By Josie Rosene

It is common to see people knocking on doors to sell goods or services, or to express religious or political beliefs. These people are known as peddlers, solicitors, transient merchants, and canvassers and the specific activities in which they engage determine a city’s ability to regulate them.

The commerce clause

The fundamental differences among these activities are determined by the commerce clause. The commerce clause is a part of the United States Constitution that gives Congress the power to regulate commerce — buying and selling on a national scale — between states. Of importance to cities, the commerce clause prevents states from interfering with interstate commerce — the movement of goods, services, or money across state borders.

Peddlers, solicitors, canvassers, and transient merchants

Peddlers carry their products and deliver at the time of sale. Cities can license or register peddlers without fear of violating the commerce clause because goods are not shipped from out of state to be delivered later.

Solicitors take orders for goods or services that will be delivered or performed at a later date. The commerce clause restricts a city’s ability to license solicitors; some solicitors who take orders in one state may have the goods delivered in the future from another state. However, cities can require solicitors to register before soliciting as a way to track and monitor door-to-door sales activity, ensure that only legitimate businesses operate within the city, and protect residents from potential scams.

Canvassers promote and ask for support for religious and ideological purposes, which is protected First Amendment speech. If canvassing only involves advocacy, cities cannot impose a prior restraint — a regulation that prevents speech or expression before it occurs — like a license or registration.

Transient merchants are similar to peddlers and permanent businesses; they sell goods or services temporarily in a nonpermanent location. Cities can adopt ordinances to regulate and license transient merchants and provide criminal penalties for violating city regulations.

Soliciting donations

You might also see people soliciting donations like food or money on the street. This type of solicitation is a form of speech, and city regulation of speech raises First Amendment concerns.

Cities across the country have enacted ordinances restricting and even criminalizing this activity. Although the U.S. Supreme Court has not addressed this specific issue, it has addressed regulations on direct solicitation by charities by holding that “solicitation of money is closely intertwined with speech,” and that “solicitation to pay or contribute money is protected under the First Amendment.” However, some ordinances that prohibit soliciting donations have been upheld where cities have found the activity adverse to the purpose of the public space.

Generally, public property that is neither a traditional nor designated public forum can still serve as a forum for free speech if it is appropriate for the property. Ordinances prohibiting solicitation in the city’s subway system, at state fairgrounds, on sidewalks outside of a post office, and within an airport terminal, however, have been upheld because cities found the solicitation inappropriate for the public property where it took place.

Constitutional issues — the First Amendment

When the constitutionality of a city ordinance is challenged, courts apply one of three levels of judicial scrutiny. Judicial scrutiny is a process courts use to review laws to determine if they are constitutional. The level of judicial scrutiny applied depends on the nature of the law being challenged:

• Strict scrutiny. The highest standard of review. The challenged law must be narrowly tailored to achieve a compelling government interest.
• Intermediate scrutiny. The challenged law must further an important government interest and be substantially related to that interest.
• Rational basis review. The lowest standard of review. The challenged law must be rationally related to a legitimate government interest.

Generally, city regulations must be content- neutral, meaning that they apply to all speech regardless of its message. Content- neutral laws regulate only the time, place, and manner of speech (when, where, or how people can express themselves publicly), as opposed to content-based laws. This is an important distinction because courts review content-based laws with strict scrutiny and content-neutral laws with intermediate scrutiny.

Generally, cities can adopt content-neutral time, place, and manner restrictions related to speech. The same goes for peddlers, solicitors, and transient merchants, although courts have not addressed soliciting donations specifically. These ordinances must also pass intermediate scrutiny, meaning that they must further an important government interest and be substantially related to that interest. They must also allow other ways to communicate, like leaving donation request forms, restaurant menus, or other order forms.

Overall, regulation of peddlers, solicitors, and transient merchants is an unsettled area of law subject to evolving legal interpretations. Because of the constitutional protections at play, cities should work with their city attorney when adopting or amending any regulation that affects peddlers, solicitors, transient merchants, and canvassers.

Learn more in the LMC information memo, Regulating Peddlers, Solicitors, and Transient Merchants at lmc.org/transient-merchants.

Josie Rosene is a staff attorney at the League of Minnesota Cities. Contact: [email protected] or (651) 281-1205.