1. Whether a federal question was properly presented to and
decided by a state court is itself a federal question, to be
decided by this Court upon appeal. P.
303 U.S. 450.
2. Freedom of speech and freedom of the press, which are
protected by the First Amendment from infringement by Congress, are
among the fundamental personal rights and liberties which are
protected by the Fourteenth Amendment from invasion by state
action. P.
303 U.S.
450.
3. Municipal ordinances adopted under state authority constitute
state action within the meaning of the Fourteenth Amendment. P.
303 U.S. 450.
4. A city ordinance forbidding as a nuisance the distribution,
by hand or otherwise, of literature of any kind without first
obtaining written permission from the City Manager violates the
Fourteenth Amendment; strikes at the very foundation of the freedom
of the press by subjecting it to license and censorship. P.
303 U.S. 450.
So
held as applied to distribution of pamphlets and
magazines in the nature of religious tracts.
5. The liberty of the press is not confined to newspapers and
periodicals. It embraces pamphlets and leaflets. P.
303 U. S.
452.
6. One who is prosecuted for disobeying a license ordinance
which is void on its face may contest its validity without having
sought a permit under it. P.
303 U. S.
452.
55 Ga.App. 609, 191 S.E. 152, reversed.
Appeal from a judgment affirming a sentence imposed for
violation of a city ordinance. The Supreme Court of the State
denied a review.
Page 303 U. S. 447
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
Appellant, Alma Lovell, was convicted in the Recorder's Court of
the City of Griffin, Georgia, of the violation of a city ordinance
and was sentenced to imprisonment for fifty days in default of the
payment of a fine of fifty dollars. The Superior Court of the
county refused sanction of a petition for review; the Court of
Appeals affirmed the judgment of the Superior Court (55 Ga.App.
609, 191 S.E. 152), and the Supreme Court of the State denied an
application for certiorari. The case comes here on appeal.
The ordinance in question is as follows:
"Section 1. That the practice of distributing, either by hand or
otherwise, circulars, handbooks, advertising, or literature of any
kind, whether said articles are being delivered free, or whether
same are being sold, within the limits of the City of Griffin,
without first obtaining written permission from the City Manager of
the City of Griffin, such practice shall be deemed a nuisance, and
punishable as an offense against the City of Griffin."
"Section 2. The Chief of Police of the City of Griffin and the
police force of the City of Griffin are hereby required and
directed to suppress the same and to abate
Page 303 U. S. 448
any nuisance as is described in the first section of this
ordinance."
The violation, which is not denied, consisted of the
distribution without the required permission of a pamphlet and
magazine in the nature of religious tracts, setting forth the
gospel of the "Kingdom of Jehovah." Appellant did not apply for a
permit, as she regarded herself as sent "by Jehovah to do His
work," and that such an application would have been "an act of
disobedience to His commandment."
Upon the trial, with permission of the court, appellant demurred
to the charge and moved to dismiss it upon a number of grounds,
among which was the contention that the ordinance violated the
Fourteenth Amendment of the Constitution of the United States in
abridging "the freedom of the press" and prohibiting "the free
exercise of petitioner's religion." This contention was thus
expressed:
"Because said ordinance is contrary to and in violation of the
first amendment to the Constitution of the United States, which
reads:"
" 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
of grievances."
"Said ordinance is also contrary to and in violation of the
fourteenth amendment to the Constitution of the United States,
which had the effect of making the said first amendment applicable
to the States, and which reads:"
" All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States, and of the State wherein they reside. No State shall make
or enforce any law which shall abridge the privileges or immunities
of citizens of the United
Page 303 U. S. 449
States; nor shall any State deprive any person of life, liberty,
or property without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws."
"Said ordinance absolutely prohibits the distribution of any
literature of any kind within the limits of the City of Griffin
without the permission of the City Manager, and thus abridges the
freedom of the press, contrary to the provisions of said quoted
amendments."
"Said ordinance also prohibits the free exercise of petitioner's
religion and the practice thereof by prohibiting the distribution
of literature about petitioner's religion in violation of the terms
of said quoted amendments."
The Court of Appeals, overruling these objections, sustained the
constitutional validity of the ordinance, saying:
"The ordinance is not unconstitutional because it abridges the
freedom of the press or prohibits the distribution of literature
about the petitioner's religion, in violation of the fourteenth
amendment to the constitution of the United States."
While, in a separate paragraph of its opinion, the court said
that the charge that the ordinance was void because it violated a
designated provision of the state or federal constitution without
stating wherein there was such a violation, was too indefinite to
present a constitutional question, we think that this statement
must have referred to other grounds of demurrer, and not to the
objection above quoted, which was sufficiently specific and was
definitely ruled upon. The contention as to restraint "upon the
free exercise of religion," with respect to the same ordinance, was
presented in the case of
Coleman v. City of Griffin, 55
Ga.App. 123, and the appeal was dismissed for want of a substantial
federal question, 302 U.S. 636.
Reynolds v. United States,
98 U. S. 145,
98 U. S. 166,
98 U. S. 167;
Davis
Page 303 U. S. 450
v. Beason, 133 U. S. 333,
133 U. S. 342,
133 U. S. 343.
But, in the
Coleman case, the Court did not deal with the
question of freedom of speech and of the press, as it had not been
properly presented. We think that this question was adequately
presented, and was decided in the instant case. Whether it was so
presented and was decided is itself a federal question.
Carter
v. Texas, 177 U. S. 442,
177 U. S. 447;
Ward v. Love County, 253 U. S. 17,
253 U. S. 22;
First National Bank v. Anderson, 269 U.
