1. Members of Jehovah's Witnesses, in their own behalf and in
behalf of all other Jehovah's Witnesses in the State and in
adjoining States, brought suit in a federal District Court to
restrain a city and its mayor from enforcing against them an
ordinance prohibiting the solicitation of orders for merchandise
without first procuring a license from the city authorities and
paying a license tax. The complaint, praying equitable relief,
alleged, in substance, that the defendants, by arrest, detention
and criminal prosecution of the complainants and other Jehovah's
Witnesses, had subjected them to deprivation of their rights of
freedom of speech, press and religion, and that the defendants
threaten to continue to enforce the ordinance by arrests and
prosecutions. The suit was not based nor maintainable on the ground
of diversity of citizenship, but was alleged to arise
Page 319 U. S. 158
under the Constitution and laws of the United States, including
the Civil Rights Act of 1871.
(1) The suit was within the jurisdiction of the District Court
under 28 U.S.C. § 41(14) irrespective of the amount in controversy.
P. 319 U. S.
(2) The federal District Court, in the exercise of its
discretion, should have refused to enjoin the threatened criminal
prosecutions in the state courts. P. 319 U. S.
2. The guaranties of the First Amendment are protected by the
Fourteenth Amendment against encroachment by the States. P.
319 U. S.
3. Allegations of fact sufficient to show deprivation of the
right of free speech under the First Amendment are sufficient to
establish deprivation of a constitutional right guaranteed by the
Fourteenth, and to state a cause of action under the Civil Rights
Act, whenever it appears that the abridgment of the right is
effected under color of a state statute or ordinance. P.
319 U. S.
4. Though a federal court have power as such to decide the
cause, it should raise sua sponte
the question of want of
equity jurisdiction where its powers are invoked to interfere by
injunction with threatened criminal prosecutions in a state court.
P. 319 U. S.
5. It is the policy of Congress generally to leave to the state
courts the trial of criminal cases arising under state laws,
subject to review by this Court of any federal questions involved,
and the federal courts should conform to this policy by refusing to
interfere with or embarrass threatened proceedings in state courts
save in those exceptional cases which call for the interposition of
a court of equity to prevent irreparable injury which is clear and
imminent, and equitable remedies infringing this independence of
the States -- though they might otherwise be given -- should be
withheld if sought on slight or inconsequential grounds. P.
319 U. S.
6. It does not appear from the record that petitioners have been
threatened with any injury other than that incidental to any
criminal prosecution brought lawfully and in good faith; or that a
federal court of equity could rightly afford petitioners any
protection which they could not secure by prompt trial in the state
courts and appeal pursued to this Court; or that, in view of the
decision in Murdock v. Pennsylvania, ante
p. 319 U. S. 105
there is ground for supposing that, in order to secure for the
future the complainants' constitutional rights, the intervention of
a federal court will be either necessary or appropriate. P.
319 U. S.
130 F.2d 652, affirmed.
Page 319 U. S. 159
CERTIORARI, 318 U.S. 749, to review the reversal of a decree, 39
F. Supp. 32, enjoining the enforcement against petitioners of a
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
Petitioners brought this suit in the United States District
Court for Western Pennsylvania to restrain threatened criminal
prosecution of them in the state courts by respondents, the City of
Jeannette (a Pennsylvania municipal corporation) and its Mayor, for
violation of a city ordinance which prohibits the solicitation of
orders for merchandise without first procuring a license from the
city authorities and paying a license tax. The ordinance, as
applied, is held to be an unconstitutional abridgment of free
speech, press and religion in Murdock v. Pennsylvania,
p. 319 U. S. 105
questions decisive of the present case are whether the district
court has statutory jurisdiction as a federal court to entertain
the suit, and whether petitioners have, by their pleadings and
proof, established a cause of action in equity.
The case is not one of diversity of citizenship, since some of
the petitioners, like respondents, are citizens of Pennsylvania.
The bill of complaint alleges that the named plaintiffs are
Jehovah's Witnesses, persons who entertain religious beliefs and
engage in religious practices which it describes; that the suit is
a class suit brought in petitioners' own behalf and in behalf of
all other Jehovah's Witnesses in Pennsylvania and adjoining states
to restrain respondents from enforcing ordinance No. 60 of the City
of Jeannette against petitioners and all other Jehovah's Witnesses
because, as applied to them, the ordinance abridges the guaranties
of freedom of speech, press, and religion of the First Amendment
made applicable to the states by the Fourteenth.
Page 319 U. S. 160
The suit is alleged to arise under the Constitution and laws of
the United States, including the Civil Rights Act of 1871. The
complaint sets up that, in the practice of their religion and in
conformity to the teachings of the Bible, Jehovah's Witnesses make,
and for many years have made, house to house distribution, among
the people of the City of Jeannette, of certain printed books and
pamphlets setting forth the Jehovah's Witnesses' interpretations of
the teachings of the Bible. Municipal Ordinance No. 60
"That all persons canvassing for or soliciting within said
Borough (now City of Jeannette), orders for goods . . . wares or
merchandise of any kind, or persons delivering such articles under
orders so obtained or solicited,"
without first procuring a license and paying prescribed license
taxes, shall be punished by fine not exceeding $100 and costs, or,
if the fine is not paid, by imprisonment from five to thirty days.
