1. A municipal ordinance which, as construed and applied,
requires religious colporteurs to pay a license tax as a condition
to the pursuit of their activities, is invalid under the Federal
Constitution as a denial of freedom of speech, press and religion.
Pp. 319 U. S.
2. The mere fact that the religious literature is "sold", rather
than "donated" does not transform the activities of the colporteur
into a commercial enterprise. P. 319 U. S.
3. Upon the record in these cases, it cannot be said that
"Jehovah's Witnesses" were engaged in a commercial, rather than in
a religious, venture. P. 319 U. S.
4. A State may not impose a charge for the enjoyment of a right
granted by the Federal Constitution. P. 319 U. S.
5. The flat license tax here involved restrains in advance the
Constitutional liberties of press and religion, and inevitably
tends to suppress their exercise. P. 319 U. S.
6. That the ordinance is "nondiscriminatory," in that it applies
also to peddlers of wares and merchandise, is immaterial. The
liberties guaranteed by the First Amendment are in a preferred
position. P. 319 U. S.
7. Since the privilege in question is guaranteed by the Federal
Constitution, and exists independently of state authority, the
inquiry as to whether the State has given something for which it
can ask a return is irrelevant. P. 319 U. S.
8. A community may not suppress, or the State tax, the
dissemination of views because they are unpopular, annoying, or
distasteful. P. 319 U. S.
Page 319 U. S. 106
9. The assumption that the ordinance has been construed to apply
only to solicitation from house to house cannot sustain it, since
it is not narrowly drawn to prevent or control abuses or evil
arising from that particular type of activity. P. 319 U. S.
149 Pa.Super. 175, 27 A.2d 666, reversed.
CERTIORARI, 318 U.S. 748, to review affirmances of orders in
eight cases refusing to allow appeals from judgments and sentences
for violations of a municipal ordinance.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
The City of Jeannette, Pennsylvania, has an ordinance, some
forty years old, which provides in part:
"That all persons canvassing for or soliciting within said
Borough, orders for goods, paintings, pictures, wares, or
merchandise of any kind, or persons delivering such articles under
orders so obtained or solicited, shall be required to procure from
the Burgess a license to transact said business and shall pay to
the Treasurer of said Borough therefore the following sums
according to the time for which said license shall be granted."
"For one day $1.50, for one week seven dollars ($7.00), for two
weeks twelve dollars ($12.00), for three weeks twenty dollars
($20.00), provided that the provisions of this ordinance shall not
apply to persons selling by sample to manufacturers or licensed
merchants or dealers doing business in said Borough of
Petitioners are "Jehovah's Witnesses." They went about from door
to door in the City of Jeannette distributing literature and
soliciting people to "purchase" certain religious books and
pamphlets, all published by the
Page 319 U. S. 107
Watch Tower Bible & Tract Society. [Footnote 1
] The "price" of the books was twenty-five
cents each, the "price" of the pamphlets five cents each. [Footnote 2
] In connection with these
activities, petitioners used a phonograph [Footnote 3
] on which they played a record expounding
certain of their views on religion. None of them obtained a license
under the ordinance. Before they were arrested, each had made
"sales" of books. There was evidence that it was their practice in
making these solicitations to request a "contribution" of
twenty-five cents each for the books and five cents each for the
pamphlets, but to accept lesser sums or even to donate the volumes
in case an interested person was without funds. In the present
case, some donations of pamphlets were made when books were
purchased. Petitioners were convicted and fined for violation of
the ordinance. Their judgments of conviction were sustained by the
Superior Court of Pennsylvania, 149 Pa.Super.Ct. 175, 27 A.2d 666,
against their contention that the ordinance deprived them of the
freedom of speech, press, and religion guaranteed by the First
Amendment. Petitions for leave to appeal to the Supreme Court of
Pennsylvania were denied. The cases are here on petitions for writs
of certiorari which we granted along with the petitions for
rehearing of Jones v. Opelika, 316 U.
, and its companion cases.
Page 319 U. S. 108
The First Amendment, which the Fourteenth makes applicable to
the states, declares that
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press . . ."
It could hardly be denied that a tax laid specifically on the
exercise of those freedoms would be unconstitutional. Yet the
license tax imposed by this ordinance is, in substance, just
Petitioners spread their interpretations of the Bible and their
religious beliefs largely through the hand distribution of
literature by full- or part-time workers. [Footnote 4
] They claim to follow the example of Paul,
teaching "publickly, and from house to house." Acts 20:20. They
take literally the mandate of the Scriptures, "Go ye into all the
world, and preach the gospel to every creature." Mark 16:15. In
doing so, they believe that they are obeying a commandment of
The hand distribution of religious tracts is an age-old form of
missionary evangelism -- as old as the history of printing presses.
] It has been a
potent force in various religious movements down through the years.
] This form of
evangelism is utilized today on a large scale by various religious
sects whose colporteurs carry the Gospel to thousands
Page 319 U. S. 109
upon thousands of homes and seek through personal visitations to
win adherents to their faith. [Footnote 7
] It is more than preaching; it is more than
distribution of religious literature. It is a combination of both.
Its purpose is as evangelical as the revival meeting. This form of
religious activity occupies the same high estate under the First
Amendment as do worship in the churches and preaching from the
pulpits. It has the same claim to protection as the more orthodox
and conventional exercises of religion. It also has the same claim
as the others to the guarantees of freedom of speech and freedom of
The integrity of this conduct or behavior as a religious
practice has not been challenged. Nor do we have presented any
question as to the sincerity of petitioners in their religious
beliefs and practices, however misguided they may be thought to be.
Moreover, we do not intimate or suggest in respecting their
sincerity that any conduct can be made a religious rite and by the
zeal of the practitioners swept into the First Amendment.
Page 319 U. S. 110
United States, 98 U. S. 145
98 U. S.
-167, and Davis v. Beason, 133 U.
, denied any such claim to the practice of
polygamy and bigamy. Other claims may well arise which deserve the
same fate. We only hold that spreading one's religious beliefs or
preaching the Gospel through distribution of religious literature
and through personal visitations is an age-old type of evangelism
with as high a claim to constitutional protection as the more
orthodox types. The manner in which it is practiced at times gives
rise to special problems with which the police power of the states
is competent to deal. See, for example, Cox v. New
Hampshire, 312 U. S. 569
Chaplinsky v. New Hampshire, 315 U.
. But that merely illustrates that the rights with
which we are dealing are not absolutes. Schneider v.
State, 308 U. S. 147
308 U. S.
-161. We are concerned, however, in these cases
merely with one narrow issue. There is presented for decision no
question whatsoever concerning punishment for any alleged unlawful
acts during the solicitation. Nor is there involved here any
question as to the validity of a registration system for
colporteurs and other solicitors. The cases present a single issue
-- the constitutionality of an ordinance which, as construed and
applied, requires religious colporteurs to pay a license tax as a
condition to the pursuit of their activities.
The alleged justification for the exaction of this license tax
is the fact that the religious literature is distributed with a
solicitation of funds. Thus, it was stated in Jones v. Opelika,
p. 316 U. S. 597
that, when a religious sect uses "ordinary commercial methods of
sales of articles to raise propaganda funds," it is proper for the
state to charge "reasonable fees for the privilege of canvassing."
Situations will arise where it will be difficult to determine
whether a particular activity is religious or purely commercial.
The distinction, at times, is vital. As we stated only the other
day, in Jamison v. Texas, 318 U.
, 318 U. S.
"The states can prohibit the use of the streets for
Page 319 U. S. 111
the distribution of purely commercial leaflets, even though such
leaflets may have 'a civic appeal, or a moral platitude' appended.
Valentine v. Chrestensen, 16 U. S.
