A so-called "Green River ordinance" of a municipality forbids
the practice of going in and upon private residences for the
purpose of soliciting orders for the sale of goods without prior
consent of the owners or occupants. Appellant, representing a
foreign corporation, was engaged in door-to-door soliciting of
subscriptions for nationally known magazines and periodicals.
Subscriptions were acknowledged by a card sent from the home office
of the corporation, and the publications were delivered by the
publishers in interstate commerce through the mails. Appellant was
convicted of a violation of the ordinance solely because he had not
obtained the prior consent of the owners or occupants of the
residences he solicited.
Held:
1. The ordinance is not invalid under the Due Process Clause of
the Fourteenth Amendment. Pp.
341 U. S.
629-633.
(a) The ordinance can be characterized as prohibitory of
appellant's legitimate business of obtaining subscriptions to
periodicals only in the limited sense of subscriptions by
house-to-house canvass without invitation. It leaves open the usual
methods of solicitation -- by radio, periodicals, mail and local
agencies. Pp.
341 U. S.
631-632.
(b) The Constitution's protection of property rights does not
render a state or city impotent to guard its citizens against the
annoyances of life because the regulation may restrict the manner
of doing a legitimate business. Pp.
341 U. S.
632-633.
2. The ordinance does not so burden or impede interstate
commerce as to violate the Commerce Clause of the Federal
Constitution. Pp.
341 U. S.
633-641.
(a) The ordinance does not discriminate against interstate
business and is a valid local regulation of solicitation.
Hood
& Sons v. Du Mond, 336 U. S. 525, and
Dean Milk Co. v. Madison, 340 U.
S. 349, distinguished. Pp.
341 U. S.
633-641.
(b) Appellant, as a publishers' representative or in his own
right as a door-to-door canvasser, is no more free to violate local
regulations to protect privacy than are other solicitors. Pp.
341 U. S.
637-641.
Page 341 U. S. 623
(c) When there is a reasonable basis for legislation to protect
the social, as distinguished from the economic, welfare of a
community, it is not for this Court, because of the Commerce
Clause, to deny the exercise locally of the sovereign power of the
state. Pp.
341 U. S.
640-641.
3. The ordinance does not abridge the freedom of speech and
press guaranteed by the First and Fourteenth Amendments. Pp.
341 U. S.
641-645.
(a) The fact that periodicals are sold does not put them beyond
the protection of the First Amendment. Pp.
341 U. S.
641-642.
(b) The constitutional guaranties of free speech and free press
are not absolutes. P.
341 U. S.
642.
(c)
Martin v. Struthers, 319 U.
S. 141;
Marsh v. Alabama, 326 U.
S. 501; and
Tucker v. Texas, 326 U.
S. 517, distinguished. Pp.
341 U. S.
642-644.
(d) It would be a misuse of the great guaranties of free speech
and free press to use them to force a community to admit the
solicitors of publications to the home premises of its residents.
P.
341 U. S.
645.
217 La. 820,
47 So.
2d 553, affirmed.
Page 341 U. S. 624
MR. JUSTICE REED delivered the opinion of the Court.
The appellant here, Jack H. Breard, a regional representative of
Keystone Readers Service, Inc., a Pennsylvania corporation, was
arrested while going from door to door in the City of Alexandria,
Louisiana, soliciting subscriptions for nationally known magazines.
The arrest was solely on the ground that he had violated an
ordinance because he had not obtained the prior consent of the
owners of the residences solicited. Breard, a resident of Texas,
was in charge of a crew of solicitors who go from house to house in
the various cities and towns in the area under Breard's management
and solicit subscriptions for nationally known magazines and
periodicals, including among others the Saturday Evening Post,
Ladies Home Journal, Country Gentleman, Holiday, Newsweek, American
Home, Cosmopolitan, Esquire, Pic, Parents, Today's Woman, and True.
These solicitors spend only a few days in each city, depending upon
its size. Keystone sends a card from its home office to the new
subscribers acknowledging receipt of the subscription, and
thereafter the periodical is forwarded to the subscriber by the
publisher in interstate commerce through the mails.
The ordinance under which the arrest was made, so far as is here
pertinent, reads as follows:
"Section 1. Be it ordained by the council of the city of
Alexandria, Louisiana, in legal session convened, that the practice
of going in and upon private residences in the City of Alexandria,
Louisiana by solicitors, peddlers, hawkers, itinerant merchants, or
transient vendors of merchandise, not having been requested or
invited so to do by the owner or owners, occupant, or occupants of
said private residences for the purpose of soliciting orders for
the sale of goods, wares and merchandise and/or disposing of
and/or
Page 341 U. S. 625
peddling or hawking the same is declared to be a nuisance, and
punishable as such nuisance as a misdemeanor."
It, or one of similar import, has been on the statute books of
Alexandria for many years. It is stipulated that:
"Such ordinance was enacted by the City Council, among other
reasons, because some householders complained to those in authority
that, in some instances, for one reason or another, solicitors were
undesirable or discourteous, and some householders complained that,
whether a solicitor was courteous or not, they did not desire any
uninvited intrusion into the privacy of their home."
The protective purposes of the ordinance were underscored by the
Supreme Court of Louisiana in its opinion. 217 La. 820,
47 So.
2d 553, at 555.
At appellant's trial for violation of the ordinance, there was a
motion to quash on the ground that the ordinance violates the Due
Process Clause of the Fourteenth Amendment to the Federal
Constitution; that it violates the Federal Commerce Clause, art. 1,
§ 8, cl. 3; and that it violates the guarantees of the First
Amendment of freedom of speech and of the press, made applicable to
the states by the Fourteenth Amendment to the Constitution of the
United States. Appellant's motion to quash was overruled by the
trial court, and he was found guilty and sentenced to pay a $25
fine or serve 30 days in jail. The Supreme Court of Louisiana
affirmed appellant's conviction, and expressly rejected the federal
constitutional objections. 217 La. 820,
47 So.
2d 553. The case is here on appeal, 28 U.S.C. § 1257,
Jamison v. Texas, 318 U. S. 413.
All declare for liberty, and proceed to disagree among
themselves as to its true meaning. There is equal unanimity that
opportunists, for private gain, cannot be permitted
Page 341 U. S. 626
to arm themselves with an acceptable principle, such as that of
a right to work, a privilege to engage in interstate commerce, or a
free press, and proceed to use it as an iron standard to smooth
their path by crushing the living rights of others to privacy and
repose. This case calls for an adjustment of constitutional rights
in the light of the particular living conditions of the time and
place. Everyone cannot have his own way, and each must yield
something to the reasonable satisfaction of the needs of all.
It is true that the knocker on the front door is treated as an
invitation or license to attempt an entry, justifying ingress to
the home by solicitors, hawkers and peddlers for all kinds of
salable articles. [
Footnote 1]
When such visitors are barred from premises by notice or order,
however, subsequent trespasses have been punished. [
Footnote 2] Door-to-door canvassing has
flourished increasingly in recent years, with the ready market
furnished by the rapid concentration of housing. The infrequent and
still welcome solicitor to the rural home became, to some, a
recurring nuisance in towns when the visits were multiplied.
