Murdock v. Pennsylvania, 319 U.S. 105; 63 S. Ct. 870; 87 L. Ed. 1292 (1943)

Facts—The city of Jeannette, Pennsylvania, had an ordinance requiring all solicitors to get a license from the treasurer of the borough. The petitioners were Jehovah’s Witnesses, who were arrested for asking people to purchase certain religious books, as they distributed literature.

Question—Does this ordinance requiring a license for religious solicitors abridge First and Fourteenth Amendment freedoms of religion?

Decision—Yes.

Reasons—J. Douglas (5–4). A tax laid specifically on the freedom of the First Amendment would be unconstitutional. Yet the license tax in this case was just that in substance. The custom of hand-distribution of religious literature is old and has the same claim to protection as other conventional exercises of religion. In this case payment of the license tax is a condition for pursuing their religious activities.

“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. . . .

“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. ”

J. Reed, J. Frankfurter, and J. Jackson viewed the taxes in this case to be reasonable and nondiscriminatory.

Note—Murdock specifically reversed Jones v. Opelika (1942).