, 16 U. S. 55
. They may not
prohibit the distribution of handbills in the pursuit of a clearly
religious activity merely because the handbills invite the purchase
of books for the improved understanding of the religion or because
the handbills seek in a lawful fashion to promote the raising of
funds for religious purposes."
But the mere fact that the religious literature is "sold" by
itinerant preachers, rather than "donated," does not transform
evangelism into a commercial enterprise. If it did, then the
passing of the collection plate in church would make the church
service a commercial project. The constitutional rights of those
spreading their religious beliefs through the spoken and printed
word are not to be gauged by standards governing retailers or
wholesalers of books. The right to use the press for expressing
one's views is not to be measured by the protection afforded
commercial handbills. It should be remembered that the pamphlets of
Thomas Paine were not distributed free of charge. It is plain that
a religious organization needs funds to remain a going concern. But
an itinerant evangelist, however misguided or intolerant he may be,
does not become a mere book agent by selling the Bible or religious
tracts to help defray his expenses or to sustain him. Freedom of
speech, freedom of the press, freedom of religion are available to
all, not merely to those who can pay their own way. As we have
said, the problem of drawing the line between a purely commercial
activity and a religious one will, at times, be difficult. On this
record, it plainly cannot be said that petitioners were engaged in
a commercial, rather than a religious, venture. It is a distortion
of the facts of record to describe their activities as the
occupation of selling books and pamphlets. And the Pennsylvania
court did not rest the judgments of conviction on that basis,
though it did find
Page 319 U. S. 112
that petitioners "sold" the literature. The Supreme Court of
Iowa, in State v. Mead,
230 Iowa 1217, 300 N.W. 523, 524,
described the selling activities of members of this same sect as
"merely incidental and collateral" to their "main object, which was
to preach and publicize the doctrines of their order." And see
State v. Meredith,
197 S.C. 351, 15 S.E.2d 678; People v.
289 N.Y. 378, 385-386, 46 N.E.2d 329. That accurately
summarizes the present record.
We do not mean to say that religious groups and the press are
free from all financial burdens of government. See Grosjean v.
American Press Co., 297 U. S. 233
297 U. S. 250
We have here something quite different, for example, from a tax on
the income of one who engages in religious activities or a tax on
property used or employed in connection with those activities. It
is one thing to impose a tax on the income or property of a
preacher. It is quite another thing to exact a tax from him for the
privilege of delivering a sermon. The tax imposed by the City of
Jeannette is a flat license tax, the payment of which is a
condition of the exercise of these constitutional privileges. The
power to tax the exercise of a privilege is the power to control or
suppress its enjoyment. Magnano Co. v. Hamilton,
292 U. S. 40
292 U. S. 44
and cases cited. Those who can tax the exercise of this religious
practice can make its exercise so costly as to deprive it of the
resources necessary for its maintenance. Those who can tax the
privilege of engaging in this form of missionary evangelism can
close its doors to all those who do not have a full purse.
Spreading religious beliefs in this ancient and honorable manner
would thus be denied the needy. Those who can deprive religious
groups of their colporteurs can take from them a part of the vital
power of the press which has survived from the Reformation.
It is contended, however, that the fact that the license tax can
suppress or control this activity is unimportant
Page 319 U. S. 113
if it does not do so. But that is to disregard the nature of
this tax. It is a license tax -- a flat tax imposed on the exercise
of a privilege granted by the Bill of Rights. A state may not
impose a charge for the enjoyment of a right granted by the Federal
Constitution. Thus, it may not exact a license tax for the
privilege of carrying on interstate commerce (McGoldrick v.
Berwind-White Co., 309 U. S. 33
309 U. S.
-58), although it may tax the property used in, or the
income derived from, that commerce, so long as those taxes are not
p. 309 U. S. 47
and cases cited. A license tax applied to activities guaranteed by
the First Amendment would have the same destructive effect. It is
true that the First Amendment, like the commerce clause, draws no
distinction between license taxes, fixed sum taxes, and other kinds
of taxes. But that is no reason why we should shut our eyes to the
nature of the tax and its destructive influence. The power to
impose a license tax on the exercise of these freedoms is indeed as
potent as the power of censorship which this Court has repeatedly
struck down. Lovell v. Griffin, 303 U.
; Schneider v. State, supra; Cantwell v.
Connecticut, 310 U. S. 296
310 U. S. 306
Largent v. Texas, 318 U. S. 418
Jamison v. Texas, supra.
It was for that reason that the
dissenting opinions in Jones v. Opelika, supra,
the nature of this type of tax. 316 U.S. pp. 316 U. S.
-609, 316 U. S. 620
316 U. S. 623
In that case, as in the present ones, we have something very
different from a registration system under which those going from
house to house are required to give their names, addresses and
other marks of identification to the authorities. In all of these
cases, the issuance of the permit or license is dependent on the
payment of a license tax. And the license tax is fixed in amount
and unrelated to the scope of the activities of petitioners or to
their realized revenues. It is not a nominal fee
Page 319 U. S. 114
imposed as a regulatory measure to defray the expense of
policing the activities in question. [Footnote 8
] It is in no way apportioned. It is a flat
license tax levied and collected as a condition to the pursuit of
activities whose enjoyment is guaranteed by the First Amendment.
Accordingly, it restrains in advance those constitutional liberties
of press and religion, and inevitably tends to suppress their
exercise. That is almost uniformly recognized as the inherent vice
and evil of this flat license tax. As stated by the Supreme Court
of Illinois in a case involving this same sect and an ordinance
similar to the present one, a person cannot be compelled "to
purchase, through a license fee or a license tax, the privilege
freely granted by the constitution." [Footnote 9
] Blue Island v. Kozul,
379 Ill. 511,
519, 41 N.E.2d 515. So it may not be said that proof is lacking
that these license taxes, either separately or cumulatively, have
restricted or are likely to restrict petitioners' religious
activities. On their face, they are a restriction of the free
exercise of those freedoms which are protected by the First
The taxes imposed by this ordinance call hardly help but be as
severe and telling in their impact on the freedom
Page 319 U. S. 115
of the press and religion as the "taxes on knowledge" at which
the First Amendment was partly aimed. Grosjean v. American
Press Co., supra,
297 U. S. 244
-249. They may indeed operate even more
subtly. Itinerant evangelists moving throughout a state or from
state to state would feel immediately the cumulative effect of such
ordinances as they become fashionable. The way of the religious
dissenter has long been hard. But if the formula of this type of
ordinance is approved, a new device for the suppression of
religious minorities will have been found. This method of
disseminating religious beliefs can be crushed and closed out by
the sheer weight of the toll or tribute which is exacted town by
town, village by village. The spread of religious ideas through
personal visitations by the literature ministry of numerous
religious groups would be stopped.
The fact that the ordinance is "nondiscriminatory" is
immaterial. The protection afforded by the First Amendment is not
so restricted. A license tax certainly does not acquire
constitutional validity because it classifies the privileges
protected by the First Amendment along with the wares and
merchandise of hucksters and peddlers, and treats them all alike.
Such equality in treatment does not save the ordinance. Freedom of
press, freedom of speech, freedom of religion are in a preferred
It is claimed, however, that the ultimate question in
determining the constitutionality of this license tax is whether
the state has given something for which it can ask a return. That
principle has wide applicability. State Tax Commission v.
Aldrich, 316 U. S. 174
cases cited. But it is quite irrelevant here. This tax is not a
charge for the enjoyment of a privilege or benefit bestowed by the
state. The privilege in question exists apart from state authority.
It is guaranteed the people by the Federal Constitution.
Considerable emphasis is placed on the kind of literature which
petitioners were distributing -- its provocative,
Page 319 U. S. 116
abusive, and ill-mannered character and the assault which it
makes on our established churches and the cherished faiths of many
of us. See Douglas v. Jennette, concurring opinion, post,
p. 319 U. S. 166
But those considerations are no justification for the license tax
which the ordinance imposes. Plainly, a community may not suppress,
or the state tax, the dissemination of views because they are
unpopular, annoying or distasteful. If that device were ever
sanctioned, there would have been forged a ready instrument for the
suppression of the faith which any minority cherishes but which
does not happen to be in favor. That would be a complete
repudiation of the philosophy of the Bill of Rights.