[
Footnote 3] Unwanted
Page 341 U. S. 627
knocks on the door by day or night are a nuisance, or worse, to
peace and quiet. The local retail merchant, too, has not been
unmindful of the effective competition furnished by house-to-house
selling in many lines. As a matter of business fairness, it may be
thought not really sporting to corner the quarry in his home and,
through his open door, put pressure on the prospect to purchase. As
the exigencies of trade are not ordinarily expected to have a
higher rating constitutionally than the tranquillity of the
fireside, responsible municipal officers have sought a way to curb
the annoyances while preserving complete freedom for desirable
visitors to the homes. The idea of barring classified salesmen from
homes by means of notices posted by individual householders was
rejected early as less practical than an ordinance regulating
solicitors. [
Footnote 4]
The Town of Green River, Wyoming, undertook in 1931 to remedy by
ordinance the irritating incidents of house-to-house canvassing for
sales. The substance of that ordinance, so far as here material, is
the same as that of Alexandria, Louisiana. [
Footnote 5] The Green River ordinance was sustained by
the Circuit Court of Appeals of the Tenth Circuit in 1933 against
an attack by a nonresident corporation, a solicitor of orders,
through a bill for an injunction to prohibit its enforcement, on
the federal constitutional grounds of interference with interstate
commerce, deprivation of property without due process of law, and
denial of the equal protection of the laws.
Town
Page 341 U. S. 628
of Green River v. Fuller Brush Co., 65 F.2d 112. No
review of that decision was sought. An employee of the Brush
Company challenged the same ordinance again in the courts of
Wyoming in 1936 on a prosecution by the town for the misdemeanor of
violating its terms. On this attack, certain purely state grounds
were relied upon, which we need not notice, and the charges of
violation of the Federal Constitution were repeated. The ordinance
was held valid by the Supreme Court of Wyoming.
Town of Green
River v. Bunger, 50 Wyo. 52,
58 P.2d 456.
[
Footnote 6]
Page 341 U. S. 629
Due Process. -- On appeal to this Court, appellant
urged particularly the unconstitutionality under the Fourteenth
Amendment Due Process Clause of such unreasonable restraints as the
Green River ordinance placed on "the right to engage in one of the
common occupations of life," citing,
inter alia, New State Ice
Co. v. Liebmann, 285 U. S. 262,
285 U. S. 278,
and
Adams v. Tanner, 244 U. S. 590. He
also relied upon the alleged prohibition of interstate commerce
under the guise of a police regulation. [
Footnote 7]
Page 341 U. S. 630
Here, this Court dismissed for want of a substantial federal
question.
Bunger v. Green River, 300 U.S. 638. For an
answer to the argument that the ordinance denied due process
because of its unreasonable restraint on the right to engage in a
legitimate occupation, this Court cited three cases:
Gunding v.
Chicago, 177 U. S. 183;
[
Footnote 8]
Western Turf
Association v. Greenberg, 204 U. S. 359;
[
Footnote 9] and
Williams
v. Arkansas, 217 U. S. 79.
[
Footnote 10]
Page 341 U. S. 631
The opinions of this Court since this
Green River case
have not given any ground to argue that the police power of a state
over soliciting has constitutional infirmities under the due
process principle embodied in the concept of freedom to carry on an
inoffensive trade or business. Decisions such as
Liebmann
and
Tanner, supra, invalidating legislative action, are
hardly in point here. The former required a certificate of
convenience and necessity to manufacture ice, and the latter
prohibited employment agencies from receiving remuneration for
their services. The Green River ordinance can be characterized as
prohibitory of appellant's legitimate business of obtaining
subscriptions to periodicals only in the limited sense of
forbidding solicitation of subscriptions by house-to-house canvass
without invitation. All regulatory legislation is prohibitory in
that sense. The usual methods of solicitation
Page 341 U. S. 632
-- radio, periodicals, mail, local agencies -- are open.
[
Footnote 11] Furthermore,
neither case is in as strong a position today as it was when Bunger
appealed.
See Olsen v. Nebraska, 313 U.
S. 236,
313 U. S. 243,
et seq., and
Lincoln Federal Labor Union v.
Northwestern Iron & Metal Co., 335 U.
S. 525,
335 U. S.
535.
The Constitution's protection of property rights does not make a
state or a city impotent to guard its citizens against the
annoyances of life because the regulation may restrict the manner
of doing a legitimate business. [
Footnote 12] The question of a man's right to carry on
with propriety a standard method of selling is presented here in
its most appealing form -- an assertion by a door-to-door solicitor
that the Due Process Clause of the Fourteenth Amendment does not
permit a state or its subdivisions to deprive a specialist in
door-to-door selling of his means of livelihood. But putting aside
the argument that, after all, it is the commerce,
i.e.,
sales of periodicals, and not the methods, that is petitioner's
business, we think that even a legitimate occupation may be
restricted
Page 341 U. S. 633
or prohibited in the public interest.
See the dissent
in
New State Ice Co. v. Liebmann, 285 U.
S. 262,
285 U. S. 280,
285 U. S. 303.
The problem is legislative where there are reasonable bases for
legislative action. [
Footnote
13] We hold that this ordinance is not invalid under the Due
Process Clause of the Fourteenth Amendment.
Commerce Clause. -- Nor did this Court in
Bunger consider the Green River ordinance invalid under
the Commerce Clause as an unreasonable burden upon or an
interference with interstate commerce. [
Footnote 14] As against the cases cited in Bunger's
behalf, this Court relied upon
Asbell v. Kansas,
209 U. S. 251,
209 U. S.
254-255 (allowing Kansas to have its own inspection for
cattle imported into the state, except for immediate slaughter);
Savage v. Jones, 225 U. S. 501,
225 U. S. 525
(allowing a state to regulate the sale and require a formula for
stock feeds);
Hartford Accident & Indemnity Co. v.
Illinois, 298 U. S. 155,
298 U. S. 158
(upholding an Illinois statute requiring commission merchants to
keep record of out-of-state consignments and obtain a license and
give a bond). [
Footnote
15]
Page 341 U. S. 634
Appellant does not, of course, argue that the Commerce Clause
forbids all local regulation of solicitation for interstate
business.
"Under our constitutional system, there necessarily remains to
the States, until Congress acts, a wide range for the permissible
exercise of power appropriate to their territorial jurisdiction
although interstate commerce may be affected. . . . States are thus
enabled to deal with local exigencies and to exert, in the absence
of conflict with federal legislation, an essential protective
power. [
Footnote 16]"
Such state power has long been recognized. [
Footnote 17] Appellant argues that the ordinance
violates the Commerce Clause
"because the practical operation of the ordinance, as applied to
appellant and others similarly situated, imposes
Page 341 U. S. 635
an undue and discriminatory burden upon interstate commerce,
and, in effect, is tantamount to a prohibition of such
commerce."
