LOVELL v. GRIFFIN

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Docket Number

No. 391.

Advocates

Mr. O.R. Moyle for appellant. Messrs. Hughes Spalding and Sumter M. Kelley submitted on brief for appellee. This ordinance is a police measure which deals with the practice of distributing circulars, handbooks, advertising and other literature within the city limits. If it be kept in mind that every municipality is faced with a sanitary problem in removing from its streets papers, circulars and other like materials, the reasons for the adoption of such an ordinance become apparent. Clearly there is a permissible field for such a regulation within constitutional limitations. Nothing in the ordinance is aimed at or relates to the right to worship as one may prefer, or the right to speak or write with complete freedom. The fact the appellant may have in her own mind associated her forbidden activities with her religious convictions does not establish any legal or constitutional connection between them. Commonwealth v. Plaisted, 148 Mass. 375; Smith v. People, 51 Colo. 271; State v. Marble, 72 Ohio St. 21; Streitch v. Board of Education, 34 S.D. 169; State v. Big Sheep, 75 Mont. 219; McMasters v. State, 21 Okla. Cr. 318; Reynolds v. United States, 98 U.S. 145; State v. Neitzel, 69 Wn. 567; Commonwealth v. Herr, 229 Pa. 132. Appellant is not a member of the press. The record in this case does not place her in the class of persons who are entitled to invoke the constitutional provisions touching the freedom of the press. Moreover, she was not convicted for anything she was speaking or writing. Neither does the ordinance prohibit her from speaking or writing as her judgment may dictate. The requirement of the ordinance that she is not to distribute printed matter which others have published, without a permit, involves in no way the constitutional right of free speech. Iroquois Transportation Co. v. DeLaney Co., 205 U.S. 354; Lee v. New Jersey, 207 U.S. 67; Fidelity Casualty Co. v. Freeman, 109 F. 847; Missouri, K. T.R. Co. v. Cade, 233 U.S. 642. The ordinance does restrict the right to distribute circulars, advertising matter and other literature in the city, in the absence of a permit from the City Manager. It is urged that this restraint involves a denial of due process and the equal protection of the law, in that the City Manager is clothed with unqualified discretion in granting or denying the permit. This is scarcely a denial of the equal protection of the law, since it applies in like manner to all persons. A substantial question as to due process might have been involved in the case except for the following essential facts, to-wit: (a) Appellant failed to raise in any proper manner the issue of due process in the trial court. The Court of Appeals so ruled, and rightly. Coleman v. Griffin, 55 Ga. App. 123; Curtis v. Helen, 171 Ga. 256; Jordan v. State, 172 Ga. 857; Palmer v. Phinizy, 151 Ga. 589; Louisville N. Ry. Co. v. Woodford, 234 U.S. 46. (b) Appellant did not apply to the City Manager for a permit. She is not in a position of having suffered from the exercise of the arbitrary and unlimited power of which she complains. Had she made application for a permit and had she been denied one without adequate reason, her constitutional rights would have been infringed. She seeks to claim the benefit of the presumption that an application by her for a permit would have been denied. Nothing in the record justifies such an assumption. The fact that the City Manager is clothed with arbitrary power, if it be a fact, affords the appellant no ground of complaint unless and until she has suffered from the exercise of this power. It is submitted that it is proper for the city to provide by ordinance that all persons distributing materials described by the ordinance be required to apply for a permit. If so, no person desiring to engage in this activity can suffer any legal wrong by reason of the ordinance until the application for a permit has been denied. Until the contrary appears from experience, it will be presumed that all persons legally entitled to a permit will be granted one. Had the appellant applied for one and been denied without substantial cause, a question of due process would have arisen. Even then, it would be necessary, in order to get a hearing in this Court, for the appellant to raise this question in the manner required by the accepted rules of practice, and this she has not done. By leave of Court, briefs of amici curiae were filed by Messrs. Francis Biddle and Osmond K. Fraenkel, on behalf of the American Liberties Union, and by Messrs. Samuel Slaff and George Slaff, on behalf of the Workers' Defense League, in support of appellant.