Jehovah's Witnesses are not "above the law." But the present
ordinance is not directed to the problems with which the police
power of the state is free to deal. It does not cover, and
petitioners are not charged with, breaches of the peace. They are
pursuing their solicitations peacefully and quietly. Petitioners,
moreover, are not charged with or prosecuted for the use of
language which is obscene, abusive, or which incites retaliation.
Cf. Chaplinsky v. New Hampshire, supra.
Nor do we have
here, as we did in Cox v. New Hampshire, supra,
Chaplinsky v. New Hampshire, supra,
state regulation of
the streets to protect and insure the safety, comfort, or
convenience of the public. Furthermore, the present ordinance is
not narrowly drawn to safeguard the people of the community in
their homes against the evils of solicitations. See Cantwell v.
Connecticut, supra, 310 U. S. 306
As we have said, it is not merely a registration ordinance calling
for an identification of the solicitors so as to give the
authorities some basis for investigating strangers coming into the
community. And the fee is not a nominal one, imposed as a
regulatory measure and calculated to defray the expense of
protecting those on the streets and at home against the abuses of
solicitors. See Cox v. New Hampshire,
Page 319 U. S. 117
pp. 312 U. S.
-577. Nor can the present ordinance survive if we
assume that it has been construed to apply only to solicitation
from house to house. [Footnote
] The ordinance is not narrowly drawn to prevent or control
abuses or evils arising from that activity. Rather, it sets aside
the residential areas as a prohibited zone, entry of which is
denied petitioners unless the tax is paid. That restraint and one
which is city-wide in scope (Jones v. Opelika
different only in degree. Each is an abridgment of freedom of press
and a restraint on the free exercise of religion. They stand or
The judgment in Jones v. Opelika
has this day been
vacated. Freed from that controlling precedent, we can restore to
their high, constitutional position the liberties of itinerant
evangelists who disseminate their religious beliefs and the tenets
of their faith through distribution of literature. The judgments
are reversed, and the causes are remanded to the Pennsylvania
Superior Court for proceedings not inconsistent with this
* Together with No. 481, Perisich v. Pennsylvania (City of
No. 482, Mowder v. Pennsylvania (City of
No. 483, Seders v. Pennsylvania (City of
No. 484, Lamborn v. Pennsylvania (City of
No. 485, Maltezos v. Pennsylvania (City of
No. 486, Anastasia Tzanes v. Pennsylvania
(City of Jeannette),
and No. 487, Ellaine Tzanes v.
Pennsylvania (City of Jeannette),
also on writs of certiorari,
318 U.S. 748, to the Superior Court of Pennsylvania.
Two religious books -- Salvation and Creation -- were sold.
Others were offered in addition to the Bible. The Watch Tower Bible
& Tract Society is alleged to be a nonprofit charitable
Petitioners paid three cents each for the pamphlets and, if they
devoted only their spare time to the work, twenty cents each for
the books. Those devoting full time to the work acquired the books
for five cents each. There was evidence that some of the
petitioners paid the difference between the sales price and the
cost of the books to their local congregations, which distributed
Purchased along with the record from the Watch Tower Bible Tract
The nature and extent of their activities throughout the world
during the years 1939 and 1940 are to be found in the 1941 Yearbook
of Jehovah's Witnesses, pp. 62-243.
Palmer, The Printing Press and the Gospel (1912).
White, The Colporteur Evangelist (1930); Home Evangelization
(1850); Edwards, The Romance of the Book (1932) c. V; 12 Biblical
Repository (1844) Art. VIII; 16 The Sunday Magazine (1887) pp.
43-47; 3 Meliora (1861) pp. 311-319; Felice, Protestants of France
(1853) pp. 53, 513; 3 D'Aubigne, History of The Reformation (1849)
pp. 103, 152, 436-437; Report of Colportage in Virginia, North
Carolina & South Carolina, American Tract Society (1855). An
early type of colporteur was depicted by John Greenleaf Whittier in
his legendary poem, The Vaudois Teacher. And see
History of the Wadenses.
The General Conference of Seventh-Day Adventists, who filed a
brief amicus curiae
on the reargument of Jones v.
has given us the following data concerning their
literature ministry: this denomination has 83 publishing houses
throughout the world, issuing publications in over 200 languages.
Some 9,256 separate publications were issued in 1941. By printed
and spoken word, the Gospel is carried into 412 countries in 824
languages. 1942 Yearbook, p. 287. During December, 1941, a total of
1,018 colporteurs operated in North America. They delivered during
that month $97,997.19 worth of gospel literature, and, for the
whole year of 1941, a total of $790,610.36 -- an average per person
of about $65 per month. Some of these were students and temporary
workers. Colporteurs of this denomination receive half of their
collections, from which they must pay their traveling and living
expenses. Colporteurs are specially trained, and their
qualifications equal those of preachers. In the field, each worker
is under the supervision of a field missionary secretary, to whom a
weekly report is made. After fifteen years of continuous service,
each colporteur is entitled to the same pension as retired
ministers. And see
Howell, The Great Advent Movement
(1935), pp. 72-75.
The constitutional difference between such a regulatory measure
and a tax on the exercise of a federal right has long been
recognized. While a state may not exact a license tax for the
privilege of carrying on interstate commerce (McGoldrick v.
Berwind-White Co., supra,
pp. 309 U. S.
-58), it may, for example, exact a fee to defray the
cost of purely local regulations in spite of the fact that those
regulations incidentally affect commerce.
"So long as they do not impede the free flow of commerce, and
are not made the subject of regulation by Congress. they are not
forbidden. Clyde Mallory Lines v. Alabama, 296 U. S.
, 296 U. S. 267
, and cases
cited. And see South Carolina Highway Dept. v. Barnwell
Bros., 303 U. S. 177
, 303 U. S.
That is the view of most state courts which have passed on the
question. McConkey v. Fredericksburg,
179 Va. 556, 19
S.E.2d 682; State v. Greaves,
112 Vt. 222, 22 A.2d 497;
People v. Banks,
168 Misc. 515, 6 N.Y.S.2d 41. Contra:
Cook v. Harrison,
180 Ark. 546, 21 S.W.2d 966.
The Pennsylvania Superior Court stated that the ordinance has
been "enforced" only to prevent petitioners from canvassing "from
door to door and house to house" without a license, and not to
prevent them from distributing their literature on the streets. 149
Pa.Super.Ct., p. 14, 27 A.2d 670.
The following dissenting opinions are applicable to Nos. 280,
314, and 966 (October Term, 1941), Jones v. Opelika, ante,
p. 319 U. S. 103
to Nos. 480-487, Murdock v. Pennsylvania, ante,
319 U. S. 105
opinion of MR. JUSTICE JACKSON, post,
319 U. S.
MR. JUSTICE REED, dissenting:
These cases present for solution the problem of the
constitutionality of certain municipal ordinances levying a tax for
the production of revenue on the sale of books
Page 319 U. S. 118
and pamphlets in the streets or from door to door. Decisions
sustaining the particular ordinances were entered in the three
cases first listed at the last term of this Court. In that opinion,
the ordinances were set out, and the facts and issues stated.
Jones v. Opelika, 316 U. S. 584
rehearing has been granted. The present judgments vacate the old,
and invalidate the ordinances. The eight cases of this term involve
canvassing from door to door only under similar ordinances, which
are in the form stated in the Court's opinion. By a per curiam
opinion of this day, the Court affirms its acceptance of the
arguments presented by the dissent of last term in Jones v.
