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62 S.Ct. 1231 Page 1
316 U.S. 584, 62 S.Ct. 1231, 141 A.L.R. 514, 86 L.Ed. 1691
(Cite as: 316 U.S. 584, 62 S.Ct. 1231)
92XIII Freedom of Religion and Conscience the ordinary commercial methods of sales of art-
92XIII(B) Particular Issues and Applications icles to raise propaganda funds, the state may
92k1389 k. Solicitation; Distribution of charge reasonable fees for the privilege of can-
Literature. Most Cited Cases vassing, and, because proper charges may be ex-
(Formerly 92k274(3.1), 92k274(3), 92k274) panded into abridgements of the freedoms of
speech, press, or religion, they are not therefore in-
Constitutional Law 92 1872 valid on their face. U.S.C.A.Const. art. 1, § 1 et
seq.; Amend. 14.
92 Constitutional Law
92XVIII Freedom of Speech, Expression, and [9] Constitutional Law 92 4033
Press
92XVIII(M) Soliciting, Canvassing, Pamph- 92 Constitutional Law
letting, Leafletting, and Fundraising 92XXVII Due Process
92k1872 k. Licenses and Permits in Gen- 92XXVII(G) Particular Issues and Applica-
eral. Most Cited Cases tions
(Formerly 92k274.1(2.1), 92k274.1(2), 92k274) 92XXVII(G)1 In General
92k4033 k. Religion and Conscience.
Constitutional Law 92 1879 Most Cited Cases
(Formerly 92k274(3.1), 92k274(3), 92k274)
92 Constitutional Law
92XVIII Freedom of Speech, Expression, and Constitutional Law 92 4034
Press
92XVIII(M) Soliciting, Canvassing, Pamph- 92 Constitutional Law
letting, Leafletting, and Fundraising 92XXVII Due Process
92k1879 k. Charities or Religious Organ- 92XXVII(G) Particular Issues and Applica-
izations. Most Cited Cases tions
(Formerly 92k274.1(2.1), 92k274.1(2), 92k274) 92XXVII(G)1 In General
92k4034 k. Speech, Press, Assembly,
Constitutional Law 92 2070 and Petition. Most Cited Cases
(Formerly 92k274.1(1), 92k274)
92 Constitutional Law
The freedoms of speech, press and religion are
92XVIII Freedom of Speech, Expression, and
guaranteed against abridgement by the Fourteenth
Press
Amendment, and the legislative power of municip-
92XVIII(U) Press in General
alities must yield when abridgement is shown.
92k2070 k. In General. Most Cited Cases
U.S.C.A.Const. Amend. 14.
(Formerly 92k274.1(2.1), 92k274.1(2), 92k274)
[10] Constitutional Law 92 1391
Constitutional Law 92 2079
92 Constitutional Law
92 Constitutional Law
92XIII Freedom of Religion and Conscience
92XVIII Freedom of Speech, Expression, and
92XIII(B) Particular Issues and Applications
Press
92k1390 Licenses
92XVIII(U) Press in General
92k1391 k. In General. Most Cited
92k2079 k. Distribution of Materials in
Cases
Public Places. Most Cited Cases
(Formerly 92k274(3.1), 92k274(3))
(Formerly 92k274.1(2.1), 92k274.1(2), 92k274)
Where proponents of religious or social theories use Constitutional Law 92 1590
as against any particular occupation exhib- presented to those in the Jobin case, No. 966, va-
ited in the foregoing schedule be held void cated the denial of certiorari and issued a writ. 315
or invalid, such invalidity shall not affect U.S. 793, 62 S.Ct. 903, 86 L.Ed. 1196.
any other section, rate or provision of this
license schedule.’ FN6 ‘Be it Ordained by the Board of Com-
missioners of the City of Fort Smith,
FN5 His wife was selling pamphlets from a Arkansas:
portable stand on the sidewalk nearby.
‘ Section 1. That the license hereinafter
named shall be fixed and imposed and col-
No. 314. lected at the following rates and sums and
it shall be unlawful for any person or per-
Petitioners Bowden and Sanders were arrested by
sons to exercise or pursue any of the fol-
police officers of Fort Smith, **1235 Arkansas,
lowing vocations of business in the city of
brought before the Municipal Court on charges of
Fort Smith, Arkansas, without first having
violation of City Ordinance No. 1172, and con-
obtained a license therefor from the city
victed. They appealed to the Sebastian Circuit
clerk and having paid for the same. * * *
Court, and there moved to dismiss on the ground
that the ordinance was an unconstitutional restric- ‘Section 40. For each person peddling dry
tion of freedom of religion and of the press, con- goods, notions, wearing apparel, household
trary to the Fourteenth Amendment. The circuit goods or other articles not herein or other-
judge heard the case de novo without a jury on stip- wise specifically mentioned $25 per
ulated facts. The ordinance required a license ‘For month, $10 per week, $2.50 per day. A
each person peddling dry goods, notions, wearing person, firm or corporation using two or
apparel, household goods or other articles not more men in their peddling business $50
herein or otherwise specifically mentioned $25 per per annum.’
FN6
month, $10 per week, $2.50 per day.' *589 The
petitioners, in the exercise of their beliefs concern-
ing their duty to preach the gospel, admitted going No. 966.
from house to house without a license, playing
The City of Casa Grande, Arizona, by ordinance
phonographic transcriptions of Bible lectures, and
made it a misdemeanor for any person to carry on
distributing books setting forth their views to the
any occupation or business specified without first
residents in return for a contribution of twenty-five FN7
procuring a license. *590 Transient merchants,
cents per book. When persons desiring books were
peddlers and street vendors were listed as subject to
unable to contribute, the books were in some in-
a quarterly license fee of $25.00, payable in ad-
stances given away free. The Circuit judge con- FN8
vance. In the Superior Court of Pinal County
cluded as a matter of law that the books were ‘other
Jobin was tried and convicted by a **1236 jury on
goods' and that petitioners were guilty of the ped-
a complaint charging that not having ‘a permanent
dling without a license. A motion for new trial was
place of business in the City’ he there carried on the
denied. On appeal the Supreme Court of Arkansas
‘business of peddling, vending, selling, offering for
held the ordinance constitutional on the authority of
sale and soliciting the sale of *591 goods, wares
its previous decision in Cook v. Harrison, 180 Ark.
and merchandise, to wit: pamphlets, books and pub-
546, 21 S.W.2d 966, and affirmed the convictions.
lications without first having procured a license,’
202 Ark. 614, 151 S.W.2d 1000. This Court denied
contrary to the ordinance. The evidence for the
certiorari, 314 U.S. 651, 62 S.Ct. 99, 86 L.Ed. 522,
state showed that without a license the appellant
but later, because of the similarity of the issues
called at two homes and a laundry and offered for every day or fractional part of a day that
sale and sold books and pamphlets of a religious any trade, calling, profession, business or
nature. At one home, ccompanied by his wife, he occupation in this ordinance specified is
was refused admission, but was allowed by the girl conducted or carried on without such li-
who came to the door to play a portable phono- cense shall be a misdemeanor, * * *
graph on the porch. The girl purchased one of his
stock of books, ‘Religion,’ for a quarter, and re- ‘Section 2. It shall be the duty of the City
ceived a pamphlet free. During the conversation he Clerk * * * to prepare and to issue a li-
stated that he was an ordained minister preaching cense under this ordinance for every per-
the gospel and quoted passages from the Bible. At son * * * liable to pay a license hereunder.
the second home the lady of the house allowed him ***
and his wife to enter and play the phonograph, but
‘Section 4. * * * Every person having such
she refused to buy either books or pamphlets. When
a license, and not having a fixed place of
departing the appellant left some literature on the
business shall carry such license with him
table although informed by the lady that it would
at all times while carrying on the trade * *
not be read and had better be given to someone
* or business for which the same was gran-
else. At the laundry the appellant introduced him-
ted. Every person * * * having a license *
self as one of the Jehovah's Witnesses and dis-
* * shall produce and exhibit the same, * *
cussed with the proprietor their work and religion
* whenever requested to do so by any po-
generally. The proprietor bought the book
lice officer or by any other officer author-
‘Religion’ for a quarter but declined to buy others
ized to issue, inspect or collect licenses.’
at the same price. He was given a pamphlet free.
