas, involved Witnesses convicted for distributing advertisements in violation of a local ordinance. The Dallas, Texas, ordinance contained language making it unlawful to “scatter or throw any handbills, circulars, cards, newspaper or any advertising device of any description, along or upon any street or sidewalk.”[382] In this case, the city contended that Jehovah’s Witnesses were convicted because the pamphlets they distributed contained an advertisement for books. The pamphlet in question was, in fact, an invitation to a free lecture that also mentioned two books that could be purchased via mail for 25 cents. Justice Hugo Black wrote in the majority opinion that non-commercial speech cannot be banned simply because it appears on the same leaflet as an advertisement. Black concluded, while “states can prohibit the use of the streets for the distribution of purely commercial leaflets … [t]hey may not prohibit the distribution of handbills in the pursuit of a clearly religious activity merely because the handbills invite the purchase of books.”[383]

26 The second Texas solicitation case to arrive in the Supreme Court in 1943, Largent v. Texas, was very similar to both Cantwell and Jones, providing for the mayor of the city to “issue a written permit,” for the “purpose of soliciting, selling, canvassing or census taking within the residential portion of the city.”[384] In this case, Daisy Largent, a Jehovah’s Witness, was convicted multiple times of selling literature door-to-door. All told, Ms. Largent spent 27 days in the local jail.[385]

27 First and foremost, Covington argued that this ordinance was unconstitutional because it “confers arbitrary, unlimited power and broad discretion upon the Mayor of the City.”[386] Covington also argued, as he did in the other solicitation permit cases, that a permit was not required of Ms. Largent because she was engaged in religious, not commercial, work and a permit was not required for the free exercise of religion. Covington wrote that Ms. Largent “does not derive any income or pecuniary profit but even contributes part of her own allowance to such work by giving away free of charge many books and booklets.” Ms. Largent, “placed the greater part of the literature distributed without any contribution … at a monetary loss to her.”[387]

28 In this case, Covington clearly convinced the Supreme Court of the dangers of the arbitrary nature of this permit system. In the majority opinion, Justice Stanley Reed concluded that when “dissemination of ideas depends upon the approval of the distributor by the official … this is administrative censorship in an extreme form.”[388] Covington seemed to be less successful in his arguments regarding the Witnesses’ participation in receiving contributions rather than soliciting funds. In fact, the Supreme Court entirely avoided the controversial issue of religious solicitation that was created in Jones v. Opelika. Reed sidestepped the issue by noting, “It is unnecessary to determine whether the distributions of the publications in question are sales or contributions” as the permit system itself, “abridges the freedom of religion, of the press and of speech guaranteed by the Fourteenth Amendment.”[389]

29 In Murdock v. Pennsylvania, Witness lawyers challenged a 40-year-old ordinance that required solicitors and canvassers to both obtain a license from the mayor and pay a fee for its use.[390] Petitioners in this case were Jehovah’s Witnesses who had, as their religious beliefs demanded, been going from house-to-house spreading the Word of God through the distribution of religious literature. Each of the Witnesses in the case was arrested after having received a contribution for books or pamphlets left with community members.

30 The Supreme Court decided in Murdock that the distribution of literature from door-to-door was an old and important custom in United States’ history. As Covington had long argued, Justice William O. Douglas here confirmed that taxing this process violated the rights of the Witnesses as their daily rounds from house-to-house constituted a religious ceremony, not a commercial act. Douglas eloquently concluded that “the mere fact that the religious literature is ‘sold’ by itinerant preachers rather than ‘donated’ does not transform evangelism into a commercial enterprise. If it did, then the passing of the collection plate in church would make the church service a commercial project.”[391]

31 The fee was not simply regulatory, even though it applied to everyone, Douglas added. Just because the ordinance did not target one group or another for regulation did not make its application constitutional. No fee could be levied on rights granted by the constitution. “It’s a license tax,” Douglas wrote, “a flat tax imposed on the exercise of a privilege granted by the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution.”[392]

32 More than simply overturning an unconstitutional ordinance, Murdock v. Pennsylvania re-established rights lost in Jones v. Opelika. In a short, per curiam decision released along with Murdock, the court noted that the “judgment in Jones v. Opelika has this day been vacated. Freed from that controlling precedent, we can restore to their high, constitutional position the liberties of itinerant evangelists who disseminate their religious beliefs and the tenets of their faith through distribution of literature.”[393]

33 The same day the Murdock decision was handed down, the Court also produced a decision in Douglas v. City of Jeanette. The Douglas case was a pre-emptive strike against what the Jehovah’s Witnesses’ lawyers considered an unconstitutional ordinance. In this case, Witnesses filed suit in District Court to restrain the City of Jeanette, Pennsylvania, the same city serving as defendants in Murdock, and its mayor from enforcing a local ordinance against them. The ordinance required Witnesses to obtain a permit from the mayor and pay a fee for conducting solicitation activities within the city limits. In this case, Covington argued that because Witnesses had been arrested, detained and prosecuted under the ordinance, their First Amendment rights applicable to the states through the Fourteenth Amendment, had been violated. Because city officials continued to enforce this ordinance, he added, Witnesses’ civil rights, articulated in the Civil Rights Act of 1871, were also being violated.[394]

34 Of the three Jehovah’s Witnesses cases decided this day, Douglas was the only loss for Hayden Covington. In Douglas, the Supreme Court denied the Witnesses’ request for a federal injunction against the application of the Jeannette, Pennsylvania, ordinance. The decision was not so much a ruling against the Witnesses, but rather a ruling for inaction as the Court never decided the important question of whether an individual’s rights can be violated by continuing to enforce ordinances previously declared unconstitutional. Instead, the Court concluded that there was no indication that the city officials in Jeanette, Pennsylvania, would not uphold their ruling in Murdock that same day that struck down the local ordinance.

35 A year later, the Supreme Court ruled in a Jehovah’s Witnesses case that considered whether clergy who distributed literature in their hometowns could be subject to taxation even though visiting clergy could not.[395] In Follett v. McCormick, Jehovah’s Witness Lester Follett was arrested for violating a local ordinance forbidding the selling of books without a license in the town of McCormick, South Carolina. While the ordinance in this case was virtually identical to those in Jones v. Opelika and Murdock v. Pennsylvania, this case differed because the underlying issue here was who could be compelled to pay a tax, not whether a tax could be applied. The Supreme Court of South Carolina, from which the Supreme Court of the United States received Follett on appeal, ruled that the recent ruling in Murdock could not be applied here because “the appellant was not an itinerant but was a resident of the town where the canvassing took place.”[396]

36 Covington found this ruling remarkable. He countered with familiar arguments questioning the commercial nature of the Witnesses’ work as well as more directed arguments challenging the distinction between itinerant and fixed ministers. In the “Statement as to Jurisdiction,” Covington explained again that the Witnesses were not engaging in the business of selling books as outlawed by the local ordinance, but rather, practicing their religious faith. The commercial distinction, he argued, did not matter. “If a householder wants the information contained in a book, what difference could it possible make to him that the person bringing it to him is inspired by commercial rather than religious motives?” Covington queried. As to the differentiation between traveling and permanent members of a community, Covington dismissed the distinction as arbitrary, noting, “It is unnecessary to go into any detail as to the definition of the terms involved to show the fallacy of such an arbitrary and discriminatory classification … The sophistry of such a distinction would immediately lead to an endless maze of hairline situation.”[397]

37 The Court was also dismayed. Ruling in favor of the Witnesses, the Court stated, “[W]e fail to see how such a tax loses its constitutional infirmity when exacted from those who confine themselves to their own village or town and spread their religious beliefs from door to door on the street,” wrote Justice William O. Douglas for the majority. “The protection of the First Amendment is not restricted to orthodox religious practices any more than it is to the expression of orthodox economic views.” “He who makes a profession of evangelism is not in a less preferred position than the casual worker,” he added.[398]

38 The second solicitation case decided by the Supreme Court in 1944, Prince v. Massachusetts, involved an ordinance that set limits on the age of those selling literature and other goods. In this case, Betty M. Simmons, a 9-year-old girl, accompanied her aunt Sarah Prince, a Jehovah’s Witness, to a regular street corner preaching session. While Betty did not usually join Ms. Prince in her nightly proselytizing, in this instance she begged to come and was allowed to attend.[399] A local ordinance prohibited the sale of publications or merchandise by boys under the age of 12 and girls under the age of 18. Sarah Prince was thus arrested under child labor laws for allowing Betty to distribute The Watchtower and Consolation magazines for a fee.

39 Covington here argued that Betty Simmons was not engaging in a commercial practice covered by child labor laws, but rather, engaging in a religious practice protected by the First Amendment. The guardians of children have the right to bring them up in the manner they see fit, especially in regards to religious matters, Covington asserted. Betty and her aunt both testified in trial courts that failing to distribute the literature would lead to “everlasting destruction at Armageddon.”[400] In essence, by limiting the child’s ability to distribute The Watchtower and Consolation, the state was limiting her chance of surviving the end of the earth. The Supreme Court disagreed with Covington’s Biblical logic. Wiley B. Rutledge wrote, “There is no denial of equal protection in excluding their children from doing there what no children may do.”[401] Sarah Prince, Rutledge wrote, was more than welcome to become a martyr to the cause of the Witnesses, but she did not have the right to choose such martyrdom for her niece.[402]

40 Breach of the Peace. In addition to the issue of a permit violation, Cantwell v. Connecticut also created a second controversy, breach of peace. In this case, a Jehovah’s Witness was convicted of violating the peace by playing phonograph records in public spaces. This conviction rested not on the volume of speech, but rather, on the content of speech. Following instructions from Watchtower headquarters, Jesse Cantwell set up his phonograph in a heavily Catholic neighborhood of New Haven, Connecticut. And, having been given permission by two members of the community walking by, played a record titled, “Enemies.” Offended by the message on the record, a general attack on organized religions, the listeners threatened Jesse Cantwell and told him, “he’d better get off the street before something happened to him.”[403] He immediately packed up his materials and left. The Supreme Court found no breach of peace in Cantwell’s actions. He was involved in “no assault,” and displayed “no intentional discourtesy” or “personal abuse.”[404] “On the contrary,” Justice Roberts explained, “we find only an effort to persuade a willing listener to buy a book or to contribute money in the interest of what Cantwell, however misguided others may think him, conceived to be true religion.”[405]

41 A second breach of peace case, Chaplinsky v. New Hampshire, was in many ways an example of Covington’s plan gone awry. What began as a normal day of distributing religious literature in hostile territory, turned into a case of offensive speech and breach of the peace when a Witness ignored Watchtower instructions to “meekly submit”[406] to authority.

42 Walter Chaplinsky was distributing leaflets on the streets of Rochester, New York, when the city marshal approached him. City Marshal Bowering informed Chaplinsky that a crowd opposing his views was forming and they were “getting restless.” Chaplinsky, in turn, called Marshall Bowering a “God damned racketeer” and a “damned fascist.”[407] Condemning all the city’s officials, Chaplinsky added: “The whole government of Rochester are [sic] Fascists or agents of Fascists.”[408] In response, Chaplinsky was arrested under an ordinance that prohibited the use of “offensive and annoying words.”[409]

43 Although Hayden Covington was presented with a much different case in Chaplinsky, he relied on many of the same arguments outlined in the literature distribution cases. For example, Covington began the “Jurisdictional Statement” for the United States Supreme Court by arguing his client’s actions were protected under the Fourteenth Amendment’s application of the First Amendment to the states.[410] He also argued that Chaplinsky’s rights had been violated by the application of this ordinance by a single government official in an arbitrary and discriminatory manner. Covington also extended his arguments regarding the validity of the ordinance by contending that it was so “vague, indefinite, uncertain and ambiguous that it fails to set a reasonable standards of guilt.”[411]

44 Covington’s basic argument protecting speech, press and religion, however, would not work here. In fact, the Supreme Court’s ruling in Chaplinsky, at the time, limited rather than expanded First Amendment rights.[412] What resulted from Chaplinsky’s temper was a new constitutional doctrine — fighting words — that defined the boundaries of free speech. In its decision, the Supreme Court dismissed Covington’s traditional arguments, concluding, “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been though to raise any problems. These include the lewd, the obscene, the profane, the libelous, and the insulting or ‘fighting’ words.”[413] The speech uttered by Chaplinsky, while revealing his religious beliefs, Murphy concluded, had more to do with inciting violence than expressing ideas.

45 Public Spaces. In 1941, the Supreme Court heard the first of several cases involving the right of Witnesses to use public spaces, such as sidewalks or parks, for religious worship. In Cox v. New Hampshire, Witnesses were arrested for holding a parade on a public sidewalk without having first secured a permit. In Manchester, New Hampshire, 68 Witnesses were engaged in an “information march,” along downtown sidewalks, carrying signs reading on one side “Religion is a Snare and a Racket” and on the reverse, “Serve God and Christ the King.”[414] Witnesses were also handing out pamphlets to those who passed by. As in the other permit cases, Covington here argued that each Witness in the parade was an ordained minister and thus, was guaranteed the right to his or her free exercise of religion without the prior receipt of a permit. Unlike the other cases, however, this one involved the use of public space rather than private property for preaching. This distinction was important, as Chief Justice Charles Evans Hughes noted, because local governments have the right to impose reasonable time, place and manner restrictions. Although Covington argued here as in other cases that Witnesses had a right to practice their religion in public spaces, Hughes said limits may be placed on such activities without hindering the rights of Witnesses to participate in their chosen religion. Hughes, writing against the Witnesses arguments and for a unanimous Court concluded, “No interference with religious worship or the practice of religion in any proper sense is shown, but only the exercise of local control over the use of streets for parades and processions.”[415]

46 On January 7, 1946, the Supreme Court decided two cases involving the question of where Jehovah’s Witnesses had the right to conduct their door-to-door ministry. In the first case, Grace Marsh, a Jehovah’s Witness, was arrested for street corner witnessing in the business district of Chickasaw, Alabama, a town owned by the Gulf Shipbuilding Corporation. The ordinance Grace Marsh violated, posted in local storefronts, read: “This Is Private Property, and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted.”[416] Covington responded with the same arguments delivered in literature distribution cases that featured municipalities as defendants, simply altering the wording to address the company-owned town. As always, he emphasized the arbitrary nature of the ordinance. The regulations here, Covington argued, “allow the owner of the sidewalks and street arbitrarily to prohibit appellant from distributing thereon in an orderly manner.”[417] Covington also pointed out that Grace Marsh did not hinder the flow of traffic on the sidewalks nor interrupt business in the neighboring stores. The statute in place, he explained, was not narrowly constructed to “prevent a clear, present and substantial danger to the public peace and order, or right of private property.” Instead, the ordinance denied his client “constitutionally guaranteed rights of freedom of speech, press, assembly and worship.”[418] Grace Marsh, just like every other citizen of the United States, Covington wrote, had the “right to use the public ways and streets in the orderly exercise of such freedoms, regardless of the fact that the municipality may own the fee of the property and have absolute control thereof.”[419]

47 The Supreme Court agreed with Covington on this point, ruling that free speech in a company town was just as important as free speech in a town with a traditional municipal government. “Whether a corporation or a municipality owns or possesses the town,” Justice Hugo L. Black wrote for the majority, “the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free.”[420] The Court went on to overturn Grace Marsh’s conviction, with Justice Black stating, “Many people in the United States live in company-owned towns. These people, just as residents of municipalities, are free citizens of their State and country … There is no more reason for depriving these people of the liberties guaranteed by the First and Fourteenth Amendments than there is for curtailing these freedoms with respect to any other citizen.”[421]

48 Marsh, unlike many Witness cases, received a substantial amount of favorable press. Editors of The Christian Century magazine wrote of the Court’s decision in Marsh that it “provides the broadest legal safeguards for the activities of a minority religious body laid down in this or any other country.”[422] Editors of The New Republic joined in with praise for this decision noting that Justice Black in penning the majority opinion “took another long step toward the permanent safeguarding of our democratic rights.” This case, they concluded, was especially important for those in the labor movement as it marked the “first time that property rights have not been held to be all-controlling in a company town.”[423] The American Civil Liberties Union marked this case as a victory of civil rights over property rights.[424]

49 Like Marsh v. Alabama, Tucker v. Texas posed the question of where Jehovah’s Witnesses had the right to distribute literature. Hondo Navigation Village in Medina County, Texas, was owned by the federal government and used for national defense activities, the details of which were not revealed in the case. The appellant in this case was distributing literature house-to-house in the village when he was arrested for violating a trespassing ordinance of the community which made it a criminal offense for a “hawker or peddler” to refuse to leave after having been requested to do so. The manager of the Public Housing Authority told Tucker to leave the premises, and in sticking with Covington’s plan, he refused and was arrested. The appellant, in testimony at the trial court level, repeated Covington’s admonition that he was not a “peddler or hawker” but simply a minister engaged in the distribution of religious literature, a practice protected under the First Amendment.[425] As in Marsh, the Court ruled in favor of the Witnesses. Who owned the property on which an ordinary town functioned made no matter, they concluded. “Certainly neither Congress nor Federal agencies acting pursuant to Congressional authorization may abridge the freedom of the press and religion safeguarded by the First Amendment,” Hugo L. Black wrote for the majority of the Court. “Neither the Housing Act passed by Congress nor the Housing Authority Regulations contain language indicating a purpose to bar freedom of press and religion within villages such as the one here involved,” he added.[426]

50 Two years later in Saia v. New York, the Court handed down a ruling in a Jehovah’s Witnesses case addressing the use of sound equipment to reach people in public spaces. Samuel Saia, a Jehovah’s Witness, was convicted under a local ordinance that made it unlawful for anyone to “maintain or operate … any radio device, mechanical device, or loudspeaker … which is so placed and operated that the sounds coming therefrom can be heard to the annoyance or inconvenience of travelers upon any street or public places or of persons in neighboring premises” unless permission is obtained from the chief of police.[427] Samuel Saia was leading a public worship service, amplified over speakers mounted to his car, when he was arrested. Saia had been granted permission for use of the sound amplifying device for several Sundays prior to his confrontation with police. When his permit expired, Saia applied for a second permit, but was denied because “complaints had been made.”[428] As instructed by the Watchtower Bible and Tract Society, Samuel Saia continued his public lectures without a permit and was subsequently arrested.