The attempt to secure the householder's consent is said to be
too costly, and the results negligible. The extent of this
interstate business, as stipulated, is large. [
Footnote 18] Appellant asserts that
Green
River v. Bunger, supra, is inapplicable to the commerce issue,
although the point was made and met, because the effect of the
ordinance at that date, 1936, upon commerce was "incidental"
[
Footnote 19] and because it
was decided
"before the
Page 341 U. S. 636
widespread enactment of Green River Ordinances and before their
actual and cumulative effect upon interstate commerce could
possibly be forecast."
It is urged that our recent cases of
Hood & Sons v.
DuMond, 336 U. S. 525, and
Dean Milk Co. v. Madison, 340 U.
S. 349, demonstrate that this Court will not permit
local interests to protect themselves against out-of-state
competition by curtailing interstate business. [
Footnote 20]
It was partly because the regulation in
Dean Milk Co.
discriminated against interstate commerce that it was struck
down.
"In thus erecting an economic barrier protecting a major local
industry against competition from without the State, Madison
plainly discriminates against interstate commerce. This it cannot
do, even in the exercise of its unquestioned power to protect the
health and safety of its people, if reasonable nondiscriminatory
alternatives, adequate to conserve legitimate local interests, are
available."
340 U.S. at
340 U. S. 354.
Nor does the clause as to alternatives apply to the Alexandria
ordinance. Interstate commerce itself knocks on the local door. It
is only by regulating that knock that the interests of the home may
be protected by public,
Page 341 U. S. 637
as distinct from private, action. [
Footnote 21] Likewise, in
Hood & Sons v.
DuMond, it was the discrimination against out-of-state dealers
that invalidated the order refusing a license to buy milk to an
out-of-state distributor. [
Footnote 22] Where no discrimination existed, in a
somewhat similar situation, we upheld the state regulation as a
permissible burden on commerce. [
Footnote 23]
See in accord, Panhandle Eastern Pipe
Line Co. v. Michigan Pub. Serv. Comm'n, 341 U.
S. 329,
341 U. S.
336.
We recognize the importance to publishers of our many
periodicals of the house-to-house method of selling by
solicitation. As a matter of constitutional law, however, they, in
their business operations, are in no different position so far as
the Commerce Clause is concerned than the sellers of other wares.
[
Footnote 24] Appellant, as
their representative
Page 341 U. S. 638
or in his own right as a door-to-door canvasser, is no more free
to violate local regulations to protect privacy than are other
solicitors. As we said above, the usual methods of seeking business
are left open by the ordinance. That such methods do not produce as
much business as house-to-house canvassing is, constitutionally,
immaterial, and a matter for adjustment at the local level in the
absence of federal legislation.
Cf. Prudential Ins. Co. v.
Benjamin, 328 U. S. 408.
Taxation that threatens interstate commerce with prohibition or
discrimination is bad,
Nippert v. Richmond, 327 U.
S. 416,
327 U. S. 434,
but regulation that leaves out-of-state sellers on the same basis
as local sellers cannot be invalid for that reason.
While taxation and licensing of hawking or peddling, defined as
selling and delivering in the state, has long been thought to show
no violation of the Commerce Clause, solicitation of orders with
subsequent interstate shipment has been immune from such an
exaction. [
Footnote 25]
These decisions have been explained by this Court as embodying a
protection of commerce against discrimination made most apparent by
fixed-sum licenses regardless of sales. [
Footnote 26] Where the legislation is not an added
financial burden upon sales in commerce or an exaction for the
privilege of doing interstate commerce but a regulation of local
matters, different considerations apply.
We think Alexandria's ordinance falls in the classification of
regulation. The economic effects on interstate commerce in
door-to-door soliciting cannot be gainsaid.
Page 341 U. S. 639
To solicitors so engaged, ordinances such as this compel the
development of a new technique of approach to prospects. Their
local retail competitors gain advantages from the location of their
stores and investments in their stock, but the solicitor retains
his flexibility of movement and freedom from heavy investment.
The general use of the Green River type of ordinance shows its
adaptation to the needs of the many communities that have enacted
it. We are not willing even to appraise the suggestion, unsupported
in the record, that such wide use springs predominantly from the
selfish influence of local merchants.
Even before this Court's decision in
Martin v.
Struthers, 319 U. S. 141,
holding invalid, when applied to a person distributing leaflets
advertising a religious meeting, an ordinance of the City of
Struthers, Ohio, forbidding the summoning of the occupants of a
residence to the door, our less extreme cases had created comment.
See Chafee, Free Speech in the United States (1941) 406.
[
Footnote 27]
Page 341 U. S. 640
To the city council falls the duty of protecting its citizens
against the practices deemed subversive of privacy and of quiet. A
householder depends for protection on his city board, rather than
churlishly guarding his entrances with orders forbidding the
entrance of solicitors. A sign would have to be a small billboard
to make the differentiations between the welcome and unwelcome that
can be written in an ordinance once cheaply for all homes.
"The police power of a state extends beyond health, morals and
safety, and comprehends the duty, within constitutional
limitations, to protect the wellbeing and tranquility of a
community. [
Footnote
28]"
When there is a reasonable basis for legislation to protect the
social, as distinguished from the economic, welfare of a community,
it is not for this Court, because of the Commerce Clause, to deny
the exercise locally of the sovereign power of Louisiana. [
Footnote 29] Changing living
conditions or variations
Page 341 U. S. 641
in the experiences or habits of different communities may well
call for different legislative regulations as to methods and
manners of doing business. Powers of municipalities are subject to
control by the states. Their judgment of local needs is made from a
more intimate knowledge of local conditions than that of any other
legislative body. We cannot say that this ordinance of Alexandria
so burdens or impedes interstate commerce as to exceed the
regulatory powers of that city.
First Amendment. -- Finally we come to a point not
heretofore urged in this Court as a ground for the invalidation of
a Green River ordinance. This is that such an ordinance is an
abridgment of freedom of speech and the press. Only the press or
oral advocates of ideas could urge this point. It was not open to
the solicitors for gadgets or brushes. The point is not that the
press is free of the ordinary restraints and regulations of the
modern state, such as taxation or labor regulation, referred to
above at
note 24 but, as
stated in appellant's brief,
"because the ordinance places an arbitrary, unreasonable and
undue burden upon a well established and essential method of
distribution and circulation of lawful magazines and periodicals
and, in effect, is tantamount to a prohibition of the utilization
of such method."
Regulation necessarily has elements of prohibition. Thus, the
argument is not that the money-making activities of the solicitor
entitle him to go "in or upon private residences" at will, but that
the distribution of periodicals through door-to-door canvassing is
entitled to First Amendment protection. [
Footnote 30] This kind of distribution is said to be
protected because the mere fact that money is made out of the
distribution does not bar
Page 341 U. S. 642
the publications from First Amendment protection. [
Footnote 31] We agree that the fact
that periodicals are sold does not put them beyond the protection
of the First Amendment. [
Footnote 32] The selling, however, brings into the
transaction a commercial feature.
