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EVERSON v. BOARD OF EDUCATION OF EWING TP., 330 U.S. 1 (1947)
330 U.S. 1
EVERSON
v.
BOARD OF EDUCATION OF EWING TP. et al.
No. 52.
Argued Nov. 20, 1946.
Decided Feb. 10, 1947.
Rehearing Denied March 10, 1947
See 330 U.S. 855 , 67 S.Ct. 962.
Appeal from the Court of Errors and Appeals of the State of New jersey. [330 U.S. 1, 2] Messrs.
Edward R. Burke and E. Hilton Jackson, both of Washington, D. C., for appellant.
Mr. William H. Speer, of Jersey City, for appellees.
[330 U.S. 1, 3]
Mr. Justice BLACK delivered the opinion of the Court.
A New Jersey statute authorizes its local school districts to make rules and contracts for the
transportation of children to and from schools. 1 The appellee, a township board of education,
acting pursuant to this statute authorized reimbursement to parents of money expended by them
for the bus transportation of their children on regular busses operated by the public transportation
system. Part of this money was for the payment of transportation of some children in the
community to Catholic parochial schools. These church schools give their students, in addition to
secular education, regular religious instruction conforming to the religious tenets and modes of
worship of the Catholic Faith. The superintendent of these schools is a Catholic priest.
The appellant, in his capacity as a district taxpayer, filed suit in a State court challenging the
right of the Board to reimburse parents of parochial school students. He [330 U.S. 1, 4] contended
that the statute and the resolution passed pursuant to it violated both the State and the Federal
Constitutions. That court held hat the legislature was without power to authorize such payment
under the State constitution. 132 N.J.L. 98, 39 A.2d 75. The New Jersey Court of Errors and
Appeals reversed, holding that neither the statute nor the resolution passed pursuant to it was in
conflict with the State constitution or the provisions of the Federal Constitution in issue. 133 N.
J.L. 350, 44 A.2d 333. The case is here on appeal under 28 U.S.C. 344(a), 28 U.S.C.A. 344(a).
Since there has been no attack on the statute on the ground that a part of its language excludes
children attending private schools operated for profit from enjoying state payment for their
transportation, we need not consider this exclusionary language; it has no relevancy to any
constitutional question here presented. 2 Furthermore, if the exclusion clause had been properly
challenged, we do not know whether New Jersey's highest court would construe its statutes as
precluding payment of the school [330 U.S. 1, 5] transportation of any group of pupils, even those
of a private school run for profit. 3 Consequently, we put to one side the question as to the
validity of the statute against the claim that it does not authorize payment for the transportation
generally of school children in New Jersey.
The only contention here is that the State statute and the resolution, in so far as they authorized
reimbursement to parents of children attending parochial schools, violate the Federal
Constitution in these two respects, which to some extent, overlap. First. They authorize the State
to take by taxation the private property of some and bestow it upon others, to be used for their
own private purposes. This, it is alleged violates the due process clause of the F urteenth
Amendment. Second. The statute and the resolution forced inhabitants to pay taxes to help
support and maintain schools which are dedicated to, and which regularly teach, the Catholic
Faith. This is alleged to be a use of State power to support church schools contrary to the
prohibition of the First Amendment which the Fourteenth Amendment made applicable to the
states.
First. The due process argument that the State law taxes some people to help others carry out
their private [330 U.S. 1, 6] purposes is framed in two phases. The first phase is that a state cannot
tax A to reimburse B for the cost of transporting his children to church schools. This is said to
violate the due process clause because the children are sent to these church schools to satisfy the
personal desires of their parents, rather than the public's interest in the general education of all
children. This argument, if valid, would apply equally to prohibit state payment for the
transportation of children to any non- public school, whether operated by a church, or any other
nongovernment individual or group. But, the New Jersey legislature has decided that a public
purpose will be served by using tax-raised funds to pay the bus fares of all school children,
including those who attend parochial schools. The New Jersey Court of Errors and Appeals has
reached the same conclusion. The fact that a state law, passed to satisfy a public need, coincides
with the personal desires of the individuals most directly affected is certainly an inadequate
reason for us to say that a legislature has erroneously appraised the public need.
It is true that this Court has, in rare instances, struck down state statutes on the ground that the
purpose for which tax-raised funds were to be expended was not a public one. Citizens' Savings
& Loan Association v. City of Topeka, 20 Wall. 655; City of Parkersburg v. Brown, 106 U.S.
487 , 1 S.Ct. 442; Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55 , 57 S.Ct. 364. But
the Court has also pointed out that this far-reaching authority must be exercised with the most
extreme caution. Green v. Frazier, 253 U.S. 233, 240 , 40 S. Ct. 499, 501. Otherwise, a state's
power to legislate for the public welfare might be seriously curtailed, a power which is a primary
reason for the existence of states. Changing local conditions create new local problems which
may lead a state's people and its local authorities to believe that laws authorizing new types of
public services are necessary to promote the general well-being [330 U.S. 1, 7] of the people. The
Fourteenth Amendment did not strip the states of their power to meet problems previously left
for individual solution. Davidson v. New Orleans, 96 U.S. 97, 103 , 104 S.; Barbier v. Connolly,
113 U.S. 27, 31 , 32 S., 5 S.Ct. 357, 360; Fallbrook Irrigation District v. Bradley, 164 U.S. 112,
157 , 158 S., 17 S.Ct. 56, 62, 63.
It is much too late to argue that legislation intended to facilitate the opportunity of children to get
a secular education serves no public purpose. Cochran v. Louisiana State Board of Education,
281 U.S. 370 , 50 S. Ct. 335; Holmes, J., in Interstate Consolidated Street Ry. Co. v.
Commonwealth of Massachusetts, 207 U.S. 79, 87 , 28 S.Ct. 26, 27, 12 Ann.Cas. 555. See
opinion of Cooley, J., in Stuart v. School District No. 1 of Village of Kalamazoo, 1878, 30 Mich.
69. The same thing is no less true of legislation to reimburse needy parents, or all parents, for
payment of the fares of their children so that they can ride in public busses to and from schools
rather than run the risk of traffic and other hazards incident to walking or 'hitchhiking.' See
Barbier v. Connolly, supra, 113 U.S. at page 31, 5 S.Ct. at page 359. See also cases collected 63
A.L.R. 413; 118 A.L.R. 806. Nor does it follow that a law has a private rather than a public
purpose because it provides that tax-raised funds will be paid to reimburse i dividuals on account
of money spent by them in a way which furthers a public program. See Carmichael v. Southern
Coal & Coke Co., 301 U.S. 495, 518 , 57 S.Ct. 868, 876, 109 A.L.R. 1327. Subsidies and loans
to individuals such as farmers and home owners, and to privately owned transportation systems,
as well as many other kinds of businesses, have been commonplace practices in our state and
national history.
Insofar as the second phase of the due process argument may differ from the first, it is by
suggesting that taxation for transportation of children to church schools constitutes support of a
religion by the State. But if the law is invalid for this reason, it is because it violates the First
Amendment's prohibition against the establishment of religion [330 U.S. 1, 8] by law. This is the
exact question raised by appellant's second contention, to consideration of which we now turn.
Second. The New Jersey statute is challenged as a 'law respecting an establishment of religion.'
The First Amendment, as made applicable to the states by the Fourteenth, Murdock v.
Commonwealth of Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870, 872, 146 A.L.R. 81, commands
that a state 'shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof.' These words of the First Amendment reflected in the minds of early Americans
a vivid mental picture of conditions and practices which they fervently wished to stamp out in
order to preserve liberty for themselves and for their posterity. Doubtless their goal has not been
entirely reached; but so far has the Nation moved toward it that the expression 'law respecting an
establishment of religion,' probably does not so vividly remind present-day Americans of the
evils, fears, and political problems that caused that expression to be written into our Bill of
Rights. Whether this New Jersey law is one respecting the 'establishment of religion' requires an
understanding of the meaning of that language, particularly with respect to the imposition of
taxes. Once again,4 therefore, it is not inappropriate briefly to review the background and
environment of the period in which that constitutional language was fashioned and adopted.
A large proportion of the early settlers of this country came here from Europe to escape the
bondage of laws which compelled them to support and attend government favored churches. The
centuries immediately before and contemporaneous with the colonization of America had been
filled with turmoil, civil strife, and persecutions, generated in large part by established sects
determined to [330 U.S. 1, 9] maintain their absolute political and religious supremacy. With the
power of government supporting them, at various times and places, Catholics had persecuted
Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant
sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and
all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever
religious group happened to be on top and in league with the government of a particular time and
place, men and women had been fined, cast in jail, cruelly tortured, and killed. Among the
offenses for which these punishments had been inflicted were such things as speaking
disrespectfully of the views of ministers of government-established churches, nonattendance at
those churches, expressions of non-belief in their doctrines, and failure to pay taxes and tithes to
support them. 5
These practices of the old world were transplanted to and began to thrive in the soil of the new
America. The very charters granted by the English Crown to the individuals and companies
designated to make the laws which would control the destinies of the colonials authorized these
individuals and companies to erect religious establishments which all, whether believers or nonbelievers, would be required to support and attend. 6 An exercise of [330 U.S. 1, 10] this authority
was accompanied by a repetition of many of the old world practices and persecutions. Catholics
found themselves hounded and proscribed because of their faith; Quakers who followed their
conscience went to jail; Baptists were peculiarly obnoxious to certain dominant Protestant sects;
men and women of varied faiths who happened to be in a minority in a particular locality were
persecuted because they steadfastly persisted in worshipping God only as their own consciences
dictated. 7 And all of these dissenters were compelled to pay tithes and taxes8 to support
government-sponsored churches whose ministers preached inflammatory sermons designed to
strengthen and consolidate the established faith by generating a burning hatred against dissenters.
[330 U.S. 1, 11] These practices became so commonplace as to shock the freedom-loving colonials
into a feeling of abhorrence. 9 The imposition of taxes to pay ministers' salaries and to build and
maintain churches and church property aroused their indignation. 10 It was these feelings which
found expression in the First Amendment. No one locality and no one group throughout the
Colonies can rightly be given entire credit for having aroused the sentiment that culminated in
adoption of the Bill of Rights' provisions embracing religious liberty. But Virginia, where the
established church had achieved a dominant influence in political affairs and where many
excesses attracted wide public attention, p ovided a great stimulus and able leadership for the
movement. The people there, as elsewhere, reached the conviction that individual religious
liberty could be achieved best under a government which was stripped of all power to tax, to
support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious
individual or group.
The movement toward this end reached its dramatic climax in Virginia in 1785-86 when the
Virginia legislative body was about to renew Virginia's tax levy for the support of the established
church. Thomas Jeffer- [330 U.S. 1, 12] son and James Madison led the fight against this tax.
Madison wrote his great Memorial and Remonstrance against the law. 11 In it, he eloquently
argued that a true religion did not need the support of law; that no person, either believer or nonbeliever, should be taxed to support a religious institution of any kind; that the best interest of a
society required that the minds of men always be wholly free; and that cruel persecutions were
the inevitable result of government-established religions. Madison's Remonstrance received
strong support throughout Virginia, 12 and the Assembly postponed consideration of the
proposed tax measure until its next session. When the proposal came up for consideration at that
session, it not only died in committee, but the Assembly enacted the famous 'Virginia Bill for
Religious Liberty' originally written by Thomas Jefferson. 13 The preamble to that Bill stated
among other things that
'Almighty God hath created the mind free; that all attempts to influence it by temporal
punishments, or burthens, or by civil incapacitations, tend only to beget habits of
hypocrisy and meanness, and are [330 U.S. 1, 13] a departure from the plan of the Holy
author of our religion who being Lord both of body and mind, yet chose not to propagate
it by coercions on either . . .; that to compel a man to furnish contributions of money for
the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the
forcing him to support this or that teacher of his own religious persuasion, is depriving
him of the comfortable liberty of giving his contributions to the particular pastor, whose
morals he would make his pattern ...'
And the statute itself enacted
'That no man shall be compelled to frequent or support any religious worship, place, or
ministry whatsoever, nor shall be enforced, restrained, molested, or burthened, in his
body or goods, nor shall otherwise suffer on account of his religious opinions or belief. . .
.'14
This Court has previously recognized that the provisions of the First Amendment, in the drafting
and adoption of which Madison and Jefferson played such leading roles, had the same objective
and were intended to provide the same protection against governmental intrusion on religious
liberty as the Virginia statute. Reynolds v. United States, supra, 98 U.S. at page 164; Watson v.
Jones, 13 Wall. 679; Davis v. Beason, 133 U.S. 333, 342 , 10 S.Ct. 299, 300. Prior to the
adoption of the Fourteenth Amendment, the First Amendment did not apply as a restraint against
the states. 15 Most of them did soon provide similar constitutional protections [330 U.S. 1, 14] for
religious liberty. 16 But some states persisted for about half a century in imposing restraints upon
the free exercise of religion and in discriminating against particular religious groups. 17 In recent
years, so far as the provision against the establishment of a religion is concerned, the question
has most frequently arisen in connection with proposed state aid to church schools and efforts to
carry on religious teachings in the public schools in accordance with the tenets of a particular
sect. 18 Some churches have either sought or accepted state financial support for their schools.
Here again the efforts to obtain state aid or acceptance of it have not been limited to any one
particular faith. 19 The state courts, in the main, have remained faithful to the language of their
own constitutional provisions designed to protect religious freedom and to separate religious and
governments. Their decisions, however, show the difficulty in drawing the line between tax
legislation which provides funds for the welfare of the general public and that which is designed
to support institutions which teach religion. 20
The meaning and scope of the First Amendment, preventing establishment of religion or
prohibiting the free exercise thereof, in the light of its history and the evils it [330 U.S. 1, 15] was
designed forever to suppress, have been several times elaborated by the decisions of this Court
prior to the application of the First Amendment to the states by the Fourteenth. 21 The broad
meaning given the Amendment by these earlier cases has been accepted by this Court in its
decisions concerning an individual's religious freedom rendered since the Fourteenth
Amendment was interpreted to make the prohibitions of the First applicable to state action
abridging religious freedom. 22 There is every reason to give the sam application and broad
interpretation to the 'establishment of religion' clause. The interrelation of these complementary
clauses was well summarized in a statement of the Court of Appeals of South Carolina,23 quoted
with approval by this Court, in Watson v. Jones, 13 Wall. 679, 730: 'The structure of our
government has, for the preservation of civil liberty, rescued the temporal institutions from
religious interference. On the other hand, it has secured religious liberty from the invasions of
the civil authority.'
The 'establishment of religion' clause of the First Amendment means at least this: Neither a state
nor the Federal Government can set up a church. Neither can pass laws which aid one religion,
aid all religions, or prefer one religion over another. Neither can force nor influence a person to
go to or to remain away from church against his will or force him to profess a belief or disbelief
in any religion. No person can be punished for entertain- [330 U.S. 1, 16] ing or professing
religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount,
large or small, can be levied to support any religious activities or institutions, whatever they may
be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the
Federal Government can, openly or secretly, participate in the affairs of any religious
organizations or groups and vice versa. In the words of Jefferson, the clause against
establishment of religion by law was intended to erect 'a wall of separation between Church and
State.' Reynolds v. United States, supra, 98 U.S. at page 164.
We must consider the New Jersey statute in accordance with the foregoing limitations imposed
by the First Amendment. But we must not strike that state statute down if it is within the state's
constitutional power even though it approaches the verge of that power. See Interstate
Consolidated Street Ry. Co. v. Commonwealth of Massachusetts, Holmes, J., supra 207 U.S. at
85, 88, 28 S.Ct. 26, 27, 28, 12 Ann.Cas. 555. New Jersey cannot consistently with the
'establishment of religion' clause of the First Amendment contribute tax-raised funds to the
support of an institution which teaches the tenets and faith of any church. On the other hand,
other language of the amendment commands that New Jersey cannot hamper its citizens in the
free exercise of their own religion. Consequently, it cannot exclude individual Catholics,
Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the
members of any other faith, because of their faith, or lack of it, from receiving the benefits of
public welfare legislation. While we do not mean to intimate that a state could not provide
transportation only to children attending public schools, we must be careful, in protecting the
citizens of New Jersey against state-established churches, to be sure that we do not inadvertently
prohibit New Jersey from extending its general State law benefits to all its citizens without
regard to their religious belief [330 U.S. 1, 17] Measured by these standards, we cannot say that
the First Amendment prohibits New Jersey from spending taxraised funds to pay the bus fares of
parochial school pupils as a part of a general program under which it pays the fares of pupils
attending public and other schools. It is undoubtedly true that children are helped to get to church
schools. There is even a possibility that some of the children might not be sent to the church
schools if the parents were compelled to pay their children's bus fares out of their own pockets
when transportation to a public school would have been paid for by the State. The same
possibility exists where the state requires a local transit company to provide reduced fares to
school children including those attending parochial schools,24 or where a municipally owned
transportation system undertakes to carry all school children free of charge. Moreover, state-paid
policemen, detailed to protect children going to and from church schools from the very real
hazards of traffic, would serve much the same purpose and accomplish much the same result as
state provisions intended to guarantee free transportation of a kind which the state deems to be
best for the school children's welfare. And parents might refuse to risk their children to the
serious danger of traffic accidents going to and from parochial schools, the approaches to which
were not protected by policemen. Similarly, parents might be reluctant to permit their children to
attend schools which the state had cut off from such general government services as ordinary
police and fire protection, connections for sewage disposal, public [330 U.S. 1, 18] highways and
sidewalks. Of course, cutting off church schools from these services, so separate and so
indisputably marked off from the religious function, would make it far more difficult for the
schools to operate. But such is obviously not the purpose of the First Amendment. That
Amendment requires the state to be a neutral in its relations with groups of religious believers
and non-believers; it does not require the state to be their adversary. State power is no more to be
used so as to handicap religions, than it is to favor them.
This Court has said that parents may, in the discharge of their duty under state compulsory
education laws, send their children to a religious rather than a public school if the school meets
the secular educational requirements which the state has power to impose. See Pierce v. Society
of Sisters, 268 U.S. 510 , 45 S.Ct. 571, 39 A.L.R. 468. It appears that these parochial schools
meet New Jersey's requirements. The State contributes no money to the schools. It does not
support them. Its legislation, as applied, does no more than provide a general program to help
parents get their children, regardless of their religion, safely and expeditiously to and from
accredited schools.
The First Amendment has erected a wall between church and state. That wall must be kept high
and impregnable. We could not approve the slightest breach. New Jersey has not breached it
here.
AFFIRMED.
Mr. Justice JACKSON, dissenting.
I find myself, contrary to first impressions, unable to join in this decision. I have a sympathy,
though it is not ideological, with Catholic citizens who are compelled by law to pay taxes for
public schools, and also feel constrained by conscience and discipline to support other schools
for their own children. Such reli f to them as [330 U.S. 1, 19] this case involves is not in itself a
serious burden to taxpayers and I had assumed it to be as little serious in principle. Study of this
case convinces me otherwise. The Court's opinion marshals every argument in favor of state aid
and puts the case in its most favorable light, but much of its reasoning confirms my conclusions
that there are no good grounds upon which to support the present legislation. In fact, the
undertones of the opinion, advocating complete and uncompromising separation of Church from
State, seem utterly discordant with its conclusion yielding support to their commingling in
educational matters. The case which irresistibly comes to mind as the most fitting precedent is
that of Julia who, according to Byron's reports, 'whispering 'I will ne'er consent,'- consented.'
I.
The Court sustains this legislation by assuming two deviations from the facts of this particular
case; first, it assumes a state of facts the record does not support, and secondly, it refuses to
consider facts which are inescapable on the record.
The Court concludes that this 'legislation, as applied, does no more than provide a general
program to help parents get their children, regardless of their religion, safely and expeditiously to
and from accredited schools,' and it draws a comparison between 'state provisions intended to
guarantee free transportation' for school children with services such as police and fire protection,
and implies that we are here dealing with 'laws authorizing new types of public services ...' This
hypothesis permeates the opinion. The facts will not bear that construction.
The Township of Ewing is not furnishing transportation to the children in any form; it is not
operating school busses itself or contracting for their operation; and it is not performing any
public service of any kind with this [330 U.S. 1, 20] taxpayer's money. All school children are left
to ride as ordinary paying passengers on the regular busses operated by the public transportation
system. What the Township does, and what the taxpayer complains of, is at stated intervals to
reimburse parents for the fares paid, provided the children attend either public schools or
Catholic Church schools. This expenditure of tax funds has no possible effect on the child's
safety or expedition in transit. As passengers on the public busses they travel as fast and no
faster, and are as safe and no safer, since their parents are reimbursed as before.
In addition to thus assuming a type of service that does not exist, the Court also insists that we
must close our eyes to a discrimination which does exist. The resolution which authorizes
disbursement of this taxpayer's money limits reimbursement to those who attend public schools
and Catholic schools. That is the way the Act is applied to this taxpayer.
The New Jersey Act in question makes the character of the school, not the needs of the children
determine the eligibility of parents to reimbursement. The Act permits payment for
transportation to parochial schools or public schools but prohibits it to private schools operated
in whole or in part for profit. Children often are sent to private schools because their parents feel
that they require more individual instruction than public schools can provide, or because they are
backward or defective and need special attention. If all children of the state were objects of
impartial solicitude, no reason is obvious for denying transportation reimbursement to students
of this class, for these often are as needy and as worthy as those who go to public or parochial
schools. Refusal to reimburse those who attend such schools is understandable only in the light
of a purpose to aid the schools, because the state might well abstain from aiding a profit-making
private enterprise. Thus, under the Act [330 U.S. 1, 21] and resolution brought to us by this case
children are classified according to the schools they attend and are to be aided if they attend the
public schools or private C tholic schools, and they are not allowed to be aided if they attend
private secular schools or private religious schools of other faiths.
Of course, this case is not one of a Baptist or a Jew or an Episcopalian or a pupil of a private
school complaining of discrimination. It is one of a taxpayer urging that he is being taxed for an
unconstitutional purpose. I think he is entitled to have us consider the Act just as it is written.
The statement by the New Jersey court that it holds the Legislature may authorize use of local
funds 'for the transportation of pupils to any school,' 133 N.J.L. 350, 354, 44 A.2d 333, 337, in
view of the other constitutional views expressed, is not a holding that this Act authorizes
transportation of all pupils to all schools. As applied to this taxpayer by the action he complains
of, certainly the Act does not authorize reimbursement to those who choose any alternative to the
public school except Catholic Church schools.
If we are to decide this case on the facts before us, our question is simply this: Is it constitutional
to tax this complainant to pay the cost of carrying pupils to Church schools of one specified
denomination?
II.
Whether the taxpayer constitutionally can be made to contribute aid to parents of students
because of their attendance at parochial schools depends upon the nature of those schools and
their relation to the Church. The Constitution says nothing of education. It lays no obligation on
the states to provide schools and does not undertake to regulate state systems of education if they
see fit to maintain them. But they cannot, through school policy any more than through other
means, invade rights secured [330 U.S. 1, 22] to citizens by the Constitution of the United States.
West Virginia State Board of Education v. Barnette, 319 U.S. 624 , 63 S.Ct. 1178, 147 A.L.R.
674. One of our basic rights is to be free of taxation to support a transgression of the
constitutional command that the authorities 'shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.' U.S.Const., Amend. I; Cantwell v. State of
Connecticut, 310 U.S. 296 , 60 S.Ct. 900, 128 A.L.R. 1352.
The function of the Church school is a subject on which this record is meager. It shows only that
the schools are under superintendence of a priest and that 'religion is taught as part of the
curriculum.' But we know that such schools are parochial only in name-they, in fact, represent a
worldwide and age-old policy of the Roman Catholic Church. Under the rubric 'Catholic
Schools,' the Canon Law of the Church by which all Catholics are bound, provides:
'1215. Catholic children are to be educated in schools where not only nothing contrary to
Catholic faith and morals is taught, but rather in schools where religious and moral
training occupy the first place. ... ( Canon 1372.)'
'1216. In every elementary school the children must, according to their age, be instructed
in Christian doctrine.
'The young people who attend the higher schools are to receive a deeper religious
knowledge, and the bishops shall appoint priests qualified for such work by their learning
and piety. (Canon 1373.)'
'1217. Catholic children shall not attend non-Catholic, indifferent, schools that are mixed,
that is to say, schools open to Catholic and non- Catholics alike. The bishop of the
diocese only has the right, in harmony with the instructions of the Holy See, to decide
under what circumstances, and with what safe- [330 U.S. 1, 23] guards to prevent loss of
faith, it may be tolerated that Catholic children go to such schools. (Canon 1374.)'
'1224. The religious teaching of youth in any schools is subject to the authority and
inspection of the Church.
'The local Ordinaries have the right and duty to watch that nothing is taught contrary to
faith or good morals, in any of the schools of their territory.
'They, moreover, have the right to approve the books of Christian doctrine and the
teachers of religion, and to demand, for the sake of safeguarding religion and morals, the
removal of teachers and books. ( Canon 1381.)' (Woywod, Rev. Stanislaus, The New
Canon Law, under imprimatur of Most Rev. Francis J. Spellman, Archbishop of New
York and others, 1940.)
It is no exaggeration to say that the whole historic conflict in temporal policy between the
Catholic Church and non-Catholics comes to a focus in their respective school policies. The
Roman Catholic Church, counseled by experience in many ages and many lands and with all
sorts and conditions of men, takes what, from the viewpoint of its own progress and the success
of its mission, is a wise estimate of the importance of education to religion. It does not leave the
individual to pick up religion by chance. It relies on early and indelible indoctrination in the faith
and order of the Church by the word and example of persons consecrated to the task.
Our public school, if not a product of Protestantism, at least is more consistent with it than with
the Catholic culture and scheme of values. It is a relatively recent development dating from about
1840.1 It is organized on [330 U.S. 1, 24] the premise that secular education can be isolated from
all religious teaching so that the school can inculcate all needed temporal knowledge and also
maintain a strict and lofty neutrality as to religion. The assumption is that after the individual has
been instructed in worldly wisdom he will be better fitted to choose his religion. Whether such a
disjunction is possible, and if possible whether it is wise, are questions I need not try to answer.
I should be surprised if any Catholic would deny that the parochial school is a vital, if not the
most vital, part of the Roman Catholic Church. If put to the choice, that venerable institution, I
should expect, would forego its whole service for mature persons before it would give up
education of the young, and it would be a wise choice. Its growth and cohesion, discipline and
loyalty, spring from its schools. Catholic education is the rock on which the whole structure
rests, and to render tax aid to its Church school is indistinguishable to me from rendering the
same aid to the Church itself.
III.
It is of no importance in this situation whether the beneficiary of this expenditure of tax-raised
funds is primarily the parochial school and incidentally the pupil, or whether the aid is directly
bestowed on the pupil with indirect benefits to the school. The state cannot maintain a Church
and it can no more tax its citizens to furnish free carriage to those who attend a Church The
prohibition against establishment of religion cannot be circumvented by a subsidy, bonus or
reimbursement of expense to individuals for receiving religious instruction and indoctrination.
The Court, however, compares this to other subsidies and loans to individuals and says, 'Nor
does it follow that a law has a private rather than a public purpose because [330 U.S. 1, 25] it
provides that tax-raised funds will be paid to reimburse individuals on account of money spent
by them in a way which furthers a public program. See Carmichael v. Southern Coal & Coke
Co., 301 U.S. 495, 518 , 57 S.Ct. 868, 876, 109 A.L.R. 1327.' Of course, the state may pay out
tax-raised funds to relieve pauperism, but it may not under our Constitution do so to induce or
reward piety. It may spend funds to secure old age against want, but it may not spend funds to
secure religion against skepticism. It may compensate individuals for loss of employment, but it
cannot compensate them for adherence to a creed.
It seems to me that the basic fallacy in the Court's reasoning, which accounts for its failure to
apply the principles it avows, is in ignoring the essentially religious test by which beneficiaries
of this expenditure are selected. A policeman protects a Catholic, of course-but not because he is
a Catho ic; it is because he is a man and a member of our society. The fireman protects the
Church school-but not because it is a Church school; it is because it is property, part of the assets
of our society. Neither the fireman nor the policeman has to ask before he renders aid 'Is this man
or building identified with the Catholic Church.' But before these school authorities draw a check
to reimburse for a student's fare they must ask just that question, and if the school is a Catholic
one they may render aid because it is such, while if it is of any other faith or is run for profit, the
help must be withheld. To consider the converse of the Court's reasoning will best disclose its
fallacy. That there is no parallel between police and fire protection and this plan of
reimbursement is apparent from the incongruity of the limitation of this Act if applied to police
and fire service. Could we sustain an Act that said police shall protect pupils on the way to or
from public schools and Catholic schools but not [330 U.S. 1, 26] while going to and coming from
other schools, and firemen shall extinguish a blaze in public or Catholic school buildings but
shall not put out a blaze in Protestant Church schools or private schools operated for profit? That
is the true analogy to the case we have before us and I should think it pretty plain that such a
scheme would not be valid.
The Court's holding is that this taxpayer has no grievance because the state has decided to make
the reimbursement a public purpose and therefore we are bound to regard it as such. I agree that
this Court has left, and always should leave to each state, great latitude in deciding for itself, in
the light of its own conditions, what shall be public purposes in its scheme of things. It may
socialize utilities and economic enterprises and make taxpayers' business out of what
conventionally had been private business. It may make public business of individual welfare,
health, education, entertainment or security. But it cannot make public business of religious
worship or instruction, or of attendance at religious institutions of any character. There is no
answer to the proposition more fully expounded by Mr. Justice RUTLEDGE that the effect of the
religious freedom Amendment to our Constitution was to take every form of propagation of
religion out of the realm of things which could directly or indirectly be made public business and
thereby be supported in whole or in part at taxpayers' expense. That is a difference which the
Constitution sets up between religion and almost every other subject matter of legislation, a
difference which goes to the very root of religious freedom and which the Court is overlooking
today. This freedom was first in the Bill of Rights because it was first in the forefathers' minds; it
was set forth in absolute terms, and its strength is its rigidity. It was intended not only to keep the
states' hands out of religion, but to [330 U.S. 1, 27] keep religion's hands off the state, and above
all, to keep bitter religious controversy out of public life by denying to every denomination any
advantage from getting control of public policy or the public purse. Those great ends I cannot but
think are immeasurably compromised by today's decision.
This policy of our Federal Constitution has never been wholly pleasing to most religious groups.
They all are quick to invoke its protections; they all are irked when they feel its restraints. This
Court has gone a long way, if not an unreasonable way, to hold that public business of such
paramount importance as maintenance of public order, protection of the privacy of the home, and
taxation may not be pursued by a state in a way that even indirectly will interfere with religious
proselyting. See dissent in Douglas v. Jeannette, 319 U.S. 157, 166 , 63 S. Ct. 877, 882, 146
A.L.R. 81; Murdock v. Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870, 146 A.L.R. 81; Martin v.
Struthers, 319 U.S. 141 , 63 S.Ct. 862; Jones v. Opelika, 316 U.S. 584 , 6 S.Ct. 1231, 141 A.L.R.
514, reversed on rehearing 319 U.S. 103 , 63 S.Ct. 890.
But we cannot have it both ways. Religious teaching cannot be a private affair when the state
seeks to impose regulations which infringe on it indirectly, and a public affair when it comes to
taxing citizens of one faith to aid another, or those of no faith to aid all. If these principles seem
harsh in prohibiting aid to Catholic education, it must not be forgotten that it is the same
Constitution that alone assures Catholics the right to maintain these schools at all when
predominant local sentiment would forbid them. Pierce v. Society of Sisters, 268 U.S. 510 , 45
S.Ct. 571, 39 A.L.R. 468. Nor should I think that those who have done so well without this aid
would want to see this separation between Church and State broken down. If the state may aid
these religious schools, it may therefore regulate them. Many groups have sought aid from tax
funds only to find that it carried political controls with it. Indeed this Court has [330 U.S. 1, 28]
declared that 'It is hardly lack of due process for the Government to regulate that which it
subsidizes.' Wickard v. Filburn, 317 U.S. 111, 131 , 63 S.Ct. 82, 92.
But in any event, the great purposes of the Constitution do not depend on the approval or
convenience of those they restrain. I cannot read the history of the struggle to separate political
from ecclesiastical affairs, well summarized in the opinion of Mr. Justice RUTLEDGE in which
I generally concur, without a conviction that the Court today is unconsciously giving the clock's
hands a backward turn.
Mr. Justice FRANKFURTER joins in this opinion.
Mr. Justice RUTLEDGE, with whom Mr. Justice FRANKFURTER, Mr. Justice JACKSON and
Mr. Justice BURTON agree, dissenting.
'Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof. ....' U.S.Const.Am. Art. I.
'Well aware that Almighty God hath created the mind free; ... that to compel a man to
furnish contributions of money for the propagation of opinions which he disbelieves, is
sinful and tyrannical; ...
'We, the General Assembly, do enact, That no man shall be compelled to frequent or
support any religious worship, place, or ministry whatsoever, nor shall be enforced,
restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on
account of his religious opinions or belief. ...'1 [330 U.S. 1, 29] I cannot believe that the
great author of those words, or the men who made them law, could have joined in this
decision. Neither so high nor so impregnable today as yesterday is the wall raised
between church and state by Virginia's great statute of religious freedom and the First
Amendment, now made applicable to all the states by the Fourteenth. 2 New Jersey's
statute sustained is the first, if indeed it is not the second breach to be made by this
Court's action. That a third, and a fourth, and still others will be attempted, we may be
sure. For just as Cochran v. Louisiana State Board of Education, 281 U.S. 370 , 50 S.Ct.
335, has opened the way by oblique ruling3 for this decision, so will the two make wider
the breach for a third. Thus with time the most solid freedom steadily gives way before
continuing corrosive decision.
This case forces us to determine squarely for the first time4 what was 'an establishment of
religion' in the First Amendment's conception; and by that measure to decide whether New
Jersey's action violates its command. The facts may be stated shortly, to give setting and color to
the constitutional problem.
By statute New Jersey has authorized local boards of education to provide for the transportation
of children 'to and from school other than a public school' except one [330 U.S. 1, 30] operated for
profit wholly or in part over established public school routes, or by other means when the child
lives 'remote from any school.' 5 The school board of Ewing Township has provided by
resolution for 'the transportation of pupils of Ewing to the Trenton and Pennington High Schools
and Catholic Schools by way of public carrier. ...'6
Named parents have paid the cost of public conveyance of their children from their homes in
Ewing to three public high schools and four parochial schools outside the district. 7
Semiannually the Board has reimbursed the parents from public school funds raised by general
taxation. Religion is taught as part of the curriculum in each [330 U.S. 1, 31] of the four private
schools, as appears affirmatively by the testimony of the superintendent of parochial schools in
the Diocese of Trenton.
The Court of Errors and Appeals of New Jersey, reversing the Supreme Court's decision, 132
N.J.L. 98, 39 A.2d 75, has held the Ewing board's action not in contravention of the state
constitution or statutes or of the Federal Constitution. 133 N.J.L. 350, 44 A.2d 333. We have to
consider only whether this ruling accords with the prohibition of the First Amendment implied in
the due process clause of the Fourteenth.
I.
Not simply an established church, but any law respecting an establishment of religion is forbidd
n. The Amendment was broadly but not loosely phrased. It is the compact and exact summation
of its author's views formed during his long struggle for religious freedom. In Madison's own
words characterizing Jefferson's Bill for Establishing Religious Freedom, the guaranty he put in
our national charter, like the bill he piloted through the Virginia Assembly, was 'a Model of
technical precision, and perspicuous brevity.' 8 Madison could not have confused 'church' and
'religion,' or 'an established church' and 'an establishment or religion.'
The Amendment's purpose was not to strike merely at the official establishment of a single sect,
creed or religion, outlawing only a formal relation such as had prevailed in England and some of
the colonies. Necessarily it was to uproot all such relationships. But the object was broader than
separating church and state in this narrow sense. It was to create a complete and permanent
separation of the [330 U.S. 1, 32] spheres of religious activity and civil authority by
comprehensively forbidding every form of public aid or support for religion. In proof the
Amendment's wording and history unite with this Court's consistent utterances whenever
attention has been fixed directly upon the question.
'Religion' appears only once in the Amendment. But the word governs two prohibitions
and governs them alike. It does not have two meanings, one narrow to forbid 'an
establishment' and another, much broader, for securing 'the free exercise thereof.'
'Thereof' brings down 'religion' with its entire and exact content, no more and no less,
from the first into the second guaranty, so that Congress and now the states are as broadly
restricted concerning the one as they are regarding the other.
No one would claim today that the Amendment is constricted, in 'prohibiting the free exercise' of
religion, to securing the free exercise of some formal or creedal observance, of one sect or of
many. It secures all forms of religious expression, creedal, sectarian or nonsectarian wherever
and however taking place, except conduct which trenches upon the like freedoms of others or
clearly and presently endangers the community's good order and security. 9 For the protective
purposes of this phase of the basic freedom street preaching, oral or by distribution of [330 U.S. 1,
33] literature, has been given 'the same high estate under the First Amendment as ... worship in
the churches and preaching from the pulpits.' 10 And on this basis parents have been held
entitled to send their children to private, religious schools. Pierce v. Society of Sisters, 268 U.S.
510 , 45 S.Ct. 571, 39 A.L.R. 468. Accordingly, daily religious education commingled with
secular is 'religion' within the guaranty's comprehensive scope. So are religious training and
teaching in whatever form. The word connotes the broadest content, determined not by the form
or formality of the teaching or where it occurs, but by its essential nature regardless of those
details.
'Religion' has the same broad significance in the twin prohibition concerning 'an
establishment.' The Amendment was not duplicitous. 'Religion' and 'establishment' were
not used in any formal or technical sense. The prohibition broadly forbids state support,
financial or other, of religion in any guise, form or degree. It outlaws all use of public
funds for religious purposes.
II.
No provision of the Constitution is more closely tied to or given content by its generating history
than the religious clause of the First Amendment. It is at once the refined product and the terse
summation of that history. The history includes not only Madison's authorship and the
proceedings before the First Congress, but also the long and intensive struggle for religious
freedom in America, more especially in Virginia,11 of which the Amend- [330 U.S. 1, 34] ment
was the direct culmination. 12 In the documents of the times, particularly of Madison, who was
leader in the Virginia struggle before he became the Amendment's sponsor, but also in the
writings of Jefferson and others and in the issues which engendered them is to be found
irrefutable confirmation of the Amendment's sweeping content.
For Madison, as also for Jefferson, religious freedom was the crux of the struggle for freedom in
general. Remonstrance, Par. 15, Appendix hereto. Madison was coauthor with George Mason of
the religious clause in Virginia's great Declaration of Rights of 1776. He is credited with
changing it from a mere statement of the principle of tolerance to the first official legislative
pronouncement that freedom of conscience and religion are inherent rights of the individual. 13
He sought also to have the Declara- [330 U.S. 1, 35] tion expressly condemn the existing Virginia
establishment. 14 But the forces supporting it were then too strong.
Accordingly Madison yielded on this phase but not for long. At once he resumed the fight,
continuing it before succeeding legislative sessions. As a member of the General Assembly in
1779 he threw his full weight behind Jefferson's historic Bill for Establishing Religious Freedom.
That bill was a prime phase of Jefferson's broad program of democratic reform undertaken on his
return from the Continental Congress in 1776 and submitted for the General Assembly's
consideration in 1779 as his proposed revised Virginia code. 15 With Jefferson's departure for
Europe in 1784, Madison became the Bill's prime [330 U.S. 1, 36] sponser. 16 Enactment failed in
successive legislatures from its introduction in June 1779, until its adoption in January, 1786.
But during all this time the fight for religious freedom moved forward in Virginia on various
fronts with growing intensity. Madison led throughout, against Patrick Henry's powerful
opposing leadership until Henry was elected governor in November, 1784.
The climax came in the legislative struggle of 1784-1785 over the Assessment Bill. See
Supplemental Appendix hereto. This was nothing more nor less than a taxing measure for the
support of religion, designed to revive the payment of tithes suspended since 1777. So long as it
singled out a particular sect for preference it incurred the active and general hostility of
dissentient groups. It was broadened to include them, with the result that some subsided
temporarily in their opposition. 17 As altered, the bill gave to each taxpayer the privilege of
designating which church should receive his share of the tax. In default of designation the
legislature applied it to pious uses. 18 But what is of the utmost significance here, 'in [330 U.S. 1,
37] its final form the bill left the taxpayer the option of giving his tax to education.' 19
Madison was unyielding at all times, opposing with all his vigor the general and
nondiscriminatory as he had the earlier particular and discriminatory assessments proposed. The
modified Assessment Bill passed second reading in December, 1784, and was all but enacted.
Madison and his followers, however, maneuvered deferment of final consideration until
November, 1785. And before the Assembly reconvened in the fall he issued his historic
Memorial and Remonstrance. 20
This is Madison's complete, though not his only, interpretation of religious liberty. 21 It is a
broadside attack upon all forms of 'establishment' of religion, both general and particular,
nondiscriminatory or selective. Reflecting not only the many legislative conflicts over the
Assessment Bill and the Bill for Establishing Religious Freedom but also, for example, the
struggles for religious incorporations and the continued maintenance of the glebes, the
Remonstrance is at once the most concise and the most accurate statement of the views of the
First Amendment's author concerning what is 'an establishment of religion.' Because it behooves
us in the dimming distance of time not [330 U.S. 1, 38] to lose sight of what he and his coworkers
had in mind when, by a single sweeping stroke of the pen, they forbade an establishment of
religion and secured its free exercise, the text of the Remonstrance is appended at the end of this
opinion for its wider current reference, together with a copy of the bill against which it was
directed.
The Remonstrance, stirring up a storm of popular protest, killed the Assessment Bill. 22 It
collapsed in committee shortly before Christmas, 1785. With this, the way was cleared at last for
enactment of Jefferson's Bill for Establishing Religious Freedom. Madison promptly drove it
through in January of 1786, seven years from the time it was first introduced. This dual victory
substantially ended the fight over establishments, settling the issue against them. See note 33.
The next year Madison became a member of the Constitutional Convention. Its work done, he
fought valiantly to secure the ratification of its great product in Virginia as elsewhere, and
nowhere else more effectively. 23 Madison was certain in his own mind that under the
Constitution 'there is not a shadow of right in the general government to intermeddle with
religion'24 and that 'this subject is, for the honor of America, perfectly free and [330 U.S. 1, 39]
unshackled. The Government has no jurisdiction over it. . . .'25 Nevertheless he pledged that he
would work for a Bill of Rights, including a specific guaranty of religious freedom, and Virginia,
ith other states, ratified the Constitution on this assurance. 26
Ratification thus accomplished, Madison was sent to the first Congress. There he went at once
about performing his pledge to establish freedom for the nation as he had done in Virginia.
Within a little more than three years from his legislative victory at home he had proposed and
secured the submission and ratification of the First Amendment as the first article of our Bill of
Rights. 27
All the great instruments of the Virginia struggle for religious liberty thus became warp and
woof of our constitutional tradition, not simply by the course of history, but by the common
unifying force of Madison's life, thought and sponsorship. He epitomized the whole of that
tradition in the Amendment's compact, but nonetheless comprehensive, phrasing.
As the Remonstrance discloses throughout, Madison opposed every form and degree of official
relation between religion and civil authority. For him religion was a wholly private matter
beyond the scope of civil power [330 U.S. 1, 40] either to restrain or to support. 28 Denial or
abridgment of religious freedom was a violation of rights both of conscience and of natural
equality. State aid was no less obnoxious or destructive to freedom and to religion itself than
other forms of state interference. 'Establishment' and 'free exercise' were correlative and
coextensive ideas, representing only different facets of the single great and fundamental freedom.
The Remonstrance, following the Virginia statute's example, referred to the history of religious
conflicts and the effects of all sorts of establishments, current and historical, to suppress
religion's free exercise. With Jefferson, Madison believed that to tolerate any fragment of
establishment would be by so much to perpetuate restraint upon that freedom. Hence he sought
to tear out the institution not partially but root and branch, and to bar its return forever.
In no phase was he more unrelentingly absolute than in opposing state support or aid by taxation.
Not even 'three pence' contribution was thus to be exacted from any citizen for such a purpose.
Remonstrance, Par. 3.29 [330 U.S. 1, 41] Tithes had been the life blood of establishment before
and after other compulsions disappeared. Madison and his coworkers made no exceptions or
abridgments to the complete separation they created. Their objection was not to small tithes. It
was to any tithes whatsoever. 'If it were lawful to impose a small tax for religion the admission
would pave the way for oppressive levies.' 30 Not the amount but 'the principle of assessment
was wrong.' And the principle was as much to prevent 'the interference of law in religion' as to
restrain religious intervention in political matters. 31 In this field the authors of our freedom
would not tolerate 'the first experiment on our liberties' or 'wait till usurped power had
strengthened itself by exercise, and entangled the question in precedents.' Remonstrance, Par. 3.
Nor should we.
In view of this history no further proof is needed that the Amendment forbids any appropriation,
large or small, from public funds to aid or support any and all religious exercises. But if more
were called for, the debates in the First Congress and this Court's consistent expressions,
whenever it has touched on the matter directly,32 supply it. [330 U.S. 1, 42] By contrast with the
Virginia history, the congressional debates on consideration of the Amendment reveal only
sparse discussion, reflecting the fact that the essential issues had been settled. 33 Indeed the
matter had become so well understood as to have been taken for granted in all but formal
phrasing. Hence, the only enlightening reference shows concern, not to preserve any power to
use public funds in aid of religion, but to prevent the Amendment from outlawing private gifts
inadvertently by virtue of the breadth of its wording. 34 In the [330 U.S. 1, 43] margin are noted
also the principal decisions in which expressions of this Court confirm the Amendment's broad
prohibition. 35 [330 U.S. 1, 44] III.
Compulsory attendance upon religious exercises went out early in the process of separating
church and state, together with forced observance of religious forms and ceremonies. 36 Test
oaths and religious qualification for office followed later. 37 These things none devoted to our
great tradition of religious liberty would think of bringing back. Hence today, apart from efforts
to inject religious training or exercises and sectarian issues into the public schools, the only
serious surviving threat to maintaining that complete and permanent separation of religion and
civil power which the First Amendment commands is through use of the taxing power to support
religion, religious establishments, or establishments having a religious foundation whatever their
form or special religious function.
Does New Jersey's action furnish support for religion by use of the taxing power? Certainly it
does, if the test remains undiluted as Jefferson and Madison made it, that money taken by
taxation from one is not to be used or given to support another's religious training or belief, or
indeed one's own. 38 Today as then the furnishing of 'con- [330 U.S. 1, 45] tributions of money for
the propagation of opinions which he disbelieves' is the forbidden exaction; and the prohibition
is absolute for whatever measure brings that consequence and whatever mount may be sought or
given to that end.
The funds used here were raised by taxation. The Court does not dispute nor could it that their
use does in fact give aid and encouragement to religious instruction. It only concludes that this
aid is not 'support' in law. But Madison and Jefferson were concerned with aid and support in
fact not as a legal conclusion 'entangled in precedents.' Remonstrance, Par. 3. Here parents pay
money to send their children to parochial schools and funds raised by taxation are used to
reimburse them. This not only helps the children to get to school and the parents to send them. It
aids them in a substantial way to get the very thing which they are sent to the particular school to
secure, namely, religious training and teaching.
Believers of all faiths, and others who do not express their feeling toward ultimate issues of
existence in any creedal form, pay the New Jersey tax. When the money so raised is used to pay
for transportation to religious schools, the Catholic taxpayer to the extent of his proportionate
share pays for the transportation of Lutheran, Jewish and otherwise religiously affiliated children
to receive their non-Catholic religious instruction. Their parents likewise pay proportionately for
the transportation of Catholic children to receive Catholic instruction. Each thus contributes to
'the propagation of opinions which he disbelieves' in so far as their religious differ, as do others
who accept no creed without regard to those differences. Each [330 U.S. 1, 46] thus pays taxes
also to support the teaching of his own religion, an exaction equally forbidden since it denies 'the
comfortable liberty' of giving one's contribution to the particular agency of instruction he
approves. 39
New Jersey's action therefore exactly fits the type of exaction and the kind of evil at which
Madison and Jefferson struck. Under the test they framed it cannot be said that the cost of
transportation is no part of the cost of education or of the religious instruction given. That it is a
substantial and a necessary element is shown most plainly by the continuing and increasing
demand for the state to assume it. Nor is there pretense that it relates only to the secular
instruction given in religious schools or that any attempt is or could be made toward allocating
proportional shares as between the secular and the religious instruction. It is precisely because th
instruction is religious and relates to a particular faith, whether one or another, that parents send
their children to religious schools under the Pierce doctrine. And the very purpose of the state's
contribution is to defray the cost of conveying the pupil to the place where he will receive not
simply secular, but also and primarily religious, teaching and guidance.
Indeed the view is sincerely avowed by many of various faiths,40 that the basic purpose of all
education is or should be religious, that the secular cannot be and should not be separated from
the religious phase and emphasis. Hence, [330 U.S. 1, 47] the inadequacy of public or secular
education and the necessity for sending the child to a school where religion is taught. But
whatever may be the philosophy or its justification, there is undeniably an admixture of religious
with secular teaching in all such institutions. That is the very reason for their being. Certainly for
purposes of constitutionality we cannot contradict the whole basis of the ethical and educational
convictions of people who believe in religious schooling.
Yet this very admixture is what was disestablished when the First Amendment forbade 'an
establishment of religion.' Commingling the religious with the secular teaching does not divest
the whole of its religious permeation and emphasis or make them of minor part, if proportion
were material. Indeed, on any other view, the constitutional prohibition always could be brought
to naught by adding a modicum of the secular.
An appropriation from the public treasury to pay the cost of transportation to Sunday school, to
weekday special classes at the church or parish house, or to the meetings of various young
people's religious societies, such as the Y.M.C.A., the Y.M.C.A., the Y.M.H.A., the Epworth
League, could not withstand the constitutional attack. This would be true, whether or not secular
activities were mixed with the religious. If such an appropriation could not stand, then it is hard
to see how one becomes valid for the same thing upon the more extended scale of daily
instruction. Surely constitutionality does not turn on where or how often the mixed teaching
occurs.
Finally, transportation, where it is needed, is as essential to education as any other element. Its
cost is as much a part of the total expense, except at times in amount, as the cost of textbooks, of
school lunches, of athletic equipment, of writing and other materials; indeed of all other [330 U.S.
1, 48] items composing the total burden. Now as always the core of the educational process is the
teacher-pupil relationship. Without this the richest equipment and facilities would go for naught.
See Judd v. Board of Education, 278 N.Y. 200, 212, 15 N.E.2d 576, 118 A.L.R. 789. But the
proverbial Mark Hopkins conception no longer suffices for the country's requirements. Without
buildings, without equipment, without library, textbooks and other materials, and without
transportation to bring teacher and pupil together in such an effective teaching environment,
there can be not even the skeleton of what our times require. Hardly can it be maintained that
transportation is the least essential of these items, or that it does not in fact aid, encourage,
sustain and support, just as they do, the very process which is its purpose to accomplish. No less
essential is it, or the payment of its cost, than the very teaching in the classroom or payment of
the teacher's sustenance. Many types of equipment, now considered essential, better could be
done without.
For me, therefore, the feat is impossible to select so indispensable an item from the composite of
total costs, and characterize it as not aiding, contributing to, promoting or sustaining the
propagation of beliefs which it is the very end of all to bring about. Unless this can be
maintained, and the Court does not maintain it, the aid thus given is outlawed. Payment of
transportation is no more, nor is it any the less essential to education, whether religious or
secular, than payment for tuitions, for teachers' salaries, for buildings, equipment and necessary
materials. Nor is it any the less directly related, in a school giving religious instruction, to the
primary religious objective all those essential items of cost are intended to achieve. No rational
line can be drawn between payment for such larger, but not more necessary, items and payment
for transportation. The only line that can be so drawn is one between more dollars and less.
Certainly in this [330 U.S. 1, 49] realm such a line can be no valid constitutional measure.
Murdock v. Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870, 146 A.L.R. 81; Thomas v. Collins, 323
U.S. 516 , 65 S.Ct. 315. 41 Now, as in Madison's time, not the amount but the principle of
assessment is wrong. Remonstrance, Par. 3.
IV.
But we are told that the New Jersey statute is valid in its present application because the
appropriation is for a public, not a private purpose, namely, the promotion of education, and the
majority accept this idea in the conclusion that all we have here is 'public welfare legislation.' If
that is true and the Amendment's force can be thus destroyed, what has been said becomes all the
more pertinent. For then there could be no possible objection to more extensive support of
religious education by New Jersey.
If the fact alone be determinative that religious schools are engaged in education, thus promoting
the general and individual welfare, together with the legislature's decision that the payment of
public moneys for their aid makes their work a public function, then I can see no possible basis,
except one of dubious legislative policy, for the state's refusal to make full appropriation for
support of private, religious schools, just as is done for public [330 U.S. 1, 50] instruction. There
could not be, on that basis, valid constitutional objection. 42
Of course paying the cost of transportation promotes the general cause of education and the
welfare of the individual. So does paying all other items of educational expense. And obviously,
as the majority say, it is much too late to urge that legislation designed to facilitate the
opportunities of children to secure a secular education serves no public purpose. Our nationwide
system of public education rests on the contrary view, as do all grants in aid of education, public
or private, which is not religious in character.
These things are beside the real question. They have no possible materiality except to obscure the
all-pervading inescapable issue. Cf. Cochran v. Louisiana State Board of Education, supra.
Stripped of its religious phase, the case presents no substantial federal question. Id. The public
function argument, by casting the issue in terms of promoting the general cause of education and
the welfare of the individual, ignores the religious factor and its essential connection with the
transportation, thereby leaving out the only vital element in the case. So of course do the 'public
welfare' and 'social legislation' ideas, for they come to the same thing. [330 U.S. 1, 51] We have
here then one substantial issue, not two. To say that New Jersey's appropriation and her use of
the power of taxation for raising the funds appropriated are not for public purposes but are for
private ends, is to say that they are for the support of religion and religious teaching. Conversely,
to say that they are for public purposes is to say that they are not for religious ones.
This is precisely for the reason that education which includes religious training and teaching, and
its support, have been made matters of private right and function not public, by the very terms of
the First Amendment. That is the effect not only in its guaranty of religion's free exercise, but
also in the prohibition of establishments. It was on this basis of the private character of the
function of religious education that this Court held parents entitled to send their children to
private, religious schools. Pierce v. Society of Sisters, supra. Now it declares in effect that the
appropriation of public funds to defray part of the cost of attending those schools is for a public
purpose. If so, I do not understand why the state cannot go father or why this case approaches the
verge of its power.
In truth this view contradicts the whole purpose and effect of the First Amendment as heretofore
conceived. The 'public function'-'public welfare'-' social legislation' argument seeks in Madison's
words, to 'employ Religion (that is, here, religious education) as an engine of Civil policy.'
Remonstrance, Par. 5. It is of one piece with the Assessment Bill's preamble, although with the
vital difference that it wholly ignores what that preamble explicitly states. 43 [330 U.S. 1, 52]
Our constitutional policy is exactly the opposite. It does not deny the value or the necessity for
religious training, teaching or observance. Rather it secures the r free exercise. But to that end it
does deny that the state can undertake or sustain them in any form or degree. For this reason the
sphere of religious activity, ad distinguished from the secular intellectual liberties, has been
given the twofold protection and, as the state cannot forbid, neither can it perform or aid in
performing the religious function. The dual prohibition makes that function altogether private. It
cannot be made a public one by legislative act. This was the very heart of Madison's
Remonstrance, as it is of the Amendment itself.
It is not because religious teaching does not promote the public or the individual's welfare, but
because neither is furthered when the state promotes religious education, that the Constitution
forbids it to do so. Both legislatures and courts are bound by that distinction. In failure to observe
it lies the fallacy of the 'public function'-'social legislation' argument, a fallacy facilitated by easy
transference of the argument's basing from due process unrelated to any religious aspect to the
First Amendment.
By no declaration that a gift of public money to religious uses will promote the general or
individual welfare, or the cause of education generally, can legislative bodies overcome the
Amendment's bar. Nor may the courts sustain their attempts to do so by finding such
consequences for appropriations which in fact give aid to or promote religious uses. Cf. Norris v.
Alabama, 294 U.S. 587, 590 , 55 S.Ct. 579, 580; Hooven & Allison Co. v. Evatt, 324 U.S. 652,
659 , 65 S.Ct. 870, 874; Akins v. Texas, 325 U.S. 398, 402 , 65 S.Ct. 1276, 1278. Legislatures
are free to make, [330 U.S. 1, 53] and courts to sustain, appropriations only when it can be found
that in fact they do not aid, promote, encourage or sustain religious teaching or observances, be
the amount large or small. No such finding has been or could be made in this case. The
Amendment has removed this form of promoting the public welfare from legislative and judicial
competence to make a public function. It is exclusively a private affair.
The reasons underlying the Amendment's policy have not vanished with time or diminished in
force. Now as when it was adopted the price of religious freedom is double. It is that the church
and religion shall live both within and upon that freedom. There cannot be freedom of religion,
safeguarded by the state, and intervention by the church or its agencies in the state's domain or
dependency on its largesse. Madison's Remonstrance, Par. 6, 8.44 The great condition of
religious liberty is that it be maintained free from sustenance, as also from other interferences, by
the state. For when it comes to rest upon that secular foundation it vanishes with the resting. Id.,
Par. 7, 8.45 Public money devoted to payment of religious costs, educational or other, brings the
quest for more. It brings too the struggle of sect against sect for the larger share or for any. Here
one by numbers alone will benefit most, there another. That is precisely the history of societies
which have had an established religion and dissident [330 U.S. 1, 54] groups. Id., Par. 8, 11. It is
the very thing Jefferson and Madison experienced and sought to guard against, whether in its
blunt or in its more screened forms. Ibid. The end of such strife cannot be other than to destroy
the cherished liberty. The dominating group will achieve the dominant benefit; or all will
embroil the state in their dissensions. Id., Par. 11.46
Exactly such conflicts have centered of late around providing transportation to religious schools
from public funds. 47 The issue and the dissension work typically, in Madison's phrase, to
'destroy that moderation and harmony which the forbearance of our laws to intermeddle with
Religion, has produced amongst its several sects.' Id., Par. 11. This occurs, as he well knew over
measures [330 U.S. 1, 55] at the very threshold of departure from the principle. Id., Par. 3, 9, 11.
In these conflicts wherever success has been obtained it has been upon the contention that by
providing the transportation the general cause of education, the general welfare, and the welfare
of the individual will be forwarded; hence that the matter lies within the realm of public function,
for legislative determination. 48 State courts have divided upon the issue, some taking the view
that only the individual, others that the institution receives the benefit. 49 A few have recognized
that this dichotomy is false, that both in fact are aided. 50 [330 U.S. 1, 56] The majority here does
not accept in terms any of those views. But neither does it deny that the individual or the school,
or indeed both, are benefited directly and substantially. 51 To do so would cut the ground from
under the public function-social legislation thesis. On the contrary, the opinion concedes that the
children are aided by being helped to get to the religious schooling. By converse necessary
implication as well as by the absence of express denial, it must be taken to concede also that the
school is helped to reach the child with its religious teaching. The religious enterprise is common
to both, as is the interest in having transportation for its religious purposes provided.
Notwithstanding the recognition that this two-way aid is given and the absence of any denial that
religious teaching is thus furthered, the Court concludes that the aid so given is not 'support' of
religion. It is rather only support of education as such, without reference to its religious content,
and thus becomes public welfare legislation. To this elision of the religious element from the
case is added gloss in two respects, one that the aid extended partakes of the nature of a safety
measure, the other that failure to provide it would make the state unneutral in religious matters,
discriminating against or hampering such children concerning public benefits all others receive.
[330 U.S. 1, 57] As will be noted, the one gloss is contradicted by the facts of record and the other
is of whole cloth with the 'public function' argument's excision of the religious factor. 52 But
most important is that this approach, if valid, supplies a ready method for nullifying the
Amendment's guaranty, not only for this case and others involving small grants in aid for
religious education, but equally for larger ones. The only thing needed will be for the Court again
to transplant the 'public welfare-public function' view from its proper nonreligious due process
bearing to First Amendment application, holding that religious education is not 'supported'
though it may be aided by the appropriation, and that the cause of education generally is
furthered by helping the pupil to secure that type of training.
This is not therefore just a little case over bus fares. In paraphrase of Madison, distant as it may
be in its present form from a complete establishment of religion, it differs from it only in degree;
and is the first step in that direction. Id., Par. 9.53 Today as in his time 'the same authority which
can force a citizen to contribute three pence only ... for the support of any one religious
establishment, may force him' to pay more; or 'to conform to any other establishment in all cases
whatsoever.' And n w, as then, 'either ... we must say, that the will of the Legislature is the only
measure of their authority; and that in the plenitude of this authority, they may sweep away all
our fundamental rights; or, that they are bound to leave this particular right untouched and
sacred.' Remonstrance, Par. 15.
The realm of religious training and belief remains, as the Amendment made it, the kingdom of
the individual [330 U.S. 1, 58] man and his God. It should be kept inviolately private, not
'entangled ... in precedents'54 or confounded with what legislatures legitimately may take over
into the public domain.
V.
No one conscious of religious values can by unsympathetic toward the burden which our
constitutional separation puts on parents who desire religious instruction mixed with secular for
their children. They pay taxes for others' children's education, at the same time the added cost of
instruction for their own. Nor can one happily see benefits denied to children which others
receive, because in conscience they or their parents for them desire a different kind of training
others do not demand.
But if those feelings should prevail, there would be an end to our historic constitutional policy
and command. No more unjust or discriminatory in fact is it to deny attendants at religious
schools the cost of their transportation than it is to deny them tuitions, sustenance for their
teachers, or any other educational expense which others receive at public cost. Hardship in fact
there is which none can blink. But, for assuring to those who undergo it the greater, the most
comprehensive freedom, it is one written by design and firm intent into our basic law.
Of course discrimination in the legal sense does not exist. The child attending the religious
school has the same right as any other to attend the public school. But he foregoes exercising it
because the same guaranty which assures this freedom forbids the public school or any agency of
the [330 U.S. 1, 59] state to give or aid him in securing the religious instruction he seeks.
Were he to accept the common school, he would be the first to protest the teaching there of any
creed or faith not his own. And it is precisely for the reason that their atmosphere is wholly
secular that children are not sent to public schools under the Pierce doctrine. But that is a
constitutional necessity, because we have staked the very existence of our country on the faith
that complete separation between the state and religion is best for the state and best for religion.
Remonstrance, Par. 8, 12.
That policy necessarily entails hardship upon persons who forego the right to educational
advantages the state can supply in order to secure others it is precluded from giving. Indeed this
may hamper the parent and the child forced by conscience to that choice. But it does not make
the state unneutral to withhold what the Constitution forbids it to give. On the contrary it is only
by observing the prohibition rigidly that the state can maintain its neutrality and avoid
partisanship in the dissensions inevitable when sect opposes sect over demands for public
moneys to further religious education, teaching or training in any form or degree, directly or
indirectly. Like St. Paul's freedom, religious liberty with a great price must be bought. And for
those who exercise it most fully, by insisting upon religious education for their children mixed
with secular, by the terms of our Constitution the price is greater than for others.
The problem then cannot be cast in terms of legal discrimination or its absence. This would be
true, even though the state in giving aid should treat all religious instruction al ke. Thus, if the
present statute and its application were shown to apply equally to all religious schools [330 U.S. 1,
60] of whatever faith,55 yet in the light of our tradition it could not stand. For then the adherent
of one creed still would pay for the support of another, the childless taxpayer with others more
fortunate. Then too there would seem to be no bar to making appropriations for transportation
and other expenses of children attending public or other secular schools, after hours in separate
places and classes for their exclusively religious instruction. The person who embraches no creed
also would be forced to pay for teaching what he does not believe. Again, it was the furnishing of
'contributions of money for the propagation of opinions which he disbelieves' that the fathers
outlawed. That consequence and effect are not removed by multiplying to all-inclusiveness the
sects for which support is exacted. The Constitution requires, not comprehensive identification of
state with religion, but complete separation.