It is alleged that, in April, 1939, respondents arrested and
prosecuted petitioners and other Jehovah's Witnesses for violation
of the ordinance because of their described activities in
distributing religious literature without the permits required by
the ordinance, and that respondents threaten to continue to enforce
the ordinance by arrests and prosecutions -- all in violation of
petitioners' civil rights.
No preliminary or interlocutory injunction was granted, but the
district court, after a trial, held the ordinance invalid, 39 F.
Supp. 32, on the authority of Reid v. Borough of
Brookville, 39 F. Supp.
, in that it deprived petitioners of the rights of freedom of
press and religion guaranteed by the First and Fourteenth
Amendments. The court enjoined respondents from enforcing the
ordinance against petitioners and other Jehovah's Witnesses.
The Court of Appeals for the Third Circuit sustained the
jurisdiction of the district court, but reversed on the merits, 130
F.2d 652, on the authority of Jones v. Opelika,
316 U. S. 584
judge dissented on the ground that the complaint did not
sufficiently allege a violation
Page 319 U. S. 161
of the Due Process Clause of the Fourteenth Amendment so as to
entitle petitioners to relief under the Civil Rights Act. We
granted certiorari, 318 U.S. 749, and set the case for argument
with Murdock v. Pennsylvania, supra.
We think it plain that the district court had jurisdiction as a
federal court to hear and decide the question of the constitutional
validity of the ordinance, although there was no allegation or
proof that the matter in controversy exceeded $3,000. By 8 U.S.C. §
43 (derived from § 1 of the Civil Rights Act of April 20, 1871, 17
Stat. 13, continued without substantial change as R.S. § 1979), it
is provided that
"[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress."
As we held in Hague v. CIO, 307 U.
, 307 U. S.
-514, 307 U. S.
-532, the district courts of the United States are
given jurisdiction by 28 U.S.C. § 41(14) over suits brought under
the Civil Rights Act without the allegation or proof of any
jurisdictional amount. Not only do petitioners allege that the
present suit was brought under the Civil Rights Act, but their
allegations plainly set out an infringement of its provisions. In
substance, the complaint alleges that respondents, proceeding under
the challenged ordinance, by arrest, detention and by criminal
prosecutions of petitioners and other Jehovah's Witnesses, had
subjected them to deprivation of their rights of freedom of speech,
press and religion secured by the Constitution, and the complaint
seeks equitable relief from such deprivation in the future.
The particular provision of the Constitution on which
petitioners rely is the Due Process Clause of the Fourteenth
Page 319 U. S. 162
Amendment, violation of which the dissenting judge below thought
was not sufficiently alleged to establish a basis for relief under
the Civil Rights Act. But we think this overlooks the special
relationship of the Fourteenth Amendment to the rights of freedom
of speech, press, and religion guaranteed by the First. We have
repeatedly held that the Fourteenth Amendment has made applicable
to the states the guaranties of the First. Schneider v.
State, 308 U. S. 147
308 U. S. 160
n. 8 and cases cited; Jamison v. Texas, 318 U.
. Allegations of fact sufficient to show
deprivation of the right of free speech under the First Amendment
are sufficient to establish deprivation of a constitutional right
guaranteed by the Fourteenth, and to state a cause of action under
the Civil Rights Act, whenever it appears that the abridgment of
the right is effected under color of a state statute or ordinance.
It follows that the bill, which amply alleges the facts relied on
to show the abridgment by criminal proceedings under the ordinance,
sets out a case or controversy which is within the adjudicatory
power of the district court.
Notwithstanding the authority of the district court, as a
federal court, to hear and dispose of the case, petitioners are
entitled to the relief prayed only if they establish a cause of
action in equity. Want of equity jurisdiction, while not going to
the power of the court to decide the cause, Di Giovanni v.
Camden Ins. Assn., 296 U. S. 64
296 U. S. 69
Pennsylvania v. Williams, 294 U.
, 294 U. S.
-182, may nevertheless, in the discretion of the
court, be objected to on its own motion. Twist v. Prairie Oil
Co., 274 U. S. 684
274 U. S. 690
Pennsylvania v. Williams, supra, 294 U. S. 185
Especially should it do so where its powers are invoked to
interfere by injunction with threatened criminal prosecutions in a
The power reserved to the states under the Constitution to
provide for the determination of controversies in
Page 319 U. S. 163
their courts may be restricted by federal district courts only
in obedience to Congressional legislation in conformity to the
judiciary Article of the Constitution. Congress, by its
legislation, has adopted the policy, with certain well defined
statutory exceptions, of leaving generally to the state courts the
trial of criminal cases arising under state laws, subject to review
by this Court of any federal questions involved. Hence, courts of
equity, in the exercise of their discretionary powers, should
conform to this policy by refusing to interfere with or embarrass
threatened proceedings in state courts save in those exceptional
cases which call for the interposition of a court of equity to
prevent irreparable injury which is clear and imminent, and
equitable remedies infringing this independence of the states --
though they might otherwise be given -- should be withheld if
sought on slight or inconsequential grounds. Di Giovanni v.