51 Covington’s arguments in Saia were both familiar and new. He argued, as he had in every literature distribution case, that the municipal official in charge of granting permits had too much discretion in deciding who would be granted permission for the use of sound devices. He also argued that the ordinance was too broadly drawn, not designating specific time, place or manner restrictions, but rather, imposing a “blanket ban on all outdoor speaking with a sound device.”[429] Covington here, too, reiterated the importance of guaranteeing the public’s right to hear the Witnesses message. “Just as freedom of speech includes the right to distribute,” Covington wrote, “so freedom of speech includes the right to be heard.”[430] Focusing on the facts of this case, Covington argued that sound devices themselves were an extension of freedom of speech. It is not enough, Covington explained, to merely grant the right to free speech. The Court must protect the “effective exercise of freedom of speech.”[431] In Covington’s view, this meant the guaranteed use of sound devices. “Without the use of such devices,” Covington wrote, “the right of free speech is definitely and seriously curtailed and impaired.”[432]

52 Interestingly, the Supreme Court did not consider the issue of breach of peace in this case, even though it was the underlying concern of the ordinance as well as a major point in Covington’s brief. Instead, the Court in its defense of Witnesses rights, focused on a more narrow issue as it had in Lovell and Cantwell. By overturning the conviction against Saia, the Court agreed with Covington’s proposition that the government official in this community had too much latitude over who and why permits would be granted. Justice Hugo L. Black reiterated, “To use a loud-speaker or amplifier one has to get a permit from the Chief of Police. There are no standards prescribed for the use of his discretion.”[433] “Annoyance at ideas can be cloaked in annoyance at sound,” Black concluded. “The power of censorship inherent in this type of ordinance reveals its vice.”[434] The Court also accepted Covington’s arguments in protecting the means by which speech is conveyed. “Loud-speakers are today indispensable instruments of effective public speech,” Black wrote, “The present ordinance would be a dangerous weapon if it were allowed to get a hold on our public life.”[435]

53 In 1951, the Supreme Court decided a Jehovah’s Witnesses case that involved the use of a public park for religious services. Appellants in Niemotko v. Maryland were two Jehovah’s Witnesses who had sought a permit to hold Bible meetings in a park in Havre de Grace, Maryland. While there was no specific ordinance regulating activities in the park, it was custom to seek a permit from the park commissioner for its use. When appellants requested permission for use of the park, their request was denied. The appellants then appealed their request to the city council, which had authority over the decisions made by the park commissioner. Their request was also denied by the city council. As all Witnesses were taught, appellants held their Bible study meetings anyway. They were arrested under a disorderly conduct statute as no ordinance barred them for speaking in the park. No evidence of disorder could be presented.

54 For the members of the Supreme Court, this case validated their earlier decisions, pointing to abuses by local officials given too wide a latitude in deciding who would be granted use of public facilities. Chief Justice Fred Vinson explained, “For the very possibility of abuse, which those earlier decision feared, has occurred here. Indeed, rarely has any case been before this Court which shows so clearly an unwarranted discrimination in a refusal to issue such a license.”[436] Vinson also reconfirmed Covington’s argument that the discriminatory nature of the permit system denied Witnesses the due process of law. Vinson wrote that it was clear the City Council rejected the Witnesses’ request for a permit simply because they did not like the organization or its views. In another victory for the Witnesses, the Court reiterated that all citizens had the right to use public facilities without first being subjected to the bias of government officials. “The right to equal protection of the laws,” he explained, “in the exercise of those freedoms of speech and religion protected by the First and Fourteenth Amendments, has a firmer foundation than the whims or personal opinions of a local governing body.”[437]

55 In 1953, the Supreme Court decided another Jehovah’s Witness case dealing with the issue of who had access to public parks. In Fowler v. Rhode Island, as in Niemotko, a Jehovah’s Witness was leading a public Bible meeting in the local park when he was arrested for violating a local ordinance. Unlike Niemotko, however, there was no issue regarding sound devices in this case. At issue was the appellant’s violation of an ordinance that denied any person from conducting “any political or religious meeting in any public park.”[438] While the wording of this ordinance was questionable at best, what made this case so disconcerting was the unfair application of this ordinance to the Witnesses. During oral arguments before the Supreme Court, the Attorney General conceded that other more traditional religions conducted religious services in the park without incident or arrest. This admission, Justice William O. Douglas concluded, was “fatal” to Rhode Island’s case against the Witnesses, “[f]or it plainly shows that a religious service of Jehovah’s Witnesses is treated differently than a religious service of other sects.” In essence, Douglas explained, this “amounts to the state preferring some religious groups over this one.”[439]

56 This same year in Poulos v. New Hampshire, the Jehovah’s Witnesses challenged another local ordinance that restricted where Witnesses could preach. In this case, William Poulos, a Jehovah’s Witness, held a religious service in a local park after having been denied a permit for such a gathering. The Witness in question conducted the bible meeting only after his permit had been “arbitrarily and unreasonable refused by the City Council.”[440] The city council noted that Poulos’ petition was denied because “they had never received a petition of a religious group to use the public parks.”[441]

57 In the “Brief for Appellant,” Hayden Covington raised four primary questions. First, does a permit system that requires the city council to approve or deny the application of requests constitute an abridgement of free speech, assembly and worship in violation of the First and Fourteenth Amendments? Second, does an ordinance that requires the application of a writ of mandamus or certiorari as the only remedy for an unconstitutional application of the ordinance constitute a violation of the applicant’s right to due process under the federal constitution? Third, if so, does this also violate the appellant’s rights to free speech, assembly and religion? Fourth, are the decisions of the lower courts “based on an adequate nonfederal ground” to support affirmation in this case?[442]

58 While this case was almost identical to Fowler v. Rhode Island, the Court handed down a very different decision, voting to uphold both the ordinance and the Witnesses’ convictions. In Poulos, the Court ruled that even if the appellant had been wrongly denied a permit to use the park, the ordinance itself was not invalid. Justice Stanley Reed refused to extend the preferred position of the First Amendment in this case, instead setting limitations on the rights of free speech, press and religion. “The principles of the First Amendment are not to be treated as a promise that everyone with opinions or beliefs to express may gather around him at any public place and at any time a group for discussion or instruction,” Reed wrote.[443] “It is a non sequitur,” he continued, “to say that First Amendment rights may not be regulated because they hold a preferred position in the hierarchy of the constitutional guarantees of the incidents of freedom.”[444]

59 Justices Black and Douglas strenuously disagreed with Reed’s reasoning. In his dissenting opinion, Black wrote that the appellant should not be punished for holding a public meeting for which his permit had been “arbitrarily and unreasonably denied.” Such an action, Black concluded, “is a subtle use of a creeping censorship loose in the land.”[445] Following Covington’s lead, Justice Douglas reiterated the discriminatory nature of a permit system for matters of speech in his scathing dissent. It does not matter which public official determines the necessity of a permit, Douglas explained, for free speech was conceived by the founders to be “wholly independent of the prior restraint of anyone … For history proved that judges too were sometimes tyrants.”[446]

60 Responding to the starkly divergent decisions in the 1953 cases, Covington told more than 40,000 Witnesses gathered at Yankee Stadium for their annual convention that they should not try to “figure out what the court will do in the future.”[447] Covington explained, “To try to know what the next move of the court will be is like trying to tell when and where lightening is going to strike.” “From now on,” he told the crowd, “just brace yourselves for anything.”[448]

Results of the Witness Cases

1 Most contemporary scholars support the decisions made by the Supreme Court in the Witnesses’ literature distribution and permit cases. In retrospect, these cases can be seen to have expanded the rights guaranteed under the First Amendment. For example, law professor William Shepard McAninch explained, “The Jehovah’s Witnesses have had a profound impact on the evolution of constitutional law, particularly by expanding the parameters of the protection for speech and religion.”[449] Legal scholar Archibald Cox wrote of the legacy of the Witnesses: “[t]he civil rights movement, labor unions, and other protestors against the established order would also benefit from the Jehovah’s Witnesses’ challenges to laws that vest wide discretion local authorities to maintain the peace and public order.”[450]

2 Legal scholars writing at the time of the decisions, however, were split as to whether the Jehovah’s Witnesses cases were rightly interpreted. Several perceptive scholars immediately saw the benefit of the Witnesses cases. For example, Retired District Court Judge Edward F. Waite wrote in 1944 that “present constitutional guarantees of personal liberty … are far broader than they were before the spring of 1938” when Jehovah’s Witnesses cases first reached the Court.[451] Law professors John Mulder and Marvin Comisky concluded as early as 1942 that the Jehovah’s Witnesses, “through almost constant litigation … had made possible an ever-increasing list of precedents concerning the application of the Fourteenth Amendment to freedom of speech and religion.”[452]

3 Many others disagreed vehemently with the Court’s rulings in the Witnesses cases, believing they had gone too far in protecting the rights of a minority group over the rights of the majority’s privacy. Law professor Ralph Dornfeld Owen concluded that the “net result of this sequence of decisions is that the Jehovah’s Witnesses enjoy four freedoms: freedom of the press, freedom of speech, freedom of religion, all of them guaranteed by the Constitution, and freedom to invade the rights of others, guaranteed to them by the majority of the members of the Supreme Court.”[453] Zachariah Chafee Jr. in his well-known work, Freedom of Speech in the United States, wrote of the decisions, “Freedom of the home is as important as freedom of speech. I cannot help wondering whether the Justices of the Supreme Court are quite aware of the effect of organized front-door intrusions upon people who are not sheltered from zealots and imposters by a staff of servants or the locked entrance of an apartment house.”[454] Chafee also believed the Witnesses’ argument that door-to-door proselytizing equated to worship was a stretch. “The possibilities of persuasion are slight,” he wrote, “compared with the certainties of annoyance.”[455] Professor Charles G. Hasson, writing in the Notre Dame Lawyer, agreed. “In some respects the Courts have gone too far,” he said. “The future conduct of the Jehovah’s Witnesses will determine whether or not this judicial latitude was justified.”[456]

4 After almost 20 years and nearly 20 cases before the Supreme Court, Hayden Covington could almost certainly claim victory for his plan. By 1953, Watchtower lawyers had won Witnesses the right to distribute literature door-to-door, on public streets and on streets owned by private corporations and the federal government; the right to carry out these activities without first securing a permit or paying a tax; the right to use sound-amplifying equipment to spread their beliefs, and the right to be protected from continued arrests under unconstitutional ordinances. All of these rights were guaranteed by “standing flat on the Bill of Rights,”[457] and repeating time and again the most basic arguments for freedom of speech, press and religion.

Chapter 5. Contributions

1 Their willingness to use the courts and the Constitution to defend their ways profoundly influenced judicial interpretation of the guarantee of freedom of speech at a critical point in the history of the First and Fourteenth Amendments.

2   — William Shepard McAninch[458]

3 Hayden Cooper Covington and his plan to bring Jehovah’s Witnesses issues before the Supreme Court are unique in the history of First Amendment law in the United States. While the NAACP employed similar techniques in the 1950s when addressing restrictive covenant laws[459] and school desegregation,[460] the Witnesses were the first to instigate a successful, far-reaching plan of what has been termed “vigilant,” “disciplined” or “planned” litigation. The fact that all of these cases addressed First Amendment issues of free speech, press, assembly or religion is unprecedented. By implementing an extensive, detailed legal plan to overturn ordinances that interfered with their evangelical mission, the Watchtower Bible and Tract Society broadened protection under the First Amendment for their members and for all Americans. The overwhelming success of the plan shaped mass media law, the application of the First Amendment, and group litigation in the United States.

No Accident

1 The Watchtower Bible and Tract Society’s achievements in the Supreme Court between 1938 and 1953 were no accident. They were part of a larger plan to use the law to secure and perpetuate the Witnesses’ cause. To accomplish their goal, Judge Joseph Rutherford and Hayden Covington made legal considerations part of religious life. They infused legal thinking into every aspect of the organization’s activities. In essence, law was inculcated into the Witnesses’ belief system. It was incorporated into every daily activity. Witnesses were taught legal procedures in service meetings then applied these tactics day after day in town after town. After the first legal victory in Lovell v. Griffin,[461] law was also made a part of their rhetoric and literature. After Griffin, Witnesses believed they had the right to distribute literature just as sincerely as they believed they were among the chosen few.

2 The Watchtower legal plan was detailed and comprehensive. As Leon Friedman of the American Civil Liberties Union once explained, the Witnesses’ plan “deliberately, calculatedly tested the law.”[462] From the beginning of the plan, Jehovah’s Witnesses were issued identification cards and pamphlets outlining their constitutional rights to lay the foundation for future legal activity. Jehovah’s Witnesses members were instructed which ordinances to follow and which to ignore. Specifically, Witnesses were told to refuse to apply for any permit that interfered with their daily work as such a supplication to the laws of man would surely be an “act of disobedience” to Jehovah God.[463] They were taught how to behave when confronted by law enforcement, how to present themselves during arrest and arraignment, and how to act in court. They were given names and addresses of lawyers willing to assist them in their cause. They were reminded repeatedly when and how to inform Watchtower headquarters of their case and its progress. They were trained to appeal all adverse decisions whether handed down by judge or jury. They were provided with the legal staff and financial resources to appeal their cases to the highest court. Above all, they were told to return day after day to their mission, testing ordinances in city after city. The evidence in this case is clear. The Jehovah’s Witnesses created, implemented, and carried through to a successful conclusion the most wide-spread plan to develop First Amendment freedoms in the history of the United States.

3 The calculated way in which Hayden Covington and the Jehovah’s Witnesses challenged legal restrictions undermines previous assumptions advanced by legal scholars about First Amendment litigants. While legal scholars have perpetuated the myth of the hapless First Amendment litigant who fell into legal trouble without prior knowledge of his or her violation,[464] the Jehovah’s Witnesses proved accidental Supreme Court cases are rare. Litigants in civil liberties cases that reach the high court infrequently violate ordinances without first knowing their beliefs or actions conflict with the laws of mainstream society. In fact, many appellants in First Amendment Supreme Court cases were wholly aware of their potential violations before they were arrested.[465] The Jehovah’s Witnesses make this point clear. Clara Schneider, Daisy Largent, Roscoe Jones, Grace Marsh, and Lester Follett all knew they were violating the law by carrying forth their ministry. None of them accidentally stumbled into trouble. Each, as Covington once said, “contested legally, full scale, all the way through, the application of these laws.”[466]

Covington’s Role

1 Had Hayden Covington not joined the Watchtower staff in 1939, Rutherford’s initial plan to advance the Jehovah’s Witnesses membership and beliefs through use of the law would not have resulted in such a favorable outcome. Olin Moyle, Covington’s predecessor, did not always approve of Judge Rutherford’s confrontational tactics, and would clearly have never supported such a vigorous, nationwide litigation strategy. Covington, on the other hand, brought as much fire to the law as Rutherford did to religion, and the two were a potent force. In addition, Nathan Knorr, Rutherford’s successor, wanted most of all to restore respectability to the organization. He was tired of battling the “odd,” “fanatical,” and “zealot” stereotypes imposed on the Witnesses and perpetuated by Rutherford’s brash tactics. When Knorr took over the reigns of the Watchtower in 1942, however, Covington’s plan was already in full motion, and Knorr had little opportunity to stop it. Witnesses had been arrested; cases had been lost; appeals had been made; Supreme Court victories had been achieved. Most important, the entire Jehovah’s Witnesses population was under strict orders as to how to act and react to legal situations. There was no going back. With Covington in charge of the legal department, Judge Rutherford’s initial idea would continue to be applied until there was no one left to fight.

2 Hayden Covington, although supported by a dedicated staff and thousands of Witnesses in the field, was a one-man legal machine. Covington personally wrote legal manuals for Witnesses in the field, read hundreds of letters each day that poured in from congregations around the country, conducted all of the research for pending litigation,[467] and hand-picked litigants for test cases. Covington contacted regional lawyers to handle appeals, wrote Supreme Court briefs, and in his spare time, argued cases before the Court. There would be no Jehovah’s Witnesses legal plan, no Supreme Court victories, without Hayden Covington.