The Court states its position anew in the
This dissent does not deal with an objection which theoretically
could be made in each case, to-wit, that the licenses are so
excessive in amount as to be prohibitory. This matter is not
considered because that defense is not relied upon in the
pleadings, the briefs or at the bar. No evidence is offered to show
the amount is oppressive. An unequal tax, levied on the activities
of distributors of informatory publications, would be a phase of
discrimination against the freedom of speech, press, or religion.
Nor do we deal with discrimination against the petitioners, as
individuals or as members of the group, calling themselves
Jehovah's Witnesses. There is no contention in any of these cases
that such discrimination is practiced in the application of the
ordinances. Obviously, an improper application by a city, which
resulted in the arrest of Witnesses and failure to enforce the
ordinance against other groups, such as the Adventists, would raise
entirely distinct issues.
A further and important disclaimer must be made in order to
focus attention sharply upon the constitutional issue. This dissent
does not express, directly or by inference, any conclusion as to
the constitutional rights of state or federal governments to place
a privilege tax upon the
Page 319 U. S. 119
soliciting of a free-will contribution for religious purposes.
Petitioners suggest that their books and pamphlets are not sold,
but are given either without price or in appreciation of the
recipient's gift for the furtherance of the work of the Witnesses.
The pittance sought, as well as the practice of leaving books with
poor people without cost, gives strength to this argument. In our
judgment, however, the plan of national distribution by the Watch
Tower Bible & Tract Society, with its wholesale prices of five
or twenty cents per copy for books, delivered to the public by the
Witnesses at twenty-five cents per copy, justifies the
characterization of the transaction as a sale by all the state
courts. The evidence is conclusive that the Witnesses normally
approach a prospect with an offer of a book for twenty-five cents.
Sometimes, apparently rarely, a book is left with a prospect
without payment. The quid pro quo
is demanded. If the
profit was greater, twenty cents or even one dollar, no difference
in principle would emerge. The Witness sells books to raise money
for propagandizing his faith, just as other religious groups might
sponsor bazaars, or peddle tickets to church suppers, or sell
Bibles or prayer books for the same object. However high the
purpose or noble the aims of the Witness, the transaction has been
found by the state courts to be a sale under their ordinances and,
though our doubt was greater than it is, the state's conclusion
would influence us to follow its determination. [Footnote 2/1
Page 319 U. S. 120
In the opinion in Jones v. Opelika, 316 U.
, on the former hearing, attention was called to
the differentiation between these cases of taxation and those of
forbidden censorship, prohibition or discrimination. There is no
occasion to repeat what has been written so recently as to the
constitutional right to tax the money-raising activities of
religious or didactic groups. There are, however, other reasons,
not fully developed in that opinion, that add to our conviction
that the Constitution does not prohibit these general occupational
The real contention of the Witnesses is that there can be no
taxation of the occupation of selling books and pamphlets, because
to do so would be contrary to the due process clause of the
Fourteenth Amendment, which now is held to have drawn the contents
of the First Amendment into the category of individual rights
Page 319 U. S. 121
from state deprivation. Gitlow v. New York,
268 U. S. 652
268 U. S. 666
Near v. Minnesota, 283 U. S. 697
283 U. S. 707
Cantwell v. Connecticut, 310 U. S. 296
310 U. S. 303
Since the publications teach a religion which conforms to our
standards of legality, it is urged that these ordinances prohibit
the free exercise of religion and abridge the freedom of speech and
of the press.
The First Amendment reads as follows:
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress
It was one of twelve proposed on September 25, 1789, to the
States by the First Congress after the adoption of the
Constitution. Ten were ratified. They were intended to be, and have
become, our Bill of Rights. By their terms, our people have a
guarantee that, so long as law as we know it shall prevail, they
shall live protected from the tyranny of the despot or the mob.
None of the provisions of our Constitution is more venerated by the
people or respected by legislatures and the courts than those which
proclaim for our country the freedom of religion and expression.
While the interpreters of the Constitution find the purpose was to
allow the widest practical scope for the exercise of religion and
the dissemination of information, no jurist has ever conceived that
the prohibition of interference is absolute. [Footnote 2/2
] Is subjection to nondiscriminatory,
nonexcessive taxation in the distribution of religious literature a
prohibition of the exercise of religion or an abridgment of the
freedom of the press?
Page 319 U. S. 122
Nothing has been brought to our attention which would lead to
the conclusion that the contemporary advocate of the adoption of a
Bill of Rights intended such an exemption. The words of the
Amendment do not support such a construction. "Free" cannot be held
to be without cost, but, rather, its meaning must accord with the
freedom guaranteed. "Free" means a privilege to print or pray
without permission and without accounting to authority for one's
actions. In the Constitutional Convention, the proposal for a Bill
of Rights of any kind received scant attention. [Footnote 2/3
] In the course of the ratification of
the Constitution, however, the absence of a Bill of Rights was used
vigorously by the opponents of the new government. A number of the
states suggested amendments. Where these suggestions have any
bearing at all upon religion or free speech, they indicate nothing
as to any feeling concerning taxation either of religious bodies or
their evangelism. [Footnote 2/4
This was not because freedom of
Page 319 U. S. 123
religion or free speech was not understood. It was because the
subjects were looked upon from standpoints entirely distinct from
taxation. [Footnote 2/5
The available evidence of Congressional action shows clearly
that the draftsmen of the amendments had in mind the practice of
religion and the right to be heard, rather than any abridgment or
interference with either by taxation
Page 319 U. S. 124
in any form. [Footnote 2/6
amendments were proposed by
Page 319 U. S. 125
Mr. Madison. He was careful to explain to the Congress the
meaning of the amendment on religion. The draft was commented upon
by Mr. Madison when it read: "no religion shall be established by
law, nor shall the equal rights of conscience be infringed." 1
Annals of Congress 729. He said that he apprehended the meaning of
the words on religion to be that Congress should not establish a
religion and enforce the legal observation of it by law, nor compel
men to worship God in any manner contrary to their conscience.
730. No such specific interpretation of the amendment
on freedom of expression has been found in the debates. The
clearest is probably from Mr. Benson, [Footnote 2/7
] who said that
"The committee who framed this report proceeded on the principle
that these rights belonged to the people; they conceived them to be
inherent, and all that they meant to provide against was their
being infringed by the Government."
There have been suggestions that the English taxes on
newspapers, springing from the tax act of 10 Anne, c. 19, § CI,
] influenced the
adoption of the First Amendment. [Footnote 2/9
Page 319 U. S. 126
These taxes were obnoxious, but an examination of the sources of
the suggestion is convincing that there is nothing to support it
except the fact that the tax on newspapers was in existence in
England, and was disliked. [Footnote
] The simple answer is that, if there had been any purpose
of Congress to prohibit any kind of taxes on the press, its
knowledge of the abominated English taxes would have led it to ban
It is only in recent years that the freedoms of the First
Amendment have been recognized as among the fundamental personal
rights protected by the Fourteenth Amendment from impairment by the
states. [Footnote 2/11
then, these liberties were not deemed to be guarded from state
action by the Federal Constitution. [Footnote 2/12
] The states placed
Page 319 U. S. 127
restraints upon themselves in their own constitutions in order
to protect their people in the exercise of the freedoms of speech
and of religion. [Footnote 2/13
Pennsylvania may be taken as a fair example. Its constitution
"All men have a natural and indefeasible right to worship
Almighty God according to the dictates of their own consciences; no
man can of right be compelled to attend, erect or support any place
of worship, or to maintain any ministry against his consent; no
human authority can, in any case whatever, control or interfere
with the rights of conscience, and no preference shall ever be
given by law to any religious establishments or modes of
Purdon's Penna.Stat., Const., Art. I, § 3.
"No person who acknowledges the being of a God and a future
state of rewards and punishments shall, on account of his religious
sentiments, be disqualified to hold any office or place of trust or
profit under this Commonwealth."