VI.
Short treatment will dispose of what remains. Whatever might be said of some other application
of New Jersey's statute, the one made here has no semblance of bearing as a safety measure or,
indeed, for securing expeditious conveyance. The transportation supplied is by public
conveyance, subject to all the hazards and delays of the highway and the streets incurred by the
public generally in going about its multifarious business.
Nor is the case comparable to one of furnishing fire or police protection, or access to public
highways. These things are matters of common right, part of the general [330 U.S. 1, 61] need for
safety. 56 Certainly the fire department must not stand idly by while the church burns. Nor is this
reason why the state should pay the expense of transportation or other items of the cost of
religious education. 57
Needless to add, we have no such case as Green v. Frazie , 253 U.S. 233 , 40 S.Ct. 499, or
Carmichael v. Southern Coal Co., 301 U.S. 495 , 57 S.Ct. 868, 109 A.L.R. 1327, which dealt
with matters wholly unrelated to the First Amendment, involving only situations where the
'public function' issue was determinative.
I have chosen to place my dissent upon the broad ground I think decisive, though strictly
speaking the case might be decided on narrower issues. The New Jersey statute might be held
invalid on its face for the exclusion of chil- [330 U.S. 1, 62] dren who attend private, profitmaking schools. 58 I cannot assume, as does the majority, that the New Jersey courts would
write off this explicit limitation from the statute. Moreover, the resolution by which the statute
was applied expressly limits its benefits to students of public and Catholic schools. 59 There is
no showing that there are no other private or religious schools in this populous district. 60 I do
not think it can be assumed there were none. 61 But in the view I have taken, it is unnecessary to
limit grounding to these matters. [330 U.S. 1, 63] Two great drives are constantly in motion to
abridge, in the name of education, the complete division of religion and civil authority which our
forefathers made. One is to introduce religious education and observances into the public
schools. The other, to obtain public funds for the aid and support of various private religious
schools. See Johnson, The Legal Status of Church-State Relationships in the United States
(1934); Thayer, Religion in Public Education (1947); Note (1941) 50 Yale L.J. 917. In my
opinion both avenues were closed by the Constitution. Neither should be opened by this Court.
The matter is not one of quantity, to be measured by the amount of money expended. Now as in
Madison's day it is one of principle, to keep separate the separate spheres as the First
Amendment drew them; to prevent the first experiment upon our liberties; and to keep the
question from becoming entangled in corrosive precedents. We should not be less strict to keep
strong and untarnished the one side of the shield of religious freedom than we have been of the
other.
The judgment should be reversed.
APPENDIX.
MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS AS SESSMENTS.
TO THE HONORABLE THE GENERAL ASSEMBLY OF THE COMMONWEALTH OF
VIRGINIA.
A MEMORIAL AND REMONSTRANCE.
We, the subscribers, citizens of the said Commonwealth, having taken into serious consideration,
a Bill printed by order of the last Session of General Assembly, entitled 'A [330 U.S. 1, 64] Bill
establishing a provision for teachers of the Christian Religion,' and conceiving that the same, if
finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as
faithful members of a free State, to remonstrate against it, and to declare the reasons by which
we are determined. We remonstruate against the said Bill,
1. Because we hold it for a fundamental and undeniable truth, 'that religion, or the duty which we
owe to our Creator, and the manner of discharging it, can be directed only by reason and
conviction, not by force or violence.' 1 The Religion then of every man must be left to the
conviction and conscience of every man; and it is the right of every man to exercise it as these
may dictate. This right is in its nature an unalienable right. It is unalienable; because the opinions
of men, depending only on the evidence contemplated by their own minds, cannot follow the
dictates of other men: It is unalienable also; because what is here a right towards men, is a duty
towards the Creator. It is the duty of every man to render to the Creator such homage, and such
only, as he believes to be acceptable to him. This duty is predecent both in order of time and
degree of obligation, to the claims of Civil Society. Before any man can be considered as a
member of Civil Society, he must be considered as a subject of the Governor of the Universe:
And if a member of Civil Society, who enters into any subordinate Association, must always do
it with a reservation of his duty to the general authority; much more must every man who
becomes a member of any particular Civil Society, do it with a saving of his allegiance to the
Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is
abridged by the institution of Civil Society, and that Religion is wholly exempt from its
cognizance. [330 U.S. 1, 65] True it is, that no other rule exists, by which any question which may
divide a Society, can be ultimately determined, but the will of the majority; but it is also true,
that the majority may trespass on the rights of the minority.
2. Because if religion be exempt from the authority of the Society at large, still less can it be
subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the
former. Their jurisdiction is both derivative and limited: it is limited with regard to the coordinate departments, more necessarily is it limited with regard to the constituents. The
preservation of a free government requires not merely, that the metes and bounds which separate
each department of power may be invariably maintained; but more especially, that neither of
them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers
who are guilty of such an encroachment, exceed the commission from which they derive their
authority, and are Tyrants. The People who submit to it are governed by laws made neither by
themselves, nor by an authority derived from them, and are slaves.
3. Because, it is proper to take alarm at the first experiment on our liberties. We hold this prudent
jealousy to be the first duty of citizens, and one of (the) noblest characteristics of the late
Revolution. The freemen of America did not wait till usurped power had strengthened itself by
exercise, and entangled the question in precedents. They saw all the consequences in the
principle, and they avoided the consequences by denying the principle. We revere this lesson too
much, soon to forget it. Who does not see that the same authority which can establish
Christianity, in exclusion of all other Religions, may establish with the same ease any particular
sect of Christians, in exclusion of all other Sects? That the same authority which can force a
citizen to contribute three pence [330 U.S. 1, 66] only of his property for the support of any one
establishment, may force him to conform to any other establishment in all cases whatsoever?
4. Because, the bill violates that equality which ought to be the basis of every law, and which is
more indispensable, in proportion as the validity or expediency of any law is more liable to be
impeached. If 'all men are by nature equally free and independent,'2 all men are to be considered
as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no
less, one than another, of their natural rights. Above all are they to be considered as retaining an
'equal title to the free exercise of Religion according to the dictates of conscience'.3 Whilst we
assert for ourselves a freedom to embrace, to profess and to observe the Religion which we
believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not
yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence
against God, not against man: To God, therefore, not to men, must an account of it be rendered.
As the bill violates equality by subjecting some to peculiar burdens; so it violates the same
principle, by granting to others peculiar exemptions. Are the Quakers and Menonists the only
sects who think a compulsive support of their religions unnecessary and unwarrantable? Can
their piety alone be intrusted with the care of public worship? Ought their Religions to be
endowed above all others, with extraordinary privileges, by which proselytes may be enticed
from all others? We think too favorably of the justice and good sense of these denominations, to
believe that they either covet pre-eminencies over their fellow citizens, or that they will be
seduced by them, from the common opposition to the measure. [330 U.S. 1, 67] 5. Because the bill
implies either that the Civil Magistrate is a competent Judge of Religious truth; or that he may
employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the
contradictory opinions of Rulers in all ages, and throughout the world: The second an
unhallowed perversion of the means of salvation.
6. Because the establishment proposed by the Bill is not requisite for the support of the Christian
Religion. To say that it is, is a contradiction to the Christian Religion itself; for every page of it
disavows a dependence on the powers of this world: it is a contradiction to fact; for it is known
that this Religion both existed and flourished, not only without the support of human laws, but in
spite of every opposition from them; and not only during the period of miraculous aid, but long
after it had been left to its own evidence, and the ordinary care of Providence: Nay, it is a
contradiction in terms; for a Religion not invented by human policy, must have pre-existed and
been supported, before it was established by human policy. It is moreover to weaken in those
who profess this Religion a pious confidence in its innate excellence, and the patronage of its
Author; and to foster in those who still reject it, a suspicion that its friends are too conscious of
its fallacies, to trust it to its own merits.
7. Because experience witnesseth that ecclesiastical establishments, instead of maintaining the
purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries,
has the legal establishment of Christianity been on trial. What have been its fruits? More or less
in all places, pride and indolence in the Clergy; ignorance and servility in the laity; in both,
superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in
which it appeared in its greatest lustre; those of every sect, point to the ages prior [330 U.S. 1, 68]
to its incorporation with Civil policy. Propose a restoration of this primitive state in which its
Teachers depended on the voluntary rewards of their flocks; many of them predict its downfall.
On which side ought their testimony to have greatest weight, when for or when against their
interest?
8. Because the establishment in question is not necessary for the support of Civil Government. If
it be urged as necessary for the support of Civil Government only as it is a means of supporting
Religion, and it be not necessary for the latter purpose, it cannot be necessary for the former. If
Religion be not within (the) cognizance of Civil Government, how can its legal establishment be
said to be becessary to Civil Government? What influence in fact have ecclesiastical
establishments had on Civil Society? In some instances they have been seen to erect a spiritual
tyranny on the ruins of Civil authority; in many instances they have been seen upholding the
thrones of political tyranny; in no instance have they been seen the guardans of the liberties of
the people. Rulers who wished to subvert the public liberties, may have found an established
clergy convenient auxiliaries. A just government, instituted to secure & perpetuate it, needs them
not. Such a government will be best supported by protecting every citizen in the enjoyment of his
Religion with the same equal hand which protects his person and his property; by neither
invading the equal rights by any Sect, nor suffering any Sect to invade those of another.
9. Because the proposed establishment is a departure from that generous policy, which, offering
an asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our
country, and an accession to the number of its citizens. What a melancholy mark is the Bill of
sudden degeneracy? Instead of holding forth an asylum to the persecuted, it is itself a signal [330
U.S. 1, 69] of persecution. It degrades from the equal rank of Citizens all those whose opinions in
Religion do not bend to those of the Legislative authority. Distant as it may be, in its present
form, from the Inquisition it differs from it only in degree. The one is the first step, the other the
last in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign
Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven,
where liberty and philanthropy in their due extent may offer a more certain repose from his
troubles.
10. Because, it will have a like tendency to banish our Citizens. The allurements presented by
other situations are every day thinning their mumber. To superadd a fresh motive to emigration,
by revoking the liberty which they now enjoy, would be the same species of folly which has
dishonoured and depopulated flourishing kingdoms.
11. Because, it will destroy that moderation and harmony which the forbearance of our laws to
intermeddle with Religion, has produced amongst its several sects. Torrents of blood have been
spilt in the old world, by vain attempts of the secular arm to extinguish Religious discord, by
proscribing all difference in Religious opinions. Time has at length revealed the true remedy.
Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to
assuage the disease. The American Theatre has exhibited proofs, that equal and complete liberty,
if it does not wholly eradicate it, sufficiently destroys its malignant influence on the health and
prosperity of the State. If with the salutary effects of this system under o r own eyes, we begin to
contract the bonds of Religious freedom, we know no name that will too severely reproach our
folly. At least let warning be taken at the first fruit of the threatened innovation. The very
appearance of the Bill has transformed that 'Chris- [330 U.S. 1, 70] tian forbearance,4 love and
charity,' which of late mutually prevailed, into animosities and jealousies, which may not soon be
appeased. What mischiefs may not be dreaded should this enemy to the public quiet be armed
with the force of a law?
12. Because, the policy of the bill is adverse to the diffusion of the light of Christianity. The first
wish of those who enjoy this precious gift, ought to be that it may be imparted to the whole race
of mankind. Compare the number of those who have as yet received it with the number still
remaining under the dominion of false Religions; and how small is the former! Does the policy
of the Bill tend to lessen the disproportion? No; it at once discourages those who are strangers to
the light of ( revelation) from coming into the Region of it; and countenances, by example the
nations who continue in darkness, in shutting out those who might convey it to them. Instead of
levelling as far as possible, every obstacle to the victorious progress of truth, the Bill with an
ignoble and unchristian timidity would circumscribe it, with a wall of defence, against the
encroachments of error.
13. Because attempts to enforce by legal sanctions, acts obnoxious to so great a proportion of
Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be
difficult to execute any law which is not generally deemed necessary or salutary, what must be
the case where it is deemed invalid and dangerous? and what may be the effect of so striking an
example of impotency in the Government, on its general authority?
14. Because a measure of such singular magnitude and delicacy ought not to be imposed, without
the clearest evidence that it is called for by a majority of citizens: and no satisfactory method is
yet proposed by which the voice of the majority in this case may be determined, or its influence
secured. 'The people of the respective counties [330 U.S. 1, 71] are indeed requested to signify
their opinion respecting the adoption of the Bill to the next Session of Assembly.' But the
representation must be made equal, before the voice either of the Representatives or of the
Counties, will be that of the people. Our hope is that neither of the former will, after due
consideration, expouse the dangerous principle of the Bill. Should the event disappoint us, it will
still leave us in full confidence, that a fair appeal to the latter will reverse the sentence against
our liberties.
15. Because, finally, 'the equal right of every citizen to the free exercise of his Religion
according to the dictates of conscience' is held by the same tenure with all our other rights. If we
recur to its origin, it is equally the gift of nature; if we weigh its importance, it cannot be less
dear to us; if we consult the Declaration of those rights which pertain to the good people of
Virginia, as the 'basis and foundation of Government,'5 it is enumerated with equal solemnity, or
rather studied emphasis. Either then, we must say, that the will of the Legislature is the only
measure of their authority; and that in the plentitude of this authority, they may sweep away all
our fundamental rights; or, that they are bound to leave this particular right untouched and
sacred: Either we must say, that they may controul the freedom of the press, may abolish the trial
by jury, may swallow up the Executive and Judiciary Powers of the State; nay that they may
despoil us of our very right of suffrage, and erect themselves into an independent and hereditary
assembly: or we must say, that they have no authority to enact into law the Bill under
consideration. We the subscribers say, that the General Assembly of this Commonwealth have
no such authority: A d that no effort may be omitted on our part against so dangerous an
usurpation, we oppose to it, this remonstrance; earnestly praying, as we are in duty [330 U.S. 1, 72]
bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it is
addressed, may on the one hand, turn their councils from every act which would affront his holy
prerogative, or violate the trust committed to them: and on the other, guide them into every
measure which may be worthy of his (blessing, may re) dound to their own praise, and may
establish more firmly the liberties, the prosperity, and the Happiness of the Commonwealth. II
Madison, 183-191.
SUPPLEMENTAL APPENDIX.
A Bill Establishing A Provision for Teachers of the Christian Religion.
Whereas the general diffusion of Christian knowledge hath a natural tendency to correct the
morals of men, restrain their vices, and preserve the peace of society; which cannot be effected
without a competent provision for learned teachers, who may be thereby enabled to devote their
time and attention to the duty of instructing such citizens, as from their circumstances and want
of education, cannot otherwise attain such knowledge; and it is judged that such provision may
be made by the Legislature, without counteracting the liberal principle heretofore adopted and
intended to be preserved by abolishing all distinctions of pre- eminence amongst the different
societies or communities of Christians;
Be it therefore enacted by the General Assembly, that for the support of Christian teachers,-per
centum on the amount, or-in the pound on the sum payable for tax on the property within this
Commonwealth, is hereby assessed, and shall be paid by every person chargeable with the said
tax at the time the same shall become due; and the Sheriffs of the several Counties shall have
power to levy and collect the same in the same manner and under [330 U.S. 1, 73] the like
restrictions and limitations, as are or may be prescribed by the laws for raising the Revenues of
this State.
And be it enacted, That for every sum so paid, the Sheriff or Collector shall give a receipt,
expressing therein to what socity of Christians the person from whom he may receive the same
shall direct the money to be paid, keeping a distinct account thereof in his books. The Sheriff of
every County, shall, on or before the _ _ day of _ _ in every year, return to the Court, upon oath,
two alphabetical lists of the payments to him made, distinguishing in columns opposite to the
names of the persons who shall have paid the same, the society to which the money so paid was
by them appropriated; and one column for the names where no appropriation shall be made. One
of which lists, after being recorded in a book to be kept for that purpose, shall be filed by the
Clerk in his office; the other shall be the Sheriff be fixed up in the Court-house, there to remain
for the inspection of all concerned. And the Sheriff, after deducting five per centum for the
collection, shall forthwith pay to such person or persons as shall be appointed to receive the same
by the Vestry, Elders, or Directors, however, denominated of each such society, the sum so
stated to be due to that society; or in default thereof, upon the motion of such person or persons
to the next or any succeeding Court, execution shall be awarded for the same against the Sheriff
and his security, his and their executors or administrators; provided that ten days previous notice
be given of such motion. An upon every such execution, the Officer serving the same shall
proceed to immediate sale of the estate taken, and shall not accept of security for payment at the
end of three months, nor to have the goods forthcoming at the day of sale; for his better direction
wherein, the Clerk shall endorse upon every such execution that no security of any kind shall be
taken. [330 U.S. 1, 74] And be it further enacted, That the money to be raised by virtue of this Act,
shall be by the Vestr es, Elders, or Directors of each religious society, appropriated to a provision
for a Minister or Teacher of the Gospel of their denomination, or the providing place of divine
worship, and to none other use whatsoever; except in the denominations of Quakers and
Menonists, who may receive what is collected from their members, and place it in their general
fund, to be disposed of in a manner which they shall think best calculated to promote their
particular mode of worship. DP And be it enacted, That all sums which at the time of payment to
the Sheriff or Collector may not be appropriated by the person paying the same, shall be
accounted for with the Court in manner as by this Act is directed; and after deducting for his
collection, the Sheriff shall pay the amount thereof (upon account certified by the Court to the
Auditors of Public Accounts, and by them to the Treasurer) into the public Treasury, to be
disposed of under the direction of the General Assembly, for the encouragement of seminaries of
learning within the Counties whence such sums shall arise, and to no other use or purpose
whatsoever.
THIS Act shall commence, and be in force, from and after the-day of _ _ in the year _ _.
A Copy from the Engrossed Bill.
John Beckley, C.H.D.
Washington Mss. (Papers of George Washington, Vol. 231); Library of Congress. *
Footnotes
[ Footnote 1 ] 'Whenever in any district there are children living remote from any schoolhouse,
the board of education of the district may make rules and contracts for the transportation of such
children to and from school, including the transportation of school children to and from school
other than a public school, except such school as is operated for profit in whole or in part.
'When any school district provides any transportation for public school children to and
from school, transportation from any point in such established school route to any other
point in such established school route shall be supplied to school children residing in such
school district in going to and from school other than a public school, except such school
as is operated for profit in whole or in part.' New Jersey Laws 1941, c. 191, p. 581,
N.J.Rev.Stat. 18:14-8, N.J.S.A.
[ Footnote 2 ] Appellant does not challenge the New Jersey statute or the resolution on the
ground that either violates the equal protection clause of the Fourteenth Amendment by
excluding payment for the transportation of any pupil who attends a 'private school run for
profit.' Although the township resolution authorized reimbursement only for parents of public
and Catholic school pupils, appellant does not allege, nor is there anything in the record which
would offer the slightest support to an allegation, that there were any children in the township
who attended or would have attended, but for want of transportation, any but public and Catholic
schools. It will be appropriate to consider the exclusion of students of private schools operated
for profit when and if it is proved to have occurred, is made the basis of a suit by one in a
position to challenge it, and New Jersey's highest court has ruled adversely to the challenger.
Striking down a state law is not a matter of such light moment that it should be done by a federal
court ex mero motu on a postulate neither charged nor proved, but which rests on nothing but a
possibility. Cf. Liverpool, New York & Philadelphia Steamship Co. v. Com'rs of Emigration,
113 U.S. 33, 39 , 5 S.Ct. 352, 355.
[ Footnote 3 ] It might hold the excepting clause to be invalid, and sustain the statute with that
clause excised. Section 1:1-10 N.J.Rev.Stat., N.J.S.A., provides with regard to any statute that if
'any provision thereof, shall be declared to be unconstitutional ... in whole or in part, by a court
of competent jurisdiction, such ... article shall, to the extent that it is not unconstitutional, ... be
enforced ....' The opinion of the Court of Errors and Appeals in this very case suggests that state
law now authorizes transportation of all pupils. Its opinion stated: 'Since we hold that the
legislature may appropriate general state funds or authorize the use of local funds for the
transportation of pupils to any school, we conclude that such authorization of the use of local
funds is likewise authorized by P.L.1941, Chapter 191, and R.S. 18:7-78.' 133 N.J.L. 350, 354,
44 A.2d 333, 337. (Italics supplied.)
[ Footnote 4 ] See Reynolds v. United States, 98 U.S. 145 , 162; cf. Knowlton v. Moore, 178
U.S. 41, 89 , 106 S., 20 S.Ct. 747, 766, 772.
[ Footnote 5 ] See e.g. Macaulay, History of England (1849) I, cc. 2, 4; The Cambridge Modern
History (1908) V, cc. V, IX, XI; Beard, Rise of American Civilization (1937) I, 60; Cobb,
Religious Liberty in America (1902) c. II; Sweet, The Story of Religion in America (1939) c. II;
Sweet, Religion in Colonial America (194 ) 320-322.
[ Footnote 6 ] See e.g. the charter of the colony of Carolina which gave the grantees the right of
'patronage and advowsons of all the churches and chapels ... together with licence and power to
build and found churches, chapels and oratories ... and to cause them to be dedicated and
consecrated, according to the ecclesiastical laws of our kingdom of England.' Poore,
Constitutions (1878) II, 1390, 1391. That of Maryland gave to the grantee Lord Baltimore 'the
Patronages and Advowsons of all Churches which ... shall happen to be built, together with
Licence and Faculty of erecting and founding Churches, Chapels, and Places of Worship ... and
of causing the same to be dedicated and consecrated according to the Ecclesiastical Laws of our
Kingdom of England, with all, and singular such, and as ample Rights, Jurisdictions, Privileges,
... as any Bishop ... in our Kingdom of England ever ... hath had. ...' McDonald, Documentary
Source Book of American History (1934) 31, 33. The Commission of New Hampshire of 1680,
Poore, supra, II, 1277, stated: 'And above all things We do by these presents will, require and
comand our said Councill to take all possible care for ye discountenancing of vice and
encouraging of virtue and good living; and that by such examples ye infidle may be invited and
desire to partake of ye Christian Religion, and for ye greater ease and satisfaction of ye sd loving
subjects in matters of religion, We do hereby require and comand yt liberty of conscience shall
be allowed unto all protestants; yt such especially as shall be conformable to ye rites of ye
Church of Engd shall be particularly countenanced and encouraged.' See also Town of Pawlet v.
Clark, 9 Cranch 292.
[ Footnote 7 ] See e.g. Semple, Baptists in Virginia (1894); Sweet, Religion in Colonial America,
supra at 131-152, 322-339.
[ Footnote 8 ] Almost every colony exacted some kind of tax for church support. See e.g. Cobb,
op. cit. supra, note 5, 110 (Virginia); 131 (North Carolina ); 169 (Massachusetts); 270
(Connecticut); 304, 310, 339 (New York); 386 ( Maryland); 295 (New Hampshire).
[ Footnote 9 ] Madison wrote to a friend in 1774: 'That diabolical, hell-conceived principle of
persecution rages among some. ... This vexes me the worst of anything whatever. There are at
this time in the adjacent country not less than five or six well-meaning men in close jail for
publishing their religious sentiments, which in the main are very orthodox. I have neither
patience to hear, talk, or think of anything relative to this matter; for I have squabbled and
scolded, abused and ridiculed, so long about it to little purpose, that I am without common
patience. So I must beg you to pity me, and pray for liberty of conscience to all.' I Writings of
James Madison (1900) 18, 21.
[ Footnote 10 ] Virginia's resistance to taxation for church support was crystalized in the famous
'Parson's Case' argued by Patrick Henry in 1763. For an account see Cobb, op. cit., supra, note 5,
108-111.
[ Footnote 11 ] II Writings of James Madison, 183.
[ Footnote 12 ] In a recently discovered collection of Madison's papers, Madison recollected that
his Remonstrance 'met with the approbation of the Baptists, the Presby-terians, the Quakers, and
the few Roman Catholics, universally; of the Methodists in part; and even of not a few of the
Sect formerly established by law.' Madison, Monopolies, Perpetuities, Corporations,
Ecclesiastical Endowments, in Fleet, Madison's 'Detached Memorandum,' 3 William and Mary
Q. (1946) 534, 551, 555.
[ Footnote 13 ] For accounts of background and evolution of the Virginia Bill for Religious
Liberty see e.g. James, The Struggle for Religious Liberty in Virginia (1900); Thom, The
Struggle for Religious Freedom in Virginia; the Baptists (1900); Cobb, op. cit., supra, note 5, 74115; Madison, Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments, op. cit .,
supra, note 12, 554, 556.
[ Footnote 14 ] 12 Hening, Statutes of Virginia (1823) 84; Commager, Documents of American
History (1944) 125.
[ Footnote 15 ] Permoli v. Municipality No. 1 of City of New Orleans, 3 How. 589. Cf. Barron,
for Use of Tiernan v. Mayor and City Council of City of Baltimore, 7 Pet. 243.
[ Footnote 16 ] For a collection of state constitutional provisions on freedom of religion see
Gavel, Public Funds for Church and Private Schools (1937) 148- 149. See also 2 Cooley,
Constitutional Limitations (1927) 960-985.
[ Footnote 17 ] Test provisions forbade office holders to 'deny ... the truth of the Protestant
religion,' e.g. Constitution of North Carolina 1776, XXXII, II Poore, supra, 1413. Maryland
permitted taxation for support of the Christian religion and limited civil office to Christians until
1818, Id., I, 819, 820, 832.
[ Footnote 18 ] See Note 50 Yale L.J. (1941) 917; see also cases collected Synod of Dakota v.
State, 2 S.D. 366, 50 N.W. 632, 14 L.R.A. 418; 5 A.L.R. 879; 141 A.L.R. 1148.
[ Footnote 19 ] See cases collected Synod of Dakota v. State, 2 S.D. 366, 50 N.W. 632, 14
L.R.A. 418; 5 A.L.R. 879; 141 A.L.R. 1148.
[ Footnote 20 ] Ibid. See also Cooley, op. cit., supra, note 16.
[ Footnote 21 ] Terrett v. Taylor, 9 Cranch 43; Watson v. Jones, 13 Wall. 679; Davis v. Beason,
133 U.S. 333 , 10 S.Ct. 299; Cf. Reynolds v. United States, supra, 98 U.S. 162 ; Reuben Quick
Bear v. Leupp, 210 U.S. 50 , 28 S.Ct. 690.
[ Footnote 22 ] Cantwell v. State of Conn., 310 U.S. 296 , 60 S.Ct. 900, 128 A.L.R. 1352;
Jamison v. State of Texas, 318 U.S. 413 , 63 S.Ct. 669; Largent v. State of Texas, 318 U.S. 418 ,
63 S.Ct. 667; Murdock v. Commonwealth of Pennsylvania, supra; West Virginia State Board of
Education v. Barnette, 319 U.S. 624 , 63 S.Ct. 1178, 147 A.L.R. 674; Follett v. Town of
McCormick, 321 U.S. 573 , 64 S.Ct. 717, 152 A.L.R. 317; Marsh v. State of Alabama, 326 U.S.
501 , 66 S.Ct. 276; Cf. Bradfield v. Roberts, 175 U.S. 291 , 20 S.Ct. 121.
[ Footnote 23 ] Harmon v. Dreher, 1843, Speer's Eq., S.C., 87, 120.
[ Footnote 24 ] New Jersey long ago permitted public utilities to charge school children reduced
rates. See Public Service R. Co. v. Board of Public Utility Com'rs. 1917, 81 N.J.L. 363, 80 A. 27;
see also Interstate Consolidated Street Ry. Co. v. Commonwealth of Mass., supra. The District of
Columbia Code requires that the new charter of the District public transportation company
provide a three cent fare 'for school children ... going to and from public, parochial or like
schools ....' Act Jan. 14, 1933, 1, subd. 19, 47 Stat. 752, 759, D.C.Code 1940, 44-214 note.
[ Footnote 1 ] See Cubberley, Public Education in the United States (1934) ch. VI; Knight,
Education in the United States (1941) ch. VIII.
[ Footnote 1 ] 'A Bill for Establishing Religious Freedom,' enacted by the General Assembly of
Virginia, January 19, 1786. See 1 Randall, The Life of Thomas Jefferson (1858) 219-220; XII
Hening's Statutes of Virginia (1823) 84.
[ Footnote 2 ] Schneider v. State, 308 U.S. 147 , 60 S.Ct. 146; Cantwell v. Connecticut, 310 U.S.
296 , 60 S.Ct. 900, 128 A. L.R. 1352; Murdock v. Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870,
146 A.L.R. 81; Prince v. Massachusetts, 321 U.S. 158 , 64 S.Ct. 438; Thomas v. Collins, 323
U.S. 516, 530 , 65 S.Ct. 315, 322.
[ Footnote 3 ] The briefs did not raise the First Amendment issue. The only one presented was
hether the state's action involved a public or an exclusively private function under the due
process clause of the Fourteenth Amendment. See Part IV, infra. On the facts, the cost of
transportation here is inseparable from both religious and secular teaching at the religious school.
In the Cochran case the state furnished secular textbooks only. But see text infra at note 40 et
seq., and Part IV.
[ Footnote 4 ] Cf. note 3 and text Part IV; see also note 35.
[ Footnote 5 ] The statute reads: 'Whenever in any district there are children living remote from
any schoolhouse, the board of education of the district may make rules and contracts for the
transportation of such children to and from school ... other than a public school, except such
school as is operated for profit in whole or in part.
'When any school district provides any transportation for public school children to and
from school, transportation from any point in such established school route to any other
point in such established school route shall be supplied to school children residing in such
school district in going to and from school other than a public school, except such school
as is operated for profit in whole or in part.' Laws of New Jersey 1941, c. 191, N.J.S.A.
18:14-8.
[ Footnote 6 ] The full text of the resolution is given in note 59 infra.
[ Footnote 7 ] The public schools attended were the Trenton Senior High School, the Trenton
Junior High School and the Pennington High School. Ewing Township itself provides no public
high schools, affording only elementary public schools which stop with the eighth grade. The
Ewing school board pays for both transportation and tuitions of pupils attending the public high
schools. The only private schools, all Catholic, covered in application of the resolution are St.
Mary's Cathedral High School, Trenton Catholic Boys High School, and two elementary
parochial schools, St. Hedwig's Parochial School and St. Francis School. The Ewing board pays
only for transportation to these schools, not for tuitions. So far as the record discloses the board
does not pay for or provide transportation to any other elementary school, public or private. See
notes 58, 59 and text infra.
[ Footnote 8 ] IX Writings of James Madison (ed. by Hunt, 1904) 288; Padover, Jefferson (1942)
74. Madison's characterization related to Jefferson's entire revision of the Virginia Code, of
which the Bill for Establishing Religious Freedom was part. See note 15.
[ Footnote 9 ] See Reynolds v. United States, 98 U.S. 145 ; Davis v. Beason, 133 U.S. 333 , 10
S.Ct. 299; Mormon Church v. United States, 136 U.S. 1 , 10 S.Ct. 792; Jacobson v.
Massachusetts, 197 U.S. 11 , 25 S.Ct. 358, 3 Ann.Cas. 765; Prince v. Massachusetts, 321 U.S.
158 , 64 S.Ct. 438; also Cleveland v. United States, 329 U.S. 14 , 67 S.Ct. 13.
Possibly the first official declaration of the 'clear and present danger' doctrine was Jefferson's
declaration in the Virginia Statute for Establishing Religious Freedom: 'that it is time enough for
the rightful purposes of civil government, for its officers to interfere when principles break out
into overt acts against peace and good order.' 1 Randall, The Life of Thoma Jefferson (1858)
220; Padover, Jefferson (1942) 81. For Madison's view to the same effect, see note 28 infra.
[ Footnote 10 ] Murdock v. Pennsylvania, 319 U.S. 105, 109 , 63 S.Ct. 870, 873, 146 A.L.R. 81;
Martin v. Struthers, 319 U.S. 141 , 63 S.Ct. 862; Jamison v. Texas, 318 U.S. 413 , 63 S.Ct. 669;
Marsh v. Alabama, 326 U.S. 501 , 66 S.Ct. 276; Tucker v. Texas, 326 U.S. 517 , 66 S.Ct. 274.
[ Footnote 11 ] Conflicts in other states, and earlier in the colonies, contributed much to
generation of the Amendment, but none so directly as that in Virginia or with such formative
influence on the Amendment's content and wording. See Cobb, Religious Liberty in America
(1902); Sweet, The Story of Religion in America (1939). The Charter of Rhode Island of 1663, II
Poore, Constitutions (1878) 1595, was the first colonial charter to provide for religious freedom.
The climactic period of the Virginia struggle covers the decade 1776- 1786, from adoption of the
Declaration of Rights to enactment of the Statute for Religious Freedom. For short accounts see
Padover, Jefferson ( 1942) c. V; Brant, James Madison, The Virginia Revolutionist (1941) cc.
XII, XV; James, The Struggle for Religious Liberty in Virginia (1900) cc. X, XI; Eckenrode,
Separation of Church and State in Virginia (1910). These works and Randall, see note 1, will be
cited in this opinion by the names of their authors. Citations to 'Jefferson' refer to The Works of
Thomas Jefferson (ed. by Ford, 1904-1905); to 'Madison,' to The Writings of James Madison
(ed. by Hunt, 1901-1910).
[ Footnote 12 ] Brant, cc. XII, XV; James, cc. X, XI; Eckenrode.
[ Footnote 13 ] See Brant, c. XII, particularly at 243. Cf. Madison's Remonstrance, Appendix to
this opinion. Jefferson of course held the same view. See note 15.
'Madison looked upon ... religious freedom, to judge from the concentrated attention he
gave it, as the fundamental freedom.' Brant, 243; and see Remonstrance, Par. 1, 4, 15,
Appendix.
[ Footnote 14 ] See Brant, 245-246. Madison quoted liberally from the Declaration in his
remonstrance and the use made of the quotations indicates that he considered the Declaration to
have outlawed the prevailing establishment in principle, if not technically.
[ Footnote 15 ] Jefferson was chairman of the revising committee and chief draftsman.
Corevisers were Wythe, Pendleton, Mason and Lee. The first enacted portion of the revision,
which became known as Jefferson's Code, was the statute barring entailments. Primogeniture
soon followed. Much longer the author was to wait for enactment of the Bill for Religious
Freedom; and not until after his death was the corollary bill to be accepted in principle which he
considered most important of all, namely, to provide for common education at public expense.
See V Jefferson, 153. However, he linked this with disestablishment as collorary prime parts in a
system of basic freedoms. I Jefferson, 78.
Jefferson and Madison by his sponsorship, sought to give the Bill for Establishing Religious
Freedom as nearly constitutional status as they could at the time. Acknowledging that one
legislature could not 'restrain the acts of succeeding Assemblies and that therefore to declare this
act to be irrevocable would be of no effect in law,' the Bill's concluding provision as enacted
nevertheless asserted: 'Yet we are free to declare, and do declare, that the rights hereby asserted
are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the
present or to narrow its operations, such act will be an infringement of natural right.' 1 Randall,
220.
[ Footnote 16 ] See I Jefferson, 70-71; XII Jefferson, 447; Padover, 80.
[ Footnote 17 ] Madison regarded this action as desertion. See his letter to Monroe of April 12,
1785; II Madison, 129, 131-132; James, cc. X, XI. But see Eckenrode, 91, suggesting it was
surrender to the inevitable.
The bill provided: 'That for every sum so paid, the Sheriff or Collector shall give a receipt,
expressing therein to what society of Christians the person from whom he may receive the same
shall direct the money to be paid. ...' See also notes 19, 43 infra.
A copy of the Assessment Bill is to be found among the Washington manuscripts in the Library
of Congress. Papers of George Washington, Vol. 231. Because of its crucial role in the Virginia
struggle and bearing upon the First Amendment's meaning, the text of the Bill is et forth in the
Supplemental Appendix to this opinion.
[ Footnote 18 ] Eckenrode, 99, 100.
[ Footnote 19 ] Id., 100; II Madison, 113. The bill directed the sheriff to pay 'all funds which ...
may not be appropriated by the person paying the same ... into the public Treasury, to be
disposed of under the direction of the General Assembly, for the encouragement of seminaries of
learning within the Counties whence such sums shall arise, and to no other use or purpose
whatsoever.' Supplemental Appendix.
[ Footnote 20 ] See generally Eckenrode, c. V; Brant, James, and other authorities cited in note
11 above.
[ Footnote 21 ] II Madison, 183; and the Appendix to this opinion. Eckenrode, 100 ff. See also
Fleet, Madison's 'Detached Memoranda' (1946) III William & Mary Q. (3d Series) 534, 554-562.
[ Footnote 22 ] The major causes assigned for its defeat include the elevation of Patrick Henry to
the governorship in November of 1784; the blunder of the proponents in allowing the Bill for
Incorporations to come to the floor and incur defeat before the Assessment Bill was acted on;
Madison's astute leadership, taking advantage of every 'break' to convert his initial minority into
a majority, including the deferment of action on the third, reading to the fall; the Remonstrance,
bringing a flood of protesting petitions; and the general poverty of the time. See Eckenrode, c. V,
for an excellent short, detailed account.
[ Footnote 23 ] See James, Brant, op. cit. supra note 11.
[ Footnote 24 ] V Madison, 176. Cf. notes 33, 37.
[ Footnote 25 ] V Madison, 132.
[ Footnote 26 ] Brant, 250. The assurance made first to his constituents was responsible for
Madison's becoming a member of the Virginia Convention which ratified the Constitution. See
James, 154-158.
[ Footnote 27 ] The amendment with respect to religious liberties read, as Madison introduced it:
'The civil rights of none shall be abridged on account of religious belief or worship, nor shall any
national religion be established, nor shall the full and equal rights of conscience be in any
manner, or on any pretext, infringed.' 1 Annals of Congress 434. In the process of debate this
was modified to its present form. See especially 1 Annals of Congress 729-731, 765; also note
34.
[ Footnote 28 ] See text of the Remonstrance, Appendix; also notes 13, 15, 24, 25 supra and text.
Madison's one exception concerning restraint was for 'preserving public order.' Thus he declared
in a private letter, IX Madison, 484, 487, written after the First Amendment was adopted: 'The
tendency to a usurpation on one side or the other, or to a corrupting coalition or alliance between
them, will be best guarded agst. by an entire abstinance of the Govt. from interference in any
way whatever, beyond the necessity of preserving public order, & protecting each sect agst.
trespasses on its legal rights by others.' Cf. note 9.
[ Footnote 29 ] The third ground of remonstrance, see the Appendix, bears repetition for
emphasis here: 'Because, it is proper to take alarm at the first experiment on our liberties. ... The
freemen of America did not wait till usurped power had strengthened itself by exercise, and
entangled the question in precedents. They saw all the consequences in the principle, and they
avoided the consequences by denying the principle. We revere this lesson too much, soon to
forget it. Who does not see that ... the same authority which can force a citizen to contribute three
pence only of his property for the support of any one establishment, may force him to conform to
any other establishment in all cases whatsoever?' (Emphasis added.) II Madison 183, 185-186.
[ Footnote 30 ] Eckenrode, 105, in summary of the Remonstrance.
[ Footnote 31 ] 'Because the bill implies either that the Civil Magistrate is a competent Judge of
Religious truth, or that he may employ Religion as an engine of Civil policy. The first is an
arrogant pretention falsified by the contradictory opinion of Rulers in all ages, and throughout
the world: The second an unhallowed perversion of the means of salvation.' Remonstrance,
Appendix, Par. 5; II Madison 183, 187.
[ Footnote 32 ] As is pointed out above, note 3, and in Part IV infra, Cochran v. Louisiana State
Board of Education, 281 U.S. 370 , 50 S.Ct. 335, was not such a case.
[ Footnote 33 ] See text supra at notes 24, 25. Madison, of course, was but one of many holding
such views, but nevertheless agreeing to the common understanding for adoption of a Bill of
Rights in order to remove all doubt engendered by the absence of explicit guaranties in the
original Constitution.
By 1791 the great fight over establishments had ended, although some vestiges remained then
and later, even in Virginia. The glebes, for example, were not sold there until 1802. Cf.
Eckenrode, 147. Fixing an exact date for 'disestablishment' is almost impossible, since the
process was piecemeal. Although Madison failed in having the Virginia Bill of Rights declare
explicitly against establishment in 1776, cf. note 14 and text supra, in 1777 the levy for support
of the Anglican clergy was suspended. It was never resumed. Eckenrode states: 'This act, in
effect, destroyed the establishment. Many dates have been given for its end, but it really came on
January 1, 1777, when the act suspending the payment of tithes became effective. This was not
seen at the time. ... But in freeing almost half of the taxpayers from the burden of the state
religion, the state religion was at an end. Nobody could be forced to support it, and an attempt to
levy tithes upon Anglicans alone would be to recruit the ranks of dissent.' P. 53. See also pp. 61,
64. The question of assessment however was revived 'with far more strength than ever, in the
summer of 1784.' Id., 64. It would seem more factual therefore to fix the time of
disestablishment as of December, 1785-January, 1786, when the issue in large was finally
settled.
[ Footnote 34 ] At one point the wording was proposed: 'No religion shall be established by law,
nor shall the rights of conscience be infringed.' 1 Annals of Congress 729. Cf. note 27.
Representative Huntington of Connecticut feared this might be construed to prevent judicial
enforcement of private pledges. He stated 'that he feared ... that the words might be taken in such
latitude as to be extremely hurtful to the cause of religion. He understood the amendment to
mean what had been expressed by the gentleman from Virginia; but others might find it
convenient to put another construction upon it. The ministers of their congregations to the
Eastward were maintained by the contributions of those who belonged to their society; the
expense of building meeting-houses was contributed in the same manner. These things were
regulated by by-laws. If an action was brought before a Federal Court on any of these cases, the
person who had neglected to perform his engagements could not be compelled to do it; for a
support of ministers or building of places of worship might be construed into a religious
establishment.' 1 Annals of Congress 730.
To avoid any such possibility, Madison suggested inserting the word 'national' before 'religion,'
thereby not only again disclaiming intent to bring about the result Huntington feared but also
showing unmistakably that 'establishment' meant public 'support' of religion in the financial
sense. I Annals of Congress 731. See also IX Madison, 484-487.
[ Footnote 35 ] The decision most closely touching the question, where it was squarely raised, is
Quick Bear v. Leupp, 210 U.S. 50 , 28 S.Ct. 690. The Court distinguished sharply between
appropriations from public funds for the support of religious education and appropriations from
funds held in trust by the Government essentially as trustee for private individuals, Indian wards,
as beneficial owners. The ruling was that the latter could be disbursed to private, religious
schools at the designation of those patrons for paying the cost of their education. But it was
stated also that such a use of public moneys would violate both the First Amendment and the
specific statutory declaration involved, namely, that 'it is hereby declared to be the settled policy
of the government to hereafter make no appropriation whatever for education in any sectarian
school.' 210 U.S. at page 79, 28 S.Ct. at page 697. Cf. Ponce v. Roman Catholic Apostolic
Church, 210 U.S. 296, 322 , 28 S.Ct. 737, 747. And see Bradfield v. Roberts, 175 U.S. 291 , 20
S.Ct. 121, an instance of highly artificial grounding to support a decision sustaining an
appropriation for the care of indigent patients pursuant to a contract with a private hospital. Cf.
also the authorities cited in note 9.
[ Footnote 36 ] See text at note 1.
[ Footnote 37 ] '... but o religious Test shall ever be required as a Qualification to any Office or
public Trust under the United States.' Const. Art. VI, cl. 3. See also the two forms prescribed for
the President's Oath or Affirmation. Const. Art. II, 1. Cf. Ex parte Garland, 4 Wall. 333;
Cummings v. Missouri, 4 Wall. 277; Lovett v. United States, 328 U.S. 303 , 66 S.Ct. 1073.
[ Footnote 38 ] In the words of the Virginia statute, following the portion of the preamble quoted
at the beginning of this opinion: '... even the forcing him to support this or that teacher of his own
religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the
particular pastor whose morals he would make his pattern, and whose powers he feels most
persuasive to righteousness, and is withdrawing from the ministry those rewards, which
proceeding from an approbation of their personal conduct, are an additional incitement to earnest
and unremitting labors for the instruction of mankind.' Cf. notes 29, 30, 31 and text supra.
[ Footnote 39 ] See note 38.
[ Footnote 40 ] See Bower, Church and State in Education (1944) 58: '... the fundamental
division of the education of the whole self into the secular and the religious could not be justified
on the grounds of either a sound educational philosophy or a modern functional concept of the
relation of religion to personal and social experience.' See also Vere, The Elementary School, in
Essays on Catholic Education in the United States (1942) 110- 111; Gabel, Public Funds for
Church and Private Schools (1937) 737-739.
[ Footnote 41 ] It would seem a strange ruling that a 'reasonable,' that is, presumably a small,
license fee cannot be placed upon the exercise of the right of religious instruction, yet that under
the correlative constitutional guaranty against 'an establishment' taxes may be levied and used to
aid and promote religious instruction, if only the amounts so used are small. See notes 30-31
supra and text.
Madison's objection to 'three pence' contributions and his stress upon 'denying the principle'
without waiting until 'usurped power had ... entangled the question in precedents,' note 29, were
reinforced by his further characterization of the Assessment Bill: 'District as it may be, in its
present form, from the Inquisition it differs from it only in degree. The one is the first step, the
other the last in the career of intolerance.' Remonstrance, Par. 9; II Madison 183, 188.
[ Footnote 42 ] If it is part of the state's function to supply to religious schools or their patrons
the smaller items of educational expense, because the legislature may say they perform a public
function, it is hard to see why the larger ones also may not be paid. Indeed, it would seem even
more proper and necessary for the state to do this. For if one class of expenditures is justified on
the ground that it supports the general cause of education or benefits the individual, or can be
made to do so by legislative declaration, so even more certainly would be the other. To sustain
payment for transportation to school, for textbooks, for other essential materials, or perhaps for
school lunches, and not for what makes all these things effective for their intended end, would be
to make a public function of the smaller items and their cumulative effect, but to make wholly
private in character the larger things without which the smaller could have no meaning or use.
[ Footnote 43 ] 'Whereas the general diffusion of Christian knowledge hath a natural tendency to
correct the morals of men, restrain their vices, and preserve the peace of society; which cannot be
effected without a competent provision for learned teachers, who may be thereby enabled to
devote their time and attention to the duty of instructing such citizens, as from their
circumstances and want of education, cannot otherwise attain such knowledge; and it is judged
that such provision may be made by the Legislature, without counteracting the liberal principle
heretofore adopted and intended to be preserved by abolishing all distinctions of pre- eminence
amongst the different societies of communities of Christians; ... ' Supplemental Appendix; Foote,
Sketches of Virginia (1850) 340.
[ Footnote 44 ] 'Because the Establishment proposed by the Bill is not requisite for the support of
the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself; for
every page of it disavows a dependence on the powers of this world. ... Because the
establishment in question is not necessary for the support of Civil Government. ... What
influence in fact have ecclesiastical establishments had on Civil Society? ... in no instance have
they been seen the guardians of the l berties of the people.' II Madison 183, 187, 188.
[ Footnote 45 ] 'Because experience witnesseth that ecclesiastical establishments, instead of
maintaining the purity and efficacy of Religion, have had a contrary operation.' II Madison 183,
187.
[ Footnote 46 ] 'At least let warning be taken at the first fruit of the threatened innovation. The
very appearance of the Bill has transformed that 'Christian forbearance, love and charity,' which
of late mutually prevailed, into animosities and jealousies, which may not soon be appeased.' II
Madison 183, 189.
[ Footnote 47 ] In this case briefs amici curiae have been filed on behalf of various organizations
representing three religious sects, one labor union, the American Civil Liberties Union, and the
states of Illinois, Indiana, Louisiana, Massachusetts, Michigan and New York. All these states
have laws similar to New Jersey's and all of them, with one religious sect, support the
constitutionality of New Jersey's action. The others oppose it. Maryland and Mississippi have
sustained similar legislation. Note 49 infra. No state without legislation of this sort has filed an
opposing brief. But at least six states have held such action invalid, namely, Delaware,
Oklahoma, New York, South Dakota, Washington and Wisconsin. Note 49 infra. The New York
ruling was overturned by amendment to the state constitution in 1938. Constitution of New York,
Art. XI, 4.
Furthermore, in this case the New Jersey courts divided, the Supreme Court holding the statute
and resolution invalid, 132 N.J.L. 98, 39 A.2d 75, the Court of Errors and Appeals reversing that
decision, 133 N.J.L. 350, 44 A.2d 333. In both courts, as here, the judges split, one of three
dissenting in the Supreme Court, three of nine in the Court of Errors and Appeals. The division is
typical. See the cases cited in note 49.
[ Footnote 48 ] See the authorities cited in note 49; and see note 54.
[ Footnote 49 ] Some state courts have sustained statutes granting free transportation or free
school books to children attending demoninational schools on the theory that the aid was a
benefit to the child rather than to the school. See Nichols v. Henry, 301 Ky. 434, 191 S.W.2d
930, with which compare Sherrard v. Jefferson County Board of Education, 294 Ky. 469, 171
S.W.2d 963; Cochran v. Louisiana State Board of Education, 168 La. 1030, 123 So. 664,
affirmed 281 U.S. 370 , 50 S.Ct. 335; Borden v. Louisiana State Board of Education, 168 La.
1005, 123 So. 655, 67 A.L.R. 1183; Board of Education v. Wheat, 174 Md. 314, 199 A. 628;
Adams v. County Com'rs of St. Mary's County, 180 Md. 550, 26 A.2d 370; Chance v.
Mississippi State Textbook R. & O. Board, 190 Miss. 453, 200 So. 706. See also Bowker v.
Baker, 73 Cal.App.2d 653, 167 P.2d 256. Other courts have held such statutes unconstitutional
under state constitutions as aid to the schools. Judd v. Board of Education, 278 N.Y. 200, 15
N.E.2d 576, 118 A.L.R. 789, but see Note 47 supra; Smith v. Donahue, 202 App.Div. 656, 195
N.Y.S. 715; State ex rel. Traub v. Brown, 3 Del. 181, 6 W.W.Harr. 181, 172 A. 835; Gurney v.
Ferguson, 190 Okl. 254, 122 P.2d 1002; Mitchell v. Consolidated School District, 17 Wash.2d
61, 135 P.2d 79, 146 A.L.R. 612; State ex rel. Van Straten v. Milquet, 180 Wis. 109, 192 N.W.
392. And cf. Hlebanja v. Brewe, 58 S.D. 351, 236 N.W. 296. And since many state constitutions
have provisions forbidding the appropriation of public funds for private purposes, in these and
other cases the issue whether the statute was for a 'public' or 'private' purpose has been present.
See Note ( 1941) 50 Yale L.J. 917, 925.
[ Footnote 50 ] E.g., Gurney v. Ferguson, 190 Okl. 254, 255, 122 P.2d 1002; Mitchell v.
Consolidated School District, 17 Wash.2d 61, 68, 135 P.2d 79, 146 A.L.R. 612; Smith v.
Donahue, 202 App.Div. 656, 664, 195 N.Y.S. 715; Board of Education v. Wheat, 174 Md. 314,
316, dissenting opinion at page 340, 199 A. 628, at page 639. This is true whether the
appropriation and payment are in form to the individual or to the institution. Id. Questions of this
gravity turn upon the purpose and effect of the state's expenditure to accomplish the forbidden
object, not upon who receives the amount and applies it to that end or the form and manner of the
payment.
[ Footnote 51 ] The payments here averaged roughly $40.00 a year per child.
[ Footnote 52 ] See Part V.
[ Footnote 53 ] See also note 46 supra and Remonstrance, Par. 3.
[ Footnote 54 ] Thus each brief filed here by the supporters of New Jersey's action, see note 47,
not only relies strongly on Cochran v. Louisiana State Board of Education, 281 U.S. 370 , 50
S.Ct. 335, but either explicitly or in effect maintains that it is controlling in the present case.
[ Footnote 55 ] See text at notes 17-19 supra and authorities cited; also Foote, Sketches of
Virginia (1850) c. XV. Madison's entire thesis, as reflected throughout the Remonstrance and in
his other writings, as well as in his opposition to the final form of the Assessment Bill, see note
43, was altogether incompatible with acceptance of general and 'nondiscriminatory' support. See
Brant, c. XII.
[ Footnote 56 ] The protections are of a nature which does not require appropriations specially
made from the public treasury and earmarked, as is New Jersey's here, particularly for religious
institutions or uses. The First Amendment does not exclude religious property or activities from
protection against disorder or the ordinary accidental incidents of community life. It forbids
support, not protection from interference or destruction.
It is a matter not frequently recalled that President Grant opposed tax exemption of religious
property as leading to a violation of the principle of separation of church and state. See President
Grant's Seventh Annual Message to Congress, December 7, 1875, in IX Messages and Papers of
the Presidents (1897) 4288-4289. Garfield, in a letter accepting the nomination for the
presidency, said: '... it would be unjust to our people, and dangerous to our institutions, to apply
any portion of the revenues of the nation, or of the States, to the support of sectarian schools. The
separation of the Church and the State in everything relating to taxation should be absolute.' II
The Works of James Abram Garfield (ed. by Hibsdale, 1883) 783.
[ Footnote 57 ] Neither do we have here a case of rate-making by which a public utility extends
reduced fares to all school children, including patrons of religious schools. Whether or not
legislative compulsion upon a private utility to extend such an advantage would be valid, or its
extension by a municipally owned system, we are not required to consider. In the Former
instance, at any rate, and generally if not always in the latter, the vice of using the taxing power
to raise funds for the support of religion would not be present.
[ Footnote 58 ] It would seem at least a doubtfully sufficient basis for reasonable classification
that some children should be excluded simply because the only school feasible for them to
attend, in view of geographic or other situation, might be one conducted in whole or in part for
profit. Cf. note 5.
[ Footnote 59 ] See note 7 supra. The resolution was as follows, according to the school board's
minutes read in proof: 'The transportation committee recommended the transportation of pupils
of Ewing to the Trenton and Pennington High Schools and Catholic Schools by way of public
carrier as in recent years. On motion of Mr. Ralph Ryan and Mr. M. French the same was
adopted.' (Emphasis added.) The New Jersey court's holding that the resolution was within the
authority conferred by the state statute is binding on us. Reinman v. Little Rock, 237 U.S. 171,
176 , 35 S.Ct. 511, 513; Hadacheck v. Sebastian, 239 U.S. 394, 414 , 36 S.Ct. 143, 147,
Ann.Cas.1917B, 927.
[ Footnote 60 ] The population of Ewing Township, located near the City of Trenton, was 10,146
according to the census of 1940. Sixteenth Census of the United States, Population, Vol. 1, 674.
[ Footnote 61 ] In Thomas v. Collins, 323 U.S. 516, 530 , 65 S.Ct. 315, 322, it was said that the
preferred place given in our scheme to the great democratic freedoms secured by the First
Amendment gives them 'a sanctity and a sanction not permitting dubious intrusions.' Cf.
Remonstrance, Pars. 3, 9. And in other cases it has been held that the usual presumption of
constitutionality will not work to save such legislative excursions in this field. United States v.
Carolene Products Co., 304 U.S. 144, 152 , 58 S.Ct. 778, 783, Note 4; see Wechsler, Stone and
the Constitution (1946) 46 Col.L.Rev. 764, 795 et seq.
Apart from the Court's admission that New Jersey's present action approaches the verge of her
power, it would seem that a statute, ordinance or resolution which on its face singles out one sect
only by name for enjoyment of the same advantages as public schools or their students, should
be held discriminatory on its face by virtue of that fact alone, unless it were positively shown that
no other sects sought or were available to receive the same advantages.
[ Footnote 1 ] Decl.Rights, Art. 16. (Note in the original.)
[ Footnote 2 ] Decl. Reghts, Art. 1. (Note in the original.)
[ Footnote 3 ] Art. 16. (Note in the original.)
[ Footnote 4 ] Art. 16. (Note in the original.)
[ Footnote 5 ] Decl. Rights-title. (Note in the original.)
[ Footnote * ] This copy of the Assessment Bill is from one of the hand-bills which on December
24, 1784, when the third reading of the bill was postponed, were ordered distributed to the
Virginia counties by the House of Delegates. See Journal of the Virginia House of Delegates,
December 24, 1784; Eckenrode, 102-103. The bill is therefore in its final form, for it never again
reached the floor of the House. Eckenrode, 113.
XXXXXXXXX
XXXXXXXXX
U.S. Supreme Court
PENNEKAMP v. STATE OF FLA., 328 U.S. 331 (1946)
328 U.S. 331
PENNEKAMP et al.
v.
STATE OF FLORIDA.
No. 473.
Argued Feb. 7, 1946.
Decided June 3, 1946.
Messrs. Elisha Hanson, of Washington, D.C., and Robert R. Milam, of
Jacksonville, Fla., for petitioners.
[328 U.S. 331, 333]
Messrs. Elisha Hanson, of Washington, D.C., and Robert R. Milam, of Jacksonville, Fla., for
petitioners.
Messrs. J. Tom Watson, of Tallahassee, Fla., Giles J. Patterson, of Jacksonville, Fla., and James
M. Carson, of Miami, for respondent.
Mr. Justice REED delivered the opinion of the Court.
This proceeding brings here for review a judgment of the Supreme Court of Florida, 22 So.2d
875, which affirmed a judgment of guilt in contempt of the Circuit Court of Dade County,
Florida, on a citation of petitioners by that Circuit Court.
The individual petitioner was the associate editor of the Miami Herald, a newspaper of general
circulation, published in Dade County, Florida, and within the jurisdiction of the trial court. The
corporate petitioner was the publisher of the Miami H rald. Together petitioners were responsible
for the publication of two editorials charged by the citation to be contemptuous of the Circuit
Court and its judges in that they were unlawfully critical of the administration of criminal justice
in certain cases then pending before the Court.
Certiorari was granted, 66 S.Ct. 146, to review petitioners' contention that the editorials did not
present 'a clear and present danger of high imminence to the administration of justice [328 U.S.
331, 334] by the court's or judges who were criticized and therefore the judgment of contempt
was invalid as violative of the petitioners' right of free expression in the press. The importance of
the issue in the administration of justice at this time in view of this Court's decision in Bridges v.
California, 314 U.S. 252 , 62 S.Ct. 190, 159 A.L.R. 1346, three years prior to this judgment in
contempt, is apparent.
Bridges v. California fixed reasonably well marked limits around the power of courts to punish
newspapers and others for comments upon or criticism of pending litigation. The case placed
orderly operation of courts as the primary and dominant requirement in the administration of
justice. 314 U.S. at pages 263, 265, 266, 62 S.Ct. at pages 194, 195, 159 A.L.R. 1346. This
essential right of the courts to be free of intimidation and coercison was held to be consonant
with a recognition that freedom of the press must be allowed in the broadest scope compatible
with the supremacy of order. A theoretical determinant of the limit for open discussion was
adopted from experience with other adjustments of the conflict between freedom of expression
and maintenance of order. This was the clear and present danger rule. The evil consequence of
comment must be 'extremely serious and the degree of imminence extremely high before
utterances can be punished.' 314 U.S. at page 263, 62 S.Ct. at page 194, 159 A.L.R. 1346. It was,
of course, recognized that this formula, as would any other, inevitably had the vice of
uncertainty, 314 U. S. at page 261, 62 S.Ct. at page 193, 159 A.L.R. 1346, but it was expected
that from a decent self-restraint on the part of the press and from the formula's repeated
application by the courts standards of permissible comment would emerge which would
guarantee the courts against interference and allow fair play to the good influences of open
discussion. As a step toward the marking of the line, we held that the publications there involved
were within the permissible limits of free discussion.
In the Bridges case the clear and present danger rule was applied to the stated issue of whether
the expressions there [328 U.S. 331, 335] under consideration prevented 'fair judicial trials free
from coercion or intimidation.' 314 U.S. at page 259, 62 S.Ct. at page 192, 159 A.L.R. 1346.
There was, of course, no question as to the power to punish for disturbances and disorder in the
court room. 314 U.S. at page 266, 62 S.Ct. at page 195, 159 A.L.R. 1346. The danger to be
guarded against is the 'substantive evil' sought to be prevented. 314 U.S. at pages 261, 262, 263,
62 S.Ct. at pages 193, 194, 159 A.L. R. 1346. In the Bridges case that 'substantive evil' was
primarily the 'disorderly and unfair administration of justice.' 314 U.S. at pages 270, 271, 278, 62
S.Ct. at pages 197, 201, 159 A.L.R. 1346. 1
The Constitution has imposed upon this Court final authority to determine the meaning and
application of those words of that instrument which require interpretation to resolve judicial
issues. With that responsibility, we are co pelled to examine for ourselves the statements in issue
and the circumstances under which they were made to see whether or not they do carry a threat
of clear and present danger to the impartiality and good order of the courts or whether they are of
a character which the principles of the First Amendment, as adopted by the Due Process Clause
of the Fourteenth Amendment, protect. 2 When the highest court of a state has reached a
determination upon such an issue, we give most respectful attention to its reasoning and
conclusion but its authority is not final. Were it otherwise the constitutional limits of free
expression in the Nation would vary with state lines. 3
While there was a division of the Court in the Bridges case as to whether some of the public
expressions by edi- [328 U.S. 331, 336] torial comment transgressed the boundaries of a free press
and as to the phrasing of the test, there was unanimous recognition that California's power to
punish for contempt was limited by this Court's interpretation of the extent of protection afforded
by the First Amendment. Bridges v. California, supra, 314 U.S. at page 297, 62 S.Ct. at page
210, 159 A.L.R. 1346. Whether the threat to the impartial and orderly administration of justice
must be a clear and present or a grave and immediate danger, a real and substantial threat, one
which is close and direct or one which disturbs the court's sense of fairness depends upon a
choice of words. Under any one of the phrases, reviewing courts are brought in cases of this type
to appraise the comment on a balance between the desirability of free discussion and the
necessity for fair adjudication, free from interruption of its processes.
The editorials of November 2d and 7th, 1944, which caused the court to issue the citation are set
out below. 4 [328 U.S. 331, 337] Accompanying the first editorial was a cartoon which held up
the law to public obloquy. It caricatured a court by a robed compliant figure as a judge on the
bench tossing [328 U.S. 331, 338] aside formal charges to hand a document, marked 'Defendant
dismissed,' to a powerful figure close at his left arm and of an intentionally drawn criminal type.
At the [328 U.S. 331, 339] rightof the bench, a futile individual, right of the bench, a futile
individual,
The citation charges that the editorials 'did reflect upon and impugn the integrity of said Court
and the Judges thereof in imputing that the Judges of said Court 'do recognize and accept, even
go out to find, every possible technicality of the law to protect the defendant, to block, thwart,
hinder, embarrass and nullify prosecution,' which said acts by you tend to create a distrust for
said court and the judges thereof in the minds of the people of this county and state and tend to
prevent and prejudice a fair and impartial action of the said Court and the Judges thereof in
respect to the said pending case(s).'
After setting out details of alleged willful withholding and suppression of the whole truth in the
publications, the citation furthe charges that
'you, by said cartoon and editorial, have caused to be represented unto the public that
concerning the cases of (A) the eight indictments for rape, (B) the said Brook Club case,
and (C) the Teepee Club case, that the Judges of this Court (had not) fairly and
impartially heard and decided the matters in said editorial mentioned and have thereby
represented unto the general public that notwithstanding the [328 U.S. 331, 340] great
public trust vested in the Judges of this Court that they have not discharged their duties
honorably and fairly in respect to said pending cases as hereinbefore set forth, all of
which tends to obstruct and interfere with the said Judges as such in fairly and impartially
administering justice and in the discharging of their duties in conformity with the true
principles which you have so properly recognized in the forepart of said editorial above
quoted as being incumbent upon them and each of them; ...'
Petitioners were required to show cause why they should not be held in contempt.
