Martin v. City of Struthers/Dissent Reed

by Stanley Forman Reed

United States Supreme Court

319 U.S. 141

Martin  v.  City of Struthers

 Argued: March 11, 1943. --- Decided: May 3, 1943

Mr. Justice REED, dissenting.

While I appreciate the necessity of watchfulness to avoid abridgments of our freedom of expression, it is impossible for me to discover in this trivial town police regulation a violation of the First Amendment. No ideas are being suppressed. No censorship is involved. The freedom to teach or preach by word or book is unabridged, save only the right to call a householder to the door of his house to receive the summoner's message. I cannot expand this regulation to a violation of the First Amendment.

Freedom to distribute publications is obviously a part of the general freedom guaranteed the expression of ideas by the First Amendment. It is trite to say that this freedom of expression is not unlimited. Obscenity, disloyalty and provocatives do not come within its protection. Near v. Minnesota, 283 U.S. 697, 712, 716, 51 S.Ct. 625, 629, 631, 75 L.Ed. 1352; Schenck v. United States, 249 U.S. 47, 51, 39 S.Ct. 247, 248, 63 L.Ed. 470; Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 574, 62 S.Ct. 766, 769, 770, 86 L.Ed. 1031. All agree that there may be reasonable regulation of the freedom of expression. Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 128 A.L.R. 1352. One cannot throw dodgers 'broadcast in the streets.' Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155.

The ordinance forbids 'any person distributing handbills, circulars or other advertisements to ring the doorbell, sound the door knocker, or otherwise summon the inmate or inmates * * * to the door' to receive the advertisement. The Court's opinion speaks of prohibitions against the distribution of 'literature.' The precise matter distributed appears in the footnote. ^[1] I do not read the ordinance as prohibiting the distribution of literature nor can I appraise the dodger distributed as falling into that classification. If the ordinance, in my view, did prohibit the distribution of literature, while permitting all other canvassing, I should believe such an ordinance discriminatory. This ordinance is different. The most, it seems to me, that can be or has been read into the ordinance is a prohibition of free distribution of printed matter by summoning inmates to their doors. There are excellent reasons to support a determination of the city council that such distributors may not disturb householders while permitting salesmen and others to call them to the door. Practical experience may well convince the council that irritations arise frequently from this method of advertising. The classification is certainly not discriminatory. ^[2]

If the citizens of Struthers desire to be protected from the annoyance of being called to their doors to receive printed matter, there is to my mind no constitutional provision which forbids their municipal council from modifying the rule that anyone may sound a call for the householder to attend his door. It is the council which is entrusted by the citizens with the power to declare and abate the myriad nuisances which develop in a community. Its determination should not be set aside by this Court unless clearly and patently unconstitutional.

The antiquity and prevalence of colportage are relied on to support the Court's decision. But the practice has persisted because the householder was acquiescent. It can hardly be thought, however, that long indulgence of a practice which many or all citizens have welcomed or tolerated creates a constitutional right to its continuance. Changing conditions have begotten modification by law of many practices once deemed a part of the individual's liberty.

The First Amendment does not compel a pedestrian to pause on the street to listen to the argument supporting another's views of religion or politics. Once the door is opened, the visitor may not insert a foot and insist on a hearing. He certainly may not enter the home. To knock or ring, however, comes close to such invasions. To prohibit such a call leaves open distribution of the notice on the street or at the home without signal to announce its deposit. Such assurance of privacy falls far short of an abridgment of freedom of the press. The ordinance seems a fair adjustment of the privilege of distributors and the rights of householders.

Mr. Justice ROBERTS and Mr. Justice JACKSON join in this dissent.

For dissenting opinion of Mr. Justice JACKSON, see 63 S.Ct. 882.

Notes

1  'Religion as a World Remedy, The Evidence in Support Thereof. Hear Judge Rutherford, Sunday, July 28, 4 P.M., E.S.T. Free. All Persons of Goodwill Welcome, Free. Columbus Coliseum, Ohio State Fair Grounds. (on one side)

'1940's Event of Paramount Importance To You! What is it? The Theocratic Convention of Jehovah's Witnesses. Five Days-July 24-28 Thirty Cities. All Lovers of Righteousness-Welcome! The strange fate threatening all 'Christendom' makes it imperative that you Come and Hear the public address on Religion As A World Remedy, The Evidence in Support Thereof, by Judge Rutherford at the Coliseum of the Ohio State Fair Grounds, Columbus, Ohio, Sunday, July 28, at 4 p.m., E.S.T. 'He that hath an ear to hear' will come to one of the auditoriums of the convention cities listed below, tied in with Columbus by direct wire. Some of the 30 cities are (21 are listed). For detailed information concerning these conventions write Watchtower Convention Committee, 117 Adams St., Brooklyn, N.Y.' (on the other side)

2  Keokee Coke Co. v. Taylor, 234 U.S. 224, 34 S.Ct. 856, 58 L.Ed. 1288; German Alliance Insurance Co. v. Kansas, 233 U.S. 389, 34 S.Ct. 612, 58 L.Ed. 1011, L.R.A.1915C, 1189; Hall v. Geiger-Jones Co., 242 U.S. 539, 37 S.Ct. 217, 61 L.Ed. 480, L.R.A.1917F, 514, Ann.Cas.1917C, 643; State of Minnesota v. Probate Court, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744, 126 A.L.R. 530; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 46, 57 S.Ct. 615, 628, 81 L.Ed. 893, 108 A.L.R. 1352; Carmichael v. Southern Coal Co., 301 U.S. 495, 509, 512, 57 S.Ct. 868, 872, 873, 81 L.Ed. 1245, 109 A.L.R. 1327.