Murdock v. Pennsylvania: Holding, Fees Allowed, and Legacy

In Murdock v. Pennsylvania, 319 U.S. 105 (1943), the Supreme Court held 5–4 that a city cannot require people to buy a license before going door to door to share their religion. Writing for the majority, Justice William O. Douglas struck down a Jeannette, Pennsylvania ordinance that charged a flat fee to religious evangelists distributing literature, and he set down a principle that has shaped First Amendment law ever since: “the power to tax the exercise of a privilege is the power to control or suppress its enjoyment.”¹

What the Case Was About

Jeannette, Pennsylvania required anyone soliciting orders door to door to first buy a city license. The fees were flat: $1.50 for a day, $7 for a week, $12 for two weeks, and $20 for three weeks, charged the same whether a solicitor earned a fortune or nothing at all.¹

The petitioners were Jehovah’s Witnesses. They walked house to house in Jeannette offering religious books and pamphlets, typically asking twenty-five cents for a book and five cents for a pamphlet, taking less or giving materials away when someone could not pay.¹ Because money changed hands, the city treated the exchange as a sale under its ordinance. The Witnesses had not applied for licenses. They were arrested, charged, and convicted for that failure alone.

What the Supreme Court Held

Justice Douglas’s opinion boiled the case down to one question: can a government charge a fee for the privilege of exercising a right the Constitution already guarantees? The Court answered no. The Jeannette ordinance, whatever the city called it, was in substance a tax laid on the exercise of speech, press, and religion, and it operated as a prior restraint. Until the solicitor paid, the solicitor could not speak.¹

Douglas drew a firm line between two kinds of charges. Taxing income or property that happens to belong to a religious organization is permissible. Conditioning the act of preaching, publishing, or pamphleteering on the payment of a flat license fee is not. The First Amendment, applied to the states through the Fourteenth, forbids the second.¹

The city argued that the ordinance treated everyone alike, applying to religious solicitors and commercial peddlers on the same terms. Douglas rejected that as a defense. “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.”² Equal treatment cannot cure a law that puts a toll booth in front of a constitutional right.

The opinion also recognized colporteurs, itinerant evangelists who spread their faith by handing out literature, as engaging in “an age-old type” of religious practice with “as high a claim to constitutional protection as the more orthodox types.”¹ Asking for a small contribution did not turn evangelism into commerce.

The Preferred Position of First Amendment Rights

Murdock is one of the cases in which the Court declared that First Amendment freedoms occupy a special constitutional tier. The majority stated it directly: “Freedom of press, freedom of speech, freedom of religence are in a preferred position.”² In practice, that means laws burdening speech, press, or religion face more demanding scrutiny than ordinary economic regulation. A city may license commercial door-to-door sales with little constitutional difficulty; once the same rule reaches expressive or religious conduct, the government has to justify itself under a much heavier standard.

What Kinds of Fees Are Still Allowed

Murdock did not abolish every permit or fee that touches expressive activity. The opinion itself distinguished the case that had upheld a parade licensing fee two years earlier, Cox v. New Hampshire (1941). In Cox, the charge was “not a revenue tax, but one to meet the expense incident to the administration of the Act and to the maintenance of public order,” and it scaled with the size of the event and the policing it required.³

The Jeannette ordinance was different in kind. It was flat, unapportioned, and untied to any administrative cost. Douglas described the invalid charge as one that was “not a nominal fee imposed as a regulatory measure to defray the expenses of policing the activities in question.”¹ Modest, proportionate administrative fees survive; flat license taxes on protected speech do not.

The Dissent

Four justices disagreed. Justice Reed, joined by Justices Roberts, Frankfurter, and Jackson, argued that the Witnesses’ door-to-door work looked enough like retail sales to be regulated as such. The Watch Tower Society set wholesale prices, and members handed the literature over at a marked-up price on the doorstep.¹

Justice Frankfurter added a separate concern. Exempting religious solicitors from a fee everyone else paid, he wrote, would effectively subsidize religion by shifting the cost of public services onto other residents. He noted that the petitioners had not claimed the fee was actually too expensive or that it had suppressed their activities in fact.¹ The majority answered the tension by anchoring its rule to the nature of the fee rather than the identity of the payer: a flat charge imposed as a precondition on any constitutionally protected activity is invalid, whoever the solicitor happens to be.

Why Murdock Still Matters

Almost sixty years after the decision, the Court returned to the same ground in Watchtower Bible and Tract Society of New York v. Village of Stratton (2002), striking down a village ordinance that required a permit for all door-to-door canvassing. The Court cited Murdock in a long line of cases protecting hand distribution of literature and reaffirmed that this “ages old” form of advocacy holds the same First Amendment claim as more conventional expression.⁴

Stratton pushed Murdock’s logic past taxes and onto permit requirements themselves. Even without a fee, a rule that forces a canvasser to seek official approval before knocking on doors burdens a wide swath of noncommercial speech. The Village’s interests in preventing fraud and protecting privacy, though real, did not justify so broad a restriction.⁴

Murdock remains the case cited when a challenger argues that a government has conditioned speech, press, or religious exercise on prior payment or prior approval. The rule is short and durable. A right the Constitution guarantees cannot carry a price tag at the door.

1
Cornell Law School. Murdock v. Commonwealth of Pennsylvania
2
Justia. Murdock v. Pennsylvania
3
Justia. Cox v. New Hampshire
4
Legal Information Institute. Watchtower Bible and Tract Society of New York Inc v. Village of Stratton