Jones v. City of Opelika (316 U.S. 584)/Dissent Murphy

by Stanley Forman Reed

United States Supreme Court

316 U.S. 584

Jones  v.  City of Opelika (316 U.S. 584)

 Argued: Feb. 5, April 30, 1942. --- Decided: June 8, 1942

Mr. Justice MURPHY, with whom the CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice DOUGLAS concur, dissenting.

When a statute is challenged as impinging on freedom of speech, freedom of the press, or freedom of worship, those historic privileges which are so essential to our political welfare and spiritual progress, it is the duty of this Court to subject such legislation to examination, in the light of the evidence adduced, to determine whether it is so drawn as not to impair the substance of those cherished freedoms in reaching its objective. Ordinances that may operate to restrict the circulation or dissemination of ideas on religious or other subjects should be framed with fastidious care and precise language to avoid undue encroachment on these fundamental liberties. And the protection of the Constitution must be extended to all, not only to those whose views accord with prevailing thought but also to dissident minorities who energetically spread their beliefs. Being satisfied by the evidence that the ordinances in the cases now before us, as construed and applied in the state courts, impose a burden on the circulation and discussion of opinion and information in matters of religion, and therefore violate the petitioners' ^[1] rights to freedom of speech, freedom of the press, and freedom of worship in contravention of the Fourteenth Amendment, I am obliged to dissent from the opinion of the Court.

It is not disputed that petitioners, Jehovah's Witnesses, were ordained ministers preaching the gospel, as they understood it, through the streets and from house to house, orally and by playing religious records with the consent of the householder, and by distributing books and pamphlets setting forth the tenets of their faith. It does not appear that their motives were commercial, but only that they were evangelizing their faith as they saw it.

In No. 280 the trial court excluded as irrelevant petitioner's testimony that he was an ordained minister and that his activities on the streets of Opelika were in furtherance of his ministerial duties. The testimony of ten clergymen of Opelika that they distributed free religious literature in their churches, the cost of which was defrayed by voluntary contribution, and that they had never been forced to pay any license fee, was also excluded. It is admitted here that petitioner was a Jehovah's Witness and considered himself an ordained minister.

The Supreme Court of Arizona (118 P.2d 98) stated in No. 966 that appellant was 'a regularly ordained minister of the denomination commonly known as Jehovah's Witnesses * * * going from house to house in the city of Casa Grande preaching the gospel, as he understood it, by means of his spoken word, by playing various religious records on a phonograph, with the approval of the householder, and by distributing printed books, pamphlets and tracts which set forth his views as to the meaning of the Bible. The method of distribution of these printed books, pamphlets and tracts was as follows: He first offered them for sale at various prices ranging from five to twenty-five cents each. If the householder did not desire to purchase any of them he then left a small leaflet summarizing some of the doctrines which he preached.'

The facts were stipulated in No. 314 (151 S.W.2d 1001). Each petitioner 'claims to be an ordained minister of the gospel * * *. 'They do not engage in this work for any selfish reason, but because they feel called to publish the news and preach the gospel of the Kingdom to all the world as a witness before the end comes. * * * They believe that the only effective way to preach is to go from house to house and make personal contact with the people and distribute to them books and pamphlets setting forth their views on Christianity". Petitioners 'were going from house to house in the residential section within the City of Fort Smith * * * presenting to the residents of these houses various booklets, leaflets and periodicals setting forth their views of Christianity held by Jehovah's Witnesses.' They solicited a 'contribution of twenty-five cents for each book,' but 'these books in some instances are distributed free when the people wishing them are unable to contribute.'

There is no suggestion in any of these three cases that petitioners were perpetrating a fraud, that they were demeaning themselves in an obnoxious manner, that their activities created any public disturbance or inconvenience, that private rights were contravened, or that the literature distributed was offensive to morals or created any 'clear and present danger' to organized society.

The ordinance in each case is sought to be sustained as a system of non-discriminatory taxation of various businesses, professions, and vocations, including the distribution of books for which contributions are asked, for the sole purpose of raising revenue. ^[2] Any inclination to take the position that petitioners, who were proselytizing by distributing informative literature setting forth their religious tenets, and whose activities were wholly unrelated to any commercial purposes, were not within the purview of these occupational tax ordinances, ^[3] is foreclosed by the decisions of the state courts below to the contrary. As so construed the ordinances in effect impose direct taxes on the dissemination of ideas and the distribution of literature, relating to and dealing with religious matters, for which a contribution is asked in an attempt to gain converts, because those were petitioners' activities. Such taxes have been held to violate the Fourteenth Amendment, McConkey v. City of Fredericksburg, 179 Va. 556, 19 S.E.2d 682; State v. Greaves, 112 Vt. 222, 22 A.2d 497; City of Blue Island v. Kozul, 379 Ill. 511, 41 N.E.2d 515; and that should be the holding here. ^[4]

Freedom of Speech and Freedom of the Press.