When arrested the appellant stated that he was FN8 ‘Section 12. Peddlers, Transient Mer-
‘selling religious books and preaching the gospel of chants; Vendors, defined:
the kingdom,’ and that because of his religious be-
liefs he would not take out a license. A motion at ‘(A) ‘Transient Merchant’ within the
the close of the evidence for a directed verdict of meaning of this ordinance shall include
acquittal on the ground that the ordinance violated every person who, not for or in connection
the Fourteenth Amendment was denied. The jury with a business at a fixed place within the
was instructed to acquit unless it found the defend- City of Casa Grande, solicits orders from
ant was selling books or pamphlets. It returned a house to house for the future delivery of
verdict of guilty. On appeal the Supreme Court of goods, or who shall deliver goods previ-
Arizona held that the ordinance, an ‘ordinary occu- ously solicited by a solicitor, at retail, or
pational license tax ordinance,’ did not deny free- an order for future delivery.
dom of religion and of the press and affirmed the
conviction. 118 P.2d 97, 98. An appeal to this ‘(B) As used in this ordinance, the term
Court *592 was allowed under s 237 of the Judicial ‘peddlers' shall include solicitors and other
Code, 28 U.S.C. s 344. vendors not having a permanent place of
business in the City of Casa Grande, and
FN7 ‘ Section 1. It shall be unlawful for who are not specifically licensed or per-
any person * * * to carry on any trade, mitted to sell any class of goods whatso-
calling, profession, occupation or business, ever.
in this ordinance specified, without first
having procured a license from the City of ‘(C) As used in this Ordinance, the term
Casa Grande, so to do, * * * and each and ‘Street Vendors' includes all persons en-
gaged in selling in or upon the streets, al- the circumstances we venture no opinion concern-
leys or vacant grounds within the City, and ing the validity of license taxes if it were proved, or
goods, wares, merchandise or articles, in- at least distinctly claimed, that the burden of the tax
cluding photographs, and also includes all was a substantial clog upon activities of the sort
FN9
persons engaged in conducting upon the here involved. The *593 sole constitutional
streets, alleys, or vacant grounds of the question considered is whether a nondiscriminatory
City any ring, knife or similar game, or license fee, presumably appropriate in amount, may
any ‘faker’ business, game or device. be imposed upon these activities.
‘All persons coming within the definition FN9 Cf. Seaboard Air Line Ry. v. Watson,
of the occupations defined herein shall pay 287 U.S. 86, 53 S.Ct. 32, 77 L.Ed. 180, 86
a quarterly license fee of Twenty Five Dol- A.L.R. 174; People of State of New York
lars ($25.00), in advance.’ v. Kleinert, 268 U.S. 646, 45 S.Ct. 618, 69
L.Ed. 1135; Dewey v. Des Moines, 173
The Opelika ordinance required book agents to pay U.S. 193, 19 S.Ct. 379, 43 L.Ed. 665, and
$10.00 per annum, transient distributors of books Clark v. Paul Gray, Inc., 306 U.S. 583, 59
(annual only) $5.00. The license fee in Casa Grande S.Ct. 744, 83 L.Ed. 1001; Standard Stock
was $25 per quarter, that in Fort Smith ranged from Food Co. v. Wright, 225 U.S. 540, 32 S.Ct.
$2.50 per day to $25 per month. All the fees were 784, 56 L.Ed. 1197.
small, yet substantial. But the appellant and the pe-
titioners, so far as the records disclose, advanced no [1][2] We turn to the constitutional problem
claim and presented no proof in the courts below squarely presented by these ordinances. There are
that these fees were invalid because so high as to ethical principles of greater value to mankind than
make the cost of compliance a deterrent to the fur- the guarantees of the Constitution, personal liber-
ther distribution of their literature in those cities. ties which are beyond the power of government to
Although petitioners in No. 314 contended that impair. These principles and liberties belong to the
their enterprise was operated at a loss there was no mental and spiritual realm where the judgments and
suggestion that they could not obtain from the same decrees of mundane courts are ineffective to direct
sources which now supply the funds to meet the course of man. The rights of which our Consti-
whatever deficit there may be sums sufficient to de- tution speaks have a more earthy quality. They are
FN10
fray license fees also. The amount of the fees was not absolutes to be exercised independently of
not considered in the opinions below except for a other cherished privileges, protected by the same
bare statement by the Alabama court that the exac- organic instrument. Conflicts in the exercise of
tion was ‘reasonable’, and neither the briefs nor the rights arise and the conflicting forces seek adjust-
assignments of error in this Court have directed ments in the courts, as do these parties, claiming on
their attack specifically to that issue. Consequently the one side the freedom of religion, speech and the
there is not before us the question of the power to press, guaranteed by the Fourteenth Amendment,
FN11
lay fees, objectionable in their effect because of and on the other the right to employ the sov-
their size, upon the constitutionally protected rights ereign power explicitly reserved to the State by the
of free speech, press or the exercise of religion. If Tenth Amendment to ensure orderly living without
the size of the fees were to be considered, to which constitutional guarantees of civil liberties
FN12
**1237 reach a conclusion one would desire to would be a mockery. Courts, no more than
know the estimated volume, the margin of profit, Constitutions, can intrude into the consciences of
the solicitor's commission, the expense of policing men or compel them to believe contrary to their
and other pertinent facts of income and expense. In faith or think contrary *594 to their convictions, but
courts are competent to adjudge the acts men do un- 1213, 128 A.L.R. 1352; Reynolds v.
der color of a constitutional right, such as that of United States, 98 U.S. 145, 166, 25 L.Ed.
freedom of speech or of the press or the free exer- 244.
cise of religion and to determine whether the
claimed right is limited by other recognized [3][4] If all expression of religion or opinion,
FN13 however, were subject to the discretion of author-
powers, equally precious to mankind. So the
mind and spirit of man remain forever free, while ity, our unfettered dynamic thoughts or moral im-
his actions rest subject to necessary accommodation pulses might be made only colorless and sterile
to the competing needs of his fellows. ideas. To give them life and force, the Constitution
protects their use. No difference of view as to the
FN10 Valentine v. Chrestensen, 316 U.S. importance of the freedoms of press or religion ex-
52, 62 S.Ct. 920, 86 L.Ed. 1262; Chaplin- ist. They are ‘fundamental personal rights and liber-
sky v. New Hampshire, 315 U.S. 568, 62 ties.’ **1238 Schneider v. State, 308 U.S. 147, 161,
S.Ct. 766, 86 L.Ed. 1031, and cases cited; 60 S.Ct. 146, 150, 84 L.Ed. 155. To proscribe the
Minersville District v. Gobitis, 310 U.S. dissemination of doctrines or arguments which do
586, 594, 60 S.Ct. 1010, 1012, 84 L.Ed. not transgress military or moral limits is to destroy
1375, 127 A.L.R. 1493; Cantwell v. Con- the principal bases of democracy,-knowledge and
necticut, 310 U.S. 296, 304, 310, 60 S.Ct. discussion. One man, with views contrary to the
900, 906, 84 L.Ed. 1213, 128 A.L.R. 1352; rest of his compatriots, is entitled to the privilege of
Schneider v. State, 308 U.S. 147, 165, 60 expressing his ideas by speech of broadside to any-
S.Ct. 146, 152, 84 L.Ed. 155; Hague v. one willing to listen or to read. Too many settled
C.I.O., 307 U.S. 496, 515, 516, 59 S.Ct. beliefs have in time been rejected to justify this
954, 964, 83 L.Ed. 1423; De Jonge v. Ore- generation in refusing a hearing to its own dissen-
gon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, tients. But that hearing may be limited by action of
81 L.Ed. 278. the proper legislative body to times, places and
methods for the enlightenment of the community
FN11 Chaplinsky v. New Hampshire, 315 which, in view of existing social and economic con-
U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; ditions, are not at odds with the preservation of
Cantwell v. Connecticut, 310 U.S. 296, peace and good order.
303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 128
A.L.R. 1352; Schneider v. State, 308 U.S. [5] This means that the proponents of ideas cannot
147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155; determine entirely for themselves the time and
Lovell v. Griffin, 303 U.S. 444, 450, 58 place and manner for the diffusion of knowledge or
S.Ct. 666, 668, 82 L.Ed. 949; Gitlow v. for their evangelism, any more than the civil au-
New York, 268 U.S. 652, 45 S.Ct. 625, 69 thorites may hamper or suppress the public dissem-
L.Ed. 1138. ination of facts and principles*595 by the people.
FN14
The ordinary requirements of civilized life
FN12 Cox v. New Hampshire, 312 U.S. compel this adjustment of interests. The task of re-
569, 574, 61 S.Ct. 762, 765, 85 L.Ed. concilement is made harder by the tendency to ac-
1049, 133 A.L.R. 1396; Home Bldg. & L. cept as dominant any contention supported by a
Ass'n v. Blaisdell, 290 U.S. 398, 435, 54 claim of interference with the practice of religion or
S.Ct. 231, 239, 78 L.Ed. 413, 88 A.L.R. the spread of ideas. Believing as this nation has
1481. from the first that the freedoms of worship and ex-
pression are closely akin to the illimitable priv-
FN13 Cantwell v. Connecticut, 310 U.S.
ileges of thought itself, any legislation affecting
296, 303, 60 S.Ct. 900, 903, 84 L.Ed.
those freedoms is scrutinized to see that the inter- FN17 Hague v. C.I.O., 307 U.S. 496, 501,
ferences allowed are only those appropriate to the 518, 59 S.Ct. 954, 957, 965, 83 L.Ed.
maintenance of a civilized society. The determina- 1423, invalidates an ordinance forbidding
tion of what limitations may be permitted under any person to ‘distribute or cause to be dis-
such an abstract test rests with the legislative bod- tributed or strewn about any street or pub-
ies, the courts, the executive and the people them- lic place any newspapers, paper, periodic-
selves guided by the experience of the past, the al, book, magazine, circular, card, or
needs of revenue for law enforcement, the require- pamphlet,’ page 501 of 307 U.S., page 957
ments and capacities of police protection, the of 59 S.Ct.; Schneider v. State, 308 U.S.
dangers of disorder and other pertinent factors. 147, 162, 60 S.Ct. 146, 84 L.Ed. 155, holds
similar prohibitory ordinances unconstitu-
FN14 Cox v. New Hampshire, 312 U.S. tional.