Petitioners answered that the publications were legitimate criticism and comment within the
federal guaranties of free press and created no clear and present danger to the administration of
justice. They sought to justify the publications by stating in their return to the rule that the facts
stated in the editorials were correct, that two of the cases used as examples were not pending
when the comments were made, since orders of dismissal had been previously entered by the
Circuit Court, and that they as editors
'had the right if not the duty openly and forcefully to discuss these conditions to the end
that these evils that are profoundly disturbing to the citizens of this county, might be
remedied. The publications complained of did nothing more than discuss the generally
recognized weakness and breakdown in the system of law enforcement and call for its
improvement.'
It is not practicable to comment at length on each of the challenged items. To make our decision
as clear as possible, we shall refer in detail only to the comments concerning the 'Rape Cases.'
These we think fairly illustrate the issues and are the most difficult comments for the petitioners
to defend. [328 U.S. 331, 341] As to these cases, the editorial said:
'This Week the people, through their grand jury, brought into court eight indictments for
rape. Judge Paul D. Barns agreed with the defense that the indictments were not properly
drawn. Back they went to the grant jury for re-presentation to the court.'
We shall assume that the statement, 'judicial instance and interpretative procedure ... even go out
to find, every possible technicalit of the law to protect the defendant ... and nullify prosecution,'
refers to the quashing of the rape indictments as well as other condemned steps. The comment of
the last two paragraphs evidently includes these dismissals as so-called legal technicalities. See
Note 4.
The citation charged that the prosecuting officer in open court agreed that the indictments were
so defective as to make reindictment advisable. Reindictments were returned the next day and
before the editorial. It was charged that these omissions were a wanton withholding of the full
truth.
As to this charge, the petitioners made this return:
'That as averred in the citation, a motion was made to quash the indictment in Case 856,
the ruling upon which would control in the other cases mentioned. Whereupon the
representative of the State Attorney's Office stated in effect that he believed the original
indictment was in proper form, but to eliminate any question he would have these
defendants immediately re-indicted by the Grand Jury which was still then in session.
And thereupon, the Judge of said Court did sustain the motion to quash with respect to
Case No. 856.
The record of the Criminal Division of the Circuit Court, set out in the findings of fact at the
hearing on the citation in contempt, shows that in case No. 856 the court upheld the defendants'
motion to quash 'with the ap- [328 U.S. 331, 342] proval of the Assistant State Attorney' and
quashed the remaining indictments on his recommendation. Reindictment of the accused on the
next day, prompt arraignment and setting for trial also appears. We accept the record as
conclusive of the facts.
We read the Circuit Court's judgment to find that the comment on the Rape Cases contained only
'half-truths,' that it did not 'fairly report the proceedings' of the court, that it contained
'misinformation.' The judgment said:
'To report on court proceedings is a voluntary undertaking but when undertaken the
publisher who fails to fairly report does so at his own peril.
'We find the facts recited and the charges made in the citiation to be true and well
founded; ...'
This finding included the fact that reindictments were then pending in the Rape Cases.
Defendant's assignment of error challenged the ruling that the matters referred to in the editorials
were pending and the Supreme Court of Florida ruled that the cases were pending. 22 So.2d at
page 883:
'We also agree that publications about a case that is closed no matter how scandalous, are
not punishable as contempt. This is the general rule but the Florida Statute is more liberal
than the rule.' Cf. Florida Statutes 1941, 38.23 and 932.03, F.S.A.; see also 22 So.2d at
page 886.
In Bridges v. California, 314 U.S. 252 , 271-278, dissent 297-302, 62 S.Ct. 190, 197-201, dissent
210-213, 159 A.L.R. 1346, this Court looked upon cases as pending following completed
interlocutory actions of the courts but awaiting other steps. In one instance it was sentence after
verdict. In another, a motion for a new trial.
Pennekamp was fined $250 and the corporation $1,000.00.
The Supreme Court of Florida restated the facts as to the Rape Cases from the record. 22 So. [328
U.S. 331, 343] 2d at page 881. It then reached a conclusion as to all of the charges and so as to the
Rape Cases in the words set out below. 5 After further discussion of the facts, the Court said, id.,
at page 883:
'In the light of this factual recitation, it is utter folly to suggest that the object of these
publications was other than to abase and destroy the efficiency of the court.'
To focus attention on the critical issue, we quote below from the decision of the Supreme Court
of Florida certain excerpts which we believe fairly illustrate its position as to the applicable law.
6 [328 U.S. 331, 344] From the editorials, the explanations of the petitioners and the records of
the court, it is clear that the full truth in regard to the quashing of the indictments was not
published. We agree with the Supreme Court that the Rape [328 U.S. 331, 345] Cases were
pending at the time of the editorials. We agree that the editorials did not state objectively the
attitude of the judges. We accept the statement of the Supreme Court that under Florida law,
'There was no judgment that could have been entered in any of them except the one that was
entered.' 22 So.2d at page 882. And, although we may feel that this record scarcely justifies the
harsh inference that the truth was willfully or wantonly or recklessly withheld from the public or
that the motive behind the publication was to abase and destroy the efficiency of the courts, we
may accept in this case that conclusion of the Florida courts upon intent and motive as a
determination of fact. 7 While the ultimate power is here to ransack the record for facts in
constitutional controversies, we are accustomed to adopt the result of the state courts'
examination. 8 It is the findings of the state courts on undisputed facts or the undisputed facts
themselves which ordinarily furnish the basis for our appraisal of claimed violations of federal
constitutional rights. 9
The acceptance of the conclusion of a state as to the facts of a situation leaves open to this Court
the determination of federal constitutional rights in the setting of [328 U.S. 331, 346] those facts.
10 When the Bridges case was here, there was necessarily involved a determination by the
California state court that all of the editorials had, at least, a tendency to interfere with the fair
administration of criminal justice in pending cases in a court of that state. Yet this Court was
unanimous in saying that two of those editorials had no such impact upon a court as to justify a
conviction of contempt in the face of the principles of the First Amendment. We must, therefore,
weigh the right of free speech which is claimed by the petitioners against the danger of the
coercion and intimidation of courts in the factual situation presented by this record.
Free discussion of the problems of society is a cardinal principle of Americanism-a principle
which all are zealous to preserve. 11 Discussion that follows the termination of a case may be
inadequate to emphasize the danger to public welfare of supposedly wrongful judicial conduct.
12 It does not follow that public comment of every character upon pending trials or legal
proceedings may be as free as a similar comment after complete disposal of the litigation.
Between the extremes there are areas of discussion which an understanding writer will appraise
in the [328 U.S. 331, 347] light of the effect on himself and on the public of creating a clear and
present danger to the fair and orderly judicial administration. Courts must have power to protect
the interests of prisoners and litigants before them from unseemly efforts to pervert judicial
action. In the borderline instances where it is difficult to say upon which side the alleged offense
falls, we think the specific freedom of public comment should weigh heavily against a possible
tendency to influence pending cases. Freedom of discussion should be given the widest range
compatible with the essential requirement of the fair and orderly administration of justice.
While a disclaimer of intention does not purge a contempt, we may at this point call attention to
the sworn answer of petitioners that their purpose was not to influence the court. An excerpt
appears below. 13 For circumstances to create a clear and present danger to judicial
administration, a solidity of evidence should be required which it would be difficult to find in
this record. Com- [328 U.S. 331, 348] pare Baumgartner v. United States, 322 U.S. 665, 670 , 64
S.Ct. 1240, 1243; Schneiderman v. United States, 320 U.S. 118 , 63 S.Ct. 1333
The comments were made about judges of courts of general jurisdiction- judges selected by the
people of a populous and educated community. They concerned the attitude of the judges toward
those who were charged with crime, not comments on evidence or rulings during a jury trial.
Their effect on juries that might eventually try the alleged offenders against the criminal laws of
Florida is too remote for discussion. Comment on pending cases may affect judges differently. It
may influence some judges more than others. Some are of a more sensitive fiber than their
colleagues. The law deals in generalities and external standards and cannot depend on the
varying degrees of moral courage or stability in the face of criticism which individual judges
may possess any more than it generally can depend on the personal equations or individual
idiosyncrasies of the tort-feasor. The Germanic, 196 U.S. 589, 596 , 25 S.Ct. 317, 318, 49 L.E .
610; Arizona Employers' Liability Cases, 250 U.S. 400, 422 , 432 S., 39 S.Ct. 553, 556, 560, 6
A.L.R. 1537. We are not willing to say under the circumstances of this case that these editorials
are a clear and present danger to the fair administration of justice in Florida. Cf. Near v.
Minnesota, 283 U.S. 697, 714 , 715 S., 51 S.Ct. 625, 630, 631.
What is meant by clear and present danger to a fair administration of justice? No definition could
give an answer. Certainly this criticism of the judge's inclinations or actions in these pending
nonjury proceedings could not directly affect such administration. This criticism of his actions
could not affect his ability to decide the issues. Here there is only criticism of judicial action
already taken, although the cases were still pending on other points or might be revived by
rehearings. For such injuries, when the statements amount to defamation, a [328 U.S. 331, 349]
judge has such remedy in damages for libel as do other public servants.
It is suggested, however, that even though his intellectual processes cannot be affected by
reflections on his purposes, a judge may be influenced by a desire to placate the accusing
newspaper to retain public esteem and secure reelection presumably at the cost of unfair rulings
against an accused. In this case too many fine-drawn assumptions against the independence of
judicial action must be made to call such a possibility a clear and present danger to justice. For
this to follow, there must be a judge of less than ordinary fortitude without friends or support or a
powerful and vindictive newspaper bent upon a rule or ruin policy, and a public unconcerned
with or uninterested in the truth or the protection of their judicial institutions. If, as the Florida
courts have held and as we have assumed, the petitioners deliberately distorted the facts to abase
and destroy the efficiency of the court, those misrepresentations with the indicated motives
manifested themselves in the language employed by petitioners in their editorials. The Florida
courts see in this objectionable language an open effort to use purposely the power of the press to
destroy without reason the reputation of judges and the competence of courts. This is the clear
and present danger they fear to justice. Although we realize that we do not have the same close
relations with the people of Florida that is enjoyed by the Florida courts, we have no doubt that
Floridians in general would react to these editorials in substantially the same way as citizens of
other parts of our common country.
As we have pointed out, we must weigh the impact of the words against the protection given by
the principles of the First Amendment, as adopted by the Fourteenth, to public comment on
pending court cases. We conclude [328 U.S. 331, 350] that the danger under this record to fair
judicial administration has not the clearness and immediacy necessary to close the door of
permissible public comment. When that door is closed, it closes all doors behind it.
REVERSED.
Mr. Justice JACKSON took no part in the consideration or decision of this case.
Mr. Justice FRANKFURTER concurring.
On the basis of two editorials and a cartoon, the Circuit Court of Florida for the County of Dade
found the publisher of the Miami Herald and one of its editors guilty of contempt of court. 1 The
editor, Pennekamp, was fined $250 and the Publishing Company, $1,000. Deeming Bridges v.
California, 314 U.S. 252 , 62 S.Ct. 190, 159 A.L.R. 1346, not controlling, the Supreme Court of
Florida, with two judges dissenting, sustained the convictions. 22 So.2d 875.
In the Bridges case this Court recently canvassed constitutional aspects of contempt of court by
publication. But it was hardly to be expected that other problems in the large field within which
the Bridges case moved would not recur. This Court sits to interpret, in appropriate judicial
controversies, a Constitution which in its Bill of Rights formulates the conditions of a
democracy. But democracy is the least static form of society. Its basis [328 U.S. 331, 351] is reason
not authority. Formulas embodying vague and uncritical generalizations offer tempting
opportunities to evade the need for continuous thought. But so long as men want freedom they
resist this temptation. Such formulas are most beguiling and most mischievous when contending
claims are those not of right and wrong but of two rights, each highly important to the well-being
of society. Seldom is there available a pat formula that adequately analyzes such a problem, least
of all solves it. Certainly no such formula furnishes a ready answer to the question now here for
decision or even exposes its true elements. The precise issue is whether, and to what extent, a
State can protect the administration of justice by authorizing prompt punishment, without the
intervention of a jury, of publications out of court that may interfere with a court's disposition of
pending litigation.
The decision in the Bridges case did not explicitly deny to the States the right to protect the
judicial process from interference by means of a publication bearing on a pending litigation. The
atmosphere and emanations of the Court's opinion, however, were calculated to sanction
anything to be said or written outside the courtroom even though it may hurt or embarrass the
just outcome of a proceeding. But in a series of decisions which presented most sharply the
constitutional extent of freedom of speech, this Court had held that the Constitution did not allow
absolute freedom of expression-a freedom unrestricted by the duty to respect other needs
fulfillment of which make for the dignity and security of man. Schenck v. United States, 249
U.S. 47 , 39 S.Ct. 247; Frohwerk v. United States, 249 U.S. 204 , 39 S.Ct. 249; Debs v. United
States, 249 U.S. 211 , 39 S.Ct. 252.
No Justice thought more deeply about the nature of a free society or was more zealous to
safeguard its conditions by the most abundant regard for civil liberty than Mr. Justice Holmes.
He left no doubt that judicial protection [328 U.S. 331, 352] of freedom of utterance is necessarily
qualified by the requirements of the Constitution as an entirety for the maintenance of a free
society. It does an illservice to the author of the most quoted judicial phrases regarding freedom
of speech, to make him the victim of a tendency which he fought all his life, whereby phrases are
made to do service for critical anaylsis by being turned into dogma. 'It is one of the misfortunes
of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke
further analysis.' Holmes, J., dissenting, in Hyde v. United States, 225 U.S. 347 , 384, at page
391, 32 S.Ct. 793, 808, at page 811, Ann.Cas.1914A, 614. Words which 'are used in such
circumstances and are of such a nature as to create a clear and present danger that they will bring
about the substantive evils that Congress has a right to prevent,' Schenck v. United States, 249
U.S. 47, 52 , 39 S.Ct. 247, 249, speak their own condemnation. But it does violence to the
juristic philosophy and the judicial practice of Mr. Justice Holmes to assume that an using the
phrase 'a clear and present danger' he was expressing even remotely an absolutist test or had in
mind a danger in the abs ract. He followed the observation just quoted by the emphatic statement
that the question is one 'of proximity and degree,' as he conceived to be most questions in
connection with the large, undefined rights guaranteed by the Constitution. And Mr. Justice
Brandeis, co- architect of the great constitutional structure of civil liberties, also recognized that
'the permissible curtailment of free speech is ... one of degree; and because it is a question of
degree the field in which the jury may exercise its judgment is necessarily a wide one.' Schaefer
v. United States, 251 U.S. 466 , 482, at page 483, 40 S.Ct. 259, 264, at page 265 (dissenting). If
Mr. Justice Brandeis' constitutional philosophy means anything, it is clear beyond peradventure
that he would not deny to a State, exercising its judgment as to the mode by which speech may
be curtailed by punishment [328 U.S. 331, 353] subsequent to its utterance, a field less wide than
that which he permitted a jury in a federal court.
'Clear and present danger' was never used by Mr. Justice Holmes to express a technical
legal doctrine or to convey a formula for adjudicating cases. It was a literary phrase not to
be distorted by being taken from its context. In its setting it served to indicate the
importance of freedom of speech to a free society but also to emphasize that its exercise
must be compatible with the preservation of other freedoms essential to a democracy and
guaranteed by our Constitution. When those other attributes of a democracy are
threatened by speech the Constitution does not deny power to the States to curb it. 'The
clear and present danger' to be arrested may be danger short of a threat as comprehensive
and vague as a threat to the safety of the Republic or 'the American way of life.' Neither
Mr. Justice Holmes nor Mr. Justice Brandeis nor this Court ever suggested in all the cases
that arose in connection with the First World War, that only imminent threats to the
immediate security of the country would authorize courts to sustain legislation curtailing
utterance. Such forces of destruction are of an order of magnitude which courts are hardly
designed to counter. 'The clear and present danger' with which its two great judicial
exponents were concerned, was a clear and present danger that utterance would 'bring
about the ... evils' which Congress sought and 'has a right to prevent.' Schenck v. United
States, supra. Among 'the substantive evils' with which legislation may deal is the
hampering of a court in a pending controversy, because the fair administration of justice
is one of the chief tests of a true democracy. And since men equally devoted to the vital
importance of freedom of speech may fairly differ in an estimate of this danger in a
particular case, the field in which a State 'may exercise its judgment is necessarily a wide
one.' Therefore, [328 U.S. 331, 354] every time a situation like the present one comes here
the precise problem before us is to determine whether the State court went beyond the
allowable limits of judgment in holding that conduct which has been punished as a
contempt was reasonably calculated to endanger a State's duty to administer impartial
justice in a pending controversy.
Without a free press there can be no free society. 2 Freedom of the press, however, is not an end
in itself but a [328 U.S. 331, 355] means to the end of a free society. The scope and nature of the
constitutional protection of freedom of speech must be viewed in that light and in that light
applied. The independence of the judiciary is no less a means to the end of a free society, and the
proper functioning of an independent judiciary puts the freedom of the press in its proper
perspective. For the judiciary cannot function properly if what the press does is reasonably
calculated to disturb the judicial judgment in its duty and capacity to act solely on the basis of
what is before the court. A judiciary is not independent unless courts of justice are enabled to
administer law by absence of pres ure from without, whether exerted through the blandishments
of reward or the menace of disfavor. In the noble words, penned by John Adams, of the First
Constitution of Massachusetts: 'It is essential to the preservation of the rights of every individual,
his life, liberty, property, and character, that there be an impartial interpretation of the laws, and
administration of justice. It is the right of every citizen to be tried by judges as free, impartial and
independent as the lot of humanity will admit.' 3 A free press is not to be preferred to an
independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the
other; both are indispensable to a free society. The freedom of the press in itself presupposes an
independent judiciary through which that freedom may, if necessary, be vindicated. And one of
the potent means for assuring judges their independence is a free press.
A free press is vital to a democratic society because its freedom gives it power. Power in a
democracy implies responsibility in its exercise. No institution in a democracy, either
governmental or private, can have absolute [328 U.S. 331, 356] power. 4 Nor can the limits of
power which enforce responsibility be finally determined by the limited power itself. See Carl L.
Becker, Freedom and Responsibility in the American Way of Life (1945). In plain English,
freedom carries with it responsibility even for the press; freedom of the press is not a freedom
from responsibility for its exercise. Most State constitutions expressly provide for liability for
abuse of the press's freedom. That there was such legal liability was so taken for granted by the
framers of the First Amendment that it was not spelled out. Responsibility for its abuse was
imbedded in the law. 5 The First Amendment safeguarded the right.
These are generalities. But they are generalities of the most practical importance in achieving a
proper adjustment between a free press and an independent judiciary.
Especially in the administration of the criminal law-that most awesome aspect of governmentsociety needs independent courts of justice. This means judges free from control by the
executive, free from all ties with political interests, free from all fears of reprisal or hopes of [328
reward. The safety of society and the security of the innocent alike depend upon
wise and impartial criminal justice. Misuse of its machinery may undermine the safety of the
State; its misuse may deprive the individual of all that makes a free man's life dear. 6
U.S. 331, 357]
Criticism therefore must not feel cramped, even criticism of the administration of criminal
justice. Weak characters ought not to be judges, and the scope allowed to the press for society's
sake may assume that they are not. No judge fit to be one is likely to be influenced consciously
except by what he sees and hears in court and by what is judicially appropriate for his
deliberations. However, judges are also human, and we know better than did our forbears how
powerful is the pull of the unconscious and how treacherous the rational process. While the
ramparts of reason have been found to be more fragile than the Age of Enlightenment had
supposed, the means for arousing passion and confusing judgment have been reinforced. And
since judges, however, stalwart, are human, the delicate task of administering justice ought not to
be made unduly difficult by irresponsible print.
The English bench is justly noted for its sturdiness, and it was no weak-kneed judge who
recently analyzed the mis- [328 U.S. 331, 358] chief of exposing even the hardiest nature to
extraneous influence: '... I think it is a fallacy to say or to assume that the presiding judge is a
person who cannot be affected by outside information. He is a human being, and while I do not
suggest that it is likely that any judge, as the result of information which had been improperly
conveyed to him would give a decision which otherwise he would not have g ven, it is
embarrassing to a judge that he should be informed of matters which he would much rather not
hear and which make it much more difficult for him to do his duty. To repeat the words I have
already read from the judgment of Wills, J., in Rex v. Parke, (1903) 2 K.B. 432: 'The reason why
the publication of articles like those with which we have to deal is treated as a contempt of court
is because their tendency and sometimes their object is to deprive the court of the power of doing
that which is the end for which it exists- namely, to administer justice duly, impartially, and with
reference solely to the facts judicially brought before it.' ... I venture to think that no judge with
long criminal experience will fail to be able to recall instances in which the publication of
matters such as that to which I have referred has had the effect of making the task of a judge
extremely difficult and no one has the right to publish matter which will have that effect.'
Humphreys, J., in Rex v. Davies, (1945) 1 K.B. 435, 442-43. The observations of another judge
in the same case bear quoting: '... jurors are not the only people whose minds can be affected by
prejudice. One of the evils of inadmissible matter being disseminated is that no one can tell what
effect a particular piece of information may have on his mind. Why, as my Lord has asked, and I
can think of no better word, should a judge be 'embarrassed' by having matters put into his mind,
the effect of which it is impossible to estimate or assess? As an illustration of this proposition,
the Court of Criminal [328 U.S. 331, 359] Appeal has expressed not once but many times, its
thorough disapproval of evidence which is sometimes given by police officers at the end of a
case when a man has been convicted. On such occasions all sorts of allegations are frequently
made against a man's character, sometimes in the nature of hearsay and sometimes not supported
by evidence at all. What is the ground for the disapproval of the Court of Criminal Appeal
regarding such statements? It can only be that the judge who, after hearing the statements, has to
pronounce sentence, may quite unconsciously, have his judgment influenced by matters which he
has no right to consider. ... Not all defamatory matter can amount to contempt of court ... whether
defamatory matter amounts to contempt in any particular case is a question in each case of fact,
of degree and of circumstances.' Oliver, J., in Rex v. Davies, supra, (1945) 1 K.B. at pages 445,
446. Cf. Parashuram Detaram Shamdasani v. King-Emperor, (1945) A.C. 264. To deny that
bludgeoning or poisonous comment has power to influence, or at least to disturb, the task of
judging is to play make-believe and to assume that men in gowns are angels. The psychological
aspects of this problem become particularly pertinent in the case of elected judges with short
tenure.
'Trial by newspaper,' like all catch phrases, may be loosely used but it summarizes an evil
influence upon the administration of criminal justice in this country. Its absence in
England, at least its narrow confinement there, furnishes an illuminating commentary. It
will hardly be claimed that the press is less free in England than in the United States. Nor
will any informed person deny that the administration of criminal justice is more
effective there than here. This is so despite the commonly accepted view that English
standards of criminal justice are more civilized, or, at the least, that recognized standards
of fair conduct in the prosecution of crime are better ob- [328 U.S. 331, 360] served. Thus,
'the third degree' is not unjustly called 'the American method.' 7 This is not the occasion
to enlarge upon the reasons for the greater effectiveness of English criminal justice but it
may be confidently asserted that it is more effective partly because its standards are so
civilized. 8 There are those who will resent such a statement as praise of another country
and dispraise of one's [328 U.S. 331, 361] own. What it really means is hat one covets for
his own country a quality of public conduct not surpassed elsewhere.
Certain features of American criminal justice have long been diagnosed by those best qualified to
judge as serious and remediable defects. On the other hand, some mischievous accompaniments
of our system have been so pervasive that they are too often regarded as part of the exuberant
American spirit. Thus, 'trial by newspapers' has sometimes been explained as a concession to our
peculiar interest in criminal trials. Such interest might be an innocent enough pastime were it not
for the fact that the stimulation of such curiosity by the press and the response to such stimulated
interest have not failed to cause grievous tragedies committed under the forms of law. Of course
trials must be public and the public have a deep interest in trials. The public's legitimate interest,
however, precludes distortion of what goes on inside the courtroom, dissemination of matters
that do not come before the court, or other trafficking with truth intended to influence
proceedings or inevitably calculated to disturb the course of justice. The atmosphere in a
courtroom may be subtly influenced from without. 9 See dissenting [328 U.S. 331, 362] opinion of
Mr. Justice Holmes, in Frank v. Mangum, 237 U.S. 309 , 347, at page 349, 35 S.Ct. 582, 595, at
page 596. Cases are too often tried in news- [328 U.S. 331, 363] papers before they are tried in c
urt, and the cast of characters in the newspaper trial too often differs greatly from the real
persons who appear at the trial in court and who may have to suffer its distorted consequences.
10
Newspapers and newspaper men themselves have acknowledged these practices, deplored their
evils, and urged reform. 11 See The Attorney General's Conference on Crime (1934) 82-111.
One of the most zealous claimants of the prerogatives of the press, the Chicago Tribune, has
even proposed legal means for the correction of these in- [328 U.S. 331, 364] roads upon the
province of criminal justice: 'The Tribune advocates and will accept drastic restriction of this
preliminary publicity. The penetration of the police system and the courts by journalists must
stop. With such a law there would be no motivation for it. Though such a law wil be
revolutionary in American journalism, though it is not financially advisable for newspapers, it is
still necessary. Restrictions must come.' 12
It is not for me to express approval of these views, still less, judgment on the constitutional
issues that would arise if they were translated into legislation. But they are relevant to an
understanding of the nature of our problem. They serve also to emphasize that the purpose of the
Constitution was not to erect the press into a privileged institution but to protect all persons in
their right to print what they will as well as to utter it. '... the liberty of the press is no greater and
no less than the liberty of every subject of the Queen,' Regina v. Gray, (1900) 2 Q.B. 36, 40, and,
in the United States, it is no greater than the liberty of every citizen of the Republic. The right to
undermine proceedings in court is not a special prerogative of the press. [328 U.S. 331, 365] The
press does have the right, which is its professional function, to criticize and to advocate. The
whole gamut of public affairs is the domain for fearless and critical comment, and not least the
administration of justice. But the public function which belongs to the press makes it an
obligation of honor to exercise this function only with the fullest sense of responsibility. Without
such a lively sense of responsibility a free press may readily become a powerful instrument of
injustice. 13 It should not and may not attempt to influence judges or juries before they have
made up their minds on pending controversies. Such a restriction, which merely bars the
operation of extraneous influence specifically directed to a concrete case, in no wise curtails the
fullest discussion of public issues generally. It is not suggested that generalized discussion of a
particular topic should be forbidden, or run [328 U.S. 331, 366] the hazard of contempt
proceedings, merely because some phases of such a general topic may be involved in a pending
litigation. It is the focused attempt to influence a particular decision that may have a corroding
effect on the process of justice, and it is such comment that justifies the corrective process.
The administration of law, particularly that of the criminal law, normally operates in an
environment that is not universal or even general but individual. The distinctive circumstances of
a particular case determine whether law is fairly administered in that case, through a
disinterested judgment on the basis of what has been formally presented inside the courtroom on
explicit considerations, instead of being subjected to extraneous factors psychologically
calculated to disturb the exercise of an impartial and equitable judgment.
If men, including judges and journalists, were angels, there would be no problems of contempt of
court. Angelic judges would be undisturbed by extraneous influences and angelic journalists
would not seek to influence them. The power to punish for contempt, as a means of safeguarding
judges in deciding on behalf of the community as impartially as is given to the lot of men to
decide, is not a privilege accorded to judges. The power to punish for contempt of court is a
safeguard not for judges as persons but for the function which they exercise. It is a condition of
that function- indispensable for a free society-that in a particular controversy pending before a
court and awaiting judgment, human beings, however strong, should not be torn from their
moorings of impartiality by the undertow of extraneous influence. In securing freedom of
speech, the Constitution hardly meant to create the right to influence judges or juries. That is no
more freedom of speech than stuffing a ballot box is an exercise of the right to vote. [328 U.S. 331,
367] Due regard for these general considerations must dispose of the present controversy. Since
at the core of our problem is a proper balance between two basic conditions of our constitutional
democracy-freedom of utterance and impartial justice-we cannot escape the exercise of judgment
on the particular circumstances of the particular case. And we must always bear in mind that
since a judgment from a State court comes here as the voice of the State, it must be accorded
every fair intendment that in reason belongs to action by a state.
According to the Florida Supreme Court, the charge against petitioners was that 'both the
editorials and the cartoon were predicated on inaccurate, distorted, incomplete and biased reports
of pending litigation, that the purpose and effect of the editorials and the cartoon were to impute
part sanship and favor on the part of the circuit judges to those charged with crime and that such
partisanship was so pronounced that they refused to heed the voice of the peoples'
representatives. ... So the vice in both the editorials was the distorted, inaccurate statement of the
facts and with that statement were scrambled false insinuations that amounted to unwarranted
charges of partisanship and unfairness on the part of the judges.' 14 The tenor of the first
editorial was complaint of the technicalities and delays of the law which seem to give excessive
protection to defendants. It makes no suggestion which could be construed as an attempt to
influence the court's decision in a matter actually pending before it. All the questions discussed
in the editorial had been acted on by the trial judges. The editor merely indulged in general
criticism of those acts as exemplifying an over-solicitous concern for defendants by the law and
by the judges who interpreted it. Nor was the cartoon directed toward a particular pending case.
Indeed, it partly serves [328 U.S. 331, 368] to interpret the editorial as one concerned with a
general situation. One suspects that only judicial hypersensitiveness would find in it an animus
specifically directed. The opinion of the court illustrates the danger of confusing correction of
interference with judicial action with concern over a court's dignity. Instead of treating lightly a
cartoon indistinguishable in type from scores of such ephemeral products, the court saw in it
wholly undeserved significance.
Again, the second editorial referred to a particular case only as an example. In that case, too, the
court had made its decision. What the editor criticized was the speed of disposition and other
features of procedure which attended the case. His allowable concern was that the people have a
chance to give their argument, that the prosecution in criminal cases be treated as fairly as the
defense. Inaccurate and even false comment on litigation no longer pending may not be dealt
with by punishing for contempt as a means of assuring the just exercise of the judicial process.
The Florida Supreme Court referred to the cases criticized as 'pending.' But it did not define the
scope of 'pending' nor did the grounds of its decision have any particular dependence on the
requirement that a case be pending. The finding by a State court that a case is 'pending' in the
sense relevant to the power to punish for contempt does not, of course, bar its review here.
Otherwise a State court could foreclose our protection of the constitutional right of free speech
by putting forth as a nonfederal ground of decision that which is an essential aspect of the federal
question. Union Pac. R. Co. v. Public Service Comm., 248 U.S. 67, 69 , 70 S., 39 S.Ct. 24, 25;
Ward v. Board of County Com'rs of Love County, 253 U.S. 17, 22 , 40 S.Ct. 419, 421; Davis v.
Wechsler, 263 U.S. 22 , 44 S.Ct. 13.
If it is contemptuous to bring the courts of a State into disrepute and generally to impair their
efficiency, then it [328 U.S. 331, 369] can make no difference on what occasion or with reference
to what event, that effect is achieved or attempted. But when it is understood what is meant by a
'pending' case, it becomes plain that for purposes of punishing for contempt as interference, the
cases were not actively pending. 'Pending' is not used with the technical inclusiveness that it has
in the phrase lis pendens. In the situations in which that phrase has meaning and applicability, the
important considerations are whether any proceedings have been taken to put the issue into court
and whether it is still there. Where the power to punish for contempt is asserted, it is not
important that the case is technically in court or that further proceedings, such as the possibility
of a rehearing, are available. 'When a case is pending is not a technical, lawyer's problem, but is
to be determined by the substa tial realities of the specific situation.' Bridges v. California, 314
U.S. 252 , 279, at pages 303, 304, 62 S.Ct. 190, 201 at page 213, 159 A.L.R. 1346 (dissent). The
decisive consideration is whether the judge or the jury is, or presently will be, pondering a
decision that comment seeks to affect. Forbidden comment is such as will or may throw
psychological weight into scales which the court is immediately balancing. Cf. L. Hand, J., in Ex
parte Craig, 282 F. 138, 159, 160. In the situation before us, the scales had come to rest. The
petitioners offended the trial court by criticizing what the court had already put in the scales, not
by attempting themselves to insert weights.
The petitioners here could not have disturbed the trial court in its sense of fairness but only in its
sense of perspective. The judgment must, I agree, be reversed.
Mr. Justice MURPHY, concurring.
Were we to sanction the judgment rendered by the court below we would be approving, in effect,
an unwarranted restriction upon the freedom of the press. That freedom [328 U.S. 331, 370] covers
something more than the right to approve and condone insofar as the judiciary and the judicial
process are concerned. It also includes the right to criticize and disparage, even though the terms
be vitriolic, scurrilous or erroneous. To talk of a clear and present danger arising out of such
criticism is idle unless the criticism makes it impossible in a very real sense for a court to carry
on the administration of justice. That situation is not even remotely present in this case.
Judges should be foremost in their vigilance to protect the freedom of others to rebuke and
castigate the bench and in their refusal to be influenced by unfair or misinformed censure.
Otherwise freedom may rest upon the precarious base of judicial sensitiveness and caprice. And
a chain reaction may be set up, resulting in countless restrictions and limitations upon liberty.
Mr. Justice RUTLEDGE, concurring.
One can have no respect for a newspaper which is careless with facts and with insinuations
founded in its carelessness. Such a disregard for the truth not only flouts standards of journalistic
activity1 observed too often by [328 U.S. 331, 371] breach, but in fact tends to bring the courts and
those who administer them into undeserved public obloquy.
But if every newspaper which prints critical comment about courts without justifiable basis in
fact, or withholds the full truth in reporting their proceedings or decisions, or goes even further
and misstates what they have done, were subject on these accounts to punishment for contempt,
there would be ew not frequently involved in such proceedings. There is perhaps no area of news
more inaccurately reported factually, on the whole, though with some notable exceptions, than
legal news.
Some part of this is due to carelessness, often induced by the haste with which news is gathered
and published, a smaller portion to bias or more blameworthy causes. But a great deal of it must
be attributed, in candor, to ignorance which frequently is not at all blameworthy. For newspapers
are conducted by men who are laymen to the law. With too rare exceptions their capacity for
misunderstanding the significance of legal events and procedures, not to speak of opinions, is
great. But this is neither remarkable nor peculiar to newsmen. For the law, as lawyers best know,
is full of perplexities.
In view of these facts any standard which would require strict accuracy in reporting legal events
factually or in commenting upon them in the press would be an impossible one. Unless the courts
and judges are to be put above criticism, no such rule can obtain. There must be [328 U.S. 331, 372]
some room for misstatement of fact, as well as for misjudgment, if the press and others are to
function as critical agencies in our democracy concerning courts as for all other instruments of
government.
Courts and judges therefore cannot be put altogether beyond the reach of misrepresentation and
misstatement. That is true in any case, but perhaps more obviously where the judiciary is
elective, as it is in most of our states, including Florida. See Storey v. Illinois, 79 Ill. 45, 52, 22
Am.Rep. 158; (1927) 41 Harv.L.Rev. 254, 255. The question, and the standard, must be one of
degree and effects. It cannot be placed at mere falsity, either in representation or in judgment.
The statement, whether of fact or of opinion, must be of such a character, whether true or false,
as to obstruct in some clear and substantial way the functioning of the judicial process in pending
matters. Bridges v. California, 314 U.S. 252 , 62 S.Ct. 190, 159 A.L.R. 1346.2 It is not enough
that the judge's sensibilities are affected or that in some way he is brought generally into
obloquy. After all, it is to be remembered that it is judges who apply the law of contempt, and the
offender is their critic.
The statements in question are clearly fair comment in large part. Portions exceed that boundary.
But the record does not disclose that they tended in any way to block or obstruct the functioning
of the judicial process. Accordingly I concur in the Court's opinion and judgment.
Footnotes
[ Footnote 1 ] Compare Schenck v. United States, 249 U.S. 47, 52 , 39 S.Ct. 247, 249; Thornhill
v. Alabama, 310 U.S. 88, 105 , 60 S.Ct. 736, 745; Carlson v. California, 310 U.S. 106, 113 , 60
S.Ct. 746, 749; West Virginia State Board of Education v. Barnette, 316 U.S. 624, 633 , 63 S.Ct.
1178, 1183, 147 A.L.R. 674.
[ Footnote 2 ] Gitlow v. New York, 268 U.S. 652, 666 , 45 S.Ct. 625, 630; Near v. Minnesota,
283 U.S. 697, 707 , 51 S.Ct. 625, 628.
[ Footnote 3 ] Bridges v. California, 314 U.S. 252, 267 , 62 S.Ct. 190, 195, 159 A.L.R. 1346.
Compare Chambers v. Florida, 309 U.S. 227, 228 , 60 S.Ct. 472, 473; Hooven & Allison Co. v.
Evatt, 324 U.S. 652 , 659. 65 S.Ct. 870, 874.
[ Footnote 4 ] November 2, 1944:
'Courts Are EstablishedFor the People.
'The courts belong to the people. The people have established them to promote justice,
insure obedience to the law and to Punish Those Who Willfully Violate It.
'The people maintain the courts by providing the salaries of officials and setting up costly
chambers and courtrooms for the orderly and dignified procedure of the tribunals.
'Upon the judges the people must depend for the decisions and the judicial conduct that
will insure society-as a whole and in its individuals-against those who would undermine
or destroy the peace, the morality and the orderly living of the community.
'In Order that the courts should not be amenable to political or other pressures in their
determination of matters placed before them, Florida Circuit judges are called upon to
face the electorate less often than are other elective office holders.
'So long are their terms, in fact, that in Dade county no Circuit judge, and only one judge
of another court, has come to the bench by public choice in the first instance. All the
others have been named
by a governor to fill a vacancy caused by death or resignation, or similar circumstance.
'Judicial terms in Dade county run:
'1-Six years each for six Circuit judges.
'2-Four ears each for two Civil Court of Record judges.
'3-Four years for the judge of the Criminal Court of Record.
'4-Four years for the judge of the Court of Crimes.
'5-Four years for County judge.
'6-Four years for Juvenile court judge.
'These twelve judges represent the majesty and the sanctity of the law. They are the first
line of defense locally of organized society against vice, corruption and crime, and the
sinister machinations of the underworld.
'It Is beyond question that American courts are of, by and for the people.
'Every accused person has a right to his day in court. But when judicial instance and
interpretative procedure recognize and accept, even go out to find, every possible
technicality of the law to protect the defendant, to block, thwart, hinder, embarrass and
nullify prosecution, then the people's rights are jeopardized and the basic reason for
courts stultified.
'The seeming ease and pat facility with which the criminally charged have been given
technical safeguard have set people to wondering whether their courts are being
subverted into refuges for lawbreakers.
'This Week the people, through their grand jury, brought into court eight indictments for
rape. Judge Paul D. Barns agreed with the defense that the indictments were not properly
drawn. Back they went to the grand jury for re-presentation to the court.
'Only in the gravest emergency does a judge take over a case from another court of equal
jurisdiction. A padlock action against the Brook Club was initiated last spring before
Judge George E. Holt, who granted a temporary injunction.
'After five months, the case appeared Tuesday out of blue sky before Judge Marshall C.
Wiseheart at the time State Attorney Stanley Milledge was engaged with the grand jury.
'Speedy decision was asked by defense counsel despite months of
stalling. The State Attorney had to choose between the grand jury and Judge Wiseheart's court.
'The judge dismissed the injunction against the club and its operators. The defense got
delay when it wanted and prompt decision from the court when it profited it.
'On Oct. 10 Judge Holt had before him a suit by the state to abate a nuisance
(bookmaking) at the Tepee Club.
'Five affidavits of persons who allegedly visited the premises for the purpose of placing
bets were introduced by the state over the objection of the defendants.
'Judge Holt ruled them out, explaining in denying the injunction against the Tepee Club:
"The defendant cannot cross-examine an affidavit. The court cannot determine who is
testifying and whether belief can be placed upon such testimony .... The fact that such
affidavits were taken before the State Attorney does not give them any additional weight
or value.'
'This may be good law, exact judicial evaluation of the statutes. It is, however, the
character of legal interpretation which causes people to raise questioning eyebrows and
shake confused heads in futile wonderment.
'If Technicalities are to be the order and the way for the criminally charged either to avoid
justice altogether or so to delay prosecution as to cripple it, then it behooves our courts
and the legal profession to cut away the deadwood and the entanglements.
'Make it possible for the state's case, the people's case, to be seen with equal clarity of
judicial vision as that accorded accused lawbreakers. Otherwise technicalities and the
courts make the law, no matter what the will of the people and of their legislators.'
November 7, 1944:
'Why People Wonder.
'Here is an example of why people wonder about the law's delays and obstructing
technicalities operating to the disadvantage of the state- which is the people-in
prosecutions.
'After stalling along for months, the defense in the padlock case against the Brook Club
appeared before Judge Marshall C. Wiseheart
for a decision. The State Attorney was working with the grand jury. The court knocked out the
injunction. There was speed, dispatch, immediate attention and action for those charged with
violation of the law. So fas that the people didn't get in a peep.
'That's one way of gumming up prosecution. Another is to delay action. On March 29,
Coy L. Jaggears, bus driver, was sentenced to fifteen days in city jail by Judge Cecil C.
Curry on conviction of beating up a taxicab operator.
'The arrest precipitated the notorious bus strike. As a result, Jaggears walked out of jail
after posting a $200 appeal bond. The appeal never got further.
'There you have the legal paradox, working two ways, but to the same purpose against
prosecution. Speed when needed. Month after month of delay when that serves the
better.'
[ Footnote 5 ] 22 So.2d 875, 882: 'So the vice in both the editorials was the distorted, inaccurate
statement of the facts and with that statement were scrambled false insinuations that amounted to
unwarranted charges of partisanship and unfairness on the part of the judges.
'The record was available in all these cases and it does not reveal a breath of suspicion on
which to predicate partisanship and unfairness on the part of the judges. It is shown rather
that they acted in good faith and handled each case to the very best advantage possible.
There was no judgment that could have been entered in any of them except th one that
was entered. If the editorials had stated the facts correctly, nothing but a correct
conclusion could have been deduced and there would have been no basis for contempt
but here they elected to publish as truth a mixture of factual misstatement and omission
and impose on that false insinuation, distortion, and deception and then contend that
freedom of the press immunizes them from punishment.'
[ Footnote 6 ] 22 So.2d 875, 884, 885, 886:
'A newspaper may criticize, harass, irritate, or vent its spleen against a person who holds
the office of judge in the same manner that it does a member of the legislature and other
elective officers, but it may not publish scurrilous or libelous criticisms of a presiding
judge as such or his judgments for the purpose of discrediting the Court in the eyes of the
public. Respect for courts is not inspired by shielding them from criticism. This is a
responsibility of the judge, acquired over the years by the spirit in which he approaches
the judicial process, his ability to humanize the law and square it with reason, the level of
his thinking, the consistency of his adherence to right and justice, and the degree to which
he holds himself aloof from blocs, groups, and techniques that would sacrifice justice for
expediency. ...
'Courts cannot function in a free country when the atmosphere is charged with the
effusions of a press designed to poison the mind of the public against the presiding judges
rather than to clarify the issues and propagate the truth about them. The latter was the
press that Mr. Jefferson visioned when he promulgated the thesis, 'Our liberty depends on
the freedom of the press and that cannot be limited without being lost.' ...
'Freedom to publish one's views is a principle of universal practice, but when the press
deliberately abandons the proprieties and sets out to poison its pabulum or to sow
dragon's teeth and dispense canards for the purpose of doing another a wrong, it is no
different category from a free man that does likewise. The most rigid safeguard thrown
around a free press would not protect appellants from falsely publishing or announcing to
the world that the clergy of Miami were in sympathy with the practice of polygamy or
were fostering other doctrines equally obnoxious to approved moral standards. ...
'The theory of our system of fair trial is that the determination of every case should be
induced solely by evidence and argument in open court and the law applicable thereto
and not by any outside influence, whether of private talk or public print. ...
'The State Courts touch the public much more frequently than the Federal Courts and
they have many reasons to enforce orderly administration that would not arise in the
Federal Courts. If that power is to be construed by what appellants contend to be the
pattern in the Bridges and Nye cases (Bridges v. California, supra; and Nye v. United
States, 313 U.S. 33 , 61 S.Ct. 810), then more than one hundred years of state law and
decisions on the subject are turned into confusion or set at naught. ...
'We do not think this can be the law. The Bridges case was disposed of on authority of
the "clear and present danger' cases', which are not analogous to most of the state cases
because they arise from a different state of the law. The ultimate test in the Bridges case
requires that the 'substantive evil must be extremely serious and the degree of imminence
extremely high before utterances can be punished.' Even if this test is to ( be) the rule in
the State Courts, they are authorized to apply it by their own law and standards and
unless the application is shown to be arbitrary and unreasonable, heir judgment should
not be disturbed. The law in Florida permits the most liberal exercise possible of freedom
of the press but holds to account those who abuse it.
'We therefore hold that the cartoon and the editorials afford ample support for the
judgment imposed and that the issues were properly adjudicated under Florida law.'
[ Footnote 7 ] See IX Wigmore, Evidence (3d Ed.) 2557. Crawford v. United States, 212 U.S.
183, 203 , 29 S.Ct. 260, 267, 15 Ann.Cas. 392.
[ Footnote 8 ] Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 293 , 294 S.,
61 S.Ct. 552, 555, 132 A.L.R. 1200; Lisenba v. California, 314 U.S. 219, 238 , 62 S.Ct. 280,
291.
[ Footnote 9 ] Chambers v. Florida, 309 U.S. 227, 239 , 60 S.Ct. 472, 478; Ashcraft v.
Tennessee, 322 U.S. 143, 152 , 153 S., 154, 64 S.Ct. 921, 925, 926; Malinski v. New York, 324
U.S. 401, 404 , 65 S.Ct. 781, 783.
[ Footnote 10 ] See the cases in the preceding paragraph, note 8.
[ Footnote 11 ] Murdock v. Pennsylvania, 319 U.S. 105, 115 , 63 S.Ct. 870, 876, 891, 146 A.L.R.
81; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639 , 63 S.Ct. 1178, 1186,
147 A.L.R. 674; Thomas v. Collins, 323 U.S. 516, 527 , 530 S., 65 S.Ct. 315, 321, 323.
[ Footnote 12 ] Bridges v. California, 314 U.S. at page 269, 62 S.Ct. at page 196, 159 A.L.R.
1346:
'No suggestion can be found in the Constitution that the freedom there guaranteed for
speech and the press bears an inverse ratio to the timeliness and importance of the ideas
seeking expression. Yet, it would follow as a practical result of the decisions below that
anyone who might wish to give public expression to his views on a pending case
involving no matter what problem of public interest, just at the time his audience would
be most receptive, would be as effectively discouraged as if a deliberate statutory scheme
of censorship had been adopted.'
[ Footnote 13 ] 'These respondents deny any intent by either said editorial or said cartoon either
in words or otherwise to interfere with fair and impartial justice in the State of Florida and deny
that the large character in the cartoon was beside the judge and on the bench and being heard,
recognized and favored, but, on the contrary, these respondents respectfully show that it was the
intention of said editorial and said cartoon to condemn and criticise the system of pleading and
practice and procedure created by the laws of Florida, whereby such cases could long be delayed
and then could be dismissed upon technical grounds in the manner herein shown.'
We add Mr. Pennekamp's statement of the editorial policy of the Miami Herald:
"We are ourselves Free-Free as the Constitution we enjoy-Free to truth, good manners
and good sense. We shall be for whatever measure is best adapted to defending the rights
and liberties of the people and advancing useful knowledge. We shall labor at all times to
inspire the people with a just and proper sense of their condition, to point out to them
their true interest and rouse them to pursue it."
[ Footnote 1 ] The judges who tried the contempt cases were the same judges who were criticized
by the editorials. The words of caution of Mr. Chief Justice Taft become relevant: 'The delicacy
there is in the judge's deciding whether an attack upon his own judicial action is mere criticism
or real obstruction, and the possibility that impulse may incline his view to personal vindication a
e manifest.' Craig v. Hecht, 263 U.S. 255, 279 , 44 S.Ct. 103, 107 (concurring). But the judges
who tried petitioners were sensible of the delicacy of their position, and offered to retire from the
case if petitioners felt they would prefer to be tried by another judge.
[ Footnote 2 ] '... the administration of government has become more complex, the opportunities
for malfeasance and corruption have multiplied, crime has grown to most serious proportions,
and the danger of its protection by unfaithful officials and of the impairment of the fundamental
security of life and property by criminal alliances and official neglect, emphasizes the primary
need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the
press may be abused by miscreant purveyors of scandal does not make any the less necessary the
immunity of the press from previous restraint in dealing with official misconduct. Subsequent
punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional
privilege.' Near v. Minnesota, 283 U.S. 697, 719 , 720 S., 51 S.Ct. 625, 632.
Not unrelated to this whole problem, however, are the technological and economic influences
that have vastly transformed the actual operation of the right to a free, in the sense of a
governmentally uncensored, press. Bigness and concentration of interest have put their impress
also on this industry. 'Today ideas are still flowing freely, but the source from which they rise
have shown a tendency to evaporate. ... The controlling fact in the free flow of thought is not
diversity of opinion, it is diversity of the sources of opinion-that is, diversity of ownership. ...
There are probably a lot more words written and spoken in America today than ever before, and
on more subjects, but if it is true as this book suggests, that these words and ideas are flowing
through fewer channels, then our first freedom had been diminished, not enlarged.' E. B. White,
in the New Yorker, March 16, 1946, p. 97, reviewing Ernst, The First Freedom (1946). There are
today incomparably more effective and more widespread means for the dissemination of ideas
and information than in the past. But a steady shrinkage of a diffused ownership raises far
reaching questions regarding the meaning of the 'freedom' of a free press.
[ Footnote 3 ] Article XXIX of the Declaration of Rights of the Constitution of Massachusetts,
1780.
[ Footnote 4 ] That this indispensable condition for a free soc ety was well known to the framers
of the Constitution, is the theme of Mr. Justice Brandeis in his dissenting opinion, in Myers v.
United States, 272 U.S. 52 , 240, at page 293, 47 S.Ct. 21, 66, at page 85: 'The doctrine of the
separation of powers was adopted by the Convention of 1787, not to promote efficiency but to
preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of
the inevitable friction incident to the distribution of the governmental powers among three
departments, to save the people from autocracy.' And see Mr. Chief Justice Taft, in Ex parte
Grossman, 267 U.S. 87 , 119-122, 45 S.Ct. 332, 336, 337, 38 A.L.R. 131.
[ Footnote 5 ] The State constitutions make it clear that the freedom of speech and press they
guarantee is not absolute. All, with the exception only of Massachusetts, New Hampshire, South
Carolina, Vermont, and West Virginia, explicitly provide in practically identical language for the
right to speak, write and publish freely, every one, however, 'being responsible for the abuse of
that right.'
[ Footnote 6 ] See, e.g., the disturbing record in the case of Campbell, New York County
Criminal Courts Bar Association, In the Matter of the Investigation of the Conviction of Bertram
M. Campbell (Feb. 22, 1946), and the decision of the New York Court of Claims, on June 17,
1946, 186 Misc. 586, 62 N.Y.S. 2d 638, 643, awarding Campbell $115,000, including damages
for loss of earnings, for wrongful conviction, after his pardon, on the score of innocence, by
Governor Dewey, following the confession by another of the crimes for which Campbell had
been convicted. 'He was the victim of a miscarriage of justice but fortunately for him the state
has undertaken to rectify the mistake as far as possible. ... Seven years, six months and five days
elapsed from claimant's arrest until he was pardoned.'
[ Footnote 7 ] Compare Inquiry in Regard to the Interrogation by the Police of Miss Savidge,
Cmd. 3147 (1928); Report of the Royal Commission on Police Powers and Procedure, Cmd.
3297 (1929), with Report on Lawlessness in Law Enforcement, in 4 National Commission on
Law Observance and Enforcement Reports (1931). See also Ziang Sun Wan v. United States,
266 U.S. 1 , 45 S. Ct. 1; Brown v. Mississippi, 297 U.S. 278 , 56 S.Ct. 461; Chambers v. Florida,
309 U.S. 227 , 60 S.Ct. 472.
[ Footnote 8 ] The recent ruling by the Speaker of the House of Commons regarding the
limitation on the right to comment even in Parliament on the pending proceedings against the
accused Nazis before the Nuremberg tribunal bears significantly on the attitude and controling
standards deemed appropriate in England in order to protect the judicial process from extraneous
influences:
'The Rule to which the Noble Lord has drawn my attention that reflections cannot be
made on judged of the High Court and certain other courts, except by way of a
substantive Motion, applies only to the courts of this country. In terms, therefore, it only
covers the two British members of this tribunal. I feel that it would be worse than
invidious- indeed improper-not to extend the same protection to their colleagues on this
tribunal who represent the three other Allied Nations.
'There is, however, another of our Rules of Debate which is relevant to this case, the Rule
that matters which are sub judice should not be the subject of discussion in this House.
This Rule again, in terms, applies only to British courts. The court in Nuremberg is a
court in which British judges participate, and we have the same interest in seeing that
nothing is done here to disturb its judicial atmosphere as we have in the case of British
courts-indeed, perhaps a greater interest, since the eyes of the world are upon this new
and difficult procedure of international justice, and the consequences of ill-advised
interference might be incalculably mischievous.
'I think that the intention of both the Rules to which I have referred, is to preserve the
House from even the appearance of interfering in the administration of British justice-and
this should include trials for which this country has some responsibility; and I rule,
therefore, that all the Members of this International Court are protected to the same extent
as British judges, and that discussion of its proceedings is out of Order, in the same way
as matter under adjudication in a British court of law.' 416 Parliamentary Debates
(Hansard) 599-600, Nov. 22, 1945.
[ Footnote 9 ] The manner in which the Hauptmann trial was reported led to a searching inquiry
by a special committee of the American Bar Association and it reported the following
recommendations:
'In the foregoing report we have tried to make a fair presentation of salient facts. We have
been moved less by spirit of censure than by hope of remedial action. The excesses we
have described differ from practices in many other cases mainly in degree.
'The trial of a criminal case is a business that has for its sole purpose the administration of
justice, and it should be carried on without distracting influences.
'Passing from the general to the specific we recommend:
'That attendance in the courtroom during the progress of a criminal trial be limited to the
seating capacity of the room.
'That the process of subpoena or any other process of the court should never be used to
secure preferential admission of any person or spectator; that such abuse of process be
punished as contempt.
'That approaches to the courtroom be kept clear, to the end that free access to the
courtroom be maintained.
'That no use of cameras or photographic appliances be permitted in the courtroom, either
during the session of the court or otherwise.
'That no sound registering devices for publicity use be permitted to operate in the
courtroom at any time.
'That the surreptitious procurement of pictures or sound records be considered contempt
of court and be punished as such.
'That the courtroom and the court house be kept from from news distributing devices and
equipment.
'That newspaper accounts of criminal proceedings be limited to accounts of occurrences
in court without argument of the case to the public.
'That no popular referendum be taken during the pendency of the litigation as to the guilt
or innocence of the accused.
'That broadcasting of arguments, giving out of argumentive press bulletins, and every
other form of argument or discussion addressed to the public, by lawyers in the case
during the progress of the litigation be definitely forbidden.
'That bulletins by the defendant issued to the public during the progress of the trial be
definitely forbidden.
'That public criticism of the court or jury by lawyers in the case during the progress of the
litigation be not tolerated.
'That featuring in vaudeville of jurors or other court officers, either during or after the
trial, be forbidden.
'That the giving of paid interviews or the writing of paid articles by jurors, either during
or after the trial, be forbidden.
'That the atmosphere of the courtroom and adjacent premises be maintained as one of
dignity and calm.' (1936) 22 A.B.A. Journal 79, 80.
[ Footnote 10 ] See, e.g., Gilman, The Truth Behind the News (June, 1933) 29 American
Mercury 139. 'It is idle for such newspapers to claim they adopt such practices in the public
interest. Their motive is the sordid one of increasing their profits, unmindful of the result to the
unfortunate wretch who may ultimately have to stand his trial for murder.' Mr. Justice Blair, in
Attorney-General v. Tonks (1934) N.Z.L.R. 141, 148, at 150. Cf. Pratt, How the Censors Rigged
the News (Feb. 1946) 192 Harper's Magazine, 97, 105.
[ Footnote 11 ] A professional defense of crime reporting has this bit of refreshing candor: 'I will
concede, however, that had it not been for popular feeling developed to fever heat by the
newspapers, Hickman might be living today behind the walls of some madhouse instead of
having met death in the electric chair.' Dewey, Crime and the Press (Dec. 30, 1931) 15
Commonweal 231, 233. Compare the statement by one of the most experienced criminal
lawyers, Clarence Darrow:
'Trial by jury is rapidly being destroyed in America by the manner in which the
newspapers handle all sensational cases. I don't know what should be done about it. The
truth is that the courts and the lawyers don't like to proceed against newspapers. They are
too powerful. As the law stands today there is no important criminal case where the
newspapers are not guilty of contempt of court day after day. All lawyers know it, all
judges know it, and all newspapers know it. But nothing is done about it. No new laws
are necessary. The court has full jurisdiction to see that no one influences a verdict or a
decision. But everyone is afraid to act.' Quoted by Perry, in Trial by Newspapers (1931)
30 Mich.L.Rev. 228, 234; ( 1932) 66 U.S.Law Rev. 374, 379; (1932) 11 Phil.L.J. 277,
282.
[ Footnote 12 ] 30 Mich.L.Rev. at 232; 66 U.S.Law Rev. at 377; 11 Phil.L.J. at 280. In an
address before the 1936 meeting of the American Bar Association Delegates, Sir Wilmott Lewis,
the veteran Washington correspondent of The Times (London) expressed these views:
'The point I would make is that neither the tradition of orderly legal procedure, nor the
obligation which the press should recognize to the maintenance of that tradition, can, in
themselves, be enough amid the pressure and vulgarity of the modern world.
'Tradition and obligation must be buttressed by rules, and those rules must be enforced in
the domain of their immediate 231, 233. Compare the statement by one
'I think it intolerable, and I cannot think that it should not be punishable, that a charge
lying against any citizen should be irresponsibly tried in the public prints, whose plain
duty is the reporting, and not the hearing of causes. ...' (1936) 20 J.Am.Jud.Soc. 84, 86.
[ Footnote 13 ] See the skeptical remarks of H. L. Mencken, a stout libertarian, on the efficacy of
journalistic self-restraint:
'Journalistic codes of ethics are all moonshine. Essentially, they are absurd as would be
codes of street-car conductors, barbers or public jobholders. If American journalism is to
be purged of its present swinishness and brought up to a decent level of repute-and God
knows that such an improvement is needed-it must be accomplished by the devices of
morals, not by those of honor. That is to say, it must be accomplished by external forces,
and through the medium of penalties, exteriorly inflicted.' Quoted by LeViness, in Law
and the Press, The Daily Record, Baltimore, March 11, 1932, p. 3, col. 1, 4.
The author of the article, Mr. LeViness, a Baltimore Sun reporter turned lawyer, followed the
quotation from Mr. Mencken with this comment:
'This puts the problem, as far as Court and public news goes, squarely back where it
belongs: in the lap of the judiciary. The Courts must set the standards; the better journals
will follow joyously and the gumchewers' sheets must be whipped into line. The solution
is fearless jurists, not afraid of the double-edged sword of contempt process; intelligent
jurists, able to exercise this power in the best enlightened public interest.' Ibid.
[ Footnote 14 ] Pennekamp v. State, Fla., 22 So.2d 875, 881, 882.
[ Footnote 1 ] See the following codes of ethics published in Crawford, The Ethics of Journalism
(1924) App.A.: Canons of Journalism, Adopted by the American Society of Newspaper Editors
in 1923, Art. IV; The Oregon Code of Ethics, Adopted by the Oregon State Editorial Association
in 1922, Art. 1; South Dakota Code of Ethics, adopted by the South Dakota Press Association in
1922, 'Truth and Honesty'; Missouri Declaration of Principles and Code of Practice, adopted by
the Missouri Press Association in 1921, 'Editorial.' And see in the same volume the extracts from
rules and suggestions prepared by the following newspapers for the guidance of their staffs: The
Brooklyn Eagle, The Christian Science Monitor, The Springfield Union, The Detroit News, The
Hearst Newspapers (personal instructions given by William Randolph Hearst to his newspapers),
The Sacramento Bee, The Kansas City Journal-Post, the Marion Star (written by President
Harding when editing The Star). See also Sharkey, The Ethics of Journalism, An Address
Delivered before the Press Conference of the World, Geneva, Switzerland, September 15, 1926,
p. 10; Wicks, Ideals and Methods of English Newspapers, published in Journalistic Ethics and
World Affairs, Addresses Delivered at the Fifteenth Annual Journalism Week at the University
of Missouri, 1924, 25 U. of Mo.Bull. (No. 32) 25, 26; Gibbons, Newspaper Ethics (1926) 16 et
seq.
[ Footnote 2 ] 'Nor does the fact that the letter was false, while it greatly affects the moral quality
of the act, determine its criminality. It is punishable only if it interferes with justice, and in that
respect truth is harder to meet than falsehood.' L. Hand, dissenting in Ex parte Craig, 2 Cir., 282
F. 138, 161, affirmed sub nom. Craig v. Hecht, 263 U.S. 255 , 44 S.Ct. 103. See also the
dissenting opinion of Mr. Justice Holmes, 263 U.S. at page 281, 44 S.Ct. at page 107. But. cf. In
re Providence Journal Co., 28 R.I. 489, 68 A. 428, 17 L.R.A., N.S., 582, 125 Am.St.Rep. 755; In
re San Francisco Chronicle, 1 Cal.2d 630, 36 P.2d 369.
XXXXXXXXX
XXXXXXXXX
U.S. Supreme Court
MARSH v. STATE OF ALA., 326 U.S. 501 (1946)
326 U.S. 501
MARSH
v.
STATE OF ALABAMA.
No. 114.
Argued and Submitted Dec. 7, 1945.
Decided Jan. 7, 1946.
On Appeal from the Court of Appeals of the State of Alabama. [326 U.S. 501, 502] Mr. Hayden C.
Covington, of Brooklyn, N.Y., for appellants.
Mr. William N. McQueen, of Montgomery, Ala., for appellee.
Mr. Justice BLACK delivered the opinion of the Court.
In this case we are asked to decide whether a State, consistently with the First and Fourteenth
Amendments, can impose criminal punishment on a person who undertakes to distribute
religious literature on the premises of a company-owned town contrary to the wishes of the
town's management. The town, a suburb of Mobile, Alabama, known as Chickasaw, is owned by
the Gulf Shipbuilding Corporation. Except for that it has all the characteristics of any other
American town. The property consists of residential buildings, streets, a system of sewers, a
sewage disposal plant and a 'business block' on which business places are situated. A deputy of
the Mobile County Sheriff, paid by the company, serves as the town's policeman. Merchants and
service establishments have rented the stores and business places on the business block and [326
U.S. 501, 503] the United States uses one of the places as a post office from which six carriers
deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding
neighborhood, which can not be distinguished from the Gulf property by anyone not familiar
with the property lines, are thickly settled, and according to all indications the residents use the
business block as their regular shopping center. To do so, they now, as they have for many years,
make use of a company-owned paved street and sidewalk located alongside the store fronts in
order to enter and leave the stores and the post office. Intersecting company-owned roads at each
end of the business block lead into a four-lane public highway which runs parallel to the business
block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the
business block and upon arrival a traveler may make free use of the facilities available there. In
short the town and its shopping district are accessible to and freely used by the public in general
and there is nothing to distinguish them from any other town and shopping center except the fact
that the title to the property belongs to a private corporation.