Art. I, § 4.
"The printing press shall be free to every person who may
undertake to examine the proceedings of the Legislature or any
branch of government, and no law shall ever be made to restrain the
right thereof. The free communication of thoughts and opinions is
one of the invaluable rights of man, and every citizen may freely
speak, write and print on any subject, being responsible for the
abuse of that liberty. . . ."
Art. I, 7. It will be observed that there is no
suggestion of freedom from taxation, and this statement is equally
true of the other state constitutional provisions. It may be
concluded that neither in the state or the federal constitutions
was general taxation of church or press interdicted.
Is there anything in the decisions of this Court which indicates
that church or press is free from the financial
Page 319 U. S. 128
burdens of government? We find nothing. Religious societies
depend for their exemptions from taxation upon state constitutions
or general statutes, not upon the Federal Constitution. Gibbons
v. District of Columbia, 116 U. S. 404
This Court has held that the chief purpose of the free press
guarantee was to prevent previous restraints upon publication.
Near v. Minnesota, 283 U. S. 697
283 U. S. 713
] In Grosjean
v. American Press Co., 297 U. S. 233
297 U. S. 250
it was said that the predominant purpose was to preserve "an
untrammeled press as a vital source of public information." In that
case, a gross receipts tax on advertisements in papers with a
circulation of more than twenty thousand copies per week was held
invalid because "a deliberate and calculated device in the guise of
a tax to limit the circulation. . . ." There was this further
"It is not intended by anything we have said to suggest that the
owners of newspapers are immune from any of the ordinary forms of
taxation for support of the government. But this is not an ordinary
form of tax, but one single in kind, with a long history of hostile
misuse against the freedom of the press."
Id. 297 U. S.
It may be said, however, that ours is a too narrow, technical
and legalistic approach to the problem of state taxation of the
activities of church and press; that we should look not to the
expressed or historical meaning of the First Amendment, but to the
broad principles of free speech and free exercise of religion which
pervade our national way of life. It may be that the Fourteenth
Amendment guarantees these principles, rather than the more
definite concept expressed in the First Amendment. This would mean
that, as a Court, we should determine what sort of liberty it is
that the due process clause of
Page 319 U. S. 129
the Fourteenth Amendment guarantees against state restrictions
on speech and church.
But whether we give content to the literal words of the First
Amendment or to principles of the liberty of the press and the
church, we conclude that cities or states may levy reasonable,
nondiscriminatory taxes on such activities as occurred in these
cases. Whatever exemptions exist from taxation arise from the
prevailing law of the various states. The constitutions of Alabama
and Pennsylvania, with substantial similarity to the exemption
provisions of other constitutions, forbid the taxation of lots and
buildings used exclusively for religious worship. Alabama (1901), §
91; Pennsylvania (1874), Art. IX, § 1. These are the only
exemptions of the press or church from taxation. We find nothing
more applicable to our problem in the other constitutions. Surely
this unanimity of specific state action on exemptions of religious
bodies from taxes would not have occurred throughout our history,
if it had been conceived that the genius of our institutions, as
expressed in the First Amendment, was incompatible with the
taxation of church or press.
Nor do we understand that the Court now maintains that the
Federal Constitution frees press or religion of any tax except such
occupational taxes as those here levied. Income taxes, ad
taxes, even occupational taxes, are presumably valid,
save only a license tax on sales of religious books. Can it be that
the Constitution permits a tax on the printing presses and the
gross income of a metropolitan newspaper, [Footnote 2/15
] but denies the right to lay an
occupational tax on the distributors of the same papers? Does the
exemption apply to booksellers or distributors of magazines, or
only to religious publications? And, if the latter, to what
distributors? Or to what books? Or is this Court saying that a
Page 319 U. S. 130
practice of book distribution is free from taxation because a
state cannot prohibit the "free exercise thereof," and a newspaper
is subject to the same tax even though the same Constitutional
Amendment says the state cannot abridge the freedom of the press?
It has never been thought before that freedom from taxation was a
perquisite attaching to the privileges of the First Amendment. The
National Government grants exemptions to ministers and churches
because it wishes to do so, not because the Constitution compels.
Internal Revenue Code, §§ 22(b)(6), 101(6), 812(d), 1004(a)(2)(B).
Where camp meetings or revivals charge admissions, a federal tax
would apply if Congress had not granted freedom from the exaction.
It is urged that such a tax as this may be used readily to
restrict the dissemination of ideas. This must be conceded, but the
possibility of misuse does not make a tax unconstitutional. No
abuse is claimed here. The ordinances in some of these cases are
the general occupation license type, covering many businesses. In
prosecutions, the ordinance involved lays
the usual tax on canvassing or soliciting sales of goods, wares and
merchandise. It was passed in 1898. Every power of taxation or
regulation is capable of abuse. Each one, to some extent, prohibits
the free exercise of religion and abridges the freedom of the
press, but that is hardly a reason for denying the power. If the
tax is used oppressively, the law will protect the victims of such
This decision forces a tax subsidy notwithstanding our accepted
belief in the separation of church and state. Instead of all
bearing equally the burdens of government, this Court now fastens
upon the communities the entire cost of policing the sales of
religious literature. That the burden may be heavy is shown by the
record in the Jeannette
cases. There are only eight
prosecutions, but one hundred and four Witnesses solicited in
Jeannette the day
Page 319 U. S. 131
of the arrests. They had been requested by the authorities to
await the outcome of a test case before continuing their
canvassing. The distributors of religious literature, possibly of
all informatory publications, become today privileged to carry on
their occupations without contributing their share to the support
of the government which provides the opportunity for the exercise
of their liberties.
Nor do we think it can be said, properly, that these sales of
religious books are religious exercises. The opinion of the Court
in the Jeannette
cases emphasizes for the first time the
argument that the sale of books and pamphlets is, in itself, a
religious practice. The Court says the Witnesses
"spread their interpretations of the Bible and their religious
beliefs largely through the hand distribution of literature by full
or part-time workers."
"The hand distribution of religious tracts is an age-old form of
missionary evangelism -- as old as the history of printing
"It is more than preaching; it is more than distribution of
religious literature. It is a combination of both. Its purpose is
as evangelical as the revival meeting. This form of religious
activity occupies the same high estate under the First Amendment as
do worship in the churches and preaching from the pulpits."
"Those who can tax the exercise of this religious practice can
make its exercise so costly as to deprive it of the resources
necessary for its maintenance."
"The judgment in Jones v. Opelika
has this day been
vacated. Freed from that controlling precedent, we can restore to
their high constitutional position the liberties of itinerant
evangelists who disseminate their religious beliefs and the tenets
of their faith through distribution of literature."
The record shows that books entitled "Creation" and "Salvation,"
as well as Bibles, were offered for sale. We shall assume the first
two publications, also, are religious books. Certainly there can be
no dissent from the statement that
Page 319 U. S. 132
selling religious books is an age-old practice, or that it is
evangelism in the sense that the distributors hope the readers will
be spiritually benefited. That does not carry us to the conviction,
however, that, when distribution of religious books is made at a
price, the itinerant colporteur is performing a religious rite, is
worshipping his Creator in his way. Many sects practice healing the
sick as an evidence of their religious faith, or maintain
orphanages or homes for the aged or teach the young. These are, of
course, in a sense, religious practices, but hardly such examples
of religious rites as are encompassed by the prohibition against
the free exercise of religion.
And even if the distribution of religious books was a religious
practice protected from regulation by the First Amendment,
certainly the affixation of a price for the articles would destroy
the sacred character of the transaction. The evangelist becomes
also a book agent.