Camden Ins. Assn., supra, 296 U. S. 73
Matthews v. Rodgers, 284 U. S. 521
284 U. S.
-526; cf. United States ex rel. Kennedy v.
Tyler, 269 U. S. 13
Massachusetts State Grange v. Benton, 272 U.
It is a familiar rule that courts of equity do not ordinarily
restrain criminal prosecutions. No person is immune from
prosecution in good faith for his alleged criminal acts. Its
imminence, even though alleged to be in violation of constitutional
guaranties, is not a ground for equity relief, since the lawfulness
or constitutionality of the statute or ordinance on which the
prosecution is based may be determined as readily in the criminal
case as in a suit for an injunction. Davis & Farnum Mfg.
Co. v. Los Angeles, 189 U. S. 207
Fenner v. Boykin, 271 U. S. 240
Where the threatened prosecution is by state officers for alleged
violations of a state law, the state courts are the final arbiters
of its meaning and application, subject only to review by this
Court on federal grounds appropriately asserted. Hence, the arrest
by the federal courts of the processes of the criminal law within
Page 319 U. S. 164
states, and the determination of questions of criminal liability
under state law by a federal court of equity, are to be supported
only on a showing of danger of irreparable injury "both great and
immediate." Spielman Motor Co. v. Dodge, 295 U. S.
, 295 U. S. 95
and cases cited; Beal v. Missouri Pacific R. Corp.,
312 U. S. 45
312 U. S. 49
and cases cited; Watson v. Buck, 313 U.
; Williams v. Miller,
317 U.S. 599.
The trial court found that respondents had prosecuted certain of
petitioners and other Jehovah's Witnesses for distributing the
literature described in the complaint without having obtained the
license required by the ordinance, and had declared their intention
further to enforce the ordinance against petitioners and other
Jehovah's Witnesses. But the court made no finding of threatened
irreparable injury to petitioners or others, and we cannot say that
the declared intention to institute other prosecutions is
sufficient to establish irreparable injury in the circumstances of
Before the present suit was begun, convictions had been obtained
in the state courts in cases Nos. 480-487, Murdock et al. v.
which were then pending on appeal and
which were brought to this Court for review by certiorari
contemporaneously with the present case. It does not appear from
the record that petitioners have been threatened with any injury
other than that incidental to every criminal proceeding brought
lawfully and in good faith, or that a federal court of equity, by
withdrawing the determination of guilt from the state courts, could
rightly afford petitioners any protection which they could not
secure by prompt trial and appeal pursued to this Court. In these
respects, the case differs from Hague v. CIO, supra,
307 U. S.
-502, where local officials forcibly broke up
meetings of the complainants, and in many instances forcibly
deported them from the state without trial.
Page 319 U. S. 165
There is no allegation here and no proof that respondents would
not, nor can we assume that they will not, acquiesce in the
decision of this Court holding the challenged ordinance
unconstitutional as applied to petitioners. If the ordinance had
been held constitutional, petitioners could not complain of
penalties which would have been but the consequence of their
violation of a valid state law.
Nor is it enough to justify the exercise of the equity
jurisdiction in the circumstances of this case that there are
numerous members of a class threatened with prosecution for
violation of the ordinance. In general, the jurisdiction of equity
to avoid multiplicity of civil suits at law is restricted to those
cases where there would otherwise be some necessity for the
maintenance of numerous suits between the same parties involving
the same issues of law or fact. It does not ordinarily extend to
cases where there are numerous parties and the issues between them
and the adverse party -- here, the state -- are not necessarily
identical. Matthews v. Rodgers, supra, 284 U. S.
-530, and cases cited. Far less should a federal
court of equity attempt to envisage in advance all the diverse
issues which could engage the attention of state courts in
prosecutions of Jehovah's Witnesses for violations of the present
ordinance, or assume to draw to a federal court the determination
of those issues in advance by a decree saying in what circumstances
and conditions the application of the city ordinance will be deemed
to abridge freedom of speech and religion.
In any event, an injunction looks to the future. Texas Co.
v. Brown, 258 U. S. 466
258 U. S. 474
Standard Oil Co. v. United States, 283 U.
, 283 U. S. 182
And in view of the decision rendered today in Murdock v.
we find no ground for supposing that the
intervention of a federal court, in order to secure petitioners'
constitutional rights, will be either necessary or appropriate.
Page 319 U. S. 166
For these reasons, establishing the want of equity in the cause,
we affirm the judgment of the circuit court of appeals directing
that the bill be dismissed.