S. 341,
269 U. S. 346;
Schuylkill Trust Co. v. Pennsylvania, 296 U.
S. 113,
296 U. S. 121.
This Court has jurisdiction.
Freedom of speech and freedom of the press, which are protected
by the First Amendment from infringement by Congress, are among the
fundamental personal rights and liberties which are protected by
the Fourteenth Amendment from invasion by state action.
Gitlow
v. New York, 268 U. S. 652,
268 U. S. 666;
Stromberg v. California, 283 U. S. 359,
283 U. S. 368;
Near v. Minnesota, 283 U. S. 697,
283 U. S. 707;
Grosjean v. American Press Co., 297 U.
S. 233,
297 U. S. 244;
De Jonge v. Oregon, 299 U. S. 353,
299 U. S. 364.
See also Palko v. Connecticut, 302 U.
S. 319. It is also well settled that municipal
ordinances adopted under state authority constitute state action,
and are within the prohibition of the amendment.
Raymond v.
Chicago Union Traction Co., 207 U. S. 20;
Home Telephone & Telegraph Co. v. Los Angeles,
227 U. S. 278;
Cuyahoga River Power Co. v. Akron, 240 U.
S. 462.
The ordinance, in its broad sweep, prohibits the distribution of
"circulars, handbooks, advertising, or literature of any kind." It
manifestly applies to pamphlets, magazines and periodicals. The
evidence against appellant was that she distributed a certain
pamphlet and a magazine called the "Golden Age." Whether, in actual
administration, the ordinance is applied, as apparently it could
be, to newspapers does not appear. The City Manager testified
that
"everyone applies to me for a
Page 303 U. S. 451
license to distribute literature in this City. None of these
people (including defendant) secured a permit from me to distribute
literature in the City of Griffin."
The ordinance is not limited to "literature" that is obscene or
offensive to public morals or that advocates unlawful conduct.
There is no suggestion that the pamphlet and magazine distributed
in the instant case were of that character. The ordinance embraces
"literature" in the widest sense.
The ordinance is comprehensive with respect to the method of
distribution. It covers every sort of circulation "either by hand
or otherwise." There is thus no restriction in its application with
respect to time or place. It is not limited to ways which might be
regarded as inconsistent with the maintenance of public order or as
involving disorderly conduct, the molestation of the inhabitants,
or the misuse or littering of the streets. The ordinance prohibits
the distribution of literature of any kind at any time, at any
place, and in any manner without a permit from the City
Manager.
We think that the ordinance is invalid on its face. Whatever the
motive which induced its adoption, its character is such that it
strikes at the very foundation of the freedom of the press by
subjecting it to license and censorship. The struggle for the
freedom of the press was primarily directed against the power of
the licensor. It was against that power that John Milton directed
his assault by his "Appeal for the Liberty of Unlicensed Printing."
And the liberty of the press became initially a right to publish
"without a license what formerly could be published only with one."
[
Footnote 1] While this freedom
from previous restraint upon publication cannot be regarded as
exhausting the guaranty of liberty, the prevention of that
restraint was a leading purpose in the adoption of the
Page 303 U. S. 452
constitutional provision.
See Patterson v. Colorado,
205 U. S. 454,
205 U. S. 462;
Near v. Minnesota, 283 U. S. 697,
283 U. S.
713-716;
Grosjean v. American Press Co.,
297 U. S. 233,
297 U. S. 245,
297 U. S. 246.
Legislation of the type of the ordinance in question would restore
the system of license and censorship in its baldest form.
The liberty of the press is not confined to newspapers and
periodicals. It necessarily embraces pamphlets and leaflets. These
indeed have been historic weapons in the defense of liberty, as the
pamphlets of Thomas Paine and others in our own history abundantly
attest. The press, in its historic connotation, comprehends every
sort of publication which affords a vehicle of information and
opinion. What we have had recent occasion to say with respect to
the vital importance of protecting this essential liberty from
every sort of infringement need not be repeated.
Near v.
Minnesota, supra; Grosjean v. American Press Co., supra; De Jonge
v. Oregon, supra. [
Footnote
2]
The ordinance cannot be saved because it relates to
distribution, and not to publication.
"Liberty of circulating is as essential to that freedom as
liberty of publishing; indeed, without the circulation, the
publication would be of little value."
Ex parte Jackson, 96 U. S. 727,
96 U. S. 733.
The license tax in
Grosjean v. American Press Co., supra,
was held invalid because of its direct tendency to restrict
circulation.
As the ordinance is void on its face, it was not necessary for
appellant to seek a permit under it. She was
Page 303 U. S. 453
entitled to contest it validity in answer to the charge against
her.
Smith v. Cahoon, 283 U. S. 553,
283 U. S.
562.
The judgment is reversed, and the cause is remanded for further
proceedings not inconsistent with this opinion.
Reversed.
MR. JUSTICE CARDOZO took no part in the consideration and
decision of this case.
[
Footnote 1]
See Wickwar, "The Struggle for the Freedom of the
Press," p. 15.
[
Footnote 2]
See also Starr Company v. Brush, 185 App.Div. (N.Y.)
261, 172 N.Y.S. 851;
Dearborn Publishing Co. v.
Fitzgerald, 271 Fed. 479;
In re Campbell, 4 Cal. App.
300, 221 Pac. 952;
Coughlin v. Sullivan, 100 N.J.L. 42,
126 Atl. 177.
Compare People v. Armstrong, 73 Mich. 288,
41 N.W. 275;
Chicago v. Schultz, 341 Ill. 208, 173 N.E.
276;
People v. Armentrout, 118 Cal. App. Supp. 761, 1 P.2d
556.