In view of the recent decisions of this Court striking down acts which impair freedom of speech and freedom of the press no elaboration on that subject is now necessary. We have 'unequivocally held that the streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and that, though the states and municipalities may appropriately regulate the privilege in the public interest, they may not unduly burden or proscribe its employment in these public thoroughfares.' Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. --, decided April 13, 1942. And as the distribution of pamphlets to spread information and opinion on the streets and from house to house for non-commercial purposes is protected from the prior restraint of censorship, Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155, so should it be protected from the burden of taxation.

The opinion of the Court holds that the amount of the tax is not before us and that a 'nondiscriminatory license fee, presumably appropriate in amount, may be imposed upon these activities'. Both of these holdings must be rejected.

Where regulation or infringement of the liberty of discussion and the dissemination of information and opinion are involved, there are special reasons for testing the challenged statute on tis face. Thornhill v. Alabama, 310 U.S. 88, 96-98, 60 S.Ct. 736, 741, 742, 84 L.Ed. 1093, and see Lovell v. Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949; Milk Wagon Drivers Union v. Meadowmoor Co., 312 U.S. 287, 297, 61 S.Ct. 552, 556, 85 L.Ed. 836, 132 A.L.R. 1200. That should be done here. ^[5]

Consideration of the taxes leads to but one conclusion-that they prohibit or seriously hinder the distribution of petitioners' religious literature. The opinion of the Court admits that all the taxes are 'substantial'. The $25 quarterly tax of Casa Grande approaches prohibition. The 1940 population of that town was 1,545. With so few potential purchasers it would take a gifted evangelist, indeed, in view of the antagonism generally encountered by Jehovah's Witnesses, to sell enough tracts at prices ranging from five to twenty-five cents to gross enough to pay the tax. Cf. McConkey v. City of Fredericksburg, 179 Va. 556, 19 S.E.2d 682. While the amount is actually lower in Opelika ^[6] and may be lower in Fort Smith in that it is possible to get a license for a short period, ^[7] and while the circle of purchasers is wider in those towns, ^[8] these exactions also place a heavy hand on petitioners' activities. The petitioners should not be subjected to such tribute.

But whatever the amount, the taxes are in reality taxes upon the dissemination of religious ideas, a dissemination carried on by the distribution of religious literature for religious reasons alone and not for personal profit. As such they place a burden on freedom of speech, freedom of the press, and the exercise of religion even if the question of amount is laid aside. Liberty of circulation is the very life blood of a free press, cf. Lovell v. Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949, and taxes on the circulation of ideas have a long history of misuse against freedom of thought. ^[9] See Grosjean v. American Press Co., 297 U.S. 233, 245-249, 56 S.Ct. 444, 447, 448, 80 L.Ed. 660. And taxes on circulation solely for the purpose of revenue were successfully resisted, prior to the adoption of the First Amendment, as interferences with freedom of the press. ^[10] Surely all this was familiar knowledge to the framers of the Bill of Rights. We need not shut our eyes to the possibility that use may again be made of such taxes, either by discrimination in enforcement or otherwise, to suppress the unpalatable views of militant minorities such as Jehovah's Witnesses. See McConkey v. City of Fredericksburg, 179 Va. 556, 19 S.E.2d 682. As the evidence excluded in No. 280 tended to show, no attempt was there made to apply the ordinance to ministers functioning in a more orthodox manner than petitioner.

Other objectionable features in addition to the factor of historical misuse exist. There is the unfairness present in any system of flat fee taxation, bearing no relation to the ability to pay. And there is the cumulative burden of many such taxes throughout the municipalities of the land, as the number of recent cases involving such ordinances abundantly demonstrates. ^[11] The activities of Jehovah's Witnesses are widespread, and the aggregate effect of numerous exactions, no matter how small, can conceivably force them to choose between refraining from attempting to recoup part of the cost of their literature, or else paying out large sums in taxes. Either choice hinders and may even possibly put an end to their activities. There is no basis, other than a refusal to consider the characteristics of taxes such as these, for any assumption that such taxes are 'commensurate with the activities licensed'. Nor is there any assurance that 'a correlatively enlarged field of distribution' will insure sufficient proceeds even to meet such exactions, let alone leaving any residue for the continuation of petitioners' evangelization.