The First and Fourteenth Amendments have never been treated as
absolutes. [
Footnote 33]
Freedom of speech or press does not mean that one can talk or
distribute where, when and how one chooses. Rights other than those
of the advocates are involved. By adjustment of rights, we can have
both full liberty of expression and an orderly life.
The case that comes nearest to supporting appellant's contention
is
Martin v. Struthers, 319 U. S. 141.
There, a municipal ordinance forbidding anyone summoning the
occupants of a residence to the door to receive advertisements was
held invalid as applied to the free distribution of dodgers
"advertising a religious meeting." Attention was directed in
note 1 of that case to the fact
that the ordinance was not aimed "solely at commercial
advertising" It was said:
"The ordinance does not control anything but the distribution of
literature, and in that respect it substitutes the judgment of the
community for the judgment of the individual householder."
319 U.S. at
319 U. S.
143-144.
Page 341 U. S. 643
The decision to release the distributor was because:
"Freedom to distribute information to every citizen wherever he
desires to receive it is so clearly vital to the preservation of a
free society that, putting aside reasonable police and health
regulations of time and manner of distribution, it must be fully
preserved."
319 U.S. at
319 U. S.
146-147. There was dissent even to this carefully
phrased application of the principles of the First Amendment. As no
element of the commercial entered into this free solicitation and
the opinion was narrowly limited to the precise fact of the free
distribution of an invitation to religious services, we feel that
it is not necessarily inconsistent with the conclusion reached in
this case.
In
Marsh v. Alabama, 326 U. S. 501, and
Tucker v. Texas, 326 U. S. 517,
[
Footnote 34] a state was
held by this Court unable to punish for trespass, after notice
under a state criminal statute, certain distributors of printed
matter, more religious than commercial. The statute was held
invalid under the principles of the First Amendment. In the
Marsh case it was a private corporation, in the
Tucker case, the United States, that owned the property
used as permissive passways in company and government-owned towns.
In neither case was there dedication to public use, but it seems
fair to say that the permissive use of the ways was considered
equal to such dedication. Such protection was not extended to
colporteurs offending against similar state trespass laws by
distributing, after notice to desist, like publications to the
tenants in a private apartment house.
Hall v. Virginia,
188 Va. 72, 49 S.E.2d 369, appeal, after conviction, on the ground
of denial of First Amendment rights, dismissed on motion of
appellee
Page 341 U. S. 644
to dismiss because of lack of substance in the question, 335
U.S. 875, 912;
see note
2 supra.
Since it is not private individuals, but the local and federal
governments, that are prohibited by the First and Fourteenth
Amendments from abridging free speech or press,
Hall v.
Virginia does not rule a conviction for trespass after notice
by ordinance. However, if, as we have shown above, p.
341 U. S. 640,
a city council may speak for the citizens on matters subject to the
police power, we would have in the present prosecution the
time-honored offense of trespass on private grounds after notice.
Thus, the
Marsh and
Tucker cases are not
applicable here.
This makes the constitutionality of Alexandria's ordinance turn
upon a balancing of the conveniences between some householders'
desire for privacy and the publisher's right to distribute
publications in the precise way that those soliciting for him think
brings the best results. The issue brings into collision the rights
of the hospitable housewife, peering on Monday morning around her
chained door with those of Mr. Breard's courteous, well trained but
possibly persistent solicitor, offering a bargain on culture and
information through a joint subscription to the Saturday Evening
Post, Pic and Today's Woman. Behind the housewife are many
housewives and homeowners in the towns where Green River ordinances
offer their aid. Behind Mr. Breard are "Keystone," with an annual
business of $5,000,000 in subscriptions, and the periodicals, with
their use of house-to-house canvassing to secure subscribers for
their valuable publications, together with other housewives who
desire solicitors to offer them the opportunity, and remind and
help them, at their doors, to subscribe for publications.
Subscriptions may be made by anyone interested in receiving the
magazines without the annoyances of house-to-house canvassing. We
think those communities that
Page 341 U. S. 645
have found these methods of sale obnoxious may control them by
ordinance. It would be, it seems to us, a misuse of the great
guarantees of free speech and free press to use those guarantees to
force a community to admit the solicitors of publications to the
home premises of its residents. We see no abridgment of the
principles of the First Amendment in this ordinance.
Affirmed.
[
Footnote 1]
Restatement of Torts, § 167; Cooley, Torts (4th ed.) § 248.
[
Footnote 2]
Hall v. Commonwealth of Virginia, 188 Va. 72, 49 S.E.2d
369,
appeal dismissed, 335 U.S. 875; statutes collected,
Martin v. Struthers, 319 U. S. 141,
319 U. S. 147,
note 10
[
Footnote 3]
"We must assume that the practice existed in the town as the
first section states, and that it had become annoying and
disturbing and objectionable to at least some of the citizens. We
think like practices have become so general and common as to be of
judicial knowledge, and that the frequent ringing of doorbells of
private residences by itinerant vendors and solicitors is, in fact,
a nuisance to the occupants of homes. It is not appellee and its
solicitors and their methods alone that must be considered in
determining the reasonableness of the ordinance, but many others,
as well, who seek in the same way to dispose of their wares. One
follows another, until the ringing doorbells disturb the quietude
of the home and become a constant annoyance."
Town of Green River v. Fuller Brush Co., 65 F.2d 112,
114.
[
Footnote 4]
Town of Green River v. Bunger, 50 Wyo. 52, 70,
58 P.2d 456,
462;
cf. Real Silk Hosiery Mills v. Richmond, 298 F.
126.
[
Footnote 5]
The ordinance now under consideration, § 3, does not apply to
"the sale, or soliciting of orders for the sale, of milk, dairy
products, vegetables, poultry, eggs and other farm and garden
produce. . . ." Appellant makes no point against the present
ordinance on the ground of invalid classification.
Cf. Tigner
v. Texas, 310 U. S. 141;
Williams v. Arkansas, 217 U. S. 79,
217 U. S.
90.
[
Footnote 6]
The validity of Green River ordinances has also been considered
in a number of state courts. Five states -- Colorado, Louisiana (in
cases previous to the instant one), New Mexico, New York, and
Wyoming -- have upheld the ordinance against objections that it was
beyond the scope of the police power, deprived vendors of property
rights without due process of law, deprived them of the equal
protection of the laws, and infringed upon the Commerce Clause and
the First and Fourteenth Amendments.
McCormick v.
Montrose, 105 Colo. 493, 99 P.2d 969;
Shreveport v.
Cunningham, 190 La. 481, 482, 182 So. 649;
City of
Alexandria v. Jones, 216 La. 923,
45 So.
2d 79;
Green v. Gallup, 46 N.M. 71, 120 P.2d 619;
People v. Bohnke, 287 N.Y. 154, 38 N.E.2d 478;
Green
River v. Bunger, 50 Wyo. 52,
58 P.2d
456.
