U.S. Supreme Court
319 U.S. 105 (1943)
COMMONWEALTH OF PENNSYLVANIA
and seven other cases, including
JONES v. CITY OF OPELIKA, 319 U.S. 105 (1943)
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
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. The 'price' of the books was twenty-five cents each,
the 'price' of the pamphlets five cents each. In connection with these activities petitioners used a
phonograph 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
Petitioners spread their interpretations of the Bible and their religious
beliefs largely through the hand distribution of literature by full or part
time workers. 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. It has been a potent force in various religious
movements down through the years.
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. 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
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.
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.' 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
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. 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.
 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
 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.
 Purchased along with the record from the
Watch Tower Bible & Tract Society.
 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.
 Palmer, The Printing Press and the Gospel
 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 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.
 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.
 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.
 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.
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