3 Aside from Covington’s personal skill and dedication, the Watchtower legal plan was successful in large part because of the faithfulness of Watchtower members. Jehovah’s Witnesses’ beliefs dictated that members never question authority, and most believed sincerely that Watchtower leaders would never lead them astray.[468] So, for example, Jehovah’s Witnesses canvassing in hostile areas never questioned the wisdom of Covington’s motives. Like all other dictates from Watchtower Headquarters, Witnesses working in the field followed each order precisely. Each member could be counted on to refuse to secure permits, argue for certain rights, and most importantly appeal all adverse decisions.

The Fate of Witnesses; The Fate of Media

1 Hayden Covington knew the literature distribution and permit cases were not solely about the rights of a small religious sect to conduct their version of worship.[469] At their heart, these cases were about the unfettered flow of information.[470] To advance this point, in briefs and oral arguments, Covington tied the fate of the Witnesses to that of mainstream media. He intentionally made the questions presented in the literature distribution and permit cases encompass more than the Jehovah’s Witnesses. While Covington was working primarily to protect the circulation of Watchtower publications, he knew and advanced the proposition that this protection should be afforded to everyone, including the press. Covington explained in the brief for Jones v. Opelika, “There is no difference between proportionately taxing the publishing corporation having the larger circulation and imposing the license tax or fee upon a boy or other person distributing pamphlets or leaflets. The result, regardless of motives, is to discourage, hinder or destroy circulation.”[471]

2 Covington did not limit his arguments to an individual delivering messages on a street corner or delivering pamphlets door-to-door. He asked the Supreme Court to expand First Amendment freedoms to cover both the right to speak and the right to hear. He pushed the Court to make the free circulation of information a right for individuals as well as media.

3 Hayden Covington saw the Fourteenth Amendment as his proverbial key to the Kingdom of Heaven. If Covington could convince the Supreme Court to apply the incorporation doctrine to practical situations involving a combination of speech, press and religion, namely local ordinances that kept the Witnesses from reaching the public with the Word of Jehovah God, then he could ensure both everlasting life for his brothers and expand protections to all citizens. Covington had great faith that he could accomplish this task. First, Covington believed the Court was prepared to question the current interpretation of First Amendment rights. The Supreme Court had been slowly moving toward the practical application of the First Amendment to state and local ordinances since its ruling in Gitlow v. New York[472] in 1925. Second, as President Franklin D. Roosevelt replaced the conservative bloc of the Supreme Court[473] with new, more liberal justices, Covington’s chances for securing victories in the area of civil liberties increased. Roosevelt appointed four justices with reputations as civil rights advocates — Hugo L. Black, Felix Frankfurter, William O. Douglas, and Robert Jackson — to replace the judicially conservative Four Horsemen. In 1940, Frank Murphy, the former head of the Civil Rights Division of the Justice Department also joined the Court. As Roosevelt began appointing more liberal justices, Chief Justice Charles Evans Hughes, always a supporter of minority rights,[474] now had a majority of the Court on his side to address civil rights issues.

4 Covington’s self-confidence on the issue of incorporation proved to be more substance than bluster. When Covington saw the success of the incorporation argument in the early Jehovah’s Witnesses cases, he challenged the Court to include religion as well as speech and press under these protections. In Cantwell v. Connecticut,[475] Covington succeeded in convincing the Supreme Court that the Fourteenth Amendment applied to the free exercise of religion in addition to free speech and press.[476] No longer were only religious beliefs protected under the First Amendment; now too, were the actions of worship.[477]

How the Plan Influenced Media

1 While many legal scholars look upon Witnesses cases as protecting freedom of religion in the United States, their contribution to the First Amendment goes far beyond religion. The importance of the Witnesses to contemporary media lies in their protection of the circulation of information. Without the Witnesses’ legal battles, many speech and press freedoms often taken for granted would be limited or eliminated.

2 Without the Witnesses’ legal plan:

3   • The door-to-door distribution of information, spoken or written, could be curtailed or extinguished by government officials through arbitrary permit systems.

4   • Taxes and fees could be placed on the circulation of information.[478]

5   • Individuals criticizing religious beliefs could be arrested and convicted.

6   • Individuals dispersing information in public places could be stopped if someone other than the individual owned the property.

7   • Individuals would have a right to speak, but not necessarily a right to be heard.

8 But these are only the direct results of Witnesses litigation. Even more important, these cases provided the foundation on which hundreds of later First Amendment cases now rest.

9 Every form of media has been shaped in some way by the Jehovah’s Witnesses literature distribution and permit cases. For example, these Supreme Court cases directly influenced decisions involving the distribution of newspapers through news racks placed on public sidewalks.[479] The Supreme Court also used the rulings in these cases to lessen burdens of libel, taxation and prior restraint placed on newspapers,[480] expand protection of commercial speech,[481] non-commercial speech[482] and mixed messages[483] by advertisers, and broaden the meaning of the First Amendment to include motion pictures.[484] These cases also currently influence legal questions surrounding the Internet, as no medium is more reliant on the unhindered circulation of information than the Web.

10 The Jehovah’s Witnesses literature distribution and permit cases also led to decisions of certain interest to the media, such as what constitutes a public space,[485] who has access to public spaces,[486] and whether journalists have greater access to public spaces.[487] The Supreme Court also considered Witnesses cases when deciding the extent of the right to express offensive religious or political beliefs.[488]

11 Contemporary mass media owe much to the Jehovah’s Witnesses. As media businesses race to connect content with audiences, never has the unhindered circulation of information been so important. Now, more than ever, Chief Justice Hughes’ statement in Lovell v. Griffin that “without the circulation, the publication would be of little value”[489] holds true.

12 We assume today that all mass media have always been protected under the First Amendment. This is far from true. While limited protection of newspapers and magazines has existed since the Bill of Rights was adopted, all other media have gradually been incorporated into the First Amendment through cases such as those brought by the Jehovah’s Witnesses. To best understand the impact of the Witnesses’ legal plan, consider the limited definition of press (newspapers and magazines), and the limited definition of distribution (newsboys and postal service) included in the ordinances challenged by Witnesses. It is quite possible that without the Jehovah’s Witnesses, newspaper racks, movies, rock concerts, the Internet, advertisements for health products, direct mail, and even take-out menus could be strictly regulated or eliminated.[490] Of course, we may wish some of these forms of media would be curtailed, just as citizens 60 years ago wished the Witnesses would stop knocking on their doors. Such is the burden of living in a free society. Or, as political scientist Hollis W. Barber concluded in 1947: “[T]he effort is a small enough price to pay for the assurance of living in a community where diversity of thought is still tolerated.”[491]

13 At the end of the day, it was not a billion dollar media business that expanded the meaning of the First Amendment. It was a small, confrontational religious sect. The First Amendment was not broadened to sell more magazines, reach more viewers or expand a social network. It was broadened, as the founders had once envisioned, to protect the beliefs of individuals from government intrusion. Media businesses just got lucky.

How the Plan Influenced the First Amendment

1 In addition to shaping media law, the Jehovah’s Witnesses Supreme Court decisions greatly clarified the meaning of the First Amendment. Until the Jehovah’s Witnesses literature distribution and permit cases, issues of free speech, press, religion and assembly had been addressed separately. In these cases, the issues were so intertwined as to become a broader idea, what we now think of as free expression, the almost wholly unhindered protection of beliefs, thoughts, and practices. These decisions were among the first in the history of First Amendment to provide explanations and set boundaries as to the depth and breadth of free expression — what should be tolerated and what could be prosecuted.[492]

2 One of the most significant outcomes of the Jehovah’s Witnesses’ cases was the reinforcement of the “preferred position” theory of the First Amendment in Chief Justice Stone’s dissent in the Opelika case.[493] By identifying the First Amendment as more important than other rights guaranteed under the constitution, the Supreme Court tilted the scales of justice toward free expression. This new way of examining First Amendment issues was even more important because it became a permanent addition to the Court’s decision-making process. While other theories of the First Amendment have risen and fallen in favor among justices over the years, the “preferred position” theory has stayed with the Court. When issues involving conflicting constitutional rights arise today, many justices still use the “preferred position” theory to balance the rights involved.

3 The Supreme Court also developed an important constitutional test from Witnesses decisions, that of the “least restrictive means.” Justices ruled in multiple literature distribution and permit cases that when a local ordinance had the effect of limiting free expression, it must be crafted in the least restrictive way possible. So, for example, if a local government instituted an ordinance with the goal of reducing litter, it must restrict the dropping of debris on the ground, not the distribution of all printed matter.[494] Legislation must be constructed as narrowly as possible to infringe as little as possible on rights guaranteed by the constitution. These rulings were essentially a warning to legislators to be careful when crafting ordinances that may have the secondary effect of limiting free expression. The ultimate result of these cases was the lifting of onerous regulations that hindered all media from freely circulating their messages.

How the Plan Influenced Organizational Litigation

1 “Disciplined,” “vigilant,” or “planned” litigation, organized and implemented to advance a cause, was first successfully carried out on a large scale by the Jehovah’s Witnesses during the years of Covington’s tenure. While a handful of other organizations had used similar legal strategies in the 1930s, no other group challenged so many laws using so many litigants over such a long period of time to advance a single cause. The Witnesses’ legal plan clearly set an example for other minority groups challenging the status quo through use of the law.

2 The tactic of instigating lawsuits, carried out so skillfully by the Witnesses, has been employed by many other civil rights organizations in the past 70 years. The NAACP Legal Defense Fund used a similar plan to secure rights for African-Americans in the areas of housing, transportation, education, voting and service on juries.[495] Feminist organizations such as the National Organization of Women have used and currently use such tactics to further women’s rights in the areas of employment equality, privacy and heath care. Like the Jehovah’s Witnesses, gay rights advocates have also systematically challenged local ordinances that discriminate against one group over another.

3 The Watchtower Bible and Tract Society’s legal plan was also one of the first to combine litigants into what is now called a “class action” lawsuit. In cases such as Douglas v. City of Jeannette, Watchtower lawyers filed briefs on behalf of an individual as well as all Jehovah’s Witnesses within a state to protect them from the application of unconstitutional ordinances.[496] Today it is commonplace to hear of class action suits with appellants constituting almost every kind of class, including employees, drivers, smokers, and medication recipients. While class action suits are now primarily associated with civil lawsuits, the idea of a “class” of individuals began with the civil liberties movement and litigants such as African-Americans and Jehovah’s Witnesses.

4 It should also be noted that the Watchtower Bible and Tract Society has recently re-instituted its legal plan (on a smaller scale) to challenge ordinances similar to those faced in the 1940s. The Witnesses legal plan laid dormant for many years as Witnesses had little left to challenge in the area of literature distribution and permit regulation. Unfortunately, First Amendment freedoms garnered in past cases must often be re-established in later years as courts and attitudes change. As in the 1940s, however, the Witnesses have shown and the Supreme Court has upheld that local ordinances requiring a permit for the distribution of information are still unconstitutional. In 2002, the Supreme Court ruled that Jehovah’s Witnesses could not be forced to register with city officials before distributing literature door-to-door.[497] Hayden Covington’s legacy continues.

In the End

1 The Watchtower Bible and Tract Society’s legal plan alone was significant in its contribution to the study of First Amendment law. Never before had any organization planned such a systematic, widespread testing of local ordinances. Never before had the actions of any organization so contradicted the view of legal scholars who claimed First Amendment litigants were hapless, helpless victims. But, the successful outcome of the Witnesses’ cases in the Supreme Court made the study of the legal plan even more important. Because of the Watchtower legal plan, thousands of local ordinances preventing the distribution of information were overturned or rewritten; the meaning of the First Amendment was expanded to include the right to hear as well as the right to speak; the Fourteenth Amendment for the first time was applied to the free exercise of religion; media were guaranteed the right to distribute their products; and group litigation in the Supreme Court was initiated on a broad scale. Political scientist William J. Whalen, writing in 1962, summed up the contributions of the Witness legal plan. “The by-product of all these riots, outrages, arrests … and court cases,” he wrote, “was a spelling out of constitutional freedoms for all Americans … For this we can thank the Witnesses of Jehovah and their canny and persistent lawyers.”[498]

2 Looking back on the Jehovah’s Witnesses’ literature distribution and permit cases, one thing becomes clear. The Watchtower Bible and Tract Society purposefully changed the laws of the land. The Jehovah’s Witnesses instituted a legal plan that was carefully designed, comprehensive in scope, and carried out by thousands of Jehovah’s Witnesses across the nation. This plan expanded the Supreme Court’s interpretation of the First Amendment, shaped contemporary mass media law, and dramatically influenced organizational litigation. The significance of their achievement can no longer be overlooked. Legal scholars will have to rewrite their books. Lawyers will have to rethink their arguments. Citizens and media professionals might write a letter of thanks to the headquarters in Brooklyn. Because Watchtower lawyers did more than protect the religious practices of its members, they established in law an important ideal for all citizens in a democratic nation — that the flow of information must always be unhindered. For this, we all owe a debt of gratitude to this often-annoying, sometimes-intolerant religious sect.

Bibliography

Manuscript Collections

1 American Civil Liberties Union Correspondence, The Baldwin Years 1920–1950, Reels 147–215, ACLU Files, Seeley G. Mudd Library, Princeton University, Princeton, NJ.

Interviews

1 Bergman, Jerry. Interview with Author. 18 May 2002. Tape Recording. Montecello, Ohio.

2 Covington, Dorothy. Interview with Author. 23 September 2005, Cincinnati, Ohio.

3 Covington, Hayden Cooper. Interview with Jerry Bergman, 1973. Cincinnati, Ohio.

4 Murray, Jerry. Interview with Watchtower Lawyer Hayden Covington. Tape Recording. 19 November 1978.

5 Elfers, Lynn. Interview with Author. September 23, 2005, Cincinnati, Ohio.

Public Addresses

1 Quackenbush, Colin. Hayden Covington Memorial. Tape recording. Manhattan Beach, CA: Free Minds, Inc., 1979.

2 Rutherford, Joseph Franklin. Government and Peace. Tape recording. The Watchtower Bible and Tract Society, 1939.

3 ________. House-to-House Phonograph Records: 1934–1942. Digital recording. Manhattan Beach, CA: Free Minds, Inc., 2001.

Correspondence

1 Cope, W. D. Letter to President of the Board of Trustees, Waynoka, Oklahoma, “Ordinance No. 220.” (Town of Waynoka, Oklahoma). 3 June 1940. Submitted with letter from Rev. Edward S. Trent to American Civil Liberties Union. 7 June 1940. ACLU Archives, Reel 190.

2 Carson, George. Letter to The American Civil Liberties Union. 26 August 1941. ACLU Archives, Reel 200.

3 Frankel, Osmond K. Letter to American Civil Liberties Union. 1 May 1942. ACLU Archives, Reel 207.

4 Maddux, Thomas E. Letter to Hayden Covington. 12 January 1942. ACLU Archives, Reel 207.

5 Moyle, Olin R. Letter to A. L. Wirin. 7 June 1937. ACLU Archives, Reel 151.

Books, Pamphlets and Dissertations

1 American Civil Liberties Union. Freedom in Wartime. New York: American Civil Liberties Union, June 1943.

2 ________. Jehovah’s Witnesses and the War. New York: American Civil Liberties Union, January 1943.

3 ________. Guide for ACLU Litigation. Mimeographed paper. New York: American Civil Liberties Union, March 1970.

4 ________. Liberty’s National Emergency: The Story of Civil Liberty in the Crisis Year 1940–1941. New York: American Civil Liberties Union, June 1941.

5 ________. The Bill of Rights in War. New York: American Civil Liberties Union, June 1942.

6 Barth, Alan. Prophets with Honor: Great Dissents and Great Dissents in the Supreme Court. New York: Vintage Books, 1974.

7 Beckford, James A. The Trumpet of Prophecy: A Sociological Study of Jehovah’s Witnesses. New York: John Wiley and Sons, 1975.

8 Bergman, Jerry. Jehovah’s Witnesses: A Comprehensive and Selectively Annotated Bibliography. Westport, CT: Greenwood Press, 1999.

9 Biddle, Francis. In Brief Authority. Garden City, NY: Doubleday & Co., Inc., 1962.

10 Blackwell, Victor V. O’er the Ramparts They Watched. New York: Carlton Press, 1976.

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13 Braden, Charles Samuel. These Also Believe: A Study of Modern American Cults and Minority Religious Movements. New York: Macmillan Co., 1949.

14 Brody, David. In Labor’s Cause: Main Themes on the History of the American Worker. New York: Oxford University Press, 1993.

15 Carr, Robert K. Federal Protection of Civil Rights: Quest for a Sword. New York: Cornell University Press, 1947.

16 Chafee, Jr. Zechariah. Free Speech in the United States. Cambridge, MA: Harvard University Press, 1941.

17 Clark, Elmer T. The Small Sects of America. New York: Abingdon Press, 1937.

18 Cole, Marley. Jehovah’s Witnesses: The New World Society. New York: Vantage Press, 1955.

19 Covington, Hayden C. Defending and Legally Establishing the Good News. Brooklyn, NY: Watchtower Bible and Tract Society, 1950.