Eleven states, on the other hand, have held such ordinances
invalid. All of these states acted in part, at least, on nonfederal
grounds, and the only federal constitutional argument, which was
considered by three states, was that based on the Due Process
Clause. No state court, in voiding the ordinance, has reached the
Commerce Clause or the First Amendment issues urged here. The
principal grounds relied on have been that the prohibited conduct
amounted, at most, only to a private nuisance, and not a public
one; that there was no showing of injury to public health or safety
by the prohibited conduct; that there was a vested right in a
lawful occupation, so that it was subject only to regulation, but
not to prohibition; and that the ordinance was beyond the delegated
powers of the municipality.
Prior v. White, 132 Fla. 1,
180 So. 347 (not more than a private nuisance);
Clay v.
Matthews, 185 Ga. 279, 194 S.E. 172 (affirming without opinion
by an evenly divided court);
DeBerry v. LaGrange, 62
Ga.App. 74, 8 S.E.2d 146 (not a nuisance; invades an inalienable
right to the occupation of soliciting);
Osceola v. Blair,
231 Iowa 770, 2 N.W.2d 83 (not a nuisance, deprives persons of a
property right in their occupation);
City of Mt. Sterling v.
Donaldson Baking Co., 287 Ky. 781, 155 S.W.2d 237 (not a
public nuisance, beyond the scope of the municipal police power);
Jewel Tea Co. v. Bel Air, 172 Md. 536, 192 A. 417 (not a
nuisance, nor within delegated powers of municipality);
Jewel
Tea Co. v. Geneva, 137 Neb. 768, 291 N.W. 664 (not a public
nuisance, arbitrary, violates Due Process Clause, citing
Jay
Burns Baking Co. v. Bryan, 264 U. S. 504);
N.J. Good Humor, Inc. v. Board of Commissioners, 124
N.J.L. 162, 11 A.2d 113 (not a valid police regulation, beyond
powers of municipality);
McAlester v. Grand Union Tea Co.,
186 Okl. 487,
98 P.2d 924
(only a private nuisance);
City of Orangeburg v. Farmer,
181 S.C. 143, 186 S.E. 783 (unreasonable, prohibits a lawful
occupation, in violation of state and federal due process, enacted
with improper motive);
Ex parte Faulkner, 143 Tex.Cr.R.
272, 158 S.W.2d 525 (beyond the powers of the municipality);
White v. Town of Culpeper, 172 Va. 630, 1 S.E.2d 269 (not
a public nuisance).
The ordinances in the
Bel Air and
Culpeper
cases contained discriminatory provisions not involved in the
instant case. It should be noted also that, while New York upheld
the ordinance in
Bohnke, supra, as applied to distribution
of religious tracts, that case was decided before this Court's
decision in
Martin v. Struthers, 319 U.
S. 141. Enforcement of Green River ordinances has
subsequently been enjoined as against members of the Jehovah's
Witnesses sect in
Donley v. Colorado
Springs, 40 F. Supp.
15, and
Zimmerman v. Village of London, 38 F. Supp.
582.
[
Footnote 7]
He cited:
Real Silk Hosiery Mills v. Portland,
268 U. S. 325;
DiSanto v. Pennsylvania, 273 U. S. 34;
International Textbook Co. v. Pigg, 217 U. S.
91;
Rogers v. Arkansas, 227 U.
S. 401;
Robbins v. Shelby Taxing District,
120 U. S. 489;
Baldwin v. G. A. F. Seelig, Inc., 294 U.
S. 511;
Stewart v. Michigan, 232 U.
S. 665.
[
Footnote 8]
An ordinance forbidding the sale of cigarettes without a license
was upheld.
"Regulations respecting the pursuit of a lawful trade or
business are of very frequent occurrence in the various cities of
the country, and what such regulations shall be and to what
particular trade, business or occupation they shall apply are
questions for the State to determine, and their determination comes
within the proper exercise of the police power by the State, and
unless the regulations are so utterly unreasonable and extravagant
in their nature and purpose that the property and personal rights
of the citizen are unnecessarily, and in a manner wholly arbitrary,
interfered with or destroyed without due process of law, they do
not extend beyond the power of the State to pass, and they form no
subject for Federal interference."
177 U.S. at
177 U. S.
188.
[
Footnote 9]
A statute making it unlawful to refuse a purchaser of a ticket
admission to a place of public entertainment except in certain
circumstances relating to drunkenness and vice was upheld.
"Does the statute deprive the defendant of any property right
without due process of law? We answer this question in the
negative. Decisions of this Court, familiar to all, and which need
not be cited, recognize the possession, by each State, of powers
never surrendered to the general government, which powers the
state, except as restrained by its own Constitution or the
Constitution of the United States, may exert not only for the
public health, the public morals, and the public safety, but for
the general or common good, for the wellbeing, comfort, and good
order of the people."
204 U.S. at
204 U. S.
363.
"Such a regulation, in itself just, is likewise promotive of
peace and good order among those who attend places of public
entertainment or amusement."
204 U.S. at
204 U. S. 364.
[
Footnote 10]
The following sections of a statute of Arkansas, Acts 1907, Act
No. 236, were upheld:
"Sec. 1. That it shall be unlawful for any person or persons,
except as hereinafter provided in § 2 of this act, to drum or
solicit business or patronage for any hotel, lodging house, eating
house, bath house, physician, masseur, surgeon, or other medical
practitioner, on the trains, cars, depots of any railroad or common
carrier operating or running within the State of Arkansas."
"Sec. 2. That it shall be unlawful for any railroad or common
carrier operating a line within the State of Arkansas knowingly to
permit its trains, cars or depots within the State to be used by
any person or persons for drumming or soliciting business or
patronage for any hotel, lodging house, eating house, bath house,
physician, masseur, surgeon, or other medical practitioner, or
drumming or soliciting for any business or profession whatsoever; .
. ."
217 U.S.
217 U. S.
86.
This Court quoted the Supreme Court of Arkansas as saying:
"Drummers who swarm through the trains soliciting for
physicians, bath houses, hotels, etc., make existence a burden to
those who are subjected to their repeated solicitations. It is true
that the traveler may turn a deaf ear to these importunities, but
this does not render it any the less unpleasant and annoying. The
drummer may keep within the law against disorderly conduct and
still render himself a source of annoyance to travelers by his much
beseeching to be allowed to lead the way to a doctor or a
hotel."
217 U.S.
217 U. S.
89.
[
Footnote 11]
But cf. Jensen, Burdening Interstate Direct Selling, 12
Rocky Mtn.L.Rev. 257, 275:
"To disclaim this economic effect of upholding the ordinance and
to suggest other methods of merchandising to direct selling
businesses short of local retailing, as was done by the Tenth
Circuit Court of Appeals, shows a woeful lack of knowledge of the
actual problems of 'direct to consumer' merchandising."
[
Footnote 12]
Nebbia v. New York, 291 U. S. 502,
291 U. S.
523:
"Under our form of government, the use of property and the
making of contracts are normally matters of private, and not of
public, concern. The general rule is that both shall be free of
governmental interference. But neither property rights nor contract
rights are absolute, for government cannot exist if the citizen may
at will use his property to the detriment of his fellows, or
exercise his freedom of contract to work them harm. Equally
fundamental with the private right is that of the public to
regulate it in the common interest."