569, 573, 576, 61 S.Ct. 762, 765, 85 L.Ed.
1049, 133 A.L.R. 1396; Cantwell v. Con- The differences between censorship and complete
necticut, 310 U.S. 296, 306, 60 S.Ct. 900, prohibition, either of subject matter or the individu-
904, 84 L.Ed. 1213, 128 A.L.R. 1352; als participating, upon the one hand, and regulation
Schneider v. State, 308 U.S. 147, 160, 60 of the conduct of individuals in the time, manner
S.Ct. 146, 150, 84 L.Ed. 155. and place of their activities upon the other, are de-
cisive. ‘One who is a martyr to a principle * * *
[6] Upon the courts falls the duty of determining does not prove by his martyrdom that he has kept
the validity of such enactments as may be chal- within the law,’ said Mr. Justice Cardozo concur-
FN15
lenged as unconstitutional by litigants. In ring in Hamilton v. Regents, 293 U.S. 245, 268, 55
dealing with these delicate adjustments this Court S.Ct. 197, 206, 79 L.Ed. 343, which held that con-
denies any place to administrative censorship of scientious objection to military training would not
ideas or capricious approval of distributors. In Lov- excuse a student, during**1239 his enrollment,
ell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. from attending required courses in that science.
949, the requirements of permission from the city FN18
There is to be noted, too, a distinction
manager invalidated the ordinance, 303 U.S. pages between nondiscriminatory regulation of operations
447 and 451, 58 S.Ct. 667, 668, 82 L.Ed. 949; in which are incidental to the exercise of religion or
Schneider v. State, that of a police officer, 308 U.S. the freedom of speech or the press and those which
pages 157 and 163, 60 S.Ct. 149, 151, 84 L.Ed. are imposed upon the religious rite itself or the un-
155. In the Cantwell case, the secretary of the pub- mixed dissemination of information. Casual reflec-
lic welfare council was to determine whether the tion verifies the suggestion that both teachers and
object of charitable solicitation was worthy, 310 preachers need to receive support for themselves as
U.S. page 302, 60 S.Ct. 902, 84 L.Ed. 1213, 128 well as alms and benefactions for charity and the
FN16
A.L.R. 1352. We held the requirement bad. spread of knowledge. But when, as in these cases,
Ordinances absolutely*596 prohibiting the exercise the practitioners of these noble callings choose to
of the right to disseminate information are, a for- utilize the vending of their religious books and
FN17
tiori, invalid. tracts as a source of funds, the financial aspects of
their transactions need not be wholly disregarded.
FN15 Cf. Schneider v. State, supra, 308
To subject any religious or didactic group to a reas-
U.S. 161, 60 S.Ct. 150, 84 L.Ed. 155.
onable fee for their money-making activities does
FN16 Cf. Hague v. C.I.O., 307 U.S. 496, not require a finding that the licensed acts are
516, 59 S.Ct. 954, 964, 83 L.Ed. 1423. purely commercial. It is enough that money is
earned by the sale *597 of articles. A book agent
cannot escape a license requirement by a plea that it are therefore invalid on their face. The freedoms
is a tax on knowledge. It would hardly be conten- claimed by those seeking relief here are guaranteed
ded that the publication of newspapers is not sub- against abridgement by the Fourteenth Amendment.
ject to the usual governmental fiscal exactions, Its commands protect their rights. The legislative
Giragi v. Moore, 301 U.S. 670, 57 S.Ct. 946, 81 power of municipalities must yield when *598
L.Ed. 1334; Id., 48 Ariz. 33, 58 P.2d 1249; Id., 49 abridgement is shown. Compare Grosjean v. Amer-
Ariz. 74, 64 P.2d 819, 110 A.L.R. 320, or the oblig- ican Press Co., 297 U.S. 233, 56 S.Ct. 444, 80
ations placed by statutes on other business. Asso- L.Ed. 660, with Giragi v. Moore, 301 U.S. 670, 57
ciated Press v. Labor Board, 301 U.S. 103, 130, 57 S.Ct. 946, 81 L.Ed. 1334. If we were to assume, as
S.Ct. 650, 654, 81 L.Ed. 953. The Constitution is here argued, that the licensed activities involve
draws no line between a payment from gross re- religious rites, a different question would be
ceipts or a net income tax and a suitably calculated presented. These are not taxes on free will offer-
occupational license. Commercial advertising can- ings. But it is because we view these sales as par-
not escape control by the simple expedient of print- taking more of commercial than religious or educa-
ing matter of public interest on the same sheet or tional transactions that we find the ordinances, as
handbill. Valentine v. Chrestensen, 316 U.S. 52, 62 here presented, valid. A tax on religion or a tax on
S.Ct. 920, 86 L.Ed. 1262. Nor does the fact that to interstate commerce may alike be forbidden by the
the participants a formation in the streets is an Constitution. It does not follow that licenses for
‘information march,’ and ‘one of their ways of wor- selling Bibles or for manufacture of articles of gen-
ship,’ suffice to exempt such a procession from a eral use, measured by extrastate sales, must fall. It
city ordinance which, narrowly construed, required may well be that the wisdom of American com-
FN19
a license for such a parade. munities will persuade them to permit the poor and
weak to draw support from the petty sales of reli-
FN18 Cf. City of Manchester v. Leiby, 1 gious books without contributing anything for the
Cir., 117 F.2d 661, requirement of badge privilege of using the streets and conveniences of
for street selling of books, papers or the municipality. Such an exemption, however,
pamphlets. would be a voluntary, not a constitutionally en-
forced, contribution.
FN19 Cox v. New Hampshire, 312 U.S.
569, 572, 573, 576, 61 S.Ct. 762, 764, 765, **1240 [10] In the ordinances of Casa Grande and
85 L.Ed. 1049, 133 A.L.R. 1396. Fort Smith, we have no discretionary power in the
public authorities to refuse a license to any one de-
[7][8][9] When proponents of religious or social
sirous of selling religious literature. No censorship
theories use the ordinary cmmercial methods of
of the material which enters into the books or pa-
sales of articles to raise propaganda funds, it is a
pers is authorized. No religious symbolism is in-
natural and proper exercise of the power of the state
volved such as was urged against the flag salute in
to charge reasonable fees for the privilege of can-
Minersville District v. Gobitis, 310 U.S. 586, 60
vassing. Careful as we may and should be to protect
S.Ct. 1010, 84 L.Ed. 1375, 127 A.L.R. 1493. For us
the freedoms safeguarded by the Bill of Rights, it is
there is no occasion to apply here the principles
difficult to see in such enactments a shadow of pro-
taught by that opinion. Nothing more is asked from
hibition of the exercise of religion or of abridge-
one group than from another which uses similar
ment of the freedom of speech or the press. It is
methods of propagation. We see nothing in the col-
prohibition and unjustifiable abridgement which is
lection of a nondiscriminatory license fee, uncon-
interdicted, not taxation. Nor do we believe it can
tested in amount, from those selling books or pa-
be fairly said that because such proper charges may
pers, which abridges the freedoms of worship,
be expanded into unjustifiable abridgements they
speech or press. Cf. Grosjean v. American Press was naturally not deemed a prerequisite to insist-
Co., 297 U.S. 233, 250, 56 S.Ct. 444, 80 L.Ed. 660. ence on a constitutional right. Here we have a very
As to the claim that even small license charges, if different situation. A license is required that may
valid, will impose upon the itinerant colporteur a properly be required. The fact that such a license, if
crushing aggregate,*599 it is plain that if each it were granted, may subsequently*600 be revoked
single fee is, as we assume, commensurate with the does not necessarily destroy the licensing ordin-
activities licensed, then though the accumulation of ance. The hazard of such revocation is much too
fees from city to city may in time bulk large, he contingent for us now to declare the licensing pro-
will have enjoyed a correlatively enlarged field of visions to be invalid. Lovell v. Griffin has, in ef-
distribution. Cf. Coverdale v. Arkansas-Louisiana fect, held that discretionary control in the general
Pipe Line Co., 303 U.S. 604, 612, 613, 58 S.Ct. area of free speech is unconstitutional. Therefore,
736, 82 L.Ed. 1043. The First Amendment does not the hazard that the license properly granted would
require a subsidy in the form of fiscal exemption. be improperly revoked is far too slight to justify de-
Giragi v. Moore, supra. Accordingly the challenge claring the valid part of the ordinance, which is
to the Fort Smith and Casa grande ordinances fails. alone now at issue, also unconstitutional.