Freedom of speech, freedom of the press, and freedom of religion all have a double aspect-freedom of thought and freedom of action. Freedom to think is absolute of its own nature; the most tyrannical government is powerless to control the inward workings of the mind. But even an aggressive mind is of no missionary value unless there is freedom of action, freedom to communicate its message to others by speech and writing. Since in any form of action there is a possibility of collision with the rights of others, there can be no doubt that this freedom to act is not absolute but qualified, being subject to regulation in the public interest which does not unduly infringe the right. However, there is no assertion here that the ordinances were regulatory, but if there were such a claim, they still should not be sustained. No abuses justifying regulation are advanced and the ordinances are not narrowly and precisely drawn to deal with actual, or even hypothetical evils, while at the same time preserving the substance of the right. Cf. Thornhill v. Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 745, 84 L.Ed. 1093; Cantwell v. Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352. They impose a tax on the dissemination of information and opinion anywhere within the city limits, whether on the streets or from house to house. 'As we have said, the streets are natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised elsewhere.' Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155. These taxes abridge that liberty.

It matters not that petitioners asked contributions for their literature. Freedom of speech and freedom of the press cannot and must not mean freedom only for those who can distribute their broadsides without charge. There may be others with messages more vital but purses less full, who must seek some reimbursement for their outlay or else forego passing on their ideas. The pamphlet, an historic weapon against oppression, ^[12] Lovell v. Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949, is today the convenient vehicle of those with limited resources because newspaper space and radio time are expensive and the cost of establishing such enterprises great. If freedom of speech and freedom of the press are to have any concrete meaning, people seeking to distribute information and opinion, to the end only that others shall have the benefit thereof, should not be taxed for circulating such matter. It is unnecessary to consider now the validity of such taxes on commercial enterprises engaged in the dissemination of ideas. Cf. Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. --, decided April 13, 1942; Giragi v. Moore, 301 U.S. 670, 57 S.Ct. 946, 81 L.Ed. 1334. Petitioners were not engaged in a traffic for profit. While the courts below held their activities were covered by the ordinances, it is clear that they were seeking only to further their religious convictions by preaching the gospel to others.

The exercise, without commercial motives, of freedom of speech, freedom of the press, or freedom of worship are not proper sources of taxation for general revenue purposes. In dealing with a permissible regulation of these freedoms and the fee charged in connection therewith, we emphasized the fact that the fee was 'not a revenue tax, but one to meet the expense incident to the administration of the act and to the maintenance of public order', and stated only that, 'There is nothing contrary to the Constitution in the charge of a fee limited to the purpose stated.' Cox v. New Hampshire, 312 U.S. 569, 577, 61 S.Ct. 762, 766, 85 L.Ed. 1049, 133 A.L.R. 1396. The taxes here involved are ostensibly for revenue purposes; they are not regulatory fees. Respondents do not show that the instant activities of Jehovah's Witnesses create special problems causing a drain on the municipal coffers, or that these taxes are commensurate with any expenses entailed by the presence of the Witnesses. In the absence of such a showing I think no tax whatever can be levied on petitioners' activities in distributing their literature or disseminating their ideas. If the guaranties of freedom of speech and freedom of the press are to be preserved, municipalities should not be free to raise general revenue by taxes on the circulation of information and opinion in non-commercial causes; other sources can be found, the taxation of which will not choke off ideas. Taxes such as the instant ones violate petitioners' right to freedom of speech and freedom of the press, protected against state invasion by the Fourteenth Amendment.

Freedom of Religion.

Under the foregoing discussion of freedom of speech and freedom of the press any person would be exempt from taxation upon the act of distributing information or opinion of any kind, whether political, scientific, or religious in character, when done solely in an effort to spread knowledge and ideas, with no thought of commercial gain. But there is another, and perhaps more precious reason why these ordinances cannot constitutionally apply to petitioners. Important as free speech and a free press are to a free government and a free citizenry, there is a right even more dear to many individuals-the right to worship their Maker according to their needs and the dictates of their souls and to carry their message or their gospel to every living creature. These ordinances infringe that right, which is also protected by the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352.