MR. JUSTICE JACKSON, concurring in the result in this case and
dissenting in Nos. 480-487, Murdock v. Pennsylvania, ante,
p. 319 U. S. 105
No. 238, Martin v. Struthers, ante,
p. 319 U. S. 141
Except the case of Douglas et al. v. Jeannette,
these cases are decided upon the record of isolated prosecutions in
which information is confined to a particular act of offense and to
the behavior of an individual offender. Only the Douglas
record gives a comprehensive story of the broad plan of campaign
employed by Jehovah's Witnesses and its full impact on a living
community. But the facts of this case are passed over as irrelevant
to the theory on which the Court would decide its particular issue.
Unless we are to reach judgments as did Plato's men who were
chained in a cave so that they saw nothing but shadows, we should
consider the facts of the Douglas
case at least as an
hypothesis to test the validity of the conclusions in the other
cases. This record shows us something of the strings, as well as
the marionettes. It reveals the problem of those in local authority
when the right to proselyte comes in contact with what many people
have an idea is their right to be let alone. The Chief Justice says
for the Court in Douglas
"in view of the decision rendered today in Murdock v.
we find no ground for supposing that the
intervention of a federal court, in order to secure petitioners'
constitutional rights, will be either necessary or
which could hardly be said if the constitutional issues
presented by the facts of this case are not settled by the
case. The facts of record in the Douglas
case, and their relation to the facts of the other cases, seem
Page 319 U. S. 167
me worth recital and consideration if we are realistically to
weigh the conflicting claims of rights in the related cases today
From the record in Douglas,
In 1939, a "Watch Tower Campaign" was instituted by Jehovah's
Witnesses in Jeannette, Pennsylvania, an industrial city of some
16,000 inhabitants. [Footnote
] Each home was visited, a bell was rung or the door knocked
upon, and the householder advised that the Witness had important
information. If the householder would listen, a record was played
on the phonograph. Its subject was "Snare and Racket." The
following words are representative of its contents:
"Religion is wrong, and a snare, because it deceives the people,
but that does not mean that all who follow religion are willingly
bad. Religion is a racket because it has long been used, and is
still used, to extract money from the people upon the theory and
promise that the paying over of money to a priest will serve to
relieve the party paying from punishment after death, and further
insure his salvation."
This line of attack is taken by the Witnesses generally upon all
denominations, especially the Roman Catholic. The householder was
asked to buy a variety of literature for a price or contribution.
Page 319 U. S. 168
price would be twenty-five cents for the books and smaller sums
for the pamphlets. Oftentimes, if he was unwilling to purchase, the
book or pamphlet was given to him anyway.
When this campaign began, many complaints from offended
householders were received, and three or four of the Witnesses were
arrested. Thereafter, the "zone servant" in charge of the campaign
conferred with the Mayor. He told the Mayor it was their right to
carry on the campaign, and showed him a decision of the United
States Supreme Court, said to have that effect, as proof of it. The
Mayor told him that they were at liberty to distribute their
literature in the streets of the city, and that he would have no
objection if they distributed the literature free of charge at the
houses, but that the people objected to their attempt to force
these sales, and particularly on Sunday. The Mayor asked whether it
would not be possible to come on some other day, and to distribute
the literature without selling it. The zone servant replied that
that was contrary to their method of "doing business," and refused.
He also told the Mayor that he would bring enough Witnesses into
the City of Jeannette to get the job done, whether the Mayor liked
it or not. The Mayor urged them to await the outcome of an appeal
which was then pending in the other cases and let the matter take
its course through the courts. This, too, was refused, and the
threat to bring more people than the Mayor's police force could
cope with was repeated.
On Palm Sunday of 1939, the threat was made good. Over 100 of
the Witnesses appeared. They were strangers to the city, and
arrived in upwards of twenty-five automobiles. The automobiles were
parked outside the city limits, and headquarters were set up in a
gasoline station with telephone facilities through which the
director of the campaign could be notified when trouble occurred.
He furnished bonds for the Witnesses as they were arrested.
Page 319 U. S. 169
As they began their work, around 9:00 o'clock in the morning,
telephone calls began to come in to the Police Headquarters, and
complaints in large volume were made all during the day. They
exceeded the number that the police could handle, and the Fire
Department was called out to assist. The Witnesses called at homes
singly and in groups, and some of the homes complained that they
were called upon several times. Twenty-one Witnesses were arrested.
Only those were arrested where definite proof was obtainable that
the literature had been offered for sale or a sale had been made
for a price. Three were later discharged for inadequacies in this
proof, and eighteen were convicted. The zone servant furnished
The national structure of the Jehovah's Witness movement is also
somewhat revealed in this testimony. At the head of the movement in
this country is the Watch Tower Bible & Tract Society, a
corporation organized under the laws of Pennsylvania but having its
principal place of business in Brooklyn, N.Y. It prints all
pamphlets, manufactures all books, supplies all phonographs and
records, and provides other materials for the Witnesses. It
"ordains" these Witnesses by furnishing each, on a basis which does
not clearly appear, a certificate that he is a minister of the
Gospel. Its output is large, and its revenues must be considerable.