20 Cox, Archibald. The Court and the Constitution. New York: Houghton Mifflin Co., 1987.

21 Curry, Melvin D. Jehovah’s Witnesses: The Millenarian World of the Watch Tower. New York: Garland Publishing, Inc., 1992.

22 Douglas, William O. The Right of the People. New York: Doubleday & Company, Inc., 1958.

23 ________. An Almanac of Liberty. Garden City, NJ: Doubleday & Co., Inc., 1954.

24 Drinker, Henry S. Some Observations on the Four Freedoms of the First Amendment: Freedom of Speech, Freedom of the Press, Freedom of Assembly and Petition, Freedom of Religion. Boston: Boston University Press, 1957.

25 Eisinger, Chester E. Ed. The 1940s: Profile of a Nation in Crisis. New York: Anchor Books, 1969.

26 Emerson, Thomas I. Toward a General Theory of the First Amendment. 2nd Ed. New York: Random House, 1966.

27 Erenberg, Lewis A. and Susan E. Hirsen. Eds. The War in American Culture: Society and Consciousness During World War II. Chicago: University of Chicago Press, 1996.

28 Ernst, Moris L. The Great Reversals. New York: Weybright and Talley, 1973.

29 Ferm, Vergilius. Ed. Religion in the Twentieth Century. New York: Philosophical Library, 1948.

30 Green, Harvey. The Uncertainty of Everyday Life 1915–1945. New York: Harper Collins Publishers, 1992.

31 Harrison, Barbara Grizzuti. Visions of Glory: A History and a Memory of Jehovah’s Witnesses. New York: Simon and Schuster, 1978.

32 Herberg, Will. Protestant, Catholic, Jew: An Essay in American Religious Sociology. New York: Doubleday and Co., 1955.

33 Irons, Peter. “Here Comes Jehovah!” The Courage of their Convictions. New York: The Free Press, 1988.

34 Jehovah’s Witnesses I: The Early Writings of J. F. Rutherford, Melton Ed. New York: Garland Publishing, 1990.

35 Jeffries, John W. Wartime America: The World War II Home Front. Chicago: I. R. Dee, 1996.

36 Kaplan, William. State and Salvation: The Jehovah’s Witnesses and their Fight for Civil Rights. Toronto: University of Toronto Press, 1989.

37 Kim, Richard Chong. Jehovah’s Witnesses and the Supreme Court: An Examination of the Cases Brought Before The United States Supreme Court Involving The Rights Claimed By Jehovah’s Witnesses, From 1938–1960. Ph.D. Dissertation. The University of Oklahoma, 1963.

38 Konvitz, Milton R. Fundamental Liberties of a Free People: Religion, Speech, Press, Assembly. Ithaca, NY: Cornell University Press, 1957.

39 Lamont, Corliss. Freedom is a Freedom Does: Civil Liberties Today. New York: Horizon Press, 1956.

40 Lamson, Peggy. Roger Baldwin: Founder of the American Civil Liberties Union. Boston: Houghton Mifflin Co., 1976.

41 Magnani, Duane and Arthur Barrett. Eyes of Understanding. Clayton, CA: Witness, Inc., 1980.

42 Manwaring, David R. Render Unto Caesar: The Flag Salute Controversy. Chicago: University of Chicago Press, 1962.

43 Marnell, William H. The First Amendment: The History of Religious Freedom in America. New York: Anchor Books, 1966.

44 Moehlman, Conrad H. The Wall of Separation Between Church and State: A Historical Study of Recent Criticism of the Religious Clause of the First Amendment. Boston: Beacon Press, 1951.

45 Morey, Robert A. How to Answer a Jehovah’s Witness. Minneapolis, MN: Bethany Fellowship, 1980.

46 Moyle, Olin R. Liberty to Preach. Brooklyn, NY: Watchtower Bible and Tract Society, 1939.

47 Muir, Jr., Malcolm. Ed. The Human Tradition in the World War II Era. Wilmington, DE: SR Books, 2001.

48 Newton, Merlin Owen. Armed with the Constitution: Jehovah’s Witnesses in Alabama and the U.S. Supreme Court 1939–1946. Tuscaloosa: The University of Alabama Press, 1995.

49 Penton, M. James. Apocalypse Delayed: The Story of the Jehovah’s Witnesses. 2nd Ed. Toronto: University of Toronto Press, 1997.

50 Peters, Shawn Francis. Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution. Lawrence, KS: University of Kansas Press, 2000.

51 Pfeffer, Leo. Church, State and Freedom. Boston: Beacon Press, 1953.

52 ________. God, Caesar and the Constitution: The Court as Referee of Church-State Confrontation. Boston: Beacon Press, 1975.

53 Pike, Royston. Jehovah’s Witnesses: Who They Are, What They Teach, What They Do. New York: Philosophical Library, 1954.

54 Polenberg, Richard. The Era of Franklin D. Roosevelt, 1933–1945: A Brief History with Documents. Boston: Bedford / St. Martin’s, 2000.

55 Remnick, David. King of the World: Muhammad Ali and the Rise of an American Hero. New York: Random House, 1998.

56 Roche, John P. Courts and Rights: The American Judiciary in Action. 2nd Ed. New York: Random House, 1966.

57 ________. The Quest for the Dream: The Development of Civil Rights and Human Relations in Modern America. New York: Macmillian Company, 1963.

58 Roosevelt, Franklin D. The Public Papers and Addresses of Franklin D. Roosevelt, 1941 Volume. New York: Harper Brothers, 1950.

59 Rutherford, Joseph Franklin. Deliverance. Brooklyn: NY: Watchtower Bible and Tract Society, 1926.

60 ________. Enemies. Brooklyn, NY: Watchtower Bible and Tract Society, 1938.

61 Schlesinger, Jr. Arthur. The Age of Roosevelt: The Politics of Upheaval. Boston: Houghton Mifflin Company, 1960.

62 Schwartz, Bernard. The Supreme Court: Constitutional Revolution in Retrospect. New York: The Ronald Press Co., 1957.

63 Smolla, Rodney A. Free Speech in An Open Society. New York: Vintage Books, 1992.

64 Sorauf, Frank J. The Wall of Separation: The Constitutional Politics of Church and State. Princeton, NJ: Princeton University Press, 1976.

65 Sperry, Willard L. Religion in America. Boston: Beacon Press, 1946.

66 Stokes, Anson Phelps. Church and State in the United States. New York: Harper & Brothers, 1950.

67 Stroup, Herbert Howard. Jehovah’s Witnesses. New York: Columbia University Press, 1945.

68 Van Buskirk, Michael. The Sandcastle of Jehovah’s Witnesses. Santa Ana, CA: Caris, 1975.

69 Walker Samuel. In Defense of American Liberties: A History of the ACLU. New York: Oxford University Press, 1990.

70 Warren, Russell A. Outnumbered: Exploding the Myth of 144,000. Published by Author, 1984.

71 Wasby, Stephen L. Race Relations Litigation in an Age of Complexity. Charlottesville, VA: University of Virginia Press, 1995.

72 Watchtower Bible and Tract Society. Advice for Kingdom Publishers. Brooklyn, NY: Watchtower Bible and Tract Society. 1939.

73 ________. Freedom of Worship. Brooklyn, NY: Watchtower Bible and Tract Society, 1943.

74 ________. Jehovah’s Servants Defended. Brooklyn, NY: Watchtower Bible and Tract Society, 1941.

75 ________. Jehovah’s Witnesses in the Divine Purpose. Brooklyn, NY: Watchtower Bible and Tract Society, 1959.

76 ________. Make Sure of All Things. Brooklyn, NY: Watchtower Bible and Tract Society, 1953.

77 ________. Order of Trial. Brooklyn, NY: Watchtower Bible and Tract Society, 1933.

78 ________. Yearbook. Brooklyn, NY: Watchtower Bible and Tract Society, 1946.

79 ________. Yearbook of Jehovah’s Witnesses. Brooklyn, NY: Watchtower Bible and Tract Society, 1939.

80 Watters, Randall. Thus Said the Governing Body of Jehovah’s Witnesses. Manhattan Beach, CA: Free Minds, Inc., 1981.

81 Whalen, William J. Armageddon Around the Corner: A Report on Jehovah’s Witnesses. New York: The John Day Company, 1962.

82 Timothy White. A People For His Name: The Jehovah’s Witnesses and an Evaluation. New York: Vantage Press, 1967.

Periodicals

1 “18,000 at Garden Religious Rally See Battle; 4 Hurt, 5 Arrested, Scores Ejected by Police.” The New York Times. 26 June 1939, 1.

2 Amidon, Beulah. “Can We Afford Martyrs?” Survey Graphic. September 1940, 77.

3 “A Test of Freedom.” The New York Times. 10 June 1942, 20.

4 “About-Face to Freedom.” New Republic. 24 May 1943, 693–94.

5 “Ban on Parade is Upheld.” The New York Times. 1 April 1941, 23.

6 Barber, Hollis W. “Religious Liberty v. Police Power.” The American Political Science Review. 41 (April, 1947): 226–247.

7 Bergman, Jerry. “Introduction: The Challenge to Religious Freedom Introduction to Rutherford’s Works,” in Jehovah’s Witnesses I: The Early Writings of J. F. Rutherford, Melton Ed. (New York: Garland Publishing, 1990).

8 ________. “The Modern Religious Objection to Mandatory Flag Salute in America.” Journal of Church and State. 39 (Spring 1997): 215–236.

9 Beth, Loren P. “Toward a Modern American Theory of Church-State Relationships.” Political Science Quarterly. 70 (December 1955): 573–597.

10 “Big Week for ‘Witnesses’.” Newsweek. 18 August 1941, 50.

11 “Blot Removed.” Time. 21 June 1943, 16.

12 Boudin, Louis B. “Freedom of Thought and Religious Liberty under the Constitution.” Lawyers Guild Review. 4 (7 June 1944): 9–24.

13 “Breeding Peace Martyrs in Cradle: Children of Jehovah’s Witnesses Refuse to Salute the Flag.” The Literary Digest. 2 May 1936, 18.

14 “Chief Justice Holds Religious Liberty Is Threatened.” The Christian Century. 17 June 1942, 771.

15 “Civil Liberty Endangered.” The Christian Century. 24 June 1942, 798–99.

16 “Civil Rights v. Property.” The New Republic. 21 January 1946, 69.

17 “Constitutional Law — Due Process Under the Fourteenth Amendment — Freedom of Religion, Speech, and Assembly.” Minnesota Law Review. 32 (1948): 498–502.

18 Côté, Pauline and James T. Richardson. “Disciplined Litigation, Vigilant Litigation, and Deformation: Dramatic Organization Change in Jehovah’s Witnesses.” The Journal for the Scientific Study of Religion. 40 (March, 2001): 11–25.

19 “Court Will Review Tax on U.S. Judge.” The New York Times. 4 April 1939, 15.

20 Cupples, H. L. “Protection of Personal Liberties Under the Fourteenth Amendment: The Flag Salute.” George Washington Law Review. 8 (May 1940): 1094–1097.

21 Cushman, Robert E. “Constitutional Law in 1939–1940.” The American Political Science Review. 35 (April 1941): 250–283.

22 ________. “Constitutional Law in 1940–1941.” The American Political Science Review. 36 (April 1942): 263–289.

23 Dilliard, Irving. “Salute to the Court.” The New Republic. 1 March 1943, 276–77.

24 “Eight of Jehovah’s Witnesses Fined $50 Each by Mayor; Counsel For Religious Sect Furnished Bail, Will Appeal.” News-Dispatch (Jeannette, Pennsylvania). 27 February 1940.

25 “Face the Facts,” Time. 19 September 1938, 52.

26 Fainstein, Harry M. “Current Constitutional Law Decisions of the United States Supreme Court.” Southern California Law Review. 14 (1940): 56–76.

27 “Flag Salute Law Ruled Invalid.” Washington Post. 15 June 1943, 1.

28 “Griffin Jails 82 for Sect Tracts,” Atlanta Georgian, 16 March 1936.

29 Greenhouse, Linda. “Court Strikes Down Curb on Visits from Jehovah’s Witnesses.” The New York Times. 18 June 2002, 12(A).

30 Harris, Richard. “I’d Like to Talk to You for a Minute.” The New Yorker. 16 June 1956, 72–105.

31 Hasson, Charles G. “Notes — Constitutional Law — Jehovah’s Witnesses.” Notre Dame Lawyer. 22 (November 1946): 82–94.

32 “High Court Voids Jehovah Sect Curb.” The New York Times. 21 May 1940, 25.

33 High, Stanley. “Armageddon, Inc.” The Saturday Evening Post. September 14, 1940, 18–58.

34 Holmes, John Haynes. “The Case of Jehovah’s Witnesses.” The Christian Century. 17 June 1940, 896–898.

35 Howerton, Huey B. “Jehovah’s Witnesses and the Federal Constitution.” Mississippi Law Journal. 17 (March-May 1946): 347–371.

36 J.A.W., “Religious Freedom and the Jehovah’s Witnesses.” Virginia Law Review. 34 (January 1948): 77–83.

37 “Jehovah’s Witnesses Cases Extend Religious Liberty.” The Christian Century. 23 January 1946, 100–01.

38 “Jehovah’s Witnesses: Holding Doomsday’s at Hand, Sect Steps up Propaganda.” Newsweek. 26 June 1939, 29.

39 “Jehovah’s Witnesses Serve Cause of Civil Liberty.” The Christian Century. 28 June 1944, 764.

40 “Jehovah’s Witnesses: Victims or Front?” The Christian Century. 26 June 1940, 813.

41 “Jehovah’s Witnesses Who Refuse to Salute U.S. Flag, Hold Their National Convention.” Life. 12 August 1940, 20–21.

42 Leckrone, Walter. “Jehovah’s Witnesses Flourish Despite Many Patriotic Flareups Against Their Sect.” The Detroit News. 24 July 1940.

43 Leek, J. H. “Due Process and the Fifth and Fourteenth Amendments.” Political Science Quarterly. 60 (June 1945): 188–204.

44 Logan, Malcolm. “Jehovah’s Witnesses in Big Business Category.” New York Post. 17 July 1940. In ACLU Archives, Reel 192.

45 ________. “Jehovah’s Witnesses Glory in ‘Martyrdom’.” New York Post. 16 July 1940. In ACLU Archives, Reel 192.

46 ________. “Jehovah’s Witnesses High-Pressure Satan — and Customers.” New York Post. 15 July 1940. In ACLU Archives, Reel 192.

47 McAninch, William Shepard. “A Catalyst for the Evolution of Constitutional Law: Jehovah’s Witnesses and the Supreme Court.” University of Cincinnati Law Review. 55 (Spring 1987): 997–1077.

48 McGinnis, H. G. “Rutherford and His Witnesses Find You Catholics a Bad Lot,” America. 15 February 1941: 512.

49 “Maine Mob Burns Jehovah Sect Home.” The New York Times. 10 June 1940: 19.

50 “Marching to Armageddon.” Time. 11 August 1958, 39–40.

51 Mario, Marty E. “Sects and Cults.” Annals. 132 (November 1960).

52 Miller, William Lee. “Religion and the American Way of Life.” Religion and the Free Society. New York: Fund for the Republic, 1958, 3–20.

53 Moley, Raymond. “The Boot Is On the Other Leg.” Newsweek. 29 June 1942, 68.

54 Mulder, John E. and Marvin Comisky. “Jehovah’s Witnesses Mold Constitutional Law.” Bill of Rights Review. 2 (Summer 1942): 262–68.

55 “No Kingdom of God for Connersville.” The Christian Century. 30 April 1941, 581.

56 “No License Needed to Pass Circulars.” The New York Times. 29 March 1938, 7.

57 “Ominous Decision.” Time. 22 June 1942, 55.

58 “Our Freedoms Ruled Limited: High Court Backs Curbs on Sect.” The New York Times. 9 June 1942, 1 and 15.

59 Owen, Ralph Dornfeld. “Jehovah’s Witnesses and Their Four Freedoms.” University of Detroit Law Journal. 14 (March 1951), 111–113.

60 “Publishers Urge Court Reversal.” The New York Times. 4 September 1942, 21.

61 “Religious Freedom.” Washington Post. 16 June 1943, 16.

62 “Religious Freedom, Flag Salute in Public Schools.” St. John’s Law Review. 15 (November 1940): 95–97.

63 “Religious Liberty under the Constitution of the United States.” Michigan Law Review. 39 (Nov. 1940): 149–152.

64 Rotnem, Victor W. and F. G. Folsom, Jr. “Recent Restrictions Upon Religious Liberty,” American Political Science Review. (December, 1942): 1053–1069.

65 Rutherford, Joseph F. “Drama of Vengeance,” The Watchtower. 1 January 1941: 8.

66 Rutherford, Joseph F. “Watchtower Bible College Opens,” The Watchtower. 15 February 1943: 62.

67 “Rutledge Joins Supreme Court; Civil Liberties Cases Are Reopened.” The New York Times. 16 February 1943, 1.

68 S.D.E. “Religious Freedom, Flag Salute in Public Schools.” University of Cincinnati Law Review. 14 (May-Nov. 1940): 444–447.

69 “Sect Members Defy the Heat: 15,000 Jam Hall for Convention Session.” Detroit Free Press. 26 July 1940.