Railway Express Agency v. New York, 336 U.
S. 106;
Daniel v. Family Security Life Ins.
Co., 336 U. S. 220.
[
Footnote 13]
Arizona v. California, 283 U.
S. 423,
283 U. S.
454-455;
Henneford v. Silas Mason Co.,
300 U. S. 577,
300 U. S.
586.
[
Footnote 14]
Constitution, Art. I, § 8, cl. 3.
[
Footnote 15]
The cases cited for Bunger may be easily distinguished. The
cases of the Shelby County Taxing District,
Rogers v.
Arkansas, 227 U. S. 401, and
Stewart v. Michigan, 232 U. S. 665,
relate to taxes upon or licenses to do an interstate business. The
same is true of
Real Silk Hosiery Mills v. Portland,
268 U. S. 325.
There is, however, in this latter case, a statement that should be
noticed:
"Nor can we accept the theory that an expressed purpose to
prevent possible frauds is enough to justify legislation which
really interferes with the free flow of legitimate interstate
commerce.
See Shafer v. Farmers' Grain Co., 268 U. S.
189."
268 U.S. at
268 U. S. 336.
That should be read as a comment on an ordinance requiring a
license and a bond to carry on interstate business.
Cf. Parker
v. Brown, 317 U. S. 341,
317 U. S.
361.
The statute held invalid in the
International Textbook
case,
217 U. S. 91, was
one construed to require a license to transact interstate business.
Baldwin v. G.A.F. Seelig, Inc., 294 U.
S. 511, held invalid a state law prohibiting the sale of
milk imported from another state unless the price paid in the
selling state reached the minimum price requirement of sellers in
the regulating state. The
DiSanto case,
273 U. S.
34, holding invalid as a direct burden on commerce a
state law requiring steamship agents to procure a license, can no
longer be cited as authority for such a ruling.
California v.
Thompson, 313 U. S. 109,
313 U. S.
115.
None of these cases reaches the problem, here under
consideration, of local regulation of solicitor's conduct.
[
Footnote 16]
Kelly v. Washington, 302 U. S. 1,
302 U. S.
9-10.
[
Footnote 17]
Cooley v. Board of
Wardens, 12 How. 299;
Emert v. Missouri,
156 U. S. 296;
Austin v. Tennessee, 179 U. S. 343;
Minnesota Rate Cases, 230 U. S. 352,
230 U. S. 402,
230 U. S. 408;
South Carolina Dept. v. Barnwell Bros., 303 U.
S. 177,
303 U. S. 187;
California v. Thompson, 313 U. S. 109;
Parker v. Brown, 317 U. S. 341,
317 U. S. 359,
317 U. S. 362;
Toomer v. Witsell, 334 U. S. 385,
334 U. S. 394;
Panhandle Eastern Pipe Line Co. v. Michigan Pub.Serv.
Comm., 341 U. S. 329.
"As has been so often stated but nevertheless seems to require
constant repetition, not all burdens upon commerce, but only undue
or discriminatory ones, are forbidden. For, though 'interstate
business must pay its way,' a State consistently with the commerce
clause cannot put a barrier around its borders to bar out trade
from other States, and thus bring to naught the great
constitutional purpose of the fathers in giving to Congress the
power 'To regulate Commerce with foreign Nations, and among the
several States. . . .' Nor may the prohibition be accomplished in
the guise of taxation which produces the excluding or
discriminatory effect."
Nippert v. Richmond, 327 U. S. 416,
327 U. S.
425-426.
And cf. Nelson v. Sears, Roebuck & Co.,
312 U. S. 359,
where the maintenance of retail stores within a state by a
corporation engaged in direct mail selling was held to permit the
state to tax such sales to its residents, even though none of the
corporation's agents within the state had any connection with the
sales.
[
Footnote 18]
"The solicitation of subscriptions in the field regularly
accounts for from 50% to 60% of the total annual subscription
circulation of nationally distributed magazines which submit
verified circulation reports to the Audit Bureau of Circulations. .
. . During the period from 1925 to date, the average circulation
per issue of such magazines attributable to field subscription
solicitation . . . has amounted to more than 30% of the total
average annual circulation per issue. . . ."
The total subscription value obtained by Keystone Readers
Service, appellant's employer, in 1948 was $5,319,423.40. There is
a national association of magazine publishers, a trade organization
whose members publish some 400 nationally distributed magazines
with a combined circulation of 140 million copies. This association
sponsors and maintains a central registry plan to which agencies
like Keystone, soliciting subscriptions, belong.
[
Footnote 19]
"Incidental" as a test has not continued as a useful manner for
determining the validity of local regulation of matters affecting
interstate commerce.
"Such regulations by the state are to be sustained not because
they are 'indirect,' rather than 'direct,' . . . not because they
control interstate activities in such a manner as only to affect
the commerce, rather than to command its operations. But they are
to be upheld because, upon a consideration of all the relevant
facts and circumstances, it appears that the matter is one which
may appropriately be regulated in the interest of the safety,
health and wellbeing of local communities, and which, because of
its local character and the practical difficulties involved, may
never be adequately dealt with by Congress."
Parker v. Brown, 317 U. S. 341,
317 U. S.
362-363.
[
Footnote 20]
So far as this argument seeks to blame the passage of the
ordinance on local retailers, we disregard it. Such arguments
should be presented to legislators, not to courts.
Arizona v.
California, 283 U. S. 423,
283 U. S. 455.
See 341 U. S. 341
U.S. 639,
supra.
[
Footnote 21]
340 U.S. at
340 U. S.
354-355:
"If the City of Madison prefers to rely upon its own officials
for inspection of distant milk sources, such inspection is readily
open to it without hardship for it could charge the actual and
reasonable cost of such inspection to the importing producers and
processors."
[
Footnote 22]
336 U. S. 336 U.S.
525,
336 U. S.
531-532;
336 U. S.
533:
"It [the opinion in
Baldwin v. G.A.F. Seelig, Inc.,
294 U. S.
511] recognized, as do we, broad power in the State to
protect its inhabitants against perils to health or safety,
fraudulent traders and highway hazards, even by use of measures
which bear adversely upon interstate commerce. But it laid repeated
emphasis upon the principle that the State may not promote its own
economic advantages by curtailment or burdening of interstate
commerce."
"
* * * *"
"This distinction between the power of the State to shelter its
people from menaces to their health or safety and from fraud, even
when those dangers emanate from interstate commerce, and its lack
of power to retard, burden or constrict the flow of such commerce
for their economic advantage, is one deeply rooted in both our
history and our law."