Little is revealed of its affairs. One of its "zone servants"
testified that its correspondence is signed only with the name of
the corporation, and anonymity as to its personnel is its policy.
The assumption that it is a "nonprofit charitable" corporation may
be true, but it is without support beyond mere assertion. In none
of these cases has the assertion been supported by such usual
evidence as a balance sheet or an income statement. What its
manufacturing costs and revenues are, what salaries or bonuses it
pays, what contracts it has for supplies or services, we simply do
Page 319 U. S. 170
know. The effort of counsel for Jeannette to obtain information,
books and records of the local "companies" of Witnesses engaged in
the Jeannette campaign in the trial was met by contradictory
statements as to the methods and meaning of such meager accounts as
The publishing output of the Watch Tower corporation is disposed
of through converts, some of whom are full-time and some part-time
ministers. These are organized into groups or companies under the
direction of "zone servants." It is their purpose to carry on in a
thorough manner so that every home in the communities in which they
work may be regularly visited three or four times a year. The
full-time Witnesses acquire their literature from the Watch Tower
Bible & Tract Society at a figure which enables them to
distribute it at the prices printed thereon with a substantial
differential. Some of the books they acquire for 5� and dispose of
for a contribution of 25�. On others, the margin is less. Part-time
ministers have a differential between the 20� which they remit to
the Watch Tower Society and the 25� which is the contribution they
ask for the books. We are told that many of the Witnesses give away
a substantial quantity of the literature to people who make no
contributions. Apart from the facts that this differential exists,
and that it enables the distributors to meet in whole or in part
their living expenses, it has proven impossible in these cases to
learn the exact results of the campaigns from a financial point of
view. There is evidence that the group accumulated a substantial
amount from the differentials, but the tracing of the money was not
possible because of the failure to obtain records and the failure,
apparently, to keep them.
The literature thus distributed is voluminous and repetitious.
Characterization is risky, but a few quotations will indicate
something of its temper.
Taking as representative the book "Enemies," of which J. F.
Rutherford, the lawyer who long headed this group,
Page 319 U. S. 171
is the author, we find the following:
"The greatest racket ever invented and practiced is that of
religion. The most cruel and seductive public enemy is that which
employs religion to carry on the racket, and by which means the
people are deceived and the name of Almighty God is reproached.
There are numerous systems of religion, but the most subtle,
fraudulent and injurious to humankind is that which is generally
labeled the 'Christian religion,' because it has the appearance of
a worshipful devotion to the Supreme Being, and thereby easily
misleads many honest and sincere persons."
at 144-145. It analyzes the income of the Roman
Catholic hierarchy and announces that it is "the great racket, a
racket that is greater than all other rackets combined."
at 178. It also says under the chapter heading "Song
of the Harlot,"
"Referring now to the foregoing Scriptural definition of harlot:
what religious system exactly fits the prophecies recorded in God's
Word? There is but one answer, and that is, The Roman Catholic
"Those close or nearby and dependent upon the main organization,
being of the same stripe, picture the Jewish and Protestant clergy
and other allies of the Hierarchy who tag along behind the
Hierarchy at the present time to do the bidding of the old
"Says the prophet of Jehovah: 'It shall come to pass in that
day, that Tyre (modern Tyre, the Roman Catholic Hierarchy
organization) shall be forgotten.' Forgotten by whom? By her former
illicit paramours who have committed fornication with her."
at 264. Throughout the literature, statements of
this kind appear amidst scriptural comment and prophecy,
denunciation of demonology, which is used to characterize the Roman
Catholic religion, criticism of government and those in authority,
advocacy of obedience to the law of God, instead of the law of man,
and an interpretation of the law of God as they see it.
Page 319 U. S. 172
The spirit and temper of this campaign is most fairly stated
perhaps in the words, again of Rutherford, in his book "Religion,"
"God's faithful servants go from house to house to bring the
message of the kingdom to those who reside there, omitting none,
not even the houses of the Roman Catholic Hierarchy, and there they
give witness to the kingdom because they are commanded by the Most
High to do so. 'They shall enter in at the windows like a thief.'
They do not loot nor break into the houses, but they set up their
phonographs before the doors and windows and send the message of
the kingdom right into the houses into the ears of those who might
wish to hear, and while those desiring to hear are hearing, some of
the 'sourpusses' are compelled to hear. Locusts invade the homes of
the people and even eat the varnish off the wood and eat the wood
to some extent. Likewise God's faithful witnesses, likened unto
locusts, get the kingdom message right into the house and they take
the veneer off the religious things that are in that house,
including candles and 'holy water,' remove the superstition from
the minds of the people, and show them that the doctrines that have
been taught to them are wood, hay and stubble, destructible by
fire, and they cannot withstand the heat. The people are enabled to
learn that 'purgatory' is a bogeyman, set up by the agents of Satan
to frighten the people into the religious organizations, where they
may be fleeced of their hard-earned money. Thus, the kingdom
message plagues the religionists, and the clergy find that they are
unable to prevent it. Therefore, as described by the prophet, the
message comes to them like a thief that enters in at the windows,
and this message is a warning to those who are on the inside that
Jesus Christ has come, and they remember his warning words, to-wit:
'Behold, I come as a thief.' (Revelation 16:15) The day of
Page 319 U. S. 173
Armageddon is very close, and that day comes upon the world in
general like a thief in the night."