[11][12] There is an additional contention by peti- The judgments in Nos. 280, 314 and 966 are af-
tioner as to the Opelika ordinance. It is urged that firmed.
since the licenses were revocable, arbitrarily, by the
local authorities, note 3, supra, there can be no true Affirmed.
freedom for petitioners in the dissemination of in-
Mr. Chief Justice STONE.
formation because of the censorship upon their ac-
tions after the issuance of the license. But there has The First Amendment, which the Fourteenth makes
been neither application for nor revocation of a li- applicable to the states, declares: ‘Congress shall
cense. The complaint was bottomed on sales make no law respecting an establishment of reli-
without a license. It was that charge against which gion, or prohibiting the free exercise thereof; or
petitioner claimed the protection of the Constitu- abridging the freedom of speech, or of the press'. I
tion. This issue he had standing to raise. Smith v. think that the ordinance in each of these cases is on
Cahoon, 283 U.S. 553, 562, 51 S.Ct. 582, 585, 75 its face a prohibited invasion of the freedoms thus
L.Ed. 1264. From what has been said previously it guaranteed, and that the judgment in each should be
follows that the objection to the unconstitutionality reversed.
of requiring a license fails. There is no occasion, at
this time, to pass on the validity of the revocation The ordinance in the Opelika case should be held
section, as it does not affect his present defense. invalid on two independent grounds. One is that the
Highland Farms Dairy v. Agnew, 300 U.S. 608, annual tax in addition to **1241 the 50 cent
616, 57 S.Ct. 549, 553, 81 L.Ed. 835; Lehon v. City ‘issuance fee’ which the ordinance imposes is an
of Atlanta, 242 U.S. 53, 56, 37 S.Ct. 70, 72, 61 unconstitutional restriction on those freedoms, for
L.Ed. 145. reasons which will presently appear. The other is
that the requirement of a license for dissemination
[13] In Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. of ideas, when as here the license is revocable at
666, 82 L.Ed. 949, we held invalid a statute which will without cause and in the unrestrained discre-
placed the grant of a license within the discretion of tion of administrative officers, is likewise an un-
the licensing authority. By this discretion, the right constitutional restraint on those freedoms.
to obtain a license was made an empty right. There-
fore the formality of going through an application The sole condition which the Opelika ordinance
prescribes for grant of the license is payment of the of the freedom is dependent upon the same contin-
designated annual tax and issuance fee. The priv- gency and the censorship is as effective in *602 one
ilege thus purchased, for the period of a year, is as in the other. Nor is any palliative afforded by the
forth-with revocable in the unrestrained and unre- assertion that the defendant's failure to apply for a
viewable discretion of the *601 licensing commis- license deprives him of standing to challenge the
sion without cause and without notice or opportun- ordinance because of its revocation provision, by
ity for a hearing. The case presents in its baldest the terms of which retention of the license and ex-
form the question whether the freedoms which the ercise of the privilege may be cut off at any time
Constitution purports to safeguard can be com- without cause.
pletely subjected to uncontrolled administrative ac-
tion. Only recently this Court was unanimous in Indeed, the present ordinance is a more callous dis-
holding void on its face the requirement of a license regard of the constitutional right than that exhibited
for the distribution of pamphlets which was to be in Lovell v. Griffin, supra. There at least the de-
issued in the sole discretion of a municipal of- fendant might have been given a license if he had
ficer. Lovell v. Griffin, 303 U.S. 444, 451, 58 applied for it. In any event he would not have been
S.Ct. 666, 669, 82 L.Ed. 949. The precise ground of compelled to pay a money exaction for a license to
our decision was that the ordinance made enjoy- exercise the privilege of free speech-a license
ment of the freedom which the Constitution guaran- which if granted in this case would have been
tees contingent upon the uncontrolled will of ad- wholly illusory. Here the defendant Jones was pro-
ministrative officers. We declared: hibited from distributing his pamphlets at all unless
he paid in advance a year's tax for the exercise of
‘We think that the ordinance is invalid on its face. the privilege and subjected himself to termination
Whatever the motive which induced its adoption, of the license without cause, notice or hearing, at
its character is such that it strikes at the very found- the will of city officials. To say that he who is free
ation of the freedom of the press by subjecting it to to withhold at will the privilege of publication exer-
license and censorship. The struggle for the free- cises a power of censorship prohibited by the Con-
dom of the press was primarily directed against the stitution, but that he who has unrestricted power to
power of the licensor. It was against that power that withdraw the privilege does not, would be to ignore
John Milton directed his assault by his ‘Appeal for history and deny the teachings of experience, as
the Liberty of Unlicensed Printing.’ And the liberty well as to perpetuate the evils at which the First
of the press became initially a right to publish Amendment was aimed.
‘without a license what formerly could be published
only with one.’ While this freedom from previous It is of no significance that the defendant did not
restraint upon publication cannot be regarded as ex- apply for a license. As this Court has often pointed
hausting the guaranty of liberty, the prevention of out, when a licensing statute is on its face a lawful
that restraint was a leading purpose in the adoption exercise of regulatory power, it will not be assumed
of the constitutional provision.' that it will be unlawfully administered in advance
of an actual denial of application for the license.
That purpose cannot rightly be defeated by so trans- But here it is the prohibition of publication, save at
parent a subterfuge as the pronouncement that, the uncontrolled will of public officials, which
while a license may not be required if its award is transgresses constitutional limitations and makes
contingent upon the whim of an administrative of- the ordinance**1242 void on its face. The Constitu-
ficer, it may be if its retention and the enjoyment of tion can hardly be thought to deny to one subjected
the privilege which it purports to give is wholly to the restraints of such an ordinance the right to at-
contingent upon his whim. In either case enjoyment tack its constitutionality, because he has not yielded
to its demands. *603Lovell v. Griffin, supra, 303 some other ordinance might levy. In their briefs
U.S. 452, 453, 58 S.Ct. 669, 82 L.Ed. 949; Smith v. here they argue, as upon the records they are en-
Cahoon, 283 U.S. 553, 562, 51 S.Ct. 582, 585, 75 titled to do, that the taxes are an unconstitutional
L.Ed. 1264. The question of standing to raise the is- burden on the right of *604 free speech and free re-
sue in this case is indistinguishable from that in the ligion comparable to license taxes which this Court
Lovell case, where it was resolved in the only man- has often held to be an inadmissible burden on in-
ner consistent with the First Amendment. terstate commerce. They argue also that the cumu-
lative effect of such taxes, in town after twon
The separability provision of the Opelika ordinance throughout the country, would be destructive of
FN1
cannot serve, in advance of judicial decision freedom of the press for all persons except those
by the state court, to separate those parts which are financially able to distribute their literature without
constitutionally applicable from those which are soliciting funds for the support of their cause.
not. We have no means of knowing that the city
would grant any license if the license could not be While these are questions which have been studi-
made revocable at will. The state court applied the ously left unanswered by the opinion of the Court,
ordinance as written. It did not rely or pass upon it seems inescapable that an answer must be given
the effect to be given to the separability clause, or before the convictions can be sustained. Decision of
determine whether any effect was to be given to it. them cannot rightly be avoided now by asserting
Until it has done so this Court-as we decided only that the amount of the tax has not been put in issue;
last Monday-must determine the constitutional that the tax is ‘uncontested in amount’ by the de-
validity of the ordinance as it stands and as it stood fendants, and can therefore be assumed by us to be
when obedience to it was demanded and punish- ‘presumably appropriate’, ‘reasonable’, or ‘suitably
ment for its violation inflicted. No. 782, Skinner v. calculated’; that it has not been proved that the bur-
Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. den of the tax is a substantial clog on the activities
1655, decided June 1, 1942; Smith v. Cahoon, of the defendants, or that those who have defrayed
supra, 283 U.S. 563, 564, 51 S.Ct. 586, 75 L.Ed. the expense of their religious activities will not
1264. willingly defray the license taxes also. All these are
considerations which would seem to be irrelevant to
FN1 ‘Should any section, condition, or the question now before us-whether a flat tax, more
provision or any rate or amount scheduled than a nominal fee to defray the expenses of a regu-
as against any particular occupation exhib- latory license, can constitutionally be laid on a non-
ited in the foregoing schedule be held void commercial, non-profit activity devoted exclusively
or invalid, such invalidity shall not affect to the dissemination of ideas, educational and reli-
any other section, rate or provision of this gious in character, to those persons who consent to
license schedule.’ receive them.
In all three cases the question presented by the re- Nor is the essential issue here disguished by the re-
cord and fully argued here and below is whether the iterated characterization of these exactions, not as
ordinances-which as applied penalize the defend- taxes but as ‘fees'-a characterization to which the
ants for not having paid the flat fee taxes levied-vi- records lend no support. All these ordinances on
olate the freedom of speech, press, and religion their face purport to be an exercise of the municip-
guaranteed by the First and Fourteenth Amend- ality's taxing power. In none is there the slightest
ments. Defendants' challenge to the ordinances, pretense by the taxing authority, or the slightest
naming them, is a challenge to the substantial taxes suggestion by the state court, that the ‘fee’ is to de-
which they impose, in specified amounts, and not to fray expenses of the licensing system. The *605
some tax of a different or lesser amount which
amounts of the ‘fees', without more, demonstrate ordinances is suppression of the specified distribu-
that such a contention is groundless. In No. 280, tions of literature in default of the payment of a
Opelika itself contends that the issue relates **1243 substantial tax fixed in amount and measured
solely to its power to raise money for general rev- neither by the extent of the defendants' activities
enue purposes, and the Supreme Court of Alabama under the license nor the amounts which they re-
referred to the levy as a ‘reasonable’ ‘tax.’ The tax ceive for and devote to religious purposes in the ex-
exacted by Opelika, on the face of the ordinance, is ercise of the licensed privilege. Opelika exacts a li-
in addition to a 50 cent ‘issuance fee’, which alone cense fee for book agents of $10 per annum and of
is presumably what the city deems adequate to de- $5 per annum for transient distributors of books, in
fray the cost of administering the licensing system. addition to a 50 cent ‘issuance fee’ on each license.