The rites which are protected by the First Amendment are, in
essence, spiritual -- prayer, mass, sermons, sacrament -- not sales
of religious goods. The card furnished each Witness to identify him
as an ordained minister does not go so far as to say the sale is a
rite. It states only that the Witnesses worship by exhibiting to
"the message of said gospel in printed form, such as the Bible,
books, booklets and magazines, and thus afford the people the
opportunity of learning of God's gracious provision for them."
On the back of the card appears: "You may contribute twenty-five
cents to the Lord's work and receive a copy of this beautiful
book." The sale of these religious books has, we think, relation to
their religious exercises, similar to the "information march," said
by the Witnesses to be one of their "ways of worship," and by this
Court to be subject to regulation by license in Cox v. New
Hampshire, 312 U. S. 569
312 U. S. 572
312 U. S. 573
312 U. S.
The attempted analogy in the dissenting opinion in Jones v.
Opelika, 316 U. S. 584
316 U. S. 609
316 U. S. 611
which now becomes
Page 319 U. S. 133
the decision of this Court, between the forbidden burden of a
state tax for the privilege of engaging in interstate commerce and
a state tax on the privilege of engaging in the distribution of
religious literature is wholly irrelevant. A state tax on the
privilege of engaging in interstate commerce is held invalid
because the regulation of commerce between the states has been
delegated to the Federal Government. This grant includes the
necessary means to carry the grant into effect, and forbids state
burdens without Congressional consent. [Footnote 2/16
] It is not the power to tax interstate
commerce which is interdicted, but the exercise of that power by an
unauthorized sovereign, the individual state. Although the
fostering of commerce was one of the chief purposes for organizing
the present Government, that commerce may be burdened with a tax by
the United States. Internal Revenue Code, § 3469. Commerce must pay
its way. It is not exempt from any type of taxation if imposed by
an authorized authority. The Court now holds that the First
Amendment wholly exempts the church and press from a privilege tax,
presumably by the national, as well as the state, government.
The limitations of the Constitution are not maxims of social
wisdom, but definite controls on the legislative process. We are
dealing with power, not its abuse. This late withdrawal of the
power of taxation over the distribution activities of those covered
by the First Amendment fixes what seems to us an unfortunate
principle of tax exemption, capable of indefinite extension. We had
thought that such an exemption required a clear and certain grant.
This we do not find in the language of the First and Fourteenth
Amendments. We are therefore of the opinion the judgments below
should be affirmed.
Page 319 U. S. 134
MR. JUSTICE ROBERTS, MR. JUSTICE FRANKFURTER, and MR. JUSTICE
JACKSON join in this dissent. MR. JUSTICE JACKSON has stated
additional reasons for dissent in his concurrence in Douglas v.
p. 319 U. S.
The Court in the Murdock
case analyzes the contention
that the sales technique partakes of commercialism and says:
"It is a distortion of the facts of record to describe their
activities as the occupation of selling books and pamphlets. And
the Pennsylvania court did not rest the judgments of conviction on
that basis, though it did find that petitioners 'sold' the
The state court, in its opinion, 149 Pa.Super.Ct. 175, 27 A.2d
666, 667, stated the applicable ordinance as forbidding sales of
merchandise by canvassing without a license, and said that the
evidence established its violation by selling
"two books entitled 'Salvation' and 'Creation,' respectively,
and certain leaflets or pamphlets, all published by the Watch Tower
Bible and Tract Society of Brooklyn, N.Y., for which the society
fixed twenty-five cents each as the price for the books and five
cents each as the price of the leaflets. Defendants paid twenty
cents each for the books, unless they devoted their whole time to
the work, in which case they paid five cents each for the books
they sold at twenty-five cents. Some of the witnesses spoke of
'contributions,' but the evidence justified a finding that they
sold the books and pamphlets."
The state court then repeated with approval from one of its
former decisions the statements:
"The constitutional right of freedom of worship does not
guarantee anybody the right to sell anything from house to house or
in buildings, belonging to, or in the occupancy of, other
". . . we do not accede to his contention on the oral argument
that the federal decisions relied upon by him go so far as to rule
that the constitutional guaranty of a free press forbids dealers in
books and printed matter being subjected to our State mercantile
license tax or the federal income tax as to such sales, along with
dealers in other merchandise."
Pittsburgh v. Ruffner,
134 Pa.Super.Ct.192, 199, 202, 4
A.2d 224. And after further discussion of selling, the conviction
of the Witnesses was affirmed. It can hardly be said, we think,
that the state court did not treat the Jeannette canvassers as
engaged in a commercial activity or occupation at the time of their
Whitney v. California, 274 U.
, 274 U. S. 371
and the concurring opinion, 274 U. S. 373
Reynolds v. United States, 98 U. S.
, 98 U. S. 166
Cantwell v. Connecticut, 310 U. S. 296
310 U. S. 303
Cox v. New Hampshire, 312 U. S. 569
312 U. S. 574
312 U. S.
Journal of the Convention, 369; II Farrand, The Records of the
Federal Convention, 611, 616-8, 620. Cf.
Stone, Pennsylvania and the Federal Constitution, 251-253.
I Elliot's Debates on the Federal Constitution (1876) 319 et
In ratifying the Constitution, the following declarations
were made: New Hampshire,
p. 326, "XI. Congress shall make
no laws touching religion, or to infringe the rights of
p. 327, ". . . no right, of any
denomination, can be cancelled, abridged, restrained, or modified,
by the Congress, by the Senate or House of Representatives, acting
in any capacity, by the President, or any department or officer of
the United States, except in those instances in which power is
given by the Constitution for those purposes, and that, among other
essential rights, the liberty of conscience, and of the press,
cannot be cancelled, abridged, restrained, or modified, by any
authority of the United States." New York,
p. 328, "That
the freedom of the press ought not to be violated or restrained."
After the submission of the amendments, Rhode Island
ratified and declared, pp. 334, 335,
"IV. That religion, or the duty which we owe to our Creator, and
the manner of discharging it, can be directed only by reason and
conviction, and not by force and violence, and therefore all men
have a natural, equal, and unalienable right to the exercise of
religion according to the dictates of conscience, and that no
particular religious sect or society ought to be favored or
established, by law, in preference to others. . . . XVI. That the
people have a right to freedom of speech, and of writing and
publishing their sentiments. That freedom of the press is one of
the greatest bulwark of liberty, and ought not to be violated."
The Articles of Confederation had references to religion and
"Article III. The said States hereby severally enter into a firm
league of friendship with each other, for their common defence, the
security of their liberties, and their mutual and general welfare,
binding themselves to assist each other, against all force offered
to, or attacks made upon them, or any of them, on account of
religion, sovereignty, trade, or any other pretence whatever."
"* * * *"
"Article V. . . . Freedom of speech and debate in Congress shall
not be impeached or questioned in any court, or place out of
Congress, and the members of Congress shall be protected in their
persons from arrests and imprisonments, during the time of their
going to and from, and attendance on Congress, except for treason,
felony, or breach of the peace."
The Statute of Religious Freedom was passed in Virginia in 1785.
The substance was in paragraph II:
"Be it enacted by the General Assembly,
That no man
shall be compelled to frequent or support any religious worship,
place, or ministry whatsoever, nor shall be enforced, restrained,
molested, or burthened in his body or goods, nor shall otherwise
suffer on account of his religious opinions or belief; but that all
men shall be free to profess, and by argument to maintain, their
opinion in matters of religion, and that the same shall in no wise
diminish, enlarge, or affect their civil capacities."
12 Hening Statutes of Va. 86.
A number of the states' constitutions at the time of the
adoption of the Bill of Rights contained provisions as to a free
Georgia, Constitution of 1777, Art. LXI. "Freedom of the press
and trial by jury to remain inviolate forever." I Poore, Federal
and State Constitutions 383.
Maryland, Constitution of 1776, Declaration of Rights, Art.