[
Footnote 23]
Milk Control Board v. Eisenberg Farm Products,
306 U. S. 346.
[
Footnote 24]
Giragi v. Moore, 301 U.S. 670, 48 Ariz. 33, 58 P.2d
1249, 49 Ariz. 74, 64 P.2d 819;
Associated Press v. Labor
Board, 301 U. S. 103,
301 U. S.
132-133;
Associated Press v. United States,
326 U. S. 1,
326 U. S. 7.
[
Footnote 25]
Emert v. Missouri, 156 U. S. 296;
see Commonwealth v. Ober, 12 Cush. (Mass.) 493;
Crenshaw v. Arkansas, 227 U. S. 389,
227 U. S.
399-400;
Rogers v. Arkansas, 227 U.
S. 401;
Caskey Baking Co. v. Virginia,
313 U. S. 117,
313 U. S.
119.
[
Footnote 26]
McGoldrick v. Berwind-White Co., 309 U. S.
33,
309 U. S. 55-57;
Nippert v. Richmond, 327 U. S. 416,
327 U. S.
421-425.
[
Footnote 27]
"House-to-house canvassing raises more serious problems. Of all
the methods of spreading unpopular ideas, this seems the least
entitled to extensive protection. The possibilities of persuasion
are slight compared with the certainties of annoyance. Great as is
the value of exposing citizens to novel views, home is one place
where a man ought to be able to shut himself up in his own ideas if
he desires. There, he should be free not only from unreasonable
searches and seizures, but also from hearing uninvited strangers
expound distasteful doctrines. A doorbell cannot be disregarded
like a handbill. It takes several minutes to ascertain the purpose
of a propagandist, and at least several more to get rid of him. . .
. Moreover, hospitable housewives dislike to leave a visitor on a
windy doorstep while he explains his errand, yet, once he is inside
the house, robbery or worse may happen. So peddlers of ideas and
salesmen of salvation in odd brands seem to call for regulation as
much as the regular run of commercial canvassers. . . . Freedom of
the home is as important as freedom of speech. 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 apartment house."
[
Footnote 28]
Kovacs v. Cooper, 336 U. S. 77,
336 U. S.
83.
[
Footnote 29]
United States v. Carolene Products Co., 304 U.
S. 144,
304 U. S.
154:
"But, by their very nature, such inquiries, where the
legislative judgment is drawn in question, must be restricted to
the issue whether any state of facts either known or which could
reasonably be assumed affords support for it. Here, the demurrer
challenges the validity of the statute on its face, and it is
evident from all the considerations presented to Congress, and
those of which we may take judicial notice, that the question is at
least debatable whether commerce in filled milk should be left
unregulated, or in some measure restricted, or wholly prohibited.
As that decision was for Congress, neither the finding of a court
arrived at by weighing the evidence, nor the verdict of a jury can
be substituted for it."
See Jamison v. Texas, 318 U. S. 413;
Skiriotes v. Florida, 313 U. S. 69,
313 U. S. 79;
Hebert v. Louisiana, 272 U. S. 312,
272 U. S.
316.
[
Footnote 30]
Cf. Martin v. Struthers, 319 U.
S. 141,
319 U. S. 146;
Lovell v. Griffin, 303 U. S. 444,
303 U. S.
452.
[
Footnote 31]
Thomas v. Collins, 323 U. S. 516,
323 U. S.
531.
[
Footnote 32]
Cf. Kovacs v. Cooper, note 14; concurrence at S. 77,
note 14; concurrence at S. 88|>88,
note 14; concurrence at |
note 14; concurrence at S. 90|>90.
See note 24
supra.
[
Footnote 33]
Cantwell v. Connecticut, 310 U.
S. 296,
310 U. S. 303,
310 U. S. 304;
Cox v. New Hampshire, 312 U. S. 569;
Chaplinsky v. New Hampshire, 315 U.
S. 568;
Murdock v. Pennsylvania, 319 U.
S. 105,
319 U. S.
109-110;
Prince v. Massachusetts, 321 U.
S. 158,
321 U. S. 166;
Saia v. New York, 334 U. S. 558,
334 U. S. 561;
Feiner v. New York, 340 U. S. 315.
See the collection of cases in
Niemotko v.
Maryland, 340 U. S. 268, at
340 U. S. 276
ff.
[
Footnote 34]
These cases called forth numerous notes,
e.g., 46
Col.L.Rev. 457; 34 Georgetown L.J. 244; 44 Mich.L.Rev. 848.
MR. CHIEF JUSTICE VINSON, with whom MR. JUSTICE DOUGLAS, joins,
dissenting.
The ordinance before us makes criminal the hitherto legitimate
business practice of soliciting magazine subscriptions from door to
door without prior invitation of the homeowner. Looking only to the
face of that ordinance, the Court sustains it as against objections
under the Due Process Clause, the Commerce Clause, and the First
Amendment. I dissent, and would reverse the judgment below without
reaching all of the issues raised, for, in my opinion, the
ordinance constitutes an undue and discriminatory burden on
interstate commerce.
The Court holds that, because the "ordinance falls in the
classification of regulation," the city council is free to burden
interstate commerce.
Ante, p.
341 U. S. 638.
In my view, the ordinance is a flat prohibition of solicitation.
The Louisiana Supreme Court recognized this fact when it
characterized the ordinance as "provid[ing] for a blanket
prohibition of solicitation without invitation, save for food
vendors, who are specifically exempt." 217 La. at 828, 47 So. 2d at
556. Unlike this Court, the state court acknowledged the
prohibitory character of the ordinance in rejecting appellant's
claim under the Commerce Clause in the following portion of its
opinion:
"The ordinance imposes no tax, no license. It is a prohibition
of an activity on local territory,
Page 341 U. S. 646
involving the
problematical sale of a commodity
originating in another state, which is actually distributed through
the United States Mails. It imposes no burden on the distribution
itself, nor on the manufacture of the commodity, nor on any phase
of the transportation from one place to another of that
commodity."
(Emphasis in original.) 217 La. at 829, 47 So. 2d at 556.
At least since the decision in
Robbins v. Shelby County
Taxing District, 120 U. S. 489,
120 U. S. 497
(1887), this Court has regarded the process of soliciting orders
for goods to be shipped across state lines as being interstate
commerce as much as the transportation itself. Under the line of
cases following this principle, reexamined and reaffirmed in
Nippert v. Richmond, 327 U. S. 416
(1946), the process of solicitation for interstate commerce cannot
be subjected to taxes, licenses or bonding requirements that, in
their practical operation, discriminate against or unduly burden
interstate commerce. The Court does not today purport to overrule
this line of decisions. And it acknowledges, as it must, that the
Court has sharply distinguished the process of solicitation of
interstate business from the essentially local retailing operations
of hawking and peddling.
See Wagner v. Covington,
251 U. S. 95,
251 U. S.
103-104 (1919), and cases cited therein. Nor does the
opinion dispute that this ordinance has a severe economic impact
upon the substantial interstate business of appellant's employer,
as well as the entire magazine industry, which derives 50% to 60%
of its annual subscription circulation from the very type of
solicitation prohibited by this ordinance. I disagree with the
Court in its holding that an ordinance imposing a "blanket
prohibition" can be sustained under the Commerce Clause as mere
regulation.