Similarly in the Fort Smith and Casa Grande cases, The Supreme Court of Alabama found it unneces-
the state courts sustained the ordinances as a tax, sary to determine whether both or only one of these
and nothing else. If this litigation has involved any taxes was payable by defendant Jones. The Fort
controversy-and the state courts all seemed to think Smith tax of $25 a month or $10 a week or $2.50 a
that it did-the controversy has been one solely relat- day is substantial in amount for transient distribut-
ing to the power to tax, and not the power to collect ors of literature of the character here involved; the
a ‘fee’ to support a licensing system which, as has Opelika exaction is even more onerous when ap-
already been indicated, has no regulatory purpose plied against one who may be in the city for only a
other than that involved in the raising of revenue. day or two; and the tax of $25 per quarter exacted
by the Casa Grande ordinance, adopted in a com-
This Court has often had occasion to point out that munity having an adult population of less than
where the state may, as a regulatory measure, li- 1,000 and applied to distributions of literature like
cense activities which it is without constitutional the present, is prohibitive in effect.
authority to tax, it may charge a small or nominal
fee sufficient to defray the expense of licensing, In considering the effect of such a tax on the de-
and similarly it may charge a reasonable fee for the fendants' activities it is important to note that the
use of its highways by interstate motor traffic state courts have applied levies obviously devised
which it cannot tax. Compare Clark v. Paul Gray, for the taxation of business employments-in the
Inc., 306 U.S. 583, 598-600, 59 S.Ct. 744, 753, 83 first case the ‘business or vocation’ of ‘book agent’;
L.Ed. 1001, with Ingels v. Morf, 300 U.S. 290, 57 in the second the business of peddling specified
S.Ct. 439, 81 L.Ed. 653, and cases cited; see Cox v. types of merchandise or ‘other articles'; in the third,
New Hampshire, 312 U.S. 569, 576, 577, 61 S.Ct. the practice of the callings of ‘peddlers, transient
762, 765, 766, 85 L.Ed. 1049, 133 A.L.R. 1396. merchants and venders'-to activities which con-
But we are not concerned in these cases with a cededly are not ordinary business or commercial
nominal fee for a regulatory license, which may be transactions. As appears by stipulation or undis-
assumed for argument's sake to be valid. Here the puted testimony, the defendants are Jehovah's Wit-
licenses are not regulatory, save as the licenses con- nesses, engaged in spreading their religious doc-
ditioned upon payment of the tax may serve to re- trines in conformity to the teachings of St. Mat-
strain or suppress publication. None of the ordin- thew, Matt. 10:11-14 and *607 24:14, by going
ances, if complied with, purports to or could control from city to city, from village to village, and house
the time, place or manner of the distribution of the to house, to proclaim them. After asking and re-
books and pamphlets concerned. None has any dis- ceiving permission from the householder, they play
cernible relationship to the *606 police protection to him phonograph records and tender to him books
or the good order of the community. The only con- or pamphlets advocating their religious views. For
dition and purpose of the licenses under all three the latter they ask payment of a nominal amount,
two to five cents for the pamphlets and twenty-five It lends no support to the present tax to insist that
cents for books, as a contribution to the religious its restraint on free speech and religion is non-
cause which they seek to advance. But they distrib- discriminatory because the same levy is made upon
ute the pamphlets, and sometimes the books, gratis business callings carried on for profit, many of
when the householder is unwilling or unable to pay which involve no question of freedom of speech
for them. The literature is published for such distri- and religion and all of which involve commercial
bution by non-profit charitable corporations organ- elements-lacking here-which for present purposes
ized by Jehovah's Witnesses. The funds collected may be assumed to afford a basis for taxation apart
are used for the support of the religious**1244 from the exercise of freedom of speech and reli-
movement and no one derives a profit from the gion. The constitutional protection of the Bill of
publication and distribution of the literature. In the Rights is not to be evaded by classifying with busi-
Opelika case the defendant's activities were con- ness callings an activity whose sole purpose is the
fined to distribution of literature and solicitation of dissemination of ideas, and taxing it as business
funds in the public streets. callings are taxed. The immunity which press and
religion enjoy may sometimes be lost when they are
No one could doubt that taxation which may be united with other activities not immune. Valentine
freely laid upon activities not within the protection v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed.
of the Bill of Rights could-when applied to the dis- 1262. But here the only activities involved are the
semination of ideas-be made the ready instrument dissemination of ideas, educational and religious,
for destruction of that right. Few would deny that a and the collection of funds for the propagation of
license tax laid specifically on the privilege of dis- those ideas, which we have said is likewise the sub-
seminating ideas would infringe the right of free ject of constitutional protection. Schneider v. State,
speech. For one reason among others, if the state supra; Cantwell v. Connecticut, 310 U.S. 296,
may tax the privilege it may fix the rate of tax and, 304-307, 60 S.Ct. 900, 903, 904, 84 L.Ed. 1213,
through the tax, control or suppress the activity 128 A.L.R. 1352.
which it taxes. Magnano Co. v. Hamilton, 292
U.S. 40, 45, 54 S.Ct. 599, 601, 78 L.Ed. 1109; The First Amendment is not confined to safeguard-
Grosjean v. American Press Co., 297 U.S. 233, 244, ing freedom of speech and freedom of religion
245, 56 S.Ct. 444, 446, 447, 80 L.Ed. 660. If the against discriminatory attempts to wipe them out.
distribution of the literature had been carried on by On the contrary the Constitution, by virtue of the
the defendants without solicitation of funds, there First and the Fourteenth Amendments, has put those
plainly would have been no basis, either statutory freedoms in a preferred position. Their commands
or constitutional, for levying the tax. It is the col- are not restricted to cases where the protected priv-
lection of funds which has been seized upon to jus- ilege is sought out for attack. They extend at least
tify the extension, to the defendants' activities, of to every form of taxation which, because it is a con-
the tax laid upon business callings. But if we as- dition of the exercise of the privilege, is capable of
sume, despite our recent *608 decision in Schneider being used to control or suppress it.
v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84
L.Ed. 155, that the essential character of these *609 Even were we to assume-what I do not con-
activities is in some measure altered by the collec- cede-that there could be a lawful non-
tion of funds for the support of a religious under- discriminatory license tax of a percentage of the
taking, still it seems plain that the operation of the gross receipts collected by churches and other reli-
present flat tax is such as to abridge the privileges gious orders in support of their religious work, cf.
which the defendants here invoke. Giragi v. Moore, 301 U.S. 670, 57 S.Ct. 946, 81
L.Ed. 1334, we have no such tax here. The tax im-
posed by the ordinances in these cases is more bur- a tax otherwise unconstitutional is to be deemed
densome and destructive of the activity taxed than valid unless it is shown that there are none who, for
any gross receipts tax. The tax is for a fixed religion's sake, will come forward to pay the unlaw-
amount, unrelated to the extent of the defendants' ful exaction. The defendants to whom the ordin-
activities or the receipts derived from them. It is ances have been applied have not paid it and there
thus the type of flat tax which, when applied to in- is nothing in the Constitution to compel them to
terstate commerce, has repeatedly been deemed by seek the charity of others to pay it before protesting
this Court to be prohibited by the commerce clause. the tax. It seems fairly obvious that if the present
See McGoldrick v. Berwind-White Coal Mining taxes, laid in small communities upon peripatetic
Co., 309 U.S. 33, 55-57, 60 S.Ct. 388, 397, 398, 84 religious propagandists, are to be sustained, a way
L.Ed. 565, 128 A.L.R. 876, and cases cited; cf. Best has been found for the effective suppression of
& Co. v. Maxwell, 311 U.S. 454, 456, 61 S.Ct. 334, speech and press and religion despite constitutional
335, 85 L.Ed. 275. When applied as it is here to guaranties. The very taxes now before us are better
activities involving the exercise of religious free- adapted to that end than were the stamp taxes which
dom, its vice is emphasized in that it is levied and so successfully curtailed the dissemination of ideas
paid in advance of the activities taxed, and applied by eighteenth century newspapers and pamphlet-
at rates well calculated to suppress those activities eers, and which were a moving cause of the Amer-
**1245 save only as others may volunteer to pay ican Revolution. See Collett, History of the Taxes
the tax. It requires a sizable out-of-pocket expense on Knowledge, vol. 1, c. 1; May, Constitutional
by someone who may never succeed in raising a History of England, 7th ed., vol. 2, p. 245; Hanson,
penny in his exercise of the privilege which is Government and the Press, 1695-1763, pp. 7-14;
taxed. Morison, The English Newspaper, 1622-1932, pp.