XXXVIII. "That the liberty of the press ought to be inviolably
Massachusetts, Constitution of 1780, Part First, Art. XVI. "The
liberty of the press is essential to the security of freedom in a
State; it ought not, therefore, to be restrained in this
New Hampshire, Constitution of 1784, Part 1, Art. XXII. "The
Liberty of the Press is essential to the security of freedom in a
state; it ought, therefore, to be inviolably preserved." II Poore,
North Carolina, Constitution of 1776, Declaration of Rights,
Art. XV. "That the freedom of the press is one of the great
bulwarks of liberty, and therefore ought never to be restrained."
Pennsylvania, Constitution of 1776, Declaration of Rights, Art.
XII. "That the people have a right to freedom of speech, and of
writing, and publishing their sentiments; therefore the freedom of
the press ought not to be restrained." Id.,
Virginia, Bill of Rights, 1776, § 12. "That the freedom of the
press is one of the great bulwarks of liberty, and can never be
restrained but by despotic governments." Id.,
For example, the first amendment as it passed the House of
Representatives on Monday, August 24, 1789, read as follows:
"Congress shall make no law establishing religion or prohibiting
the free exercise thereof, nor shall the rights of Conscience be
"The Freedom of Speech, and of the Press, and the right of the
People peaceably to assemble, and consult for their common good,
and to apply to the Government for a redress of grievances, shall
not be infringed."
Records of the United States Senate, 1A-C2 (U.S. Nat.
Apparently when the proposed amendments were passed by the
Senate on September 9, 1789, what is now the first amendment read
"Congress shall make no law establishing articles of faith, or a
mode of worship, or prohibiting the free exercise of religion, or
abridging the freedom of speech, or of the press, or the right of
the people peaceably to assemble, and to petition to the government
for a redress of grievances."
Egbert Benson was the first attorney general of New York, a
member of the Continental Congress and of the New York Convention
for ratification of the Constitution. Biographical Directory of the
American Congress, 694.
"And be it enacted by the Authority aforesaid, That there shall
be raised, levied, collected and paid, to and for the Use of her
Majesty, her Heirs and Successors, for and upon all Books and
Papers commonly called Pamphlets, and for and upon all News Papers,
or Papers containing publick News, Intelligence or Occurrences,
which shall, at any Time or Times within or during the Term last
mentioned, be printed in Great Britain,
to be dispersed
and made publick, and for and upon such Advertisements as are
herein after mentioned, the respective Duties following; that is to
"For every such Pamphlet or Paper contained in Half a Sheet, or
any lesser Piece of Paper, so printed, the Sum of one half-penny
"For every such Pamphlet or Paper (being larger than Half a
Sheet, and not exceeding one whole Sheet) so printed, a Duty after
the Rate of one Penny Sterling for every printed Copy thereof."
"And for every such Pamphlet or Paper, being larger than one
whole Sheet, and not exceeding six Sheets in Octavo, or in a lesser
Page, or not exceeding twelve Sheets in Quarto, or twenty Sheets in
Folio, so printed, a Duty after the Rate of two Shillings Sterling
for every Sheet of any kind of Paper which shall be contained in
one printed Copy thereof."
"And for every Advertisement to be contained in the London
Gazette, or any other printed Paper, such Paper being dispersed or
made publick weekly, or oftner, the Sum of twelve Pence
Stevens, Sources of the Constitution, 221, note 2; Stewart,
Lennox and the Taxes on Knowledge, 15 Scottish Hist,Rev. 322, 326;
McMaster & Stone, Pennsylvania and the Federal Constitution,
181; Grosjean v. American Press Co., 297 U.
, 297 U. S.
Collet, Taxes on Knowledge; Chafee, Free Speech in
the United States, 17, n. 33.
Gitlow v. New York
(1925), 268 U.
, 268 U. S. 666
Near v. Minnesota, 283 U. S. 697
283 U. S. 707
Cantwell v. Connecticut, 310 U. S. 296
310 U. S.
Permoli v. First
3 How. 589, 44 U. S. 609
7 Pet. 243, 32 U. S.
For the state provisions on expression and religion,
2 Cooley, Constitutional Limitations (8th Ed.) 876,
965; III Constitutions of the States, New York State Const. Conv.
To this, Professor Chafee adds the right to criticize the
Government. Free Speech in the United States (1941) 18 et
2 Cooley's Constitutional Limitations (8th
Giragi v. Moore,
301 U.S. 670; 48 Ariz. 33; 49 Ariz.
12 Wheat. 419, 25 U. S. 448
Kentucky Whip & Collar Co. v. Illinois Central R. Co.,
299 U. S. 334
299 U. S. 350
Gwin, White & Prince, Inc. v. Henneford, 305 U.
, 305 U. S. 438
Puget Sound Co. v. Tax Commission, 302 U. S.
MR. JUSTICE FRANKFURTER, dissenting.
While I wholly agree with the views expressed by MR. JUSTICE
REED, the controversy is of such a nature as to lead me to add a
A tax can be a means for raising revenue, or a device for
regulating conduct, or both. Challenge to the constitutional
validity of a tax measure requires that it be analyzed and judged
in all its aspects. We must therefore distinguish between the
questions that are before us in these cases and those that are not.
It is altogether incorrect to say that the question here is whether
a state can limit the free exercise of religion by imposing
burdensome taxes. As the opinion of my Brother REED demonstrates,
we have not here the question whether the taxes imposed in these
cases are, in practical operation, an unjustifiable curtailment
upon the petitioners' undoubted right to communicate their views to
others. No claim is made that the effect of these taxes, either
separately or cumulatively, has been, or is likely to be, to
restrict the petitioners' religious propaganda activities in any
degree. Counsel expressly disclaim any such contention. They insist
on absolute immunity from any kind of monetary exaction for their
occupation. Their claim is that no tax, no matter how trifling, can
constitutionally be laid upon the activity of distributing
religious literature, regardless of the actual effect of the tax
upon such activity. That is the only ground upon which these
ordinances have been attacked; that is the only question raised in
or decided by the state courts, and that is the only question
presented to us. No complaint is made against the size of the
taxes. If an appropriate claim, indicating that the taxes were
oppressive in their effect upon the petitioners'
Page 319 U. S. 135
activities, had been made, the issues here would be very
different. No such claim has been made, and it would be gratuitous
to consider its merits.
Nor have we occasion to consider whether these measures are
invalid on the ground that they unjustly or unreasonably
discriminate against the petitioners. Counsel do not claim, as
indeed they could not, that these ordinances were intended to, or
have been applied to, discriminate against religious groups
generally or Jehovah's Witnesses particularly. No claim is made
that the effect of the taxes is to hinder or restrict the
activities of Jehovah's Witnesses while other religious groups,
perhaps older or more prosperous, can carry on theirs. This
question, too, is not before us.
It cannot be said that the petitioners are constitutionally
exempt from taxation merely because they may be engaged in
religious activities or because such activities may constitute an
exercise of a constitutional right. It will hardly be contended,
for example, that a tax upon the income of a clergyman would
violate the Bill of Rights, even though the tax is ultimately borne
by the members of his church. A clergyman, no less than a judge, is
a citizen. And not only in time of war would neither willingly
enjoy immunity from the obligations of citizenship. It is only fair
that he also who preaches the word of God should share in the costs
of the benefits provided by government to him as well as to the
other members of the community. And so no one would suggest that a
clergyman who uses an automobile or the telephone in connection
with his work thereby gains a constitutional exemption from taxes
levied upon the use of automobiles or upon telephone calls. Equally
alien is it to our constitutional system to suggest that the
Constitution of the United States exempts church-held lands from
state taxation. Plainly, a tax measure is not invalid under the
federal Constitution merely because it falls upon persons engaged
in activities of a religious nature.
Page 319 U. S. 136
Nor can a tax be invalidated merely because it falls upon
activities which constitute an exercise of a constitutional right.