Page 341 U. S. 647
Congress is given the power "To regulate commerce . . . among
the several States." U.S.Const. Art. I, § 8, cl. 3. The doctrine of
Cooley v. Board of Port
Wardens, 12 How. 299 (1851), permits a state to
exercise its police powers in a manner impinging upon interstate
commerce only where the subject of regulation is essentially local,
and then only when there is no discrimination against or undue
burden on interstate commerce. This is an approach grounded in the
practical, an approach which imposes upon this Court the
"duty to determine whether the statute [or ordinance] under
attack, whatever its name may be, will in its practical operation
work discrimination against interstate commerce."
Best & Co. v. Maxwell, 311 U.
S. 454,
311 U. S.
455-456 (1940). That this ordinance, on its face,
professes to protect the home does not relieve us of our duty to
weigh the practical effect of the ordinance upon interstate
commerce. Lack of discrimination on its face has not heretofore
been regarded as sufficient to sustain an ordinance without inquiry
into its practical effects upon interstate commerce.
E.g., Dean
Milk Co. v. Madison, 340 U. S. 349,
340 U. S. 354
(1951) (prohibition against sale of milk pasteurized more than five
miles from city);
Real Silk Hosiery Mills v. Portland,
268 U. S. 325,
268 U. S. 336
(1925) (requirement that solicitors file bond);
Minnesota v.
Barber, 136 U. S. 313
(1890) (statute requiring inspection of meat within state).
In passing upon other ordinances affecting solicitors, this
Court has not hesitated in noting the economic fact that "the
real competitors' of [solicitors] are, among others, the local
retail merchants." Nippert v. Richmond, supra, at
327 U. S. 433,
citing Best & Co. v. Maxwell, supra. See also
Robbins v. Shelby County Taxing District, supra, at
120 U. S. 498.
The Court acknowledges "effective competition" between solicitors
and the local retail merchants, ante, p. 341 U. S. 627,
but is deliberate in its refusal to appraise the
Page 341 U. S. 648
practical effect of this ordinance as a deterrent to interstate
commerce,
ante, p.
341 U. S. 639.
I think it plain that a "blanket prohibition" upon appellant's
solicitation discriminates against and unduly burdens interstate
commerce in favoring local retail merchants. "Whether or not it was
so intended, those are its necessary effects."
Nippert v.
Richmond, supra, at
327 U. S. 434.
The fact that this ordinance exempts solicitation by the
essentially local purveyors of farm products shows that local
economic interests are relieved of the burdensome effects of the
ordinance. No one doubts that protection of the home is a proper
subject of legislation, but that end can be served without
prohibiting interstate commerce. Our prior decisions cannot be
avoided by limiting their authority to the limited categories of
tax and license. On the contrary, we must guard against state
action which, "in any form or under any guise, directly burden[s]
the prosecution of interstate business."
Baldwin v. G.A.F.
Seelig, Inc., 294 U. S. 511,
294 U. S. 522
(1935), citing
International Textbook Co. v. Pigg,
217 U. S. 91,
217 U. S. 112
(1910).
See also Hood & Sons v. DuMond, 336 U.
S. 525 (1949). I cannot agree that this Court should
defer to the City Council of Alexandria as though we had before us
an act of Congress regulating commerce.
See 341
U. S. 640.
"[T]his Court, and not the state legislature [or the city
council], is, under the commerce clause, the final arbiter of the
competing demands of state [or local] and national interests."
Southern Pacific Co. v. Arizona, 325 U.
S. 761,
325 U. S. 769
(1945).
The Court relies upon
Bunger v. Green River, 300 U.S.
638 (1937), where the conviction of a Fuller Brush man was
sustained under an ordinance akin to the one before us. The order
was entered without argument, without opinion, and with citation of
the three cases discussed by the Court,
ante, p.
341 U. S. 633,
each of which cases sustained as "incidental" to interstate
commerce state action regulating
Page 341 U. S. 649
local inspection and feeding of cattle, and the sale of produce.
*
I would apply to this case the principles so recently announced
in
Dean Milk Co. v. Madison, 340 U.
S. 349 (1951). In the course of its discussion of our
Dean Milk decision, the Court remarks that, in the instant
case "[i]nterstate commerce itself knocks on the local door."
Ante, p.
341 U. S. 636.
As I read the prior decisions of this Court, that fact, far from
justifying avoidance of
Dean Milk, buttresses my
conclusion that the ordinance cannot, consistently with the
Commerce Clause, be applied to appellant.
* It is passing strange that, after relying on three cases
grounded solely on "incidental" as a test of validity under the
Commerce Clause, the Court should itself state that such a test
"has not continued as a useful manner for determining the validity
of local regulation of matters affecting interstate commerce."
Ante, p. 635,
n
19.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins,
dissenting.
On May 3, 1943, this Court held that cities and states could not
enforce laws which impose flat taxes on the privilege of
door-to-door sales of religious literature,
Jones v.
Opelika, 319 U. S. 103;
Murdock v. Pennsylvania, 319 U. S. 105, or
which make it unlawful for persons to go from home to home knocking
on doors and ringing doorbells to invite occupants to religious,
political or other kinds of public meetings.
Martin v.
Struthers, 319 U. S. 141.
Over strong dissents, these laws were held to invade liberty of
speech, press and religion in violation of the First and Fourteenth
Amendments. Today, a new majority adopts the position of the former
dissenters and sustains a city ordinance forbidding door-to-door
solicitation of subscriptions to the Saturday Evening Post,
Newsweek and other magazines. Since this decision cannot
Page 341 U. S. 650
be reconciled with the
Jones, Murdock, and
Martin
v. Struthers cases, it seems to me that good judicial practice
calls for their forthright overruling. But whether this is done or
not, it should be plain that my disagreement with the majority of
the Court as now constituted stems basically from a different
concept of the reach of the constitutional liberty of the press,
rather than from any difference of opinion as to what former cases
have held.
Today's decision marks a revitalization of the judicial views
which prevailed before this Court embraced the philosophy that the
First Amendment gives a preferred status to the liberties it
protects. I adhere to that preferred position philosophy. It is my
belief that the freedom of the people of this Nation cannot survive
even a little governmental hobbling of religious or political
ideas, whether they be communicated orally or through the
press.
The constitutional sanctuary for the press must necessarily
include liberty to publish and circulate. In view of our economic
system, it must also include freedom to solicit paying subscribers.
Of course, homeowners can, if they wish, forbid newsboys, reporters
or magazine solicitors to ring their doorbells. But when the
homeowner himself has not done this, I believe that the First
Amendment, interpreted with due regard for the freedoms it
guarantees, bars laws like the present ordinance which punish
persons who peacefully go from door to door as agents of the
press.*
* Of course, I believe that the present ordinance could
constitutionally be applied to a "merchant" who goes from door to
door "selling pots."
Compare Martin v. Struthers,
319 U. S. 141,
319 U. S. 144,
with Valentine v. Chrestensen, 316 U. S.
52.