Judges

Charles Evans Hughes

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Smart Summary

Factual and Procedural Background

Appellant Alma Lovell was convicted in the Recorder's Court of Griffin, Georgia, for violating a city ordinance that prohibited distributing circulars, handbooks, advertising, or literature of any kind within city limits without written permission from the City Manager. She was sentenced to fifty days imprisonment in default of a fifty-dollar fine. The Superior Court refused to review the case; the Court of Appeals affirmed the judgment; and the State Supreme Court denied certiorari. Lovell appealed to the United States Supreme Court. The violation involved distributing religious tracts without a permit, which Lovell did not seek, believing such an application would disobey her religious duty.

Legal Issues Presented

Whether the city ordinance, requiring a permit before distributing literature, violates the Fourteenth Amendment by abridging the freedom of the press.
Whether the ordinance infringes upon the free exercise of religion guaranteed by the First and Fourteenth Amendments.
Whether appellant was required to seek a permit before challenging the ordinance's validity.

Arguments of the Parties

Appellant's Arguments

The ordinance violates the First Amendment's protections of freedom of speech, press, and religion, as incorporated against the states by the Fourteenth Amendment.
The ordinance's requirement of a permit to distribute literature constitutes an unconstitutional prior restraint and censorship.
The ordinance prohibits distribution of religious literature, infringing on free exercise of religion.
She did not apply for a permit due to religious convictions and should not be barred from challenging the ordinance's validity on that basis.

Appellee's Arguments

The ordinance is a valid police regulation addressing sanitary concerns related to littering from distributed literature.
It does not target freedom of speech or religion but regulates distribution to maintain public order.
Appellant is not entitled to constitutional protections of the press as she is not a member of the press.
The discretion of the City Manager in granting permits does not violate due process or equal protection because the ordinance applies equally to all.
Appellant failed to raise due process issues properly in the trial court and did not apply for a permit, so she cannot claim harm from the ordinance's discretionary power.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gitlow v. New York, 268 U.S. 652	Incorporation of First Amendment freedoms against states via Fourteenth Amendment.	Supported the principle that freedom of speech and press are protected from state infringement.
Near v. Minnesota, 283 U.S. 697	Prohibition of prior restraints on publication as a core of press freedom.	Used to emphasize the invalidity of licensing schemes that impose censorship.
Grosjean v. American Press Co., 297 U.S. 233	Invalidity of license taxes that restrict circulation of press.	Supported the holding that the ordinance impermissibly restricts circulation of literature.
De Jonge v. Oregon, 299 U.S. 353	Protection of freedom of assembly and speech under the Fourteenth Amendment.	Referenced for the broad protection of fundamental liberties against state action.
Ex parte Jackson, 96 U.S. 727	Liberty to circulate publications is essential to freedom of the press.	Applied to reject distinction between publication and distribution in constitutional protection.
Smith v. Cahoon, 283 U.S. 553	Right to contest the validity of a void ordinance without first seeking a permit.	Supported appellant's right to challenge the ordinance without applying for a permit.
Coleman v. City of Griffin, 55 Ga. App. 123	Addressed free exercise of religion claims under similar ordinance.	Distinguished from the present case as it did not address free speech and press issues properly.
Reynolds v. United States, 98 U.S. 145	Referenced in relation to free exercise of religion and state regulation.	Used to contextualize appellant's religious claims.
Carter v. Texas, 177 U.S. 442	Jurisdictional principle that federal questions presented to state courts are reviewable by U.S. Supreme Court.	Supported the Court's jurisdiction to hear the case.
Ward v. Love County, 253 U.S. 17	Similar jurisdictional principle.	Reinforced the Court's authority to decide federal questions on appeal.
First National Bank v. Anderson, 269 U.S. 341	Federal question jurisdiction.	Used to confirm appellate jurisdiction.
Schuylkill Trust Co. v. Pennsylvania, 296 U.S. 113	Federal question jurisdiction.	Supported the Court's jurisdiction.
Raymond v. Chicago Union Traction Co., 207 U.S. 20	Municipal ordinances constitute state action under Fourteenth Amendment.	Confirmed that the ordinance is state action subject to constitutional scrutiny.
Home Telephone Telegraph Co. v. Los Angeles, 227 U.S. 278	State action doctrine.	Reinforced the applicability of Fourteenth Amendment to municipal ordinances.
Cuyahoga River Power Co. v. Akron, 240 U.S. 462	State action under Fourteenth Amendment.	Supported constitutional review of municipal ordinance.
Louisville N. Ry. Co. v. Woodford, 234 U.S. 46	Due process procedural requirements.	Referenced regarding procedural default of due process claim.
Iroquois Transportation Co. v. DeLaney Co., 205 U.S. 354	Distinction between press freedoms and other regulatory measures.	Used to argue that ordinance does not infringe on free speech or press rights.
Lee v. New Jersey, 207 U.S. 67	Similar principle regarding state regulation vs. constitutional rights.	Supported appellee's position on ordinance validity.
Missouri, K. T.R. Co. v. Cade, 233 U.S. 642	State regulatory authority.	Referenced in appellee's argument on ordinance validity.
Fidelity Casualty Co. v. Freeman, 109 F. 847	Regulatory authority and constitutional limits.	Referenced in appellee's argument.
Commonwealth v. Plaisted, 148 Mass. 375	Permissible municipal regulation of distribution of literature.	Used to support appellee's position on ordinance's validity.
Smith v. People, 51 Colo. 271	Municipal regulation of distribution of literature.	Referenced in appellee's argument.
State v. Marble, 72 Ohio St. 21	Municipal police power in regulating distribution.	Supporting appellee's position.
Streitch v. Board of Education, 34 S.D. 169	Municipal regulation of distribution.	Referenced in appellee's argument.
State v. Big Sheep, 75 Mont. 219	Municipal authority over distribution of literature.	Supporting appellee's position.
McMasters v. State, 21 Okla. Cr. 318	Municipal regulatory authority.	Referenced in appellee's argument.
State v. Neitzel, 69 Wn. 567	Municipal police power.	Referenced in appellee's argument.
Commonwealth v. Herr, 229 Pa. 132	Municipal regulation of distribution.	Referenced in appellee's argument.