70 Smith, Chuck. “The Persecution of West Virginia Jehovah’s Witnesses and the Expansion of Legal Protection for Religious Liberty.” Journal of Church and State. 43 (Summer 2001): 539–558.

71 Smith, Wilbur M. “Jehovah’s Witnesses.” Christianity Today. 19 December 1960, 16–18.

72 Southworth, H. Rutledge. “Jehovah’s 50,000 Witnesses.” The Nation. 10 August 1940, 110–12.

73 S.P.B. “Jehovah’s Witnesses and the Supreme Court.” Social Science Review. 28 (June 1943): 226.

74 “State Bans Voided on Jehovah Sect.” The New York Times. 8 January 1946, 25.

75 St. Louis Post-Dispatch, 12 October 1930: Editorial.

76 “Supreme Court Comes to Order.” Colliers. 12 June 1943, 78.

77 “Supreme Court Decision Allows Local Limitation of Free Press.” Publisher’s Weekly. 20 June 1942, 2266–67.

78 “Supreme Court Reverses Convictions of Jehovah’s Witnesses.” Publishers’ Weekly. 16 February 1946, 1137.

79 “Supreme Court Reverses Decision in Jehovah’s Witnesses Case.” Publisher’s Weekly. 8 May 1943, 1820.

80 “Supreme Court Reverses Stand on Anti-Peddling Ordinances.” Public Management. (June 1943): 179.

81 “The Expected Happens.” Commonweal. 19 January 1940, 275.

82 “The Flag Salute Case.” The Christian Century. 19 June 1940, 791–92.

83 “The Supreme Court Sees the Light.” The Christian Century. 12 May 1943, 565.

84 Vose, Clement. “Litigation as a Form of Pressure Group Activity.” The Annals of the American Academy. (September 1958): 20–31.

85 Waite, Edward F. “The Debt of Constitutional Law to Jehovah’s Witnesses.” Minnesota Law Review. 28 (March 1944): 209–246.

86 Watchtower Bible and Trace Society, “A Greater Witness to Be Given by Using Portable Transcription Machines. Bro. Rutherford’s Talks to Be Heard by All Even Though They Have No Radio,” Bulletin for Jehovah’s Witnesses. 1 December 1932: 1.

87 ________. “‘Jephthah’s Daughter’ Testimony Period,” The Watchtower. 15 January 1943: 1.

88 ________. “Transcription Machines,” The Watchtower. 1 August 1934: 226.

89 “Witnessing the End.” Time. 18 July 1969, 62–63.

90 “Witness’s Angle.” Newsweek. 22 March 1943, 68–70.

91 “Witnesses Examined.” Time. 29 July 1940, 40–41.

92 “Witnesses in Trouble.” Time. 14 June 1940, 54.

93 Wood, Lewis. “Jehovah Sect Wins in High Court; Reversal Allows Pamphlet Sale.” The New York Times. 4 May 1943, 6.

94 ________. “Jehovahites Lose in Supreme Court.” The New York Times. 1 February 1944, 21.

95 ________. “Rutledge Joins Supreme Court: Civil Liberty Cases are Reopened.” The New York Times. 16 February 1943, 1 and 11.

Cases

1 Amalgamated Food Employees Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968).

2 Bigelow v. Virginia, 421 U.S. 809 (1975).

3 Burstyn v. Wilson, 343 U.S. 495 (1952).

4 Cantwell v. Connecticut, 310 U.S. 296 (1940).

5 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

6 Cohen v. California, 403 U.S. 15 (1971).

7 Coleman v. City of Griffin, 302 U.S. 636 (1937); 55 Ga. App. 123: 127.

8 Cox v. New Hampshire, 312 U.S. 569 (1941).

9 Douglas v. City of Jeannette, 319 U.S. 157.

10 Fiske v. Kansas, 274 U.S. 380 (1927).

11 Follett v. McCormick, 321 U.S. 573 (1944).

12 Fowler v. Rhode Island, 345 U.S. 67 (1953).

13 Gitlow v. New York, 268 U.S. 652 (1925).

14 Grosjean v. American Press Co., 297 U.S. 233 (1936).

15 Hamilton v. Regents of the University of California, 292 U.S. 245 (1934).

16 Heffron v. International Society, 452 U.S. 640 (1981).

17 Houchins v. KQED, 438 U.S. 1 (1978).

18 International Society for Krishna Consciousness v. Lee, 112 S. Ct. 2701 (1992).

19 Jamison v. Texas, 318 U.S. 413 (1943).

20 Jones v. Opelika, 316 U.S. 584 (1943).

21 Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988).

22 Largent v. Texas, 318 U.S. 418 (1943).

23 Lee v. International Society of Krishna Consciousness, 112 S. Ct. 2709 (1992).

24 Lloyd Corporation v. Tanner, 407 U.S. 551 (1972).

25 Lovell v. Griffin, 303 U.S. 444 (1938).

26 McCormick v. Follett, 204 S.C. 337 (1943).

27 Marsh v. Alabama, 326 U.S. 501 (1946).

28 Martin v. Struthers, 319 U.S. 141 (1943).

29 Metromedia v. San Diego, 453 U.S. 490 (1981).

30 Meyer v. Nebraska, 262 U.S. 390 (1923).

31 Minersville School District v. Gobitis, 310 U.S. 569 (1940).

32 Minneapolis Star v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983).

33 Murdock v. Pennsylvania, 319 U.S. 105 (1943).

34 Near v. Minnesota, 283 U.S. 697 (1931).

35 New York City v. American School Publications, 509 N.E. 2d 311 (1987).

36 New York Times v. Sullivan, 376 U.S. 254 (1964).

37 Niemotko v. Maryland, 340 U.S. 268 (1951).

38 Palko v. Connecticut, 302 U.S. 319 (1937).

39 Phoenix Newspapers, Inc. v. Tucson Airport Authority, 22 M.L.R. 1504 (1993).

40 Poulos v. New Hampshire, 345 U.S. 395 (1953).

41 Prince v. Massachusetts, 321 U.S. 158 (1944).

42 Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980).

43 R.A.V. v. St. Paul, 112 S. Ct. 2538 (1992).

44 Saia v. New York, 334 U.S. 558 (1948).

45 Schneider v. New Jersey, 308 U.S. 147 (1939).

46 Texas v. Johnson, 491 U.S. 377 (1989).

47 Texas Monthly v. Bullock, 109 S. Ct. 890 (1989).

48 Tucker v. Texas, 326 U.S. 517 (1946).

49 United States v. Carolene Products Co., 304 U.S. 144 (1938).

50 Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).

51 Watchtower Bible and Tract Society of New York v. Village of Stratton, 122 S. Ct. 392 (2002).

Court Briefs and Legal Documents

1 City of Griffin. “Appellant Brief.” Lovell v. City of Griffin, 303 U.S. 444 (1937).

2 Covington, Hayden C. “Appellant’s Brief.” Largent v. Texas, 318 U.S. 418 (1943).

3 ________. “Brief for Appellant.” Poulos v. New Hampshire, 345 U.S. 395 (1953).

4 ________. “Jurisdictional Statement,” Saia v. New York, 334 U.S. 558 (1948).

5 ________. “Jurisdictional Statement,” New York v. Samuel Saia, 297 N.Y. 659 (1947).

6 ________. “Statement as to Jurisdiction,” Follett v. McCormick, 321 U.S. 573: 5.

7 Covington, Hayden C., Grover C. Powell, D. R. Coley, Jr., and Roy A. Swayze. “Jurisdictional Statement.” Marsh v. Alabama, 326 U.S. 501 (1946).

8 ________. “Appellant’s Brief,” Marsh v. Alabama, 326 U.S. 501 (1946): 6.

9 Himelfarb, Julius and Hayden C. Covington. “Application from County Court of Niagara Country for Allowance of Appeal to the Court of Appeals Pursuant to Article 520 of Code of Criminal Procedure.” State of New York County Court — Niagara County. 24 March 1947.

10 Moyle, Olin R. and Jacob S. Karkus. “Petitioner’s Brief,” Schneider v. State, 308 U.S. 147 (1939).

11 Pittard, James. “Transcript of Testimony.” People of the State of New York v. Saia, State of New York Police Court — City of Lockhart. 10 September 1946: 45.

12 Powell, Grover C. and Hayden C. Covington, “Statement as to Jurisdiction,” Follett v. McCormick, 321 U.S. 573 (1944).

13 Rutherford, Joseph F. and Hayden C. Covington. “Brief for Petitioner.” Jones v. City of Opelika, 316 U.S. 584 (1942).

14 ________. “Jurisdictional Statement.” Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

Internet Resources

1 Watchtower Bible and Tract Society of Pennsylvania, “Questions Often Asked By Interested People,” www.watchtower.org, 2001.

2 Watchtower Bible and Tract Society of Pennsylvania, “International Conventions,” www.watchtower.org, 2001.

Index

A

Advice to Kingdom Publishers

71

Ali, Muhammad

59, 60, 151

Amalgamated Food Employees Local 590 v. Logan Valley Plaza

137, 160

American Civil Liberties Union

19–23, 65, 66, 73, 101, 106, 119, 130, 145–147, 150

Armageddon

30, 36, 37, 39, 59, 63, 91, 98, 114, 153, 157

B

Bergman, Jerry

9, 30, 32–34, 36, 37, 43, 45–50, 52, 53, 55, 57, 58, 68, 69, 71, 72, 85, 90, 115, 145, 147, 153

Bethel House

31, 32, 34, 43, 44, 46, 47, 53–57, 67

Bigelow v. Virginia

137, 160

Black, Hugo L.

17, 21, 31, 56, 85, 103, 107, 109, 119, 120, 122, 125, 135

Boudin, Louis B.

21

Burstyn v. Wilson

137, 160

C

Cantwell v. Connecticut

16, 89, 98, 104, 105, 114, 115, 135, 139, 160

canvassing

16, 19, 24, 44, 66, 69, 78, 79, 81, 84, 102, 103, 109, 112, 113, 133

Carson, George

73

Chafee, Zachariah

127

Chaplinsky, Walter

115

Chaplinsky v. New Hampshire

89, 115–117, 139, 160, 164

Christian Century, The

18, 19, 29, 119, 154–157, 159

Circuit Servants

42

Civil Rights Division of the Justice Department

135

Civil Rights Act of 1871

112

Cohen v. California

137, 160

Cole, Marley

24, 57, 86

Coleman v. City of Griffin

79, 97, 99, 160

Comisky, Marvin

43, 61, 126, 157

commercial speech

109, 137

Covington, Hayden Cooper

7, 12, 13, 17, 24, 27, 31, 32, 34, 35, 41, 49, 50–55, 58–60, 62, 63, 66, 68, 74, 76–78, 80–82, 87, 96, 99, 112, 116, 124, 127, 129, 130–134, 145, 146, 164

Covington, Dorothy

9, 56, 84, 132

Cox v. New Hampshire

89, 98, 117, 139, 161

Cox, Archibald

126

D

Defending and Legally Establishing the Good News

27, 71–74, 82, 86, 89, 133, 148

Department of Justice

74

Detroit News, The

47, 82, 156

Disfellowship

41

disturbing the peace

64, 65

Douglas v. City of Jeannette

43, 44, 55, 105, 141, 161

Douglas, William O.

21, 43, 44, 55, 80, 89, 97, 105, 107, 111–113, 123, 125, 135, 141, 148, 161

Drake, R. A.

86

due process

13, 93, 101, 105, 123, 124, 154

E

Elfers, Lynn

9, 51, 57, 60, 70

Enemies

16, 35, 36, 151

F

fascists

52, 115

fighting words

116

First Amendment

9, 12, 13, 17, 22–28, 35, 49, 61, 77, 78, 83, 88, 90, 93, 94, 96, 101, 107, 112–114, 116, 120, 124–126, 129–131, 134–139, 141, 142, 148, 150

Fiske v. Kansas

93, 94, 161

Flag Salute

20, 23, 25, 37, 39, 47, 54, 55, 84, 150, 154, 158, 159

Follett, Lester

112, 131

Follett v. McCormick

77, 89, 95, 96, 112, 113, 161, 164

Four Horsemen

135

Fourteenth Amendment

12, 90, 93, 98, 101, 105, 110, 112, 126, 134, 135, 142, 154

Fowler v. Rhode Island

89, 123, 124, 161

Frankel, Osmond K.

106

Frankfurter, Felix

106, 135

Franz, Fred

32

freedom of speech

11, 12, 35, 66, 78, 92, 94, 95, 107, 108, 118, 121, 126, 127, 129, 148

freedom of religion

13, 35, 94, 100, 105, 107, 108, 110, 126, 136, 148, 154

freedom of press

83, 91, 95, 120

G

Gitlow v. New York

93, 134, 161

Gobitis, Lillian

84

Grosjean v. American Press Co.

91, 136, 161

group litigation

28, 130, 142

Gulf Shipbuilding Corporation

118

H

Hamilton v. Regents of the University of California

135, 161

Harrison, Barbara Grizzuti

67

Hasson, Charles G.

62, 127

Heath, William J.

53

heavenly class

36, 37

Heffron v. International Society

137, 161

Henschel, Milton G.

34

Hessler, C. R.

74

High, Stanley

16, 19, 84

Holmes, John Haynes

18, 29

Hondo Navigation Village

119

Houchins v. KQED

137, 161

Housing Act

120

Hughes, Charles Evans

101, 117, 135

I

identification card

75, 76, 82

instruction manual(s)

71, 73

International Society for Krishna Consciousness v. Lee

137, 161

Internet

137, 138, 164, 176

J

Jackson, Robert H.

43, 44, 106, 138

Jamison v. Texas

55, 89, 109, 139, 161

Jones v. Opelika

69, 83, 86, 89, 107, 110–112, 134, 139, 161

Jones, Roscoe

87, 131

Jones, Thelma

69

Justice Department

20, 108, 135

K

Kingdom News

45

Knorr, Nathan Homer

31, 58, 132

L

labor movement

119

Lakewood v. Plain Dealer Publishing Co.

137, 161

Largent, Daisy

79, 95, 109, 131

Largent v. Texas

16, 55, 66, 76, 79, 80, 83, 85, 89, 91, 93, 95–97, 109, 110, 130, 161, 163

Lee v. International Society of Krishna Consciousness

137, 161

Legal Defense and Education Fund

23

libel

54, 65, 131, 137

Liberty to Preach

77, 150

licensing fee

81, 95, 96, 105, 106, 136

Life (magazine)

5, 9, 10, 18, 21, 27, 34, 37, 40, 44, 50, 51, 54, 73, 122, 130, 134, 149, 156, 157

Lloyd Corporation v. Tanner

137, 161

Logan, Malcolm

41, 46, 75

Lovell, Alma

11, 79, 97, 100, 101

Lovell v. Griffin

12, 43, 77, 80, 85, 89, 91, 93, 97, 98, 100–102, 130, 135, 138, 139, 161

Loyalty

38

M

Maddux, Thomas

74

Madison Square Garden

52, 58

magazine subscriptions

83

Marsh, Grace

118, 131

Marsh v. Alabama

35, 76, 82, 85, 89, 92, 97, 98, 118, 119, 139, 162–164

Marshall, Thurgood

23, 49

Martin v. Struthers

89, 162

Maryland Casualty Company

51

Maverick, Maury

52

McAninch, William Shepard

22, 126

McCormick v. Follett

113, 161

McGinnis, H. C.

18

membership cards

42, 75

Mercer, R. H.

51

Metromedia v. San Diego

137, 162

Meyer v. Nebraska

135, 162

Minersville School District v. Gobitis

47, 54, 84, 162

Minneapolis Star v. Minnesota Commissioner of Revenue

137, 162

Mobile Witnesses

70

Moley, Raymond

19, 108

Moyle

31, 41, 53, 54, 62, 63, 67, 76, 77, 79, 93, 97, 100–102, 132, 146, 150, 164

Moyle, Olin R.

31, 41, 53, 54, 62, 67, 76, 77, 79, 93, 100–102, 132

Mulder, John E.

