                  U.S. Supreme Court 

                  319 U.S. 105 (1943)

                       MURDOCK 
                          v. 
      COMMONWEALTH OF PENNSYLVANIA 
               and seven other cases, including 
      JONES v. CITY OF OPELIKA, 319 U.S. 105 (1943)

                     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 phonograph[3] 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
thousands [319 U.S. 105, 109]  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 distribut ed
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 unimportant [319 U.S. 105, 113]  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 calli ng 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 Hampshire, [319 U.S. 105, 117]  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 construed to apply only to solicitation from house to
house survive if we assume that it has been.[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.



Footnotes

[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.

[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.

[3] Purchased along with the record from the Watch Tower Bible &
Tract Society.

[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.

[5] Palmer, The Printing Press and the Gospel (1912).

[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.

[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 w
orker 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. 

[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.

[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.

[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.


