Murdock v. Pennsylvania
319 U.S. 105 (1943)
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Rule of Law:
A state or municipality cannot condition the exercise of First Amendment freedoms of religion, speech, and press upon the payment of a flat license tax. Such a tax operates as an unconstitutional prior restraint on rights guaranteed by the Federal Constitution.
Facts:
- The City of Jeannette, Pennsylvania, enacted an ordinance requiring all persons soliciting orders for goods, wares, or merchandise to obtain a license for a fee.
- Murdock and other petitioners, who were Jehovah's Witnesses, went from door-to-door in the City of Jeannette.
- The petitioners distributed religious literature, including books and pamphlets, published by the Watch Tower Bible & Tract Society.
- They solicited people to 'purchase' books for twenty-five cents and pamphlets for five cents, though they sometimes accepted smaller contributions or donated the materials to interested persons without funds.
- While engaging in these activities, the petitioners also used a phonograph to play records expounding their religious views.
- None of the petitioners procured the license required by the city's ordinance before engaging in their door-to-door activities.
Procedural Posture:
- Murdock and other Jehovah’s Witnesses were convicted and fined in a local Pennsylvania court for violating the city's licensing ordinance.
- The petitioners appealed their convictions to the Superior Court of Pennsylvania, an intermediate appellate court.
- The Superior Court of Pennsylvania affirmed the trial court's judgments of conviction.
- The petitioners filed petitions for leave to appeal to the Supreme Court of Pennsylvania, the state's highest court, which were denied.
- The petitioners successfully petitioned the Supreme Court of the United States for a writ of certiorari to review the case.
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Issue:
Does a municipal ordinance that requires religious evangelists to pay a flat license fee as a condition for soliciting door-to-door and distributing religious literature violate the free exercise, free speech, and free press clauses of the First Amendment?
Opinions:
Majority - Mr. Justice Douglas
Yes. A municipal ordinance requiring religious colporteurs to pay a license tax as a condition to the pursuit of their activities violates the First Amendment. The distribution of religious literature, even when accompanied by a solicitation for funds, is a constitutionally protected religious activity, not a commercial enterprise. The court reasoned that this form of evangelism occupies the same 'high estate' as worship in churches and preaching from pulpits. A flat license tax is not a nominal regulatory fee but a tax on the exercise of a constitutional right, which acts as a prior restraint. The power to tax the exercise of a privilege is the power to control or suppress its enjoyment, and a state may not impose a charge for the enjoyment of a right granted by the Federal Constitution. The non-discriminatory nature of the tax is immaterial because freedoms of speech, press, and religion are in a 'preferred position.'
Dissenting - Mr. Justice Reed
No. The ordinance does not violate the First Amendment because it is a reasonable, non-discriminatory tax on the commercial activity of selling books. The petitioners' activities constitute a sale, as determined by the state courts, and the First Amendment does not grant immunity from general occupational taxes. The dissent argues that the framers of the Constitution never intended to exempt religious bodies or the press from the ordinary financial burdens of government. It reasons that the majority's decision incorrectly creates a tax subsidy for religious activities, contrary to the principle of separation of church and state. The analogy to taxes on interstate commerce is inapposite because states are forbidden from taxing interstate commerce as that power is reserved for Congress, whereas no constitutional provision grants a wholesale exemption from taxation for religious activities.
Dissenting - Mr. Justice Frankfurter
No. The ordinance is constitutional because the petitioners did not claim that the tax was oppressive or practically curtailed their activities, but rather insisted on absolute immunity from any tax. The dissent argues that the power to tax is not inherently the power to destroy, and the Court should not invalidate a tax merely because the power could be abused. The petitioners receive benefits from the government, such as police protection and maintained streets, and it is constitutional to require them to share in the costs of those benefits through a non-discriminatory tax. To exempt them from such a tax would be to require the state to subsidize their religious activities, which offends the principle of separation of church and state.
Analysis:
This decision significantly strengthened the protection for religious and expressive activities under the First Amendment by invalidating flat license taxes on such conduct. It established a crucial distinction between permissible general taxes (e.g., on property or income) and impermissible taxes that directly burden the privilege of exercising a constitutional right, classifying the latter as a form of prior restraint. By placing these freedoms in a 'preferred position,' the Court created a high barrier against municipal ordinances that might otherwise use licensing fees to regulate or suppress door-to-door evangelism and other forms of public advocacy. The ruling limits the power of local governments to raise revenue at the expense of First Amendment activities, thereby protecting itinerant and less-funded groups from being priced out of the public square.
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