43, 61

Mulder and Comisky

61, 66, 79, 126

Murdock v. Pennsylvania

55, 89, 96, 110–112, 162

Murphy, Frank

21, 99, 135

Murphy

21, 99, 107, 117, 135

N

NAACP

23, 25, 49, 63, 129, 133, 140

NAACP Legal Defense Fund

140

Nation, The

17, 26, 37, 38, 44, 64, 142, 158

national conventions

33

National Association for the Advancement of Colored People

23, 25, 63

National Organization of Women

141

Near v. Minnesota

94, 162

New York City v. American School Publications

137, 162

New Jersey Supreme Court

102

New Republic, The

119, 154, 155

New York Post

41, 46, 75, 156

New York Times v. Sullivan

137, 162

newspapers

64, 86, 91, 108, 136–138, 162

Newsweek

19, 44, 55, 56, 154, 156, 157, 160

Newton Cantwell

15, 16

Newton, Merlin Owen

33, 63, 67, 69

Niemotko v. Maryland

89, 122, 123, 162

No Hell Doctrine

37

Notre Dame Lawyer

62, 127, 155

O-P

Owen, Ralph Dornfeld

126, 127

Palko v. Connecticut

107, 139, 162

Penton, M. James

32, 34, 41, 56

permit

12, 16, 17, 21, 25–28, 55, 62, 66, 79–81, 88, 91, 92, 97, 99–102, 104, 109–111, 114, 117, 121–125, 127, 130, 133, 134, 136, 137, 139–142

Pfeffer, Leo

25, 65

Phoenix Newspapers, Inc., v. Tucson Airport Authority

137, 162

Pioneers

42, 46, 64, 71, 72

Pittard, James

78

planned litigation

133

portable phonographs

45, 64, 65, 114, 146

Poulos, William

81, 124

Poulos v. New Hampshire

81, 89, 92, 93, 97, 124, 125, 133, 162, 163

Powell, Grover

87

Prince v. Massachusetts

89, 98, 113, 114, 139, 162

Prince, Sarah

98, 114

prior restraint

83, 91, 106, 108, 125, 136, 137

Pruneyard Shopping Center v. Robins

137, 162

public park

36, 122, 123

Public Housing Authority

120

Publishers

18, 42, 46, 71, 72, 149, 152

Q-R

Quackenbush, Colin

52, 55, 59, 60

R.A.V. v. St. Paul

137, 162

radio broadcasts

30, 64

Reed, Stanley

106, 110, 124, 125

regional conventions

44

right to be heard

94, 121, 136

Roberts, Owen J.

102, 104, 115

Roman Catholic Church

16, 18, 35, 69

Roosevelt, Franklin D.

17, 20, 134, 135, 151

Russell, Charles Taze

29

Russellites

29

Rutherford, Judge Joseph Franklin

16, 18, 24, 30–32, 34–36, 38, 39, 41, 42, 46, 47, 49, 50, 52–54, 62–64, 67, 69, 77, 78, 80, 82, 83, 91, 96, 97, 102, 106, 116, 130, 132–134, 146, 149, 151, 153, 158, 164

Rutledge, Wiley, B.

37, 64, 66, 114, 158

S

Saia, Samuel

78, 81, 94, 120, 121, 163

Saia v. New York

89, 120–122, 162, 163

Salvation Army

83

San Antonio Bar Association School of Law

51

Saturday Evening Post, The

16, 19, 84, 155

Schlesinger Jr., Arthur

17

Schneider, Clara

97, 102, 131

Schneider v. New Jersey

76, 79, 85, 89, 97, 98, 102, 162

Schwartz, Bernard

61, 62

Second Coming

29, 36, 38–40, 42, 47

Simmons, Betty M.

113

Solicitation

16, 30, 42, 89, 95, 96, 102, 104, 108–111, 113, 118

Sorauf, Frank J.

22

sound equipment

72, 81, 120, 121

Southworth, H. Rutledge

37, 64, 66

Stone, Harlan Fiske

107, 139

Stroup, Herbert Hewitt

31, 56

Survey Graphic magazine

79

T

taxation

38, 45, 91, 94, 95, 96, 107, 108, 112, 136, 137

testimony cards

64

Texas Monthly v. Bullock

137, 163

Texas v. Johnson

137, 163

The Society

29–31, 33, 34, 41, 42, 44, 46, 51, 53–55, 59, 60, 68, 75, 79, 87, 105

Time (magazine)

19, 108

Tucker v. Texas

89, 119, 120, 163

U-V

United States v. Carolene Products Co.

107, 139, 163

vigilant litigation

24, 154

Vinson, Fred

122, 123

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.

137, 163

Vose, Clement

22, 25, 63, 140

W

Waite, Edward F.

39, 126

Watchtower Bible and Tract Society

9, 12, 15–18, 22, 24, 26, 27, 32–36, 38, 40, 44, 45, 47, 49–52, 54, 58–60, 62, 65, 68, 70, 71, 73, 76–78, 82, 88, 95, 97, 103, 121, 129, 138, 141, 142, 146, 148, 150–153, 163, 164

Watchtower Bible School of Gilead

43

Watchtower Bible and Tract Society of New York v. Village of Stratton

163

Watchtower

9, 12, 15–18, 22, 24–28, 31–54, 56–60, 62–73, 76–79, 82, 83, 85–88, 90, 91, 93–95, 97, 98, 100–105, 114, 115, 121, 127, 129–134, 138, 141–143, 145, 146, 148, 150–153, 158–160, 163, 164

Watchtower headquarters

27, 31, 44, 46, 57, 64, 67, 71, 85, 102, 115, 131, 133

WBBR

46

Whalen, William J.

63, 142

Witness Company Servant

73

World War I

38

World War II

18, 21, 38, 39, 147–150

Y-Z

Yankee Stadium

125

Zone Servants

16, 42, 46

About the Author

x

1 Dr. Jennifer Jacobs Henderson is an associate professor of communication specializing in issues of media law, the ethics of media, media fandoms, and the use of online collective intelligence for political problem solving and social action. For more than a decade, she has been researching how voices outside of American mainstream discourse have pressured the government to expand free speech protections. Dr. Henderson is also co-founder and chief creative officer of Elastic Collision, a digital media development and consulting firm. In that capacity, she has consulted with Fortune 500 companies, federal government agencies and universities around the world on ways to leverage the power of the Internet and visual worlds for education, collaboration and social change. Dr. Henderson has received several teaching and research awards including the Association for Journalism in Mass Communication’s Promising Professor Award and Trinity University’s Junior Faculty Award for Distinguished Teaching and Research.