Court's Reasoning and Analysis

The Court recognized that the ordinance was a municipal regulation enacted under state authority and thus constituted state action subject to the Fourteenth Amendment. The Court emphasized that freedom of speech and press, protected by the First Amendment against Congress, are fundamental liberties incorporated against the states by the Fourteenth Amendment. The ordinance broadly prohibited distribution of all literature without prior written permission from the City Manager, without limitation as to time, place, or manner, and without exception for content, including religious tracts.

The Court held that this ordinance effectively imposed a system of prior restraint and censorship, striking at the very foundation of freedom of the press. The liberty of the press was understood to include pamphlets and leaflets, not just newspapers and periodicals, and the right to circulate such materials is as essential as the right to publish them. The Court rejected the appellee's argument that the ordinance merely regulated distribution for sanitary or public order reasons, noting that the ordinance was not limited to obscene or offensive materials and applied universally.

Furthermore, the Court found no requirement that appellant seek a permit before challenging the ordinance's validity, since the ordinance was void on its face. The Court also noted that appellant's failure to apply for a permit did not preclude her challenge, especially given her religious objections to doing so.

The Court concluded that the ordinance violated the Fourteenth Amendment by abridging freedom of the press through an unconstitutional licensing scheme and prior restraint, and reversed the judgment below.

Holding and Implications

The ordinance is unconstitutional and the judgment affirming the conviction is reversed.

The direct effect of this decision is to invalidate the city ordinance requiring a permit for distribution of literature, including religious tracts, as it constitutes an impermissible prior restraint and censorship in violation of the Fourteenth Amendment. The appellant is entitled to contest the ordinance's validity without applying for a permit. The case is remanded for further proceedings consistent with this opinion. No new precedent beyond this holding was explicitly established, but the decision reinforces the fundamental protection of freedom of the press against municipal licensing schemes.

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LOVELL v. CITY OF GRIFFIN.