Appellant, a Jehovah's Witness, came onto the sidewalk we have just described, stood near the
post-office and undertook to distribute religious literature. In the stores the corporation had
posted a notice which read as follows: 'This Is Private Property, and Without Written Permission,
No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted.' Appellant
was warned that she could not distribute the literature without a permit and told that no permit
would be issued to her. She protested that the company rule could not be constitutionally applied
so as to prohibit her from distributing religious writings. When she was asked to leave the
sidewalk and Chickasaw she declined. The deputy sheriff arrested her and she was charged in the
state court with violating Title [326 U.S. 501, 504] 14, Section 426 of the 1940 Alabama Code
which makes it a crime to enter or remain on the premises of another after having been warned
not to do so. Appellant contended that to construe the state statute as applicable to her activities
would abridge her right to freedom of press and religion contrary to the First and Fourteenth
Amendments to the Constitution. This contention was rejected and she was convicted. The
Alabama Court of Appeals affirmed the conviction, holding that the statute as applied was
constitutional because the title to the sidewalk was in the corporation and because the public use
of the sidewalk had not been such as to give rise to a presumption under Alabama law of its
irrevocable dedication to the public. 21 So.2d 558. The State Supreme Court denied certiorari, 2
6 Ala. 539, 21 So.2d 564, and the case is here on appeal under Section 237(a) of the Judicial
Code, 28 U.S.C. 344(a), 28 U.S.C.A. 344(a).
Had the title to Chickasaw belonged not to a private but to a municipal corporation and had
appellant been arrested for violating a municipal ordinance rather than a ruling by those
appointed by the corporation to manage a company-town it would have been clear that
appellant's conviction must be reversed. Under our decision in Lovell v. Griffin, 303 U.S. 444 ,
58 S.Ct. 666, and others which have followed that case,1 neither a state nor a municipality can
completely bar the distribution of literature containing religious or political ideas on its streets,
sidewalks and public places or make the right to distribute dependent on a flat license tax or
permit to be issued by an official who could deny it at will. We have also held that an ordinance
completely prohibiting the dissemination of ideas on the city streets can not be justified on the
ground that the [326 U.S. 501, 505] municipality holds legal title to them. Jamison v. Texas, 318
U.S. 413 , 63 S.Ct. 669. And we have recognized that the preservation of a free society is so far
dependent upon the right of each individual citizen to receive such literature as he himself might
desire that a municipality could not without jeopardizing that vital individual freedom, prohibit
door to door distribution of literature. Martin v. Struthers, 319 U.S. 141, 146 , 147 S., 63 S.Ct.
862, 865. From these decisions it is clear that had the people of Chickasaw owned all the homes,
and all the stores, and all the streets, and all the sidewalks, all those owners together could not
have set up a municipal government with sufficient power to pass an ordinance completely
barring the distribution of religious literature. Our question then narrows down to this: Can those
people who live in or come to Chickasaw be denied freedom of press and religion simply
because a single company has legal title to all the town? For it is the state's contention that the
mere fact that all the property interests in the town are held by a single company is enough to
give that company power, enforceable by a state statute, to abridge these freedoms.
We do not agree that the corporation's property interests settle the question. 2 The State urges in
effect that [326 U.S. 501, 506] the corporation's right to control the inhabitants of Chickasaw is
coextensive with the right of a homeowner to regulate the conduct of his guests. We can not
accept that contention. Ownership does not always mean absolute dominion. The more an owner,
for his advantage, opens up his property for use by the public in general, the more do his rights
become circumscribed by the statutory and constitutional rights of those who use it. Cf. Republic
Aviation Corp. v. N.L.R.B., 324 U.S. 793 , 65 S.Ct. 982, 985, 987, note 8, 157 A.L.R. 1081.
Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them
as freely as a farmer does his farm. Since these facilities are built and operated primarily to
benefit the public and since their operation is essentially a public function, it is subject to state
regulation. 3 And, though the issue is not directly analogous to the on before us we do want to
point out by way of illustration that such regulation may not result in an operation of these
facilities, even by privately owned companies, which unconstitutionally interferes with and
discriminates against interstate commerce. Port Richmond & Bergen Point Ferry Co. v. Board of
Chosen Freeholders of Hudson County, supra, 234 U.S. at page 326, 34 S.Ct. at page 823, and
cases cited, 234 U.S. at pages 328, 329, 34 S. Ct. at pages 824, 825; cf. South Carolina State
Highway Department v. Barnwell Brothers, 303 U.S. 177, 625 , 58 S.Ct. 510. Had the
corporation here owned the segment of the four-lane highway which runs parallel to the 'business
block' and operated the same under a State franchise, doubtless no one would have seriously
contended that the corporation's property interest in the highway gave it power to obstruct
through traffic or to discriminate against interstate commerce. See [326 U.S. 501, 507] County
Commissioners v. Chandler, 96 U.S. 205 , 208; Donovan v. Pennsylvania Co., supra, 199 U.S. at
page 294, 26 S.Ct. at page 94; Covington Drawbridge Co. v. Shepherd, 21 How. 112, 125. And
even had there been no express franchise but mere acquiescence by the State in the corporation's
use of its property as a segment of the four-lane highway, operation of all the highway, including
the segment owned by the corporation, would still have been performance of a public function
and discrimination would certainly have been illegal. 4
We do not think it makes any significant constitutional difference as to the relationship between
the rights of the owner and those of the public that here the State, instead of permitting the
corporation to operate a highway, permitted it to use its property as a town, operate a 'business
block' in the town and a street and sidewalk on that business block. Cf. Barney v. Keokuk, 94
U.S. 324 , 340. Whether a corporation or a municipality owns or possesses the town the public in
either case has an identical interest in the functioning of the community in such manner that the
channels of communication remain free. As we [326 U.S. 501, 508] have heretofore stated, the
town of Chickasaw does not function differently from any other town. The 'business block'
serves as the community shopping center and is freely accessible and open to the people in the
area and those passing through. The managers appointed by the corporation cannot curtail the
liberty of press and religion of these people consistently with the purposes of the Constitutional
guarantees, and a state statute, as the one here involved, which enforces such action by
criminally punishing those who attempt to distribute religious literature clearly violates the First
and Fourteenth Amendments to the Constitution.
Many people in the United States live in company-owned towns. 5 These people, just as
residents of municipalities, are free citizens of their State and country. Just as all other citizens
they must make decisions which affect the welfare of community and nation. To act as good
citizens they must be informed. In order to enable them to be properly informed their information
must be uncensored. There is no more reason for depriving these people of the liberties
guaranteed by the First and Four- [326 U.S. 501, 509] teenth Amendments than there is for
curtailing these freedoms with respect to any other citizen. 6
When we balance the Constitutional rights of owners of property against those of the people to
enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the
latter occupy a preferred position. 7 As we have stated before, the right to exercise the liberties
safeguarded by the First Amendment 'lies at the foundation of free government by free men' and
we must in all cases 'weigh the circumstances and appraise ... the reasons ... in support of the
regulation of (those) rights.' Schneider v. State, 308 U.S. 147, 161 , 60 S. Ct. 146, 151. In our
view the circumstance that the property rights to the premises where the deprivation of liberty,
here involved, took place, were held by others than the public, is not sufficient to justify the
State's permitting a corporation to govern a community of citizens so as to restrict their
fundamental liberties and the enforcement of such restraint by the application of a State statute.
Insofar as the State has attempted to impose criminal punishment on appellant for undertaking to
distribute religious literature in a company town, its action cannot stand. The case is re- [326 U.S.
501, 510] versed and the cause remanded for further proceedings not inconsistent with this
opinion.
Reversed and remanded.
Mr. Justice JACKSON took no part in the consideration or decision of this case.
Mr. Justice FRANKFURTER, concurring.
So long as the views which prevailed in Jones v. Opelika, 319 U.S. 103 , 63 S.Ct. 890, in
connection with 316 U.S. 584, 600 , 62 S.Ct. 1231, 1240, 141 A.L.R. 514; Murdock v.
Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870, 891, 146 A.L.R. 81; Martin v. Struthers, 319 U.S.
141 , 63 S.Ct. 862, express the law of the Constitution, I am unable to find legal significance in
the fact that a town in which the Constitutional freedoms of religion and speech are invoked
happens to be company-owned. These decisions accorded the purveyors of ideas, religious or
otherwise, 'a preferred position', Murdock v. Pennsylvania, supra, 319 U.S. at page 115, 63 S.Ct.
at page 876, 146 A.L.R. 81, even to the extent of relieving them from an unhampering and nondiscriminatory duty of bearing their share of the cost of maintaining the peace and the other
amenities of a civilized society. Constitutional privileges having such a reach ought not to
depend upon a State court's notion of the extent of 'dedication' or private property to public
purposes. Local determinations of such technical matters govern controversies affecting
property. But when decisions by State courts involving local matters are so interwoven with the
decision of the question of Constitutional rights that one necessarily involves the other, State
determination of local questions cannot control the Federal Constitutional right.
A company-owned town gives rise to a net-work of property relations. As to these, the judicial
organ of a State has the final say. But a company-owned town is a town. In its community
aspects it does not differ from other towns. These community aspects are decisive in [326 U.S. 501,
511] adjusting the relations now before us, and more particularly in adjudicating the clash of
freedoms which the Bill of Rights was designed to resolve-the freedom of the community to
regulate its life and the freedom of the individual to exercise his religion and to disseminate his
ideas. Title to property as defined by State law controls property relations; it cannot control
issues of civil liberties which arise precisely because a company town is a town as well as a co
geries of property relations. And similarly the technical distinctions on which a finding of
'trespass' so often depends are too tenuous to control decision regarding the scope of the vital
liberties guaranteed by the Constitution.
Accordingly, as I have already indicated, so long as the scope of the guarantees of the due
process clause of the Fourteenth Amendment by absorption of the First remains that which the
Court gave to it in the series of cases in the October Term, 1942, the circumstances of the present
case seem to me clearly to fall within it. And so I agree with the opinion of the Court, except that
portion of it which relies on arguments drawn from the restrictions which the Commerce Clause
imposes on State regulation of commerce. It does not seem to me to further constitutional
analysis to seek help for the solution of the delicate problems arising under the First Amendment
from the very different order of problems which the Commerce Clause presents. The latter
involves an accommodation between National and State powers operating in the same field.
Where the First Amendment applies, it is a denial of all governmental power in our Federal
system.
Mr. Justice REED, dissenting.
Former decisions of this Court have interpreted generously the Constitutional rights of people in
this Land to [326 U.S. 501, 512] exercise freedom of religion, of speech and of the press. 1 It has
never been held and is not now by this opinion of the Court that these rights are absolute and
unlimited either in respect to the manner or the place of their exercise. 2 What the present
decision establishes as a principle is that one may remain on private property against the will of
the owner and contrary to the law of the state so long as the only objection to his presence is that
he is exercising an asserted right to spread there his religious views. See Marrone v. Washington
Jockey Club, 227 U.S. 633 , 33 S. Ct. 401, 43 L.R.A.,N.S., 961. This is the first case to extend by
law the privilege of religious exercises beyond public places or to private places without the
assent of the owner. Compare Martin v. Struthers, 319 U.S. 141 , 63 S.Ct. 862
As the rule now announced permits this intrusion, without possibility of protection of the
property by law, and apparently is equally applicable to the freedom of speech and the press, it
seems appropriate to express a dissent to this, to us, novel Constitutional doctrine. Of course,
such principle may subsequently be restricted by this Court to the precise facts of this case-that is
to private property in a company town where the owner for his own advantage has permitted a
restricted public use by his licensees and invitees. Such distinctions are of degree and require
new arbitrary lines, judicially drawn, instead of those hitherto established by legislation and
precedent. While the power [326 U.S. 501, 513] of this Court, as the interpreter of the Constitution
to determine what use of real property by the owner makes that property subject, at will, to the
reasonable practice of religious exercises by strangers, cannot be doubted, we find nothing in the
principles of the First Amendment, adopted now into the Fourteenth, which justifies their
application to the facts of this case. 3
Both Federal and Alabama law permit, so far as we are aware, company towns. By that we mean
an area occupied by numerous houses, connected by passways, fenced or not, as the owners may
choose. These communities may be essential to furnish proper and convenient living conditions
for employees on isolated operations in lumbering, mining, production of high explosives and
large-scale farming. The restrictions imposed by the owners upon the occupants are sometimes
galling to the employees and may appear unreasonable to outsiders. Unless they fall under the
prohibition of some legal rule, however, they are a matter for adjustment between owner and
licensee, or by appropriate legislation. Compare Western Turf Ass'n v. Greenberg, 204 U.S. 359 ,
27 S.Ct. 384.
Alabama has a statute generally applicable to all privately owned premises. It is Title 14, Section
426, Alabama Code 1940 which so far as pertinent reads as follows:
'Trespass after warning.-Any person who, without legal cause or good excuse, enters into
the dwelling house or on the premises of another, after having been warned, within six
months preceding, not to do so; or any person, who, having entered into the dwelling
house or on the premises of another without having been warned within six months not to
do so, and fails or refuses, without legal [326 U.S. 501, 514] cause or good excuse, to leave
immediately on being ordered or requested to do so by the person in possession, his agent
or representative, shall, on conviction, be fined not more than one hundred dollars, and
may also be imprisoned in the county jail, or sentenced to hard labor for the county, for
not more than three months.'
Appellant was distributing religious pamphlets on a privately owned passway or sidewalk thirty
feet removed from a public highway of the State of Alabama and remained on these private
premises after an authorized order to get off. We do not understand from the record that there
was objection to appellant's use of the nearby public highway and under our decisions she could
rightfully have continued her activities a few feet from the spot she insisted upon using. An
owner of property may very well have been willing for the public to use the private passway for
business purposes and yet have been unwilling to furnish space for street trades or a location for
the practice of religious exhortations by itinerants. The passway here in question was not put to
any different use than other private passways that lead to privately owned areas, amusement
places, resort hotels or other businesses. There had been no dedication of the sidewalk to the
public use, express or implied. Alabama so decided and we understand that this Court accepts
that conclusion. Alabama, also, decided that appellant violated by her activities the above quoted
state statute.
The Court calls attention to the fact that the owners of public utilities, bridges, ferries, turnpikes
and railroads are subject to state regulation of rates and are forbidden to discriminate against
interstate commerce. This is quite true but we doubt if the Court means to imply that the property
of these utilities may be utilized, gainst the companies' wishes for religious exercises of the kind
in question. [326 U.S. 501, 515] A state does have the moral duty of furnishing the opportunity for
information, education and religious enlightenment to its inhabitants, including those who live in
company towns, but it has not heretofore been adjudged that it must commandeer, without
compensation, the private property of other citizens to carry out that obligation. Heretofore this
Court has sustained the right of employees, under an appropriate statute, protecting full freedom
of employee organization, to solicit union membership in nonworking time on the property of an
employer and against his express prohibition. This is because the prohibition is an impediment to
the right of organization which is protected by a statute which governs a relation between
employers and employees if and when the latter are admitted to the employers' premises as
licensees. It was recognized in the opinion that the freedom of solicitation was the result of a
regulatory statute and was not a Constitutional right. Republic Aviation Corp. v. National Labor
Relations Board, 324 U.S. 793 , 65 S.Ct. 982, 988, 157 A.L.R. 1081. In the area which is covered
by the guarantees of the First Amendment, this Court has been careful to point out that the owner
of property may protect himself against the intrusion of strangers. Although in Martin v.
Struthers, 319 U.S. 141 , 63 S.Ct. 862, an ordinance forbidding the summonsing of the occupants
of a dwelling to receive handbills was held invalid because in conflict with the freedom of
speech and press, this Court pointed out at page 147 of 319 U.S., at page 865 of 63 S.Ct., that
after warning the property owner would be protected from annoyance. 4 [326 U.S. 501, 516] The
very Alabama statute which is now held powerless to protect the property of the Gulf
Shipbuilding Corporation, after notice, from this trespass was there cited, note 10, to show that it
would protect the householder, after notice. The right to communicate ideas was expressed by us
in Jamison v. Texas, 318 U.S. 413, 416 , 63 S.Ct. 669, 672, as follows: 'But one who is rightfully
on a street which the state has left open to the public carries with him there as elsewhere the
constitutional right to express his views in an orderly fashion.'
Our Constitution guarantees to every man the right to express his views in an orderly fashion. An
essential element of 'orderly' is that the man shall also have a right to use the place he chooses for
his exposition. The rights of the owner, which the Constitution protects as well as the right of
free speech, are not outweighed by the interests of the trespass r, even though he trespasses in
behalf of religion or free speech. We cannot say that Jehovah's Witnesses can claim the privilege
of a license, which has never been granted, to hold their meetings in other private places, merely
because the owner has admitted the public to them for other limited purposes. Even though we
have reached the point where this Court is required to force private owners to open their property
for the practice there of religious activities or propaganda dis- [326 U.S. 501, 517] tasteful to the
owner, because of the public interest in freedom of speech and religion, there is no need for the
application of such a doctrine here. Appellant, as we have said, was free to engage in such
practices on the public highways, without becoming a trespasser on the company's property.
The CHIEF JUSTICE and Mr. Justice BURTON join in this dissent.
Footnotes
[ Footnote 1 ] Hague v. C.I.O., 307 U.S. 496 , 59 S.Ct. 954; Schneider v. State, 308 U.S. 147 , 60
S.Ct. 146; Thornhill v. Alabama, 310 U.S. 88 , 60 S.Ct. 736; Cantwell v. Connecticut, 310 U.S.
296 , 60 S.Ct. 900, 128 A.L.R. 1352; dissent of Chief Justice Stone in Jones v. Opelika, 316 U.S.
584, 600 , 62 S.Ct. 1231, 1240, 141 A.L.R. 514, adopted as the opinion of the Court, 319 U.S.
103 , 63 S.Ct. 890; Largent v. Texas, 318 U.S. 418 , 63 S.Ct. 667; Murdock v. Pennsylvania, 319
U.S. 105 , 63 S.Ct. 870, 891, 146 A.L.R. 81; Follett v. McCormick, 321 U.S. 573 , 64 S.Ct. 717,
152 A.L.R. 317.
[ Footnote 2 ] We do not question the State court's determination of the issue of 'dedication.' That
determination means that the corporation could if it so desired, entirely close the sidewalk and
the town to the public and is decisive of all questions of state law which depend on the owner's
being estopped to reclaim possession of, and the public's holding the title to, or having received
an irrevocable easement in, the premises. City of Demopolis v. Webb, 87 Ala. 659, 6 So. 408;
Hamilton v. Town of Warrior, 215 Ala. 670, 112 So. 136; Town of Leeds v. Sharp, 218 Ala. 403,
405, 118 So. 572; Forney v. Calhoun County, 84 Ala. 215, 4 So. 153; Cloverdale Homes v.
Cloverdale, 182 Ala. 419, 62 So. 712. The 'dedication' of a road to the public may also be
decisive of whether, under Alabama law, obstructing the road constitutes a crime, Beverly v.
State, 28 Ala.App. 451, 185 So. 768, and whether certain action on or near the road amounts to a
tort. Thrasher v. Burr, 202 Ala. 307, 80 So. 372. But determination of the issue of 'dedication'
does not decide the question under the Federal Constitution here involved.
[ Footnote 3 ] Clark's Ferry Bridge Co. v. Public Service Commission of Pennsylvania, 291 U.S.
227 , 54 S.Ct. 427; American Toll Bridge Co. v. Railroad Commission of California, 307 U.S.
486 , 59 S.Ct. 948; Mills et al. v. St. Clair County et al., 8 How. 569, 581; Port Richmond &
Bergen Point Ferry Co. v. Board of Chosen Freeholders of Hudson County, 824, 825, 826;
Covington & L. Turnpike Road Co. v. Sanford, 164 U.S. 578 , 17 S.Ct. 198; Norfolk & S.
Turnpike Co. v. Virginia, 225 U.S. 264 , 32 S.Ct. 828; Donovan v. Pennsylvania Co., 199 U.S.
279 , 26 S.Ct. 91, and cases cited on pages 293-295 of 199 U.S., on pages 94, 95 of 26 S.Ct.
[ Footnote 4 ] And certainly the corporation can no more deprive people of freedom of press and
religion than it can discriminate against commerce. In his dissenting opinion in Jones v. Opelika,
316 U.S. 584, 600 , 62 S.Ct. 1231, 1240, 141 A.L.R. 514, which later was adopted as the opinion
of the Court, 319 U.S. 103, 104 , 63 S.Ct. 890, Mr. Chief Justice Stone made the following
pertinent statement: 'Freedom of press and religion, explicitly guaranteed by the Constitution,
must at least be entitled to the same freedom from burdensome taxation which it has been
thought that the more general phraseology of the commerce clause has extended to interstate
commerce. Whatever doub may be entertained as to this Court's function to relieve, unaided by
Congressional legislation, from burdensome taxation under the commerce clause, see Gwin,
White & Prince, Inc., v. Henneford, 305 U.S. 434, 441 , 446 S.-455, 59 S.Ct. 325, 328, 331-335;
McCarroll v. Dixie Lines, 309 U.S. 176, 184 , 185 S., 60 S.Ct. 504, 508 (509), it cannot be
thought that that function is wanting under the explicit guaranties of freedom of speech, press
and religion.' 316 U.S. at pages 610, 611, 62 S.Ct. at page 1245, 141 A.L.R. 514.
[ Footnote 5 ] In the bituminous coal industry alone, approximately one-half of the miners in the
United States lived in company-owned houses in the period from 1922-23. The percentage varied
from 9 per cent in Illinois and Indiana and 64 per cent in Kentucky, to almost 80 per cent in West
Virginia. U.S. Coal Commission, Report, 1925, Part III, pp. 1467, 1469 summarized in Morris,
The Plight of the Coal Miner, Philadelphia, 1934, Ch. VI, p. 86. The most recent statistics we
found available are in Magnusson, Housing by Employers in the United States, Bureau of Labor
Statistics Bulletin No. 263 (Misc. Ser.) p. 11. See also United States Department of Labor, Wage
and Hour Division, Data on Pay Roll Deductions, Union Manufacturing Company, Union Point,
Georgia, June 1941; Rhyne, Some Southern Cotton Mill Workers and Their Villages, Chapel
Hill, 1930 (Study completed under the direction of the Institute for Research in Social Science at
the University of North Carolina); Comment, Urban Redevelopment, 54 Yale L.J. 116.
[ Footnote 6 ] As to the suppression of civil liberties in company-towns and the need of those
who live there for Constitutional protection, see the summary of facts aired before the Senate,
Committee on Education and Labor, Violations of Free Speech and Rights of Labor, Hearings
pursuant to S.Rec. 266, summarized in Bowden, Freedom for Wage Earners, Annals of The
American Academy of Political and Social Science, Nov. 1938, p. 185; Z. Chafee, The Inquiring
Mind (New York, 1928), pp. 173-74; Pamphlet published in 1923 by the Bituminous Operators'
Special Commi tee under the title The Company Town; U.S. Coal Commission, Report, supra,
Part III, p. 1331.
[ Footnote 7 ] Jones v. Opelika, supra, 316 U.S. at page 608, 62 S.Ct. at page 1244, 141 A.L.R.
514; Murdock v. Pennsylvania, supra, 319 U. S. at page 115, 63 S.Ct. at page 876, 146 A.L.R.
81; Follett v. McCormick, supra, 321 U.S. at page 577, 64 S.Ct. at page 719, 152 A.L.R. 317.
[ Footnote 1 ] Lovell v. Griffin, 303 U.S. 444 , 58 S.Ct. 666; Hague v. C.I.O., 307 U.S. 496 , 59
S.Ct. 954; Schneider v. State, 308 U.S. 147 , 60 S.Ct. 146; Thornhill v. Alabama, 310 U.S. 88 ,
60 S.Ct. 736; Cantwell v. Connecticut, 310 U.S. 296 , 60 S.Ct. 900, 128 A.L.R. 1352; dissent of
Chief Justice Stone in Jones v. Opelika, 316 U.S. 584, 600 , 62 S.Ct. 1231, 1240, 141 A.L.R.
514, adopted as the opinion of the Court, 319 U.S. 103 , 63 S.Ct. 890; Jamison v. Texas, 318
U.S. 413 , 63 S.Ct. 669; Largent v. Texas, 318 U.S. 418 , 63 S.Ct. 667; Murdock v.
Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870, 891, 146 A.L.R. 81; Martin v. Struthers, 319 U.S.
141 , 63 S.Ct. 862; Follett v. McCormick, 321 U.S. 573 , 64 S.Ct. 717, 152 A.L.R. 317.
[ Footnote 2 ] Schenck v. United States, 249 U.S. 47 , 39 S.Ct. 247; Gitlow v. New York, 268
U.S. 652 , 45 S.Ct. 625; Near v. Minnesota, 283 U.S. 697 , 51 S.Ct. 625; Cantwell v.
Connecticut, 310 U.S. 296 , 60 S.Ct. 900, 128 A.L.R. 1352; Chaplinsky v. New Hampshire, 315
U.S. 568 , 62 S.Ct. 766; Prince v. Massachusetts, 321 U.S. 158 , 64 S.Ct. 438.
[ Footnote 3 ] '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 of the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances.' First
Amendment to the Constitution.
[ Footnote 4 ] 'The dangers of distribution can so easily be controlled by traditional legal
methods, leaving to each householder the full right to decide whether he will receive strangers as
visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution,
the naked restriction of the dissemination of ideas.
'Traditionally and American law punishes persons who enter onto the property of another
after having been warned by the owner to keep off. General trespass after warning
statutes exist in at least twenty states, while similar statutes of narrower scope are on the
books of at least twelve states more. We know of no state which, as does the Struthers
ordinance in effect, makes a person a criminal trespasser if he enters the property of
another for an innocent purpose without an explicit command from the owners to stay
away. The National Institute of Municipal Law Officers has proposed a form of
regulation to its member cities which would make it an offense for any person to ring the
bell of a householder who has appropriately indicated that he is unwilling to be disturbed.
This or any similar regulation leaves the decision as to whether distributors of literature
may lawfully call at a home where it belongs-with the homeowner himself.' Martin v.
Struthers, 319 U.S. 141, 147 , 148 S., 63 S.Ct. 862, 865, 866.
XXXXXXXXX
XXXXXXXXX
U.S. Supreme Court
SCREWS v. U.S., 325 U.S. 91 (1945)
325 U.S. 91
SCREWS et al.
v.
UNITED STATES.
No. 42.
Argued Oct. 20, 1944.
Decided May 7, 1945.
[325 U.S. 91, 92]
Mr. James F. Kemp, of Atlanta, Ga., for petitioners.
Mr. Charles Fahy, Sol. Gen., of Washington, D.C., for respondent.
Mr. Justice DOUGLAS announced the judgment of the Court and delivered the following
opinion, in which the CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice REED, concur.
This case involves a shocking and revolting episode in law enforcement. Petitioner Screws was
sheriff of Baker County, Georgia. He enlisted the assistance of petitioner Jones, a policeman, and
petitioner Kelley, a special deputy, in arresting Robert Hall, a citizen of the United States and of
Georgia. The arrest was made late at night at Hall's home on a warrant charging Hall with theft
of a tire. Hall, a young negro about thirty years of age, was handcuffed and taken by car to the
court house. As Hall alighted from the car at the court house square, the three petitioners began
beating him with their fists and with a solid-bar blackjack about eight inches long and weighing
two pounds. They claimed Hall had reached for a gun and had used insulting language as he
alighted from the [325 U.S. 91, 93] car. But after Hall, still handcuffed, had been knocked to the
ground they continued to beat him from fifteen to thirty minutes until he was unconscious. Hall
was then dragged feet first through the court house yard into the jail and thrown upon the floor
dying. An ambulance was called and Hall was removed to a hospital where he died within the
hour and without regaining consciousness. There was evidence that Screws held a grudge against
Hall and had threatened to 'get' him.
An indictment was returned against petitioners-one count charging a violation of 20 of the
Criminal Code, 18 U.S.C. 52, 18 U.S.C.A. 52, and another charging a conspiracy to violate 20
contrary to 37 of the Criminal Code, 18 U.S.C. 88, 18 U.S.C.A. 88. Sec. 20 provides:
'Whoever, under color of any law, statute, ordinance, regulation, or custom, will-fully
subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to
the deprivation of any rights, privileges, or immunities secured or protected by the
Constitution and laws of the United States, or to different punishments, pains, or
penalties, on account of such inhabitant being an alien, or by reason of his color, or race,
than are prescribed for the punishment of citizens, shall be fined not more than $1,000, or
imprisoned not more than one year, or both.'
The indictment charged that petitioners, acting under color of the laws of Georgia, 'willfully'
caused Hall to be deprived of 'rights, privileges, or immunities secured or protected' to him by
the Fourteenth Amendment-the right not to be deprived of life without due process of law; the
right to be tried, upon the charge on which he was arrested, by due process of law and if found
guilty to be punished in accordance with the laws of Georgia; that is to say that petitioners
'unlawfully and wrong- fully did assault, strike and beat the said Robert Hall about the head with
human fists and a blackjack causing injuries' to Hall 'which were the proximate and immediate
cause [325 U.S. 91, 94] of his death.' A like charge was made in the conspiracy count.
The case was tried to a jury. 1 The court charged the jury that due process of law gave one
charged with a crime the right to be tried by a jury and sentenced by a court. On the question of
intent it charged that ' ... if these defendants, without its being necessary to make the arrest
effectual or necessary to their own personal protection, beat this man, assaulted him or killed him
while he was under arrest, then they would be acting illegally under color of law, as stated by
this statute, and would be depriving the prisoner of certain constitutional rights guaranteed to
him by the Constitution of the United States and consented to by the State of Georgia.'
The jury returned a verdict of guilty and a fine and imprisonment on each count was imposed.
The Circuit Court of Appeals affirmed the judgment of conviction, one judge dissenting. 5 Cir.,
140 F.2d 662. The case is here on a petition for a writ of certiorari which we granted because of
the importance in the administration of th criminal laws of the questions presented. 322 U.S. 718
, 64 S.Ct. 946
I. We are met at the outset with the claim that 20 is unconstitutional, in so far as it makes
criminal acts in violation of the due process clause of the Fourteenth Amendment. The argument
runs as follows: It is true that this Act as construed in United States v. Classic, 313 U.S. 299, 328
, 61 S.Ct. 1031, 1044, was upheld in its application to certain ballot box frauds committed by
state officials. But in that case the constitutional rights protected were the rights to vote [325 U.S.
91, 95] specifically guaranteed by Art. I, 2 and 4 of the Constitution. Here there is no
ascertainable standard of guilt. There have been conflicting views in the Court as to the proper
construction of the due process clause. The majority have quite consistently construed it in broad
general terms. Thus it was stated in Twining v. New Jersey, 211 U.S. 78, 101 , 29 S.Ct. 14, 20,
that due process requires that 'no change in ancient procedure can be made which disregards
those fundamental principles, to be ascertained from time to time by judicial action, which have
relation to process of law, and protect the citizen in his private right, and guard him against the
arbitrary action of government.' In Snyder v. Massachusetts, 291 U.S. 97, 105 , 54 S.Ct. 330,
332, 90 A.L.R. 575, it was said that due process prevents state action which 'offends some
principle of justice so rooted in the traditions and conscience of our people as to be ranked as
fundamental.' The same standard was expressed in Palko v. Connecticut, 302 U.S. 319, 325 , 58
S.Ct. 149, 152, in terms of a 'scheme of ordered liberty.' And the same idea was recently phrased
as follows: 'The phrase formulates a concept less rigid and more fluid than those envisaged in
other specific and particular provisions of the Bill of Rights. Its application is less a matter of
rule. Asserted denial is to be tested by an appraisal of the totality of facts in a given case. That
which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal
sense of justice, may, in other circumstances, and in the light of other considerations, fall short of
such denial.' Betts v. Brady, 316 U.S. 455, 462 , 62 S.Ct. 1252, 1256.
It is said that the Act must be read as if it contained those broad and fluid definitions of due
process and that if it is so read it provides no ascertainable standard of guilt. It is pointed out that
in United States v. L. Cohen Grocery Co., 255 U.S. 81, 89 , 41 S.Ct. 298, 300, 14 A.L.R. 1045,
an Act of Congress was struck down, the enforcement of which would have been 'the exact
equivalent of an effort to carry out a statute [325 U.S. 91, 96] which in terms merely penalized and
punished all acts detrimental to the public interest when unjust and unreasonable in the
estimation of the court and jury.' In that case the act declared criminal was the making of 'any
unjust or unreasonable rate or charge in handling or dealing in or with any necessaries.' 255 U.S.
at page 86, 41 S.Ct. at page 299, 14 A.L.R. 1045. The Act contained no definition of an 'unjust or
unreasonable rate' nor did it refer to any source where the measure of 'unjust or unreasonable'
could be ascertained. In the instant case the decisions of the courts are, to be sure, a source of
reference for ascertaining the specific content of the concept of due process. But even so the Act
would incorporate by reference a large body of changing and uncertain law. That law is not
always reducible to specific rules, is expressible only in general terms, and turns many times on
the facts of a particular case. Accordingly, it is argued that such a body of legal principles lacks
the basic specificity necessary for criminal statutes under our system of government. Congress
did not define what it desired to punish but referred the citizen to a comprehensive law library in
order to ascertain w at acts were prohibited. To enforce such a statute would be like sanctioning
the practice of Caligula who 'published the law, but it was written in a very small hand, and
posted up in a corner, so that no one could make a copy of it.' Suetonius, Lives of the Twelve
Caesars, p. 278.
The serious character of that challenge to the constitutionality of the Act is emphasized if the
customary standard of guilt for statutory crimes is taken. As we shall see specific intent is at
times required. Holmes, The Common Law, p. 66 et seq. But the general rule was stated in Ellis
v. United States, 206 U.S. 246, 257 , 27 S.Ct. 600, 602, 11 Ann.Cas. 589, as follows: 'If a man
intentionally adopts certain conduct in certain circumstances known to him, and that conduct is
forbidden by the law under those circumstances, he intentionally breaks the law in the only sense
in which the law ever considers intent.' And see Horning v. District of [325 U.S. 91, 97] Columbia,
254 U.S. 135, 137 , 41 S.Ct. 53, 54; Nash v. United States, 229 U.S. 373, 377 , 33 S.Ct. 780,
781. Under that test a local law enforcement officer violates 20 and commits a federal offense for
which he can be sent to the penitentiary if he does an act which some court later holds deprives a
person of due process of law. And he is a criminal though his motive was pure and though his
purpose was unrelated to the disregard of any constitutional guarantee. The treacherous ground
on which state officials-police, prosecutors, legislators, and judges-would walk is indicated by
the character and closeness of decisions of this Court interpreting the due process clause of the
Fourteenth Amendment. A confession obtained by too long questioning ( Ashcraft v. Tennessee,
322 U.S. 143 , 64 S.Ct. 921); the enforcement of an ordinance requiring a license for the
distribution of religious literature (Murdock v. Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870, 146
A.L.R. 81); the denial of the assistance of counsel in certain types of cases (Cf. Powell v.
Alabama, 287 U.S. 45 , 53 S.Ct. 55, 84 A.L.R. 527, with Betts v. Brady, supra); the enforcement
of certain types of anti-picketing statutes (Thornhill v. Alabama, 310 U.S. 88 , 60 S.Ct. 736); the
enforcement of state price control laws (Olsen v. Nebraska, 313 U.S. 236 , 61 S.Ct. 862, 133 A.
L.R. 1500); the requirement that public school children salute the flag ( West Virginia State
Board of Education v. Barnette, 319 U.S. 624 , 63 S.Ct. 1178, 147 A.L.R. 674)-these are
illustrative of the kind of state action2 which might or might not be caught in the broad reaches
of 20 dependent on the prevailing view of the Court as constituted when the case arose. Those
who enforced local law today might not know for many months (and meanwhile could not find
out) whether what they did deprived some one of due process of law. The enforcement of a
criminal statute so construed would indeed cast [325 U.S. 91, 98] law enforcement agencies loose
at their own risk on a vast uncharted sea.
If such a construction is not necessary, it should be avoided. This Court has consistently favored
that interpretation of legislation which supports its constitutionality. Ashwander v. Tennessee
Valley Authority, 297 U.S. 288, 348 , 56 S.Ct. 466, 483; National Labor Relations Board v.
Jones & Laughlin Steel Corp., 301 U.S. 1, 30 , 57 S.Ct. 615, 621, 108 A.L.R. 1352; Anniston
Mfg. Co. v. Davis, 301 U.S. 337, 351 , 352 S., 57 S.Ct. 816, 822, 823. That reason is impelling
here so that if at all possible 20 may be allowed to serve its great purpose-the protection of the
individual in his civil liberties.
Sec. 20 was enacted to enfor e the Fourteenth Amendment. 3 It derives4 from 2 of the Civil
Rights Act of April 9, 1866, 14 Stat. 27.5 Senator Trumbull, chairman of the Senate Judiciary
Committee which reported the bill, stated that its purpose was 'to protect all persons in the
United States in their civil rights, and furnish the means of their vindication.' Cong. Globe, 39th
Cong., 1st Sess., p. 211. In origin it was an antidiscrimination measure (as its language
indicated), framed to protect negroes in their newly won rights. See Flack, The Adoption of the
Fourteenth Amendment (1908), p. 21. It was [325 U.S. 91, 99] amended by 17 of the Act of May
31, 1870, 16 Stat. 144, 18 U.S.C.A. 52, 6 and made applicable to 'any inhabitant of any State or
Territory.' 7 The prohibition against the 'deprivation of any rights, privileges, or immunities,
secured or protected by the Constitution and laws of the United States' was introduced by the
revisers in 1874. R.S. 5510, 18 U.S. C.A. 52. Those words were taken over from 1 of the Act of
April 20, 1871, 17 Stat. 13 (the so-called Ku-Klux Act) which provided civil suits for redress of
such wrongs. 8 See Cong. Rec., [325 U.S. 91, 100] 43d Cong., 1st Sess., p. 828. The 1874 revision
was applicable to any person who under color of law, etc., 'subjects, or causes to be subjected'
any inhabitant to the deprivation of any rights, etc. The requirement for a 'willful' violation was
introduced by the draftsmen of the Criminal Code of 1909. Act of March 4, 1909, 35 Stat. 1092.
And we are told 'willfully' was added to 20 in order to make the section 'less severe'. 43 Cong.
Rec ., 60th Cong., 2d Sess., p. 3599.
We hesitate to say that when Congress sought to enforce the Fourteenth Amendment9 in this
fashion it did a vain thing. We hesitate to conclude that for 80 years this effort of Congress,
renewed several times, to protect the important rights of the individual guaranteed by the
Fourteenth Amendment has been an idle gesture. Yet if the Act falls by reason of vagueness so
far as due process of law is concerned, there would seem to be a similar lack of specificity when
the privileges and immunities clause (Madden v. Kentucky, 309 U.S. 83 , 60 S.Ct. 406, 125
A.L.R. 1383) and the equal protection clause (Smith v. Texas, 311 U.S. 128 , 61 S.Ct. 164; Hill
v. Texas, 316 U.S. 400 , 62 S.Ct. 1159) of the Fourteenth Amendment are involved. Only if no
construction can save the Act from this claim of unconstitutionality are we willing to reach that
result. We do not reach it, for we are of the view that if 20 is confined more narrowly than the
lower courts confined it, it can be preserved as one of the sanctions to the great rights which the
Fourteenth Amendment was designed to secure. [325 U.S. 91, 101] II. We recently pointed out that
'willful' is a word 'of many meanings, its construction often being influenced by its context.'
Spies v. United States, 317 U.S. 492, 497 , 63 S.Ct. 364, 367. At times, as the Court held in
United States v. Murdock, 290 U.S. 389, 394 , 54 S.Ct. 223, 225, the word denotes an act which
is intentional rather than accidental. And see United States v. Illinois Cent. R. Co., 303 U.S. 239 ,
58 S.Ct. 533. But 'when used in a criminal statute, it generally means an act done with a bad
purpose.' United States v. Murdock, 290 U.S. at page 394, 54 S.Ct. at page 225. And see Felton
v. United States, 96 U.S. 699 ; Potter v. United States, 155 U.S. 438 , 15 S.Ct. 144; Spurr v.
United States, 174 U.S. 728 , 19 S.Ct. 812; Hargrove v. United States, 5 Cir., 67 F. 820, 90
A.L.R. 1276. In that event something more is required than the doing of the act proscribed by the
statute. Cf. United States v. Balint, 258 U.S. 250 , 42 S.Ct. 301. An evil motive to accomplish
that which the statute condemns becomes a constituent element of the crime. Spurr v. United
States, supra, 174 U.S. at page 734, 19 S.Ct. at page 815; United States v. Murdock, supra, 290
U.S. at page 395, 54 S.Ct. at page 225. And that issue must be submitted to the jury under
appropriate instructions. United States v. Ragen, 314 U.S. 513 524, 62 S.Ct. 374, 379.
An analysis of the cases in which 'willfully' has been held to connote more than an act which is
voluntary or intentional would not prove helpful as each turns on its own peculiar facts. Those
cases, however, make clear that if we construe 'willfully' in 20 as connoting a purpose to deprive
a person of a specific constitutional right, we would introduce no innovation. The Court, indeed,
has recognized that the requirement of a specific intent to do a prohibited act may avoid those
consequences to the accused which may otherwise render a vague or indefinite statute invalid.
The constitutional vice in such a statute is the essential injustice to the accused of placing him on
trial for an offense, the nature of which the statute does not define and hence of which it gives no
warning. [325 U.S. 91, 102] See United States v. L. Cohen Grocery Co., supra. But where the
punishment imposed is only for an act knowingly done with the purpose of doing that which the
statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the
act which he does is a violation of law. The requirement that the act must be willful or
purposeful may not render certain, for all purposes, a statutory definition of the crime which is in
some respects uncertain. But it does relieve the statute of the objection that it punishes without
warning an offense of which the accused was unaware. That was pointed out by Mr. Justice
Brandeis speaking for the Court in Omaechevarria v. Idaho, 246 U.S. 343 , 38 S.Ct. 323. An
Idaho statute made it a misdemeanor to graze sheep 'upon any range usually occupied by any
cattle grower.' Rev. Codes Idaho 6872. The argument was that the statute was void for
indefiniteness because it failed to provide for the ascertainment of boundaries of a 'range' or for
determining what length of time was necessary to make a prior occupation a 'usual' one. The
Court ruled that 'any danger to sheepmen which might otherwise arise from indefiniteness, is
removed by section 6314 of Revised Codes, which provides that: 'In every crime or public
offence there must exist a union, or joint operation, of act and intent, or criminal negligence." Id.,
246 U.S. at page 348, 38 S.Ct. at page 325. A similar ruling was made in Hygrade Provision Co.
v. Sherman, 266 U.S. 497 , 45 S.Ct. 141. The charge was that a criminal statute which regulated
the sale of 'kosher' meat or products 'sanctioned by the orthodox Hebrew religious requirements',
Penal Law N.Y. 435, subd. 4, was unconstitutional for want of any ascertainable standard of
guilt. The Court speaking through Mr. Justice Sutherland stated, '... since the statutes require a
specific intent to defraud in order to encounter their prohibitions, the hazard of prosecution
which appellants fear loses whatever substantial foundation it might have in the absence of such
a requirement.' 266 U.S. at pages 502, 503, 45 S.Ct. at page 143. In United States v. Ragen,
supra, we took [325 U.S. 91, 103] that course in a prosecution for willful evasion of a federal
income tax where it was alleged that the defendant had deducted more than 'reasonable'
allowances for salaries. By construing the statute to require proof of bad faith we avoided the
serious question which the rule of United States v. L. Cohen Grocery Co., supra, might have
presented. We think a like course is appropriate here.
Moreover, the history of 20 affords some support for that narrower construction. As we have
seen, the word 'willfully' was not added to the Act until 1909. Prior to that time it may be that
Congress intended that he who deprived a person of any right protected by the Constitution
should be liable without more. That was the pattern of criminal legislation which has been
sustained without any charge or proof of scienter. Shevlin- Carpenter Co. v. Minnesota, 218 U.S.
57 , 30 S.Ct. 663; United States v. Balint, supra. And the present Act in its original form would
have been susceptible of the same interpretation apart from the equal protection clause of the
Fourteenth Amendment, where 'purposeful discriminatory' action must be shown. Snowden v.
Hughes, 321 U.S. 1, 8 , 9 S., 64 S.Ct. 397, 401, 402. But as we have seen, the word 'willfully'
was added to make the section 'less severe'. We think the inference is permissible that its severity
was to be lessened by making it applicable only where the requisite bad purpose was present,
thus requiring specific intent not only where discrimination is claimed but in other situations as
well. We repeat that the presence of a bad purpose or evil intent alone may not be sufficient. We
do say that a requirement of a specific intent to deprive a person of a federal right made definite
by decision or other rule of law saves the Act from any charge of unconstitutionality on the
grounds of vagueness.
Once the section is given that construction, we think that the claim that the section lacks an
ascertainable standard of guilt must fail. The constitutional requirement that a criminal statute be
definite serves a high func- [325 U.S. 91, 104] tion. It gives a person acting with reference to the
statute fair warning that his conduct is within its prohibition. This requirement is met when a
statute prohibits only 'willful' acts in the sense we have explained. One who does act with such
specific intent is aware that what he does is precisely that which the statute forbids. He is under
no necessity of guessing whether the statute applies to him (see Connally v. General
Construction Co., 269 U.S. 385 , 46 S.Ct. 126) for he either knows or acts in reckless disregard
of its prohibition of the deprivation of a defined constitutional or other federal right. See Gorin v.
United States, 312 U.S. 19, 27 , 28 S., 61 S.Ct. 429, 433, 434. Nor is such an act beyond the
understanding and comprehension of juries summoned to pass on them. The Act would then not
become a trap for law enforcement agencies acting in good faith. 'A mind intent upon willful
evasion is inconsistent with surprised innocence.' United States v. Ragen, supra, 314 U.S. at page
524, 62 S.Ct. at page 379.
It is said, however, that this construction of the Act will not save it from the infirmity of
vagueness since neither a law enforcement official nor a trial judge can know with sufficient
definiteness the range of rights that are constitutional. But that criticism is wide of the mark. For
the specific intent required by the Act is an intent to deprive a person of a right which has been
made specific either by the express terms of the Constitution or laws of the United States or by
decisions interpreting them. Take the case of a local officer who persists in enforcing a type of
ordinance which the Court has held invalid as violative of the guarantees of free speech or
freedom of worship. Or a local official continues to select juries in manner which flies in the
teeth of decisions of the Court. If those acts are done willfully, how can the officer possibly
claim that he had no fair warning that his acts were prohibited by the statute? He violates the
statute not merely because he has a bad purpose but because he acts in defiance of announced
rules of law. He who defies a [325 U.S. 91, 105] decision interpreting the Constitution knows
precisely what he is doing. If sane, he hardly may be heard to say that he knew not what he did.
Of course, willful conduct cannot make definite that which is undefined. But willful violators of
constitutional requirements, which have been defined, certainly are in no position to say that they
had no adequate advance notice that they would be visited with punishment. When they act
willfully in the sense in which we use the word, they act in open defiance or in reckless disregard
of a constitutional requirement which has been made specific and definite. When they are
convicted for so acting, they are not punished for violating an unknowable something.
The Act so construed has narrower range in all its applications than if it were interpreted in the
manner urged by the government. But the only other alternative, if we are to avoid grave
constitutional questions, is to construe it as applicable only to those acts which are clearly
marked by the specific provisions of the Constitution as deprivations of constitutional rights,
privileges, or immunities, and which are knowingly done within the rule of Ellis v. United States,
supra. But as we have said that course would mean that all protection for violations of due
process of law would drop out of the Act. We take the course which makes it possible to
preserve the entire Act and save all parts of it from constitutional challenge. If Congress desires
to give the Act wider scope, it may find ways of doing so. Moreover, here as in Apex Hosiery
Co. v. Leader, 310 U.S. 469 , 60 S.Ct. 982, 128 A.L.R. 1044, we are dealing with a situation
where the interpretation of the Act which we adopt does not preclude any state from punishing
any act made criminal by its own laws. Indeed, the narrow construction which we have adopted
more nearly preserves the traditional balance between the States and the national government in
law enforcement than that which is urged upon us. [325 U.S. 91, 106] United States v. Classic,
supra, met the test we suggest. In that case we were dealing merely with the validity of an
indictment, not with instructions to the jury. The indictment was sufficient since it charged a
willful failure and refusal of the defendant-election officials to count the votes cast, by their
alteration of the ballots and by their false certification of the number of votes cast for the
respective candidates. 313 U.S. at pages 308, 309, 61 S.Ct. at pages 1034, 1035. The right so to
vote is guaranteed by Art. I, 2 and 4 of the Constitution. Such a charge is adequate since he who
alters ballots or without legal justification destroys them would be acting willfully in the sense in
which 20 uses the term. The fact that the defendants may not have been thinking in constitutional
terms is not material where their aim was not to enforce local law but to deprive a citizen of a
right and that right was protected by the Constitution. When they so act they at least act in
reckless disregard of constitutional prohibitions or guarantees. Likewise, it is plain that basic to
the concept of due process of law in a criminal case is a trial-a trial in a court of law, not a 'trial
by ordeal.' Brown v. Mississippi, 297 U.S. 278, 285 , 56 S.Ct. 461, 465. It could hardly be
doubted that they who 'under color of any law, statute, ordinance, regulation, or custom' act with
that evil motive violate 20. Those who decide to take the law into their own hands and act as
prosecutor, jury, judge, and executioner plainly act to deprive a prisoner of the trial which due
process of law guarantees him. And such a purpose need not be expressed; it may at times be
reasonably inferred from all the circumstances attendant on the act. See Tot v. United States, 319
U.S. 463 , 63 S.Ct. 1241.
The difficulty here is that this question of intent was not submitted to the jury with the proper
instructions. The court charged that petitioners acted illegally if they applied more force than was
necessary to make the arrest effectual or to protect themselves from the prisoner's al- [325 U.S. 91,
107] leged assault. But in view of our construction of the word 'willfully' the jury should have
been further instructed that it was not sufficient that petitioners had a generally bad purpose. To
convict it was necessary for them to find that petitioners had the purpose to deprive the prisoner
of a constitutional right, e.g. the right to be tried by a court rather than by ordeal. And in
determining whether that requisite bad purpose was present the jury would be entitled to consider
all the attendant circumstance-the malice of petitioners, the weapons used in the assault, its
character and duration, the provocation if any, and the like.
It is true that no exception was taken to the trial court's charge. Normally we would under those
circumstances not take note of the error. See Johnson v. United States, 318 U.S. 189, 200 , 63
S.Ct. 549, 555. But there are exceptions to that rule. United States v. Atkinson, 297 U.S. 157,
160 , 56 S.Ct. 391, 392; Clyatt v. United States, 197 U.S. 207, 221 , 222 S., 25 S.Ct. 429, 432,
433. And where the error is so fundamental as not to submit to the jury the essential ingredients
of the only offense on which the conviction could rest, we think it is necessary to take note of it
on our own motion. Even those guilty of the most heinous offenses are entitled to a fair trial.
Whatever the degree of guilt, those charged with a federal crime are entitled to be tried by the
standards of guilt which Congress has prescribed.
III. 1t is said, however, that petitioners did not act 'under color of any law' within the meaning of
20 of the Criminal Code. We disagree. We are of the view that petitioners acted under 'color' of
law in making the arrest of Robert Hall and in assaulting him. They were officers of the law who
made the arrest. By their own admissions they assaulted Hall in order to protect themselves and
to keep their prisoner from escaping. It was their duty [325 U.S. 91, 108] under Georgia law to
make the arrest effective. Hence, their conduct comes within the statute.
Some of the arguments which have been advanced in support of the contrary conclusion suggest
that the question under 20 is whether Congress has made it a federal offense for a state officer to
violate the law of his State. But there is no warrant for treating the question in state law terms.
The problem is not whether state law has been violated but whether an inhabitant of a State has
been deprived of a federal right by one who acts under 'color of any law.' He who acts under
'color' of law may be a federal officer or a state officer. He may act under 'color' of federal law or
of state law. The statute does not come into play merely because the federal law or the state law
under which the officer purports to act is violated. It is applicable when and only when some one
is deprived of a federal right by that action. The fact that it is also a violation of state law does
not make it any the less a federal offense punishable as such. Nor does its punishment by federal
authority encroach on state authority or relieve the state from its responsibility for punishing
state offenses. 10
We agree that when this statute is applied to the action of state officials, it should be construed so
as to respect the proper balance between the States and the federal government in law
enforcement. Violation of local law does not necessarily mean that federal rights have been
invaded. The fact that a prisoner is assaulted, injured, or even murdered by state officials does
not necessarily mean that he is deprived of any right protected or secured by the [325 U.S. 91, 109]
Constitution or laws of the United States. Cf. Logan v. United States, 144 U.S. 263 , 12 S.Ct.
617, dealing with assaults by federal officials. The Fourteenth Amendment did not alter the basic
relations between the States and the national government. United States v. Harris, 106 U.S. 629 ,
1 S.Ct. 601; In re Kemmler, 136 U.S. 436, 448 , 10 S.Ct. 930, 934. Our national government is
one of delegated powers alone. Under our federal system the administration of criminal justice
rests with the States except as Congress, acting within the scope of those delegated powers, has
created offenses against the United States. Jerome v. United States, 318 U.S. 101, 105 , 63 S.Ct.
483, 486. As stated in United States v. Cruikshank, 92 U.S. 542, 553 , 554 S., 'It is no more the
duty or within the power of the United States to punish for a conspiracy to falsely imprison or
murder within a State, than it would be to punish for false imprisonment or murder itself.' And
see United States v. Fox, 95 U.S. 670 , 672. It is only state action of a 'particular character' that is
prohibited by the Fourteenth Amendment and against which the Amendment authorizes
Congress to afford relief. Civil Rights Cases, 109 U.S. 3, 11 , 13 S., 3 S.Ct. 18, 21, 23. Thus
Congress in 20 of the Criminal Code did not undertake to make all torts of state officials federal
crimes. It brought within 20 only specified acts done 'under color' of law and then only those acts
which deprived a person of some right secured by the Constitution or laws of the United States.
This section was before us in United States v. Classic, 313 U.S. 299, 326 , 61 S.Ct. 1031, 1043,
where we said: 'Misuse of power, possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law, is action taken 'under color of'
state law.' In that case state election officials were charged with failure to count the votes as cast,
alteration of the ballots, and false certification of the number of votes cast for the respective
candidates. 313 U.S. at pages 308, 309, 61 S.Ct. at pages 1034, 1035. We stated that those acts of
the defendants 'were committed in the course of [325 U.S. 91, 110] their performance of duties
under the Louisiana statute requiring them to count the ballots, to record the result of the count,
and to certify the result of the election.' Id., 313 U.S. at pages 325, 326, 61 S.Ct. at pages 1042,
1043. In the present case, as we have said, the defendants were officers of the law who had made
an arrest and who by their own admissions and to certify the result of the election.' themselves
and to keep the prisoner from escaping, i.e. to make the arrest effective. That was a duty they had
under Georgia law. United States v. Classic is, therefore, indistinguishable from this case so far
as 'under color of' state law is concerned. In each officers of the State were performing official
duties; in each the power which they were authorized to exercise was misused. We cannot draw a
distinction between them unless we are to say that 20 is not applicable to police officers. But the
broad sweep of its language leaves no room for such an exception.
It is said that we should abandon the holding of the Classic case. It is suggested that the present
problem was not clearly in focus in that case and that its holding was ill-advised. A reading of
the opinion makes plain that the question was squarely involved and squarely met. It followed
the rule announced in Ex parte Commonwealth of Virginia, 100 U.S. 339 , 346, that a state judge
who in violation of state law discriminated against negroes in the selection of juries violated the
Act of March 1, 1875, 18 Stat. 336. It is true that that statute did not contain the words under
'color' of law. But the Court in deciding what was state action within the meaning of the
Fourteenth Amendment held that it was immaterial that the state officer exceeded the limits of
his authority. '... as he acts in the name and for the State, and is clothed with the State's power,
his act is that of the State. This must be so, or the constitutional prohibition has no meaning.
Then the State has clothed one of its agents with power to annul or to evade it.' 100 U.S. at page
347. And see Commonwealth of Virginia v. Rives, [325 U.S. 91, 111] 100 U.S. 313 , 321. The
Classic case recognized, without dissent, that the cont ary view would defeat the great purpose
which 20 was designed to serve. Reference is made to statements11 of Senator Trumbull in his
discussion of 2 of the Civil Rights Act of 1866, 14 Stat. 27, and to statements of Senator
Sherman concerning the 1870 Act12 as supporting the conclusion that 'under color of any law'
was designed to include only action taken by officials pursuant to state law. But those statements
in their context are inconclusive on the precise problem involved in the Classic case and in the
present case. We are not dealing here with a case where an officer not authorized to act
nevertheless takes action. Here the state officers were authorized to make an arrest and to take
such steps as were necessary to make the arrest effective. They acted without authority only in
the sense that they used excessive force in making the arrest effective. It is clear that under 'color'
of law means under 'pretense' of law. Thus acts of officers in the ambit of their personal pursuits
are plainly excluded. Acts of officers who undertake to perform their official duties are included
whether they hew to the line of their authority or overstep it. If, as suggested, the statute was
designed to embrace only action which the State in fact authorized, the words 'under color of any
law' were hardly apt words to express the idea.
Nor are the decisions under 33 of the Judicial Code, 28 U.S.C. 76, 28 U.S.C.A. 76, in point. That
section gives the right of removal to a federal court of any criminal prosecution begun in a state
court against a revenue officer of the United States 'on account of any act done under color of his
office or of any such (revenue) law.' The cases under it recognize that it is an 'exceptional'
procedure which wrests from state courts the power to try offenses against [325 U.S. 91, 112] their
own laws. State of Maryland v. Soper (No. 1), 270 U.S. 9, 29 , 35 S., 46 S.Ct. 185, 189, 191;
State of Colorado v. Symes, 286 U.S. 510, 518 , 52 S.Ct. 635, 637. Thus the requirements of the
showing necessary for removal are strict. See State of Maryland v. Soper ( No. 2), 270 U.S. 36,
42 , 46 S.Ct. 192, 193, saying that acts 'necessary to make the enforcement effective' are done
under 'color' of law. Hence those cases do not supply an authoritative guide to the problems
under 20 which seeks to afford protection against officers who possess authority to act and who
exercise their powers in such a way as to deprive a person of rights secured to him by the
Constitution or laws of the United States. It is one thing to deprive state courts of their authority
to enforce their own laws. It is quite another to emasculate an Act of Congress designed to secure
individuals their constitutional rights by finely spun distinctions concerning the precise scope of
the authority of officers of the law. Cf. Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064.
But beyond that is the problem of stare decisis. The construction given 20 in the Classic case
formulated a rule of law which has become the basis of federal enforcement in this important
field. The rule adopted in that case was formulated after mature consideration. It should be good
for more than one day only. We do not have here a situation comparable to Mahnich v. Southern
S.S. Co., 321 U.S. 96 , 64 S.Ct. 455, where we overruled a decision demonstrated to be a sport in
the law and inconsistent with what preceded and what followed. The Classic case was not the
product of hasty action or inadvertence. It was not out of line with the cases which preceded. It
was designed to fashion the governing rule of law in this important field. We are not dealing with
constitutional interpretations which throughout the history of the Court have wisely remained
flexible and subject to frequent re-examination. The meaning which the Classic case gave to the
phrase 'under color of any law involved only a construction of the statute. hence if it states a rule
un- [325 U.S. 91, 113] desirable in its consequences, Congress can change it. We add only to the
instability and uncertainty of the law if we revise the meaning of 20 to meet the exigencies of
each case coming before us.
Since there must be a new trial, the judgment below is reversed.
REVERSED.
Mr. Justice RUTLEDGE, concurring in the result.
For the compelling reason stated at the end of this opinion I concur in reversing the judgment
and remanding the cause for further proceedings. But for that reason, my views would require
that my vote be cast to affirm the judgment, for the reasons stated by Mr. Justice MURPHY and
others I feel forced, in the peculiar situation, to state.
The case comes here established in fact as a gross abuse of authority by state officers. Entrusted
with the state's power and using it, without a warrant or with one of only doubtful legality1 they
invaded a citizen's home, arrested him for alleged theft of a tire, forcibly took him in handcuffs
to the courthouse yard, and there beat him to death. Previously they had threatened to kill him,
fortified themselves at a near-by bar, and resisted the bartender's importunities not to carry out
the arrest. Upon this and other evidence which overwhelmingly supports (140 F.2d at page 665)
the verdict, together with instructions adequately [325 U.S. 91, 114] covering an officer's right to
use force, the jury found the petitioners guilty.
I. The verdict has shaped their position here. Their contention hardly disputes the facts on which
it rests. 2 They do not come therefore as faithful state officers, innocent of crime. Justification
has been foreclosed. Accordingly, their argument now admits the offense, but insists it was
against the state alone, not the nation. So they have made their case in this Court. 3
In effect, the position urges it is murder they have done,4 not deprivation of constitutional right.
Strange as the argument is the reason. It comes to this, that abuse of state power creates
immunity to federal power. Because what they did violated the state's laws, the nation cannot
reach their conduct. 5 It may deprive the citizen of his liberty and his life. But whatever state
officers may do in abuse of their official capacity can give this Government and its courts no
concern. This, though the prime object of the Fourteenth Amendment and Section 20 was to
secure these fundamental rights against wrongful denial by exercise of the power of the states.
The defense is not pretty. Nor is it valid. By a long course of decision from Ex parte
Commonwealth of Virginia, 100 U.S. 339 , to United States v. Classic, 313 U.S. 299 , 61 S.Ct.
1031 it has been re- [325 U.S. 91, 115] jected. 6 The ground should not need ploughing again. It
was cleared long ago and thoroughly. It has been kept clear, until the ancient doubt, laid in the
beginning, was resurrected in the last stage of this case. The evidence has nullified any pretense
that petitioners acted as individuals, about their personal though nefarious business. They used
the power of official place in all that was done. The verdict has foreclosed semblance of any
claim that only private matters, not touching official functions, were involved. Yet neither was
the state's power, they say.
There is no third category. The Amendment and the legislation were not aimed at rightful state
action. Abuse of state power was the target. Limits were put to state authority, and states were
forbidden to pass them, by whatever agency. 7 It is too late now, if there were better reason than
exists for doing so, to question that in these matters abuse binds the state and is its act, when
done by [325 U.S. 91, 116] one to whom it has given power to make the abuse effective to achieve
the forbidden ends. Vague ideas of dual federalism,8 of ultra vires doctrine imported from
private agency,9 and of want of finality in official action, 10 do not nullify what four years of
civil strife secured and eighty years have verified. For it was abuse of basic civil and political
rights, by states and their officials, that the Amendment and the enforcing legislation were
adopted to uproot.
The danger was not merely legislative or judicial. Nor was it threatened only from the state's
highest officials. It was abuse by whatever agency the state might invest with its power capable
of inflicting the deprivation. In all its flux, time makes some things axiomatic. One has been that
state officials who violate their oaths of office and flout [325 U.S. 91, 117] the fundamental law are
answerable to it when their misconduct brings upon them the penalty it authorizes and Congress
has provided.
There could be no clearer violation of the Amendment or the statute. No act could be more final
or complete, to denude the victim of rights secured by the Amendment's very terms. Those rights
so destroyed cannot be restored. Nor could the part played by the state's power in causing their
destruction be lessened, though other organs were now to repudiate what was done. The state's
law might thus be vindicated. If so, the vindication could only sustain, it could not detract from
the federal power. Nor could it restore what the federal power shielded. Neither acquittal nor
conviction, though affirmed by the state's highest court, could resurrect what the wrongful use of
state power has annihilated. There was in this case abuse of state power, which for the
Amendment's great purposes was state action, final in the last degree, depriving the victim of his
liberty and his life without due process of law.
