Important Supreme Court Reversal

A fundamental decision which affects our entire literature distribution.

By HEBER H. VOTAW, Secretary of the Religions Liberty Association

On June 8, 1942, the Supreme Court of the United States rendered an opinion on three cases which had been com­bined for consideration. The decision held that municipalities could constitutionally impose a tax for the privilege of circulating literature. The Court was sharply divided—five justices joining in the opinion, while four gave a strik­ing dissent. The majority recognized that neither courts nor constitutions can rightly "intrude into the consciences of men or compel them to believe contrary to their faith or think contrary to their convictions." Admitting this, and declaring that "the mind and spirit of man remain forever free," the Court imposed lib­erty-crushing restrictions on freedom of the press.

It does not, however, take the legal learning of a Supreme Court justice to know that force can never change a man's belief. The right not only to believe but to spread one's beliefs, is a liberty that the founders of this nation sought to secure and maintain for themselves and their descendants. It is doubtful whether many previous opinions of our highest tribunal ever evoked as much criticism as this one did. It was generally felt that a blow had been struck not only at freedom of the press but at freedom of religion.

On May 3 of this year the decision of June, 1942, was reversed. The reversal, however, does not offer strong grounds for rejoicing. Five men voted for it and four against it. The four who dissented were of the original major­ity. Mr. Justice Byrnes had left the Supreme Court bench to be succeeded by Mr. Justice Rutledge. This change evidently accounts en­tirely for the change in the Court's opinion.

The question of taxation of literature is not a new one. Evidently in the early days of printing, those rulers who sought to govern their subjects arbitrarily, saw a danger to tyr­anny in the freedom of the press. In the reign of Queen Anne of England, Parliament enacted a law to check "false and scandalous libels" against the government, and "the most horrid blasphemies against God and religion." To effect the thing sought, a tax was put on the press. In the reign of King George I there was imposed "upore every journal, mercury, or public newspaper" a duty of one penny for every sheet of printed matter. Later, provision was made so that anyone might take into cus­tody those who "hawked" unstamped news­papers, and any justice of the peace could send the offender to the house of correction for three months. Moreover the person who caused the arrest was given a reward of twenty shillings.

In the days of George III a penalty of one hundred pounds was provided for printing a newspaper without permission from the Stamp Office. At that time the London Times was a paper of four pages, each 22 by 152 inches, and the paper sold for seven pence (fourteen cents). Even as late as 1830 the English paper called Examiner bore this inscription, "Print and paper 32 d., taxes on knowledge 372 d., price 7 d." That was a bold, we might almost say bald, statement. In America in 1942 the claim of municipalities was that the tax was imposed for the general peace and well-being of the community. The supporters of the modern tax lacked the honesty of Englishmen in 1830.

On the same date, May 3, 1943, that the Court reversed its June, 1942, opinion, it also handed down decisions in a number of other cases. Mr. Justice Black, delivering an opin­ion in the case of Thelma Martin vs. the City of Struthers, Ohio, said, among other things :

"'Pamphlets have proved most effective instru­ments in the dissemination of opinion. And per­haps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people.' . . . Many of our most widely established religious organizations have used this method of disseminating their doctrines, and labor­ing groups have used it in recruiting their members. The Federal Government, in its current War Bood selling campaign, encourages groups of citizens to distribute advertisements and circulars from house to house. Of course, as every person acquainted with political life knows, door-to-door campaigning is one of the most accepted techniques of seeking popular support, while the circulation of nominating papers would be greatly handicapped if they could not be taken to the citizens in their homes. Door-to-door distribution of circulars is essential to the poorly financed causes of little people. . .

"The dangers of distribution can so easily be con­trolled by traditional legal methods, . . . that strin­gent prohibition can serve no purpose but that for­bidden by the Constitution, the naked restriction of the dissemination of ideas."

Mr. Justice Murphy, in concurring with the majority of the Supreme Court members, said:

"Repression has no place in this country. It is our proud achievement to have demonstrated that unity and strength are best accomplished, not by enforced orthodoxy of views, but by diversity of opinion through the fullest possible measure of freedom of conscience and thought. . . .

'Preaching from house to house is an age-old method of proselyting, and it must be remembered that 'one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.' . . .

"Freedom of religion has a higher dignity under the Constitution than municipal or personal con­venience. In these days free men have no loftier responsibility than the preservation of that freedom."

Mr. Justice Black gave the Court's opinion in a case decided on March 8, 1943. He de­clared that the State "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."

Mr. Justice Reed, speaking for the Court in a case from Lamar County, Texas, which was also decided on March 8, had this to say : "It is unnecessary to determine whether the distribu­tions of the publications in question are sales or contributions." In this case the mayor was authorized to issue a permit, if after investiga­tion he deemed it "proper or advisable." The justice continues : "Dissemination of ideas de­pends upon the approval of the distributor by the official. This is administrative censorship in an extreme form. It abridges the freedom of religion, of the press, and of speech, guaran­teed by the Fourteenth Amendment."

Religious Literature Distribution Evangelical

In giving the opinion for the Court in eight cases brought from the city of Jeannette, Penn­sylvania, and decided on May 3 before the re­versal referred to above was handed down, Mr. Justice Douglas used this forceful language:

"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 col-port ears carry the gospel to thousands 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 press." (Italics ours.)

Although these words do not bear directly on the constitutionality of the ordinances under review, they do show that Mr. Justice Douglas and those who concurred in the opinion had a fine appreciation of the value of litera­ture in religious work. All Adventists know that practically as soon as we began to preach we also began to print. By the Supreme Court's latest decision on freedom of the press, the right to print and publish the message is preserved to us. We should make the most of our present opportunities.


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By HEBER H. VOTAW, Secretary of the Religions Liberty Association

August 1943

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