Petitioners were itinerant ministers going through the streets and from house to house in different communities, preaching the gospel by distributing booklets and pamphlets setting forth their views of the Bible and the tenets of their faith. While perhaps not so orthodox as the oral sermon, the use of religious books is an old, recognized and effective mode of worship and means of proselytizing. ^[13] For this petitioners were taxed. The mind rebels at the thought that a minister of any of the old established churches could be made to pay fees to the community before entering the pulpit. These taxes on petitioners' efforts to preach the 'news of the Kingdom' should be struck down because they burden petitioners' right to worship the Deity in their own fashion and to spread the gospel as they understand it. There is here no contention that their manner of worship gives rise to conduct which calls for regulation, and these ordinances are not aimed at any such practices.

One need only read the decisions of this and other courts in the past few years to see the unpopularity of Jehovah's Witnesses and the difficulties put in their path because of their religious beliefs. An arresting parallel exists between the troubles of Jehovah's Witnesses and the struggles of various dissentient groups in the American colonies for religious liberty which culminated in the Virginia Statute for Religious Freedom, ^[14] the Northwest Ordinance of 1787, ^[15] and the First Amendment. In most of the colonies there was an established church, and the way of the dissenter was hard. All sects, including Quaker, Methodist, Baptist, Episcopalian, Separatist, Rogerine, and Catholic suffered. ^[16] Many of the non-conforming ministers were itinerants, and measures were adopted to curb their unwanted activities. The books of certain denominations were banned. ^[17] Virginia and Connecticut had burdensome licensing requirements. ^[18] Cf. Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352. Other states required oaths before one could preach which many ministers could not conscientiously take. ^[19] Cf. Reid v. Borough of Brookville, Pa., D.C., 39 F.Supp. 30; Kennedy v. City of Moscow, D.C., 39 F.Supp. 26. Research reveals no attempt to control or persecute by the more subtle means of taxing the function of preaching, or even any attempt to tap it as a source of revenue. ^[20]

By applying these occupational taxes to petitioners' non-commercial activities, respondents now tax sincere efforts to spread religious beliefs, and a heavy burden falls upon a new set of itinerant zealots, the Witnesses. That burden should not be allowed to stand, especially if, as the excluded testimony in No. 280 indicates, the accepted clergymen of the town can take to their pulpits and distribute their literature without the impact of taxation. Liberty of conscience is too full of meaning for the individuals in this nation to permit taxation to prohibit or substantially impair the spread of religious ideas, even though they are controversial and run counter to the established notions of a community. If this Court is to err in evaluating claims that freedom of speech, freedom of the press, and freedom of religion have been invaded, far better that it err in being overprotective of these precious rights.

Mr. Justice BLACK, Mr. Justice DOUGLAS, Mr. Justice MURPHY.

The opinion of the Court sanctions a device which in our opinion suppresses or tends to suppress the free exercise of a religion practiced by a minority group. This is but another step in the direction which Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375, 127 A.L.R. 1493, took against the same religious minority and is a logical extension of the principles upon which that decision rested. Since we joined in the opinion in the Gobitis case, we think this is an appropriate occasion to state that we now believe that it was also wrongly decided. Certainly our democratic form of government functioning under the historic Bill of Rights has a high responsibility to accommodate itself to the religious views of minorities however unpopular and unorthodox those views may be. The First Amendment does not put the right freely to exercise religion in a subordinate position. We fear, however, that the opinions in these and in the Gobitis case do exactly that.

