Below is a short legal analysis prepared by ACLJ attorneys on this topic. A more in-depth legal analysis is available here.
The streets and sidewalks of the United States are an open forum for evangelism. The Constitution guarantees the right to preach the Gospel in public places. The Supreme Court’s many cases involving preaching (or other speech activities) on the streets provide ready answers to those who challenge your right to give away religious tracks, pamphlets, and other printed martial and to speak with people on the street about your faith.
What laws protect my right to witness and share my faith in public?
When you give away religious tracts in public places - streets, sidewalks, and parks - you are engaged in a form of speech and publication protected by the United States Constitution and civil rights laws. When you speak with someone about the Gospel while in a public place, you enjoy constitutional protection.
As American citizens, we are protected by the United States Constitution from government interference with our right of free speech. This includes the right to evangelize. Also, the Constitutions of every state in our country include guarantees of free speech, which are at least as protective of free speech as the federal Constitution.
The First Amendment to the United States Constitution provides, "Congress shall make no law . . . abridging the freedom of speech," and the Fourteenth Amendment states, "[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . ." The Supreme Court has ruled that these two provisions of the Constitution severely limit the power of federal, state, and local governments to interfere with speech activities on sidewalks, streets and in parks. Moreover, Supreme Court “precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression.” Capitol Square & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995).
It is a constitutional axiom that the distribution of free religious literature is a form of expression protected by the First Amendment. Heffron v. International Society for Krishna Consciousness, 452 U.S. 640 (1981); Lovell v. City of Griffin, 303 U.S. 444 (1938). As the Supreme Court unequivocally held in Murdock v. Pennsylvania:
The hand distribution of religious tracts is an age old form of missionary evangelism -- as old as the history of printing presses. It has been a potent force in various religious movements down through the years. . . . It is more than preaching; it is more than distribution of religious literature. It is a combination of both. Its purpose is as evangelical as the revival meeting. This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits.
319 U.S. 105, 108-09 (1943) (footnotes omitted).
Am I soliciting when I hand out religious literature and share my faith?
No! Giving away free Gospel tracts and talking to people about salvation are not the same thing as soliciting. The Supreme Court has held that there is a difference between soliciting and leafleting. In United States v. Kokinda, 497 U.S. 720 (1990), the Supreme Court permitted the postal service to enforce a rule against asking (soliciting) for donations on postal property. However, the Court suggested that it would reject a rule that banned free distribution of literature on such properties, stating:
As residents of metropolitan areas know from daily experience, confrontation by a person asking for money disrupts passage and is more intrusive and intimidating than an encounter with a person giving out information. One need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone's hand, but one must listen, comprehend, decide and act in order to respond to a solicitation.
Id. at 734 (plurality).
In ISKCON v. Lee, 505 U.S. 672 (1992), and Lee v. ISKCON, 505 U.S. 830 (1992), the Supreme Court considered a restriction on leafleting and another restriction on solicitation of donations in airport terminals. The Court concluded that solicitation is separate from literature distribution and that, despite the fact that the airport terminals were nonpublic forums, a regulation barring the distribution of free literature in the terminals was unreasonable and unconstitutional. Accordingly, while a city official may, in some instances, not allow solicitation, such a regulation may not be broadened to include literature distribution. As long as you are giving away your literature for free, and not asking for donations, you are engaging in the most protected form of speech.
Where can I go to hand out Gospel tracts to the public?
You can go to any publicly owned street, sidewalk, or park. In legal terms, streets, sidewalks, and parks are called "traditional public forums." The Supreme Court has held that a traditional public forum is government property that is traditionally opened to public speech, Hague v. C.I.O., 307 U.S. 496, 515 (1939), including such places as streets, sidewalks, and parks, see United States v. Grace, 461 U.S. 171, 177 (1983). That means that these are the places that are open to public speeches, leafleting, newspaper distribution, political rallies, public marches, and other speech activity.
You are not merely limited to streets, parks, and sidewalks for tract distribution; courts have found many other places to be appropriate. Subject to local laws and ordinances, airport terminals, bus and train stations, and walkways surrounding government-owned coliseums, stadiums, and memorials may be appropriate locations for leafleting. See, e.g., Bd. of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569 (1987) (resolution banning all first amendment expression in the public forum of an airport was unquestionably overbroad); Grace, 461 U.S. at 180 (holding that the sidewalks surrounding the Supreme Court constitute a public forum); Jews for Jesus v. Mass. Bay Transp. Auth., 984 F.2d 1319 (1st Cir. 1993) (overturning a complete ban on noncommercial expressive activity in a train station).