If the issues made by the parties themselves were allowed to govern, there would be no need to
say more. At various stages petitioners have sought to show that they used no more force than
was necessary, that there was no state action, and that the evidence was not sufficient to sustain
the verdict and the judgment. These issues, in various formulations,11 have comprehended their
case. All have been resolved against them without error. This should end the matter. [325 U.S. 91,
118] II. But other and most important issues have been injected and made decisive to reverse the
judgment. Petitioners have not denied that they acted 'willfully' within the mean ng of Section 20
or that they intended to do the acts which took their victim's liberty and life. In the trial court
they claimed justification. But they were unable to prove it. The verdict, on overwhelming
evidence, has concluded against them their denial of bad purpose and reckless disregard of
rights. This is necessarily implied in the finding that excessive force was used. No complaint was
made of the charge in any of these respects and no request for additional charges concerning
them was offered. Nor, in the application for certiorari or the briefs, have they raised questions of
the requisite criminal intent or of unconstitutional vagueness in the statute's definition of the
crime. However, these issues have been bought forward, so far as the record discloses, first by
the dissenting opinion in the Court of Appeals, then by inquiry at the argument and in the
disposition here.
The story would be too long, to trace in more than outline the history of Section 20 and
companion provisions, in particular Section 19, 12 with which it must be considered on any
suggestion of fatal ambiguity. But this history cannot be ignored, unless we would risk throwing
overboard what the nation's greatest internal conflict created and eight [325 U.S. 91, 119] decades
have confirmed, in protection of individual rights against impairment by the states.
Sections 19 and 20 are twin sections in all respects that concern any question of vagueness in
defining the crimes. There are important differences. Section 19 strikes at conspiracies, Section
20 at substantive offenses. The former protects 'citizens,' that latter 'inhabitants.' There are,
however, no differences in the basic rights guarded. Each protects in a different way the rights
and privileges secured to individuals by the Constitution. If one falls for vagueness in pointing to
these, the other also must fall for the same reason. If one stands, so must both. It is not one
statute therefore which we sustain or nullify. It is two.
The sections have stood for nearly eighty years. Nor has this been without attack for ambiguity.
Together the two sections have repelled it. In 1915, one of this Court's greatest judges, speaking
for it, summarily disposed of the suggestion that Section 19 is invalid: 'It is not open to question
that this statute is constitutional. ... (It) dealt with Federal rights, and with all Federal rights, and
protected them in the lump ....' United States v. Mosley, 238 U.S. 383, 386 , 387 S., 35 S.Ct. 904,
905. And in United States v. Classic, 313 U.S. 299 , 61 S.Ct. 1031, the Court with equal vigor
reaffirmed the validity of both sections, against dissenting assault for fatal [325 U.S. 91, 120]
ambiguity in relation to the constitutional rights then in question. . these more recent
pronouncements but reaffirmed earlier and repeated ones. The history should not require
retelling. But old and established freedoms vanish when history is forgotten.
Section 20 originated in the Civil Rights Act of 1866, 14 Stat. 27, Section 19 in the Enforcement
Act of 1870, 16 Stat. 141, 6. Their great original purpose was to strike at discrimination,
particularly against Negroes, the one securing civil, the other political rights. But they were not
drawn so narrowly. From the beginning Section 19 protected all 'citizens,' Section 20
'inhabitants.'
At first Section 20 secured only rights enumerated in the Civil Rights Act. The first ten years
brought it, through broadening changes, to substantially its present form. Only the word
'willfully' has been added since then, a change of no materiality, for the statute implied it
beforehand. 13 35 Stat. 1092. The most important change of the first decade replaced the specific
enumeration of the Civil Rights Act with the present broad language covering 'the deprivation of
any rights, privileges, or immunities secured or protected by the Constitution and laws of the
United States.' R.S. 5510, 18 U.S.C.A. 52. This inclusive designation brought Section 20 into
conformity with Section 19's original coverage of 'any right or privilege secured to him by the
Constitution or laws of the United States.' Since then, under these generic designations, the two
have been literally identical in the scope of the rights they secure. The slight difference in
wording cannot be one of substance. 14 [325 U.S. 91, 121] Throughout a long and varied course of
application the sections have remained unimpaired on the score of vagueness in the crimes they
denounce. From 1874 to today they have repelled all attacks purposed to invalidate them. None
has succeeded. If time and uniform decision can give stability to statutes, these have acquired it.
Section 20 has not been much used, in direct application, until recently. There were however a
number of early decisions. 15 Of late the section has been applied more frequently, in
considerable variety of situation, against varied and vigorous attack. 16 In United States v.
Classic, 313 U.S. at page 321, 61 S.Ct. at page 1040, as has been stated, this Court gave it
clearcut sanction. The opinion expressly repudiated any idea that the section, or Section 19, is
vitiated by ambiguity. Moreover, this was done in terms which leave no room to say that the
decision was not focused upon that question. 17 True, application to Fourteenth Amendment [325
U.S. 91, 122] rights was reserved because the question was raised for the first time in the
Government's brief filed here. 313 U.S. at page 329, 61 S.Ct. at page 1044. But the statute was
sustained in application to a vast range of rights secured by the Constitution, apart from the
reserved segment, as the opinion's language and the single reservation itself attest. The ruling,
thus broad, cannot have been inadvertent. For it was repeated concerning both sections, broadly,
forcefully, and upon citation of long-established authority. And this was done in response to a
vigorous dissent which made the most of the point of vagueness. 18 The point was flatly, and
deliberately, rejected. The Court cannot have been blinded by other issues to the import of this
one.
The Classic decision thus cannot be put aside in this case. Nor can it be demonstrated that the
rights secured by the Fourteenth Amendment are more numerous or more dubious than the
aggregate encompassed by other [325 U.S. 91, 123] constitutional provisions. Certainly 'the equal
protection of the laws,' guaranteed by the Amendment, is not more vague and indefinite than
many rights protected by other commands. 19 The same thing is true of 'the privileges or
immunities of citizens of the United States.' The Fifth Amendment contains a due process clause
as broad in its terms restricting national power as the Fourteenth is of state power. 20 If Section
20 (with Section 19) is valid in general coverage of other constitutional rights, it cannot be void
in the less sweeping application to Fourteenth Amendment rights. If it is valid to assure the rights
'plainly and directly' secured by other provisions, it is equal y valid to protect those 'plainly and
directly' secured by the Fourteenth Amendment, including the expressly guaranteed rights not to
be deprived of life, liberty or property without due process of law. If in fact there could be any
difference among the various rights protected, in view of the history it would be that the section
applies more clearly to Fourteenth Amendment rights than to others. Its phrases 'are all phrases
of large generalities. But they are not generalities of unillumined vagueness; they are generalities
circumscribed by history and appropriate to the largeness of the problems of government with
which they were concerned.' Malinski v. People of State of New York, 324 U.S. 401 , 65 S.Ct.
781, 787, concurring opinion.
Historically, the section's function and purpose have been to secure rights given by the
Amendment. From the Amendment's adoption until 1874, it was Fourteenth Amendment
legislation. Surely when in that year the section was expanded to include other rights these were
[325 U.S. 91, 124] not dropped out. By giving the citizen additional security in the exercise of his
voting and other political rights, which was the section's effect, unless the Classic case falls,
Congress did not take from him the protection it previously afforded (wholly apart from the
prohibition of different penalties)21 against deprivation of such rights on account of race, color
or previous condition of servitude, or repeal the prior safeguard of civil rights.
To strike from the statute the rights secured by the Fourteenth Amendment, but at the same time
to leave within its coverage the vast area bounded by other constitutional provisions, would
contradict both reason and history. No logic but one which nullifies the historic foundations of
the Amendment and the section could support such an emasculation. There should be no judicial
hack work cutting out some of the great rights the Amendment secures but leaving in others.
There can be none excising all protected by the Amendment, but leaving [325 U.S. 91, 125] every
other given by the Constitution intact under the statute's aegis.
All that has been said of Section 20 applies with equal force to Section 19. It had an earlier more
litigious history, firmly establishing its validity. 22 It also has received recent ap- [325 U.S. 91, 126]
plication,23 without question for ambiguity except in the Classic case, which nevertheless gave
it equal sanction with its substantive counterpart.
Separately, and often together in application, Sections 19 and 20 have been woven into our
fundamental and statutory law. They have place among our more permanent legal achievements.
They have safeguarded many rights and privileges apart from political ones. Among those
buttressed, either by direct application or through the general conspiracy statute, Section 37, 18
U.S.C. 88, 18 U.S.C.A. 88,24 are the rights to a fair trial, including freedom from sham trials; to
be free from arrest and detention by methods constitutionally forbidden and from extortion of
property by such methods; rom extortion of confessions; from mob action incited or shared by
state officers; from failure to furnish police protection on proper occasion and demand; from
interference with the free exercise of religion, freedom of the press, freedom of speech and
assembly; 25 and [325 U.S. 91, 127] the necessary import of the decisions is that the right to be
free from deprivation of life itself, without due process of law, that is, through abuse of state
power by state officials, is as fully protected as other rights so secured.
So much experience cannot be swept aside, or its teaching annulled, without overthrowing a
great, and a firmly established, constitutional tradition. Nor has the feared welter of uncertainty
arisen. Defendants have attacked the sections, or their application, often and strenuously. Seldom
has complaint been made that they are too vague and uncertain. Objections have centered
principally about 'state action,' including 'color of law' and failure by inaction to discharge
official duty, cf. Catlette v. United States, 4 Cir., 132 F.2d 902, and about the strength of federal
power to reach particular abuses. 26 More rarely they have touched other matters, such as the
limiting effect of official privilege27 and, in occasional instances, mens rea. 28 [325 U.S. 91, 128]
In all this wealth of attack accused officials have little used the shield of ambiguity. The
omission, like the Court's rejection in the Classic case, cannot have been inadvertent. There are
valid reasons for it, apart from the old teaching that the matter has been foreclosed.
Moreover, statutory specificity has two purposes, to give due notice that an act has been made
criminal before it is done and to inform one accused of the nature of the offense charged, so that
he may adequately prepare and make his defense. More than this certainly the Constitution does
not require. Cf. Amend. VI. All difficulty on the latter score vanishes, under Section 20, with the
indictment's particularization of the rights infringed and the acts infringing them. If it is not
sufficient in either respect, in these as in other cases the motion to quash or one for a bill of
particulars is at the defendant's disposal. The decided cases demonstrate that accused persons
have had little or no difficulty to ascertain the rights they have been charged with transgressing
or the acts of transgression. 29 So it was with the defendants in this case. They were not puzzled
to know for what they were indicted, as their proof and their defense upon the law conclusively
show. They simply misconceived that the victim had no federal rights and that what they had
done was not a crime within the federal power to penalize. 30 That kind of error relieves no one
from penalty. [325 U.S. 91, 129] In the other aspect of specificity, two answers, apart from
experience, suffice. One is that Section 20, and Section 19, are no more general and vague,
Fourteenth Amendment rights included, than other criminal statutes commonly enforced against
this objection. The Sherman Act is the most obvious illustration. 31
Furthermore, the argument of vagueness, to warn men of their conduct, ignores the nature of the
criminal act itself and the notice necessarily given from this. Section 20 strikes only at abuse of
official functions by state officers. It does not reach out for crimes done by men in general. Not
murder per se, but murder by state officers in the course of official conduct and done with the aid
of state power, is outlawed. These facts, inherent in the crime, give all the warning
constitutionally required. For one, so situated, who goes so far in misconduct can have no excuse
of innocence or ignorance.
Generally state officials know something of the individual's basic legal rights. If they do not,
they should, for they assume that duty when they assume their office. Ignorance of the law is no
excuse for men in general. It is less an excuse for men whose special duty is to apply it, and
therefore to know and observe it. If their knowledge is not comprehensive, state officials know
or should know when they pass the limits of their authority, so far at any rate that their action
exceeds honest error of judgment and amounts to abuse of their office and its function. When
they enter such a domain in dealing with the citi en's rights, they should do so at their peril,
whether that [325 U.S. 91, 130] be created by state or federal law. For their sworn oath and their
first duty are to uphold the Constitution, then only the law of the state which too is bound by the
charter. Since the statute, as I think, condemns only something more than error of judgment,
made in honest effort at once to apply and to follow the law, cf. United States v. Murdock, 290
U.S. 389 , 54 S.Ct. 223, officials who violate it must act in intentional or reckless disregard of
individual rights and cannot be ignorant that they do great wrong. 32 This being true, they must
be taken to act at peril of incurring the penalty placed upon such conduct by the federal law, as
they do of that the state imposes.
What has been said supplies all the case requires to be decided on the question of criminal intent.
If the criminal act is limited, as I think it must be and the statute intends, to infraction of
constitutional rights, including rights secured by the Fourteenth Amendment, by conduct which
amounts to abuse of one's official place or reckless disregard of duty, no undue hazard or burden
can be placed on state officials honestly seeking to perform the rightful functions of their office.
Others are not entitled to greater protection.
But, it is said, a penumbra of rights may be involved, which none can know until decision has
been made and infraction may occur before it is had. It seems doubtful this could be true in any
case involving the abuse of official function which the statute requires and, if it could, that one
guilty of such an abuse should have immunity for that reason. Furthermore, the doubtful
character of the [325 U.S. 91, 131] right infringed could give reason at the most to invalidate the
particular charge, not for outlawing the statute or narrowly restricting its application in advance
of compelling occasion.
For there is a body of well-established, clear-cut fundamental rights, including many secured by
the Fourteenth Amendment, to all of which the sections may and do apply, without specific
enumeration and without creating hazards of uncertainty for conduct or defense. Others will
enter that category. So far, at the least when they have done so, the sections should stand without
question of their validity. Beyond this, the character of the act proscribed and the intent it
necessarily implies would seem to afford would-be violators all of notice the law requires, that
they act at peril of the penalty it places on their misconduct.
We have in this case no instance of mere error in judgment, made in good faith. It would be time
enough to reverse and remand a conviction, obtained without instructions along these lines, if
such a case should arise. Actually the substance of such instruction was given in the wholly
adequate charge concerning the officer's right to use force, though not to excess. When, as here, a
state official abuses his place consciously or grossly in abnegation of its rightful obligation, and
thereby tramples underfoot the established constitutional rights of men or citizens, his conviction
should stand when he has had the fair trial and full defense the petitioners have been given in this
case.
III. Two implicit but highly important considerations must be noticed more definitely. One is the
fear grounded in concern for possible maladjustment of federal-state relations if this and like
convictions are sustained. Enough has been said to show that the f ar is not well grounded. The
same fear was expressed, by some in exaggerated and [325 U.S. 91, 132] highly emotional terms,
when Section 2 of the Civil Rights Act, the antecedent of Section 20, was under debate in
Congress. 33 The history of the legislation's enforcement gives it no support. The fear was not
realized in later experience. Eighty years should be enough to remove any remaining vestige.
The volume of prosecutions and convictions has been small, in view of the importance of the
subject matter and the length of time the statutes have been in force. There are reasons for this,
apart from self-restraint of federal prosecuting officials.
One lies in the character of the criminal act and the intent which must be proved. A strong case
must be made to show abuse of official function, and therefore to secure indictment or
conviction. Trial must be 'by an impartial jury of the State and district wherein the crime shall
have been committed.' Const., Amend. VI; cf. Art. III, 2. For all practical purposes this means
within the state of which the accused is an officer. Citizens of the state have not been, and will
not be, ready to indict or convict their local officers on groundless charges or in doubtful cases.
The sections can be applied effectively only when twelve of them concur in a verdict which
accords with the prosecuting official's belief that the accused has violated another's fundamental
rights. A federal official therefore faces both a delicate and a difficult task when he undertakes to
charge and try a state officer under the terms of Sections 19 and 20. The restraint which has been
shown is as much enforced by these limitations as it has been voluntary. [325 U.S. 91, 133] These
are the reasons why prosecution has not been frequent, has been brought only in cases of gross
abuse, and therefore has produced no grave or substantial problem of interference by federal
authority in state affairs. But if the problem in this phase of the case were more serious than it
has been or is likely to be, the result legally could not be to give state officials immunity from the
obligations and liabilities the Amendment and its supporting legislation have imposed. For the
verdict of the struggle which brought about adoption of the Amendment was to the contrary.
Lying beneath all the surface arguments is a deeper implication, which comprehends them. It
goes to federal power. It is that Congress could not in so many words denounce as a federal
crime the intentional and wrongful taking of an individual's life or liberty by a state official
acting in abuse of his official function and applying to the deed all the power of his office. This
is the ultimate purport of the notions that state action is not involved and that the crime is against
the state alone, not the nation. It is reflected also in the idea that the statute can protect the victim
in his many procedural rights encompassed in the right to a fair trial before condemnation, but
cannot protect him in the right which comprehends all others, the right to life itself.
Suffice it to say that if these ideas did not pass from the American scene once and for all, as I
think they did, upon adoption of the Amendment without more, they have long since done so.
Violation of state law there may be. But from this no immunity to federal authority can arise
where any part of the Constitution has made it supreme. To the Constitution state officials and
the states themselves owe first obligation. The federal power lacks no strength to reach their
malfeasance in office when it infringes constituti nal rights. If that is a great power, it is one
generated by the Constitution and the Amend- [325 U.S. 91, 134] ments, to which the states have
assented and their officials owe prime allegiance. 34
The right not to be deprived of life or liberty by a state officer who takes it by abuse of his office
and its power is such a right. To secure these rights is not beyond federal power. This Sections
19 and 20 have done, in a manner history long since has validated.
Accordingly, I would affirm the judgment.
My convictions are as I have stated them. Were it possible for me to adhere to them in my vote,
and for the Court at the same time to dispose of the cause, I would act accordingly. The Court,
however, is divided in opinion. If each member accords his vote to his belief, the case cannot
have disposition. Stalemate should not prevail for any reason, however compelling, in a criminal
cause or, if avoidable, in any other. My views concerning appropriate disposition are more nearly
in accord with those stated by Mr. Justice DOUGLAS, in which three other members of the
Court concur, than they are with the views of my dissenting brethren who favor outright reversal.
Accordingly, in order that disposition may be made of this case, my vote has been cast to reverse
the decision of the Court of Appeals and remand the cause to the District Court for further
proceedings in accordance with the disposition required by the opinion of Mr. Justice
DOUGLAS.
Mr. Justice MURPHY, dissenting.
I dissent. Robert Hall, a Negro citizen, has been deprived not only of the right to be tried by a
court rather than by ordeal. He has been deprived of the right of life itself. That right belonged to
him not because he was a Negro or a member of any particular race or creed. That right was his
because he was an American citizen, because [325 U.S. 91, 135] he was a human being. As such,
he was entitled to all the respect and fair treatment that befits the dignity of man, a dignity that is
recognized and guaranteed by the Constitution. Yet not even the semblance of due process has
been accorded him. He has been cruelly and unjustifiably beaten to death by local police officers
acting under color of authority derived from the state. It is difficult to believe that such an
obvious and necessary right is indefinitely guaranteed by the Constitution or is foreign to the
knowledge of local police officers so as to cast any reasonable doubt on the conviction under
Section 20 of the Criminal Code of the perpetrators of this 'shocking and revolting episode in law
enforcement.'
The Constitution and Section 20 must be read together inasmuch as Section 20 refers in part to
certain provisions of the Constitution. Section 20 punishes any one, acting under color of any
law, who willfully deprives any person of any right, privilege or immunity secured or protected
by the Constitution or laws of the United States. The pertinent part of the Constitution in this
instance is Section 1 of the Fourteenth Amendment, which firmly and unmistakably provides that
no state shall deprive any person of life without due process of law. Translated in light of this
specific provision of the Fourteenth Amendment, Section 20 thus punishes any one, acting under
color of state law, who willfully deprives any person of life without due process of law. Such is
the clear statutory provision upon which this conviction must stand or fall.
A grave constitutional issue, however, is said to lurk in the alleged indefiniteness of the crime
outlawed by Section 20. The rights, privileges and immunities secured or protected by the
Constitution or laws of the United States are claimed to be so uncertain and flexible, dependent
upon changeable legal concepts, as to leave a state official confused and ignorant as to what
actions of his might run afoul of the law. The statute, it is concluded, must be set aside for
vagueness. [325 U.S. 91, 136] It is axiomatic, of course, that a criminal statute must give a clear
and unmistakable war ing as to the acts which will subject one to criminal punishment. And
courts are without power to supply that which Congress has left vague. But this salutary principle
does not mean that if a statute is vague as to certain criminal acts but definite as to others the
entire statute must fall. Nor does it mean that in the first case involving the statute to come
before us we must delineate all the prohibited acts that are obscure and all those that are explicit.
Thus it is idle to speculate on other situations that might involve Section 20 which are not now
before us. We are unconcerned here with state officials who have coerced a confession from a
prisoner, denied counsel to a defendant or made a faulty tax assessment. Whatever doubt may
exist in those or in other situations as to whether the state officials could reasonably anticipate
and recognize the relevant constitutional rights is immaterial in this case. Our attention here is
directed solely to three state officials who, in the course of their official duties, have unjustifiably
beaten and crushed the body of a human being, thereby depriving him of trial by jury and of life
itself. The only pertinent inquiry is whether Section 20, by its reference to the Fourteenth
Amendment guarantee that no state shall deprive any person of life without due process of law,
gives fair warning of state officials that they are criminally liable for violating this right to life.
Common sense gives an affirmative answer to that problem. The reference in Section 20 to rights
protected by the Constitution is manifest and simple. At the same time, the right not to be
deprived of life without due process of law is distinctly and lucidly protected by the Fourteenth
Amendment. There is nothing vague or indefinite in these references to this most basic of all
human rights. Knowledge of a comprehensive law library is unnecessary for officers of the law
to know that the right to murder [325 U.S. 91, 137] individuals in the course of their duties is
unrecognized in this nation. No appreciable amount of intelligence or conjecture on the part of
the lowliest state official is needed for him to realize that fact; nor should it surprise him to find
out that the Constitution protects persons from his reckless disregard of human life and that
statutes punish him therefor. To subject a state official to punishment under Section 20 for such
acts is not to penalize him without fair and definite warning. Rather it is to uphold elementary
standards of decency and to make American principles of law and our constitutional guarantees
mean something more than pious rhetoric.
Under these circumstances it is unnecessary to send this case back for a further trial on the
assumption that the jury was not charged on the matter of the willfulness of the state officials, an
issue that was not raised below or before us. The evidence is more than convincing that the
officials willfully, or at least with wanton disregard of the consequences, deprived Robert Hall of
his life without due process of law. A new trial could hardly make that fact more evident; the
failure to charge the jury on willfulness was at most an inconsequential error. Moreover, the
presence or absence of willfulness fails to decide the constitutional issue raised before us.
Section 20 is very definite and certain in its reference to the right to life as spelled out in the
Fourteenth Amendment quite apart from the state of mind of the state officials. A finding of
willfulness can add nothing to the clarity of that reference.
It is an illusion to say that the real issue in this case is the alleged failure of Section 20 fully to
warn the state officials that their actions were illegal. The Constitution, Section 20 and their own
consciences told them that. They knew that they lacked any mandate or authority to take human
life unnecessarily or without due process of law in the course of their duties. They knew that
their excessive and abusive [325 U.S. 91, 138] use of authority would only subvert the ends of j
stice. The significant question, rather, is whether law enforcement officers and those entrusted
with authority shall be allowed to violate with impunity the clear constitutional rights of the
inarticulate and the friendless. Too often unpopular minorities, such as Negroes, are unable to
find effective refuge from the cruelties of bigoted and ruthless authority. States are undoubtedly
capable of punishing their officers who commit such outrages. But where, as here, the states are
unwilling for some reason to prosecute such crimes the federal government must step in unless
constitutional guarantees are to become atrophied.
This necessary intervention, however, will be futile if courts disregard reality and misuse the
principle that criminal statutes must be clear and definite. Here state officers have violated with
reckless abandon a plain constitutional right of an American citizen. The two courts below have
found and the record demonstrates that the trial was fair and the evidence of guilt clear. And
Section 20 unmistakably outlaws such actions by state officers. We should therefore affirm the
judgment.
Mr. Justice ROBERTS, Mr. Justice FRANKFURTER and Mr. Justice JACKSON, dissenting.
Three law enforcement officers of Georgia, a county sheriff, a special deputy and a city
policeman, arrested a young Negro charged with a local crime, that of stealing a tire. While he
was in their custody and handcuffed, they so severely beat the lad that he died. This brutal
misconduct rendered these lawless law officers guilty of manslaughter, if not of murder, under
Georgia law. Instead of leaving this misdeed to vindication by Georgia law, the United States
deflected Georgia's responsibility by instituting a federal prosecution. But this was a criminal
homicide only under Georgia law. The United States could not prosecute the petitioners for
taking life. In- [325 U.S. 91, 139] stead, a prosecution was brought, and the conviction now under
review was obtained, under 20 of the Criminal Code, 18 U.S.C. 52, 18 U.S.C.A. 52. Section 20,
originating in 2 of the Civil Rights Act of April 9, 1866, 14 Stat. 27, was put on the statute books
on May 31, 1870, but for all practical purposes it has remained a dead letter all these years. This
section provides that 'Whoever, under color of any law, statute, ordinance, regulation, or custom,
willfully subjects ... any inhabitant of any State ... to the deprivation of any rights, privileges, or
immunities secured or protected by the Constitution and laws of the United States ... shall be
fined not more than one thousand dollars, or imprisoned not more than one year, or both.' Under
37 of the Criminal Code, 18 U.S. C. 88, 18 U.S.C.A. 88, a conspiracy to commit any federal
offense is punishable by imprisonment for two years. The theory of this prosecution is that one
charged with crime is entitled to due process of law and that that includes the right to an orderly
trial of which the petitioners deprived the Negro.
Of course the petitioners are punishable. The only issue is whether Georgia alone has the power
and duty to punish, or whether this patently local crime can be made the basis of a federal
prosecution. The practical question is whether the States should be relieved from responsibility
to bring their law officers to book for homicide, by allowing prosecutions in the federal courts
for a relatively minor offense carrying a short sentence. The legal question is whether, for the
purpose of accomplishing this relaxation of State responsibility, hitherto settled principles for the
protection of civil liberties shall be bent and tortured.
I. By the Thirteenth Amendment slavery was abolished. In order to secure equality of treatment
for the emancipated, the Fourteenth Amendment was adopted at the [325 U.S. 91, 140] same time.
To be sure, the latter Amendment has not been confined to instances of discrimination because of
race or color. Undoubtedly, however, the necessary protection of the new freedmen was the most
powerful impulse behind he Fourteenth Amendment. The vital part of that Amendment, Section
1, reads as follows: '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 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.'
By itself, this Amendment is merely an instrument for striking down action by the States in
defiance of it. It does not create rights and obligations actively enforceable by federal law.
However, like all rights secured by the Constitution of the United States, those created by the
Fourteenth Amendment could be enforced by appropriate federal legislation. The general power
of Congress to pass measures effectuating the Constitution is given by Art. I, 8, cl. 18-the
Necessary-and-Proper- Clause. In order to indicate the importance of enforcing the guarantees of
Amendment XIV, its fifth section specifically provides: 'The Congress shall have power to
enforce, by appropriate legislation, the provisions of this article.'
Accordingly, Congress passed various measures for its enforcement. It is familiar history that
much of this legislation was born of that vengeful spirit which to no small degree envenomed the
Reconstruction era. Legislative respect for constitutional limitations was not at its height and
Congress passed laws clearly unconstitutional. See Civil Rights Cases, 109 U.S. 3 , 3 S.Ct. 18.
One of the laws of this period was the Act of May 31, 1870, 16 Stat. 140. In its [325 U.S. 91, 141]
present form, as 20, it is now here for the first time on full consideration as to its meaning and its
constitutionality, unembarrassed by preoccupation both on the part of counsel and court with the
more compelling issue of the power of Congress to control state procedure for the election of
federal officers. If 20 were read as other legislation is read, by giving it the meaning which its
language in its proper setting naturally and spontaneously yields, it is difficult to believe that
there would be real doubt about the proper construction. The unstrained significance of the
words chosen by Congress, the disclosed purpose for which they were chosen and to which they
were limited, the always relevant implications of our federal system especially in the distribution
of power and responsibility for the enforcement of the criminal law as between the States and the
National Government, all converge to make plain what conduct Congress outlawed by the Act of
1870 and what impliedly it did not.
The Fourteenth Amendment prohibited a State from so acting as to deprive persons of new
federal rights defined by it. Section 5 of the Amendment specifically authorized enabling
legislation to enforce that prohibition. Since a State can act only through its officers, Congress
provided for the prosecution of any officer who deprives others of their guaranteed rights and
denied such an officer the right to defend by claiming the authority of the State for his action. In
short, Congress said that no State can empower an officer to commit acts which the Constitution
forbade the State from authorizing, whether such unauthorized command be given for the State
by its legislative or judicial voice, or by a custom contradicting the written law. See Nashville, C.
& St. L. Ry. v. Browning, 310 U.S. 362, 369 , 60 S.Ct. 968, 972. The present prosecution is not
based on an officer's claim that that for which the United States seeks his punishment was
commanded or authorized by the law of his State. On the contrary, [325 U.S. 91, 142] the present
prosecution is based on the theory that Congress made it a federal offense for a State officer to
violate the explicit law of his State. We are asked to construe legislation which was intended to
effe tuate prohibitions against States for defiance of the Constitution, to be equally applicable
where a State duly obeys the Constitution, but an officer flouts State law and is unquestionably
subject to punishment by the State for his disobedience.
So to read 20 disregards not merely the normal function of language to express ideas
appropriately. It fails not merely to leave to the States the province of local crime enforcement,
that the proper balance of political forces in our federalism requires. It does both, heedless of the
Congressional purpose, clearly evinced even during the feverish Reconstruction days, to leave
undisturbed the power and the duty of the States to enforce their criminal law by restricting
federal authority to the punishment only of those persons who violate federal rights under claim
of State authority and not by exerting federal authority against offenders of State authority. Such
a distortion of federal power devised against recalcitrant State authority never entered the minds
of the proponents of the legislation.
Indeed, we have the weightiest evidence to indicate that they rejected that which now, after
seventy-five years, the Government urges. Section 20 of the Criminal Code derived from 2 of the
Civil Rights Act of 1866, 14 Stat. 27. During the debate on that section, Senator Trumbull, the
Chairman of the Senate Judiciary Committee, answered fears concerning the loose inclusiveness
of the phrase 'color of law'. In particular, opponents of the Act were troubled lest it would make
criminals of State judges and officials for carrying out their legal duties. Senator Trumbull
agreed that they would be guilty if they consciously helped to enforce discriminatory State [325
U.S. 91, 143] legislation. Federal law, replied Senator Trumbull, was directed against those, and
only against those, who were not punishable by State law precisely because they acted in
obedience to unconstitutional State law and by State law justified their action. Said Senator
Trumbull, 'If an offense is committed against a colored person simply because he is colored, in a
State where the law affords him the same protection as if he were white, this act neither has nor
was intended to have anything to do with his case, because he has adequate remedies in the State
courts; but if he is discriminated against under color of State laws because he is colored, then it
becomes necessary to interfere for his protection.' Cong.Globe, 39th Cong., 1st Sess., p. 1758.
And this language applies equally to 17 of the Act of May 31, 1870, 16 Stat. 140, 144 (now 20 of
the Criminal Code) which re-enacted the Civil Rights Act.
That this legislation was confined to attempted deprivations of federal rights by State law and
was not extended to breaches of State law by its officials, is likewise confirmed by observations
of Senator Sherman, another leading Reconstruction statesman. When asked about the
applicability of the 1870 Act to a Negro's right to vote when State law provided for that right,
Senator Sherman replied, 'That is not the case with which we are dealing. I intend to propose an
amendment to present a question of that kind. This bill only proposes to deal with offenses
committed by officers or persons under color of existing State law, under color of existing State
constitutions. No man could be convicted under this bill reported by the Judiciary Committee
unless the denial of the right to vote was done under color or pretense of State regulation. The
whole bill shows that. My honorable friend from California has not read this bill with his usual
care if he does not see that that runs through the whole of the provisions of the first and second
sections of the bill which [325 U.S. 91, 144] simply punish officers as well as persons for
discrimination under color of State laws or constitutions; and so it provides all the way through.'
Cong.Globe, 41st Cong., 2d Sess., p. 3663. The debates in Congress are barren of any indication
that the supporters of the legislation now before us had the remotest notion of autho izing the
National Government to prosecute State officers for conduct which their State had made a State
offense where the settled custom of the State did not run counter to formulated law.
Were it otherwise it would indeed be surprising. It was natural to give the shelter of the
Constitution to those basic human rights for the vindication of which the successful conduct of
the Civil War was the end of a long process. And the extension of federal authority so as to guard
against evasion by any State of these newly created federal rights was an obvious corollary. But
to attribute to Congress the making overnight of a revolutionary change in the balance of the
political relations between the National Government and the States without reason, is a very
different thing. And to have provided for the National Government to take over the
administration of criminal justice from the States to the extent of making every lawless act of the
policeman on the beat or in the station house, whether by way of third degree or the illegal
ransacking for evidence in a man's house (see Gouled v. United States, 255 U.S. 298 , 41 S.Ct.
261; Byars v. United States, 273 U.S. 28 , 47 S.Ct. 248; Brown v. Mississippi, 297 U.S. 278 , 56
S.Ct. 461; Chambers v. Florida, 309 U.S. 227 , 60 S.Ct. 472), a federal offense, would have
constituted a revolutionary break with the past overnight. The desire for such a dislocation in our
federal system plainly was not contemplated by the Lyman Trumbulls and the John Shermans,
and not even by the Thaddeus Stevenses.
Regard for maintaining the delicate balance 'between the judicial tribunals of the Union and of
the states' in [325 U.S. 91, 145] the enforcement of the criminal law has informed this Court, as it
has influenced Congress, 'in recognition of the fact that the public good requires that those
relations be not disturbed by unnecessary conflict between courts equally bound to guard and
protect rights secured by the constitution.' Ex parte Royall, 117 U.S. 241, 251 , 6 S.Ct. 734, 740.
Observance of this basic principle under our system of Government has led this Court to abstain,
even under more tempting circumstances than those now here, from needless extension of federal
criminal authority into matters that normally are of state concern and for which the States had
best be charged with responsibility.
We have reference to 33 of the Judicial Code, as amended, 28 U.S.C . 76, 28 U.S.C.A. 76. That
provision gives the right of removal to a federal court of any criminal prosecution begun in a
State court against a revenue officer of the United States 'on account of any act done under color
of his office or of any such (revenue) law.' Where a state prosecution for manslaughter is resisted
by the claim that what was done was justifiably done by a United States officer one would
suppose that this Court would be alert to construe very broadly 'under color of his office or of
any such law' in order to avoid the hazards of trial, whether through conscious or unconscious
discrimination or hostility, of a United States officer accused of homicide and to assure him a
trial in a presumably more impartial federal court. But this Court long ago indicated that misuse
of federal authority does not come within the statute's protection. State of Tennessee v. Davis,
100 U.S. 257, 261 , 262 S.. More recently, this Court in a series of cases unanimously insisted
that a petition for removal must show with particularity that the offense for which the State is
prosecuting resulted from a discharge of federal duty. 'It must appear that the prosecution of him
for whatever offense has arisen out of the acts done by him under color of federal authority and
in enforcement of federal law, and [325 U.S. 91, 146] he must by direct averment exclude the
possibility that it was based on acts or conduct of his, not justified by his federal duty. ... The
defense he is to make is that of his immunity of punishment by the st te, because what he did was
justified by his duty under the federal law, and because he did nothing else on which the
prosecution could be based.' State of Maryland v. Soper (No. 1), 270 U.S. 9, 33 , 46 S.Ct. 185,
190. And see State of Maryland v. Soper (No. 2), 270 U.S. 36 , 46 S. Ct. 192; State of Maryland
v. Soper (No. 3), 270 U.S. 44 , 46 S.Ct. 194; State of Colorado v. Symes, 286 U.S. 510 , 52 S.Ct.
635. To the suggestion that such a limited construction of the removal statute enacted for the
protection of the United States officers would restrict its effectiveness, the answer was that if
Congress chose to afford even greater protection and to withdraw from the State the right and
duty to enforce their criminal law in their own courts, it should express its desire more
specifically. State of Maryland v. Soper ( No. 2), 270 U.S. 36, 42 , 44 S., 46 S.Ct. 192, 193, 194.
That answer should be binding in the situation now before us.
The reasons which led this Court to give such a restricted scope to the removal statute are even
more compelling as to 20. The matter concerns policies inherent in our federal system and the
undesirable consequences of federal prosecution for crimes which are obviously and
predominantly state crimes no matter how much sophisticated argumentation may give them the
appearance of federal crimes. Congress has not expressed a contrary purpose, either by the
language of its legislation or by anything appearing in the environment out of which its language
came. The practice of government for seventy-five years likewise speaks against it. Nor is there a
body of judicial opinion which bids us find in the unbridled excess of a State officer, constituting
a crime under his State law, action taken 'under color of law' which federal law forbids.
Only two reported cases considered 20 before United States v. Classic, 313 U.S. 299 , 61 S.Ct.
1031. In United States v. Bun- [325 U.S. 91, 147] tin, C.C., 10 F. 730, a teacher, in reliance on a
State statute, refused admittance to a colored child, while in United States v. Stone, D.C., 188 F.
836, election supervisors who acted under a Maryland election law were held to act 'under color
of law'. In neither case was there a patent violation of State law but rather an attempt at
justification under State law. United States v. Classic, supra, is the only decision that looks the
other way. In that case primary election officials were held to have acted 'under color of law'
even though the acts complained of as a federal offense were likewise condemned by Louisiana
law. The truth of the matter is that the focus of attention in the Classic case was not our present
problem, but was the relation of primaries to the protection of the electoral process under the
United States Constitution. The views in the Classic case thus reached ought not to stand in the
way of a decision on the merits of a question which has now for the first time been fully explored
and its implications for the workings of our federal system have been adequately revealed.
It was assumed quite needlessly in the Classic case that the scope of 20 was co-extensive with
the Fourteenth Amendment. Because the weight of the case was elsewhere, we did not pursue the
difference between the power granted to Congress by that Amendment to bar 'any State' from
depriving persons of the newly created constitutional rights and the limited extent to which
Congress exercised that power, in what is now 20, by making it an offense for one acting 'under
color of any law' to deprive another of such constitutional rights. It may well be that Congress
could, within the bounds of the Fourteenth Amendment, treat action taken by a State official
even though in defiance of State law and not condoned by ultimate State authority as the action
of 'a State'. It has never been satisfactorily explained how a State can be said to deprive a person
of liberty or property without [325 U.S. 91, 148] due process of law hen the foundation of the
claim is that a minor official has disobeyed the authentic command of his State. See Raymond v.
Chicago Union Traction Co., 207 U.S. 20, 40 , 41 S., 28 S.Ct. 7, 14, 12 Ann.Cas. 757. Although
action taken under such circumstances has been deemed to be deprivation by a 'State' of rights
guaranteed by the Fourteenth Amendment for purposes of federal jurisdiction, the doctrine has
had a fluctuating and dubious history. Compare Barney v. City of New York, 193 U.S. 430 , 24
S.Ct. 502, with Raymond v. Chicago Union Traction Co., supra; Memphis v. Cumberland
Telephone & Telegraph Co., 218 U.S. 624 , 31 S.Ct. 115, with Home Tel. & Tel. Co. v. Los
Angeles, 227 U.S. 278 , 33 S.Ct. 312. Barney v. City of New York, supra, which ruled otherwise,
although questioned, has never been overruled. See, for instance, Iowa-Des Moines Nat. Bank v.
Bennett, 284 U.S. 239, 246 , 247 S., 52 S.Ct. 133, 136, and Snowden v. Hughes, 321 U.S. 1, 13 ,
64 S.Ct. 397, 403.1
But assuming unreservedly that conduct such as that now before us, perpetrated by State officers
in flagrant defiance of State law, may be attributed to the State under the Fourteenth
Amendment, this does not make it action under 'color of any law.' Section 20 is much narrower
than the power of Congress. Even though Congress might have swept within the federal criminal
law any action that could be deemed within the vast reach of the Fourteenth Amendment,
Congress did not do so. The presuppositions of our federal system, the pronouncements of the
statesmen who shaped this legislation, and the normal meaning of language powerfully counsel
against attributing to Congress intrusion into the sphere of criminal law tradition- [325 U.S. 91, 149]
ally and naturally reserved for the States alone. When due account is taken of the considerations
that have heretofore controlled the political and legal relations between the States and the
National Government, there is not the slightest warrant in the reason of things for torturing
language plainly designed for nullifying a claim of acting under a State law that conflicts with
the Constitution so as to apply to situations where State law is in conformity with the
Constitution and local misconduct is in undisputed violation of that State law. In the absence of
clear direction by Congress we should leave to the States the enforcement of their criminal law,
and not relieve States of the responsibility for vindicating wrongdoing that is essentially local or
weaken the habits of local law enforcement by tempting reliance on federal authority for an
occasional unpleasant task of local enforcement.
II. In our view then, the Government's attempt to bring an unjustifiable homicide by local
Georgia peace officers within the defined limits of the federal Criminal Code cannot clear the
first hurdle of the legal requirement that that which these officers are charged with doing must be
done under color of Georgia law.
Since the majority of the Court do not share this conviction that the action of the Georgia peace
officers was not perpetrated under color of law, we, too, must consider the constitutionality of
20. All but two members of the Court apparently agree that in so far as 20 purports to subject
men to punishment for crime it fails to define what conduct is made criminal. As misuse of the
criminal machinery is one of the most potent and familiar instruments of arbitrary government,
proper regard for the rational requirement of definiteness in criminal statutes is basic to civil
liberties. As such it is included in the constitutional guaranty of due process of law. But four [325
U.S. 91, 150] members of the Court are of the opinion that this plain constitutional principle of
definiteness in criminal statutes may be replaced by an elaborate scheme of constitutional
exegesis whereby that which Congress has not defined the courts can define from time to time,
with varying and conflicting definiteness in the decisions, and that, in any event, an undefined
range of conduct may become sufficiently definite if only such undefined conduct is committed
'willfully'.
In subjecting to punishment 'deprivation of any rights, privileges, or immunities secured or
protected by the Constitution and laws of the United States', 20 on its face makes criminal
deprivation of the whole range of undefined appeals to the Constitution. Such is the true scope of
the forbidden conduct. Its domain is unbounded and therefore too indefinite. Criminal statutes
must have more or less specific contours. This has none.
To suggest that the 'right' deprivation of which is made criminal by 20 'has been made specific
either by the express terms of the Constitution ... or by decisions interpreting (it)' hardly adds
definiteness beyond that of the statute's own terms. What provision is to be deemed 'specific' 'by
the express terms of the Constitution' and what not 'specific'? If the First Amendment
safeguarding free speech be a 'specific' provision what about the Fourth? 'All unreasonable
searches and seizures and absolutely forbidden by the Fourth Amendment.' Nathanson v. United
States, 290 U.S. 41, 46 , 54 S.Ct. 11, 13. Surely each is among the 'rights, privileges, or
immunities secured or protected by the Constitution', deprivation of which is a crime under 20.
In any event, what are the criteria by which to determine what express provisions of the
Constitution are 'specific' and what provisions are not 'specific'? And if the terms of 20 in and of
themselves are lacking in sufficient definiteness for a criminal statute, restriction within the
framework of 'decisions interpret- [325 U.S. 91, 151] ing' the Constitution cannot show the
necessary definiteness. The illustrations given in the Court's opinion underline the inescapable
vagueness due to the doubts and fluctuating character of decisions interpreting the Constitution.
This intrinsic vagueness of the terms of 20 surely cannot be removed by making the statute
applicable only where the defendant has the 'requisite bad purpose'. Does that not amount to
saying that the black heart of the defendant enables him to know what are the constitutional
rights deprivation of which the statute forbids, although we as judges are not able to define their
classes or their limits, or, at least, are not prepared to state what they are unless it be to say that
20 protects whatever rights the Constitution protects?
Under the construction proposed for 20, in order for a jury to convict, it would be necessary 'to
find that petitioners had the purpose to deprive the prisoner of a constitutional right, e.g. the right
to be tried by a court rather than by ordeal.' There is no question that Congress could provide for
a penalty against deprivation by state officials acting 'under color of any law' of 'the right to be
tried by a court rather than by ordeal.' But we cannot restrict the problem raised by 20 to the
validity of penalizing a deprivation of this specific constitutional right. We are dealing with the
reach of the statute, for Congress has not particularized as the Court now particularizes. Such
transforming interpolation is not interpretation. And that is recognized by the sentence just
quoted, namely, that the jury in order to convict under 20 must find that an accused 'had the
purpose to deprive (another) of a constitutional right', giving this specific constitutional right as
'e.g.,' by way of illustration. Hen e a judge would have to define to the jury what the
constitutional rights are deprivation of which is prohibited by 20. If that is a legal question as to
which [325 U.S. 91, 152] the jury must take instruction from the court, at least the trial court must
be possessed of the means of knowing with sufficient definiteness the range of 'rights' that are
'constitutional'. The court can hardly be helped out in determining that legal question by leaving
it to the jury to decide whether the act was 'willfully' committed.
It is not conceivable that this Court would find that a statute cast in the following terms would
satisfy the constitutional requirement for definiteness: 'Whoever wilfully commits any act which
the Supreme Court of the United States shall find to be a deprivation of any right, privilege, or
immunity secured or protected by the Constitution shall be imprisoned not more than, etc.' If
such a statute would fall for uncertainty, wherein does 20 as construed by the Court differ and
how can it survive?
It was settled early in our history that prosecutions in the federal courts could not be founded on
any undefined body of so-called common law. United States v. Hudson, 7 Cranch 32; United
States v. Gooding, 12 Wheat. 460. Federal prosecutions must be founded on delineation by
Congress of what is made criminal. To base federal prosecutions on the shifting and
indeterminate decisions of courts is to sanction prosecutions for crimes based on definitions
made by courts. This is tantamount to creating a new body of federal criminal common law.
It cannot be too often emphasized that as basic a difference as any between our notions of law
and those of legal systems not founded on Anglo- American conceptions of liberty is that crimes
must be defined by the legislature. The legislature does not meet this requirement by issuing a
blank check to courts for their retrospective finding that some act done in the past comes within
the contingencies and conflicts that inhere in ascertaining the content of the Fourteenth
Amendment by 'the gradual process of [325 U.S. 91, 153] judicial inclusion and exclusion.'
Davidson v. New Orleans, 96 U.S. 97 , 104. Therefore, to subject to criminal punishment
conduct that the court may eventually find to have been within the scope or the limitations of a
legal doctrine underlying a decision is to satisfy the vital requirement for definiteness through an
appearance of definiteness in the process of constitutional adjudication which every student of
law knows not to comport with actuality. What the Constitution requires is a definiteness defined
by the legislature, not one argumentatively spelled out through the judicial process which,
precisely because it is a process can not avoid incompleteness. A definiteness which requires so
much sublety to expound is hardly definite.
It is as novel as it is an inadmissible principle that a criminal statute of indefinite scope can be
rendered definite by requiring that a person 'willfully' commit what Congress has not defined but
which, if Congress had defined, could constitutionally be outlawed. Of course Congress can
prohibit the deprivation of enumerated constitutional rights. But if Congress makes it a crime to
deprive another of any right protected by the Constitution-and that is what 20 does-this Court
cannot escape facing decisions as to what constitutional rights are covered by 20 by saying that
in any event, whatever they are, they must be taken away 'willfully'. It has not been explained
how all the considerations of unconstitutional vagueness which are laid bare in the early part of
the Court's opinion evaporate by suggesting that what is otherwise too vaguely defined must be
'willfully' committed.
In the early law an undesired event attributable to a particular person was punished regardless of
the state of mind of the actor. The rational development of criminal liability added a mental
requirement for criminal culpability, except in a limited class of c ses not here relevant. See
United States v. Balint, 258 U.S. 250 , 42 S.Ct. 301. That req- [325 U.S. 91, 154] uisite mental
ingredient is expressed in various forms in criminal statutes, of which the word 'willfully' is one
of the most common. When a criminal statute prohibits something from being 'willfully' done,
'willfully' never defines the physical conduct or the result the bringing of which to pass is
proscribed. 'Willfully' merely adds a certain state of mind as a prerequisite to criminal
responsibility for the otherwise proscribed act. If a statute does not satisfy the due-process
requirement of giving decent advance notice of what it is which, if happening, will be visited
with punishment, so that men may presumably have an opportunity to avoid the happening (see
International Harvester Co. v. Kentucky, 234 U.S. 216 , 34 S.Ct. 853; Collins v. Kentucky, 234
U.S. 634 , 34 S. Ct. 924; United States v. L. Cohen Grocery Co., 255 U.S. 81 , 41 S.Ct. 298, 14
A.L.R. 1045; Cline v. Frink Dairy Co., 274 U.S. 445 , 47 S.Ct. 681), then 'willfully' bringing to
pass such an undefined and too uncertain event cannot make it sufficiently definite and
ascertainable. 'Willfully' doing something that is forbidden, when that something is not
sufficiently defined according to the general conceptions of requisite certainty in our criminal
law, is not rendered sufficiently definite by that unknowable having been done 'willfully'. It is
true also of a statute that it cannot lift itself up by its bootstraps.
Certainly these considerations of vagueness imply unconstitutionality of the Act at least until
1909. For it was not until 1909, that the word 'willfully' was introduced. But the legislative
history of that addition affords no evidence whatever that anybody thought that 'willfully' was
added to save the statute from unconstitutionality. The Joint Committee of Congress on the
Revision of Laws (which sponsored what became the Criminal Code) gives no such indication,
for it did not propose 'willfully'; the reports in neither House of Congress shed any light on the
subject, for the bill in neither House proposed that 'willfully' be added; no speech by any one in
charge of the [325 U.S. 91, 155] bill in either House sheds any light on the subject; the report of the
Conference Committee, from which 'willfully' for the first time emerges, gives no explanation
whatever; and the only reference we have is that to which the Court's opinion refers (43
Cong.Rec., p. 3599). And that is an unilluminating remark by Senator Daniel of Virginia, who
had no responsibility for the measure and who made the remark in the course of an exchange
with Senator Heyburn of Idaho, who was in charge of the measure and who complained of an
alleged attitude on the part of Southern members to filibuster against the bill because of the
retention of Reconstruction legislation.
All this bears not merely on the significance of 'willfully' in a presumably otherwise
unconstitutionally vague statute. It also bears on the fact that, for the purpose of constitutionality,
we are dealing not with an old statute that goes back to the Reconstruction days, but only to
1909.
Nor can support be found in the opinions of this Court for the proposition that 'willfully' can
make definite prohibitions otherwise indefinite.
In Omaechevarria v. Idaho, 246 U.S. 343 , 38 S.Ct. 323, the Court sustained an Idaho statute
prohibiting any person having charge of sheep from allowing them to graze 'upon any range
usually occupied by any cattle grower'. Rev.Codes Idaho, 6872. The statute was attacked under
the Due Process Clause in that it failed to provide for the ascertainment of the boundaries of a
'range' or for determining what length of time is necessary to constitute a prior occupation a
'usual' one within the meaning of the Act. This attack upon the Idaho statute was rejected and for
the following reasons: 'Men familiar with range conditions and desirous of observing th law will
have little difficulty in determining what is prohibited by it. Similar expressions are common in
the criminal statutes of other (grazing) states. This [325 U.S. 91, 156] statute presents no greater
uncertainty or difficulty, in application to necessarily varying facts, than has been repeatedly
sanctioned by this court.' 246 U.S. at page 348, 38 S.Ct. at page 325.
Certainly there is no comparison between a statute employing the concept of a western range and
a statute outlawing the whole range of constitutional rights, unascertained if not unascertainable.
To be sure, the opinion of Mr. Justice Brandeis also brought to its support 6314 of Revised
Codes of Idaho which provided that 'In every crime or public offense there must exist a union, or
joint operation, of act and intent, or criminal negligence.' But this is merely an Idaho phrasing of
the conventional saw in text-books and decisions dealing with criminal law that there must be a
mens rea for every offense. In other words, a guilty state of mind is usually required before one
can be punished for an outlawed act. But the definition of the outlawed act is not derived from
the state of mind with which it must be committed. All that Mr. Justice Brandeis meant by
'indefiniteness' in the context of this statute was the claim that the statute did not give enough
notice as to the act which was outlawed. But notice was given by the common knowledge of
what a 'range' was, and for good measure he suggested that under the Act a man would have to
know that he was grazing sheep where he had no business to graze them. There is no analogy
between the face of this Idaho statute and the face of our statute. The essential difference is that
in the Idaho statute the outlawed act was defined; in 20 it is undefined.
In Hygrade Provision Co. v. Sherman, 266 U.S. 497 , 45 S.Ct. 141, New York punished the
misrepresentation of meat as 'kosher' or as satisfying 'orthodox Hebrew religious requirements.'
Here, too, the objection of indefiniteness was rejected by this Court. The objection bordered on
the frivolous. In this case, too, the opinion of the Court, as in the way of opinions, softened the
blow by saying that [325 U.S. 91, 157] there was no danger of any one being convicted for not
knowing what he was doing, for it required him to have consciousness that he was offering meat
as 'kosher' meat when he knew very well that it was not.
Thus in both these cases this Court was saying that the criminal statutes under scrutiny, although
very specific, did not expose any innocent person to the hazards of unfair conviction, because not
merely did the legislation outlaw specifically defined conduct, but guilty knowledge of such
defined criminality was also required. It thereby took the legislation outside the scope of United
States v. Balint, 258 U.S. 250 , 42 S.Ct. 301, in which the Court sustained the prosecution of one
wholly innocent of knowledge of the act, commission of which the statute explicitly forbade.
This case does not involve denying adequate power to Congress. There is no difficulty in passing
effective legislation for the protection of civil rights against improper State action. What we are
concerned with here is something basic in a democratic society, namely, the avoidance of the
injustice of prohibiting conduct in terms so vague as to make the understanding of what is
proscribed a guess-work too difficult for confident judgment even for the judges of the highest
Court in the land.
III. By holding, in this case, that State officials who violate State law nevertheless act 'under
color of' State law, and by establishing as federal crimes violations of the vast, undisclosed range
of the Fourteenth Amendment, this Court now creates new delicate and complicated problems
for the enforcement of the criminal law. The answers given to these problems, in view of the
tremendous scope of potential offenses against the Fourteenth Amendment, are bound to produce
a confusion detrimental to he administration of criminal justice.
The Government recognizes that 'this is the first case brought before this Court in which Section
20 has been applied [325 U.S. 91, 158] to deprivations of rights secured by the Fourteenth
Amendment.' It is not denied that the Government's contention would make a potential offender
against this act of any State official who as a judge admitted a confession of crime, or who as
judge of a State court of last resort sustained admission of a confession, which we should later
hold constitutionally inadmissable, or who as a public service commissioner issued a regulatory
order which we should later hold denied due process or who as a municipal officer stopped any
conduct we later should hold to be constitutionally protected. The Due Process Clause of the
Fourteenth Amendment has a content the scope of which this Court determines only as cases
come here from time to time and then not without close division and reversals of position. Such a
dubious construction of a criminal statute should not be made unless language compels.
That such a pliable instrument of prosecution is to be feared appears to be recognized by the
Government. It urges three safeguards against abuse of the broad powers of prosecution for
which it contends. (1) Congress it says will supervise the Department's policies and curb
excesses by withdrawal of funds. It surely is casting an impossible burden upon Congress to
expect it to police the propriety of prosecutions by the Department of Justice. Nor would such
detailed oversight by Congress make for the effective administration of the criminal law. (2) The
Government further urges that since prosecutions must be brought in the district where the crime
was committed the judge and jurors of that locality can be depended upon to protect against
federal interference with state law enforcement. Such a suggestion would, for practical purposes,
transfer the functions of this Court, which adjudicates questions concerning the proper
relationship between the federal and State governments, to jurors whose function is to resolve
factual questions. Moreover, [325 U.S. 91, 159] if federal and State prosecutions are subject to the
same influences, it is difficult to see what need there is for taking the prosecution out of the
hands of the State. After all, Georgia citizens sitting as a federal grand jury indicted and other
Georgia citizens sitting as a federal trial jury convicted Screws and his associates; and it was a
Georgia judge who charged more strongly against them than this Court thinks he should have.
Finally, the Department of Justice gives us this assurance of its moderation:
'(3) The Department of Justice has established a policy of strict self-limitation with regard
to prosecutions under the civil rights acts. When violations of such statutes are reported,
the Department requires that efforts be made to encourage state officials to take
appropriate action under state law. To assure consistent observance of this policy in the
enforcement of the civil rights statutes, all United States Attorneys have been instructed
to submit cases to the Department for approval before prosecutions or investigations are
instituted. The number of prosecutions which have been brought under the civil rights
statutes is small. No statistics are available with respect to the number of prosecutions
prior to 1939, when a special Civil Rights Section was established in the Department of
Justice. Only two cases during this period have been reported: United States v. Buntin,
C.C.S.D.Ohio, 10 F. 730, and United States v. Stone, D.C.Md., 188 F. 836. Since 1939,
the number of complaints received annually by the Civil Rights Section has ranged from
8,000 to 14, 000 but in no year have prosecutions under both Sections 20 and 19, its
companion statute, exceeded 76. In the fiscal year 1943, for example, 31 full
investigations of alleged violations of Section 20 were conducted, and three cases were
brought to trial. In the following fiscal year there were 55 such investigations, and prosec
tions were instituted in 12 cases. [325 U.S. 91, 160] 'Complaints of violations are often
submitted to the Department by local law enforcement officials who for one reason or
another may feel themselves powerless to take action under state law. It is primarily in
this area, namely, where the official position of the wrongdoers has apparently rendered
the State unable or unwilling to institute proceedings, that the statute has come into
operation. Thus, in the case at bar, the Solicitor General of the Albany Circuit in the State
of Georgia, which included Baker County, testified (R. 42):
'There has been no complaint filed with me in connection with the death of Bobby Hall
against Sheriff Screws, Jones, and Kelley. As to whom I depend for investigation of
matters that come into my Court, I am an attorney, I am not a detective and I depend on
evidence that is available after I come to Court or get into the case. ... The sheriffs and
other peace officers of the community generally get the evidence and I act as the attorney
for the state. I rely on my sheriffs and policemen and peace officers and private citizens
also who prosecute each other to investigate the charges that are lodged in Court."
But such a 'policy of strict self-limitation' is not accompanied by assurance of permanent tenure
and immortality of those who make it the policy. Evil men are rarely given power; they take it
over from better men to whom it had been entrusted. There can be no doubt that this shapeless
and all-embracing statute can serve as a dangerous instrument of political intimidation and
coercion in the hands of those so inclined.
We are told local authorities cannot be relied upon for courageous and prompt action, that often
they have personal or political reasons for refusing to prosecute. If it be significantly true that
crimes against local law cannot be locally prosecuted, it is an ominous sign indeed. In any event,
the cure is a re-invigoration of State responsibility. It is not an undue incursion of remote federal
[325 U.S. 91, 161] authority into local duties with consequent debilitation of local responsibility.
The complicated and subtle problems for law enforcement raised by the Court's decision
emphasize the conclusion that 20 was never designed for the use to which it has now been
fashioned. The Government admits that it is appropriate to leave the punishment of such crimes
as this to local authorities. Regard for this wisdom in federal-State relations was not left by
Congress to executive discretion. It is, we are convinced, embodied in the statute itself.
Footnotes
[ Footnote 1 ] A demurrer to the indictment alleging among other things that the matters charged
did not constitute an offense against the United States and did not come within the purview of 20
was overruled. At the end of the government's case petitioners' motion for a directed verdict on
the grounds of the insufficiency of the evidence was denied.
[ Footnote 2 ] Moreover, federal as well as state officials would run afoul of the Act since it
speaks of 'any law, statute, ordinance, regulation, or custom.' Comparable uncertainties will exist
in the application of the due process clause of the Fifth Amendment.
[ Footnote 3 ] See Cong. Globe, 41st Cong., 2d Sess., pp. 3807, 3808, 3881. Flack, The Adoption
of the Fourteenth Amendment (1908) pp. 19-54, 219, 223, 227; Hague v. C.I.O., 307 U.S. 496,
510 , 59 S.Ct. 954, 961.
[ Footnote 4 ] See United States v. Classic, 313 U.S. 299, 327 , 61 S.Ct. 1031, 1043, note 10.
[ Footnote 5 ] 'That any person who, under color of any law, statute, ordinance, regulation, or
custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the
deprivation of any right secured or protected by this act, or to different punishment, pains, or
penalties on account of such person having at any time been held in a condition of slavery or
involuntary servitude, except as a punishment for crime whereof the party shall have been duly
convicted, or by reason of his color or race, than is prescribed for the punishment of white
persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine
not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the
discretion of the court.'
[ Footnote 6 ] 'That any person who, under color of any law, statute, ordinance, regulation, or
custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the
deprivation of any right secured or protected by the last preceding section of this act, or to
different punishment, pains, or penalties on account of such person being alien, or by reason of
his color or ace, than is prescribed for the punishment of citizens, shall be deemed guilty of a
misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars,
or imprisonment not exceeding one year, or both, in the discretion of the court.'
The preceding section referred to read as follows: 'That all persons within the jurisdiction of the
United States shall have the same right in every State and Territory in the United States to make
and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all
laws and proceedings for the security of person and property as is enjoyed by white citizens, and
shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind,
and none other, any law, statute, ordinance, regulation, or custom to the contrary
notwithstanding. No tax or charge shall be imposed or enforced by any state upon any person
immigrating thereto from a foreign country which is not equally imposed and enforced upon
every person immigrating to such State from any other foreign country; and any law of any State
in conflict with this provision is hereby declared null and void.' 16 Stat. 144, 16.
[ Footnote 7 ] Its sponsor, Senator Stewart, stated that 'It extends the operation of the civil rights
bill, which is well known in the Senate and to the country, to all persons within the jurisdiction
of the United States.' Cong. Globe, 41st Cong., 2d Sess., p. 1536.
[ Footnote 8 ] That section provided in part: 'That any person who, under color of any law,
statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be
subjected, any person within the jurisdiction of the United States to the deprivation of any rights,
privileges, or immunities secured by the Constitution of the United States, shall, any such law,
statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be
liable to the party injured in any action at law, suit in equity, or other proper proceeding for
redress.'
This section became 1979 of the Revised Statutes and is now found in 8 U.S.C. 43, 8 U.S.C.A.
43. See Hague v. C.I.O., supra, 307 U.S. at page 510, 59 S.Ct. at page 961, note 3.
[ Footnote 9 ] Sec. 5 thereof provides: 'The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.'
[ Footnote 10 ] The petitioners may be guilty of manslaughter or murder under Georgia law and
at the same time liable for the federal offense proscribed by 20. The instances where 'an act
denounced as a crime by both national and state sovereignties' may be punished by each without
violation of the double jeopardy provision of the Fifth Amendment are common. United States v.
Lanza, 260 U.S. 377, 382 , 43 S.Ct. 141, 143; Hebert v. Louisiana, 272 U.S. 312 , 47 S.Ct. 103,
48 A.L.R. 1102.
[ Footnote 11 ] Cong. Globe, 39th Cong., 1st Sess., p. 1759.
[ Footnote 12 ] Cong. Globe, 41st Cong., 2d Sess., p. 3663.
[ Footnote 1 ] The evidence was conflicting whether the warrant was made out and issued before,
or after, the arrest and killing, and if issued beforehand, whether it was valid. The Court of
Appeals noted there was evidence 'that the alleged warrant of arrest was prepared by the sheriff
and was a spurious afterthought' (140 F.2d at page 665), but assumed in the petitioner's favor that
a valid warrant had been issued. The dissenting opinion said the victim's shotgun was taken from
his home 'not in a search of his person but apparently without lawful warrant.' 140 F.2d at page
667.
[ Footnote 2 ] The crucial dispute of fact was over whether the defendants had used more force
than was necessary to restrain the prisoner. The 'overwhelming weight of the testimony' (140
F.2d at page 665) was that they used not only all force required to subdue him (if it is assumed
he resisted), but continued to beat him for fifteen to thirty minutes after he was knocked to the
ground.
[ Footnote 3 ] Cf. Part II infra.
