Murdock v. Pennsylvania
The Supreme Court struck down a Pennsylvania town's ordinance that required traveling religious canvassers to buy a license before going door to door distributing religious literature, ruling the tax violated their freedom of speech, press, and religion.
The decision reversed the Court's own recent ruling in a companion case from the year before, and made clear that governments cannot charge a flat fee as a precondition for exercising a constitutional right, even when the literature is sold rather than given away.
“The power to tax the exercise of a privilege is the power to control or suppress its enjoyment.”
The Court's core reasoning for why a flat license tax on religious canvassing is unconstitutional.
How it got here: Pennsylvania's Superior Court upheld the convictions for violating the licensing ordinance; the Supreme Court agreed to hear the case after denying review of a similar recent decision.
The Case in Depth
What happened
Members of Jehovah's Witnesses went door to door in Jeannette, Pennsylvania, distributing religious pamphlets and books and asking for small "contributions" in exchange, without obtaining a license required by a local ordinance covering people who canvass or sell goods within the borough. They were convicted and fined for failing to get the license, and Pennsylvania's Superior Court upheld their convictions, rejecting their argument that the ordinance violated their First Amendment rights.
The question before the Court
Could a city make Jehovah's Witnesses pay a license tax before they could go door-to-door selling religious books and pamphlets?
Why it matters
Traveling religious groups and other door-to-door canvassers who distribute literature connected to their faith no longer have to pay upfront licensing fees to local governments before they can go from house to house. The ruling limits how far towns can go in treating religious outreach the same as ordinary commercial peddling.
What changes now
The convictions were reversed and the cases sent back to the Pennsylvania Superior Court for further proceedings consistent with the Supreme Court's ruling that the license tax could not be enforced against the petitioners. This was a final merits decision resolving the constitutional question, though it built on the Court's simultaneous vacating of its own recent ruling in Jones v. Opelika, which had reached the opposite conclusion the year before.
What this does not decide
The Court said it was not deciding whether police could punish unlawful conduct occurring during solicitation, whether cities could require solicitors to register with authorities, or whether taxes on the income or property of religious workers are permissible. It only addressed a flat license tax charged as a condition for engaging in door-to-door religious literature distribution.
Concurrences and dissents
Dissent — Justice Reed
“This decision forces a tax subsidy notwithstanding our accepted belief in the separation of church and state.”Reed's objection that exempting religious canvassers from the tax unfairly shifts costs onto other taxpayers.
Justice Reed argued the Constitution has never exempted religious activity from ordinary, nondiscriminatory occupational taxes, tracing the history of the First Amendment's drafting and state constitutional practice to show no intent to bar such taxes. He viewed selling religious books for a fixed price as a commercial transaction rather than a religious rite, and worried the ruling created an unjustified tax subsidy for literature distributors at the expense of the general public.
Dissent — Justice Frankfurter
Justice Frankfurter emphasized that the petitioners never claimed the tax actually burdened or restricted their activities, only that any tax at all was unconstitutional in principle. He argued a flat occupational tax applied equally to all canvassers is not invalidated merely because it touches a constitutional right, and that requiring people who use city streets and services to help pay for them is not the same as taxing the exercise of free speech or religion.
How the Court got there
The legal reasoning, step by step
- The Court treated the hand distribution of religious literature door-to-door as a form of preaching and evangelism, not merely commerce, holding that it deserves the same First Amendment protection as sermons delivered from a pulpit.
- The Court distinguished between taxes on income or property connected to religious activity, which are permissible, and a flat license tax charged specifically as a precondition to engaging in a constitutionally protected activity, which it treated as fundamentally different and far more dangerous.
- Applying this distinction, the Court reasoned that a flat license tax operates as a restraint imposed in advance on the exercise of a constitutional right, functioning much like the censorship schemes the Court had long struck down, regardless of whether the tax was labeled nondiscriminatory or applied evenly to peddlers of ordinary merchandise.
- The Court rejected the city's argument that selling books for a set price transformed the activity into an ordinary commercial enterprise, reasoning that requesting a fixed contribution to help cover printing costs does not strip literature distribution of its religious character, just as passing a collection plate does not make a church service a business.
- Because the tax was flat, unrelated to the scale of anyone's activities, and required as a condition of engaging in constitutionally protected evangelism, the Court concluded it was invalid regardless of proof that it had actually suppressed anyone's religious activity.
Doctrinal impact
Cases affected by this decision
Overrules Jones v. Opelika (316 U.S. 584)
The Court vacated its own prior ruling that had allowed cities to charge license taxes on religious literature sales.
Reaffirms Lovell v. Griffin (303 U.S. 444)
Cited as part of a line of cases striking down licensing schemes that act like censorship of speech and press.