Sometimes a city official will get confused about these "traditional public forums." For example, in Frisby v. Schultz, 487 U.S. 474 (1988), the Supreme Court rejected a Wisconsin city's argument that the streets and sidewalks of a residential area were not the sort of "traditional public forums" that the Court had held were generally open to free speech and activities.
The Court noted in Frisby, however, that some time, place, and manner restrictions are permissible depending on the nature of the streets at issue. Id. at 481. For example, a rule against parades between sunset and sunrise on residential streets serves a valid purpose of protecting the peace of a neighborhood when most residents are resting. It is wise to look up local laws and ordinances ahead of time. You can always call the local police station if you have questions.
If I am witnessing on the public sidewalk in front of a business, am I “loitering,” and can I be required to move away from the business?
No! "Loitering" is the criminal offense of remaining in a certain place (such as a public street) for no apparent reason.” Black’s Law Dictionary 1027 (Bryan A. Garner ed., 9th ed. 2009). Evangelism activities, however, are a legitimate purpose for standing on a public sidewalk. See Chicago v. Morales, 527 U.S. 41, 53 (1999) (noting the difference between remaining in one place with no apparent purpose and conduct intended to convey a message).
Do not stand in the middle of the street where you will be obstructing the flow of traffic. The government may prohibit this in the interest of vehicle and pedestrian safety. See, e.g., Sun-Sentinel Co. v. Hollywood, 274 F. Supp. 2d 1323 (S.D. Fla. 2003). Your right to use the sidewalks, streets and parks is not a license to make them unusable for others, e.g., barricading a sidewalk, allowing only those who will take a tract to pass. See, e.g., Cox v. Louisiana, 379 U.S. 536, 555 (1965).
Do I have the same rights to witness on the streets of a town in which I don’t live?
The constitutional protection of free speech under the First Amendment applies to all citizens and aliens and extends throughout the United States. Thus you are not limited to sharing your faith on the streets, sidewalks, and parks in your town. The Supreme Court has acknowledged that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983). Many cases which the ACLJ has won involve visitors from other towns or other states.
What should I do to get started witnessing and sharing my faith in public?
First, devote time to prayerful preparation. Next, select a location. You may choose a place because of the opportunity to reach many people - outside a sports stadium or near an historic monument. You may also have a target group in mind. For example, if your burden is for young people, you will want to pick locations where they pass by or gather.
If the location you choose is not a nice, simple sidewalk location, you should speak to the appropriate authority to discover what rules have been adopted to govern your activities. (This does not mean that you must always accept, as good law, a rule barring leafleting.) Check with a county clerk, the police department, the security office at the stadium, or similar offices. This will let you know what to expect when you witness.
If you are in a public place and are stopped from distributing free literature, do not assume that it was correct for you to be stopped. Too many Supreme Court cases have been decided against governments on these matters to assume that the government is always right. Just by challenging them, the government often changes their policies.
The First Amendment protects your right to proclaim the Gospel in a public place, and the city bus station is a public place. You canít cause any disruptions, but you have the right to exercise free speech activity in those areas. I would advise you to let the police know you're there because of the security concerns involved, but you shouldn't have any difficulty.
A sidewalk is a protected area for free speech activity. The blue-outlined area that you referred to is what's usually used for the distribution of commercial material. They make you stand in a particular area near the facility that you're trying to get people to patronize. The businesses are required to stay in a certain area, because they're engaged in what's called commercial speech; the rules are somewhat different between commercial speech and free speech. The distribution of Christian literature is not the solicitation of business; it is not a solicitation of money. It's supposed to be allowed without interference. The First Amendment gives you a lot of protection, and there is an absolute misunderstanding of the law on the part of the policeman and city council members. Number one, you were engaged in the distribution of religious literature, and that's protected activity. Number two, the city sidewalk that you were on is public property, which means it's a public forum, which means it's available for the proclamation of the gospel. You're not allowed to block businesses, obviously; you've got to honor what's called a reasonable time, place, and manner restriction. But the proclamation of the gospel is not in the same category as the guy who's giving out two-for-one drink discounts for a bar. That's just not the way the law is supposed to work. It was a misunderstanding by both the policeman and the city council members. But as I always say, if youíre going to go with a group especially, let police officers know that you're coming and what you're going to be doing. Proclaim the gospel, but in light of security concerns itís always good to let the police know what's happening.
