Grosjean vs. American Press [1935]

SuthERLAND, J. This suit was brought by appellees, nine publishers of newspapers in State of Louisiana, to enjoin the engagement against them of the Provisions of it of the act of the legislature of Louisiana Unopen as Act No. 23, passed and approved July 12, 1934, as follows:

That every person, firm, association, or corporation, domestic or foreign, engaged in the business of selling, or making any Ke for, advertising or for advertisements, Ether printed or published, or to be printed or published, in any newspaper, magazine, periodical or publication whatever having a circulation of more than 20,000 copies per week. or displayed and exhibited, or to be displayed and exhibited by means of moving pictures, in the State of Louisiana, shall, in Edition to all other taxes and licenses levied and assessed in this State, pay a license tax ior the privilege of engaging in such business in this State of two per cent. of the gross receipts of such business."

The nine publishers who brought the suit publish thirteen newspapers; and these thirteen publications are the only ones within the State of Louisiana having each a circulation of more than 20,000 copies per week, although the lower court finds there are four other daily newspapers each having a circulation of "slightly less than 20,000 copies per week" which are in competition with those published by ageless both as to circulation and as to advertising. In addition, there are 120 weekly newspapers published in the state, also in competition, to a greater or less degree, with the newspapers of appellees. The revenue derived from appellees newspapers comes almost entirely from regular subscribers or purchasers thereof and from payments received for the insertion of advertisements therein....

Failure to file the report or pay the tax as thus provided constitutes a misdemeanor and subjects the offender to a fine not exceeding $500, or imprisonment not exceeding six months, or both, for each violation. Any corporation violating the act subjects itself to the payment of $500 to be recovered by suit. All of the appellees are corporations. The lower court entered a decree for appellees and granted a permanent injunction. . ..

Third. The validity of the act is assailed as violating the Federal Constitution in two particulars—( 1) that it abridges the freedom of the press in contravention of the due process clause contained in *1of the Fourteenth Amendment; (2) that it denies appellees the equal protection of the laws in contravention of the same Amendment,

1. The first point presents a question of the utmost gravity and importance; for, if well made, it goes to the heart of the natural right of the members of an organized society, united for their common good, to impart and acquire information about their common interests. The First Amendment to the Federal Constitution provides that "Congress shall make no law . .. abridging the freedom of speech, or of the press . .." While this provision is not a restraint upon the powers of the states, the states are precluded from abridging the freedom of speech or of the press by force of the due process clause of the Fourteenth Amendment....

In Powell v. Alabama, (287 U. S. 45) . .. we concluded that certain fundamental rights, safeguarded by the first eight amendments against federal action, were also safeguarded against state action by the due process of law clause of the Fourteenth Amendment, and among them the fundamental right of the accused to the aid of counsel in a criminal prosecution.

That freedom of speech and of the press are rights of the same fundamental character, safeguarded by the due process of law clause of the Fourteenth Amendment against abridgment by state legislation, has likewise been settled by a series of decisions of this Court beginning with Gitlow v. New York (268 U. S. 652), and ending with Near v. Minnesota (283 U. S. 697). The word "liberty" contained in that amendment embraces not only the right of a person to be free from physical restraint, but the right to be free in the enjoyment of all his faculties as well.

Appellant contends that the Fourteenth Amendment does not apply to corporations; but this is only partly true. A corporation, we have held, is not a "citizen," within the meaning of the privileges and immunities clause. (Paul v. Virginia, 8 Wall. 168.) But a corporation is a "person" within the meaning of the equal protection and due process of law clauses, which are the clauses involved here (Covington & Lexington Turnpike Co. v. Sandford, 104 U. S. 578; Smyth v. Ames, 169 U. S. 406)

The tax imposed is designated a "license tax for the privilege of engaging in such business"— that is to say, the business of selling, or making any charge for, advertising.

As applied to appellees, it is a tax of two per cent. on the gross receipts derived from advertisements carried in their newspapers when, and only when, the newspapers of each enjoy a circulation of more than 20,000 copies per week. It thus operates as a re straint in a double sense. First, its effect is to curtail the amount of revenue realized from advertising, and, second, its direct tendency is to restrict circulation. This is plain enough when we consider that, if it were increased to a high degree, as it could be if valid, it well might result in destroying both advertising and circulation.

A determination of the question whether the tax is valid in respect of the point now under review, requires an examination of the history and circumstances which antedated and attended the adoption of the abridgment clause of the First Amendment, since that clause expresses one of those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions," and, as such, is embodied in the concept "due process of law, and, therefore, protected against hostile state invasion by the due process clause of the Fourteenth Amendment. (Cf. Powell v. Alabama, supra, pp. 67-68.) The history is a long one; but for present purposes it may be greatly abbreviated.... [reviews history in England, and background of First Amendment. ]

It is impossible to concede that by the words "freedom of the press" the framers of the amendment intended to adopt merely the narrow view then reflected by the law of England that such freedom consisted onh in immunity from previous censorship; for this abuse had then permanently disappeared from English practice. It is equally impossible to believe that it was not intended to bring within the reach of these words such modes of restraint as were embodied in the two forms of taxation already described.

In the light of all that has now been said, | it is evident that the restricted rules of the English law in respect of the freedom of the press in force when the Constitution adopted were never accepted by the American colonists, and that by the First Amendment it was meant to preclude the national government, and by the Fourteenth Amendment to preclude the states, from adopting any form of previous restraint upon printed publications, or their circulation, including that which had therefore been effected by these two well known and odious methods. This court had occasion in Near v. Minnesota. supr, at pp. 713 et seq., to discuss at some length the subject in its general aspect. The conclusion there stated is that the object of the constitutional provisions was to resent previous restraints on publication; and the court was careful not to limit the election of the right to any particular By of abridging it. Liberty of the press thin the meaning of the constitutional provision,, it was broadly said, meant "principally although not exclusively, immunity from precious restraints or (from) censorship."

Judge Clayey has laid down the test to be applied—The evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for a intelligent exercise of their rights as citizens." 2 Cooley's Constitutional Limitations, 8th ed.. p. 886. It is not intended by anything we have said to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the government. But his is not an ordinary form of tax, but one angle in kind, with a long history of hostile, e against the freedom of the press.

The predominant purpose of the grant of mounds here invoked was to preserve an untrammeled press as a vital source of public information. The newspapers, magazines and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of, the nation than any other instrumentality of public; and since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgment of the publicity afforded by a free press cannot be regarded otherwise than with grave concern. The tax here involved is bad not because it takes money from the pockets of the appellees. If that were all, a wholly different question would be presented. It is bad because, in the light of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties. A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves.

In view of the persistent search for new subjects of taxation, it is not without significance that, with the single exception of the Louisiana statute, so far as we can discover, no state during the one hundred fifty years of our national existence has undertaken to impose a tax like that now in question.

The form in which the tax is imposed is in itself suspicious. It is not measured or limited by the volume of advertisements. It is measured alone by the extent of the circulation of the publication in which the advertisements are carried, with the plain purpose of penalizing the publishers and curtailing the circulation of a selected group of newspapers.

2. Having reached the conclusion that the act imposing the tax in question is unconstitutional under the due process of Jaw clause because it abridges the freedom of the press, we deem it unnecessary to consider the further ground assigned that it also constitutes a denial of the equal protection of the laws.

Decree affirmed.