The Supreme Court in Murdock v. Pennsylvania, 319 U.S. 105 (1943), invalidated a city ordinance that required solicitors to obtain a license, finding that it infringed on the First Amendment rights of free press, free speech, and free exercise of religion.

City placed solicitors tax on Jehovah's Witnesses

The city of Jeannette, Pennsylvania, imposed the tax on Murdock and seven other defendants who were members of the Jehovah’s Witnesses and going door to door asking for monetary contributions in exchange for religious literature. The city viewed this as selling literature, so it imposed the tax. Murdock and other Witnesses sued, stating that such a tax placed a restriction on their free exercise of religion, speech, and press.

The Superior Court of Pennsylvania had sustained their convictions, but in accepting a rehearing of Jones v. City of Opelika (1942), the U.S. Supreme Court accepted their petitions for certiorari, which the state supreme court had refused.

Court believed license tax violated free exercise rights

The Court’s decision reversed a ruling it had set in Jones the previous year and came closer to an earlier decision in Lovell v. City of Griffin (1938) striking down permits that had not required fees. Writing for the majority, Justice William O. Douglas believed the requirement of a license tax violated the free exercise rights as applied to the states via the Fourteenth Amendment. Although he recognized that none of these rights were absolute, Douglas argued that no one should have to pay a license tax to exercise constitutional rights. He believed that the sale of literature was as vital to the Witnesses as other more “orthodox” methods of worship.

Although the taxes the city of Jeannette imposed were relatively small, they constituted a type of prior restraint that could have an adverse cumulative effect if imposed by other cities, and the rights they impinged in this case occupied “a preferred position” within the Constitution. Douglas emphasized that however one might feel about their methods, the Witnesses were going about their activities in a peaceful fashion.

Dissenters thought the decision would give a "tax subsidy" to religious persons

In a dissent joined by Justices Owen J. Roberts, Felix Frankfurter, and Robert H. Jackson, Justice Stanley F. Reed focused on earlier decisions upholding similar taxes and attempted to distinguish taxes on commercial and noncommercial activities. He also argued that there was no reason to believe that the taxes had been imposed in a discriminatory fashion. He believed that the effect of the Court’s decision would be to provide a “tax subsidy” by exempting religious persons from the extra costs that could be involved in policing their activities.

In a separate dissent, Justice Frankfurter argued that the tax at issue was not unconstitutional simply because it was a flat tax. He believed that the state could justify a nondiscriminatory tax as a way of reimbursing the state for extra costs that such sales activities would require.

The following year, the Court ruled in Prince v. Massachusetts (1944) that states could use child labor laws to prohibit children from conducting door-to-door solicitations, but in Watchtower Bible and Tract Society v. Village of Stratton (2002) the Court reaffirmed that individuals could not be forced to register and get a permit before engaging in door-to-door solicitation.

John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.

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