Notes


1. “A Test of Freedom,” The New York Times, 10 June 1942: 20.
2. Cantwell v. Connecticut, 310 U.S. 296 (1940): 301–302.
3. Largent v. Texas, 318 U.S. 418 (1943): 11.
4. Stanley High, “Armageddon, Inc.,” The Saturday Evening Post, 14 September 1940: 58.
5. Hayden Covington coined this phrase early in the Watchtower legal campaign, and it later became the title of a booklet outlining details of the Witnesses’ legal plan and summaries of Supreme Court decisions on the literature distribution and permit cases.
6. Arthur M. Schlesinger Jr., Age of Roosevelt: The Politics of Upheaval (Boston: Houghton Mifflin Co., 1960) 15.
7. The phrase “religion is a racket and a snare” first appeared at a Watchtower Bible and Tract Society convention in London in 1938 when it was printed on banners for that gathering. Judge Rutherford, the Watchtower leader, explained three years later that “banners containing the slogan were widely displayed throughout England to the great dismay of the religionists, and which slogan maddened the religionists.” Joseph F. Rutherford, “Drama of Vengeance,” The Watchtower, 1 January 1941: 8.
8. Harvey Green, The Uncertainty of Everyday Life 1915–1945 (New York: Harper Collins Publishers, 1992).
9. McGinnis, 512.
10. These labels were commonly used to disparage those outside of the mainstream during the years of World War II. For example, see: John Haynes Holmes, “The Case of Jehovah’s Witnesses,” The Christian Century, 17 July 1940: 896. They had little applicability to the Witnesses, however, as the Germans sent more than 6,000 to concentration camps between 1938 and 1945. For a more comprehensive discussion of Witnesses in German prison camps, see: James A. Beckford, The Trumpet of Prophecy: A Sociological Book of the Jehovah’s Witnesses (New York: Wiley and Sons, 1975).
11. H. C. McGinnis, “Russell, Then Rutherford, Spawn Jehovah’s Witnesses,” America, 8 February 1941: 481.
12. High, 18.
13. “Ominous Decision,” Time, 22 June 1942: 55.
14. “Witnesses in Trouble,” Time, 24 June 1940: 54.
15. “Civil Liberty Endangered,” The Christian Century, 24 June 1942: 798.
16. Raymond Moley, “The Boot Is on the Other Leg,” Newsweek, 29 June 1942: 68.
17. American Civil Liberties Union, Liberty’s National Emergency: The Story of Civil Liberty in the Crisis Year 1940–1941 (New York: American Civil Liberties Union, June 1941) 27.
18. Barbara Grizzuti Harrison, Visions of Glory: A History and a Memory of Jehovah’s Witnesses (New York: Simon and Schuster, 1978) 190.
19. American Civil Liberties Union, Jehovah’s Witnesses and the War (New York: American Civil Liberties Union, January 1943) 2.
20. Francis Biddle, In Brief Authority (Garden City, NY: Doubleday & Co., Inc., 1962) 115.
21. Franklin D. Roosevelt and Winston Churchill, “The Atlantic Charter. Official Statement on Meeting Between the President and Prime Minister Churchill. August 14, 1941,” The Public Papers and Addresses of Franklin D. Roosevelt, 1941 Volume (New York: Harper Brothers, 1950) 314–315.
22. See the dissenting opinion of Justices Hugo L. Black, William O. Douglas and Frank Murphy in Jones v. City of Opelika, 316 U.S. 584 (1942).
23. American Civil Liberties Union, Freedom in Wartime (New York: American Civil Liberties Union, 1943) 43–44.
24. Louis B. Boudin, “Freedom of Thought and Religious Liberty Under the Constitution,” Lawyers Guild Review, June 1944: 9.
25. Frank J. Sorauf, The Wall of Separation: The Constitutional Politics of Church and State (Princeton, NJ: Princeton University Press, 1976) 91.
26. William Shepard McAninch, “A Catalyst for the Evolution of Constitutional Law: Jehovah’s Witnesses in the Supreme Court,” University of Cincinnati Law Review (1987) 1076.
27. Clement Vose, “Litigation as a Form of Pressure Group Activity,” The Annals of the American Academy, September 1958: 25.
28. David R. Manwaring, Render Unto Caesar: The Flag Salute Controversy (Chicago: University of Chicago Press, 1962) 34.
29. American Civil Liberties Union, Guide for ACLU Litigation, mimeographed paper (New York: American Civil Liberties Union, March 1970), in Sorauf, 93.
30. Vose, “Litigation as a Form of Pressure Group Activity” 23.
31. Vose, “Litigation as a Form of Pressure Group Activity” 23.
32. Vose, Caucasians Only, 25.
33. “Disciplined” and “vigilant” litigation describes the systematic planning and implementation of a long term legal strategy to bring forth cases that rectify or clarify an issue or cause. The term was introduced in 1999 by political scientists Pauline Côté and James T. Richardson. For additional information, see: Pauline Côté and James T. Richardson, “Disciplined Litigation, Vigilant Litigation, and Deformation: Dramatic Organization Change in Jehovah’s Witnesses,” Journal for the Scientific Book of Religion, 40:1 (1999): 11–25.
34. Marley Cole, Jehovah’s Witnesses: The New World Society (New York: Vantage Press, 1955) 113.
35. Leo Pfeffer, God, Caesar and the Constitution (Boston: Beacon Press, 1975) 13.
36. Vose, Caucasians Only.
37. Excellent research has been conducted in the area of church-state relations. Of this collection, Anson Phelps Stokes’ three-volume Church and State in the United States (New York: Harper & Brothers, 1950) is the most comprehensive account of the history of church-state relations from the founding of the nation until the mid-1940s.
38. It is important to note that this book and its author have no connection to the Watchtower Bible and Tract Society. Any support for the organization arises from a respect for their lengthy battle to secure First Amendment protection, not the religious principles which led to those battles.
39. The exception is Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 122 S. Ct. 392 (2002), the first 21st Century case to revisit issues of literature distribution.
40. Hayden Covington, Defending and Legally Establishing the Good News (New York: Watchtower Bible and Tract Society, 1950).
41. John Haynes Holmes, “The Case of Jehovah’s Witnesses,” The Christian Century, 17 July 1940: 897.
42. Royston Pike, Jehovah’s Witnesses: Who They Are, What They Teach, What They Do (New York: Philosophical Library, 1954) 14.
43. Richard Harris, “I’d Like to Talk to You for a Minute,” The New Yorker, 16 June 1956: 84.
44. Harris, 84.
45. Harrison, Visions of Glory, 190.
46. Jerry Bergman, “Introduction: The Challenge to Religious Freedom Introduction to Rutherford’s Works,” in Jehovah’s Witnesses I: The Early Writings of J. F. Rutherford, Melton Ed. (New York: Garland Publishing, 1990).
47. Timothy White, A People For His Name: The Jehovah’s Witnesses and an Evaluation (New York: Vantage Press, 1967) 301.
48. Melvin D. Curry, Jehovah’s Witnesses: The Millenarian World of the Watch Tower (New York: Garland Publishing, Inc., 1992) 57.
49. Curry, 57.
50. Jerry Murray, Interview with Watchtower Lawyer Hayden Covington, Tape recording, 19 November 1978.
51. High, 52.
52. Herbert Hewitt Stroup, The Jehovah’s Witnesses (New York: Columbia University Press, 1945).
53. M. James Penton, Apocalypse Delayed: The Story of the Jehovah’s Witnesses, 2nd Ed. (Toronto: University of Toronto Press, 1997) 89.
54. Jerry Bergman, A Comprehensive and Selectively Annotated Bibliography (Westport, CT: Greenwood Press, 1999) 9.
55. Murray, Interview with Covington.
56. Murray, Interview with Covington.
57. Bergman, Annotated Bibliography, 21.
58. Merlin Owen Newton, Armed with the Constitution: Jehovah’s Witnesses in Alabama and the U.S. Supreme Court, 1939–1946 (Tuscaloosa: University of Alabama Press, 1995) 81.
59. Jerry Bergman, interview with author, 18 May 2002, tape recording, Montpelier, Ohio.
60. Penton, 78.
61. Randall Watters, Thus Saith Jehovah’s Witnesses (Manhattan Beach, CA: Free Minds, Inc., 2002).
62. Bergman, Annotated Bibliography, 22.
63. Cole, 212.
64. Penton, 83.
65. Bergman, Annotated Bibliography, 9.
66. Penton, 78.
67. Bergman, Annotated Bibliography, 22.
68. Bergman, Annotated Bibliography, 22.
69. Bergman, Annotated Bibliography, 23.
70. Murray, Interview with Covington.
71. Holmes, 897.
72. Mark 16:15 as quoted in Hayden C. Covington, Grover C. Powell, D. R. Coley, Jr., and Roy A. Swayze, “Jurisdictional Statement,” Marsh v. Alabama, 326 U.S. 501 (1946): 7.
73. Wilbur M. Smith, “Jehovah’s Witnesses,” Christianity Today, 19 December 1960: 18.
74. Henry S. Drinker, Some Observations on the Four Freedoms of the First Amendment: Freedom of Speech, Freedom of the Press, Freedom of Assembly and Petition, Freedom of Religion (Boston: Boston University Press, 1957) 46.
75. Joseph Franklin Rutherford, Enemies (Brooklyn, NY: Watchtower Bible and Tract Society, 1938) 282–283.
76. Taken from the book of Revelation 7:4.
77. Bergman, Annotated Bibliography, 17.
78. Joseph F. Rutherford, “Watchtower Bible College Opens,” The Watchtower, 15 February 1943: 62.
79. H. Rutledge Southworth, “Jehovah’s 50,000 Witnesses,” The Nation, 10 August 1940: 110.
80. Harris, 81.
81. Consolation, 29 May 1940: 10 as quoted in Jerry Bergman, “The Modern Religious Objection to Mandatory Flag Salute in America,” Journal of Church and State, 39:2 (1997): 227.
82. Pfeffer, 142.
83. Penton, 138.
84. Penton, 139.
85. Penton, 139.
86. Newton, 28–29.
87. Cole, 111.
88. Edward F. Waite, “The Debt of Constitutional Law to Jehovah’s Witnesses,” Minnesota Law Review, 28 (March 1944): 213.
89. Murray, Interview with Covington.
90. High, 54.
91. Sorauf, 336.
92. White, 330.
93. White, 330.
94. Cole, 111.
95. WBTS, Make Sure of All Things (Brooklyn, NY: Watchtower Bible and Tract Society, 1953).
96. WBTS, Jehovah’s Witnesses in the Divine Purpose (Brooklyn, NY: Watchtower Bible and Tract Society, 1959) 175.
97. Watch Tower, March 1924 as quoted in Stroup, 64.
98. Malcolm Logan, “Jehovah’s Witnesses Glory in ‘Martyrdom’,” New York Post, 16 July 1940, in ACLU Archives, Reel 192.
99. White, 301.
100. Penton, 89.
101. Stroup, 25.
102. Stroup, 61.
103. Harris, 78.
104. Harris, 93.
105. Rutherford, “Watchtower Bible College Opens,” 63.
106. Stroup, 67.
107. Bergman, Annotated Bibliography, 14.
108. High, 19.
109. John E. Mulder and Marvin Comisky, “Jehovah’s Witnesses Mold Constitutional Law,” The Bill of Rights Review, 4:2 (Summer 1942) 266.
110. Douglas v. City of Jeannette, 319 U.S. 157 (1939): 167.
111. Douglas v. City of Jeannette, 168.
112. WBTS of Pennsylvania, “International Conventions,” www.watchtower.org, 2001.
113. Manwaring, Render Unto Caesar. For examples of Witnesses overtaking a host city, see: “Sect Members Defy the Heat: 15,000 Jam Hall for Convention Session,” Detroit Free Press, 26 July 1940 or “Big Week for ‘Witnesses’,” Newsweek, 18 August 1941: 50.
114. High, 52.
115. Harris, 74.
116. High, 53.
117. High, 53.
118. Harris, 94–100.
119. Bergman, Annotated Bibliography, 19.
120. Stroup, 57.
121. Stroup, 57.
122. Bergman, Annotated Bibliography, 14.
123. WBTS, “‘Jephthah’s Daughter’ Testimony Period,” The Watchtower, 15 January 1943: 1.
124. WBTS of Pennsylvania, “Questions Often Asked by Interested People,” www.watchtower.org, 2001.
125. Malcolm Logan, “Jehovah’s Witnesses in Big Business Category,” New York Post, 17 July 1940, in ACLU Archives, Reel 192.
126. Walter Leckrone, “Jehovah’s Witnesses Flourish Despite Many Patriotic Flareups Against Their Sect,” The Detroit News, 29 July 1940.
127. Leckrone, p?
128. Harrison, 184.
129. Minersville School District v. Gobitis, 310 U.S. 569 (1940).
130. Bergman, Annotated Bibliography, 23.
131. Bergman, Annotated Bibliography, 15.
132. Bergman, interview with author.
133. Thurgood Marshall won 29 of 32 cases before the Supreme Court as the lead attorney for the NAACP’s Legal Defense Fund. Samuel Walker, In Defense of American Liberties: a History of the ACLU (New York: Oxford University Press, 1990) 107.
134. Murray, Interview with Covington.
135. Murray, Interview with Covington.
136. Murray, Interview with Covington.
137. Bergman, interview with author.
138. Penton, 79.
139. Penton, 79.
140. Lynn Elfers, interview with author, September 23, 2005, Cincinnati, Ohio.
141. Murray, Interview with Covington.
142. Murray, Interview with Covington.
143. Murray, Interview with Covington.
144. Murray, Interview with Covington.
145. Colin Quackenbush, Hayden Covington Memorial, tape recording (Manhattan Beach, CA: Free Minds, Inc., 1979).
146. “18,000 at Garden Religious Rally See Battle; 4 Hurt, 5 Arrested, Scores Ejected By Police,” The New York Times, 26 June 1939: 1.
147. Joseph Franklin Rutherford, Government and Peace, tape recording (The Watchtower Bible and Tract Society, 1939).
148. Murray, Interview with Covington.
149. Penton, 81.
150. WBTS, The Watchtower, 15 October 1939: 316–317 cited in Penton 81–82.
151. Murray, Interview with Covington.
152. WBTS of Pennsylvania, Jehovah’s Witnesses in the Divine Purpose, 197.
153. Harrison, 149.
154. Hayden Covington helped Judge Rutherford prepare the briefs and oral arguments in the first flag salute case, Minersville School District v. Gobitis, 310 U.S. 586 (1940). The Court ruled in this case that Jehovah’s Witness children must salute the American flag even if it was against their religious beliefs.
155. Murray, Interview with Covington.
156. Quackenbush, Hayden Covington Memorial.
157. Murray, Interview with Covington.
158. WBTS of Pennsylvania, Jehovah’s Witnesses in the Divine Purpose, 197.
159. William Kaplan, State and Salvation: The Jehovah’s Witnesses and Their Fight for Civil Rights (Toronto: University of Toronto Press, 1989) 77.
160. “Witness’s Angle,” Newsweek, 22 March 1943: 70. These fourteen cases included five literature distribution and permit cases: Jamison v. Texas, 318 U.S. 413 (1943); Largent v. Texas, 318 U.S. 418 (1943); Martin v. City of Struthers, 319 U.S. 141 (1943); Murdock v. Pennsylvania, 319 U.S. 105 (1943); and Douglas v. City of Jeannette, 319 U.S. 157 (1943). During this week, Hayden Covington also argued the second flag salute case, West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943) and eight separate draft exemption cases before the Supreme Court.
161. See Chapter 4 for a complete discussion of Covington’s plan to coordinate arrests, litigation and appeal of Witnesses’ cases.
162. Bergman, interview with author.
163. Cole, 213.
164. Quackenbush, Hayden Covington Memorial.
165. Stroup, 25.
166. Dorothy Covington, interview with author, 23 September 2005, Cincinnati, Ohio.
167. Murray, Interview with Covington.
168. “Witness’s Angle,” 68.
169. “Witness’s Angle,” 68.
170. Stroup, 25.
171. Penton, 79.
172. Bergman, interview with author.
173. Cole, 111.
174. Bergman, interview with author.
175. Elfers, interview with author.
176. Penton, 79.
177. Harris, 76.
178. Bergman, interview with author.
179. Bergman, Annotated Bibliography, 9.
180. WBTS of Pennsylvania, Jehovah’s Witnesses in the Divine Purpose, 195.
181. Covington, interview with Jerry Bergman.
182. Bergman, interview with author.
183. WBTS, Yearbook (Brooklyn, NY: Watchtower Bible and Tract Society, 1946) 221–224 quoted in WBTS of Pennsylvania, Jehovah’s Witnesses in the Divine Purpose, 197.
184. Quackenbush, Hayden Covington Memorial.
185. Elfers, interview with author.
186. Penton, 79.
187. David Remnick, King of the World: Muhammad Ali and the Rise of an American Hero (New York: Random House: 1998) 291.
188. Elfers, interview with author.
189. Elfers, interview with author.
190. Quackenbush, Hayden Covington Memorial.
191. Mulder and Comisky, 262.
192. McAninch, 999.
193. Bernard Schwartz, The Supreme Court: Constitutional Revolution in Retrospect (New York: The Ronald Press Co., 1957) 241.
194. Charles G. Hasson, “Notes: Constitutional Law — Jehovah’s Witnesses,” Notre Dame Lawyer, (November 1946): 83.
195. Boudin, 9.
196. While the Jehovah’s Witnesses have historically been skeptical and often critical of courts, Watchtower Bible and Tract Society members were and still are encouraged to pursue careers in the law to defend the rights of their brothers and sisters to proselytize. Hayden Covington explained that even the Apostle Paul on trial in Rome claimed he was “defending and legally establishing the good news.”
197. Penton, 81.
198. Newton, 4.
199. This plan was very similar to one instituted by the National Association for the Advancement of Colored People (NAACP) in 1945 to battle restrictive covenant laws. Like the Witnesses, the NAACP instructed its members on legal procedure and had a network of nation-wide attorneys to handle their cases. For a complete treatment on the restrictive covenant cases see: Clement Vose, Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases, (Berkeley, CA: University of California Press, 1959).
200. William J. Whalen, Armageddon Around the Corner: A Report on Jehovah’s Witnesses (New York: The John Day Company, 1962) 177.
201. St. Louis Post-Dispatch, 12 October 1930: Editorial, in Hasson, 94.
202. H. Rutledge Southworth, “Jehovah’s 50,000 Witnesses,” The Nation, 10 August 1940, 111.
203. WBTS of Pennsylvania, Jehovah’s Witnesses in the Divine Purpose, 132.
204. WBTS, “A Greater Witness to Be Given by Using Portable Transcription Machines. Bro. Rutherford’s Talks to Be Heard by All Even Though They Have No Radio,” Bulletin for Jehovah’s Witnesses, 1 December 1932: 1.
205. WBTS, “Transcription Machines,” The Watchtower, 1 August 1934: 226.
206. White, 315.
207. White, 315–316.
208. Manwaring, Render Unto Caesar, 26.
209. WBTS, “History,” (Pt. 16) The Watchtower, 489 (1955): 491, in Manwaring, Render Unto Caesar, 23.
210. Pfeffer, 653.
211. WBTS of Pennsylvania, Jehovah’s Witnesses in the Diving Purpose.
212. W. D. Cope, President of the Board of Trustees, Waynoka, Oklahoma, “Ordinance No. 220,” (Town of Waynoka, Oklahoma), 3 June 1940, submitted with letter from Rev. Edward S. Trent to American Civil Liberties Union, 7 June 1940. (ACLU Archives, Reel 190).
213. Powell and Covington, “Statement as to Jurisdiction,” Follett v. McCormick, 2.
214. Hayden C. Covington, “Appellant’s Brief,” Largent v. Texas, 318 U.S. 418 (1943): 3.
215. Southworth, 111.
216. Mulder and Comisky, 262.
217. Cole, 114.
218. Newton, 4.
219. Harrison, 190.
220. WBTS, “History,” 426, in Manwaring, Render Unto Caesar, 27.
221. WBTS, “History,” 426, in Manwaring, Render Unto Caesar, 27.
222. WBTS, “History,” 426, in Manwaring, Render Unto Caesar, 27.
223. Bergman, interview with author.
224. Covington, interview with Bergman.
225. Covington, interview with Bergman.
226. Covington, interview with Bergman.
227. High, 58.
228. Bergman, interview with author.
229. Newton, 74.
230. Covington, interview with Bergman.
231. Bergman, interview with author.
232. Bergman, interview with author.
233. Newton, 56.
234. WBTS of Pennsylvania, Jehovah’s Witnesses in the Divine Purpose, 133.
235. “Griffin Jails 82 for Sect Tracts,” Atlanta Georgian, 16 March 1936.
236. Lynn Elfers, interview with author.
237. WBTS, Advice for Kingdom Publishers (Brooklyn, NY: Watchtower Bible and Tract Society, 1939).
238. WBTS, Jehovah’s Servants Defended (Brooklyn, NY: Watchtower Bible and Tract Society, 1941).
239. WBTS, Freedom of Worship (Brooklyn, NY: Watchtower Bible and Tract Society, 1943).
240. Covington, Defending and Legally Establishing the Good News.
241. Bergman, interview with author.
242. Covington, Defending and Legally Establishing the Good News, 10.
243. Bergman, interview with author.
244. WBTS, Freedom of Worship, 16.
245. Covington, Defending and Legally Establishing the Good News, 10.
246. WBTS, Freedom of Worship, 15. The 1953 booklet included these same instructions, but added that the report should be “an accurate written report, with typewriter if possible.” Covington, Defending and Legally Establishing the Good News, 10.
247. WBTS, Freedom of Worship, 15–16; Covington, Defending and Legally Establishing the Good News, 10.
248. Jerry Bergman, interview with author.
249. George Carson to The American Civil Liberties Union, 26 August 1941, ACLU Archives, Reel 200.
250. “Jehovah’s Witnesses Who Refuse to Salute U.S. Flag, Hold Their National Convention,” Life, 12 August 1940, 20.
251. WBTS, Order of Trial, (Brooklyn, NY: Watchtower Bible and Tract Society, 1933).
252. WBTS, Order of Trial; Covington, Defending and Legally Establishing the Good News, 19–30.
253. WTBS, Freedom of Worship, 16–34; Covington, Defending and Legally Establishing the Good News, 12–18.
254. WTBS, Jehovah’s Servants Defended; WTBS, Freedom of Worship, 16–34; Covington, Defending and Legally Establishing the Good News, 12–18.
255. Covington, Defending and Legally Establishing the Good News, 14.
256. Covington, Defending and Legally Establishing the Good News, 16.
257. Harrison, 192.
258. Covington, Defending and Legally Establishing the Good News, 18–19.
259. “Sect Members Defy the Heat: 15,000 Jam Hall for Convention Session,” Detroit Free Press, 26 July 1940.
260. “Sect Members Defy the Heat”.
261. Thomas E. Maddux to Hayden Covington, 12 January 1942 (ACLU Archives, Reel 207).
262. Malcolm Logan, “Jehovah’s Witnesses High-Pressure Satan — and Customers,” New York Post, 15 July 1940, in ACLU Archives, Reel 192.