The day of Armageddon, to which all of this is prelude, is to be
a violent and bloody one, for then shall be slain all
"demonologists," including most of those who reject the teachings
of Jehovah's Witnesses.
In the Murdock
case, on another Sunday morning of the
following Lent, we again find the Witnesses in Jeannette, traveling
by twos and threes and carrying cases for the books and
phonographs. This time, eight were arrested, as against the 21
arrested on the preceding Palm Sunday involved in the
In the Struthers
case, we find the Witness knocking on
the door of a total stranger at 4:00 on Sunday afternoon, July 7th.
The householder's fourteen-year-old son answered, and, at the
Witness' request, called his mother from the kitchen. His mother
had previously become "very much disgusted about going to the door"
to receive leaflets, particularly since another person had on a
previous occasion called her to the door and told her, as she
testified, "that I was doomed to go to hell because I would not let
this literature in my home for my children to read." She testified
that the Witness "shoved in the door" the circular being
distributed, [Footnote 2
Page 319 U. S. 174
"couldn't do much more than take" it, and she promptly tore it
up in the presence of the Witness, for while she believed "in the
worship of God," she did not "care to talk to everybody," and did
not "believe that anyone needs to be sent from door to door to tell
us how to worship." The record in the Struthers
even more sparse than that in the Murdock
case, but the
householder did testify that, at the time she was given the
circular, the Witness "told me that a number of them were in jail,
and would I call the Chief of Police and ask that their workers
might be released."
Such is the activity which it is claimed no public authority can
either regulate or tax. This claim is substantially, if not quite,
sustained today. I dissent -- a disagreement induced in no small
part by the facts recited.
As individuals, many of us would not find this activity
seriously objectionable. The subject of the disputes involved may
be a matter of indifference to our personal creeds. Moreover, we
work in offices affording ample shelter from such importunities,
and live in homes where we do not personally answer such calls and
bear the burden of turning away the unwelcome. But these
observations do not hold true for all. The stubborn persistence of
the officials of smaller communities in their efforts to regulate
this conduct indicates a strongly held conviction that the Court's
many decisions in this field are at odds with the realities of life
in those communities where the householder himself drops whatever
he may be doing to
Page 319 U. S. 175
answer the summons to the door, and is apt to have positive
religious convictions of his own. [Footnote 3
Three subjects discussed in the opinions in Murdock v.
and Martin v. Struthers
tend to obscure
the effect of the decisions. The first of these relates to the form
of the ordinances in question. One cannot determine whether this is
mere makeweight or whether it is an argument addressed to the
constitutionality of the ordinances, and, whatever it is, I cannot
reconcile the treatment of the subject by the two opinions. In
the Court says,
"the present ordinance is not narrowly drawn to safeguard the
people of the community in their homes against the evils of
and, again, "the ordinance is not narrowly drawn to prevent or
control abuses or evils arising from" solicitation from house to
house. It follows the recent tendency to invalidate ordinances in
this general field that are not "narrowly drawn."
But, in Struthers,
the ordinance is certainly narrowly
drawn. Yet the Court denies the householder the narrow protection
it gives. The city points out that this ordinance was narrowly
drawn to meet a particular evil in that community, where many men
must work nights and rest by day. I had supposed that our question,
except in respect to ordinances invalid on their face, is always
whether the ordinance, as applied, denies constitutional rights.
Nothing in the Constitution says or implies that real rights are
more vulnerable to a narrow ordinance
Page 319 U. S. 176
than to a broad one. I think our function is to take municipal
ordinances as they are construed by the state courts and applied by
local authorities, and to decide their constitutionality
accordingly, rather than to undertake censoring their
Secondly, in neither opinion does the Court give clear-cut
consideration to the particular activities claimed to be entitled
to constitutional immunity, but, in one case, blends with them
conduct of others not in question, and in the other, confuses with
the rights in question here certain alleged rights of others which
these petitioners are in no position to assert as their own.
In the Murdock
case, the Court decides to "restore to
their high, constitutional position the liberties of itinerant
evangelists." That it does without stating what those privileges
are, beyond declaring that
"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."
How can we dispose of the questions in this case merely by
citing the unquestioned right to minister to congregations
voluntarily attending services?
Similarly, in the Struthers
case, the Court fails to
deal with the behavior of the Witnesses on its own merits. It
reaches its decision by weighing against the ordinance there in
question not only the rights of the Witness, but also "the right of
the individual householder to determine whether he is willing to
receive her message," concludes that the ordinance "substitutes the
judgment of the community for the judgment of the individual
householder", and decides the case on the basis that
"it submits the distributer to criminal punishment for annoying
the person on whom he calls, even though the recipient of the
literature distributed is, in fact, glad to receive it."