[ Footnote 4 ] The dissenting judge in the Court of Appeals thought the local offense was not
'wilful murder, but rather that it was involuntary manslaughter in the commission of an unlawful
act.' 140 F.2d at page 666.
[ Footnote 5 ] It does not appear that the state has taken any steps toward prosecution for
violation of its law.
[ Footnote 6 ] Cf. notes 7 and 10. And see Neal v. Delaware, 103 U.S. 370 , 397; Civil Rights
Cases, 109 U.S. 3 , 15-18, 3 S.Ct. 18, 24-27; Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226,
233 , 234 S., 17 S. Ct. 581, 583, 584; Raymond v. Chicago Union Traction Co., 207 U.S. 20 , 3537, 28 S.Ct. 7, 12, 13, 12 Ann.Cas. 757; Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441, 13
L.R.A.,N.S., 932, 14 Ann.Cas. 764; Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278, 288 ,
289 S., 33 S.Ct. 312, 315; Cuyahoga River Power Co. v. Akron, 240 U.S. 462 , 36 S.Ct. 402;
Fidelity & Deposit Co. v. Tafoya, 270 U.S. 426, 434 , 46 S.Ct. 331, 332; Hopkins v. Southern
California Telephone Co., 275 U.S. 393, 398 , 48 S.Ct. 180, 181; Iowa-Des Moines Nat. Bank v.
Bennett, 284 U.S. 239, 245 , 246 S., 52 S.Ct. 133, 135, 136; Nixon v. Condon, 286 U.S. 73, 89 ,
52 S.Ct. 484, 487, 88 A.L.R. 458; Mosher v. City of Phoenix, 287 U.S. 29 , 53 S.Ct. 67; Sterling
v. Constantin, 287 U.S. 378, 393 , 53 S.Ct. 190, 193; Mooney v. Holohan, 294 U.S. 103 , 55
S.Ct. 340, 98 A.L.R. 406; State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 343 , 59
S.Ct. 232, 233; Hague v. C.I.O ., 307 U.S. 496, 512 , 59 S.Ct. 954, 962; Cochran v. Kansas, 316
U.S. 255 , 62 S.Ct. 1068; Pyle v. Kansas, 317 U.S. 213 , 63 S.Ct. 177.
[ Footnote 7 ] 'The prohibitions of the Fourteenth Amendment are directed to the States .... It is
these which Congress is empowered to enforce, and to enforce against State action, however put
forth, whether that action be executive, legislative, or judicial. ... Whoever, by virtue of public
position under a State government, deprives another of property, life, or liberty, without due
process of law, or denies or takes away the equal protection of the laws, violates the
constitutional inhibition; and as he acts in the name and for the State, and is clothed with the
State's power, his act is that of the State. This must be so, or the constitutional prohibition has no
meaning.' Ex parte Commonwealth of Virginia, 100 U.S. 339, 346 , 347 S..
'Misuse of power, possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law, is action taken 'under color of' state
law.' United States v. Classic, 313 U.S. 299, 326 , 61 S.Ct. 1031, 1043, cit ng Ex parte
Commonwealth of Virginia, supra, and other authorities.
[ Footnote 8 ] Cf. Part III infra. 'Such enforcement (of the Fourteenth Amendment by Congress)
is no invasion of State sovereignty. No law can be, which the people of the States have, by the
Constitution of the United States, empowered Congress to enact. This extent of the powers of the
general government is overlooked, when it is said, as it has been in this case, that the act of
March 1, 1875, (18 Stat., part 3, 336) interferes with State rights.' Ex parte Commonwealth of
Virginia, 100 U.S. at page 346.
[ Footnote 9 ] Cf. Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278, 287 , 33 S.Ct. 312, 315.
[ Footnote 10 ] Compare Barney v. City of New York, 193 U.S. 430 , 24 S.Ct. 502, with Home
Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278 , 33 S.Ct. 312, the latter suggesting that the former,
'if it conflicted with the doctrine' of Raymond v. Chicago Union Traction Company, 207 U.S. 20
, 28 S.Ct. 7, 12 Ann.Cas. 757, and Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441, 13 L.R.A.,N.S.,
932, 14 Ann.Cas. 764, 'is now so distinguished or qualified as not to be here authoritative or even
persuasive.' 227 U.S. at page 294, 33 S.Ct. at page 317. See also Snowden v. Hughes, 321 U.S.
1, 13 , 64 S.Ct. 397, 403; Isseks, Jurisdiction of the Lower Federal Courts to Enjoin
Unauthorized Action of State Officials, 40 Harv.L.Rev. 969, 972.
[ Footnote 11 ] Petitioners' objections in law were stated most specifically in the demurrer to the
indictment. These grounds also were incorporated in their motion for a directed verdict and their
statement of grounds for appeal. The grounds for demurrer maintained that the facts alleged were
not sufficient to constitute a federal offense, to fall within or violate the terms of any federal law
or statute, or to confer jurisdiction upon the District or other federal court. One ground attacked
the indictment for vagueness.
[ Footnote 12 ] Section 19 of the Criminal Code, 18 U.S.C. 51, 18 U.S.C.A. 51: 'If two or more
persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or
enjoyment of any right or privilege secured to him by the Constitution or laws of the United
States, or because of his having so exercised the same, or if two or more persons go in disguise
on the highway, or on the premises of another, with intent to prevent or hinder his free exercise
or enjoyment of any right or privilege so secured, they shall be fined not more than $5,000 and
imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office, or
place of honor, profit, or trust created by the Constitution or laws of the United States.'
(Emphasis added.)
Section 20, 18 U.S.C. 52, 18 U.S.C.A. 52, is as follows: 'Whoever, under color of any law,
statute, ordinance, regulation, or custom, willfully subjects, or causes to be subjected, any
inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or
immunities secured or protected by the Constitution and laws of the United States, or to different
punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his
color, or race, than are prescribed for the punishment of citizens, shall be fined not more than
$1,000, or imprisoned not more than one year, or both.' (Emphasis added.)
[ Footnote 13 ] Cf. note 32. President Johnson, vetoing another bill on July 16, 1866, stated that
the penalties of the Civil Rights Act 'are denounced against the person who willfully violates the
law.' Cong. Globe, 39th Cong ., 1st Sess., 3839.
[ Footnote 14 ] For the history of these changes, see the authorities cited in the opinion of Mr.
Justice Douglas, particularly Flack, Adoption of the Fourteenth Amendment (1908).
[ Footnote 15 ] United States v. Rhodes, 27 Fed.Cas. pag 785, No. 16,151; United States v.
Jackson, 26 Fed.Cas. page 563, No. 15,459; United States v. Buntin, C.C., 10 F. 730; cf. United
States v. Stone, D.C., 188 F. 836, a prosecution under Section 37 of the Criminal Code for
conspiracy to violate Section 20; cf. also Id., D.C., 197 F. 483; United States v. Horton, 26
Fed.Cas. page 375, No. 15,392. The constitutionality of the statute was sustained in the Rhodes
case in 1866, and in the Jackson case in 1874. It was likewise sustained in Re Turner, 1867, 24
Fed.Cas. page 337, no. 14,247; Smith v. Moody, 1866, 26 Ind. 299.
[ Footnote 16 ] Cf. the authorities cited infra at note 25.
[ Footnote 17 ] Referring to Section 20, the Court said: 'The generality of the section made
applicable as it is to deprivations of any constitutional right, does not obscure its meaning or
impair its force within the scope of its application, which is restricted by its terms to deprivations
which are willfully inflicted by those acting under color of any law, statute and the like.' 313
U.S. at page 328, 61 S.Ct. at page 1044.
Concerning Section 19, also involved, the Court pointed to the decisions in Ex parte Yarbrough,
110 U.S. 651 , 4 S.Ct. 152, and United States v. Mosley, 238 U.S. 383 , 35 S.Ct. 904, cf. note 22,
and commented: '... the Court found no uncertainty or ambiguity in the statutory language,
obviously devised to protect the citizen 'in the free exercise (or enjoyment) of any right or
privilege secured to him by the Constitution', and concerned itself with the question whether the
right to participate in choosing a representative is so secured. Such is our function here.' 313 U.S.
at page 321, 61 S.Ct. at page 1040. The opinion stated further: 'The suggestion that 19 ... is not
sufficiently specific to be deemed applicable to primary elections, will hardly bear examination.
Section 19 speaks neither of elections nor of primaries. In unambiguous language it protects 'any
right or privilege secured ... by the Constitution,' a phrase which ... extends to the right of the
voter to have his vote counted ... as well as to numerous other constitutional rights which are
wholly unrelated to the choice of a representative in Congress,' citing United States v. Waddell,
112 U.S. 76 , 5 S.Ct. 35; Logan v. United States, 144 U.S. 263 , 12 S.Ct. 617; In re Quarles, 158
U.S. 532 , 15 S.Ct. 959; Motes v. United States, 178 U.S. 458 , 20 S.Ct. 993; Guinn v. United
States, 238 U.S. 347 , 35 S.Ct. 926, L.R.A. 1916A, 1124. Cf. note 18.
[ Footnote 18 ] The dissenting opinion did not urge that Sections 19 and 20 are wholly void for
ambiguity, since it put to one side cases involving discrimination for race or color as 'plainly
outlawed by the Fourteenth Amendment,' as to which it was said, 'Since the constitutional
mandate is plain, there is no reason why 19 or 20 should not be applicable.' However it was
thought 'no such unambiguous mandate' had been given by the constitutional provisions relevant
in the Classic case. 313 U.S. at page 332, 61 S.Ct. at page 1046.
[ Footnote 19 ] Cf. note 18.
[ Footnote 20 ] Whether or not the two are coextensive in limitation of federal and state power,
respectively, there is certainly a very broad correlation in coverage, and it hardly could be
maintained that one is confined by more clear-cut boundaries than the other, although differences
in meandering of the boundaries may exist.
[ Footnote 21 ] The Court's opinion in the Classic case treated this clause of Section 20, cf. note
12, as entirely distinct from the preceding clauses, stating that 'the qualification with respect to
alienage, color and race, refers only to differences in punishment and not to deprivations of any
rights or privileges secured by the Constitution,' (emphasis added) as was thought to be
evidenced by the grammatical structure of the section and 'the necessities of the practical
application of its provisions.' 313 U.S. 326 , 61 S.Ct. 1043.
The 'pains and penalties' provision is clearly one against discrimination. It does not follow that
the qualification as to alienage, color and race does not also refer to the 'deprivations of any
rights or privileges' clause, though not in an exclusive sense. No authority for the contrary
dictum was cited. History here would seem to outweigh doubtful grammar, since, as Section 20
originally appeared in the Civil Rights Act, the qualification as to 'color, or race' (alienage was
added later) seems clearly applicable to its entire prohibition. Although the section is not
exclusively a discrimination statute, it would seem clearly, in the light of its history, to include
discrimination for alienage, color or race among the prohibited modes of depriving persons of
rights or privileges.
[ Footnote 22 ] Ex parte Yarbrough, 1884, 110 U.S. 651 , 4 S.Ct. 152; United States v. Waddell,
1884, 112 U.S. 76 , 5 S.Ct. 35; Logan v. United States, 1882, 144 U.S. 263 , 12 S.Ct. 617; In re
Quarles and Butler, 1895, 158 U.S. 532 , 15 S.Ct. 959; Motes v. United States, 1900, 178 U.S.
458 , 20 S.Ct. 993; United States v. Mosley, 1915, 238 U.S. 383 , 35 S.Ct. 904; United States v.
Morris, D.C.1903, 125 F. 322; United States v. Lackey, D. C.1900, 99 F. 952, reversed on other
grounds, 6 Cir., 107 F. 114, 53 L.R.A. 660, certiorari denied 181 U.S. 621 , 21 S.Ct. 925.
In United States v. Mosley, supra, as is noted in the text, the Court summarily disposed of the
question of validity, stating that the section's constitutionality 'is not open to question.' 238 U.S.
at page 386, 35 S.Ct. at page 905. Cf. note 17. The Court was concerned with implied repeal, but
stated: 'But 6 (the antecedent of 19 in the Enforcement Act) being devoted, as we have said, to
the protection of all Federal rights from conspiracies against them. ... Just as the 14th
Amendment ... was adopted with a view to the protection of the colored race, but has been found
to be equally important in its application to the rights of all, 6 had a general scope and used
general words that have become the most important. ... The section now begins with sweeping
general words. Those words always were in the act, and the present form gives them a
congressional interpretation. Even if that interpretation would not have been held correct in an
indictment under 6, which we are far from intimating, and if we cannot interpret the past by the
present, we cannot allow the past so far to affect the present as to deprive citizens of the United
States of the general protection which, on its face , 19 most reasonably affords.' 238 U.S. at
pages 387, 388, 35 S.Ct. at page 906. The dissenting opinion of Mr. Justice Lamar raised no
question of the section's validity. It maintained that Congress had not included or had removed
protection of voting rights from the section, leaving only civil rights within its coverage. 238
U.S. at page 390, 35 S.Ct. at page 907.
The cases holding that the Fourteenth Amendment and Section 19 do not apply to infractions of
constitutional rights involving no state action recognize and often affirm the section's
applicability to wrongful action by state officials which infringes them: United States v.
Cruickshank, 1876, 92 U.S. 542 ; Hodges v. United States, 1906, 203 U.S. 1 , 27 S.Ct. 6; United
States v. Powell, 1909, 212 U.S. 564 , 29 S. Ct. 690; see also, Id., C.C., 151 F. 648; Ex parte
Riggins, C.C.1904, 134 F. 404, dismissed 199 U.S. 547 , 26 S.Ct. 147; United States v. Sanges,
C.C.1891, 48 F. 78, writ of error dismissed 144 U.S. 310 , 12 S.Ct. 609; Powe v. United States, 5
Cir., 1940, 109 F.2d 147, certiorari denied, 309 U.S. 679 , 60 S.Ct. 717. See also United States v.
Hall, 1871, 26 Fed.Cas. page 79, No. 15,282; United States v. Mall, 1871, 26 Fed.Cas. page
1147, No. 15,712.
[ Footnote 23 ] Cf. the authorities cited in notes 22 and 25; United States v. Saylor, 322 U.S. 385
, 64 S.Ct. 1101.
[ Footnote 24 ] Sections 19 and 37 clearly overlap in condemning conspiracies to violate
constitutional rights. The latter, apparently has been more frequently used, at any rate recently,
when civil rather than political rights are involved. It goes without saying that in these cases
validity of the application of Section 37, charging conspiracy to violate Section 20, depends upon
the latter's validity in application to infraction of the rights charged to have been infringed.
[ Footnote 25 ] Recent examples involving these and other rights are: Culp v. United States, 8
Cir., 131 F.2d 93; Catlette v. United States, 4 Cir., 132 F.2d 902; United States v. Sutherland,
D.C., 37 F.Supp. 344; United States v. Trierweiler, D.C., 52 F.Supp. 4.
In the Culp case the court said: 'That this section ( 20) has not lost any of its vitality since it was
originally enacted, is indicated by ... United States v. Classic. ... It is our opinion that a state law
enforcement officer who, under color of state law, willfully and without cause, arrests and
imprisons an inhabitant of the United States for the purpose of extortion, deprives him of a right,
privilege, and immunity secured and protected by the Constitution of the United States, and
commits one of the offenses defined in 52.' 131 F.2d at page 98. Fourteenth Amendment rights
were involved also in the Catlette case; and in United States v. Trierweiler, supra, the court said:
'The congressional purpose, obviously, is to assure enjoyment of the rights of citizens defined by
the Fourteenth Amendment, including the mandate that no state shall deprive any person of life,
liberty, or property without due process of law ....' 52 F.Supp. at page 5.
United States v. Buntin, C.C., 10 F. 730, involved alleged discrimination for race in denying the
right to attend public school. In United States v. Chaplin, D.C., 54 F.Supp. 926, the court ruled
that a state judge, acting in his judicial capacity, is immune to prosecution under Section 37 for
violating Section 20. But cf. Ex parte Commonwealth of Virginia, 100 U.S. 339 .
[ Footnote 26 ] These have been the perennial objections, notwithstanding uniform rejection in
cases involving interference with both political and civil rights. Cf. the authorities cited in notes
7, 10, 22 and 25.
[ Footnote 27 ] Compare United States v. Chaplin, D.C., 54 F.Supp. 926 (see note 25, supra),
with Ex parte Commonwealth of Virginia, 100 U.S. 339 .
[ Footnote 28 ] Cf. United States v. Buntin, C.C., 10 F. 730. One is that the generality of the
section's terms simply has not worked out to be a hazard of unconstitutional, or even serious,
proportions. It has not proved a source of practical difficulty. In no other way can be explained
the paucity of the objection's appearance in the wealth of others made. If experience is the life of
the law, as has been said, this has been true pre-eminently in the application of Sections 19 and
20.
[ Footnote 29 ] Cf. authorities cited in notes 7, 10, 22 and 25.
[ Footnote 30 ] Cf. Part III.
[ Footnote 31 ] Compare the statutes upheld in Chaplinsky v. New Hampshire, 315 U.S. 568, 573
, 574 S., 62 S.Ct. 766, 770; Gorin v. United States, 312 U.S. 19 , 23-28, 61 S.Ct. 429, 432-434;
State of Minnesota v. Probate Court, 309 U.S. 270, 274 , 60 S.Ct. 523, 526, 126 A.L.R. 530; Old
Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 U.S. 183, 196 , 57 S.Ct. 139, 146,
106 A.L.R. 1476; Bandini Petroleum Co. v. Superior Court, 284 U.S. 8, 18 , 52 S.Ct. 103, 107,
78 A.L.R. 826; Whitney v. California, 274 U.S. 357, 360 , 368 S., 369, 47 S.Ct. 641, 645, 646;
Fox v. Washington, 236 U.S. 273, 277 , 278 S., 35 S.Ct. 383, 384; United States v. Keitel, 211
U.S. 370 , 393-395, 29 S.Ct. 123, 130, 131.
[ Footnote 32 ] I think all this would be implied if 'willfully' had not been added to Section 20 by
amendment. The addition but reinforces the original purpose. Cf. note 13 supra. Congress in this
legislation, hardly can be taken to have sought to punish merely negligent conduct or honest
error of judgment by state officials. The aim was at grosser violations of basic rights and the
supreme law. Sensible construction of the language, with other considerations, requires this
view. The consistent course of the section's application supports it.
[ Footnote 33 ] See Flack, Adoption of the Fourteenth Amendment (1908) 22-38; Cong. Globe,
39th Cong., 1st Sess., 474-607, 1151 ff.
Senator Davis of Kentucky said that 'this short bill repeals all the penal laws of the States. ... The
cases ... the ... bill would bring up every day in the United States would be as numerous as the
passing minutes. The result would be to utterly subvert our Government. ...' Cong. Globe, 39th
Cong., 1st Sess., 598.
[ Footnote 34 ] Cf. note 8.
[ Footnote 1 ] Iowa-Des Moines Nat. Bank v. Bennett, supra, illustrates the situation where there
can be no doubt that the action complained of was the action of a State. That case came here
from a State court as the ultimate voice of State law authenticating the alleged illegal action as
the law of the State. Cases of which Lane v. Wilson, 307 U.S. 268 , 59 S.Ct. 872, is an
illustration are also to be differentiated. In that case election officials discriminated illegally
against Negroes not in defiance of a State statute but under its authority.
XXXXXXXXX
XXXXXXXXX
U.S. Supreme Court
THOMAS v. COLLINS, 323 U.S. 516 (1945)
323 U.S. 516
THOMAS
v.
COLLINS, Sheriff.
No. 14.
Reargued Oct. 11, 1944.
Decided Jan. 8, 1945.
Rehearing Denied Jan. 29, 1945
See 323 U.S. 819 , 65 S.Ct. 557.
Appeal from the Supreme Court of Texas. [323 U.S. 516, 517] Mr. Lee Pressman, of Washington,
D.C., and Ernest Goodman, of Detroit, Mich., for appellant.
Mr. Fagan Dickson, of Austin, Tex., for appellee.
Mr. Alvin J. Rockwell, of Washington, D.C., for the United States, amicus curiae, by special
leave of Court.
[323 U.S. 516, 518]
Mr. Justice RUTLEDGE delivered the opinion of the Court.
The appeal is from a decision of the Supreme Court of Texas which denied appellant's petition
for a writ of habeas corpus and remanded him to the custody of appellee, as sheriff of Travis
County. 141 Tex. 591, 174 S.W.2d 958. In so deciding the court upheld, as against constitutional
and other objections, appellant's commitment for contempt for violating a temporary restraining
order issued by the District Court of Travis County. The order was issued ex parte and in terms
restrained appellant, while in Texas, from soliciting members for or memberships in specified
labor unions and others affiliated with the Congress of Industrial Organizations, without first
obtaining an organizer's card as required by House Bill No. 100, c. 104, General and Special
Laws of Texas, Regular Session, 48th Legislature 1943, Vernon's Ann.Civ.St. art. 5154a. After
the order was served appellant addressed a mass meeting of workers and at the end of his speech
asked persons present to join a union. For this he was held in contempt, fined and sentenced to a
short imprisonment.
The case has been twice argued here. Each time appellant has insisted, as he did in the state
courts, that the statute as it has been applied to him is in contravention of the Fourteenth
Amendment, as it incorporates the First, imposing a previous restraint upon the rights of freedom
of speech and free assembly, and denying him the equal protection of the laws. He urges also
that the application made of the statute is inconsistent with the provisions of the National Labor
Relations Act, 49 Stat. 449, 29 U.S.C.A. 151 et seq., and other objections which need not be
considered. For reasons to be stated we think the statute as it was applied in this case imposed
previous restraint upon appellant's rights of free speech and free assembly and the judgment must
be reversed. [323 U.S. 516, 519] The pertinent statutory provisions, Sections 5 and 12, are part of
Texas' comprehensive scheme for regulating labor unions and their activities. They are set forth
in the margin. 1 [323 U.S. 516, 520] I.
The facts are substantially undisputed. The appellant, Thomas, is the president of the
International Union U.A.W. (United Automobile, Aircraft and Agricultural Implements
Workers) and a vice president of the C.I.O. His duties are manifold, but in addition to executive
functions they include giving aid and direction in organizing campaigns and by his own
statement soliciting members, generally or in particular instances, for his organizations and their
affiliated unions. He receives a fixed annual salary as president of the U.A.W., resides in Detroit,
and travels widely through the nation in performing his work.
O.W.I.U. (Oil Workers Industrial Union), a C.I.O. affiliate, is the parent organization of many
local unions in Texas, having its principal office in Fort Worth. One of these is Local No. 1002,
with offices in Harris County and membership consisting largely of employees of the Humble
Oil & Refining Company's plant at Bay Town, Texas, not far from Houston. During and prior to
September, 1943, C.I.O. and O.W.I.U. were engaged in a campaign to organize the employees at
this plant into Local No. 1002, after an order previously made by the National Labor Relations
Board for the holding of an election. As part of the campaign a mass meeting was arranged for
the evening of September 23, under the [323 U.S. 516, 521] auspices of O.W.I.U., at the city hall in
Pelly, Harris County, near the Bay Town plant. Wide publicity was given to the meeting
beforehand. Arrangements were made for Thomas to come to Texas to address it and wide notice
was given to his announced intention of doing so.
Thomas arrived in Houston the evening of September 21. He testified without contradiction that
his only object in coming to Houston was to address this meeting, that he did not intend to
remain there afterward and that he had return rail reservations for leaving the state within two
days. At about 2:30 o'clock on the afternoon of Thursday, September 23, only some six hours
before he was scheduled to speak, Thomas was served with the restraining order and a copy of
the fiat.
These had been issued ex parte by the District Court of Travis County ( which sits at Austin, the
state capital, located about 170 miles from Houston) on the afternoon of September 22, in a
proceeding instituted pursuant to Section 12 by the State's attorney general. The petition for the
order shows on its face it was filed in anticipation of Thomas' scheduled speech. 2 And the terms
of the order show that it was issued in anticipation of the meeting and the speech. 3 [323 U.S. 516,
522] Upon receiving service, Thomas consulted his attorneys and determined to go ahead with
the meeting as planned. He did so because he regarded the law and the citation as a restraint
upon free speech and free assembly in so far as they prevented his making a speech or asking
someone to join a union without having a license or organizer's card at the time.
Accordingly, Thomas went to the meeting, arriving about 8:00 p.m., and, with other speakers,
including Massengale and Crossland, both union representatives, addressed an audience of some
300 persons. The meeting was orderly and peaceful. Thomas, in view of the unusual
circumstances, had prepared a manuscript originally intended, according to his statement, to
embody his entire address. He read the manuscript to the audience. It discussed, among other
things, the State's effort, as Thomas conceived it, to interfere with his right to speak and closed
with a general invitation to persons present not members of a labor union to join Local No. 1002
and thereby support the labor movement throughout the country. As written, the speech did not
address the invitation to any specific individual by name or otherwise. 4 But Thomas testified
that he added, at the conclusion of the written speech, an oral solicitation of one Pat [323 U.S. 516,
523] O'Sullivan, a nonunion man in the audience whom he previously had never seen. 5
After the meeting Thomas, with two of the other union speakers, was arrested and taken before a
justice of the peace. Complaints were filed in criminal proceedings, presumably pursuant to
Section 11. Thomas was released on bond, returned to his hotel, and the next morning left for
Dallas. There he learned an attachment for his arrest had been issued at Austin by the Travis
County District Court, pursuant to the attorney general's motion filed that morning in contempt
proceedings for violation of the temporary restraining order. 6
On the evening of September 24, Thomas went to Austin for the hearing upon the temporary
injunction set for the morning of the 25th. At this time he appeared and moved for dismissal of
the complaint, for dissolution of the temporary restraining order, and to quash the contempt
proceeding. The motions were denied and, after hearing, the court ordered the temporary
injunction to issue. It also rendered judgment holding Thomas in contempt for vio- [323 U.S. 516,
524] lating the restraining order and fixed the penalty at three days in jail and a fine of $100.
Process for commitment thereupon issued and was executed. Application to the supreme court
for the writ of habeas corpus was made and granted, the cause was set for hearing in October,
and Thomas was released on bond, all on September 25. Thereafter, an amended application in
habeas corpus was filed, hearing on the cause was had, judgment was rendered sustaining the
commitment, a motion for rehearing was overruled, and the present appeal was perfected.
Argument followed here at the close of the last term, with reargument at the beginning of the
present one to consider questions upon which we desired further discussion.
II.
The Supreme Court of Texas, deeming habeas corpus an appropriate method for challenging the
validity of the statute as applied,7 sustained the Act as a valid exercise of the State's police
power, taken 'for the protection of the general welfare of the public, and particularly the laboring
class,' (141 Tex. 591, 174 S.W.2d 961) with special reference to safeguarding laborers from
imposture when approached by an alleged organizer. The provision, it was said, 'affects only the
right of one to engage in the business as a paid organizer, and not the mere right of an individual
to express his views on the merits of the union.' The court declared the act 'does not require a
paid organizer to secure a license,' but makes mandatory the issuance of the card 'to all who
come within the provisions of the Act upon their [323 U.S. 516, 525] good-faith compliance
therewith.' Accordingly it held that the regulation was not unreasonable.
The court conceded however that the Act 'interferes to a certain extent with the right of the
organizer to speak as the paid representative of the union.' Nevertheless, it said, 'such
interferences are not necessarily prohibited by the Constitution. The State under its police power
may enact laws which interfere indirectly and to a limited extent with the right of speech or the
liberty of the people where they are reasonably necessary for the protection of the general
public.' Accordingly, it likened the instant prohibition to various other ones imposed by state or
federal legislation upon 'the right of one to operate or speak as the agent of another,' including
securities salesmen, insurance agents, real estate brokers, etc. And various decisions of this Court
and others8 were thought to support the conclusion that the Act 'imposes no previous general
restraint upon the right of free speech. ... It merely requires paid organizers to register with the
Secretary of State before beginning to operate as such.'
III.
Appellant first urges that the application of the statute amounted to the requirement of a license
'for the simple act of delivering an address to a group of workers.' He says the act penalized 'was
simply and solely the act of addressing the workers on the ... benefits of unionism, and
concluding the address with a plea to the audience generally and to a named worker in the
audience to join a union.' He points out that he did not parade on the streets, did not solicit or
receive funds, did not 'sign up' [323 U.S. 516, 526] workers,9 engaged in no disturbance or breach
of the peace, and that his sole purpose in going to Texas and his sole activity there were to make
the address including the invitations which he extended at the end. There is no evidence that he
solicited memberships or members for a union at any other time or occasion or intended to do so.
His position necessarily maintains that the right to make the speech includes the right to ask
members of the audience, both generally and by name, to join the union.
Appellant also urges more broadly that the statute is an invalid restraint upon free expression in
penalizing the mere asking a worker to join a union, without having procured the card, whether
the asking takes place in a public assembly or privately.
Texas, on the other hand, asserts no issue of free speech or free assembly is presented. With the
state court, it says the statute is directed at business practices, like selling insurance, dealing in
securities, acting as commission merchant, pawnbroking, etc., and was adopted 'in recognition of
the fact that something more is done by a labor organizer than talking.' 10
Alternatively, the State says, Section 5 would be valid if it were framed to include voluntary,
unpaid organizers and if no element of business were involved in the union's activity. The statute
'is a registration statute and nothing more,' and confers only 'ministerial and not discretionary
powers' upon the Secretary of State. The requirement accordingly is regarded as one merely for
previous identification, valid within the rule of City of Manchester v. [323 U.S. 516, 527] Leiby, 1
Cir., 117 F.2d 661, and the dictum of Cantwell v. Connecticut, 310 U.S. 296, 306 , 60 S.Ct. 900,
904, 128 A.L.R. 1352.11
In accordance with their different conceptions of the nature of the issues, the parties would apply
different standards for determining them. Appellant relies on the rule which requires a showing
of clear and present danger to sustain a restriction upon free speech or free assembly. 12 Texas,
consistently with its 'business practice' theory, says the appropriate standard is that applied under
the commerce clause to sustain the applications of State statutes regulating transportation made
in Hendrick v. Maryland, 235 U.S. 610 , 35 S.Ct. 140; Clark v. Paul Gray, Inc., 306 U.S. 583 , 59
S.Ct. 744; and State of California v. Thompson, 313 U.S. 109 , 61 S.Ct. 930.13 In short, the State
would apply a 'rational basis' test, [323 U.S. 516, 528] appellant one requiring a showing of 'clear
and present danger.'
Finally, as the case is presented here, Texas apparently would rest the validity of the judgment
exclusively upon the specific individual solicitation of O'Sullivan, and would throw out of
account the general invitation, made at the same time, to all nonunion workers in the audience.
14 However, the case cannot be disposed of on such a basis. The Texas Supreme Court made no
distinction between the general and the specific invitations. 15 Nor did the District Court. The
record shows that the restraining order was issued in explicit anticipation of the speech and to
restrain Thomas from uttering in its course any language which could be taken as solicitation. 16
The motion for the fiat in contempt was filed and the fiat itself was is- [323 U.S. 516, 529] sued on
account of both invitations. 17 The order adjudging Thomas in contempt was in general terms,
finding that he had violated the restraining order, without distinction between the solicitations set
forth in the petition and proved as violations. 18 The sentence was a single penalty. In this state
of the record it must be taken that the order followed the prayer of the motion and the fiat's
recital, and that the penalty was imposed on account of both invitations. The judgment therefore
must be affirmed as to both or as to neither. Cf. Williams v. North Carolina, 317 U.S. 287, 292 ,
63 S.Ct. 207, 210, 143 A.L.R. 1273; Stromberg v. California, 283 U.S. 359, 368 , 51 S.Ct. 532,
535, 73 A.L.R. 1484. And it follows that the statute, as it was applied, restrained and punished
Thomas for uttering, in the course of his address, the general as well as the specific invitation.
IV.
The case confronts us again with the duty our system places on this Court to say where the
individual's freedom ends and the State's power begins. Choice on that border, now as always
delicate, is perhaps more so where the [323 U.S. 516, 530] usual presumption supporting
legislation is balanced by the preferred place given in our scheme to the great, the indispensable
democratic freedoms secured by the First Amendment. Cf. Schneider v. State of New Jersey, 308
U.S. 147 , 60 S.Ct. 146; Cantwell v. Connecticut, 310 U.S. 296 , 60 S.Ct. 900, 128 A.L.R. 1352;
Prince v. Massachusetts, 321 U.S. 158 , 64 S.Ct. 438. That priority gives these liberties a sanctity
and a sanction not permitting dubious intrusions. And it is the character of the right, not of the
limitation, which determines what standard governs the choice. Compare United States v.
Carolene Products Co., 304 U.S. 144, 152 , 153 S., 58 S.Ct. 778, 783, 784.
For these reasons any attempt to restrict those liberties must be justified by clear public interest,
threatened not doubtfully or remotely, but by clear and present danger. 19 The rational
connection between the remedy provided and the evil to be curbed, which in other contexts
might support legislation against attack on due process grounds, will not suffice. These rights
rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and
persuasion, at appropriate time and place, must have clear support in public danger, actual or
impending. Only the gravest abuses, endangering paramount interests, give occasion for
permissible limitation. It is therefore in our tradition to allow the widest room for discussion, the
narrowest range for its restriction, particularly when this right is exercised in conjunction with
peaceable assembly. It was not by accident or coincidence that the rights to freedom in speech
and press were coupled in a single guaranty with the rights of the people peaceably to assemble
and to petition for redress of grievances. All these, though not identical, are inseparable. They
are cognate rights, cf. De Jonge v. Oregon, 299 U.S. 353, 364 , 57 S.Ct. 255, 259, and therefore
are united in the First Article's assurance. Cf. 1 Annals of Congress 759-760. [323 U.S. 516, 531]
This conjunction of liberties is not peculiar to religious activity and institutions alone. The First
Amendment gives freedom of mind the same security as freedom of conscience. Cf. Pierce v.
Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571, 39 A.L.R. 468; Meyer v. Nebraska, 262 U.S. 390
, 43 S.Ct. 625, 29 A.L.R. 1446; Prince v. Massachusetts, 321 U.S. 158 , 64 S.Ct. 438. Great
secular causes, with small ones, are guarded. The grievances for redress of which the right of
petition was insured, and with it the right of assembly, are not solely religious or political ones.
And the rights of free speech and a free press are not confined to any field of human interest.
The idea is not sound therefore that the First Amendment's safeguards are wholly inapplicable to
business or economic activity. And it does not resolve where the line shall be drawn in a
particular case merely to urge, as Texas does, that an organization for which the rights of free
speech and free assembly are claimed is one 'engaged in business activities' or that the individual
who leads it in exercising these rights receives compensation for doing so. Nor, on the other
hand, is the answer given, whether what is done is an exercise of those rights and the restriction a
forbidden impairment, by ignoring the organization's economic function, because those interests
of workingmen are involved or because they have the general liberties of the citizen, as appellant
would do.
These comparisons are at once too simple, too general, and too inaccurate to be determinative.
Where the line shall be placed in a particular application rests, not on such generalities, but on
the concrete clash of particular interests and the community's relative evaluation both of them
and of how the one will be affected by the specific restriction, the other by its absence. That
judgment in the first instance is for the legislative body. But in our system where the line can
constitutionally be placed presents a question this Court cannot escape answering independently,
whatever the legislative judgment, in the [323 U.S. 516, 532] light of our constitutional tradition.
Schneider v. State of New Jersey, 308 U.S. 147, 161 , 60 S.Ct. 146, 150. And the answer, under
that tradition, can be affirmative, to support an intrusion upon this domain, only if grave and
impending public danger requires this.
That the State has power to regulate labor unions with a view to protecting the public interest is,
as the Texas court said, hardly to be doubted. They cannot claim special immunity from
regulation. Such regulation however, whether aimed at fraud or other abuses, must not trespass
upon the domain set apart for free speech and free assembly. This Court has recognized that 'in
the circumstances of our times the dissemination of information concerning the facts of a labor
dispute must be regarded as within that area of free discussion that is guaranteed by the
Constitution. ... Free discussion concerning the conditions in industry and the causes of labor
disputes appears to us indispensable to the effective and intelligent use of the processes of
popular government to shape the destiny of modern industrial society.' Thornhill v. Alabama,
310 U.S. 88, 102 , 103 S., 60 S.Ct. 736, 744; Senn v. Tile Layers Protective Union, 301 U.S.
468, 478 , 57 S.Ct. 857, 862. The right thus to discuss, and inform people concerning, the
advantages and disadvantages of unions and joining them is protected not only as part of free
speech, but as part of free assembly. Hague v. Committee for Industrial Organization, 307 U.S.
496 , 59 S.Ct. 954. The Texas court, in its disposition of the cause, did not give sufficient weight
to this consideration, more particularly by its failure to take account of the blanketing effect of
the prohibition's present application upon public discussion and also of the bearing of the clear
and present danger test in these circumstances.
V.
In applying these principles to the facts of this case we put aside the broader contentions both
parties have made and confine our decision to the narrow question [323 U.S. 516, 533] whether the
application made of Section 5 in this case contravenes the First Amendment.
The present application does not involve the solicitation of funds or property. Neither Section 5
nor the restraining order purports to prohibit or regulate solicitation of funds, receipt of money,
its management, distribution, or any other financial matter. Other sections of the Act deal with
such things. 20 And on the record Thomas neither asked nor accepted funds or property for the
union at the time of his address or while he was in Texas. Neither did he 'take applications' for
membership, though he offered to do so 'if it was necessary'; or ask anyone to join a union at any
other time than the occasion of the Pelly mass meeting and in the course of his address.
Thomas went to Texas for one purpose and one only-to make the speech in question. Its whole
object was publicly to proclaim the advantages of workers' organization and to persuade
workmen to join Local No. 1002 as part of a campaign for members. These also were the sole
objects of the meeting. The campaign, and the meeting, were incidents of an impending election
for collective bargaining agent, previously ordered by national authority pursuant to the
guaranties of national law. Those guaranties include the workers' right to organize freely for
collective bargaining. And this comprehends whatever may be appropriate and lawful to
accomplish and maintain such organization. It included, in this case, the right to designate Local
No. 1002 or any other union or agency as [323 U.S. 516, 534] the employees' representative. It
included their right fully and freely to discuss and be informed concerning this choice, privately
or in public assembly. Necessarily correlative was the right of the union, its members and
officials, whether residents or nonresidents of Texas and, if the latter, whether there for a single
occasion or sojourning longer, to discuss with and inform the employees concerning matters
involved in their choice. These rights of assembly and discussion are protected by the First
Amendment. Whatever would restrict them, without sufficient occasion, would infringe its
safeguards. The occasion was clearly protected. The speech was an essential part of the occasion,
unless all meaning and purpose were to be taken from it. And the invitations, both general and
particular, were parts of the speech, inseparable incidents of the occasion and of all that was said
or done.
That there was restriction upon Thomas' right to speak and the rights of the workers to hear what
he had to say, there can be no doubt. The threat of the restraining order, backed by the power of
contempt, and of arrest for crime, hung over every word. A speaker in such circumstances could
avoid the words 'solicit,' 'invite,' 'join.' It would be impossible to avoid the idea. The statute
requires no specific formula. It is not contended that only the use of the word 'solicit' would
violate the prohibition. Without such a limitation, the statute forbids any language which
conveys, or reasonably could be found to convey, the meaning of invitation. That Thomas chose
to meet the issue squarely, not to hide in ambiguous phrasing, does not counteract this fact.
General words create different and often particular impressions on different minds. No speaker,
however careful, can convey exactly his meaning, or the same meaning, to the different members
of an audience. How one might 'laud unionism,' as the State and the State Supreme Court
concede Thomas was free to do, yet in these circumstances not imply an invitation, [323 U.S. 516,
535] is hard to conceive. This is the nub of the case, which the State fails to meet because it
cannot do so. Workingmen do not lack capacity for making rational connections. They would
understand, or some would, that the president of U.A.W. and vice president of C.I.O., addressing
an organization meeting, was not urging merely a philosophic attachment to abstract principles
of unionism, disconnected from the business immediately at hand. The feat would be incredible
for a national leader, addressing such a meeting, lauding unions and their principles, urging
adherence to union philosophy, not also and thereby to suggest attachment to the union by
becoming a member.
Furthermore, whether words intended and designed to fall short of invitation would miss that
mark is a question both of intent and of effect. No speaker, in such circumstances, safely could
assume that anything he might say upon the general subject would not be understood by some as
an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general
advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the
varied understanding of his hearers and consequently of whatever inference may be drawn as to
his intent and meaning.
Such a distinction offers no security for free discussion. In these conditions it blankets with
uncertainty whatever may be said. It compels the speaker to hedge and trim. He must take care in
every word to create no impression that he means, in advocating unionism's most central
principle, namely, that workingmen should unite for collective bargaining, to urge those present
to do so. The vice is not merely that invitation, in the circumstances shown here, is speech. It is
also that its prohibition forbids or restrains discussion which is not or may not be invitation. The
sharp line cannot be drawn surely or securely. The effort to observe it could not be free speech,
free press, [323 U.S. 516, 536] or free assembly, in any sense of free advocacy of principle or
cause. The restriction's effect, as applied, in a very practical sense was to prohibit Thomas not
only to solicit members and memberships, but also to speak in advocacy of the cause of trade
unionism in Texas, without having first procured the card. Thomas knew this and faced the
alternatives it presented. When served with the order he had three choices: (1) To stand on his
right and speak freely; (2) to quit, refusing entirely to speak; (3) to trim, and even thus to risk the
penalty. He chose the first alternative. We think he was within his rights in doing so.
The assembly was entirely peaceable, and had no other than a wholly lawful purpose. The
statements forbidden were not in themselves unlawful, had no tendency to incite to unlawful
action, involved no element of clear and present, grave and immediate danger to the public
welfare. Moreover, the State has shown no justification for placing restrictions on the use of the
word 'solicit.' We have here nothing comparable to the case where use of the word 'fire' in a
crowded theater creates a clear and present danger which the State may undertake to avoid or
against which it may protect. Schenck v. United States, 249 U.S. 47 , 39 S.Ct. 247. We cannot
say that 'solicit' in this setting is such a dangerous word. So far as free speech alone is concerned,
there can be no ban or restriction or burden placed on the use of such a word except on showing
of exceptional circumstances where the public safety, morality or health is involved or some
other substantial interest of the community is at stake.
If therefore use of the word or language equivalent in meaning was illegal here, it was so only
because the statute and the order forbade the particular speaker to utter it. When legislation or its
application can confine labor leaders on such occasions to innocuous and abstract discussion of
the virtues of trade unions and so becloud even this [323 U.S. 516, 537] with doubt, uncertainty
and the risk of penalty, freedom of speech for them will be at an end. A restriction so destructive
of the right of public discussion, without greater or more imminent danger to the public interest
than existed in this case, is incompatible with the freedoms secured by the First Amendment.
We do not mean to say there is not, in many circumstances, a difference between urging a course
of action and merely giving and acquiring information. On the other hand, history has not been
without periods when the search for knowledge alone was banned. Of this we may assume the
men who wrote the Bill of Rights were aware. But the protection they sought was not solely for
persons in intellectual pursuits. It extends to more than abstract discussion, unrelated to action.
The First Amendment is a charter for government, not for an institution of learning. 'Free trade in
ideas' means free trade in the opportunity to persuade to action, not merely to describe facts. Cf.
Abrams v. United States, 250 U.S. 616, 624 , 40 S.Ct. 17, 20, and Gitlow v. New York, 268 U.S.
652, 672 , 45 S.Ct. 625, 632, dissenting opinions of Mr. Justice Holmes. Indeed, the whole
history of the problem shows it is to the end of preventing action that repression is primarily
directed and to preserving the right to urge it that the protections are given.
Accordingly, decision here has recognized that employers' attempts to persuade to action with
respect to joining or not joining unions are within the First Amendment's guaranty. National
Labor Relations Board v. Virginia Electric & Power Co., 314 U.S. 469 , 62 S.Ct. 344. Decisions
of other courts have done likewise. 21 When to this persuasion other things are added which
bring about coercion, or give it that character, the [323 U.S. 516, 538] limit of the right has been
passed. 22 Cf. National Labor Relations Board v. Virginia Electric & Power Co., supra. But
short of that limit the employer's freedom cannot be impaired. The Constitution protects no less
the employees' converse right. Of course espousal of the cause of labor is entitled to no higher
constitutional protection than the espousal of any other lawful cause. It is entitled to the same
protection.
VI.
Apart from its 'business practice' theory, the State contends that Section 5 is not inconsistent with
freedom of speech and assembly, since this is merely a previous identification requirement
which, according to the State court's decision, gives the Secretary of State only 'ministerial, not
discretionary' authority.
How far the State can require previous identification by one who undertakes to exercise the
rights secured by the First Amendment has been largely undetermined. It has arisen here chiefly,
though only tangentally, in connection with license requirements involving the solicitation of
funds, Cantwell v. Connecticut, supra; cf. Schneider v. State, 308 U.S. 147 , 60 S.Ct. 146;
Largent v. Texas, 318 U.S. 418 , 63 S.Ct. 667, and other activities upon the public streets or in
public places, cf. Lovell v. Griffin, 303 U.S. 444 , 58 S.Ct. 666; Hague v. Committee for
Industrial Organization, 307 U.S. 496 , 59 S.Ct. 954, or house-to-house canvassing, cf. Schneider
v. State, supra. In these cases, however, the license requirements were for more than mere
identification or previous registration and were held invalid because they vested discretion in the
issuing authorities to censor the activity involved. Nevertheless, it was indicated by [323 U.S. 516,
539] dictum in Cantwell v. Connecticut, 310 U.S. 296, 306 , 60 S.Ct. 900, 904, 128 A.L.R.
1352,23 that a statute going no further than merely to require previous identification would be
sustained in respect to the activities mentioned. Although those activities are not involved in this
case, that dictum and the decision in People of State of New York ex rel. Bryant v. Zimmerman,
278 U.S. 63 , 49 S.Ct. 61, 62 A.L.R. 785, furnish perhaps the instances of pronouncement or
decision here nearest this phase of the question now presented.
As a matter of principle a requirement of registration in order to make a public speech would
seem generally incompatible with an exercise of the rights of free speech and free assembly.
Lawful public assemblies, involving no element of grave and immediate danger to an interest the
state is entitled to protect, are not instruments of harm which require previous identification of
the speakers. And the right either of workmen or of unions under these conditions to assemble
and discuss their own affairs is as fully protected by the Constitution as the right of businessmen,
farmers, educators, political party members or others to assemble and discuss their affairs and to
enlist the support of others.
We think the controlling principle is stated in De Jonge v. Oregon, 299 U.S. 353, 365 , 57 S.Ct.
255, 260. In that case this Court held that 'consistently with the Federal Constitution, peaceable
assembly for lawful discussion cannot be made a crime.' And 'those who assist in the conduct of
such meetings cannot be branded as criminals on that score. The question, if the rights of free
speech and peaceable assembly are to be preserved, is not as to the auspices under which the
meeting is held but as to its purpose; not as to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom of speech which the Constitution protects. If the
persons assembling have committed crimes elsewhere, if they have formed or are [323 U.S. 516,
540] engaged in a conspiracy against the public peace and order, they may be prosecuted for
their conspiracy or other violation of valid laws. But it is a different matter when the State,
instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable
assembly and a lawful public discussion as the basis for a criminal charge.'
If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not
think this can be accomplished by the device of requiring previous registration as a condition for
exercising them and making such a condition the foundation for restraining in advance their
exercise and for imposing a penalty for violating such a restraining order. So long as no more is
involved than exercise of the rights of free speech and free assembly, it is immune to such a
restriction. If one who solicits support for the cause of labor may be required to register as a
condition to the exercise of his right to make a public speech, so may he who seeks to rally
support for any social, business, religious or political cause. We think a requirement that one
must register before he undertakes to make a public speech to enlist support for a lawful
movement is quite incompatible with the requirements of the First Amendment.
Once the speaker goes further, however, and engages in conduct which amounts to more than the
right of free discussion comprehends, as when he undertakes the collection of funds or securing
subscriptions, he enters a realm where a reasonable registration or identification requirement
may be imposed. In that context such solicitation would be quite different from the solicitation
involved here. It would be free speech plus conduct akin to the activities which were present, and
which it was said the State might regulate, in Schneider v. State, supra, and Cantwell v.
Connecticut, supra. That however must be [323 U.S. 516, 541] done, and the restriction applied, in
such a manner as not to intrude upon the rights of free speech and free assembly. In this case the
separation was not maintained. If what Thomas did, in soliciting Pat O'Sullivan, was subject to
such a restriction, as to which we express no opinion, that act was intertwined with the speech
and the general invitation in the penalty which was imposed for violating the restraining order.
Since the penalty must be taken to have rested as much on the speech and the general invitation
as on the specific one, and the former clearly were immune, the judgment cannot stand.
As we think the requirement of registration, in the present circumstances, was in itself an invalid
restriction, we have no occasion to consider whether the restraint as imposed goes beyond
merely requiring previous identification or registration. 24 Nor do we undertake to determine
the validity of Section 5 in any other application than that made upon the facts
of this case. Neither do we ground our decision upon other contentions advanced in the briefs
and argument. Upon the reargument attention was given particularly to the questions whether
and to what extent the prohibitions of Section 5, or their application in this case, are consistent
with the provisions of the National Labor Relations Act. Both the parties and the Government,
which has appeared as amicus curiae, have advanced contentions on this issue independent of
those put forward upon the question of constitutionality. Since a majority of the Court do not
agree that Section 5 or its present application conflicts with the National Labor Relations Act,
our decision rests exclusively upon the grounds we have stated for finding that the statute as
applied contravenes the Constitution. [323 U.S. 516, 543] The restraint is not small when it is
considered what was restrained. The right is a national right, federally guaranteed. There is some
modicum of freedom of thought, speech and assembly which all citizens of the Republic may
exercise throughout its length and breadth, which no State, nor all together, nor the Nation itself,
can prohibit, restrain or impede. If the restraint were smaller than it is, it is from petty tyrannies
that large ones take root and grow. This fact can be no more plain than when they are imposed on
the most basic rights of all. Seedlings planted in that soil grow great and, growing, break down
the foundations of liberty.
[323 U.S. 516, 542]
In view of the disposition we make of the cause, it is unnecessary to rule upon the motion
appellee has filed to require appellant to furnish security for his appearance to serve the sentence.
The judgment is
REVERSED.
Mr. Justice DOUGLAS, concurring.
The intimation that the principle announced in this case serves labor alone and not an employer
has been adequately answered in the opinion of the Court in which I join. But the emphasis of
such cases as National Labor Relations Board v. Virginia Electric & Power Co., 314 U.S. 469 ,
62 S. Ct. 344, and Virginia Electric & Power Co. v. National Labor Relations Board, 319 U.S.
533 , 63 S.Ct. 1214, to prove that discrimination exists moves me to add these words. Those
cases would be relevant here if we were dealing with legislation which regulated the relations
between unions and their members. Cf. Steele v. Louisville & Nashville Railroad Co., 323 U.S
192, 65 S.Ct. 226. No one may be required to obtain a license in order to speak. But once he uses
the economic power which he has over other men and their jobs to influence their action, he is
doing more than exercising the freedom of speech protected by the First Amend- [323 U.S. 516,
544] ment. That is true whether he be an employer or an employee. But as long as he does no
more than speak he has the same unfettered right, no matter what side of an issue he espouses.
Mr. Justice BLACK and Mr. Justice MURPHY join in this opinion.
Mr. Justice JACKSON, concurring.
As frequently is the case, this controversy is determined as soon as it is decided which of two
well-established, but at times overlapping, constitutional principles will be applied to it. The
State of Texas stands on its well-settled right reasonably to regulate the pursuit of a vocation,
including-we may assume-the occupation of labor organizer. Thomas, on the other hand, stands
on the equally clear proposition that Texas may not interfere with the right of any person
peaceably and freely to address a lawful assemblage of workmen intent on considering labor
grievances.
Though the one may shade into the other, a rough distinction always exists, I think, which is
more shortly illustrated than explained. A state may forbid one without its license to practice law
as a vocation, but I think it could not stop an unlicensed person from making a speech about the
rights of man or the rights of labor, or any other kind of right, including recommending that his
hearers organize to support his views. Likewise, the state may prohibit the pursuit of medicine as
an occupation without its license but I do not think it could make it a crime publicly or privately
to speak urging persons to follow or reject any school of medical thought. So the state to an
extent not necessary now to determine may regulate one who makes a business or a livelihood of
soliciting funds or memberships for unions. But I do not think it can prohibit one, [323 U.S. 516,
545] even if he is a salaried labor leader, from making an address to a public meeting of
workmen, telling them their rights as he sees them and urging them to unite in general or to join
a specific union.
This wider range of power over pursuit of a calling than over speech- making is due to the
different effects which the two have on interests which the state is empowered to protect. The
modern state owes and attempts to perform a duty to protect the public from those who seek for
one purpose or another to obtain its money. When one does so through the practice of a calling,
the state may have an interest in shielding the public against the untrustworthy, the incompetent,
or the irresponsible, or against unauthorized representation of agency. A usual method of
performing this function is through a licensing system.
But it cannot be the duty, because it is not the right, of the state to protect the public against false
doctrine. The very purpose of the First Amendment is to foreclose public authority from
assuming a guardianship of the public mind through regulating the press, speech, and religion. In
this field every person must be his own watchman for truth, because the forefathers did not trust
any government to separate the true from the false for us. West Virginia State Board of
Education v. Barnette, 319 U.S. 624 , 63 S.Ct. 1178. Nor would I. Very many are the interests
which the state may protect against the practice of an occupation, very few are those it may
assume to protect against the practice of propagandizing by speech or press. These are thereby
left great range of freedom.
This liberty was not protected because the forefathers expected its use would always be
agreeable to those in authority or that its exercise always would be wise, temperate, or useful to
society. As I read their intentions, this liberty was protected because they knew of no other [323
U.S. 516, 546] way by which free men could conduct representative democracy. 1
The necessity for choosing collective bargaining representatives brings the same nature of
problem to groups of organizing workmen that our representative democratic processes bring to
the nation. Their smaller society, too, must choose between rival leaders and competing policies.
This should not be an underground process. The union of which Thomas is the head was one of
the choices offered to these workers, and to me it was in the best American tradition that they
hired a hall and advertised a meeting, and that Thomas went there and publicly faced his labor
constituents. How better could these men learn what they might be getting into? By his public
appearance and speech he would disclose himself as a temperate man or a violent one, a
reasonable leader that well-disposed workmen could follow or an irresponsible one from whom
they might expect disappointment, an earnest and understanding leader or a self-seeker. If free
speech anywhere serves a useful social purpose, to be jealously guarded, I should think it would
be in such a relationship.
But it is said that Thomas urged and invited one and all to join his union, and so he did. This, it is
said, makes the speech something else than a speech; it has been found [323 U.S. 516, 547] by the
Texas courts to be a 'solicitation' and therefore its immunity from state regulation is held to be
lost. It is not often in this country that we now meet with direct and candid efforts to stop
speaking or publication as such. Modern inroads on these rights come from associating the
speaking with some other factor which the state may regulate so as to bring the whole within
official control. Here, speech admittedly otherwise beyond the reach of the states is attempted to
be brought within its licensing system by associating it with 'solicitation.' Speech of employers
otherwise beyond reach of the Federal Government is brought within the Labor Board's power to
suppress by associating it with 'coercion' or 'domination.' Speech of political malcontents is
sought to be reached by associating it with some variety of 'sedition.' Whether in a particular case
the association or characterization is a proven and valid one often is difficult to resolve. If this
Court may not or does not in proper cases inquire whether speech or publication is properly
condemned by association, its claim to guardianship of free speech and press is but a hollow one.
Free speech on both sides and for every faction on any side of the labor relation is to me a
constitutional and useful right. Labor is free to turn its publicity on any labor oppression,
substandard wages, employer unfairness, or objectionable working conditions. The employer,
too, should be free to answer, and to turn publicity on the records of the leaders or the unions
which seek the confidence of his men. And if the employees or organizers associate violence or
other offense against the laws with labor's free speech, or if the employer's speech is associated
with discriminatory discharges or intimidation, the constitutional remedy would be to stop the
evil, but permit the speech, if the two are separable; and only rarely and when they are
inseparable to stop or punish speech or publication. [323 U.S. 516, 548] But I must admit that in
overriding the findings of the Texas court we are applying to Thomas a rule the benefit of which
in all its breadth and vigor this Court denies to employers in National Labor Relations Board
cases. Cf. National Labor Relations Board v. Virginia Electric & Power Co., 314 U.S. 469, 479 ,
62 S.Ct. 344, 349; Virginia Electric & Power Co. v. National Labor Relations Board, 319 U.S.
533 , 63 S.Ct. 1214; National Labor Relations Board v. Trojan Powder Co., 3 Cir., 135 F.2d 337,
certiorari denied, 320 U.S. 768 , 64 S.Ct. 76; National Labor Relations Board v. American Tube
Bending Co., 2 Cir., 134 F.2d 993, certiorari denied, 320 U.S. 768 , 64 S.Ct. 84; Elastic Stop Nut
Corp. v. National Labor Relations Board, 8 Cir., 142 F.2d 371, certiorari denied October 9, 1944,
323 U.S. 722 , 65 S.Ct. 55. However, the remedy is not to allow Texas improperly to deny the
right of free speech but to apply the same rule and spirit to free speech cases whoever the
speaker.
I concur in the opinion of Mr. Justice RUTLEDGE that this case falls in the category of a public
speech, rather than that of practicing a vocation as solicitor. Texas did not wait to see what
Thomas would say or do. I cannot escape the impression that the injunction sought before he had
reached the state was an effort to forestall him from speaking at all and that the contempt is
based in part at least on the fact that he did make a public labor speech.
I concur in reversing the judgment.
Mr. Justice ROBERTS.
The right to express thoughts freely and to disseminate ideas fully is secured by the Constitution
as basic to the conception of our government. A long series of cases has applied these
fundamental rights in a great variety of circumstances. 1 Not until today, however, has it been
ques- [323 U.S. 516, 549] tioned that there was any clash between this right to think one's thoughts
and to express them and the right of people to the protected in their dealings with those who hold
themselves out in some professional capacity by requiring registration of those who profess to
pursue such callings. Doctors and nurses, lawyers and notaries, bankers and accountants,
insurance agents and solicitors of every kind in every State of this Union have traditionally been
under duty to make some identification of themselves as practitioners of their calling. The
question before us is as to the power of Texas to call for such registration within limits precisely
defined by the Supreme Court of that State in sustaining the statute now challenged. The most
accurate way to state the issue is to quote the construction which that Court placed upon the
Texas statute and the exact limits of its requirement:
'A careful reading of the section of the law here under consideration will disclose that it
does not interfere with the right of the individual lay members of unions to solicit others
to join their organization. It does not affect them at all. It applies only to those organizers
who for a pecuniary or financial consideration solicit such membership. It affects only the
right of one to engage in the business as a paid organizer, and not the mere right of an
individual to express his views on the merits of the union. Furthermore, it will be noted
that the Act does not require a paid organizer to secure a license, but merely requires him
to register and identify himself and the union for which he proposes to operate before
being permitted [323 U.S. 516, 550] to solicit members for such union. The act confers no
unbridled discretion on the Secretary of State to grant or withhold a registration card at
his will, but makes it his mandatory duty to accept the registration and issue the card to
all who come within the provisions of the Act upon their good- faith compliance
therewith.' (141 Tex. 591, 174 S.W.2d 958, 961.)
The record discloses that Texas, in the exercise of her police power, has adopted a statute
regulating labor unions. With many of its provisions we are not presently concerned. The
constitutional validity of but a single section is drawn in question. That section requires every
'labor union organizer' (defined by the Act as a person 'who for a pecuniary or financial
consideration solicits memberships in a labor union or members for a labor union') to request, in
writing, of the Secretary of State, or personally to apply to the Secretary for an 'organizer's card',
before soliciting members for his organization, and to give his name, his union affiliation, and
his union credentials. 2 The Secretary is then to issue to him a card showing his name and
affiliation, which is to be signed by him and also signed and sealed by the Secretary of State, and
is to bear the designation 'labor organizer.' It is made the duty of the organizer to carry the card
and, on request, to exhibit it to any person he solicits.
The Act makes violation the basis of criminal prosecution and authorizes injunctions to prevent
threatened disregard of its provisions. In this instance both procedures were followed, but there is
before us only the validity of an injunction and the sanction imposed for refusal to obey it. [323
U.S. 516, 551] As always, it is important to reach the precise question presented. One path to this
end is to note what is not involved.
First, no point is made of the circumstance that the appellant's proposed activity was enjoined in
advance. Counsel at our bar asserted the constitutional vice lay in the prohibition of the statute
and that vice would preclude arrest and conviction for violation, no less than injunction against
the denounced activity.
Secondly, the appellant does not contend that he was other than a 'labor organizer' within the
meaning of the Act. In fact he is an officer of a union and not employed specifically as an
organizer or solicitor of memberships. He might well have questioned the application of the law
to him, or to a public address made by him in his official capacity, but he refrained, obviously
because he wished to test the Act's validity and so, in effect, stipulated that its sweep included
him, and his conduct on the occasion in question.
Thirdly, the appellant does not contend that, in attempting to identify solicitors and preclude
solicitation without identification, the statute either in terms, or as construed and applied, reaches
over into the realm of public assembly, of public speaking, of argument or persuasion. Aware
that the state proposed to invoke the statute against him, he made sure that the bare right he
asserted to solicit without compliance with its requirement should not be clouded by confusion of
that right with the others mentioned. In his address, therefore, he was at pains to state that he
then and there solicited members of the audience to join a named union; and to make assurance
of violation doubly sure, he solicited a man by name and offered him a membership application,
which the man then and there signed.
Fourthly, the Act and the injunction which he disobeyed say nothing of speech; they are aimed at
a trans- [323 U.S. 516, 552] action-that of solicitation of members for a union. This, and this only,
is the statutory object which is said to render it unconstitutional.
We are now in a position accurately to state the appellant's contention. He asserts that, under the
Constitutional guarantees, there is a sharp distinction between business rights and civil rights;
that in discussion of labor problems, and equally in solicitation of union membership, civil rights
are exercised; that labor organizations are the only effective means whereby employes may
exercise the guaranteed civil rights, and that, consequently, any interference with the right to
solicit membership in such organizations is a prohibited abridgment of these rights, even though
the Act applies only to paid organizers.
The argument then seeks to drawn a distinction between this case and those in which we have
sustained registration of persons who desire to use the streets or to solicit funds; urges that the
burden the Act lays on labor organizations is substantial and seriously hampering and is not
intended to prevent any 'clear and present danger' to the State.
Stripped to its bare bones, this argument is that labor organizations are beneficial and lawful; that
solicitation of members by and for them is a necessary incident of their progress; that freedom to
solicit for them is a liberty of speech protected against state action by the Fourteenth Amendment
and the National Labor Relations Act, and hence Texas cannot require a paid solicitor to identify
himself. I think this is the issue and the only issue presented to the courts below and decided by
them, and the only one raised here. The opinion of the court imports into the case elements on
which counsel for appellant did not rely; elements which in fact counsel strove to eliminate in
order to come at the fundamental challenge to any requirement of identification of a labor
organizer. [323 U.S. 516, 553] The position taken in the court's opinion that in some way the
statute interferes with the right to address a meeting, to speak in favor of a labor union, to
persuade one's fellows to join a union, or that at least its application in this case does, or may,
accomplish that end is, in my judgment, without support in the record.
We must bear in mind that the appellant himself was persuaded that merely to make the speech
he had come to Texas to deliver would not violate the Act, and that he, therefore, determined, in
order to preclude all doubt as to violation, to solicit those present to join the union. And, for the
same purpose, he further specifically solicited an individual.