1. Whether a federal question was properly presented to and decided by a state court is itself a federal question, to be decided by this Court upon appeal. P. 450. 2. Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action. P. 450. 3. Municipal ordinance adopted under state authority constitute state action within the meaning of the Fourteenth Amendment. P. 450. 4. A city ordinance forbidding as a nuisance the distribution, by hand or otherwise, of literature of any kind without first obtaining written permission from the City Manager, violates the Fourteenth Amendment; strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. P. 450. So held as applied to distribution of pamphlets and magazines in the nature of religious tracts. 5. The liberty of the press is not confined to newspapers and periodicals. It embraces pamphlets and leaflets. P. 452. 6. One who is prosecuted for disobeying a license ordinance which is void on its face may contest its validity without having sought a permit under it. P. 452. 55 Ga. App. 609; 191 S.E. 152, reversed.

MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.

Appellant, Alma Lovell, was convicted in the Recorder's Court of the City of Griffin, Georgia, of the violation of a city ordinance and was sentenced to imprisonment for fifty days in default of the payment of a fine of fifty dollars. The Superior Court of the county refused sanction of a petition for review; the Court of Appeals affirmed the judgment of the Superior Court ( 55 Ga. App. 609; 191 S.E. 152); and the Supreme Court of the State denied an application for certiorari. The case comes here on appeal.

The ordinance in question is as follows:

"Section 1. That the practice of distributing, either by hand or otherwise, circulars, handbooks, advertising, or literature of any kind, whether said articles are being delivered free, or whether same are being sold, within the limits of the City of Griffin, without first obtaining written permission from the City Manager of the City of Griffin, such practice shall be deemed a nuisance, and punishable as an offense against the City of Griffin.

"Section 2. The Chief of Police of the City of Griffin and the police force of the City of Griffin are hereby required and directed to suppress the same and to abate any nuisance as is described in the first section of this ordinance."

The violation, which is not denied, consisted of the distribution without the required permission of a pamphlet and magazine in the nature of religious tracts, setting forth the gospel of the "Kingdom of Jehovah." Appellant did not apply for a permit, as she regarded herself as sent "by Jehovah to do His work" and that such an application would have been "an act of disobedience to His commandment."

Upon the trial, with permission of the court, appellant demurred to the charge and moved to dismiss it upon a number of grounds, among which was the contention that the ordinance violated the Fourteenth Amendment of the Constitution of the United States in abridging "the freedom of the press" and prohibiting "the free exercise of petitioner's religion." This contention was thus expressed:

"Because said ordinance is contrary to and in violation of the first amendment to the Constitution of the United States, which reads:

`Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances.'

"Said ordinance is also contrary to and in violation of the fourteenth amendment to the Constitution of the United States, which had the effect of making the said first amendment applicable to the States, and which reads:

`All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

"Said ordinance absolutely prohibits the distribution of any literature of any kind within the limits of the City of Griffin without the permission of the City Manager and thus abridges the freedom of the press, contrary to the provisions of said quoted amendments.

"Said ordinance also prohibits the free exercise of petitioner's religion and the practice thereof by prohibiting the distribution of literature about petitioner's religion in violation of the terms of said quoted amendments."

The Court of Appeals, overruling these objections, sustained the constitutional validity of the ordinance, saying —

"The ordinance is not unconstitutional because it abridges the freedom of the press or prohibits the distribution of literature about the petitioner's religion, in violation of the fourteenth amendment to the constitution of the United States."

While in a separate paragraph of its opinion the court said that the charge that the ordinance was void because it violated a designated provision of the state or federal constitution without stating wherein there was such a violation, was too indefinite to present a constitutional question, we think that this statement must have referred to other grounds of demurrer and not to the objection above quoted which was sufficiently specific and was definitely ruled upon. The contention as to restraint "upon the free exercise of religion," with respect to the same ordinance, was presented in the case of Coleman v. City of Griffin, 55 Ga. App. 123, and the appeal was dismissed for want of a substantial federal question, 302 U.S. 636. Reynolds v. United States, 98 U.S. 145, 166, 167; Davis v. Beason, 133 U.S. 333, 342, 343. But, in the Coleman case, the Court did not deal with the question of freedom of speech and of the press, as it had not been properly presented. We think that this question was adequately presented and was decided in the instant case. Whether it was so presented and was decided is itself a federal question. Carter v. Texas, 177 U.S. 442, 447; Ward v. Love County, 253 U.S. 17, 22; First National Bank v. Anderson, 269 U.S. 341, 346; Schuylkill Trust Co. v. Pennsylvania, 296 U.S. 113, 121. This Court has jurisdiction.

Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action. Gitlow v. New York, 268 U.S. 652, 666; Stromberg v. California, 283 U.S. 359, 368; Near v. Minnesota, 283 U.S. 697, 707; Grosjean v. American Press Co., 297 U.S. 233, 244; De Jonge v. Oregon, 299 U.S. 353, 364. See, also, Palko v. Connecticut, 302 U.S. 319. It is also well settled that municipal ordinances adopted under state authority constitute state action and are within the prohibition of the amendment. Raymond v. Chicago Union Traction Co., 207 U.S. 20; Home Telephone Telegraph Co. v. Los Angeles, 227 U.S. 278; Cuyahoga River Power Co. v. Akron, 240 U.S. 462.

The ordinance in its broad sweep prohibits the distribution of "circulars, handbooks, advertising, or literature of any kind." It manifestly applies to pamphlets, magazines and periodicals. The evidence against appellant was that she distributed a certain pamphlet and a magazine called the "Golden Age." Whether in actual administration the ordinance is applied, as apparently it could be, to newspapers does not appear. The City Manager testified that "every one applies to me for a license to distribute literature in this City. None of these people (including defendant) secured a permit from me to distribute literature in the City of Griffin." The ordinance is not limited to "literature" that is obscene or offensive to public morals or that advocates unlawful conduct. There is no suggestion that the pamphlet and magazine distributed in the instant case were of that character. The ordinance embraces "literature" in the widest sense.

The ordinance is comprehensive with respect to the method of distribution. It covers every sort of circulation "either by hand or otherwise." There is thus no restriction in its application with respect to time or place. It is not limited to ways which might be regarded as inconsistent with the maintenance of public order or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets. The ordinance prohibits the distribution of literature of any kind at any time, at any place, and in any manner without a permit from the City Manager.

We think that the ordinance is invalid on its face. Whatever the motive which induced its adoption, its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his assault by his "Appeal for the Liberty of Unlicensed Printing." And the liberty of the press became initially a right to publish " without a license what formerly could be published only with one." While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the constitutional provision. See Patterson v. Colorado, 205 U.S. 454, 462; Near v. Minnesota, 283 U.S. 697, 713-716; Grosjean v. American Press Co., 297 U.S. 233, 245, 246. Legislation of the type of the ordinance in question would restore the system of license and censorship in its baldest form.

See Wickwar, "The Struggle for the Freedom of the Press," p. 15.

The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. What we have had recent occasion to say with respect to the vital importance of protecting this essential liberty from every sort of infringement need not be repeated. Near v. Minnesota, supra; Grosjean v. American Press Co., supra; De Jonge v. Oregon, supra.

See also, Starr Company v. Brush, 185 A.D. (N.Y.) 261; 172 N.Y.S. 851; Dearborn Publishing Co. v. Fitzgerald, 271 F. 479; In re Campbell, 64 Cal.App. 300; 221 P. 952; Coughlin v. Sullivan, 100 N.J.L. 42; 126 A. 177. Compare People v. Armstrong, 73 Mich. 288; 41 N.W. 275; Chicago v. Schultz, 341 Ill. 208; 173 N.E. 276; People v. Armentrout, 118 Cal.App. Supp. 761; 1 P.2d 556.

The ordinance cannot be saved because it relates to distribution and not to publication. "Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value." Ex parte Jackson, 96 U.S. 727, 733. The license tax in Grosjean v. American Press Co., supra, was held invalid because of its direct tendency to restrict circulation.

As the ordinance is void on its face, it was not necessary for appellant to seek a permit under it. She was entitled to contest its validity in answer to the charge against her. Smith v. Cahoon, 283 U.S. 553, 562.

The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed.

MR. JUSTICE CARDOZO took no part in the consideration and decision of this case.