But the hospitable householder thus thrown in the balance with
the Witness to make weight against the city ordinance is wholly
hypothetical, and the assumption is contrary to
Page 319 U. S. 177
the evidence we have recited. Doubtless there exist fellow
spirits who welcome these callers, but the issue here is what are
the rights of those who do not, and what is the right of the
community to protect them in the exercise of their own faith in
peace. That issue -- the real issue -- seems not to be dealt
Third, both opinions suggest that there are evils in this
conduct that a municipality may do something about. But neither
identifies it, nor lays down any workable guide in so doing. In
the Court says that "the ordinance is not
narrowly drawn to prevent or control abuses or evils arising" from
house-to-house solicitation. What evils or abuses? It is also said
"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
What more? The fee, of course. But we are told the fee is not "a
nominal fee imposed as a regulatory measure to defray the expenses
of policing the activities in question." Is it implied that such a
registration for such a fee would be valid? Wherein does the
suggestion differ from the ordinance we are striking down? This
ordinance did nothing more, it did not give discretion to refuse
the license nor to censor the literature. The fee ranged from $1.50
a day for one day to less than a dollar a day for two weeks. There
is not a syllable of evidence that this amount exceeds the cost to
the community of policing this activity. If this suggestion of new
devices is not illusory, why is the present ordinance invalid? The
City of Struthers decided merely that one with no more business at
a home than the delivery of advertising matter should not obtrude
himself farther by announcing the fact of delivery. He was free to
make the distribution if he left the householder undisturbed, to
take it in in his own time. The Court says the City has not even
this much leeway in ordering
Page 319 U. S. 178
its affairs, however complicated they may be as the result of
round-the-clock industrial activity. If the local authorities must
draw closer aim at evils than they did in these cases, I doubt that
they ever can hit them. What narrow area of regulation exists under
these decisions? The Struthers
opinion says, "the dangers
of distribution can so easily be controlled by traditional legal
methods." It suggests that the City may, "by identification
devices, control the abuse of the privilege by criminals posing as
canvassers." Of course, to require registration and license is one
of the few practical "identification devices." Merely giving one's
name and his address to the authorities would afford them basis for
investigating who the strange callers are and what their record has
been. And that is what Murdock
prohibits the city from
asking. If the entire course of concerted conduct revealed to us is
immune, I should think it neither fair nor wise to throw out to the
cities encouragement to try new restraints. If some part of it
passes the boundary of immunity, I think we should say what part,
and why, in these cases, we are denying the right to regulate it.
The suggestion in Struthers
that "the problem must be
worked out by each community for itself" is somewhat ironical in
view of the fate of the ordinances here involved.
Our difference of opinion cannot fairly be given the color of a
disagreement as to whether the constitutional rights of Jehovah's
Witnesses should be protected, insofar as they are rights. These
Witnesses, in common with all others, have extensive rights to
proselyte and propagandize. These, of course, include the right to
oppose and criticize the Roman Catholic Church or any other
denomination. These rights are, and should be held to be, as
extensive as any orderly society can tolerate in religious
disputation. The real question is where their rights end and the
rights of others begin. The real task of determining the extent of
their rights on balance with the rights
Page 319 U. S. 179
of others is not met by pronouncement of general propositions
with which there is no disagreement.
If we should strip these cases to the underlying questions, I
find them too difficult as constitutional problems to be disposed
of by a vague but fervent transcendentalism.
In my view, the First Amendment assures the broadest tolerable
exercise of free speech, free press, and free assembly, not merely
for religious purposes, but for political, economic, scientific,
news, or informational ends as well. When limits are reached which
such communications must observe, can one go farther under the
cloak of religious evangelism? Does what is obscene, or commercial,
or abusive, or inciting become less so if employed to promote a
religious ideology? I had not supposed that the rights of secular
and non-religious communications were more narrow or in any way
inferior to those of avowed religious groups.
It may be asked why, then, does the First Amendment separately
mention free exercise of religion? The history of religious
persecution gives the answer. Religion needed specific protection
because it was subject to attack from a separate quarter. It was
often claimed that one was an heretic and guilty of blasphemy
because he failed to conform in mere belief or in support of
prevailing institutions and theology. It was to assure religious
teaching as much freedom as secular discussion, rather than to
assure it greater license, that led to its separate statement.
The First Amendment grew out of an experience which taught that
society cannot trust the conscience of a majority to keep its
religious zeal within the limits that a free society can tolerate.
I do not think it any more intended to leave the conscience of a
minority to fix its limits. Civil government cannot let any group
ride rough-shod over others simply because their "consciences" tell
them to do so.