He had not been enjoined from making a speech, nor from advocating union affiliation. The
unjunction, in terms, forbade 'soliciting membership in Local Union No. 1002' or 'memberships
in any other labor union' without first obtaining a card. The information on which the citation for
contempt was based charged (1) that he solicited Pat O'Sullivan to join a local union on
September 23; (2) that on the same day he openly and publicly solicited an audience of some
three hundred persons to join the Oil Workers International Union. The uncontradicted evidence
is that, with application blanks in his hand, he said: 'I earnestly urge and solicit all of you that are
not members of your local union to join your local unions. I do that in the capacity of VicePresident of C.I.O.'
The text of the speech put in evidence by the appellant does not differ materially. It runs: 'as
Vice-President of the C.I.O. and as a union man, I earnestly ask those of you who are not now
members of the Oil Workers International Union to join now. I solicit you to become a member
of the union of your fellow workers.'
The judgment in the contempt proceeding states only that the court 'finds that the defendant ...
did ... [323 U.S. 516, 554] violate this court's temporary restraining order heretofore issued
injoining and restraining him, the said R. J. Thomas, from soliciting members to join the Oil
Workers International Union.'
In his petition to the State Supreme Court for habeas corpus, the appellant did not suggest that,
under the guise of preventing him from soliciting, he was held in contempt for making an
address. The opinion of that court states that the complaint charged appellant with engaging 'in
soliciting members for a certain labor union'; with violating the injunction issued 'by soliciting
members for said union'; and adds: 'Relator's counsel in his argument before this Court conceded
the existence of necessary factual basis for the judgment in the contempt proceedings.' (Italics
supplied.) Thus it appears that below, as here, the challenge was not against the form or content
of the pleadings or the order; not that Texas was trying to enjoin appellant from making a speech,
but that it could not regulate solicitation.
In construing the statute, the court below said: 'It applies only to those organizers who for a
pecuniary or financial consideration solicit such membership.' Thus it excluded all questions as
to the right of speech and assembly as such.
In his motion for a rehearing below, the appellant advanced no contention that the judgment was
directed at his speech as such.
In his statement as to jurisdiction filed in this court he said: 'Appellant delivered his speech to the
meeting attended largely by workers of the Humble Oil Company and solicited the audience in
general and one Pat O'Sullivan in particular to join the Oil Workers International Union.' ( Italics
supplied.)
In his statement of points to be relied on in this court, he stated he would urge that the Act is
unconstitutional because it 'imposes a previous general restraint upon the [323 U.S. 516, 555]
exercise of Appellant's right of free speech by prohibiting Appellant from soliciting workers to
join a union', without obtaining an organizer's card. And again that it violates other
Constitutional provisions 'in requiring Appellant to obtain a license (organizer's card) before
soliciting workers to join a union.' (Italics supplied.)
Nowhere in the document is there any suggestion that the statute is intended, or has been applied,
to restrain or restrict the freedom to speak, save only as speech is an integral part of the
transaction of paid solicitation of men to join a union.
Since its requirements are not obviously burdensome, we cannot void the statute as an
unnecessary or excessive exercise of the State's police power on any a priori reasoning. The State
Supreme Court has found that conditions exist in Texas which justify and require such
identification of paid organizers as the law prescribes. There is not a word of evidence in the
record to contradict these conclusions. In the absence of a showing against the need for the
statute this court ought not incontinently to reject the State's considered views of policy.
The judgment of the court below that the power exists reasonably to regulate solicitation, and
that the exercise of the power by the Act in question is not unnecessarily burdensome, is not to
be rejected on abstract grounds. No fee is charged. The card may be obtained by mail. To comply
with the law the appellant need only have furnished his name and affiliation, and his credentials.
The statute nowise regulates, curtails, or bans his activities.
We are asked then, on this record, to hold, without evidence to support such a conclusion, and as
a matter of judicial notice, that Texas, has no bona fide interest to warrant her law makers in
requiring that one who engages, for pay, in the business of soliciting persons to join unions shall
identify himself as such. That is all the law requires. [323 U.S. 516, 556] We should face a very
different question if the statute attempted to define the necessary qualifications of an organizer;
purported to regulate what organizers might say; limited their movements or activities; essayed
to regulate time, place or purpose of meetings; or restricted speakers in the expression of views.
But it does none of these things.
It is suggested that the Act is to be distinguished from legislation regulating the use of the streets
or the solicitation of money. As respects the former, I think our decision in Cox v. New
Hampshire, 312 U.S. 569 , 61 S.Ct. 762, 133 A.L.R. 1396, and that of the Circuit Court of
Appeals in City of Manchester v. Leiby, 1 Cir., 117 F.2d 661 are indistinguishable in principle,
and the court below properly so held. If one disseminating news for his own profit may rightfully
be required to identify himself, so may one who, for profit, solicits persons to join an
organization.
As respects the second, I see no reason to limit what was said in Cantwell v. Connecticut, 310
U.S. 296, 305 , 60 S.Ct. 900, 904, 128 A.L.R. 1352, to solicitation of money. The solicitation at
which the Texas Act is aimed may or may not involve the payment of initiation fees or dues to
the solicitor. But, in any case, it involves the assumption of business and financial liability by
him who is persuaded to join a union. The transaction is in essence a business one. Labor unions
are business associations; their object is generally business dealings and relationships as is
manifest from the financial statements of some of the national unions. Men are persuaded to join
them for business reasons, as employers are persuaded to join trade associations for like reasons.
Other paid organizers, whether for business or for charity, could be required to identify
themselves. There is no reason why labor organizers should not to likewise. I think that if anyone
pursues solicitation as a business for profit, of members for any organization, religious, secular
or business, his calling does not bar the state from [323 U.S. 516, 557] requiring him to identify
himself as what he is,-a paid solicitor.
We may deem the statutory provision under review unnecessary or unwise, but it is not our
function as judges to read our views of policy into a Constitutional guarantee, in order to
overthrow a state policy we do not personally approve, by denominating that policy a violation
of the liberty of speech. The judgment should be affirmed.
The CHIEF JUSTICE, Mr. Justice REED and Mr. Justice FRANKFURTER join in this opinion.
Footnotes
[ Footnote 1 ] Sec. 5. 'All labor union organizers operating in the State of Texas shall be required
to file with the Secretary of State, before soliciting any members for his organization, a written
request by United States mail, or shall apply in person for an organizer's card, stating (a) his
name in full; (b) his labor union affiliations, if any; (c) describing his credentials and attaching
thereto a copy thereof, which application shall be signed by him. Upon such applications being
filed, the Secretary of State shall issue to the applicant a card on which shall appear the
following: (1) the applicant's name; (2) his union affiliation; (3) a space for his personal
signature; (4) a designation, 'labor organizer'; and, (5) the signature of the Secretary of State,
dated and attested by his seal of office. Such organizer shall at all times, when soliciting
members, carry such card, and shall exhibit the same when requested to do so by a person being
so solicited for membership.'
Sec. 12. 'The District Courts of this State and the Judges thereof shall have full power, authority
and jurisdiction, upon the application of the State of Texas, acting through an enforcement
officer herein authorized, to issue any and all proper restraining orders, temporary or permanent
injunctions, and any other and further writs or processes appropriate to carry out and enforce the
provisions of this Act. Such proceedings shall be instituted, prosecuted, tried and heard as other
civil proceedings of like nature in said Courts.'
The Act also requires unions to file annual reports containing specified names and addresses, a
statement of income and expenditure with the names of recipients, and copies of all contracts
with employers which include a check-off clause. It prohibits charging dues which 'will create a
fund in excess of the reasonable requirements of such union,' demanding or collecting any fee for
the privilege to work and provides for liberal construction to prevent 'excessive initiation fees.'
All officers, agents, organizers and representatives must be elected by at least a majority vote.
Aliens and felons (unless restored to citizenship) cannot be 'officers, officials ... or labor
organizers.'
Additional enforcement provisions are found in Section 11. A civil penalty not exceeding $1,000
is imposed 'if any labor union violates any provision of this Act,' to be recovered in a suit in the
name of the State, instituted by authorized officers. Violation of the statute by a union officer or
labor organizer is made a misdemeanor, punishable by fine of not over $500 or confinement in
the county jail for not to exceed 60 days, or both.
By Section 2(c), "labor organizer' shall mean any person who for a pecuniary or financial
consideration solicits memberships in a labor union or members for a labor union.' Under the
interpretation promulgated by the Secretary of State, 'Any person who solicits memberships for a
union and receives remuneration therefor, will be considered a 'labor organizer' . . . . Solicitation
of memberships as an incident to other duties for which a salary is paid will be considered
solicitation for remuneration.'
[ Footnote 2 ] The petition recites the time and place of the mass meeting, that Thomas was
scheduled to speak and would solicit members for the union at the meeting without an
organizer's card. The recitals were based on an alleged previous announcement by him of
intention to do these things, which at the hearing he denied having made. The petition stated
there was 'not sufficient time before the defendant makes the threatened speech' for notice to be
served and returned and concludes with a prayer for the restraining order.
[ Footnote 3 ] The order repeated substantially the recitals of the petition, concerning the
meeting, Thomas' scheduled speech and intention to solicit members, as grounds for its issuance
appearing from 'the sworn petition and statements of counsel,' and enjoined Thomas from
soliciting memberships in and members for Local No. 1002 and any other union affiliated with
the C.I.O., while in Texas, without first obtaining an organizer's card.
[ Footnote 4 ] According to the report of the speech given in the record, it refers to Thomas'
invitation to speak at the meeting, his acceptance, and his intention to discuss why workers
should join the union and to urge those present to do so. After stating he had learned, on arrival,
that his right to make such a speech was questioned, he said: 'I didn't come here to break the law.
I came here to make this speech and to ask you to join the union. But since the issue has arisen I
don't want anybody to say I'm evading it ... to have an opening to get out without making a test
of this law. ... Therefore as Vice President of the C.I.O. and as a union man, I earnestly ask those
of you who are not now members of the Oil Workers International Union to join now. I solicit
you to become a member of the union of your fellow workers and thereby join hands with labor
throughout this country in all industries. ...'
[ Footnote 5 ] Thomas testified his invitation to O'Sullivan was as follows: 'I said, 'Pat
O'Sullivan, I want you to join the Oil Workers Union. I have some application cards here, and I
would like to have you sign one.' I went on from there and I asked everybody in the crowd who
was not a member of the organization to come up and if it was necessary I would personally sign
him to these application cards.'
Thomas' account of what occurred at the meeting is substantiated by the testimony of Jesse
Owens, assistant attorney general of Texas, who was present.
[ Footnote 6 ] The motion recited that Thomas '(1) ... did at said time and place solicit Pat
O'Sullivan ... to join a local union' of O.W.I.U. and '( 2) At said time and place ... did openly and
publicly solicit an audience of approximately 300 persons ... to then and there join and become
members' of O.W.I.U., charged that 'the acts of R. J. Thomas above alleged were in open and
flagrant violation' of the court's order and writ and alleged that 'said acts constitute contempt of
this court and should be punished by appropriate order.' (Emphasis added.)
[ Footnote 7 ] The court reviewed the contempt commitment over appellee's strenuous
jurisdictional objections. Since the state court has determined the validity of the statute and its
application in the habeas corpus proceeding, as against the objections on federal constitutional
grounds, those questions are properly here on this appeal. People of State of New York ex rel.
Bryant v. Zimmerman, 278 U.S. 63 , 49 S.Ct. 61, 62 A.L.R. 785. The State concedes this.
[ Footnote 8 ] Cantwell v. Connecticut, 310 U.S. 296 , 60 S.Ct. 900, 128 A.L.R. 1352; Cox v.
New Hampshire, 312 U.S. 569 , 61 S.Ct. 762, 133 A.L.R. 1396; City of Manchester v. Leiby, 1
Cir., 117 F.2d 661.
[ Footnote 9 ] However, the record shows he offered to sign the application blanks or cards 'if it
was necessary.' Cf. note 5 supra.
[ Footnote 10 ] 'He acts for an alleged principal and collects money for the principal, or if he
does not actually collect fees and dues in person, he makes it possible for his principal to collect
them. He purports to act for a labor union in establishing a contractual relation. ...' The
statements are taken from the brief.
[ Footnote 11 ] Without doubt a State may protect its citizens from fraudulent solicitation by
requiring a stranger in the community, before permitting him publicly to solicit funds for any
purpose, to establish his identity and his authority to act for the cause which he purports to
represent,' ( emphasis added) citing for comparison Lewis Publishing Co. v. Morgan, 229 U.S.
288 , 306-310, 33 S.Ct. 867, 871-873; People of State of New York ex rel. Bryant v.
Zimmerman, 278 U.S. 63, 72 , 49 S.Ct. 61, 64, 62 A.L.R. 785. Cf. text infra at note 23.
[ Footnote 12 ] Cf. Schenck v. United States, 249 U.S. 47 , 39 S.Ct. 247; Mr. Justice Holmes
dissenting in Abrams v. United States, 250 U.S. 616, 624 , 40 S.Ct. 17, 20, and in Gitlow v. New
York, 268 U.S. 652, 672 , 45 S.Ct. 625, 632; Bridges v. California, 314 U.S. 252 , 62 S.Ct. 190.
A recent statement is that made in West Virginia State Board of Education v. Barnette, 319 U.S.
624, 639 , 63 S.Ct. 1178, 1186: 'The right of a State to regulate, for example, a public utility may
well include, so far as the due process test is concerned, power to impose all of the restrictions
which a legislature may have a 'rational basis' for adopting. But freedoms of speech and of press,
of assembly, and of worship may not be infringed on such slender grounds. They are susceptible
of restriction only to prevent grave and immediate danger to interests which the State may
lawfully protect.'
[ Footnote 13 ] According to the brief, 'The analogy is that interstate commerce like freedom of
religion, speech and press is protected from undue burdens imposed by the States, yet the States
still have authority to impose regulations which are reasonable in relation to the subject.'
(Emphasis added.)
[ Footnote 14 ] The argument, both at the bar and in the brief, has been indefinite in this respect.
It has neither conceded nor unequivocally denied that the sentence was imposed on account of
both acts. Nevertheless the State maintains that the invitation to O'Sullivan in itself is sufficient
to sustain the judgment and sentence and that nothing more need be considered to support them.
[ Footnote 15 ] That the court regarded the violation as consisting of both acts appears from the
statement in the opinion that Thomas 'violated the terms of the injunction by soliciting members
for said union without having first registered ....' The plural could have been used only if the
general platform plea were considered as being one of the violations restrained and punished.
[ Footnote 16 ] The ex parte petition for the order was founded solely upon the allegation, based
only upon rumor as later appeared from Thomas' uncontradicted testimony, that he intended to
address the meeting and in the course of his speech generally to solicit nonunion men present to
join the union. Cf. note 2 supra. When the petition was filed and the restraining order was issued
and served, it was not possible to specify anticipated individual solicitations and consequently
only anticipated general ones could be and were relied upon. The order therefore must be taken
to have been intended to reach exactly what it was requested to get at. Cf. note 3 supra; and text
infra at note 20 ff.
[ Footnote 17 ] The motion after reciting the solicitation of O'Sullivan and adding that Thomas
'did openly and publicly solicit an audience of approximately 300 persons ...,' claimed both acts
as being 'in open and flagrant violation of the order of this court' and as contempt, and sought
punishment for them.
[ Footnote 18 ] The order made the usual formal recitals concerning the previous proceedings,
the parties' appearance and the court's 'having heard the pleadings and evidence.' It then, without
stating the particular acts in which the contempt consisted, cf. note 17 supra, found generally that
Thomas 'did in Harris County, Texas, on the 23d day of September A.D. 1943, violate this
court's temporary restraining order heretofore issued injoining and restraining him ... from
soliciting members to join' the O. W.I.U. without obtaining an organizer's card, adjudged him
guilty of contempt 'for the violation of the law and of the order of this court on the 23d day of
September, A.D. 1943,' and assessed the punishment as stated above.
[ Footnote 19 ] Cf. note 12 supra.
[ Footnote 20 ] See note 1 supra. According to the State's concession, Thomas might have made
speeches 'lauding unions and unionism' throughout Texas without violating the statute or the
order. And at each address he could have taken a collection or sought and received contributions
for the union, or for himself, without running afoul their prohibitions; that is, always if in doing
so he avoided using words of invitation to unorganized workers to join a C.I.O. union.
[ Footnote 21 ] National Labor Relations Board v. Ford Motor Co., 6 Cir., 114 F.2d 905;
National Labor Relations Board v. American Tube Bending Co., 2 Cir., 134 F.2d 993, 146
A.L.R. 1017; compare Texas & N.O. Ry. v. Brotherhood of Railway & Steamship Clerks, 281
U.S. 548, 568 , 50 S.Ct. 427, 433.
[ Footnote 22 ] National Labor Relations Board v. Trojan Powder Co., 3 Cir., 135 F. 2d 337;
National Labor Relations Board v. New Era Die Co., 3 Cir., 118 F. 2d 500; cf. National Labor
Relations Board v. Friedman-Harry Marks Clothing Co., 301 U.S. 58 , 57 S.Ct. 645, 108 A.L.R.
1352; International Association of Machinists v. National Labor Relations Board, 311 U.S. 72 ,
61 S.Ct. 83. Compare Texas & N.O. Ry. v. Brotherhood of Railway and Steamship Clerks, 281
U.S. 548 , 50 S.Ct. 427.
[ Footnote 23 ] Cf. note 11 supra.
[ Footnote 24 ] In securing the detailed information Section 5 requires, cf. note 1 supra, the
Secretary of State has established an administrative routine for compliance, which includes a
form of application requiring the applicant to state: (1) his name; (2) his address; (3) his labor
union affiliations ('specify definitely and fully'); (4) that 'as evidence of my authority to act as
Labor Organizer for the labor union with which I am connected, I am furnishing the following
credentials'; (5) a copy of such credentials; (6) that he is a citizen of the United States of
America; (7) whether he has ever been convicted of a felony in Texas or in any other State; and
(a) if so, the nature of the offense and the State in which conviction was had; (b) whether his
rights of citizenship have been fully restored; and (c) by what authority.
The Secretary of State testified that cards were issued as of course if the application blanks were
properly filled in. But in his interpretative statement, issued to the general public, he said: 'In the
absence of mistake, fraud or misrepresentation with respect to securing same, it is considered
that the Secretary of State has no discretion in the granting of an 'organizer's card,' and that the
applicant will be entitled to same upon compliance with the Act. It will be required, however,
that the applicant show a bona fide affiliation with an existing labor union.' (Emphasis added.)
Precisely what 'credentials' or evidence in connection with the felony inquiry or showing of bona
fide affiliation will satisfy the Secretary is not made clear on the record. And, according to the
Texas court's decision, 'all who come within the provisions of the Act upon their good faith
compliance therewith' are entitled to receive the card. (Emphasis added.) Compliance under the
decision, it would seem, requires the Secretary to determine the good faith of the application, and
thus the sufficiency of the authority to act for the union represented. Whether, in some instances
at least, these determinations would go beyond 'merely ministerial' action and require the
exercise of discretion, or the time required to comply, by completing the routine, would so add to
the burden that these things might amount to undue previous restraint or censorship, where mere
registration or previous identification might not do so, need not be determined.
From the time the Act became effective in August, 1943, until the date of trial, September 25,
1943, 223 labor organizers' cards were issued. During that period 40 or 50 applications for cards
were returned to the applicants for failure to fill in the information requested or to sign the
application or to attach credentials. Of those all but 15 or 20 have been resubmitted and cards
were granted. No application has been 'positively denied' since the Act became effective.
[ Footnote 1 ] Woodrow Wilson put the case for free speech in this connection aptly: 'I have
always been among those who believed that the greatest freedom of speech was the greatest
safety, because if a man is a fool, the best thing to do is to encourage him to advertise the fact by
speaking. It cannot be so easily discovered if you allow him to remain silent and look wise, but if
you let him speak, the secret is out and the world knows that he is a fool. So it is by the exposure
of folly that it is defeated; not by the seclusion of folly, and in this free air of free speech men get
into that sort of communication with one another which constitutes the basis of all common
achievement.' Address at the Institute of France, Paris, May 10, 1919. 2 Selected Literary and
Political Papers and Addresses of Woodrow Wilson (1926) 333.
[ Footnote 1 ] Stromberg v. California, 283 U.S. 359 , 51 S.Ct. 532, 73 A.L.R. 1484; Near v.
Minnesota, 283 U.S. 697 , 51 S.Ct. 625; Grosjean v. American Press Co., 297 U.S. 233 , 56 S.Ct.
444; De Jonge v. Oregon, 299 U.S. 353 , 57 S.Ct. 255; Herndon v. Lowry, 301 U.S. 242 , 57
S.Ct. 732; Lovell v. Griffin, 303 U.S. 444 , 58 S.Ct. 666; Hague v. C.I.O. , 307 U.S. 496 , 59
S.Ct. 954; Schneider v. Irvington, 308 U.S. 147 , 60 S.Ct. 146; Thornhill v. Alabama, 310 U.S.
88 , 60 S.Ct. 736; Carlson v. California, 310 U.S. 106 , 60 S.Ct. 746; Cantwell v. Connecticut,
310 U.S. 296 , 60 S.Ct. 900, 128 A. L.R. 1352; American Federation of Labor v. Swing, 312
U.S. 321 , 61 S.Ct. 568; Bridges v. California, 314 U.S. 252 , 62 S.Ct. 190; Bakery & P. Drivers
& Helpers v. Wohl, 315 U.S. 769 , 62 S.Ct. 816; Martin v. City of Struthers, 319 U.S. 141 , 63
S.Ct. 862; Taylor v. Mississippi, 319 U.S. 583 , 63 S.Ct. 1200; Cafeteria Employees Union v.
Angelos, 320 U.S. 293 , 64 S.Ct. 126. Compare Murdock v. Pennsylvania, 319 U.S. 105 , 63
S.Ct. 870, 146 A.L.R. 82; Douglas v. Jeannette, 319 U.S. 157 , 63 S.Ct. 877; West Virginia State
Board of Education v. Barnette, 319 U.S. 624 , 63 S.Ct. 1178; Follett v. McCormick, 321 U.S.
573 , 64 S.Ct. 717.
[ Footnote 2 ] A section of the Act forbids an alien or a convicted felon whose civil rights have
not been restored to act as a labor organizer, but these provisions were not here invoked or
applied and nothing in this case turns on them. There is no occasion to discuss them until they
are drawn in question. And in addition, Section 15 of the Act contains a sweeping severability
clause.
XXXXXXXXX
XXXXXXXXX
U.S. Supreme Court
PRINCE v. COM. OF MASS., 321 U.S. 158 (1944)
321 U.S. 158
PRINCE
v.
COMMONWEALTH OF MASSACHUSETTS.
No. 98.
Argued Dec. 14, 1943.
Decided Jan. 31, 1944.
Rehearing Denied Mar. 27, 1944
See 321 U.S. 804 , 64 S.Ct. 784. [321 U.S. 158, 159] Appeal from the Superior Court of
Massachusetts, Plymouth County.
Mr. Hayden C. Covington, of Brooklyn, N.Y., for appellant.
Mr. R. T. Bushnell, of Boston, Mass., for appellee.
Mr. Justice RUTLEDGE delivered the opinion of the Court.
The case brings for review another episode in the conflict between Jehovah's Witnesses and state
authority. This time Sarah Prince appeals from convictions for violating Massachusetts' child
labor laws, by acts said to be a rightful exercise of her religious convictions.
When the offenses were committed she was the aunt and custodian of Betty M. Simmons, a girl
nine years of age. Originally there were three separate complaints. They [321 U.S. 158, 160] were,
shortly, for (1) refusal to disclose Betty's identity and age to a public officer whose duty was to
enforce the statutes; (2) furnishing her with magazines, knowing she was to sell them unlawfully,
that is, on the street; and (3) as Betty's custodian, permitting her to work contrary to law. The
complaints were made, respectively, pursuant to Sections 79, 80 and 81 of Chapter 149,
Gen.Laws of Mass. (Ter.Ed.). The Supreme Judicial Court reversed the conviction under the first
complaint on state grounds;1 but sustained the judgments founded on the other two.2 313 Mass.
223, 46 N. E.2d 755. They present the only questions for our decision. These are whether
Sections 80 and 81, as applied, contravene the Fourteenth Amendment by denying or abridging
appellant's freedom of religion and by denying to her the equal protection of the laws.
Sections 80 and 81 form parts of Massachusetts' comprehensive child labor law. 3 They provide
methods for enforcing the prohibitions of Section 69, which is as follows:
'No boy under twelve and no girl under eighteen shall sell, expose or offer for sale any
newspapers, magazines, periodicals or any other articles of merchandise of any [321 U.S.
158, 161] description, or exercise the trade of bootblack or scavenger, or any other trade,
in any street or public place.'
Section 80 and 81, so far as pertinent, read:
'Whoever furnishes or sells to any minor any article of any description with the
knowledge that the minor intends to sell such article in violation of any provision of
sections sixty-nine to seventy-three, inclusive, or after having received written notice to
this effect from any officer charged with the enforcement thereof, or knowingly procures
or encourages any minor to violate any provisions of said sections, shall be punished by a
fine of not less than ten nor more than two hundred dollars or by imprisonment for not
more than two months, or both.' (Section 80)
'Any parent, guardian or custodian having a minor under his control who compels or
permits such minor to work in violation of any provision of sections sixty to seventyfour, inclusive, ... shall for a first offence be punished by a fine of not less than two nor
more than ten dollars or by imprisonment for not more than five days, or both; ....'
(Section 81)
The story told by the evidence has become familiar. It hardly needs repeating, except to give
setting to the variations introduced through the part played by a child of tender years. Mrs.
Prince, living in Brockton, is the mother of two young sons. She also has legal custody of Betty
Simmons who lives with them. The children too are Jehovah's Witnesses and both Mrs. Prince
and Betty testified they were ordained ministers. The former was accustomed to go each week on
the streets of Brockton to distribute 'Watchtower' and 'Consolation,' according to the usual plan.
4 She had permitted the children to [321 U.S. 158, 162] engage in this activity previously, and had
been warned against doing so by the school attendance officer, Mr. Perkins. But, until December
18, 1941, she generally did not take them with her at night.
That evening, as Mrs. Prince was preparing to leave her home, the children asked to go. She at
first refused. Childlike, they resorted to tears and, motherlike, she yielded. Arriving downtown,
Mrs. Prince permitted the children 'to engage in the preaching work with her upon the sidewalks.'
That is, with specific reference to Betty, she and Mrs. Prince took positions about twenty feet
apart near a street intersection. Betty held up in her hand, for passersby to see, copies of 'Watch
Tower' and 'Consolation.' From her shoulder hung the usual canvas magazine bag, on which was
printed 'Watchtower and Consolation 5õ per copy.' No one accepted a copy from Betty that
evening and she received no money. Nor did her aunt. But on other occasions, Betty had
received funds and given out copies.
Mrs. Prince and Betty remained until 8:45 p.m. A few minutes before this Mr. Perkins
approached Mrs. Prince. A discussion ensued. He inquired and she refused to give Betty's name.
However, she stated the child attended the Shaw School. Mr. Perkins referred to his previous
warnings and said he would allow five minutes for them to get off the street. Mrs. Prince
admitted she supplied Betty with the magazines and said, '(N)either you nor anybody else can
stop me .... This child is exercising her God- given right and her constitutional right to preach the
gospel, and no creature has a right to interfere with God's commands.' However, Mrs. Prince and
Betty departed. She remarked as she went, 'I'm not going through this any more. We've been
through it time and time again. I'm going home and put the little girl to bed.' It may be added that
testimony, by Betty, her aunt and others, was offered at the trials, and was ex- [321 U.S. 158, 163]
cluded, to show that Betty believed it was her religious duty to perform this work and failure
would bring condemnation 'to everlasting destruction at Armageddon.'
As the case reaches us, the questions are no longer open whether what the child did was a 'sale'
or an 'offer to sell' within Section 695 or was 'work' within Section 81. The state court's decision
has foreclosed them adversely to appellant as a matter of state law. 6 The only question
remaining therefore is whether, as construed and applied, the statute is valid. Upon this the court
said: 'We think that freedom of the press and of religion is subject to incidental regulation to the
slight degree involved in the prohibition of the selling of religious literature in streets and public
places by boys under twelve and girls under eighteen and in the further statutory provisions
herein considered, which have been adopted as a means of enforcing [321 U.S. 158, 164] that
prohibition.' 313 Mass. 223, 229, 46 N.E.2d 755, 758.
Appellant does not stand on freedom of the press. Regarding it as secular, she concedes it may be
restricted as Massachusetts has done. 7 Hence, she rests squarely on freedom of religion under
the First Amendment, applied by the Fourteenth to the states. She buttresses this foundation,
however, with a claim of parental right as secured by the due process clause of the latter
Amendment. 8 Cf. Meyer v. Nebraska, 262 U.S. 390 , 43 S. Ct. 625, 29 A.L.R. 1446. These
guaranties, she thinks, guard alike herself and the child in what they have done. Thus, two
claimed liberties are at stake. One is the parent's, to bring up the child in the way he should go,
which for appellant means to teach him the tenets and the practices of their faith. The other
freedom is the child's, to observe these; and among them is 'to preach the gospel ... by public
distribution' of 'Watchtower' and 'Consolation,' in conformity with the scripture: 'A little shall
lead them.'
If by this position appellant seeks for freedom of conscience a broader protection than for
freedom of the mind, it may be doubted that any of the great liberties insured by the First Article
can be given higher place than the others. All have preferred position in our basic scheme.
Schneider v. State, 308 U.S. 147 , 60 S.Ct. 146; Cantwell v. Connecticut, 310 U.S. 296 , 60 S.Ct.
900, 128 A. L.R. 1352. All are interwoven there together. Differences there are, in them and in
the modes appropriate for their exercise. But they have unity in the charter's prime place because
they have unity in their human sources and [321 U.S. 158, 165] functionings. Heart and mind are
not identical. Intuitive faith and reasoned judgment are not the same. Spirit is not always thought.
But in the everyday business of living, secular or otherwise, these variant aspects of personality
find inseparable expression in a thousand ways. They cannot be altogether parted in law more
than in life.
To make accommodation between these freedoms and an exercise of state authority always is
delicate. It hardly could be more so than in such a clash as this case presents. On one side is the
obviously earnest claim for freedom of conscience and religious practice. With it is allied the
parent's claim to authority in her own household and in the rearing of her children. The parent's
conflict with the state over control of the child and his training is serious enough when only
secular matters are concerned. It becomes the more so when an element of religious conviction
enters. Against these sacred private interests, basic in a democracy, stand the interests of society
to protect the welfare of children, and the state's assertion of authority to that end, made here in a
manner conceded valid if only secular things were involved. The last is no mere corporate
concern of official authority. It is the interest of youth itself, and of the whole community, that
children be both safeguarded from abuses and given opportunities for growth into free and
independent well-developed men and citizens. Between contrary pulls of such weight, the safest
and most objective recourse is to the lines already marked out, not precisely but for guides, in
narrowing the no man's land where this battle has gone on.
The rights of children to exercise their religion, and of parents to give them religious training and
to encourage them in the practice of religious belief, as against preponderant sentiment and
assertion of state power voicing it, have had recognition here, most recently in West Virginia
State Board of Education v. Barnette, 319 U.S. [321 U.S. 158, 166] 624, 63 S.Ct. 1178. Previously
in Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571, 39 A.L.R. 468, this Court had
sustained the parent's authority to provide religious with secular schooling, and the child's right
to receive it, as against the state's requirement of attendance at public schools. And in Meyer v.
Nebraska, 262 U.S. 390 , 43 S. Ct. 625, 29 A.L.R. 1446, children's rights to receive teaching in
languages other than the nation's common tongue were guarded against the state's encroachment.
It is cardinal with us that the custody, care and nurture of the child reside first in the parents,
whose primary function and freedom include preparation for obligations the state can neither
supply nor hinder. Pierce v. Society of Sisters, supra. And it is in recognition of this that these
decisions have respected the private realm of family life which the state cannot enter.
But the family itself is not beyond regulation in the public interest, as against a claim of religious
liberty. Reynolds v. United States, 98 U.S. 145 ; Davis v. Beason, 133 U.S. 333 , 10 S.Ct. 299.
And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the
general interest in youth's well being, the state as parens patriae may restrict the parent's control
by requiring school attendance,9 regulating or prohibiting the child's labor,10 and in many other
ways. 11 Its authority is not nullified merely because the parent grounds his claim to control the
child's course of conduct on religion or conscience. Thus, he cannot claim freedom from
compulsory vaccination for the child more than for himself on religious grounds. 12 The right to
practice religion freedly does not include liberty to expose the community or the child [321 U.S.
158, 167] to communicable disease or the latter to ill health or death. People v. Pierson, 176 N.Y.
201, 68 N.E. 243, 63 L.R.A. 187, 98 Am.St.Rep. 666.13 The catalogue need not be lengthened.
It is sufficient to show what indeed appellant hardly disputes, that the state has a wide range of
power for limiting parental freedom and authority in things affecting the child's welfare; and that
this includes, to some extent, matters of conscience and religious conviction.
But it is said the state cannot do so here. This, first, because when state action impinges upon a
claimed religious freedom, it must fall unless shown to be necessary for or conducive to the
child's protection against some clear and present danger, cf. Schenck v. United States, 249 U.S.
47 , 39 S.Ct. 247; and, it is added, there was no such showing here. The child's presence on the
street, with her guardian, distributing or offering to distribute the magazines, it is urged, was in
no way harmful to her, nor in any event more so than the presence of many other children at the
same time and place, engaged in shopping and other activities not prohibited. Accordingly, in
view of the preferred position the freedoms of the First Article occupy, the statute in its present
application must fall. It cannot be sustained by any presumption of validity. Cf. Schneider v.
State, 308 U.S. 147 , 60 S.Ct. 146. And, finally, it is said, the statute is, as to children, an
absolute prohibition, not merely a reasonable regulation, of the denounced activity.
Concededly a statute or ordinance identical in terms with Section 69, except that it is applicable
to adults or all persons generally, would be invalid. Young v. California, 308 U.S. 147 , 60 S.Ct.
146; Nichols v. Massachusetts, 308 U.S. 147 , 60 S.Ct. 146; Jamison v. Texas, 318 U.S. 413 , 63
S.Ct. 669; Murdock v. Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870, 146 A.L.R. 82; Martin v. City
of Struthers, 319 U.S. 141 , 63 S.Ct. 862.14 [321 U.S. 158, 168] But the mere fact a state could not
wholly prohibit this form of adult activity, whether characterized locally as a 'sale' or otherwise,
does not mean it cannot do so for children. Such a conclusion granted would mean that a state
could impose no greater limitation upon child labor than upon adult labor. Or, if an adult were
free to enter dance halls, saloons, and disreputable places generally, in order to discharge his
conceived religious duty to admonish or dissuade persons from frequenting such places, so
would be a child with similar convictions and objectives, if not alone then in the parent's
company, against the state's command.
The state's authority over children's activities is broader than over like actions of adults. This is
peculiarly true of public activities and an matters of employment. A democratic society rests, for
its continuance, upon the healthy, well-rounded growth of young people into full maturity as
citizens, with all that implies. It may secure this against impeding restraints and dangers, within a
broad range of selection. Among evils most appropriate for such action are the crippling effects
of child employment,15 more especially in public places, and the possible harms arising from
other activities subject to all the diverse influences of the street. 16 It is too late now to doubt
[321 U.S. 158, 169] that legislation appropriately designed to reach such evils is within the state's
police power, whether against the parents claim to control of the child or one that religious
scruples dictate contrary action.
It is true children have rights, in common with older people, in the primary use of highways. But
even in such use streets afford dangers for them not affecting adults. And in other uses, whether
in work or in other things, this difference may be magnified. This is so not only when children
are unaccompanied but certainly to some extent when they are with their parents. What may be
wholly permissible for adults therefore may not be so for children, either with or without their
parents' presence.
Street preaching, whether oral or by handing out literature, is not the primary use of the highway,
even for adults. While for them it cannot be wholly prohibited, it can be regulated within
reasonable limits in accommodation to the primary and other incidental uses. 17 But, for obvious
reasons, notwithstanding appellant's contrary view,18 the validity of such a prohibition applied
to children not accompanied by an older person hardly would seem open to question. The case
reduces itself therefore to the question whether the presence of the child's guardian puts a limit to
the state's power. That fact may lessen the likelihood that some evils the legislation seeks to avert
will occur. But it cannot forestall all of them. The zealous though lawful exercise of the right to
engage in propagandizing the community, whether in religious, political or other matters, may
and at times does create situa- [321 U.S. 158, 170] tions difficult enough for adults to cope with
and wholly inappropriate for children, especially of tender years, to face. Other harmful
possibilities could be stated, of emotional excitement and psychological or physical injury.
Parents may be free to become martyrs themselves. But it does not follow they are free, in
identical circumstances, to make martyrs of their children before they have reached the age of
full and legal discretion when they can make that choice for themselves. Massachusetts has
determined that an absolute prohibition, though one limited to streets and public places and to the
incidental uses proscribed, is necessary to accomplish its legitimate objectives. Its power to
attain them is broad enough to reach these peripheral instances in which the parent's supervision
may reduce but cannot eliminate entirely the ill effects of the prohibited conduct. We think that
with reference to the public proclaiming of religion, upon the streets and in other similar public
places, the power of the state to control the conduct of children reaches beyond the scope of its
authority over adults, as is true in the case of other freedoms, and the rightful boundary of its
power has not been crossed in this case.
In so ruling we dispose also of appellant's argument founded upon denial of equal protection. It
falls with that based on denial of religious freedom, since in this instance the one is but another
phrasing of the other. Shortly, the contention is that the street, for Jehovah's Witnesses and their
children, is their church, since their conviction makes it so; and to deny them access to it for
religious purposes as was done here has the same effect as excluding altar boys, youthful
choristers, and other children from the edifices in which they practice their religious beliefs and
worship. The argument hardly needs more than statement, after what has been said, to refute it.
However Jehovah's Witnesses may conceive them, the public highways have not become their
religious prop- [321 U.S. 158, 171] erty merely by their assertion. And there is no denial of equal
protection in excluding their children from doing there what no other children may do.
Our ruling does not extend beyond the facts the case presents. We neither lay the foundation 'for
any (that is, every) state intervention in the indoctrination and participation of children in
religion' which may be done 'in the name of their health and welfare' nor give warrant for 'every
limitation on their religious training and activities.' The religious training and indoctrination of
children may be accomplished in many ways, some of which, as we have noted, have received
constitutional protection through decisions of this Court. These and all others except the public
proclaiming of religion on the streets, if this may be taken as either training or indoctrination of
the proclaimer, remain unaffected by the decision.
The judgment is affirmed.
AFFIRMED.
This attempt by the state of Massachusetts to prohibit a child from exercising her constitutional
right to practice her religion on the public streets cannot, in my opinion, be sustained.
The record makes clear the basic fact that Betty Simmons, the nine- year old child in question,
was engaged in a genuine religious, rather than commercial, activity. She was a member of
Jehovah's Witnesses and had been taught the tenets of that sect by her guardian, the appellant.
Such tenets included the duty of publicly distributing religious tracts on the street and from door
to door. Pursuant to this religious duty and in the company of the appellant, Betty Simmons on
the night of December 18, 1941, was standing on a public street corner and offering to distribute
Jehovah's Witness literature to passersby. There was no expectation of pecuniary profit to [321
U.S. 158, 172] herself or to appellant. It is undisputed, furthermore, that she did this of her own
desire and with appellant's consent. She testified that she was motivated by her love of the Lord
and that He commanded her to distribute this literature; this was, she declared, her way of
worshipping God. She was occupied, in other words, in 'an age-old form of missionary
evangelism' with a purpose 'as evangelical as the revival meeting.' Murdock v. Pennsylvania, 319
U.S. 105, 108 , 109 S., 63 S.Ct. 870, 872, 873, 146 A.L.R. 82.
Religious training and activity, whether performed by adult or child, are protected by the
Fourteenth Amendment against interference by state action, except insofar as they violate
reasonable regulations adopted for the protection of the public health, morals and welfare. Our
problem here is whether a state, under the guise of enforcing its child labor laws, can lawfully
prohibit girls under the age of eighteen and boys under the age of twelve from practicing their
religious faith insofar as it involves the distribution or sale of religious tracts on the public
streets. No question of freedom of speech or freedom of press is present and we are not called
upon to determine the permissible restraints on those rights. Nor are any truancy or curfew
restrictions in issue. The statutes in question prohibit all children within the specified age limits
from selling or offering to sell 'any newspapers, magazines, periodicals or any other articles of
merchandise of any description ... in any street or public place.' Criminal sanctions are imposed
on the parents and guardians who compel or permit minors in their control to engage in the
prohibited transactions. The state court has construed these statutes to cover the activities here
involved, cf. State v. Richardson, 92 N.H. 178, 27 A.2d 94, thereby imposing an indirect restraint
through the parents and guardians on the free exercise by minors of their religious beliefs. This
indirect restraint is no less effective than a direct one. A square conflict between the con- [321
U.S. 158, 173] stitutional guarantee of religious freedom and the state's legitimate interest in
protecting the welfare of its children is thus presented.
As the opinion of the Court demonstrates, the power of the state lawfully to control the religious
and other activities of children is greater than its power over similar activities of adults. But that
fact is no more decisive of the issue posed by this case than is the obvious fact that the family
itself is subject to reasonable regulation in the public interest. We are concerned solely with the
reasonableness of this particular prohibition of religious activity by children.
In dealing with the validity of statutes which directly or indirectly infringe religious freedom and
the right of parents to encourage their children in the practice of a religious belief, we are not
aided by any strong presumption of the constitutionality of such legislation. United States v.
Carolene Products Co., 304 U.S. 144, 152 , 58 S.Ct. 778, 783, note 4. On the contrary, the human
freedoms enumerated in the First Amendment and carried over into the Fourteenth Amendment
are to be presumed to be invulnerable and any attempt to sweep away those freedoms is prima
facie invalid. It follows that any restriction or prohibition must be justified by those who deny
that the freedoms have been unlawfully invaded. The burden was therefore on the state of
Massachusetts to prove the reasonableness and necessity of prohibiting children from engaging
in religious activity of the type involved in this case.
The burden in this instance, however, is not met by vague references to the reasonableness
underlying child labor legislation in general. The great interest of the state in shielding minors
from the evil vicissitudes of early life does not warrant every limitation on their religious training
and activities. The reasonableness that justifies the prohibition of the ordinary distribution of
literature in the public streets by children is not necessarily the rea- [321 U.S. 158, 174]
sonableness that justifies such a drastic restriction when the distribution is part of their religious
faith. Murdock v. Pennsylvania, supra, 319 U.S. 111 , 63 S.Ct. 874, 146 A.L.R. 82. If the right of
a child to practice its religion in that manner is to be forbidden by constitutional means, there
must be convincing proof that such a practice constitutes a grave and immediate danger to the
state or to the health, morals or welfare of the child. West Virginia State Board of Education v.
Barnette, 319 U.S. 624, 639 , 63 S.Ct. 1178, 1186. The vital freedom of religion, which is 'of the
very essence of a scheme of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325 , 58 S.Ct.
149, 152, cannot be erased by slender references to the state's power to restrict the more secular
activities of children.
The state, in my opinion, has completely failed to sustain its burden of proving the existence of
any grave or immediate danger to any interest which it may lawfully protect. There is no proof
that Betty Simmons' mode of worship constituted a serious menace to the public. It was carried
on in an orderly, lawful manner at a public street corner. And 'one who is rightfully on a street
which the state has left open to the public carries with him there as elsewhere the constitutional
right to express his views in an orderly fashion. This right extends to the communication of ideas
by handbills and literature as well as by the spoken word.' Jamison v. Texas, 318 U.S. 413, 416 ,
63 S.Ct. 669, 672. The sidewalk, no less than the cathedral or the evangelist's tent, is a proper
place, under the Constitution, for the orderly worship of God. Such use of the streets is as
necessary to the Jehovah's Witnesses, the Salvation Army and others who practice religion
without benefit of conventional shelters as is the use of the streets for purposes of passage.
It is claimed, however, that such activity was likely to affect adversely the health, morals and
welfare of the child. Reference is made in the majority opinion to 'the crippling effects of child
employment, more especially in pub- [321 U.S. 158, 175] lic places, and the possible harms arising
from other activities subject to all the diverse influences of the street.' To the extent that they
flow from participation in ordinary commercial activities, these harms are irrelevant to this case.
And the bare possibility that such harms might emanate from distribution of religious literature is
not, standing alone, sufficient justification for restricting freedom of conscience and religion.
Nor can parents or guardians be subjected to criminal liability because of vague possibilities that
their religious teachings might cause injury to the child. The evils must be grave, immediate,
substantial. Cf. Bridges v. California, 314 U.S. 252, 262 , 62 S.Ct. 190, 193. Yet there is not the
slightest indication in this record, or in sources subject to judicial notice, that children engaged in
distributing literature pursuant to their religious beliefs have been or are likely to be subject to
any of the harmful 'diverse influences of the street.' Indeed, if probabilities are to be indulged in,
the likelihood is that children engaged in serious religious endeavor are immune from such
influences. Gambling, truancy, irregular eating and sleeping habits, and the more serious vices
are not consistent with the high moral character ordinarily displayed by children fulfilling
religious obligations. Moreover, Jehovah's Witness children invariably make their distributions
in groups subject at all times to adult or parental control, as was done in this case. The dangers
are thus exceedingly remote, to say the least. And the fact that the zealous exercise of the right to
propagandize the community may result in violent or disorderly situations difficult for children
to face is no excuse for prohibiting the exercise of that right.
No chapter in human history has been so largely written in terms of persecution and intolerance
as the one dealing with religious freedom. From ancient times to the present day, the ingenuity of
man has known no limits in its ability to forge weapons of oppression for use againstrights of
those [321 U.S. 158, 176] those who dare to express or practice unorthodox religious beliefs. And
the Jehovah's Witnesses are living proof of the fact that even in this nation, conceived as it was
in the ideals of freedom, the right to practice religion in unconventional ways is still far from
secure. Theirs is a militant and unpopular faith, pursued with a fanatical zeal. They have suffered
brutal beatings; their property has been destroyed; they have been harassed at every turn by the
resurrection and enforcement of little used ordinances and statutes. See Mulder and Comisky,
'Jehovah's Witnesses Mold Constitutional Law,' 2 Bill of Rights Review, No. 4, p. 262. To them,
along with other present-day religious minorities, befalls the burden of testing our devotion to
the ideals and constitutional guarantees of religious freedom. We should therefore hesitate before
approving the application of a statute that might be used as another instrument of oppression.
Religious freedom is too sacred a right to be restricted or prohibited in any degree without
convincing proof that a legitimate interest of the state is in grave danger.
Mr. Justice JACKSON.
The novel feature of this decision is this: the Court holds that a state may apply child labor laws
to restrict or prohibit an activity of which, as recently as last term, it held: 'This form of religious
activity occupies the same high estate under the First Amendment as do worship in the churches
and preaching from the pulpits. It has the same claim to protection as the more orthodox and
conventional exercises of religion.' ' ... the mere fact that the religious literature is 'sold' by
itinerant preachers rather than 'donated' does not transform evangelism into a commercial
enterprise. If it did, then the passing of the collection plate in church would make the church
service a commercial project. The constitutional danger.by holding public dinners and
entertainments, by various kindsspreading their religious beliefs through the spoken [321 U.S. 158,
177] and printed word are not to be gauged by standards governing retailers or wholesalers of
books.' Murdock v. Pennsylvania, 319 U.S. 105, 109 , 111 S., 63 S.Ct. 870, 873, 874, 146 A.L.R.
82.
It is difficult for me to believe that going upon the streets to accost the public is the same thing
for application of public law as withdrawing to a private structure for religious worship. But if
worship in the churches and the activity of Jehovah's Witnesses on the streets 'occupy the same
high estate' and have the 'same claim to protection' it would seem that child labor laws may be
applied to both if to either. If the Murdock doctrine stands along with today's decision, a
foundation is laid for any state intervention in the indoctrination and participation of children in
religion, provided it is done in the name of their health or welfare.
This case brings to the surface the real basis of disagreement among members of this Court in
previous Jehovah's Witness cases. Murdock v. Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870, 146
A.L.R. 82; Martin v. Struthers, 319 U.S. 141 , 63 S.Ct. 862; Jones v. Opelika, 316 U.S. 584 , 141
A.L.R. 514; Id., 319 U.S. 103 , 63 S.Ct. 890; Douglas v. Jeannette, 319 U.S. 157 , 63 S.Ct. 877,
882. Our basic difference seems to be as to the method of establishing limitations which of
necessity bound religious freedom.
My own view may be shortly put: I think the limits begin to operate whenever activities begin to
affect or collide with liberties of others or of the public. Religious activities which concern only
members of the faith are and ought to be free-as nearly absolutely free as anything can be. But
beyond these, many religious denominations or sects engage in collateral and secular activities
intended to obtain means from unbelievers to sustain the worshippers and their leaders. They
raise money, not merely by passing the plate to those who voluntarily attend services or by
contributions by their own people, but by solicitations and drives addressed to the public [321 U.S.
158, 178] of sales and Bingo games and lotteries. All such money-raising activities on a public
scale are, I think, Caesar's affairs and may be regulated by the state so long as it does not
discriminate against one because he is doing them for a religious purpose, and the regulation is
not arbitrary and capricious, in violation of other provisions of the Constitution.
The Court in the Murdock case rejected this principle of separating immune religious activities
from secular ones in declaring the disabilities which the Constitution imposed on local
authorities. Instead, the Court now draws a line based on age that cuts across both true exercise
of religion and auxiliary secular activities. I think this is not a correct principle for defining the
activities immune from regulation on grounds of religion, and Murdock overrules the grounds on
which I think affirmance should rest. I have no alternative but to dissent from the grounds of
affirmance of a judgment which I think was rightly decided, and upon right grounds, by the
Supreme Judicial Court of Massachusetts. 313 Mass. 223, 46 N.E.2d 755.
Mr. Justice ROBERTS and Mr. Justice FRANKFURTER join in this opinion.
Mr. Justice MURPHY, dissenting.
Footnotes
[ Footnote 1 ] The court found there was no evidence that appellant was asked Betty's age. It then
held that conviction for refusal to disclose the child's name, based on the charge under Section
79, would violate Article 12 of the Declaration of Rights of the Commonwealth, which provides
in part: 'No subject shall be held to answer for any crimes or offence, until the same is fully and
plainly, substantially and formally, described to him; or be compelled to accuse, or furnish
evidence against himself.'
[ Footnote 2 ] Appellant received moderate fines on each complaint, first in the District Court of
Brockton, then on pleas of not guilty by trial de novo without a jury in the Superior Court for
Plymouth County. Motions to dismiss and quash the complaints, for directed findings, and for
rulings, were made seasonably and denied by the Superior Court.
[ Footnote 3 ] Mass.Gen. Laws, Ter.Ed., c. 149, as amended by Acts and Resolves of 1939, c.
461.
[ Footnote 4 ] Cf. the facts as set forth in Jamison v. Texas, 318 U.S. 413 , 63 S. Ct. 669; Largent
v. Texas, 318 U.S. 418 , 63 S.Ct. 667; Murdock v. Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870,
146 A.L.R. 82; Busey v. District of Columbia, 75 U.S.App.D.C. 352, 129 F.2d 24. A common
feature is that specified small sums are generally asked and received but the publications may be
had without the payment if so desired.
[ Footnote 5 ] In this respect the Massachusetts decision is contrary to the trend in other states.
Compare State v. Mead, 230 Iowa 1217, 300 N.W. 523; State v. Meredith, 197 S.C. 351, 15
S.E.2d 678; State ex rel. Semansky v. Stark, 196 La. 307, 199 So. 129; City of Shreveport v.
Teague, 200 La. 679, 8 So. 2d 640; People v. Barber, 289 N.Y. 378, 46 N.E.2d 329; Thomas v.
City of Atlanta, 59 Ga.App. 520, 1 S.E.2d 598; City of Cincinnati v. Mosier, 61 Ohio App. 81,
22 N.E.2d 418. Contra: McSparran v. City of Portland ( Circuit Court, Multnomah County,
Oregon, June 8, 1942), appeal dismissed, 169 Or. 377, 129 P.2d 65, certiorari denied, 318 U.S.
768 , 63 S.Ct. 759.
[ Footnote 6 ] The court's opinion said: 'The judge could find that if a passerby should hand over
five cents in accordance with the sign on the bag and should receive a magazine in return, a sale
would be effected. The judge was not required to accept the defendant's characterization of that
transaction as a 'contribution.' He could believe that selling the literature played a more
prominent part in the enterprise than giving it way. He could find that the defendant furnished
the magazines to Betty, knowing that the latter intended to sell them, if she could, in violation of
section 69. ... The judge could find that the defendant permitted Betty to 'work' in violation of
section 81. ... (W)e cannot say that the evils at which the statutes were directed attendant upon
the selling by children of newspapers, magazines, periodicals, and other merchandise in streets
and public places do not exist where the publications are of a religious nature.' 313 Mass. 223,
227, 228, 46 N.E.2d 755, 757.
[ Footnote 7 ] Appellant's brief says: 'The purpose of the legislation is to protect children from
economic exploitation and keep them from the evils of such enterprises that contribute to the
degradation of children.' And at the argument counsel stated the prohibition would be valid as
against a claim of freedom of the press as a nonreligious activity.
[ Footnote 8 ] The due process claim, as made and perhaps necessarily, extends no further than
that to freedom of religion, since in the circumstances all that is comprehended in the former is
included in the latter.
[ Footnote 9 ] State v. Bailey, 157 Ind. 324, 61 N.E. 730, 59 L.R.A. 435; compare Meyer v.
Nebraska, 262 U.S. 390 , 43 S.Ct. 625, 29 A.L.R. 1446; Pierce v. Society of Sisters, 268 U.S.
510 , 45 S.Ct. 571, 39 A.L.R. 468; West Virginia State Board of Education v. Barnette, 319 U.S.
624 , 63 S.Ct. 1178.
[ Footnote 10 ] Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320 , 34 S.Ct. 60,
L.R.A.1915A, 1196; compare Muller v. Oregon, 208 U.S. 412 , 28 S.Ct. 324, 13 Ann.Cas. 957.
[ Footnote 11 ] Cf. People v. Ewer, 141 N.Y. 129, 36 N.E. 4, 25 L.R.A. 794, 38 Am. St.Rep.
788.
[ Footnote 12 ] Jacobson v. Massachusetts, 197 U.S. 11 , 25 S.Ct. 358, 3 Ann.Cas. 765.
[ Footnote 13 ] See also State v. Chenoweth, 163 Ind. 94, 71 N.E. 197; Owens v. State, 6 Okl.Cr.
110, 116 P. 345, 36 L.R.A.,N.S., 633, Ann.Cas.1913B, 1218.
[ Footnote 14 ] Pertinent also are the decisions involving license features: Lovell v. City of
Griffin, 303 U.S. 444 , 58 S.Ct. 666; Schneider v. State, 308 U.S. 147 , 60 S.Ct. 146; Hague v.
Committee for Industrial Organization, 307 U.S. 496 , 59 S.Ct. 954.
[ Footnote 15 ] See, e.g., Volumes 1-4, 6-8, 14, 18, Report on Condition of Woman and Child
Wage Earners in the United States, Sen. Doc. No. 645, 61st Cong., 2d Sess.; The Working
Children of Boston, U.S. Dept. of Labor, Children's Bureau Publication No. 89 (1922); Fuller,
The Meaning of Child Labor (1922 ); Fuller and Strong, Child Labor in Massachusetts (1926).
[ Footnote 16 ] See, e.g., Clopper, Child Labor in City Streets (1912); Children in Street Work,
U.S. Dept. of Labor, Children's Bureau Publication No. 183 ( 1928); Children Engaged in
Newspaper and Magazine Selling and Delivering, U.S. Dept. of Labor, Children's Bureau
Publication No. 227 (1935).
[ Footnote 17 ] Cox v. New Hampshire, 312 U.S. 569 , 61 S.Ct. 762, 133 A.L.R. 1396;
Chaplinsky v. New Hampshire, 315 U.S. 568 , 62 S.Ct. 766.
[ Footnote 18 ] Although the argument points to the guardian's presence as showing the child's
activities here were not harmful, it is nowhere conceded in the briefs that the statute could be
applied, consistently with the guaranty of religious freedom, if the facts had been altered only by
the guardian's absence.
XXXXXXXXX
XXXXXXXXX
U.S. Supreme Court
DOUGLAS v. CITY OF JEANNETTE, 319 U.S. 157 (1943)
319 U.S. 157
Robert L. DOUGLAS, Albert R. Gundecker, Earl Kalkbrenner, et al., Petitioners, v. CITY
of JEANNETTE (PENNSYLVANIA), a Municipal Corporation, et al.
Robert MURDOCK, Jr., Petitioner, v. COMMONWEALTH OF PENNSYLVANIA (City
of Jeannette), and seven other cases.
Thelma MARTIN, Appellant, v. CITY OF STRUTHERS, OHIO.
Nos. 450, 480-487, 238.
Supreme Court of the United States
Argued March 10, 11, 1943
May 3, 1943
For majority opinions, see 63 S.Ct. 877, 870, 862.[ Douglas v. City of Jeannette 319 U.S. 157
(1943) ]
[319 U.S. 157, 159]
Mr. Hayden C. Covington, of Brooklyn, N.Y., for petitioner.
Mr. Fred B. Trescher, of Greensburg, Pa., for respondents.
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 Nos. 480-487, Murdock et al. v.
Commonwealth of Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870, 87 L.Ed. --, decided this day. The
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 petitioner's 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. [319 U.S.
157, 160] The suit is alleged to arise under the Constitution and laws of the United States,
including the Civil Rights Act of 1871, 17 Stat. 13. 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 provides: 'That all persons canvassing 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.
30, 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 , 62
S.Ct. 1231, 141 A.L.R. 514. One judge dissented on the ground that the complaint did not
sufficiently allege a violation [319 U.S. 157, 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 , 63 S.Ct. 660, 87 L.Ed. --, and set the case for argument with Nos. 480-487,
Murdock et al. v. Commonwealth of 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, 8 U.S.C.A. 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 'every 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. C.I.O., 307 U.S. 496 , 507-514, 527-532, 59 S. Ct. 954, 960-963, 969971, the district courts of the United States are given jurisdiction by 28 U.S.C. 41(14), 28
U.S.C.A. 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 Four- [319 U.S. 157, 162] teenth 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 , 160, note 8, 60 S.Ct. 146, 150, and cases cited; Jamison v. Texas, 318 U.S.
413 , 63 S. Ct. 669, 87 L.Ed. --. 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 Fire Ins. Ass'n, 296 U.S. 64, 69 , 56 S.Ct. 1, 3; Commonwealth of
Pennsylvania v. Williams, 294 U.S. 176, 181 , 182 S., 55 S.Ct. 380, 383, 96 A.L.R. 1166, may
nevertheless, in the discretion of the court, be objected to on its own motion. Twist v. Prairie Oil
Co., 274 U.S. 684, 690 , 47 S.Ct. 755, 757; Commonwealth of Pennsylvania v. Williams, supra,
294 U.S. at page 185, 55 S.Ct. at page 385, 96 A.L.R. 1166. Especially should it do so where its
powers are invoked to interfere by injunction with threatened criminal prosecutions in a state
court.
The power reserved to the states under the Constitution to provide for the determination of
controversies in [319 U.S. 157, 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. Fire Ass'n, supra, 296 U.S. at page 73, 56 S.Ct. at page 5; Matthews v.
Rodgers, 284 U.S. 521, 525 , 526 S., 52 S. Ct. 217, 219, 220; cf. United States ex rel. Kennedy v.
Tyler, 269 U.S. 13 , 46 S.Ct. 1; Massachusetts State Grange v. Benton, 272 U.S. 525 , 47 S.Ct.
189.
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 guarantees, 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. City of Los Angeles, 189 U.S. 207 , 23 S.Ct. 498;
Fenner v. Boykin, 271 U.S. 240 , 46 S.Ct. 492. 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 the [319 U.S. 157,
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 Sales Co. v. Dodge, 295 U.S. 89, 95 , 55 S.Ct. 678, 680, and
cases cited; Beal v. Missouri Pac. R.R. Corp., 312 U.S. 45, 49 , 61 S.Ct. 418, 420; and cases
cited; Watson v. Buck, 313 U.S. 387 , 61 S.Ct. 962; Williams v. Miller, 317 U.S. 599 , 63 S.Ct.
258, 87 L.Ed. --.
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 this case.
Before the present suit was begun, convictions had been obtained in the state courts in cases Nos.
480-487, Murdock et al. v. Commonwealth of Pennsylvania, supra, 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. C.I.O., supra, 307
U.S. at pages 501, 502, 59 S.Ct. at pages 957, 958, where local officials forcibly broke up
meetings of the complainants and in many instances forcibly deported them from the state
without trial. [319 U.S. 157, 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.
at pages 529, 530, 52 S.Ct. at page 221, 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, 474 , 42 S.Ct.
375, 377; Standard Oil Co. v. United States, 283 U.S. 163, 182 , 51 S.Ct. 421, 428. And in view
of the decision rendered today in Murdock et al. v. Pennsylvania, supra, 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. [319 U.S. 157, 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.
AFFIRMED.
Mr. Justice JACKSON, concurring in the result in this case and dissenting in Nos. 480-487,
Murdock v. Pennsylvania, ante p. 105, and No. 238, Martin v Struthers, ante, p. 141:.
Except the case of Douglas et al. v. City of Jeannette (Pennsylvania) 319 U.S. 157 , 63 S.Ct. 877,
87 L.Ed. --, all of 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 that 'in view of the
decision rendered today in Murdock et al. v. Commonwealth of Pennsylvania supra ( 319 U.S.
157 , 63 S.Ct. 882, 87 L.Ed. --), 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,' which could hardly be said if the constitutional issues presented by the facts of this
case are not settled by the Murdock case. The facts of record in the Douglas case and their
relation to the facts of the other cases seem to [319 U.S. 157, 167] me worth recital and
consideration if we are realistically to weigh the conflicting claims of rights in the related cases
today decided.
From the record in Douglas we learn:
In 1939, a 'Watch Tower Campaign' was instituted by Jehovah's Witnesses in Jeannette,
Pennsylvania, an industrial city of some 16,000 inhabitants. 1 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. The [319 U.S. 157, 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. [319 U.S. 157, 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 appeal bonds.
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 'non-profit 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 not [319 U.S. 157, 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 were produced.
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 5õ and dispose of for a contribution
of 25õ. On others, the margin is less. Part- time ministers have a differential between the 20õ
which they remit to the Watch Tower Society and the 25õ 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 fact 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, [319 U.S. 157, 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.' Id. 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.' Id. 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 Church organization.' Id. at 204, 205. '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 'whore". Id. at 222. '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.'
Id. 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. [319 U.S. 157,
172] The spirit and temper of this campaign is most fairly stated perhaps in the words, again of
Rutherford, in his book 'Religion,' p. 196-198:
'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 [319 U.S. 157, 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, travelling 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 Douglas case.
In the Struthers case, 319 U.S. 141 , 63 S.Ct. 862, 87 L.Ed. --, 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's 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 annother 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,2 and that she [319 U.S. 157, 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 case is 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 [319 U.S. 157, 175] answer the
summons to the door and is apt to have positive religious convictions of his own. 3
Three subjects discussed in the opinions in Murdock v. Commonwealth of Pennsylvania 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 Murdock the Court says
'the present ordinance is not narrowly drawn to safeguard the people of the community in their
homes against the evils of solicitations,' 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 [319 U.S. 157, 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 draftsmanship.
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 [319 U.S. 157, 177] the
evidence we have recited. Doubtless there exists 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 with.
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
Murdock 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 in Murdock
that we 'have something very different from a registration system under which those going from
house to house are required to give their names, addresses and other marks of identification to
the authorities.' 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 [319 U.S. 157, 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 in so far 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 [319 U.S. 157, 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 nonreligious
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 can not let any group ride rough-shod over others simply because their
'consciences' tell them to do so. [319 U.S. 157, 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 case that 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 freedom.