The First Amendment, of course, protects the right to publish a
newspaper or a magazine or a book. But the crucial question is --
how much protection does the Amendment give, and against what is
the right protected? It is certainly true that the protection
afforded the freedom of the press by the First Amendment does not
include exemption from all taxation. A tax upon newspaper
publishing is not invalid simply because it falls upon the exercise
of a constitutional right. Such a tax might be invalid if it
invidiously singled out newspaper publishing for bearing the
burdens of taxation or imposed upon them in such ways as to
encroach on the essential scope of a free press. If the Court could
justifiably hold that the tax measures in these cases were
vulnerable on that ground, I would unreservedly agree. But the
Court has not done so, and indeed could not.
The vice of the ordinances before us, the Court holds, is that
they impose a special kind of tax, a "flat license tax, the payment
of which is a condition of the exercise of these constitutional
privileges [to engage in religious activities]." But the fact that
an occupation tax is a "flat" tax certainly is not enough to
condemn it. A legislature undoubtedly can tax all those who engage
in an activity upon an equal basis. The Constitution certainly does
not require that differentiations must be made among taxpayers upon
the basis of the size of their incomes or the scope of their
activities. Occupation taxes normally are flat taxes, and the Court
surely does not mean to hold that a tax is bad merely because all
taxpayers pursuing the very same activities, and thereby demanding
the same governmental services, are treated alike. Nor, as I have
indicated, can a tax be invalidated because the exercise of a
constitutional privilege is conditioned upon its payment. It
depends upon the nature of the condition that
Page 319 U. S. 137
is imposed, its justification, and the extent to which it
hinders or restricts the exercise of the privilege.
As I read the Court's opinion, it does not hold that the taxes
in the cases before us, in fact, do hinder or restrict the
petitioners in exercising their constitutional rights. It holds
that "The power to tax the exercise of a privilege is the power to
control or suppress its enjoyment." This assumes that, because the
taxing power exerted in Magnano Co. v. Hamilton,
292 U. S. 40
well known oleomargarine tax case, may have had the effect of
"controlling" or "suppressing" the enjoyment of a privilege, and
still was sustained by this Court, and because all exertions of the
taxing power may have that effect, if perchance a particular
exercise of the taxing power does have that effect, it would have
to be sustained under our ruling in the Magnano
The power to tax, like all powers of government, legislative,
executive and judicial alike, can be abused or perverted. The power
to tax is the power to destroy only in the sense that those who
have power can misuse it. Mr. Justice Holmes disposed of this
smooth phrase as a constitutional basis for invalidating taxes when
he wrote "The power to tax is not the power to destroy while this
Court sits." Panhandle Oil Co. v. Knox, 277 U.
, 277 U. S. 223
The fact that a power can be perverted does not mean that every
exercise of the power is a perversion of the power. Thus, if a tax
indirectly suppresses or controls the enjoyment of a constitutional
privilege which a legislature cannot directly suppress or control,
of course, it is bad. But it is irrelevant that a tax can suppress
or control if it does not. The Court holds that "[t]hose who can
tax the exercise of this religious practice can make its exercise
so costly as to deprive it of resources necessary for its
maintenance." But this is not the same as saying that
"[t]hose who do tax the exercise of this religious practice have
made its exercise so costly as to deprive it of the resources
necessary for its maintenance. "
Page 319 U. S. 138
The Court could not plausibly make such an assertion, because
the petitioners themselves disavow any claim that the taxes imposed
in these cases impair their ability to exercise their
constitutional rights. We cannot invalidate the tax measures before
us simply because there may be others, not now before us, which are
oppressive in their effect. The Court's opinion does not deny that
the ordinances involved in these cases have in no way disabled the
petitioners to engage in their religious activities. It holds only
"Those who can tax the privilege of engaging in this form of
missionary evangelism can close its doors to all those who do not
have a full purse."
I quite agree with this statement as an abstract proposition.
Those who possess the power to tax might wield it in tyrannical
fashion. It does not follow, however, that every exercise of the
power is an act of tyranny, or that government should be impotent
because it might become tyrannical. The question before us now is
whether these ordinances have deprived the petitioners of their
constitutional rights, not whether some other ordinances not now
before us might be enacted which might deprive them of such rights.
To deny constitutional power to secular authority merely because of
the possibility of its abuse is as valid as to deny the basis of
spiritual authority because those in whom it is temporarily vested
may misuse it.
The petitioners say they are immune as much from a flat
occupation tax as from a licensing fee purporting explicitly to
cover only the costs of regulation. They rightly reject any
distinction between this occupation tax and such a licensing fee.
There is no constitutional difference between a so-called
regulatory fee and an imposition for purposes of revenue. The state
exacts revenue to maintain the costs of government as an entirety.
For certain purposes and at certain times, a legislature may
earmark exactions to cover the costs of specific governmental
services. In most instances, the revenues of the state are tapped
from multitudinous sources for a
Page 319 U. S. 139
common fund out of which the costs of government are paid. As a
matter of public finance, it is often impossible to determine with
nicety the governmental expenditures attributable to particular
activities. But, in any event, whether government collects revenue
for the costs of its services through an earmarked fund, or whether
an approximation of the cost of regulation goes into the general
revenues of government out of which all expenses are borne, is a
matter of legislative discretion, and not of constitutional
distinction. Just so long as an occupation tax is not used as a
cover for discrimination against a constitutionally protected right
or as an unjustifiable burden upon it, from the point of view of
the Constitution of the United States it can make no difference
whether such a money exaction for governmental benefits is labeled
a regulatory fee or a revenue measure.
It is strenuously urged that the Constitution denies a city the
right to control the expression of men's minds and the right of men
to win others to their views. But the Court is not divided on this
proposition. No one disputes it. All members of the Court are
equally familiar with the history that led to the adoption of the
Bill of Rights, and are equally zealous to enforce the
constitutional protection of the free play of the human spirit.
Escape from the real issue before us cannot be found in such
generalities. The real issue here is not whether a city may charge
for the dissemination of ideas, but whether the states have power
to require those who need additional facilities to help bear the
cost of furnishing such facilities. Street hawkers make demands
upon municipalities that involve the expenditure of dollars and
cents, whether they hawk printed matter or other things. As the
facts in these cases show, the cost of maintaining the peace, the
additional demands upon governmental facilities for assuring
security, involve outlays which have to be met. To say that the
Constitution forbids the states to obtain the necessary revenue
from the whole of a class that enjoys these benefits
Page 319 U. S. 140
and facilities when, in fact, no discrimination is suggested as
between purveyors of printed matter and purveyor of other things,
and the exaction is not claimed to be actually burdensome, is to
say that the Constitution requires not that the dissemination of
ideas in the interest of religion shall be free, but that it shall
be subsidized by the state. Such a claim offends the most important
of all aspects of religious freedom in this country, namely, that
of the separation of church and state.
The ultimate question in determining the constitutionality of a
tax measure is -- has the state given something for which it can
ask a return? There can be no doubt that these petitioners, like
all who use the streets, have received the benefits of government.
Peace is maintained, traffic is regulated, health is safeguarded --
these are only some of the many incidents of municipal
administration. To secure them costs money, and a state's source of
money is its taxing power. There is nothing in the Constitution
which exempts persons engaged in religious activities from sharing
equally in the costs of benefits to all, including themselves,
provided by government.
I cannot say, therefore, that, in these cases, the community has
demanded a return for that which it did not give. Nor am I called
upon to say that the state has demanded unjustifiably more than the
value of what it gave, nor that its demand, in fact, cramps
activities pursued to promote religious beliefs. No such claim was
made at the bar, and there is no evidence in the records to
substantiate any such claim if it had been made. Under these
circumstances, therefore, I am of opinion that the ordinances in
these cases must stand.
MR. JUSTICE JACKSON joins in this dissent.