Page 319 U. S. 180
A common sense test as to whether the Court has struck a proper
balance of these rights is to ask what the effect would be if the
right given to these Witnesses should be exercised by all sects and
denominations. If each competing sect in the United States went
after the householder by the same methods, I should think it
intolerable. If a minority can put on this kind of drive in a
community, what can a majority, resorting to the same tactics, do
to individuals and minorities? Can we give to one sect a privilege
that we could not give to all, merely in the hope that most of them
will not resort to it? Religious freedom, in the long run, does not
come from this kind of license to each sect to fix its own limits,
but comes of hard-headed fixing of those limits by neutral
authority with an eye to the widest freedom to proselyte compatible
with the freedom of those subject to proselyting pressures.
I cannot accept the holding in the Murdock
the behavior revealed here "occupies the same high estate under the
First Amendment as do worship in the churches and preaching from
the pulpits." To put them on the same constitutional plane seems to
me to have a dangerous tendency towards discrediting religious
Neither can I think it an essential part of freedom that
religious differences be aired in language that is obscene,
abusive, or inciting to retaliation. We have held that a Jehovah's
Witness may not call a public officer a "God damned racketeer" and
a "damned Fascist," because that is to use "fighting words," and
such are not privileged. Chaplinsky v. New Hampshire,
315 U. S. 568
How, then, can the Court today hold it a "high constitutional
privilege" to go to homes, including those of devout Catholic on
Palm Sunday morning, and thrust upon them literature calling their
church a "whore" and their faith a "racket"? [Footnote 4
Page 319 U. S. 181
Nor am I convinced that we can have freedom of religion only by
denying the American's deep-seated conviction that his home is a
refuge from the pulling and hauling of the market place and the
street. For a stranger to corner a man in his home, summon him to
the door, and put him in the position either of arguing his
religion or of ordering one of unknown disposition to leave is a
questionable use of religious freedom. [Footnote 5
I find it impossible to believe that the Struthers
can be solved by reference to the statement that
"The authors of the First Amendment knew that novel and
unconventional ideas might disturb the complacent, but they chose
to encourage a freedom which they believed essential if vigorous
enlightenment was ever to triumph over slothful ignorance."
I doubt if only the slothfully ignorant wish repose in their
homes, or that the forefathers intended to open the door to such
forced "enlightenment" as we have here.
In these cases, local authorities, caught between the offended
householders and the drive of the Witnesses, have been hard-put to
keep the peace of their communities. They have invoked old
ordinances that are crude and clumsy for the purpose. I should
think that the singular persistence of the turmoil about Jehovah's
Witnesses, one which seems to result from the work of no other
sect, would suggest to this Court a thorough examination of their
methods to see if they impinge unduly on the rights of others.
Instead of that, the Court has, in one way after another, tied the
hands of all local authority, and made the aggressive methods of
this group the law of the land.
This Court is forever adding new stories to the temples of
constitutional law, and the temples have a way of collapsing when
one story too many is added. So it was with liberty of contract,
which was discredited by being overdone. The Court is adding a new
privilege to override the rights of others to what has before been
regarded as religious liberty. In so doing, it needlessly creates a
risk of discrediting a wise provision of our Constitution which
protects all -- those in homes as well as those out of them -- in
the peaceful, orderly practice of the religion of their choice, but
which gives no right to force it upon others.
Civil liberties had their origin, and must find their ultimate
guaranty, in the faith of the people. If that faith should be lost,
five or nine men in Washington could not long supply its want.
Therefore we must do our utmost to make clear and easily
understandable the reasons for deciding these cases as we do.
Forthright observance of rights presupposes their forthright
I think that the majority has failed in this duty. I therefore
dissent in Murdock
and concur in
the result in Douglas.
I join in the opinions of MR. JUSTICE REED in Murdock
and in that of MR. JUSTICE FRANKFURTER in
MR. JUSTICE FRANKFURTER joins in these views.
Sixteenth Annual Census of the United States (1940), Population,
Volume I (Census Bureau of the United States Department of
Commerce), p. 922. The City of Jeannette is included in
Westmoreland County, shown by the 1940 Census to have a population
of 303,411, an increase over 1930 and 1920. Ibid.
Census of Religious Bodies shows that, of the people in
Westmoreland County, 168,608 were affiliated with some religious
body, 80,276 of them with the Roman Catholic Church. Census of
Religious Bodies (1936), Volume I (Census Bureau of the United
States Department of Commerce) pp. 809-814. According to
unpublished information in the files of the Census Bureau, the 1936
Census of Religious Bodies shows that there were, in the City of
Jeannette, 5,520 Roman Catholics. Thus, it appears that the
percentage of Catholics in the City is somewhat higher than in the
County as a whole.
This reads as follows:
"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
[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.,
[On the other side.]
Chafee, Freedom of Speech in the United States
(1941) p. 407:
"I cannot help wondering whether the Justices of the Supreme
Court are quite aware of the effect of organized front-door
intrusions upon people who are not sheltered from zealots and
impostors by a staff of servants or the locked entrance of an
Compare Valentine v. Chrestensen, 316 U. S.
, permitting a ban on distribution of a handbill
containing a civic appeal on one side and a commercial
advertisement on the other.
footnote 3, pp.