83-88; Grosjean v. American Press Co., supra, 297
The defendants' activities, if taxable at all, are tax- U.S. 245-249, 56 S.Ct. 447, 448, 80 L.Ed. 660.
able only because of the funds which they solicit. Vivid recollections of the effect of those taxes on
But that solicitation is for funds for religious pur- the freedom of press survived to inspire the adop-
poses, and the present taxes are in no way gauged tion of the First Amendment.
to the receipts. The taxes are insupportable either as
a tax on the dissemination of ideas or as a tax on Freedom of press and religion, explicitly guaran-
the collection of funds for religious purposes. For teed by the Constitution, must at least be entitled to
on its face a flat license tax restrains in advance the the same freedom from burdensome taxation which
freedom taxed and tends inevitably to suppress its it has been thought that the more general phraseo-
exercise. The First Amendment prohibits all laws logy of the commerce clause has extended to inter-
abridging freedom of press and religion, not merely state commerce. Whatever doubts may be enter-
some laws or all except tax laws. It is true that the tained as to this Court's function to relieve, unaided
constitutional guaranties of freedom of press and by Congressional legislation, from burdensome tax-
religion, like the commerce clause, make no dis- ation under the commerce clause, see *611Gwin,
tinction between fixed-sum *610 taxes and other White & Prince, Inc., v. Henneford, 305 U.S. 434,
kinds. But that fact affords no excuse to courts, 441, 446-455, 59 S.Ct. 325, 328, 331-335, 83 L.Ed.
whose duty it is to enforce those guaranties, to 272; McCarroll v. Dixie Lines, 309 U.S. 176, 184,
close their eyes to the characteristics of a tax which 185, 60 S.Ct. 504, 508, 84 L.Ed. 683, it cannot be
render it destructive of freedom of press and reli- thought that that function is wanting under the ex-
gion. plicit guaranties of freedom of speech, press and re-
ligion. In any case the flat license tax can hardly
We may lay to one side the Court's suggestion that become any the less burdensome or more permiss-
ible, when levied on activities within the protection FN1 For convenience appellant in No. 966,
extended by the First and Fourteenth Amendments petitioners in No. 314, and petitioner in
both to the orderly communication of ideas, educa- No. 280 are herein collectively referred to
tional and religious, to persons willing to receive as ‘petitioners'.
them, see Cant-well v. Connecticut, supra, and to
the practice of religion and the solicitation of funds It is not disputed that petitioners, Jehovah's Wit-
in its support. Schneider v. State, supra. nesses, were ordained ministers preaching the gos-
pel, as they understood it, through the streets and
In its potency as a prior restraint on publication the from house to house, orally and by playing reli-
flat license tax falls short only of outright censor- gious records with the consent of the householder,
ship or suppression. The more humble and needy and by distributing books and pamphlets setting
the cause, the more effective is the suppression. forth the tenets of their faith. It does not appear that
their motives were commercial, but only that they
Mr. Justice BLACK, Mr. Justice DOUGLAS and were evangelizing their faith as they saw it.
Mr. Justice MURPHY join in this opinion.
Mr. Justice MURPHY, with whom the CHIEF In No. 280 the trial court excluded as irrelevant pe-
JUSTICE, Mr. Justice BLACK, and Mr. Justice titioner's testimony that he was an ordained minis-
DOUGLAS concur, dissenting. ter and that his activities on the streets of Opelika
When a statute is challenged as impinging on free- were in furtherance of his ministerial duties. The
dom of speech, freedom of the press, or freedom of testimony of ten clergymen of Opelika that they
worship, those historic privileges which are so es- distributed free religious literature in their
sential to our **1246 political welfare and spiritual churches, the cost of which was defrayed by volun-
progress, it is the duty of this Court to subject such tary contribution, and that they had never been
legislation to examination, in the light of the evid- forced to pay any license fee, was also excluded. It
ence adduced, to determine whether it is so drawn is admitted here that petitioner was a Jehovah's
as not to impair the substance of those cherished Witness and considered himself an ordained minis-
freedoms in reaching its objective. Ordinances that ter.
may operate to restrict the circulation or dissemina-
tion of ideas on religious or other subjects should The Supreme Court of Arizona (118 P.2d 98) stated
be framed with fastidious care and precise language in No. 966 that appellant was ‘a regularly ordained
to avoid undue encroachment on these fundamental minister of the denomination commonly known as
liberties. And the protection of the Constitution Jehovah's Witnesses * * * going from house to
must be extended to all, not *612 only to those house in the city of Casa Grande preaching the gos-
whose views accord with prevailing thought but pel, as he understood it, by means of his *613
also to dissident minorities who energetically spoken word, by playing various religious records
spread their beliefs. Being satisfied by the evidence on a phonograph, with the approval of the house-
that the ordinances in the cases now before us, as holder, and by distributing printed books, pamph-
construed and applied in the state courts, impose a lets and tracts which set forth his views as to the
burden on the circulation and discussion of opinion meaning of the Bible. The method of distribution of
and information in matters of religion, and there- these printed books, pamphlets and tracts was as
FN1 follows: He first offered them for sale at various
fore violate the petitioners' rights to freedom of
speech, freedom of the press, and freedom of wor- prices ranging from five to twenty-five cents each.
ship in contravention of the Fourteenth Amend- If the householder did not desire to purchase any of
ment, I am obliged to dissent from the opinion of them he then left a small leaflet summarizing some
the Court. of the doctrines which he preached.’
The facts were stipulated in No. 314 ( 151 S.W.2d ure, relating to and dealing with religious matters,
1001). Each petitioner ‘claims to be an ordained for which a contribution is asked in an attempt to
minister of the gospel * * *. ‘They do not engage in gain converts, because those were petitioners' activ-
this work for any selfish reason, but because they ities. Such taxes have been held to violate the Four-
feel called to publish the news and preach the gos- teenth Amendment, McConkey v. City of Freder-
pel of the Kingdom to all the world as a witness be- icksburg, 179 Va. 556, 19 S.E.2d 682; State v.
fore the end comes. * * * They believe that the only Greaves, 112 Vt. 222, 22 A.2d 497; City of Blue Is-
effective way to preach is to go from house to land v. Kozul, 379 Ill. 511, 41 N.E.2d 515; and that
FN4
house and make personal contact with the people should be the holding here.
and distribute to them books and pamphlets setting
forth their views on Christianity “. Petitioners ‘were FN2 Respondent in No. 280 contends that
going from house to house in the residential section the question presented ‘in no respect
within the City of Fort Smith * * * presenting to the relates to regulatory or police power action
residents of these houses various booklets, leaflets of a municipal government, but is con-
and periodicals setting forth their views of Chris- cerned only with the municipality's right to
tianity held by Jehovah's Witnesses.’ They solicited levy taxes'.
a ‘contribution of twenty-five cents for each book,’
The Supreme Court of Arizona stated in
but ‘these books in some instances are distributed
No. 966 that ‘the ordinance on its face is
free when the people wishing them are unable to
the ordinary occupational license tax or-
contribute.’
dinance’.
There is no suggestion in any of these three cases
FN3 Several courts have taken this posi-
that petitioners were perpetrating a fraud, that they
tion. State ex rel. Semansky v. Stark, 196
were demeaning themselves in an obnoxious man-
La. 307, 199 So. 129; People v. Finkel-
ner, that **1247 their activities created any public
stein, 170 Misc. 188, 9 N.Y.S.2d 941;
disturbance or inconvenience, that private rights
Thomas v. City of Atlanta, 59 Ga.App.
were contravened, or that the literature distributed
520, 1 S.E.2d 598; State v. Meredith, 197
was offensive to morals or created any ‘clear and
S.C. 351, 15 S.E.2d 678; State ex rel.
present danger’ to organized society.
Hough v. Woodruff, 147 Fla. 299, 2 So.2d
The ordinance in each case is sought to be sustained 577; City of Cincinnati v. Mosier, 61 Ohio
as a system of non-discriminatory taxation of vari- App. 81, 22 N.E.2d 418. Compare, Gregg
ous businesses,*614 professions, and vocations, in- v. Smith, 8 L.R.Q.B. (1872-3), p. 302; City
cluding the distribution of books for which contri- of Duncan v. Gairns, 27 Canadian
butions are asked, for the sole purpose of raising Cr.Cases 440; but see Rex v. Stewart, 53
FN2 Canadian Cr. Cases 24.
revenue. Any inclination to take the position
that petitioners, who were proselytizing by distrib-
FN4 And see Rutledge, J., dissenting in
uting informative literature setting forth their reli-
Busey v. District of Columbia, App.D.C.,
gious tenets, and whose activities were wholly un-
129 F.2d 24, decided April 15, 1942.
related to any commercial purposes, were not with-
in the purview of these occupational tax ordinances,
FN3
is foreclosed by the decisions of the state Freedom of Speech and Freedom of the Press.