Notes

1. For convenience appellant in No. 966, petitioners in No. 314, and petitioner in No. 280 are herein collectively referred to as 'petitioners'.
2. Respondent in No. 280 contends that the question presented 'in no respect relates to regulatory or police power action of a municipal government, but is concerned only with the municipality's right to levy taxes'.
3. Several courts have taken this position. State ex rel. Semansky v. Stark, 196 La. 307, 199 So. 129; People v. Finkelstein, 170 Misc. 188, 9 N.Y.S.2d 941; Thomas v. City of Atlanta, 59 Ga.App. 520, 1 S.E.2d 598; State v. Meredith, 197 S.C. 351, 15 S.E.2d 678; State ex rel. Hough v. Woodruff, 147 Fla. 299, 2 So.2d 577; City of Cincinnati v. Mosier, 61 Ohio App. 81, 22 N.E.2d 418. Compare, Gregg v. Smith, 8 L.R.Q.B. (1872-3), p. 302; City of Duncan v. Gairns, 27 Canadian Cr.Cases 440; but see Rex v. Stewart, 53 Canadian Cr. Cases 24.
4. And see Rutledge, J., dissenting in Busey v. District of Columbia, App.D.C., 129 F.2d 24, decided April 15, 1942.
5. When the Opelika ordinance is considered on its face, there is an additional reason for its invalidity. The uncontrolled power of revocation lodged with the local authorities is but the converse of the system of prior licensing struck down in Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949. Here, as there, the pervasive threat of censorship inherent in such a power vitiates the ordinance.
6. $5 or $10, depending upon which section of the ordinance is held to apply.
7. $2.50 per day, $10 per week, and $25 per month.
8. The 1940 population of Fort Smith was 36,584 and that of Opelika, 8,487.
9. The English Stamp Act of 1712, 10 Anne, c. 19, put a tax on newspapers and pamphlets to check what seemed to the Government to be 'false and scandalous libels' and 'the most horrid blasphemies against God and religion.' This and subsequent enactments led to a long struggle in England for the repeal of these 'taxes on knowledge' and the recognition of the freedom of the press. See Collett, History of the Taxes on Knowledge (1899); Place, Taxes on Knowledge (1831).
10. Stamp taxes for purely revenue purposes were successfully resisted in Massachusetts in 1757 and again in 1785 on the ground that they interfered with freedom of the press. See Duniway, Freedom of the Press in Massachusetts (1906), pp. 119-120, 136 137; Thomas, History of Printing in America (1810), vol. 2, pp. 267-268. The press also vigorously opposed the Stamp Act of 1765, 5 Geo. III, c. 12, which was also a revenue measure. See Duniway, op. cit., p. 124; Thomas, op. cit., pp. 189, 297, 322, 329, 350; Van Tyne, Causes of the War of Independence (1922), p. 160; 15 Scottish Historical Review 322, 326.
11. In addition to the instant cases see City of Cincinnati v. Mosier, 61 Ohio App. 81, 22 N.E.2d 418; State v. Meredith, 197 S.C. 351, 15 S.E.2d 678; Thomas v. City of Atlanta, 59 Ga.App. 520, 1 S.E.2d 598; Commonwealth v. Reid, 144 Pa.Super. 569, 20 A.2d 841; People v. Banks, 168 Misc. 515, 6 N.Y.S.2d 41; Cook v. City of Harrison, 180 Ark. 546, 21 S.W.2d 966; State v. Greaves, 112 Vt. 222, 22 A.2d 497; Busey v. District of Columbia, App.D.C., 129 F.2d 24; McConkey v. City of Fredericksburg, 179 Va. 556, 19 S.E.2d 682; City of Blue Island v. Kozul, 379 Ill. 511, 41 N.E.2d 515; State ex rel. Semansky v. Stark, 196 La. 307, 199 So. 129; People v. Finkelstein, 170 Misc. 188, 9 N.Y.S.2d 941; State ex rel. Hough v. Woodruff, 147 Fla. 299, 2 So.2d 577; Borchert v. City of Ranger, D.C., 42 F.Supp. 577.
12. The pamphlets of Paine were not distributed gratuitously. See Introduction to Paine's Political Writings (London, 1909), pp. 3, 5.
13. See, The Volumes of the American Tract Society (1848), pp. 15-16, 24; Home Evangelization (1850), pp. 70-74; Lee, History of the Methodists (1810), p. 48.
14. Adopted in 1785 through the efforts of Jefferson and Madison. Virginia Code of 1930, sec. 34.
15. 'Article I. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship, or religious sentiments, in the said territories.'
16. See Works of Thomas Jefferson (1861), vol. VIII, pp. 398 402 (Notes on Virginia, Query XVII); Cobb, Rise of Religious Liberty in America (1902); Little, Imprisoned Preachers and Religious Liberty in Virginia (1938); Lee, History of the Methodists (1810), pp. 62-74; Greene, The Development of Religious Liberty In Connecticut (1905), pp. 158-180; Guilday, Life and Times of John Carroll (1922), vol. 1, Chapters V and VIII.
17. Jefferson, op. cit.; Greene, op. cit., p. 165.
18. Little, op. cit., pp. 11-13, 67-69; Greene, op. cit., pp. 243, 262-263, 358; Cobb, op. cit., pp. 98, 104, 358; Wright, Hawkers and Walkers in Early America (1927), Chapter X; Baldwin, The New England Clergy and the Revolution (1928), p. 59.
19. The Journal of the Rev. Francis Asburoy (1821), vol. 1, pp. 208, 253; Lee, op. cit., pp. 62-74.
20. The Stamp Act of 1765 exempted 'any books containing only matters of devotion or piety'. MacDonald, Documentary Source Book of American History (3d ed., 1934), p. 128.