263. Powell and Covington, “Statement as to Jurisdiction,” Follett v. McCormick, 5.
264. Stroup, 65.
265. Moyle and Karkus, “Petitioner’s Brief,” Schneider v. State, 308 U.S. 147 (1939).
266. Hayden C. Covington, Grover C. Powell, D. R. Coley, Jr., Roy A. Swayze, “Appellant’s Brief,” Marsh v. Alabama, 326 U.S. 501 (1946): 6.
267. Covington, Largent v. Texas, 5.
268. Joseph F. Rutherford and Hayden C. Covington, “Brief for Petitioner,” Jones v. City of Opelika, 316 U.S. 584 (1942): 3.
269. Grover C. Powell and Hayden C. Covington, “Statement as to Jurisdiction,” Follett v. McCormick, 321 U.S. 573 (1944).
270. Côté and Richardson, 15.
271. Olin R. Moyle, Liberty to Preach (Brooklyn, NY: Watchtower Bible and Tract Society, 1938).
272. Hayden C. Covington, “Jurisdictional Statement,” New York v. Samuel Saia, 297 N.Y. 659 (1947): 8.
273. James Pittard, “Transcript of Testimony,” People of the State of New York v. Saia, State of New York Police Court — City of Lockhart, 10 September 1946: 45.
274. “Griffin Jails 82 for Sect Tracts.”
275. Mulder and Comisky, 262.
276. Beulah Amidon, “Can We Afford Martyrs?” Survey Graphic, September 1940, 77.
277. Witness litigants routinely used this kind of language in depositions to justify why they had not secured a permit for their activities. For example, in Coleman v. City of Griffin, the defendant explained, “To apply for a permit to do His work would be an act of disobedience to His commandment. It would be an insult to Almighty God, and would in time result in my own destruction.” 55 Ga. App. 123: 127.
278. Covington, “Appellant’s Brief,” Largent v. Texas, 11.
279. Moyle and Karkus, “Petitioner’s Brief,” Schneider v. State, 3.
280. Lovell v. City of Griffin, 303 U.S. 444 (1938): 448.
281. Hayden C. Covington, Largent v. Texas, 318 U.S. 418 (1943): 11.
282. Joseph F. Rutherford and Hayden C. Covington, Appellant Brief, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
283. Joseph F. Rutherford and Hayden C. Covington, “Brief for Petitioner,” Jones v. City of Opelika.
284. William O. Douglas, An Almanac of Liberty (Garden City, NJ: Doubleday & Co., Inc., 1954) 150.
285. Hayden C. Covington, Jurisdictional Statement, New York v. Samuel Saia, 297 N.Y. 659 (1947): 13.
286. Hayden C. Covington, “Brief for Appellant,” Poulos v. New Hampshire, 345 U.S. 395 (1953): 11.
287. Covington, “Brief for Appellant,” Poulos v. New Hampshire, 13.
288. WBTS, Yearbook of Jehovah’s Witnesses (Brooklyn, NY: Watchtower Bible and Tract Society, 1939) 64–65.
289. Powell and Covington, “Statement as to Jurisdiction,” Follett v. McCormick, 5.
290. Covington, Powell, Coley Jr., Swayze, “Appellant’s Brief,” Marsh v. Alabama, 10–11.
291. Leckrone.
292. Covington, Defending and Legally Establishing the Good News, 8.
293. Rutherford and Covington, “Brief for Petitioner,” Jones v. City of Opelika, 26.
294. Covington, “Appellant’s Brief,” Largent v. Texas, 20.
295. See for example: Rutherford and Covington, “Brief for Petitioner,” Jones v. City of Opelika, or Covington, “Appellant’s Brief,” Largent v. Texas.
296. Covington, “Appellant’s Brief,” Largent v. Texas, 22.
297. High, 18.
298. Lilian Gobitis Klose in Peter Irons, “Here Comes Jehovah!” The Courage of their Convictions (New York: The Free Press, 1988) 31.
299. Dorothy Covington, interview with author.
300. Covington in Cole, 113.
301. Covington, interview with Bergman.
302. Bergman, interview with author.
303. Covington, interview with Bergman.
304. See for example, Lovell v. Griffin, Schneider v. New Jersey, Largent v. Texas, and Marsh v. Alabama.
305. Covington, interview with Bergman.
306. Jerry Bergman, interview with author.
307. WBTS, “History,” 426, in Manwaring, Render Unto Caesar, 27.
308. Harrison, 192.
309. Covington, Defending and Legally Establishing the Good News, 14.
310. Covington, Defending and Legally Establishing the Good News, 14.
311. Cole, 113.
312. “Griffin Jails 82 for Sect Tracts.”
313. “Eight of Jehovah’s Witnesses Fined $50 Each by Mayor; Counsel For Religious Sect Furnished Bail, Will Appeal,” News-Dispatch (Jeannette, Pennsylvania), 27 February 1940.
314. Newton, 54.
315. Newton, 56.
316. Cole, 113.
317. Lovell v. Griffin, 303 U.S. 444 (1938), Schneider v. New Jersey, 308 U.S. 147 (1939), Cantwell v. Connecticut, 310 U.S. 296 (1940), Cox v. New Hampshire, 312 U.S. 569 (1941), Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), Jones v. Opelika, 316 U.S. 584 (1942), Jamison v. Texas, 318 U.S. 413 (1943), Largent v. Texas, 318 U.S. 418 (1943), Murdock v. Pennsylvania, 319 U.S. 105 (1943), Martin v. Struthers, 319 U.S. 141 (1943), Douglas v. Jeannette, 319 U.S. 157 (1943), Prince v. Massachusetts, 321 U.S. 158 (1944), Follett v. McCormick, 321 U.S. 573 (1944), Marsh v. Alabama, 326 U.S. 501 (1946), Tucker v. Texas, 326 U.S. 517 (1946), Saia v. New York, 334 U.S. 558 (1948), Niemotko v. Maryland, 340 U.S. 268 (1951), Fowler v. Rhode Island, 345 U.S. 67 (1953), Poulos v. New Hampshire, 345 U.S. 395 (1953).
318. Covington, Defending and Legally Establishing the Good News, 15.
319. Covington, interview with Bergman.
320. “Witness’s Angle,” 70.
321. For example, jurisdictional statements, lower court decisions and briefs for the appellant or defendant.
322. Lovell v. Griffin, 449.
323. Covington, “Appellant’s Brief,” Largent v. Texas, 18.
324. Grosjean v. American Press Co., 297 U.S. 233 (1936).
325. Rutherford and Covington, “Brief for Petitioner,” Jones v. City of Opelika, 15.
326. Covington, Powell, Coley Jr., and Swayze, “Jurisdictional Statement,” Marsh v. Alabama, 21.
327. Covington, “Brief for Appellant,” Poulos v. New Hampshire, 15.
328. Covington, “Brief for Appellant,” Poulos v. New Hampshire, 15–16.
329. City of Griffin, “Appellant Brief,” Lovell v. City of Griffin, 2.
330. Covington, “Appellant’s Brief,” Largent v. Texas, 17.
331. Covington, “Brief for Appellant,” Poulos v. New Hampshire, 5.
332. In Gitlow v. New York, 268 U.S. 652 (1925).
333. Fiske v. Kansas, 274 U.S. 380 (1927).
334. Near v. Minnesota, 283 U.S. 697 (1931).
335. Martin v. City of Struthers.
336. Covington, “Jurisdictional Statement,” New York v. Samuel Saia, 16.
337. Powell and Covington, “Statement as to Jurisdiction,” Follett v. McCormick, 14.
338. Powell and Covington, “Statement as to Jurisdiction,” Follett v. McCormick, 13.
339. Covington, “Appellant’s Brief,” Largent v. Texas, 7.
340. Rutherford and Covington, “Petitioner’s Brief,” Jones v. City of Opelika, 14.
341. Covington, “Appellant’s Brief,” Largent v. Texas, 17.
342. Covington, “Appellant’s Brief,” Largent v. Texas, 16.
343. Powell and Covington, “Statement as to Jurisdiction,” Follett v. McCormick, 14.
344. Covington, “Brief for Appellant,” Poulos v. New Hampshire, 15.
345. Covington, “Brief for Appellant,” Poulos v. New Hampshire, 15.
346. Covington, “Appellant’s Brief,” Largent v. Texas, 318 U.S. 418 (1943): 5.
347. Covington, Powell, Coley Jr., and Swayze, “Jurisdictional Statement,” Marsh v. Alabama, 6.
348. Moyle and Karkus, “Petitioner’s Brief,” Schneider v. State, 3.
349. Coleman v. City of Griffin, 302 U.S. 636 (1937); 55 Ga. App. 123: 127.
350. Douglas, 150.
351. Prince v. Massachusetts, 163.
352. Cox v. New Hampshire, 578.
353. Marsh v. Alabama, 508.
354. Julius Himelfarb and Hayden C. Covington, “Application from County Court of Niagara Country for Allowance of Appeal to the Court of Appeals Pursuant to Article 520 of Code of Criminal Procedure,” State of New York County Court — Niagara County, 24 March 1947: 10.
355. Coleman v. City of Griffin.
356. Lovell v. Griffin.
357. Lovell v. Griffin, 447.
358. City of Griffin, “Appellant Brief,” Lovell v. City of Griffin, 4.
359. Lovell v. Griffin, 451.
360. Olin R. Moyle to A. L. Wirin, 7 June 1937 (ACLU Archives, Reel 151).
361. Schneider v. State, 157.
362. Schneider v. State, 158.
363. State v. Schneider, 121 N.J.L. 542 (1939): 609.
364. Schneider v. State, 164.
365. Martin v. City of Struthers, 142.
366. Martin v. City of Struthers, 143–144.
367. Cantwell v. Connecticut, 301–302.
368. Cantwell v. Connecticut, 307.
369. Cantwell v. Connecticut, 306.
370. Cantwell v. Connecticut, 303.
371. Rutherford and Covington, “Petitioner’s Brief,” Jones v. City of Opelika, 16.
372. Rutherford and Covington, “Petitioner’s Brief,” Jones v. City of Opelika, 16.
373. Osmond K. Frankel to American Civil Liberties Union, 1 May 1942 (ACLU Archives, Reel 207).
374. Jones v. Opelika, 598.
375. Jones v. Opelika, 608.
376. The idea of the “preferred position” of the First Amendment arose in the several Supreme Court decisions in the late 1930s. For example, in 1937 Justice Benjamin Cardozo noted in Palko v. Connecticut that First Amendment freedoms made up “the matrix, the indispensable condition, of nearly every other form of freedom. These freedoms, he wrote, were “so rooted in the traditions and conscience of our people as to be ranked fundamental.” 302 U.S. 319 (1937): 325–327. A year later, Justice Stone also wrote in the footnote of United States v. Carolene Products Co., 304 U.S. 144 (1938), of the need for special protections granted under First Amendment freedoms. In this footnote, Stone asked his brethren to consider hypothetically “whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities …”
377. Jones v. Opelika, 608.
378. Victor W. Rotnem and F. G. Folsom, Jr., “Recent Restrictions Upon Religious Liberty,” American Political Science Review, (December, 1942): 1066.
379. “Ominous Decision,” 55.
380. “A Test of Freedom,” 20.
381. Moley, “The Boot Is On the Other Leg,” 68.
382. Jamison v. Texas.
383. Jamison v. Texas, 417.
384. Largent v. Texas, 418.
385. Covington, “Appellant’s Brief,” Largent v. Texas, 8.
386. Covington, “Appellant’s Brief,” Largent v. Texas, 15.
387. Covington, “Appellant’s Brief,” Largent v. Texas, 7.
388. Largent v. Texas, 422.
389. Largent v. Texas, 422.
390. The ordinance in this case was so old it referred to the elected representative heading a town as a Burgess, a title given to a member of the British parliament who had formerly represented a town, borough, or university.
391. Murdock v. Pennsylvania, 111.
392. Murdock v. Pennsylvania, 113.
393. Murdock v. Pennsylvania, 117.
394. Douglas v. City of Jeanette, 160.
395. The ruling in Murdock v. Pennsylvania involved Jehovah’s Witnesses canvassing in a town where they were not residents.
396. McCormick v. Follett.
397. Powell and Covington, “Statement as to Jurisdiction,” Follett v. McCormick, 10.
398. Follett v. McCormick, 577.
399. Prince v. Massachusetts, 162.
400. Prince v. Massachusetts, 163.
401. Prince v. Massachusetts, 163.
402. Prince v. Massachusetts, 170.
403. Cantwell v. Connecticut, 309.
404. Cantwell v. Connecticut, 310.
405. Cantwell v. Connecticut, 310.
406. Bergman, interview by author.
407. Chaplinsky v. New Hampshire, 569.
408. Chaplinsky v. New Hampshire, 569.
409. Rutherford and Covington, “Jurisdictional Statement,” Chaplinsky v. New Hampshire, 16.
410. Rutherford and Covington, “Jurisdictional Statement,” Chaplinsky v. New Hampshire, 7.
411. Rutherford and Covington, “Jurisdictional Statement,” Chaplinsky v. New Hampshire, 7.
412. Interestingly, while the Jehovah’s Witnesses viewed the Chaplinsky decision as a restriction of First Amendment protections, the fighting words doctrine has been used in recent years to protect free speech. In two cases involving hate speech on college campuses, John Doe v. University of Michigan, 721 F. Supp. 852 (1989) and UWM Post v. Board of Regents of the University of Wisconsin, 774 F. Supp. 1163 (1991), the courts ruled that the speech codes were unconstitutional because the rules therein did not articulate the standard set forth in Chaplinsky. The codes may only regulate speech that “by its very utterance, tends to incite a violent reaction.”
413. Chaplinsky v. New Hampshire, 569.
414. Cox v. New Hampshire, 572.
415. Cox v. New Hampshire, 578.
416. Marsh v. Alabama, 503.
417. Covington, Powell, Coley Jr. and Swayze, “Jurisdictional Statement,” Marsh v. Alabama, 17.
418. Covington, Powell, Coley Jr., and Swayze, “Jurisdictional Statement,” Marsh v. Alabama, 27.
419. Covington, Powell, Coley Jr., and Swayze, “Jurisdictional Statement,” Marsh v. Alabama, 21.
420. Marsh v. Alabama, 507.
421. Marsh v. Alabama, 508.
422. “Jehovah’s Witnesses Cases Extend Religious Liberty,” The Christian Century, 23 January 1946, 101.
423. “Civil Rights v. Property Rights,” The New Republic, 21 January 1946, 69.
424. “Supreme Court Reverses Convictions of Jehovah’s Witnesses,” Publishers’ Weekly, 16 February 1946, 1137.
425. Tucker v. Texas, 518.
426. Tucker v. Texas, 520.
427. Saia v. New York, 558.
428. Saia v. New York, 559.
429. Covington, “Jurisdictional Statement,” Saia v. New York, 16.
430. Covington, “Jurisdictional Statement,” Saia v. New York, 16.
431. Covington, “Jurisdictional Statement,” Saia v. New York, 19.
432. Covington, “Jurisdictional Statement,” Saia v. New York, 19.
433. Saia v. New York, 560.
434. Saia v. New York, 562.
435. Saia v. New York, 561–562.
436. Niemotko v. Maryland, 272.
437. Niemotko v. Maryland, 272.
438. Fowler v. Rhode Island, 67.
439. Fowler v. Rhode Island, 69.
440. Poulos v. New Hampshire, 396.
441. Covington, “Brief for Appellant,” Poulos v. New Hampshire, 12.
442. Covington, “Brief for Appellant,” Poulos v. New Hampshire, 12.
443. Poulos v. New Hampshire, 405.
444. Poulos v. New Hampshire, 405.
445. Poulos v. New Hampshire, 421.
446. Poulos v. New Hampshire, 426.
447. George Dugan, “42,110 ‘Witnesses’ Undaunted By Rain,” The New York Times, 24 July 1953, 13.
448. Dugan, 13.
449. McAninch, 1076.
450. Archibald Cox, The Court and the Constitution (Boston: Houghton Mifflin Company, 1987) 191.
451. Waite, 246.
452. Mulder and Comisky, 262.
453. Ralph Dornfeld Owen, “Jehovah’s Witnesses and Their Four Freedoms,” University of Detroit Law Journal, (March, 1951): 134.
454. Zachariah Chafee Jr., Freedom of Speech in the United States (Cambridge, MA: Harvard University Press, 1941) 407.
455. Chafee Jr., 406.
456. Hasson, 94.
457. “Witness’s Angle,” 70.
458. McAninch, 1076.
459. See Vose, Caucasians Only.
460. Stephen L. Wasby, Race Relations Litigation in an Age of Complexity (Charlottesville, VA: University of Virginia Press, 1995).
461. Lovell v. Griffin.
462. Harrison, 185.
463. Covington, “Appellant’s Brief,” Largent v. Texas, 11.
464. See for example: Boudin, 9; Sorauf, 91; McAninch, 1076; Schwartz, 241; and Hasson, 83.
465. This is especially true among litigants in libel, sedition and obscenity cases.
466. Cole, 114.
467. Dorothy Covington, interview with author.
468. Many similar litigation strategies undertaken by civil liberties organizations have failed due to a lack of control over the litigants in their cases. For example, Stephen L. Wasby explains that “while many consider the NAACP and the NAACP’s litigation in the school desegregation cases to be the first planned litigation strategy, in reality, the group had difficulty developing a clear plan or sticking to that plan, primarily because they could not select or control the litigants for their cases.” Wasby, 142–43.
469. For example, Covington explained “In fighting for their liberties, the way they are, Jehovah’s Witnesses are building a buttress of protection for the rights of all the American people.” Covington, “Brief for Appellant,” Poulos v. New Hampshire, 28.
470. Hayden Covington repeatedly made reference to the importance of the free flow of information. Covington’s passionate conclusion in the Supreme Court Brief for Jones v. City of Opelika best sums up his position: “An unsubsidized press is essential to and a potent fact in instructive information and education of the people of a democracy, and a well informed people will perpetuate our constitutional liberties.” J. Chapman, State ex rel. Wilson et. al. v. Russell, 1 So. 2d 569 (1941) quoted in Joseph F. Rutherford and Hayden C. Covington, “Petitioner’s Brief,” Jones v. City of Opelika, 316 U.S. 584 (1942): 38. “In democratic lands,” Covington wrote a decade later, “every person within the county has the right to state publicly his disagreements.” Covington, Defending and Legally Establishing the Good News.
471. Rutherford and Covington, “Brief for Petitioner,” Jones v. City of Opelika.
472. Gitlow v. New York.
473. The conservatives on the 1930s Supreme Court included Willis Van Devanter, Pierce Butler, James C. McReynolds and George Sutherland known collectively as the “Four Horsemen.” These four Justices fervently opposed New Deal legislation advanced by Franklin D. Roosevelt, and had little concern with civil rights issues, usually voting against the rights of minority groups.
474. Chief Justice Charles Evans Hughes’ landmark opinion in Lovell v. Griffin in 1938 shows the extent of his dedication to free speech and press rights.
475. Cantwell v. Connecticut.
476. Discussion of the incorporation of the free exercise of religion via the Fourteenth Amendment can be found in two cases prior to Cantwell, Meyer v. Nebraska, 262 U.S. 390 (1923) and Hamilton v. Regents of the University of California, 292 U.S. 245 (1934), although neither of these cases ultimately secured that protection.
477. Most, but of course not all, religious rites were protected. The First Amendment “embraces two concepts — freedom to believe and freedom to act. The first is absolute, but the second remains subject to regulation for the protection of society.” Cantwell v. Connecticut, 310 U.S. 296 (1940). The Supreme Court has consistently ruled against religions whose actions have come into conflict with the Constitution. The Mormons, for example, cannot legally practice polygamy.
478. The Supreme Court initially ruled on the taxation of newspapers in Grosjean v. American Press Co., 297 U.S. 233 (1936). In Grosjean, the Court ruled that the taxation of newspapers would constitute an unconstitutional prior restraint on the press. These taxes had the potential to limit the circulation of information guaranteed under the First Amendment. The Jehovah’s Witnesses literature distribution cases expanded this decision to include all information distributed door-to-door.
479. See for example: New York City v. American School Publications, 509 N.E. 2d 311 (1987); Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988); Phoenix Newspapers, Inc., v. Tucson Airport Authority, 22 M.L.R. 1504 (1993).
480. See New York Times v. Sullivan, 376 U.S. 254 (1964); Minneapolis Star v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983); Texas Monthly v. Bullock, 109 S. Ct. 890 (1989); Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988).
481. Bigelow v. Virginia, 421 U.S. 809 (1975).
482. Metromedia v. San Diego, 453 U.S. 490 (1981).
483. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
484. Burstyn v. Wilson, 343 U.S. 495 (1952).
485. Amalgamated Food Employees Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968); Lloyd Corporation v. Tanner, 407 U.S. 551 (1972); Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980).
486. See International Society for Krishna Consciousness v. Lee, 112 S. Ct. 2701 (1992); Lee v. International Society of Krishna Consciousness, 112 S. Ct. 2709 (1992); Heffron v. International Society, 452 U.S. 640 (1981).
487. Houchins v. KQED, 438 U.S. 1 (1978).
488. See Cohen v. California, 403 U.S. 15 (1971); R.A.V. v. St. Paul, 112 S. Ct. 2538 (1992); Texas v. Johnson, 491 U.S. 377 (1989).
489. Ex parte Jackson, 96 U.S. 727 (1877): 733 in Lovell v. Griffin, 303 U.S. 444, (1938): 452.
490. Interestingly, press coverage of the most recent Jehovah’s Witnesses literature distribution case, Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, was limited to a narrow discussion of the free exercise of religion. It seems reporters and editors of our major daily newspapers still viewed the primary issue of these cases, even in 2002, to be the protection of religious practices for a few rather than the free flow of information for all. See for example: Linda Greenhouse, “Court Strikes Down Curb on Visits from Jehovah’s Witnesses,” The New York Times, 18 June 2002, A12.
491. Hollis W. Barber, “Religious Liberty v. Police Power,” The American Political Science Review, (April, 1947): 247.
492. See for example: Lovell v. Griffin, Martin v. City of Struthers, Cantwell v. Connecticut, Cox v. New Hampshire, Chaplinsky v. New Hampshire, Jamison v. Texas, Prince v. Massachusetts, Marsh v. Alabama.
493. The preferred position theory was introduced in 1937 by Justice Benjamin Cardozo in Palko v. Connecticut, 302 U.S. 319 (1937). A year later, Justice Harlen Fiske Stone expanded this idea in the footnote of United States v. Carolene Products Co., 304 U.S. 144 (1938). The Supreme Court clarified this theory even further in the Jehovah’s Witnesses case, Jones v. Opelika, 608.
494. Schneider v. State.
495. Clement Vose, “Litigation as a Form of Pressure Group Activity,” 23.
496. 319 U.S. 157 (1943).
497. Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 122 S. Ct. 392 (2002).
498. Whalen, 190.