courts below to the contrary. As so construed the
ordinances in effect impose direct taxes on the dis- In view of the recent decisions of this Court strik-
semination of ideas and the distribution of literat- ing down acts which impair freedom of speech and
freedom *615 of the press no elaboration on that
subject is now necessary. We have ‘unequivocally Consideration of the taxes leads to but **1248 one
held that the streets are proper places for the exer- conclusion-that they prohibit or seriously hinder the
cise of the freedom of communicating information distribution of petitioners' religious literature. The
and disseminating opinion and that, though the opinion of the Court admits that all the taxes are
states and municipalities may appropriately regulate ‘substantial’. The $25 quarterly*616 tax of Casa
the privilege in the public interest, they may not un- Grande approaches prohibition. The 1940 popula-
duly burden or proscribe its employment in these tion of that town was 1,545. With so few potential
public thoroughfares.’ Valentine v. Chrestensen, purchasers it would take a gifted evangelist, indeed,
316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262, decided in view of the antagonism generally encountered by
April 13, 1942. And as the distribution of pamph- Jehovah's Witnesses, to sell enough tracts at prices
lets to spread information and opinion on the streets ranging from five to twenty-five cents to gross
and from house to house for non-commercial pur- enough to pay the tax. Cf. McConkey v. City of
poses is protected from the prior restraint of censor- Fredericksburg, 179 Va. 556, 19 S.E.2d 682. While
FN6
ship, Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, the amount is actually lower in Opelika and
82 L.Ed. 949; Schneider v. State, 308 U.S. 147, 60 may be lower in Fort Smith in that it is possible to
FN7
S.Ct. 146, 84 L.Ed. 155, so should it be protected get a license for a short period, and while the
FN8
from the burden of taxation. circle of purchasers is wider in those towns,
these exactions also place a heavy hand on petition-
The opinion of the Court holds that the amount of ers' activities. The petitioners should not be subjec-
the tax is not before us and that a ted to such tribute.
‘nondiscriminatory license fee, presumably appro-
priate in amount, may be imposed upon these activ- FN6 $5 or $10, depending upon which sec-
ities'. Both of these holdings must be rejected. tion of the ordinance is held to apply.
Where regulation or infringement of the liberty of FN7 $2.50 per day, $10 per week, and $25
discussion and the dissemination of information per month.
and opinion are involved, there are special reasons
for testing the challenged statute on tis face. FN8 The 1940 population of Fort Smith
Thornhill v. Alabama, 310 U.S. 88, 96-98, 60 S.Ct. was 36,584 and that of Opelika, 8,487.
736, 741, 742, 84 L.Ed. 1093, and see Lovell v.
But whatever the amount, the taxes are in reality
Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82
taxes upon the dissemination of religious ideas, a
L.Ed. 949; Milk Wagon Drivers Union v. Meadow-
dissemination carried on by the distribution of reli-
moor Co., 312 U.S. 287, 297, 61 S.Ct. 552, 556, 85
gious literature for religious reasons alone and not
L.Ed. 836, 132 A.L.R. 1200. That should be done
FN5 for personal profit. As such they place a burden on
here.
freedom of speech, freedom of the press, and the
FN5 When the Opelika ordinance is con- exercise of religion even if the question of amount
sidered on its face, there is an additional is laid aside. Liberty of circulation is the very life
reason for its invalidity. The uncontrolled blood of a free press, cf. Lovell v. Griffin, 303 U.S.
power of revocation lodged with the local 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949, and
authorities is but the converse of the sys- taxes on the circulation of ideas have a long history
FN9
tem of prior licensing struck down in Lov- of misuse against freedom of thought. See
ell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, Grosjean v. American Press Co., 297 U.S. 233,
82 L.Ed. 949. Here, as there, the pervasive 245-249, 56 S.Ct. 444, 447, 448, 80 L.Ed. 660. And
threat of censorship inherent in such a taxes on circulation solely for the purpose of reven-
power vitiates the ordinance. ue were successfully*617 resisted, prior to the ad-
option of the First Amendment, as interferences ness present in any system of flat fee taxation, bear-
FN10
with freedom of the press. Surely all this was ing no relation to the ability to pay. And there is the
familiar knowledge to the framers of the Bill of cumulative burden of many such taxes throughout
Rights. We need not shut our eyes to the possibility the municipalities of the land, as the number of re-
that use may again be made of such taxes, either by cent cases involving such ordinances abundantly
FN11
discrimination in enforcement or otherwise, to sup- demonstrates. The activities of Jehovah's
press the unpalatable views of militant minorities *618 Witnesses are widespread,**1249 and the ag-
such as Jehovah's Witnesses. See McConkey v. gregate effect of numerous exactions, no matter
City of Fredericksburg, 179 Va. 556, 19 S.E.2d how small, can conceivably force them to choose
682. As the evidence excluded in No. 280 tended to between refraining from attempting to recoup part
show, no attempt was there made to apply the or- of the cost of their literature, or else paying out
dinance to ministers functioning in a more orthodox large sums in taxes. Either choice hinders and may
manner than petitioner. even possibly put an end to their activities. There is
no basis, other than a refusal to consider the charac-
FN9 The English Stamp Act of 1712, 10 teristics of taxes such as these, for any assumption
Anne, c. 19, put a tax on newspapers and that such taxes are ‘commensurate with the activit-
pamphlets to check what seemed to the ies licensed’. Nor is there any assurance that ‘a cor-
Government to be ‘false and scandalous li- relatively enlarged field of distribution’ will insure
bels' and ‘the most horrid blasphemies sufficient proceeds even to meet such exactions, let
against God and religion.’ This and sub- alone leaving any residue for the continuation of
sequent enactments led to a long struggle petitioners' evangelization.
in England for the repeal of these ‘taxes on
knowledge’ and the recognition of the free- FN11 In addition to the instant cases see
dom of the press. See Collett, History of City of Cincinnati v. Mosier, 61 Ohio App.
the Taxes on Knowledge (1899); Place, 81, 22 N.E.2d 418; State v. Meredith, 197
Taxes on Knowledge (1831). S.C. 351, 15 S.E.2d 678; Thomas v. City
of Atlanta, 59 Ga.App. 520, 1 S.E.2d 598;
FN10 Stamp taxes for purely revenue pur- Commonwealth v. Reid, 144 Pa.Super.
poses were successfully resisted in Mas- 569, 20 A.2d 841; People v. Banks, 168
sachusetts in 1757 and again in 1785 on Misc. 515, 6 N.Y.S.2d 41; Cook v. City of
the ground that they interfered with free- Harrison, 180 Ark. 546, 21 S.W.2d 966;
dom of the press. See Duniway, Freedom State v. Greaves, 112 Vt. 222, 22 A.2d
of the Press in Massachusetts (1906), pp. 497; Busey v. District of Columbia,
119-120, 136-137; Thomas, History of App.D.C., 129 F.2d 24; McConkey v. City
Printing in America (1810), vol. 2, pp. of Fredericksburg, 179 Va. 556, 19 S.E.2d
267-268. The press also vigorously op- 682; City of Blue Island v. Kozul, 379 Ill.
posed the Stamp Act of 1765, 5 Geo. III, c. 511, 41 N.E.2d 515; State ex rel. Se-
12, which was also a revenue measure. See mansky v. Stark, 196 La. 307, 199 So. 129;
Duniway, op. cit., p. 124; Thomas, op. cit., People v. Finkelstein, 170 Misc. 188, 9
pp. 189, 297, 322, 329, 350; Van Tyne, N.Y.S.2d 941; State ex rel. Hough v.
Causes of the War of Independence (1922), Woodruff, 147 Fla. 299, 2 So.2d 577;
p. 160; 15 Scottish Historical Review 322, Borchert v. City of Ranger, D.C., 42
326. F.Supp. 577.
Other objectionable features in addition to the Freedom of speech, freedom of the press, and free-
factor of historical misuse exist. There is the unfair-
dom of religion all have a double aspect-freedom of ited resources because newspaper space and radio
thought and freedom of action. Freedom to think is time are expensive and the cost of establishing such
absolute of its own nature; the most tyrannical gov- enterprises great. If freedom of speech and freedom
ernment is powerless to control the inward work- of the press are to have any concrete meaning,
ings of the mind. But even an aggressive mind is of people seeking to distribute information and opin-
no missionary value unless there is freedom of ac- ion, to the end only that others shall have the bene-
tion, freedom to communicate its message to others fit thereof, should not be taxed for circulating such
by speech and writing. Since in any form of action matter. It is unnecessary to consider now the valid-
there is a possibility of collision with the rights of ity of such taxes on commercial enterprises en-
others, there can be no doubt that this freedom to gaged in the dissemination of ideas. Cf. **1250
act is not absolute but qualified, being subject to Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct.
regulation in the public interest which does not un- 920, 86 L.Ed. 1262, decided April 13, 1942; Giragi
duly infringe the right. However, there is no asser- v. Moore, 301 U.S. 670, 57 S.Ct. 946, 81 L.Ed.
tion here that the ordinances were regulatory, but if 1334. Petitioners were not engaged in a traffic for
there were such a claim, they still should not be profit. While the courts below held their activities
sustained. No abuses justifying regulation are ad- were covered by the *620 ordinances, it is clear that
vanced and the ordinances are not narrowly and they were seeking only to further their religious
precisely drawn to deal with actual, or even hypo- convictions by preaching the gospel to others.
thetical evils, while at the same time preserving the
substance of the right. Cf. *619Thornhill v. FN12 The pamphlets of Paine were not
Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 745, 84 distributed gratuitously. See Introduction
L.Ed. 1093; Cantwell v. Connecticut, 310 U.S. 296, to Paine's Political Writings (London,
311, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352. 1909), pp. 3, 5.