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. State of New Hampshire, 315 U.S.
568 , 62 S.Ct. 766. How then can the Court today hold it a 'high constitutional privilege' to go to
homes, including those of devout Catholics on Palm Sunday morning and thrust upon them
literature calling their church a 'whore' and their faith a 'racket'? 4 [319 U.S. 157, 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. 5
I find it impossible to believe that the Struthers case 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 through 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 over- [319 U.S.
157, 182] ride 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
definition.
I think that the majority has failed in this duty. I therefore dissent in Murdock and Struthers and
concur in the result in Douglas.
I join in the opinions of Mr. Justice REED in Murdock and Struthers, and in that of Mr. Justice
FRANKFURTER in Murdock.
Mr. Justice FRANKFURTER joins in these views.
Footnotes
[ Footnote 1 ] 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. The 1936 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.
[ Footnote 2 ] 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 Fair Grounds. (on one side)
'1940's Event of Paramount Importance To You! What is it? The Theocratic Convention
of Jehovah's Witnesses. Five Days-July 24-28-Thirty Cities. All Lovers of
Righteousness-Welcome! The strange fate threatening all 'Christendom' makes it
imperative that you Come and Hear the public address on Religion as a World Remedy,
the Evidence in Support Thereof, by Judge Rutherford at the Coliseum of the Ohio State
Fair Grounds, Columbus, Ohio, Sunday, July 28, at 4 p.m., E.S.T. 'He that hath an ear to
hear' will come to one of the auditoriums of the convention cities listed below, tied in
with Columbus by direct wire. Some of the 30 cities are (21 are listed). For detailed
information concerning these conventions write Watchtower Convention Committee, 117
Adams St., Brooklyn, N.Y.' (on the other side)
[ Footnote 3 ] Compare 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 apartment house.'
[ Footnote 4 ] Compare Valentine v. Chrestensen, 316 U.S. 52 , 62 S.Ct. 920, permitting a ban on
distribution of a handbill containing a civic appeal on one side and a commercial advertisement
on the other.
[ Footnote 5 ] See Chafee, supra footnote 3, pp. 406, 407.
XXXXXXXXX
XXXXXXXXX
U.S. Supreme Court
JONES v. CITY OF OPELIKA, 319 U.S. 105 (1943)
319 U.S. 105
MURDOCK
v.
COMMONWEALTH OF PENNSYLVANIA and seven other cases.
Nos. 480-487.
Argued March 10, 11, 1943.
Decided May 3, 1943.
[319 U.S. 105, 106]
Mr. Hayden C. Covington, of Brooklyn, N.Y., for petitioners.
Mr. Fred B. Trescher, of Greensburg, Pa., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
The City of Jeannette, Pennsylvania, has an ordinance, some forty years old, which provides in
part:
'That all persons canvassing for or soliciting within said Borough, orders for goods,
paintings, pictures, wares, or merchandise of any kind, or persons delivering such articles
under orders so obtained or solicited, shall be required to procure from the Burgess a
license to transact said business and shall pay to the Treasurer of said Borough therefore
the following sums according to the time for which said license shall be granted.
'For one day $1.50, for one week seven dollars ($7.00), for two weeks twelve dollars
($12.00), for three weeks twenty dollars ($20.00), provided that the provisions of this
ordinance shall not apply to persons selling by sample to manufacturers or licensed
merchants or dealers doing business in said Borough of Jeannette.'
Petitioners are 'Jehovah's Witnesses'. They went about from door to door in the City of Jeannette
distributing literature and soliciting people to 'purchase' certain religious books and pamphlets,
all published by the [319 U.S. 105, 107] Watch Tower Bible & Tract Society. 1 The 'price' of the
books was twenty- five cents each, the 'price' of the pamphlets five cents each. 2 In connection
with these activities petitioners used a phonograph3 on which they played a record expounding
certain of their views on religion. None of them obtained a license under the ordinance. Before
they were arrested each had made 'sales' of books. There was evidence that it was their practice
in making these solicitations to request a 'contribution' of twenty-five cents each for the books
and five cents each for the pamphlets but to accept lesser sums or even to donate the volumes in
case an interested person was without funds. In the present case some donations of pamphlets
were made when books were purchased. Petitioners were convicted and fined for violation of the
ordinance. Their judgments of conviction were sustained by the Superior Court of Pennsylvania,
149 Pa.Super. 175, 27 A.2d 666, against their contention that the ordinance deprived them of the
freedom of speech, press, and religion guaranteed by the First Amendment. Petitions for leave to
appeal to the Supreme Court of Pennsylvania were denied. The cases are here on petitions for
writs of certiorari which we granted along with the petitions for rehearing of Jones v. Opelika,
316 U.S. 584 , 62 S.Ct. 1231, 141 A.L.R. 514, and its companion cases. [319 U.S. 105, 108] The
First Amendment, which the Fourteenth makes applicable to the states, declares that 'Congress
shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press ....' It could hardly be denied that a
tax laid specifically on the exercise of those freedoms would be unconstitutional. Yet the license
tax imposed by this ordinance is in substance just that.
Petitioners spread their interpretations of the Bible and their religious beliefs largely through the
hand distribution of literature by full or part time workers. 4 They claim to follow the example of
Paul, teaching 'publickly, and from house to house.' Acts 20:20. They take literally the mandate
of the Scriptures, 'Go ye into all the world, and preach the gospel to every creature.' Mark 16:15.
In doing so they believe that they are obeying a commandment of God.
The hand distribution of religious tracts is an age-old form of missionary evangelism-as old as
the history of printing presses. 5 It has been a potent force in various religious movements down
through the years. 6 This form of evangelism is utilized today on a large scale by various
religious sects whose colporteurs carry the Gospel to thou- [319 U.S. 105, 109] sands upon
thousands of homes and seek through personal visitations to win adherents to their faith. 7 It is
more than preaching; it is more than distribution of religious literature. It is a combination of
both. Its purpose is as evangelical as the revival meeting. This form of religious activity occupies
the same high estate under the First Amendment as do worship in the churches and preaching
from the pulpits. It has the same claim to protection as the more orthodox and conventional
exercises of religion. It also has the same claim as the others to the guarantees of freedom of
speech and freedom of the press.
The integrity of this conduct or behavior as a religious practice has not been challenged. Nor do
we have presented any question as to the sincerity of petitioners in their religious beliefs and
practices, however misguided they may be thought to be Moreover, we do not intimate or
suggest in respecting their sincerity that any conduct can be made a religious rite and by the zeal
of the practitioners swept into the First Amendment. Reynolds v. [319 U.S. 105, 110] United
States, 98 U.S. 145, 161 , 167 S., and Davis v. Beason, 133 U.S. 333 , 10 S.Ct. 299, denied any
such claim to the practice of polygamy and bigamy. Other claims may well arise which deserve
the same fate. We only hold that spreading one's religious beliefs or preaching the Gospel
through distribution of religious literature and through personal visitations is an age-old type of
evangelism with as high a claim to constitutional protection as the more orthodox types. The
manner in which it is practiced at times gives rise to special problems with which the police
power of the states is competent to deal. See for example Cox v. New Hampshire 312 U.S. 569 ,
61 S.Ct. 762, 133 A.L.R. 1396, and Chaplinsky v. New Hampshire, 315 U.S. 568 , 62 S.Ct. 766.
But that merely illustrates that the rights with which we are dealing are not absolutes. Schneider
v. State, 308 U.S. 147, 160 , 161 S., 60 S.Ct. 146, 150. We are concerned, however, in these
cases merely with one narrow issue. There is presented for decision no question whatsoever
concerning punishment for any alleged unlawful acts during the solicitation. Nor is there
involved here any question as to the validity of a registration system for colporteurs and other
solicitors. The cases present a single issue-the constitutionality of an ordinance which as
construed and applied requires religious colporteurs to pay a license tax as a condition to the
pursuit of their activities.
The alleged justification for the exaction of this license tax is the fact that the religious literature
is distributed with a solicitation of funds. Thus it was stated in Jones v. Opelika, supra, 316 U.S.
at page 597, 62 S.Ct. at page 1239, 141 A.L.R. 514, that when a religious sect uses 'ordinary
commercial methods of sales of articles to raise propaganda funds', it is proper for the state to
charge 'reasonable fees for the privilege of canvassing'. Situations will arise where it will be
difficult to determine whether a particular activity is religious or purely commercial. The
distinction at times is vital. As we stated only the other day in Jamison v. Texas, 318 U.S. 413 ,
63 S.Ct. 669, 672, 87 L. Ed. --, 'The state can prohibit the use of the street for [319 U.S. 105, 111]
the distribution of purely commercial leaflets, even though such leaflets may have 'a civil appeal,
or a moral platitude' appended. Valentine v. Chrestensen, 316 U.S. 52, 55 , 62 S.Ct. 920, 922.
They may not prohibit the distribution of handbills in the pursuit of a clearly religious activity
merely because the handbills invite the purchase of books for the improved understanding of the
religion or because the handbills seek in a lawful fashion to promote the raising of funds for
religious purposes.' But the mere fact that the religious literature is 'sold' by itinerant preachers
rather than 'donated' does not transform evangelism into a commercial enterprise. If it did, then
the passing of the collection plate in church would make the church service a commercial
project. The constitutional rights of those spreading their religious beliefs through the spoken and
printed word are not to be gauged by standards governing retailers or wholesalers of books. The
right to use the press for expressing one's views is not to be measured by the protection afforded
commercial handbills. It should be remembered that the pamphlets of Thomas Paine were not
distributed free of charge. It is plain that a religious organization needs funds to remain a going
concern. But an itinerant evangelist however misguided or intolerant he may be, does not
become a mere book agent by selling the Bible or religious tracts to help defray his expenses or
to sustain him. Freedom of speech, freedom of the press, freedom of religion are available to all,
not merely to those who can pay their own way. As we have said, the problem of drawing the
line between a purely commercial activity and a religious one will at times be difficult. On this
record it plainly cannot be said that petitioners were engaged in a commercial rather than a
religious venture. It is a distortion of the facts of record to describe their activities as the
occupation of selling books and pamphlets. And the Pennsylvania court did not rest the
judgments of conviction on that basis, though it did find [319 U.S. 105, 112] that petitioners 'sold'
the literature. The Supreme Court of Iowa in State v. Mead, 230 Iowa 1217, 300 N.W. 523, 524,
described the selling activities of members of this same sect as 'merely incidental and collateral'
to their 'main object which was to preach and publicize the doctrines of their order.' And see
State v. Meredith, 197 S.C. 351, 15 S.E. 2d 678; People v. Barber, 289 N.Y. 378, 385-386, 46
N.E.2d 329. That accurately summarizes the present record.
We do not mean to say that religious groups and the press are free from all financial burdens of
government. See Grosjean v. American Press Co., 297 U.S. 233, 250 , 56 S.Ct. 444, 449. We
have here something quite different, for example, from a tax on the income of one who engages
in religious activities or a tax on property used or employed in connection with those activities. It
is one thing to impose a tax on the income or property of a preacher. It is quite another thing to
exact a tax from him for the privilege of delivering a sermon. The tax imposed by the City of
Jeannette is a flat license tax, the payment of which is a condition of the exercise of these
constitutional privileges. The power to tax the exercise of a privilege is the power to control or
suppress its enjoyment. Magnano Co. v. Hamilton, 292 U.S. 40, 44 , 45 S., 54 S.Ct. 599, 601,
and cases cited. Those who can tax the exercise of this religious practice can make its exercise so
costly as to deprive it of the resources necessary for its maintenance. Those who can tax the
privilege of engaging in this form of missionary evangelism can close its doors to all those who
do not have a full purse. Spreading religious beliefs in this ancient and honorable manner would
thus be denied the needy. Those who can deprive religious groups of their colporteurs can take
from them a part of the vital power of the press which has survived from the Reformation.
It is contended, however, that the fact that the license tax can suppress or control this activity is
unim- [319 U.S. 105, 113] portant if it does not do so. But that is to disregard the nature of this tax.
It is a license tax-a flat tax imposed on the exercise of a privilege granted by the Bill of Rights. A
state may not impose a charge for the enjoyment of a right granted by the federal constitution.
Thus, it may not exact a license tax for the privilege of carrying on interstate commerce (
McGoldrick v. Berwind-White Co., 309 U.S. 33 , 56-58, 60 S.Ct. 388, 397, 398, 128 A.L.R.
876), although it may tax the property used in, or the income derived from, that commerce, so
long as those taxes are not discriminatory. Id., 309 U.S. at page 47, 60 S.Ct. at page 392, 128
A.L.R. 876 and cases cited. A license tax applied to activities guaranteed by the First
Amendment would have the same destructive effect. It is true that the First Amendment, like the
commerce clause, draws no distinction between license taxes, fixed sum taxes, and other kinds of
taxes. But that is no reason why we should shut our eyes to the nature of the tax and its
destructive influence. The power to impose a license tax on the exercise of these freedoms is
indeed as potent as the power of censorship which this Court has repeatedly struck down. Lovell
v. Griffin, 303 U.S. 444 , 58 S.Ct. 666; Schneider v. State, supra; Cantwell v. Connecticut, 310
U.S. 296, 306 , 60 S.Ct. 900, 904, 128 A.L.R. 1352; Largent v. Texas, 318 U.S. 418 , 63 S.Ct.
667, 87 L.Ed. --; Jamison v. Texas, supra. It was for that reason that the dissenting opinions in
Jones v. Opelika, supra, stressed the nature of this type of tax. 316 U.S. at pages 607-609, 620,
623, 62 S.Ct. at pages 1243, 1244, 1250, 1251, 141 A.L.R. 514. In that case, as in the present
ones, we have something very different from a registration system under which those going from
house to house are required to give their names, addresses and other marks of identification to
the authorities. In all of these cases the issuance of the permit or license is dependent on the
payment of a license tax. And the license tax is fixed in amount and unrelated to the scope of the
activities of petitioners or to their realized revenues. It is not a nominal fee [319 U.S. 105, 114]
imposed as a regulatory measure to defray the expenses of policing the activities in question. 8 It
is in no way apportioned. It is a flat license tax levied and collected as a condition to the pursuit
of activities whose enjoyment is guaranteed by the First Amendment. Accordingly, it restrains in
advance those constitutional liberties of press and religion and inevitably tends to suppress their
exercise. That is almost uniformly recognized as the inherent vice and evil of this flat license tax.
As stated by the Supreme Court of Illinois in a case involving this same sect and an ordinance
similar to the present one, a person cannot be compelled 'to purchase, through a license fee or a
license tax, the privilege freely granted by the constitution.' 9 Blue Island v. Kozul, 379 Ill. 511,
519, 41 N.E.2d 515, 519. So it may not be said that proof is lacking that these license taxes either
separately or cumulatively have restricted or are likely to restrict petitioners' religious activities.
On their face they are a restriction of the free exercise of those freedoms which are protected by
the First Amendment.
The taxes imposed by this ordinance can hardly help but be as severe and telling in their impact
on the freedom [319 U.S. 105, 115] of the press and religion as the 'taxes on knowledge' at which
the First Amendment was partly aimed. Grosjean v. American Press Co., supra, 297 U.S. at
pages 244-249, 56 S.Ct. at pages 446-449. They may indeed operate even more subtly. Itinerant
evangelists moving throughout a state or from state to state would feel immediately the
cumulative effect of such ordinances as they become fashionable. The way of the religious
dissenter has long been hard. But if the formula of this type of ordinance is approved, a new
device for the suppression of religious minorities will have been found. This method of
disseminating religious beliefs can be crushed and closed out by the sheer weight of the toll or
tribute which is exacted town by town, village by village. The spread of religious ideas through
personal visitations by the literature ministry of numerous religious groups would be stopped.
The fact that the ordinance is 'nondiscriminatory' is immaterial. The protection afforded by the
First Amendment is not so restricted. A license tax certainly does not acquire constitutional
validity because it classifies the privileges protected by the First Amendment along with the
wares and merchandise of hucksters and peddlers and treats them all alike. Such equality in
treatment does not save the ordinance. Freedom of press, freedom of speech, freedom of religion
are in a preferred position.
It is claimed, however, that the ultimate question in determining the constitutionality of this
license tax is whether the state has given something for which it can ask a return. That principle
has wide applicability. State Tax Commission v. Aldrich, 316 U.S. 174 , 62 S.Ct. 1008, 139
A.L.R. 1436, and cases cited. But it is quite irrelevant here. This tax is not a charge for the
enjoyment of a privilege or benefit bestowed by the state. The privilege in question exists apart
from state authority. It is guaranteed the people by the federal constitution.
Considerable emphasis is placed on the kind of literature which petitioners were distributing-its
provocative, [319 U.S. 105, 116] abusive, and ill-mannered character and the assault which it
makes on our established churches and the cherished faiths of many of us. See Douglas v. City of
Jeannette, 319 U.S. 157 , 63 S.Ct. 877, 87 L.Ed. --, concurring opinion, decided this day. But
those considerations are no justification for the license tax which the ordinance imposes. Plainly
a community may not suppress, or the state tax, the dissemination of views because they are
unpopular, annoying or distasteful. If that device were ever sanctioned, there would have been
forged a ready instrument for the suppression of the faith which any minority cherishes but
which does not happen to be in favor. That would be a complete repudiation of the philosophy of
the Bill of Rights.
Jehovah's Witnesses are not 'above the law'. But the present ordinance is not directed to the
problems with which the police power of the state is free to deal. It does not cover, and
petitioners are not charged with, breaches of the peace. They are pursuing their solicitations
peacefully and quietly. Petitioners, moreover, are not charged with or prosecuted for the use of
language which is obscene, abusive, or which incites retaliation. Cf. Chaplinsky v. New
Hampshire, supra. Nor do we have here, as we did in Cox v. New Hampshire, supra, and
Chaplinsky v. New Hampshire, supra, state regulation of the streets to protect and insure the
safety, comfort, or convenience of the public. Furthermore, the present ordinance is not narrowly
drawn to safeguard the people of the community in their homes against the evils of solicitations.
See Cantwell v. Connecticut, supra, 310 U.S. at 306, 60 S.Ct. at page 904, 128 A.L.R. 1352. As
we have said, it is not merely a registration ordinance calling for an identification of the
solicitors so as to give the authorities some basis for investigating strangers coming into the
community. And the fee is not a nominal one, imposed as a regulatory measure and calculated to
defray the expense of protecting those on the streets and at home against the abuses of solicitors.
See Cox v. New Hamp- [319 U.S. 105, 117] shire, supra, 312 U.S. at pages 576, 577, 61 S.Ct. at
pages 765, 766, 133 A.L.R. 1396. Nor can the present ordinance strued to apply only to
solicitation from survive if we assume that it has been con-house to house. 10 The ordinance is
not narrowly drawn to prevent or control abuses or evils arising from that activity. Rather, it sets
aside the residential areas as a prohibited zone, entry of which is denied petitioners unless the tax
is paid. That restraint and one which is city wide in scope (Jones v. Opelika) are different only in
degree. Each is an abridgment of freedom of press and a restraint on the free exercise of religion.
They stand or fall together.
The judgment in Jones v. Opelika has this day been vacated. Freed from that controlling
precedent, we can restore to their high, constitutional position the liberties of itinerant
evangelists who disseminate their religious beliefs and the tenets of their faith through
distribution of literature. The judgments are reversed and the causes are remanded to the
Pennsylvania Superior Court for proceedings not inconsistent with this opinion.
REVERSED.
The dissenting opinions of Mr. Justice REED and Mr. Justice FRANKFURTER in Jones v. City
of Opelika, 63 S.Ct. at page 891 cover these cases also.
For dissenting opinion of Mr. Justice JACKSON, see 63 S.Ct. 882.
These cases present for solution the problem of the constitutionality of certain municipal
ordinances levying a tax for the production of revenue on the sale of books [319 U.S. 105, 118] and
pamphlets in the streets or from door to door. Decisions sustaining the particular ordinances were
entered in the three cases first listed at the last term of this Court. In that opinion the ordinances
were set out and the facts and issues stated. Jones v. Opelika, 316 U.S. 584 , 62 S.Ct. 1231, 141
A.L.R. 514. A rehearing has been granted. The present judgments vacate the old and invalidate
the ordinances. The eight cases of this term involve canvassing from door to door only under
similar ordinances, which are in the form stated in the Court's opinion. By a per curiam opinion
of this day, 319 U.S. 103 , 63 S.Ct. 890, 87 L.Ed. --, the Court affirms its acceptance of the
arguments presented by the dissent of last term in Jones v. Opelika. The Court states its position
anew in the Jeannette cases. 319 U.S. 105 , 63 S.Ct. 870, 87 L.Ed. --.
This dissent does not deal with an objection which theoretically could be made in each case, to
wit, that the licenses are so excessive in amount as to be prohibitory. This matter is not
considered because that defense is not relied upon in the pleadings, the briefs or at the bar. No
evidence is offered to show the amount is oppressive. An unequal tax, levied on the activities of
distributors of informatory publications, would be a phase of discrimination against the freedom
of speech, press or religion. Nor do we deal with discrimination against the petitioners, as
individuals or as members of the group, calling themselves Johovah's witnesses. There is no
contention in any of these cases that such discrimination is practiced in the application of the
ordinances. Obviously an improper application by a city, which resulted in the arrest of witnesses
and failure to enforce the ordinance against other groups, such as the Adventists, would raise
entirely distinct issues.
A further and important disclaimer must be made in order to focus attention sharply upon the
constitutional issue. This dissent does not express, directly or by inference, any conclusion as to
the constitutional rights of state or federal governments to place a privilege tax upon the [319 U.S.
105, 119] soliciting of a free-will contribution for religious purposes. Petitioners suggest that their
books and pamphlets are not sold but are given either without price or in appreciation of the
recipient's gift for the furtherance of the work of the witnesses. The pittance sought, as well as
the practice of leaving books with poor people without cost, gives strength to this argument. In
our judgment, however, the plan of national distribution by the Watch Tower Bible & Tract
Society, with its wholesale prices of five or twenty cents per copy for books, delivered to the
public by the witnesses at twenty-five cents per copy, justifies the characterization of the
transaction as a sale by all the state courts. The evidence is conclusive that the witnesses
normally approach a prospect with an offer of a book for twenty-five cents. Sometimes,
apparently rarely, a book is left with a prospect without payment. The quid pro quo is demanded.
If the profit was greater, twenty cents or even one dollar, no difference in principle would
emerge. The witness sells books to raise money for propagandising his faith, just as other
religious groups might sponsor bazaars or peddle tickets to church suppers or sell Bibles or
prayer books for the same object. However high the purpose or noble the aims of the witness, the
transaction has been found by the state courts to be a sale under their ordinances and, though our
doubt was greater than it is, the state's conclusion would influence us to follow its determination.
1 [319 U.S. 105, 120] In the opinion in Jones v. Opelika, 316 U.S. 584 , 62 S.Ct. 1231, 141 A.L.R.
514, on the former hearing, attention was called to the differentiation between these cases of
taxation and those of forbidden censorship, prohibition or discrimination. There is no occasion to
repeat what has been written so recently as to the constitutional right to tax the money raising
activities of religious or didactic groups. There are, however, other reasons not fully developed
in that opinion that add to our conviction that the Constitution does not prohibit these general
occupational taxes.
The real contention of the witnesses is that there can be no taxation of the occupation of selling
books and pamphlets because to do so would be contrary to the due process clause of the
Fourteenth Amendment, which now is held to have drawn the contents of the First Amendment
into the category of individual rights protected [319 U.S. 105, 121] from state deprivation. Gitlow
v. New York, 268 U.S. 652, 666 , 45 S.Ct. 625, 630; Near v. Minnesota, 283 U.S. 697, 707 , 51
S.Ct. 625, 708; Cantwell v. Connecticut, 310 U.S. 296, 303 , 60 S. Ct. 900, 903, 128 A.L.R.
1352. Since the publications teach a religion which conforms to our standards of legality, it is
urged that these ordinances prohibit the free exercise of religion and abridge the freedom of
speech and of the press.
The First Amendment reads as follows: 'Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.'
It was one of twelve proposed on September 25, 1789, to the States by the First Congress after
the adoption of the Constitution. Ten were ratified. They were intended to be and have become
our Bill of Rights. By their terms our people have a guarantee that so long as law as we know it
shall prevail, they shall live protected from the tyranny of the despot or the mob. None of the
provisions of our Constitution is more venerated by the people or respected by legislatures and
the courts than those which proclaim for our country the freedom of religion and expression.
While the interpreters of the Constitution find the purpose was to allow the widest practical
scope for the exercise of religion and the dissemination of information, no jurist has ever
conceived that the prohibition of interference is absolute. 2 Is subjection to nondiscriminatory,
nonexcessive taxation in the distribution of religious literature, a prohibition of the exercise of
religion or an abridgment of the freedom of the press? [319 U.S. 105, 122] Nothing has been
brought to our attention which would lead to the conclusion that the contemporary advocates of
the adoption of a Bill of Rights intended such an exemption. The words of the Amendment do
not support such a construction. 'Free' cannot be held to be without cost but rather its meaning
must accord with the freedom guaranteed. 'Free' means a privilege to print or pray without
permission and without accounting to authority for one's actions. In the Constitutional
Convention the proposal for a Bill of Rights of any kind received scant attention. 3 In the course
of the ratification of the Constitution, however, the absence of a Bill a Rights was used
vigorously by the opponents of the new government. A number of the states suggested
amendments. Where these suggestions have any bearing at all upon religion or free speech, they
indicate nothing as to any feeling concerning taxation either of religious bodies or their
evangelism. 4 This was not because freedom of [319 U.S. 105, 123] religion or free speech was not
understood. It was because the subjects were looked upon from standpoints entirely distinct from
taxation. 5
The available evidence of Congressional action shows clearly that the draftsmen of the
amendments had in mind the practice of religion and the right to be heard, rather than any
abridgment or interference with either by taxa- [319 U.S. 105, 124] tion in any form. 6 The
amendments were proposed by [319 U.S. 105, 125] Mr. Madison. He was careful to explain to the
Congress the meaning of the amendment on religion. The draft was commented upon by Mr.
Madison when it read: 'No religion shall be established by law, nor shall the equal rights of
conscience be infringed.' 1 Annals of Congress 729.
He said that he apprehended the meaning of the words on religion to be that Congress should not
establish a religion and enforce the legal observation of it by law, nor compel men to worship
God in any manner contrary to their conscience. Id., 730. No such specific interpretation of the
amendment on freedom of expression has been found in the debates. The clearest is probably
from Mr. Benson7 who said that 'The committee who framed this report proceeded on the
principle that these rights belonged to the people; they conceived them to be inherent; and all that
they meant to provide against was their being infringed by the Government.' Id., 731, 732.
There have been suggestions that the English taxes on newspapers, springing from the tax act of
10 Anne, c. 19, Sec. CI,8 influenced the adoption of the First Amendment. 9 [319 U.S. 105, 126]
These taxes were obnoxious but an examination of the sources of the suggestion is convincing
that there is nothing to support it except the fact that the tax on newspapers was in existence in
England and was disliked. 10 The simple answer is that if there had been any purpose of
Congress to prohibit any kind of taxes on the press its knowledge of the abominated English
taxes would have led it to ban them unequivocally.
It is only in recent years that the freedoms of the First Amendment have been recognized as
among the fundamental personal rights protected by the Fourteenth Amendment from
impairment by the states. 11 Until then these liberties were not deemed to be guarded from state
action by the Federal Constitution. 12 The states placed [319 U.S. 105, 127] restraints upon
themselves in their own constitutions in order to protect their people in the exercise of the
freedoms of speech and of religion. 13 Pennsylvania may be taken as a fair example. Its
constitution reads: 'All men have a natural and indefeasible right to worship Almighty God
according to the dictates of their own consciences; no man can of right be compelled to attend,
erect or support any place of worship, or to maintain any ministry against his consent; no human
authority can, in any case whatever, control or interfere with the rights of conscience and no
preference shall ever be given by law to any religious establishments or modes of worship.'
Purdon's Penna.Stat.Const., Art. I, Sec. 3.
'No person who acknowledges the being of a God, and a future state of rewards and
punishments shall, on account of his religious sentiments, be disqualified to hold any
office or place of trust or profit under this Commonwealth.' Id., Art. I, Sec. 4.
'The printing press shall be free to every person who may undertake to examine the
proceedings of the Legislature or any branch of government, and no law shall ever be
made to restrain the right thereof. The free communication of thoughts and opinions is
one of the invaluable rights of man, and every citizen may freely speak, write and print
on any subject, being responsible for the abuse of that liberty. ...' Id., Art. I, Sec. 7.
It will be observed that there is no suggestion of freedom from taxation, and this statement is
equally true of the other state constitutional provisions. It may be concluded that neither in the
state or the federal constitutions was general taxation of church or press interdicted.
Is there anything in the decisions of this Court which indicates that church or press is free from
the financial [319 U.S. 105, 128] burdens of government? We find nothing. Religious societies
depend for their exemptions from taxation upon state constitutions or general statutes, not upon
the Federal Constitution. Gibbons v. District of Columbia, 116 U.S. 404 , 6 S.Ct. 427. This Court
has held that the chief purpose of the free press guarantee was to prevent previous restraints upon
publication. Near v. Minnesota, 283 U.S. 697, 713 , 51 S.Ct. 625, 630.14 In Grosjean v.
American Press Co., 297 U.S. 233, 250 , 56 S.Ct. 444, 449, it was said that the predominant
purpose was to preserve 'an untrammeled press as a vital source of public information.' In that
case, a gross receipt tax on advertisements in papers with a circulation of more than twenty
thousand copies per week was held invalid because 'a deliberate and calculated device in the
guise of a tax to limit the circulation ....' There was this further comment: 'It is not intended by
anything we have said to suggest that the owners of newspapers are immune from any of the
ordinary forms of taxation for support of the government. But this is not an ordinary form of tax,
but one single in kind, with a long history of hostile misuse against the freedom of the press.' Id.,
297 U.S. 250 , 56 S.Ct. 449.
It may be said, however, that ours is a too narrow, technical and legalistic approach to the
problem of state taxation of the activities of church and press; that we should look not to the
expressed or historical meaning of the First Amendment but to the broad principles of free
speech and free exercise of religion which pervade our national way of life. It may be that the
Fourteenth Amendment guarantees these principles rather than the more definite concept
expressed in the First Amendment. This would mean that as a Court, we should determine what
sort of liberty it is that the due process clause of [319 U.S. 105, 129] the Fourteenth Amendment
guarantees against state restrictions on speech and church.
But whether we give content to the literal words of the First Amendment or to principles of the
liberty of the press and the church, we conclude that cities or states may levy reasonable, nondiscriminatory taxes on such activities as occurred in these cases. Whatever exemptions exist
from taxation arise from the prevailing law of the various states. The constitutions of Alabama
and Pennsylvania, with substantial similarity to the exemption provisions of other constitutions,
forbid the taxation of lots and buildings used exclusively for religious worship. Alabama (1901),
sec. 91; Pennsylvania (1874), Art. IX, sec. 1 P.S. These are the only exemptions of the press or
church from taxation. We find nothing more applicable to our problem in the other constitutions.
Surely this unanimity of specific state action on exemptions of religious bodies from taxes would
not have occurred throughout our history, if it had been conceived that the genius of our
institutions, as expressed in the First Amendment, was incompatible with the taxation of church
or press.
Nor do we understand that the Court now maintains that the Federal Constitution frees press or
religion of any tax except such occupational taxes as those here levied. Income taxes, ad valorem
taxes, even occupational taxes are presumably valid, save only a license tax on sales or religious
books. Can it be that the Constitution permits a tax on the printing presses and the gross income
of a metropolitan newspaper15 but denies the right to lay an occupational tax on the distributors
of the same papers? Does the exemption apply to booksellers or distributors of magazines or
only to religious publications? And if the latter to what distributors? Or to what books? Or is this
Court saying that a religious [319 U.S. 105, 130] practice of book distribution is free from taxation
because a state cannot prohibit the 'free exercise thereof' and a newspaper is subject to the same
tax even though the same Constitutional Amendment says the state cannot abridge the freedom
of the press? It has never been thought before that freedom from taxation was a perquisite
attaching to the privileges of the First Amendment. The national Government grants exemptions
to ministers and churches because it wishes to do so, not because the Constitution compels.
Internal Revenue Code, 22(b)(6), 101(6), 812(d), 1004(a)(2)(B), 26 U.S.C.A. Int.Rev.Code
22(b)(6), 101(6), 812(d), 1004( a)(2) (B). Where camp meetings or revivals charge admissions, a
federal tax would apply if Congress had not granted freedom from the exaction. Id ., 1701, 26
U.S.C.A. Int.Rev.Code 1701
It is urged that such a tax as this may be used readily to restrict the dissemination of ideas. This
must be conceded by the possibility of misuse does not make a tax unconstitutional. No abuse is
claimed here. The ordinances in some of these cases are the general occupation license type
covering many businesses. In the Jeannette prosecutions, the ordinance involved lays the usual
tax on canvassing or soliciting sales of goods, wares and merchandise. It was passed in 1898.
Every power of taxation or regulation is capable of abuse. Each one to some extent prohibits the
free exercise of religion and abridges the freedom of the press but that is hardly a reason for
denying the power. If the tax is used oppressively the law will protect the victims of such action.
This decision forces a tax subsidy notwithstanding our accepted belief in the separation of church
and state. Instead of all bearing equally the burdens of government, this Court now fastens upon
the communities the entire cost of policing the sales of religious literature. That the burden may
be heavy is shown by the record in the Jeannette cases. There are only eight prosecutions but one
hundred and four witnesses solicited in Jeannette the day [319 U.S. 105, 131] of the arrests. They
had been requested by the authorities to await the outcome of a test case before continuing their
canvassing. The distributors of religious literature, possibly of all informatory publications,
become today privileged to carry on their occupations without contributing their share to the
support of the government which provides the opportunity for the exercise of their liberties.
Nor do we think it can be said, properly, that these sales of religious books are religious
exercises. The opinion of the Court in the Jeannette cases emphasizes for the first time the
argument that the sale of books and pamphlets is in itself a religious practice. The Court says the
witnesses 'spread their interpretations of the Bible and their religious beliefs largely through the
hand distribution of literature by full or part time workers,' 'The hand distribution of religious
tracts is an age-old form of missionary evangelism-as old as the history of printing presses.' 'It is
more than preaching; it is more than distribution of religious literature. It is a combination of
both. Its purpose is as evangelical as the revival meeting. This form of religious activity occupies
the same high estate under the First Amendment as do worship in the churches and preaching
from the pulpits.' 'Those who can tax the exercise of his religious practice can make its exercise
so costly as to deprive it of the resources necessary for its maintenance.' 'The judgment in Jones
v. Opelika has this day been vacated. Freed from that controlling precedent, we can restore to
their high, constitutional position the liberties of itinerant evangelists who disseminate their
religious beliefs and the tenets of their faith through distribution of literature.' The record shows
that books entitled 'Creation' and 'Salvation', as well as Bibles, were offered for sale. We shall
assume the first two publications, also, are religious books. Certainly there can be no dissent
from the statement that [319 U.S. 105, 132] selling religious books is an age-old practice or that it
is evangelism in the sense that the distributors hope the readers will be spiritually benefited. That
does not carry us to the conviction, however, that when distribution of religious books is made at
a price, the itinerant colporteur is performing a religious rite, is worshipping his Creator in his
way. Many sects practice healing the sick as an evidence of their religious faith or maintain
orphanages or homes for the aged or teach the young. These are, of course, in a sense, religious
practices but hardly such examples of religious rites as are encompassed by the prohibition
against the free exercise of religion.
And even if the distribution of religious books was a religious practice protected from regulation
by the First Amendment, certainly the affixation of a price for the articles would destroy the
sacred character of the transaction. The evangelist becomes also a book agent.
The rites which are protected by the First Amendment are in essence spirtual-prayer, mass,
sermons, sacrament-not sales of religious goods. The card furnished each witness to identify him
as an ordained minister does not go so far as to say the sale is a rite. It states only that the
witnesses worship by exhibiting to people 'the message of said gospel in printed form, such as
the Bible, books, booklets and magazines, and thus afford the people the opportunity of learning
of God's gracious provision for them.' On the back of the card appears: 'You may contribute
twenty- five cents to the Lord's work and receive a copy of this beautiful book.' The sale of these
religious books has, we think, relation to their religious exercises, similar to the 'information
march,' said by the witnesses to be one of their 'ways of worship' and by this Court to be subject
to regulation by license in Cox v. New Hampshire, 312 U.S. 569, 572 , 573 S., 576, 61 S.Ct. 762,
764, 765, 766, 133 A.L.R. 1396.
The attempted analogy in the dissenting opinion in Jones v. Opelika, 316 U.S. 584, 609 , 611 S.,
62 S.Ct. 1231, 1244, 1245, 141 A.L. R. 514, which now be- [319 U.S. 105, 133] comes the
decision of this Court, between the forbidden burden of a state tax for the privilege of engaging
in interstate commerce and a state tax on the privilege of engaging in the distribution of religious
literature is wholly irrelevant. A state tax on the privilege of engaging in interstate commerce is
held invalid because the regulation of commerce between the states has been delegated to the
Federal Government. This grant includes the necessary means to carry the grant into effect and
forbids state burdens without Congressional consent. 16 It is not the power to tax interstate
commerce which is interdicted but the exercise of that power by an unauthorized sovereign, the
individual state. Although the fostering of commerce was one of the chief purposes for
organizing the present Government, that commerce may be burdened with a tax by the United
States. Internal Revenue Code, 3469, 26 U.S.C.A. Int.Rev.Code 3469. Commerce must pay its
way. It is not exempt from any type of taxation if imposed by an authorized authority. The Court
now holds that the First Amendment wholly exempts the church and press from a privilege tax,
presumably by the national as well as the state governments.
The limitations of the Constitution are not maxims of social wisdom but definite controls on the
legislative process. We are dealing with power, not its abuse. This late withdrawal of the power
of taxation over the distribution activities of those covered by the First Amendment fixes what
seems to us an unfortunate principle of tax exemption, capable of indefinite extension. We had
thought that such an exemption required a clear and certain grant. This we do not find in the
language of the First and Fourteenth Amendments. We are therefore of the opinion the
judgments below should be affirmed. [319 U.S. 105, 134] Mr. Justice ROBERTS, Mr. Justice
FRANKFURTER, and Mr. Justice JACKSON join in this dissent. Mr. Justice JACKSON has
stated additional reasons for dissent in his concurrence in Douglas v. Jeannette, 319 U.S. 157 , 63
S. Ct. 882, 87 L.Ed. --, decided this day.
Mr. Justice FRANKFURTER, dissenting.
While I wholly agree with the views expressed by Mr. Justice REED, the controversy is of such
a nature as to lead me to add a few words.
A tax can be a means for raising revenue, or a device for regulating conduct, or both. Challenge
to the constitutional validity of a tax measure requires that it be analyzed and judged in all its
aspects. We must therefore distinguish between the questions that are before us in these cases
and those that are not. It is altogether incorrect to say that the question here is whether a state can
limit the free exercise of religion by imposing burdensome taxes. As the opinion of my Brother
REED demonstrates, we have not here the question whether the taxes imposed in these cases are
in practical operation an unjustifiable curtailment upon the petitioners' undoubted right to
communicate their views to others. No claim is made that the effect of these taxes, either
separately or cumulatively, has been or is likely to be to restrict the petitioners' religious
propaganda activities in any degree. Counsel expressly disclaim any such contention. They insist
on absolute immunity from any kind of monetary exaction for their occupation. Their claim is
that no tax, no matter how trifling, can constitutionally be laid upon the activity of distributing
religious literature, regardless of the actual effect of the tax upon such activity. That is the only
ground upon which these ordinances have been attacked, that is the only question raised in or
decided by the state courts, and that is the only question presented to us. No complaint is made
against the size of the taxes. If an appropriate claim, indicating that the taxes were oppressive in
their effect upon the petition- [319 U.S. 105, 135] ers' activities, had been made, the issues here
would be very different. No such claim has been made, and it would be gratuitous to consider its
merits.
Nor have we occasion to consider whether these measures are invalid on the ground that they
unjustly or unreasonably discriminate against the petitioners. Counsel do not claim, as indeed
they could not, that these ordinances were intended to or have been applied to discriminate
against religious groups generally or Jehovah's Witnesses particularly. No claim is made that the
effect of the taxes is to hinder or restrict the activities of Jehovah's Witnesses while other
religious groups, perhaps older or more prosperous, can carry on theirs. This question, too, is not
before us.
It cannot be said that the petitioners are constitutionally exempt from taxation merely because
they may be engaged in religious activities or because such activities may constitute an exercise
of a constitutional right. It will hardly be contended, for example, that a tax upon the income of a
clergyman would violate the Bill of Rights, even though the tax is ultimately borne by the
members of his church. A clergyman, no less than a judge, is a citizen. And not only in time of
war would neither willingly enjoy immunity from the obligations of citizenship. It is only fair
that he also who preaches the word of God should share in the costs of the benefits provided by
government to him as well as to the other members of the community. And so no one would
suggest that a clergyman who uses an automobile or the telephone in connection with his work
thereby gains a constitutional exemption from taxes levied upon the use of automobiles or upon
telephone calls. Equally alien is it to our constitutional system to suggest that the Constitution of
the United States exempts church-held lands from state taxation. Plainly, a tax measure is not
invalid under the federal Constitution merely because it falls upon persons engaged in activities
of a religious nature. [319 U.S. 105, 136] Nor can a tax be invalidated merely because it falls upon
activities which constitute an exercise of a constitutional right. The First Amendment of course
protects the right to publish a newspaper or a magazine or a book. But the crucial question ishow much protection does the Amendment give, and against what is the right protected? It is
certainly true that the protection afforded the freedom of the press by the First Amendment does
not include exemption from all taxation. A tax upon newspaper publishing is not invalid simply
because it falls upon the exercise of a constitutional right. Such a tax might be invalid if it
invidiously singled out newspaper publishing for bearing the burdens of taxation or imposed
upon them in such ways as to encroach on the essential scope of a free press. If the Court could
justifiably hold that the tax measures in these cases were vulnerable on that ground, I would
unreservedly agree. But the Court has not done so, and indeed could not.
The vice of the ordinances before us, the Court holds, is that they impose a special kind of tax, a
'flat license tax, the payment of which is a condition of the exercise of these constitutional
privileges (to engage in religious activities).' But the fact that an occupation tax is a 'flat' tax
certainly is not enough to condemn it. A legislature undoubtedly can tax all those who engage in
an activity upon an equal basis. The Constitution certainly does not require that differentiations
must be made among taxpayers upon the basis of the size of their incomes or the scope of their
activities. Occupation taxes normally are flat taxes, and the Court surely does not mean to hold
that a tax is bad merely because all taxpayers pursuing the very same activities and thereby
demanding the same governmental services are treated alike. Nor, as I have indicated, can a tax
be invalidated because the exercise of a constitutional privilege is conditioned upon its payment.
It depends upon the nature of the condition that [319 U.S. 105, 137] is imposed, its justification,
and the extent to which it hinders or restricts the exercise of the privilege.
As I read the Court's opinion, it does not hold that the taxes in the cases before us in fact do
hinder or restrict the petitioners in exercising their constitutional rights. It holds that 'The power
to tax the exercise of a privilege is the power to control or suppress its enjoyment'. This assumes
that because the taxing power exerted in Magnano Co. v. Hamilton, 292 U.S. 40 , 54 S.Ct. 599,
the well-known oleomargarine tax case, may have had the effect of 'controlling' or 'suppressing'
the enjoyment of a privilege and still was sustained by this Court, and because all exertions of
the taxing power may have that effect, if perchance a particular exercise of the taxing power does
have that effect, it would have to be sustained under our ruling in the Magnano case.
The power to tax, like all powers of government, legislative, executive and judicial alike, can be
abused or perverted. The power to tax is the power to destroy only in the sense that those who
have power can misuse it. Mr. Justice Holmes disposed of this smooth phrase as a constitutional
basis for invalidating taxes when he wrote 'The power to tax is not the power to destroy while
this Court sits.' Panhandle Oil Co. v. State of Mississippi ex rel. Knox, 277 U.S. 218, 223 , 48
S.Ct. 451, 453, 56 A.L.R. 583. The fact that a power can be perverted does not mean that every
exercise of the power is a perversion of the power. Thus, if a tax indirectly suppresses or controls
the enjoyment of a constitutional privilege which a legislature cannot directly suppress or
control, of course it is bad. But it is irrelevant that a tax can suppress or control if it does not. The
Court holds that 'Those who can tax the exercise of this religious practice can make its exercise
so costly as to deprive it of the resources necessary for its maintenance'. But this is not the same
as saying that 'Those who do tax the exercise of this religious practice have made its exercise so
costly as to deprive it of the resources necessary for its maintenance.' [319 U.S. 105, 138] The
Court could not plausibly make such an assertion because the petitioners themselves disavow
any claim that the taxes imposed in these cases impair their ability to exercise their constitutional
rights. We cannot invalidate the tax measures before us simply because there may be others, not
now before us, which are oppressive in their effect. The Court's opinion does not deny that the
ordinances involved in these cases have in no way disabled the petitioners to engage in their
religious activities. It holds only that 'Those who can tax the privilege of engaging in this form of
missionary evangelism can close its doors to all those who do not have a full purse.' I quite agree
with this statement as an abstract proposition. Those who possess the power to tax might wield it
in tyrannical fashion. It does not follow, however, that every exercise of the power is an act of
tyranny, or that government should be impotent because it might become tyrannical. The
question before us now is whether these ordinances have deprived the petitioners of their
constitutional rights, not whether some other ordinances not now before us might be enacted
which might deprive them of such rights. To deny constitutional power to secular authority
merely because of the possibility of its abuse is as valid as to deny the basis of spiritual authority
because those in whom it is temporarily vested may misuse it.
The petitioners say they are immune as much from a flat occupation tax as from a licensing fee
purporting explicitly to cover only the costs of regulation. They rightly reject any distinction
between this occupation tax and such a licensing fee. There is no constitutional difference
between a so-called regulatory fee and an imposition for purposes of revenue. The state exacts
revenue to maintain the costs of government as an entirety. For certain purposes and at certain
times a legislature may earmark exactions to cover the costs of specific governmental services.
In most instances the revenues of the state are tapped from multitudinous sources for a [319 U.S.
105, 139] common fund out of which the costs of government are paid. As a matter of public
finance, it is often impossible to determine with nicety the governmental expenditures
attributable to particular activities. But, in any event, whether government collects revenue for
the costs of its services through an earmarked fund, or whether an approximation of the cost of
regulation goes into the general revenues of government out of which all expenses are borne, is a
matter of legislative discretion and not of constitutional distinction. Just so long as an occupation
tax is not used as a cover for discrimination against a constitutionally protected right or as an
unjustifiable burden upon it, from the point of view of the Constitution of the United States it can
make no difference whether such a money exaction for governmental benefits is labeled a
regulatory fee or a revenue measure.
It is strenuously urged that the Constitution denies a city the right to control the expression of
men's minds and the right of men to win others to their views. But the Court is not divided on
this proposition. No one disputes it. All members of the Court are equally familiar with the
history that led to the adoption of the Bill of Rights and are equally zealous to enforce the
constitutional protection of the free play of the human spirit. Escape from the real issue before us
cannot be found in such generalities. The real issue here is not whether a city may charge for the
dissemination of ideas but whether the states have power to require those who need additional
facilities to help bear the cost of furnishing such facilities. Street hawkers make demands upon
municipalities that involve the expenditure of dollars and cents, whether they hawk printed
matter or other things. As the facts in these cases show, the cost of maintaining the peace, the
additional demands upon governmental facilities for assuring security, involve outlays which
have to be met. To say that the Constitution forbids the states to obtain the necessary revenue
from the whole of a class that enjoys these benefits [319 U.S. 105, 140] and facilities, when in fact
no discrimination is suggested as between purveyors of printed matter and purveyors of other
things, and the exaction is not claimed to be actually burdensome, is to say that the Constitution
requires, not that the dissemination of ideas in the interest of religion shall be free, but that it
shall be subsidized by the state. Such a claim offends the most important of all aspects of
religious freedom in this country, namely, that of the separation of church and state.
The ultimate question in determining the constitutionality of a tax measure is-has the state given
something for which it can ask a return? There can be no doubt that these petitioners, like all
who use the streets, have received the benefits of government. Peace is maintained, traffic is
regulated, health is safeguarded-these are only some of the many incidents of municipal
administration. To secure them costs money, and a state's source of money is its taxing power.
There is nothing in the Constitution which exempts persons engaged in religious activities from
sharing equally in the costs of benefits to all, including themselves, provided by government.
I cannot say, therefore, that in these cases the community has demanded a return for that which it
did not give. Nor am I called upon to say that the state has demanded unjustifiably more than the
value of what it gave, nor that its demand in fact cramps activities pursued to promote religious
beliefs. No such claim was made at the bar, and there is no evidence in the records to substantiate
any such claim if it had been made. Under these circumstances, therefore, I am of opinion that
the ordinances in these cases must stand.
Mr. Justice JACKSON joins in this dissent.
Footnotes
[ Footnote 1 ] Two religious books-Salvation and Creation-were sold. Others were offered in
addition to the Bible. The Watch Tower Bible & Tract Society is alleged to be a non-profit
charitable corporation.
[ Footnote 2 ] Petitioners paid three cents each for the pamphlets and, if they devoted only their
spare time to the work, twenty cents each for the books. Those devoting full time to the work
acquired the books for five cents each. There was evidence that some of the petitioners paid the
difference between the sales price and the cost of the books to their local congregations which
distributed the literature.
[ Footnote 3 ] Purchased along with the record from the Watch Tower Bible & Tract Society.
[ Footnote 4 ] The nature and extent of their activities throughout the world during the years
1939 and 1940 are to be found in the 1941 Yearbook of Jehovah's Witnesses, pp. 62-243.
[ Footnote 5 ] Palmer, The Printing Press and the Gospel (1912).
[ Footnote 6 ] White, The Colporteur Evangelist (1930); Home Evangelization (1850); Edwards,
The Romance of the Book (1932) c. V; 12 Biblical Repository (1944) Art. VIII; 16 The Sunday
Magazine (1887) pp. 43-47; 3 Meliora (1861) pp. 311-319; Felice, Protestants of France (1853)
pp. 53, 513; 3 D'Aubigne, History of The Reformation (1849) pp. 103, 152, 436-437; Report of
Colportage in Virginia, North Carolina & South Carolina, American Tract Society (1855). An
early type of colporteur was depicted by John Greenleaf Whittier in his legendary poem, The
Vaudois Teacher. And see, Wylie, History of the Waldenses.
[ Footnote 7 ] The General Conference of Seventh-Day Adventists who filed a brief amicus
curiae on the reargument of Jones v. Opelika has given us the following data concerning their
literature ministry: This denomination has 83 publishing houses throughout the world issuing
publications in over 200 languages. Some 9,256 separate publications were issued in 1941. By
printed and spoken word the Gospel is carried into 412 countries in 824 languages. 1942 Year
Book, p. 287. During December 1941 a total of 1018 colporteurs operated in North America.
They delivered during that month $ 97,997.19 worth of gospel literature and for the whole year
of 1941 a total of $790,610.36-an average per person of about $65 per month. Some of these
were students and temporary workers. Colporteurs of this denomination receive half of their
collections from which they must pay their traveling and living expenses. Colporteurs are
specially trained and their qualifications equal those of preachers. In the field each worker is
under the supervision of a field missionary secretary to whom a weekly report is made. After
fifteen years of continuous service each colporteur is entitled to the same pension as retired
ministers. And see Howell, The Great Advent Movement (1935), pp. 72-75.
[ Footnote 8 ] The constitutional difference between such a regulatory measure and a tax on the
exercise of a federal right has long been recognized. While a state may not exact a license tax for
the privilege of carrying on interstate commerce (McGoldrick v. Berwind-White Co., supra, 309
U.S. at pages 56-58, 60 S.Ct. at pages 397, 398, 128 A.L.R. 876) it may, for example, exact a fee
to defray the cost of purely local regulations in spite of the fact that those regulations incidentally
affect commerce. 'So long as they do not impede the free flow of commerce and are not made the
subject of regulation by Congress, they are not forbidden.' Clyde-Mallory Lines v. Alabama, 296
U.S. 261, 267 , 56 S.Ct. 194, 196, and cases cited. And see Sough Carolina v. Barnwell Bros.,
Inc., 303 U.S. 177 , 185-188, 625, 58 S.Ct. 510, 513-515.
[ Footnote 9 ] That is the view of most state courts which have passed on the question.
McConkey v. Fredericksburg, 179 Va. 556, 19 S.E.2d 682; State v. Greaves, 112 Vt. 222, 22
A.2d 497; People v. Banks, 168 Misc. 515, 6 N.Y.S. 2d 41. Contra: Cook v. Harrison, 180 Ark.
546, 21 S.W.2d 966.
[ Footnote 10 ] The Pennsylvania Superior Court stated that the ordinance has been 'enforced'
only to prevent petitioners from canvassing 'from door to door and house to house' without a
license and not to prevent them from distributing their literature on the streets. 149 Pa.Super. at
page 184, 27 A.2d at page 670.
[ Footnote 1 ] The Court in the Murdock case, 319 U.S. 105 , 63 S.Ct. 870, 87 L.Ed . --, analyzes
the contention that the sales technique partakes of commercialism and says: 'It is a distortion of
the facts of record to describe their activities as the occupation of selling books and pamphlets.
And the Pennsylvania court did not rest the judgments of conviction on that basis, though it did
find that petitioners 'sold' the literature.' The state court, in its opinion, 149 Pa.Super. 175, 27
A.2d 666, 667, stated the applicable ordinance as forbidding sales of merchandise by canvassing
without a license, and said that the evidence established its violation by selling 'two books
entitled 'Salvation' and 'Creation' respectively, and certain leaflets or pamphlets, all published by
the Watch Tower Bible and Tract Society of Brooklyn, N.Y., for which the society fixed twentyfive cents each as the price for the books and five cents each as the price of the leaflets.
Defendants paid twenty cents each for the books, unless they devoted their whole time to the
work, in which case they paid five cents each for the books they sold at twenty-five cents. Some
of the witnesses spoke of 'contributions' but the evidence justified a finding that they sold the
books and pamphlets.'
The state court then repeated with approval from one of its former decisions the statements: 'The
constitutional right of freedom of worship does not guarantee anybody the right to sell anything
from house to house or in buildings, belonging to, or in the occupancy of, other persons.' ' ... we
do not accede to his contention on the oral argument that the federal decisions relied upon by
him go so far as to rule that the constitutional guaranty of a free press forbids dealers in books
and printed matter being subjected to our State mercantile license tax or the federal income tax as
to such sales, along with dealers in other merchandise.' City of Pittsburgh v. Ruffner, 134
Pa.Super. 192, 199, 202, 4 A.2d 224. And after further discussion of selling, the conviction of the
witnesses was affirmed. It can hardly be said, we think, that the state court did not treat the
Jeannette canvassers as engaged in a commercial activity or occupation at the time of their
arrests.
[ Footnote 2 ] Whitney v. California, 274 U.S. 357, 371 , 47 S.Ct. 641, 646, and the concurring
opinion, 274 U.S. 373 , 47 S.Ct. 647; Reynolds v. United States, 98 U.S. 145 , 166; Cantwell v.
Connecticut, 310 U.S. 296, 303 , 60 S.Ct. 900, 903, 128 A.L.R. 1352; Cox v. New Hampshire,
312 U.S. 569, 574 , 576 S., 61 S.Ct. 762, 764, 766, 133 A.L.R. 1396.
[ Footnote 3 ] Journal of the Convention, 369; II Farrand, The Records of the Federal
Convention, 611, 616-8, 620. Cf. McMaster & Stone, Pennsylvania and the Federal Constitution,
251-3.
[ Footnote 4 ] I Elliot's Debates on the Federal Constitution (1876) 319 et seq. In ratifying the
Constitution the following declarations were made: New Hampshire, p. 326, 'XI. Congress shall
make no laws touching religion, or to infringe the rights of conscience.' Virginia, p. 327, '... no
right, of any denomination, can be cancelled, abridged, restrained, or modified, by the Congress,
by the Senate or House of Representatives, acting in any capacity, by the President, or any
department or officer of the United States, except in those instances in which power is given by
the Constitution for those purposes; and that among other essential rights, the liberty of
conscience, and of the press, cannot be cancelled, abridged, restrained, or modified, by any
authority of the United States.' New York, p. 328, 'That the freedom of the press ought not to be
violated or restrained.' After the submission of the amendments, Rhode Island ratified and
declared, pp. 334, 335, 'IV. That religion, or the duty which we owe to our Creator, and the
manner of discharging it, can be directed only by reason and conviction, and not by force and
violence; and therefore all men have a natural, equal, and unalienable right to the exercise of
religion according to the dictates of conscience; and that no particular religious sect or society
ought to be favored or established, by law, in preference to others. ... XVI. That the people have
a right to freedom of speech, and of writing and publishing their sentiments. That freedom of the
press is one of the greatest bulwarks of liberty, and ought not to be violated.'
[ Footnote 5 ] The Articles of Confederation had references to religion and free speech:
'Article III. The said States hereby severally enter into a firm league of friendship with
each other, for their common defence, the security of their liberties, and their mutual and
general welfare, binding themselves to assist each other, against all force offered to, or
attacks made upon them, or any of them, on account of religion, sovereignty, trade, or
any other pretence whatever.'
'Article V. ... Freedom of speech and debate in Congress shall not be impeached or
questioned in any court, or place out of Congress, and the members of Congress shall be
protected in their persons from arrests and imprisonments, during the time of their going
to and from, and attendance on Congress, except for treason, felony, or breach of the
peace.'
The Statute of Religious Freedom was passed in Virginia in 1785. The substance was in
paragraph II: 'Be it enacted by the General Assembly, That no man shall be compelled to
frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced,
restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of
his religious opinions or belief; but that all men shall be free to profess, and by argument to
maintain, their opinion in matters of religion, and that the same shall in no wise diminish,
enlarge, or affect their civil capacities.' 12 Hening Statutes of Va. 86.
A number of the states' constitutions at the time of the adoption of the Bill of Rights contained
provisions as to a free press:
Georgia, Constitution of 1777, Art. LXI. 'Freedom of the press and trial by jury to remain
inviolate forever.' I Poore, Federal and State Constitutions 383.
Maryland, Constitution of 1776, Declaration of Rights, Art. XXXVIII. 'That the liberty of the
press ought to be inviolably preserved.' Id., 820.
Massachusetts, Constitution of 1780, Part First, Art. XVI. 'The liberty of the press is essential to
the security of freedom in a State; it ought not, therefore, to be restrained in this commonwealth.'
Id. 959.
New Hampshire, Constitution of 1784, Part 1, Art. XXII. 'The Liberty of the Press is essential to
the security of freedom in a state; it ought, therefore, to be inviolably preserved.' 2 Poore, Id.,
1282.
North Carolina, Constitution of 1776, Declaration of Rights, Art. XV. 'That the freedom of the
press is one of the great bulwarks of liberty, and therefore ought never to be restrained.' Id.,
1410.
Pennsylvania, Constitution of 1776, Declaration of Rights, Art. XII. 'That the people have a right
to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of
the press ought not to be restrained.' Id., 1542.
Virginia, Bill of Rights, 1776, Sec. 12. 'That the freedom of the press is one of the great bulwarks
of liberty, and can never be restrained but by despotic governments.' Id., 1909.
[ Footnote 6 ] For example, the first amendment as it passed the House of Representatives on
Monday, August 24, 1789, read as follows:
'Congress shall make no law establishing religion or prohibiting the free exercise thereof,
nor shall the rights of Conscience be infringed.
'The Freedom of Speech, and of the Press, and the right of the People peaceably to
assemble, and consult for their common good, and to apply to the Government for a
redress of grievances, shall not be infringed.' Records of the United States Senate, 1A-C2
(U.S. Nat. Archives).
Apparently when the proposed amendments were passed by the Senate on September 9, 1789,
what is now the first amendment read as follows: 'Congress shall make no law establishing
articles of faith, or a mode of worship, or prohibiting the free exercise of religion, or abridging
the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to
petition to the government for a redress of grievances.' Id.
[ Footnote 7 ] Egbert Benson was the first attorney general of New York, a member of the
Continental Congress and of the New York Convention for ratification of the Constitution.
Biographical Directory of the American Congress, 694.
[ Footnote 8 ] 'And be it enacted by the Authority aforesaid, That there shall be raised, levied,
collected and paid, to and for the Use of her Majesty, her Heirs and Successors, for and upon all
Books and Papers commonly called Pamphlets, and for and upon all News Papers, or Papers
containing publick News, Intelligence or Occurrences, which shall, at any Time or Times within
or during the Term last mentioned, be printed in Great Britain, to be dispersed and made publick,
and for and upon such Advertisements as are herein after mentioned, the respective Duties
following; that is to say,
'For every such Pamphlet or Paper contained in Half a Sheet, or any lesser Piece of Paper,
so printed, the Sum of one Half-penny Sterling.
'For every such Pamphlet or Paper (being larger than Half a Sheet, and not exceeding one
whole Sheet) so printed, a Duty after the Rate of one Penny Sterling for every printed
Copy thereof.
'And for every such Pamphlet or Paper, being larger than one whole Sheet, and not
exceeding six Sheets in Octavo, or in a lesser Page, or not exceeding twelve Sheets in
Quarto, or twenty Sheets in Folio, so printed, a Duty after the Rate of two Shillings
Sterling for every Sheet of any kind of Paper which shall be contained in one printed
Copy thereof.
'And for every Advertisement to be contained in the London Gazette, or any other printed
Paper, such Paper being dispersed or made publick weekly, or oftner, the Sum of twelve
Pence Sterling.'
[ Footnote 9 ] Stevens, Sources of the Constitution, 221, note 2; Stewart, Lennox and the Taxes
on Knowledge, 15 Scottish Hist.Rev. 322, 326; McMaster & Stone, Pennsylvania and the
Federal Constitution, 181; Grosjean v. American Press Co., 297 U.S. 233, 248 , 56 S.Ct. 444,
448.
[ Footnote 10 ] Cf. Collet, Taxes on Knowledge; Chafee, Free Speech in the United States, 17, n.
33.
[ Footnote 11 ] Gitlow v. New York, 1925, 268 U.S. 652, 666 , 45 S.Ct. 625, 630; Near v.
Minnesota, 283 U.S. 697, 707 , 51 S.Ct. 625, 628; Cantwell v. Connecticut, 310 U.S. 296, 307 ,
60 S.Ct. 900, 905, 128 A.L.R. 1352.
[ Footnote 12 ] Permoli v. First Municipality, 3 How. 589, 609; Barron v. Mayor, etc., of
Baltimore, 7 Pet. 243, 247.
[ Footnote 13 ] For the state provisions on expression and religion, see 2 Cooley, Constitutional
Limitations (8th Ed.) 876, 965; III Constitutions of the States, New York State Con. Con.
Committee 1938.
[ Footnote 14 ] To this Professor Chafee adds the right to criticize the Government, Free Speech
in the United States (1941) 18 et seq. Cf. 2 Cooley's Constitutional Limitations (8th Ed.) 886.
[ Footnote 15 ] Giragi v. Moore, 301 U.S. 670 , 57 S.Ct. 946; Id., 48 Ariz. 33, 58 P.2d 1249, 110
A.L.R. 314; Id., 49 Ariz. 74, 64 P.2d 819, 110 A.L.R. 320.
[ Footnote 16 ] Brown v. Maryland, 12 Wheat. 419, 445, 448; Kentucky Whip & Collar Co. v.
Illinois Cent. R. Co., 299 U.S. 334, 350 , 57 S.Ct. 277, 282; Gwin, etc., Inc., v. Henneford, 305
U.S. 434, 438 , 59 S.Ct. 325, 327; Puget Sound Stevedoring Co. v. Tax Commission, 302 U.S.
90 , 58 S.Ct. 72.
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