In the kind of context you're describing, you absolutely have the right to engage in the sharing of the Gospel. Of course, you need to do it in a way that's complimentary to the medical services you offer. And what I mean by that is, you want to be careful not to do anything to disrupt or interfere with the delivery of medical services. Christian ministries have been providing medical services to people in need since the beginning of Christianity. Medical services are part of the charitable works that have been done by Christian churches and missions for literally 2000 years, starting with the Good Samaritan. In that sense, what you are providing is nothing new, and the sharing of the gospel, in that context, is allowed; it's appropriate. With a private medical clinic, those doctors and other medical staff have the right to share the gospel in a loving way, without the fear of repercussions. You should really be in great shape there, legally. This is a question we hear often, and for most of us who have spent time in hospitals, there are times when people want to talk about faith and a need for prayer. Patients will say to a doctor or nurse, "Will you pray for me?" And many nurses will say, "Yes, I'll be happy to pray for you." In fact, there's even scientific data showing that prayer activity helps the healing process. As long as it's patient-initiated, there's absolutely no difficulty whatsoever with a Christian praying for a patient. If a patient says, "Will you pray for me?" and the nurse says, "Yes, I will," that's protected activity. It's not illegal; it's not a violation of the law. You have a more difficult situation when the nurse or doctor initiates the prayer activity, but even then, it's protected, as long as there is no inherent medical risk, which certainly there should not be. Most patients are very receptive. Prayer activity is legally allowed within the confines of a hospital.
The idea that you would not be allowed to share the gospel with tracts -- especially tracts put out by Our Daily Bread and some of these other groups, which are a great presentation of the gospel -- in a senior housing situation is wrong. In government housing, you have the First Amendment right to engage in this. And in private housing, there should not be a policy banning religious discussions or literature distribution that's religious in nature. That should not be a problem whatsoever. You know, what's interesting here is, you would think that this is the kind of thing that's encouraged in the senior housing projects and homes for senior citizens. Bible studies going on, prayer groups meeting - these are the kind of things you want to see happen. And why not share information, share knowledge, get information out? These assisted living facilities should not be religious-free zones. Many of them are run by church organizations, and some are governmental. I can't imagine that this assisted living center would not permit the distribution of other materials. There are all kinds of material being circulated and distributed in these kinds of facilities. You know what the problem is? They think that if they allow religious discussions to take place or religious literature to be distributed on the facility's premises that they're going to get in trouble by creating some kind of hostile religious environment. That's what they're all thinking about. Everybody's thinking about liability and lawsuits. That's how these situations develop. But there is no liability or lawsuit for leaving out tracts, Bible verses, biblical commentary, etc., for people to read. There's no problem with that. This isn't illegal activity in the United States of America.
If it's on public sidewalks, the First Amendment protects you. Public sidewalks are deemed to be traditional public forums, which means they are appropriate places for free speech. Sidewalks have always been deemed those types of places, and the distribution of religious literature by a church, or by individual members of the church, or by individual citizens, is protected activity under the Constitution. What you've got here is an intermediary, if you will, that is putting on the farmer's market, and they are trying to lease away your First Amendment rights, which should not be allowed. I had a similar case in New York City a number of years ago, with an area called the South Street Seaport in New York City. In that particular case you had the same kind of thing: the facilities were leased through a private group, and the private group was trying to say there were no First Amendment rights to distribute literature on a public sidewalk, that it was private property. But the reality was, it was public property, and the literature distribution activity was protected. The Supreme Court has been very consistent in affirming the right to literature distribution on a public sidewalk. However, if this is private property, the management can set the rules on who gets access and who does not. I need to say this though: if they did allow you to distribute the material, they would not be violating any law. Sometimes business owners think that they have to deny access for distribution of religious materials because they'd be violating the law somehow. The fact is, they're not. But these cases always depend on whether the property is private or public, and with private property, they can set the tone of who comes in and who does not.
You absolutely have the right to talk about Jesus at the senior center. Some time ago, we had situation about a senior center where they allowed bingo, tap dancing and community discussions, but they wouldn't allow a Bible study. We've litigated cases like this and we've been very, very successful in getting these resolved. The answer is - you can talk about your faith, you can even have a Bible study or prayer group meeting at a senior center.
I know Jews for Jesus, Chosen People Ministries and other groups do large outreaches each year. And a lot of churches do outreaches, especially in parks. You'll see summer gospel series, where they'll do music and then there will be some preaching. And those areas are open for free speech. Now, there may be regulations that you need to comply with, letting the law enforcement officers know that you're going to be there. Or if it's a larger gathering, you may have to get a reservation for the park facilities. But you can't be denied the right to do that. They just have normal time, place and manner restrictions as they're called. Private shopping centers, though, are generally private, and they're off-limits to free speech, unless the owner of the mall consents. In some states they allow it more broadly, but generally not. But the public streets and sidewalks, the public parks, those are open for free speech. And each year you see a lot of very creative community outreaches in order to share the gospel.