They impose a tax on the dissemination of informa-
Pamphlets were extensively used in the
tion and opinion anywhere within the city limits,
struggle for religious freedom. See Greene,
whether on the streets or from house to house. ‘As
The Development of Religious Liberty in
we have said, the streets are natural and proper
Connecticut (1905), pp. 282-283, 299-301.
places for the dissemination of information and
opinion; and one is not to have the exercise of his The exercise, without commercial motives, of free-
liberty of expression in appropriate places abridged dom of speech, freedom of the press, or freedom of
on the plea that it may be exercised elsewhere.’ worship are not proper sources of taxation for gen-
Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, eral revenue purposes. In dealing with a permissible
151, 84 L.Ed. 155. These taxes abridge that liberty. regulation of these freedoms and the fee charged in
connection therewith, we emphasized the fact that
It matters not that petitioners asked contributions
the fee was ‘not a revenue tax, but one to meet the
for their literature. Freedom of speech and freedom
expense incident to the administration of the act
of the press cannot and must not mean freedom
and to the maintenance of public order’, and stated
only for those who can distribute their broadsides
only that, ‘There is nothing contrary to the Consti-
without charge. There may be others with messages
tution in the charge of a fee limited to the purpose
more vital but purses less full, who must seek some
stated.’ Cox v. New Hampshire, 312 U.S. 569,
reimbursement for their outlay or else forego
577, 61 S.Ct. 762, 766, 85 L.Ed. 1049, 133 A.L.R.
passing on their ideas. The pamphlet, an historic
FN12 1396. The taxes here involved are ostensibly for
weapon against oppression, Lovell v. Griffin,
revenue purposes; they are not regulatory fees. Re-
303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949,
spondents do not show that the instant activities of
is today the convenient vehicle of those with lim-
Jehovah's Witnesses create special problems caus-
ing a drain on the municipal coffers, or that these haps not so orthodox as the oral sermon, the use of
taxes are commensurate with any expenses entailed religious books is an old, recognized and effective
FN13
by the presence of the Witnesses. In the absence of mode of worship and means of proselytizing.
such a showing I think no tax whatever can be For this petitioners were taxed. The mind rebels at
levied on petitioners' activities in distributing their the thought that a minister of any of the old estab-
literature or disseminating their ideas. If the guar- lished churches could be made to pay fees to the
anties of freedom of speech and freedom of the community before entering the pulpit. These taxes
press are to be preserved, municipalities should not on petitioners' efforts to preach the ‘news of the
be free to raise general revenue by taxes on the cir- Kingdom’ should be struck down because they bur-
culation of information and opinion in non- den petitioners' right to worship the Deity in their
commercial causes; other sources can be found, the own fashion and to spread the gospel as they under-
taxation of which will not choke off ideas. Taxes stand it. There is here no contention that their man-
such as the instant ones violate petitioners' right to ner of worship gives rise to conduct which calls for
freedom of speech and freedom of the press, protec- regulation, and these ordinances are not aimed at
ted against state invasion by the Fourteenth Amend- any such practices.
ment.
FN13 See, The Volumes of the American
Tract Society (1848), pp. 15-16, 24; Home
Freedom of Religion. Evangelization (1850), pp. 70-74; Lee,
History of the Methodists (1810), p. 48.
Under the foregoing discussion of freedom of
speech and freedom of the press any person would One need only read the decisions of this and other
be exempt from taxation upon the act of distribut- courts in the past few years to see the unpopularity
ing information or *621 opinion of any kind, of Jehovah's *622 Witnesses and the difficulties put
whether political, scientific, or religious in charac- in their path because of their religious beliefs. An
ter, when done solely in an effort to spread know- arresting parallel exists between the troubles of Je-
ledge and ideas, with no thought of commercial hovah's Witnesses and the struggles of **1251 vari-
gain. But there is another, and perhaps more pre- ous dissentient groups in the American colonies for
cious reason why these ordinances cannot constitu- religious liberty which culminated in the Virginia
tionally apply to petitioners. Important as free FN14
Statute for Religious Freedom, the Northwest
speech and a free press are to a free government FN15
Ordinance of 1787, and the First Amendment.
and a free citizenry, there is a right even more dear In most of the colonies there was an established
to many individuals-the right to worship their church, and the way of the dissenter was hard. All
Maker according to their needs and the dictates of sects, including Quaker, Methodist, Baptist, Episco-
their souls and to carry their message or their gos- palian, Separatist, Rogerine, and Catholic suffered.
pel to every living creature. These ordinances in- FN16
Many of the non-conforming ministers were
fringe that right, which is also protected by the itinerants, and measures were adopted to curb their
Fourteenth Amendment. Cantwell v. Connecticut, unwanted activities. The books of certain denomin-
310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 FN17
ations were banned. Virginia and Connecticut
A.L.R. 1352. FN18
had burdensome licensing requirements. Cf.
Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82
Petitioners were itinerant ministers going through
L.Ed. 949; Schneider v. State, 308 U.S. 147, 60
the streets and from house to house in different
S.Ct. 146, 84 L.Ed. 155; Cantwell v. Connecticut,
communities, preaching the gospel by distributing
310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128
booklets and pamphlets setting forth their views of
A.L.R. 1352. Other states required oaths before one
the Bible and the tenets of their faith. While per-
could preach which many ministers could not con- ‘any books containing only matters of de-
FN19
scientiously take. Cf. Reid v. Borough of votion or piety’. MacDonald, Documentary
Brookville, Pa., D.C., 39 F.Supp. 30; *623 Source Book of American History (3d ed.,
Kennedy v. City of Moscow, D.C., 39 F.Supp. 26. 1934), p. 128.
Research reveals no attempt to control or persecute
by the more subtle means of taxing the function of By applying these occupational taxes to petitioners'
preaching, or even any attempt to tap it as a source non-commercial activities, respondents now tax
FN20 sincere efforts to spread religious beliefs, and a
of revenue.
heavy burden falls upon a new set of itinerant
FN14 Adopted in 1785 through the efforts zealots, the Witnesses. That burden should not be
of Jefferson and Madison. Virginia Code allowed to stand, especially if, as the excluded
of 1930, sec. 34. testimony in No. 280 indicates, the accepted clergy-
men of the town can take to their pulpits and dis-
FN15 ‘ Article I. No person, demeaning tribute their literature without the impact of taxa-
himself in a peaceable and orderly manner, tion. Liberty of conscience is too full of meaning
shall ever be molested on account of his for the individuals in this nation to permit taxation
mode of worship, or religious sentiments, to prohibit or substantially impair the spread of reli-
in the said territories.’ gious ideas, even though they are controversial and
run counter to the established notions of a com-
FN16 See Works of Thomas Jefferson
munity. If this Court is to err in evaluating claims
(1861), vol. VIII, pp. 398-402 (Notes on
that freedom of speech, freedom of the press, and
Virginia, Query XVII); Cobb, Rise of Reli-
freedom of religion have been invaded, far better
gious Liberty in America (1902); Little,
that it err in being overprotective of these precious
Imprisoned Preachers and Religious
rights.
Liberty in Virginia (1938); Lee, History of
the Methodists (1810), pp. 62-74; Greene, Mr. Justice BLACK, Mr. Justice DOUGLAS, Mr.
The Development of Religious Liberty In Justice MURPHY.
Connecticut (1905), pp. 158-180; Guilday, The opinion of the Court sanctions a device which
Life and Times of John Carroll (1922), vol. in our opinion suppresses or tends to suppress the
1, Chapters V and VIII. free exercise of a religion practiced by a minority
group. This is but another step in the direction
FN17 Jefferson, op. cit.; Greene, op. cit.,
which Minersville School District v. Gobitis, 310
p. 165.
U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375, 127 A.L.R.
FN18 Little, op. cit., pp. 11-13, 67-69; 1493, took against the same religious minority and
Greene, op. cit., pp. 243, 262-263, 358; is a logical extension of the principles upon which
Cobb, op. cit., pp. 98, 104, 358; Wright, that decision rested. Since we joined in the opinion
Hawkers and Walkers in Early America in the Gobitis case, we think this is an appropriate
(1927), Chapter X; Baldwin, The New *624 occasion to state that we now believe that it
England Clergy and the Revolution (1928), was also wrongly decided. Certainly our democratic
p. 59. form of government functioning under the historic
Bill of Rights has a high responsibility to **1252
FN19 The Journal of the Rev. Francis As- accommodate itself to the religious views of minor-
buroy (1821), vol. 1, pp. 208, 253; Lee, op. ities however unpopular and unorthodox those
cit., pp. 62-74. views may be. The First Amendment does not put
the right freely to exercise religion in a subordinate
FN20 The Stamp Act of 1765 exempted
U.S. 1942.
Jones v. City of Opelika
316 U.S. 584, 62 S.Ct. 1231, 141 A.L.R. 514, 86
L.Ed. 1691
END OF DOCUMENT