297 U.S. 233 (1936), 303, Grosjean v. American Press Co., Inc.

Docket Nº:No. 303
Citation:297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660
Party Name:Grosjean v. American Press Co., Inc.
Case Date:February 10, 1936
Court:United States Supreme Court

Page 233

297 U.S. 233 (1936)

56 S.Ct. 444, 80 L.Ed. 660



American Press Co., Inc.

No. 303

United States Supreme Court

Feb. 10, 1936

Argued January 14, 1936




1. As respects the amount in controversy, the District Court has jurisdiction of a suit where the requisite value is involved as to each of several plaintiffs though not involved as to others. P. 241.

2. A motion to dismiss the whole case because the amount in controversy as to some of the plaintiffs is too small should be overruled. Id.

3. There is equitable jurisdiction to enjoin collection of an allegedly unconstitutional state tax where the taxpayer, if he pays, is afforded no clear remedy of restitution. P. 242.

4. Liberty of the press is a fundamental right protected against state aggression by the due process clause of the Fourteenth Amendment. P. 242.

5. The fact that, as regards the Federal Government, the protection of this right is not left to the due process clause of the Fifth Amendment, but is guaranteed in specie by the First Amendment, is not a sufficient reason for excluding it from the due process clause of the Fourteenth Amendment. P. 243.

6. A corporation is a "person" within the meaning of the due process and equal protection clauses of the Fourteenth Amendment. P. 244.

7. A State license tax (La.Act No. 23, July 12, 1934) imposed on the owners of newspapers for the privilege of selling or charging for the advertising therein, and measured by a percent. of the gross receipts from such advertisements, but applicable only to newspapers enjoying a circulation of more than 20,000 copies per week, held unconstitutional. P. 244.

8. From the history of the subject, it is plain that the English rule restricting freedom of the press to immunity from censorship before publication was not accepted by the American colonists, and that the First Amendment was aimed at any form of previous restraint upon printed publications or their circulation, including restraint by taxation of newspapers and their advertising, which were well known and odious methods still used in England when the First Amendment was adopted. P. 245.

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9. The predominant purpose of the grant of immunity was to preserve an untrammeled press as a vital source of public information. P. 250.

10. Construction of a constitutional provision phrased in terms of the common law is not determined by rules of the common law which had been rejected in this country as unsuited to local civil or political conditions. P. 248.

It is not intended in this case to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation for support of Government. The tax in question is not an ordinary form of tax, but one single in kind, with a long history of hostile misuse against the freedom of the press. The manner of its use in this case is, in itself, suspicious; it is not measured or limited by the volume of advertisements, but 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.

10 F.Supp. 161, affirmed.

APPEAL from a decree permanently enjoining the enforcement of a state tax on newspapers.

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SUTHERLAND, J., lead opinion

MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

This suit was brought by appellees, nine publishers of newspapers in the State of Louisiana, to enjoin the enforcement against them of the provisions of § 1 of the act of the legislature of Louisiana known 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 charge for, advertising or for advertisements, whether 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 addition to all other taxes and licenses levied and assessed in this State, pay a license tax for the privilege of engaging in such business in this State of two percent. (2%) of the gross receipts of such business.

The nine publishers who brought the suit publish thirteen newspapers, and these thirteen publications are the

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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 appellees 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.

The act requires everyone subject to the tax to file a sworn report every three months showing the amount and the gross receipts from the business described in § 1. The resulting tax must be paid when the report is filed. 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 $50 to be recovered by suit. All of the appellees are corporations. The lower court entered a decree for appellees and granted a permanent injunction. 10 F.Supp. 161.

First. Appellant assails the federal jurisdiction of the court below on the ground that the matter in controversy does not exceed the sum or value of $3,000, as required by par. 1 of § 24 of the Judicial Code. The case arises under the Federal Constitution, and the bill alleges, and the record shows, that the requisite amount is involved in respect of each of six of the nine appellees. This is enough to sustain the jurisdiction of the district court. The motion was to dismiss the bill -- that is to say, the bill in its entirety -- and in that form it was properly denied. No motion to dismiss was made or considered

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by the lower court as to the three appellees in respect of whom the Jurisdictional amount was insufficient, and that question, therefore, is not before us. The Rio Grande, 19 Wall. 178, 189; Gibson v. Shufelt, 122 U.S. 27, 32.

Second. The objection also is made that the bill does not make a case for equitable relief. But the objection is clearly [56 S.Ct. 446] without merit. As pointed out in Ohio Oil Co. v. Conway, 279 U.S. 813, 815, the laws of Louisiana afford no remedy whereby restitution of taxes and property exacted may be enforced, even where payment has been made under both protest and compulsion. It is true that the present act contains a provision (§ 5) to the effect that, where it is established to the satisfaction of the Supervisor of Public Accounts of the state that any payment has been made under the act which was "not due and collectible," the Supervisor is authorized to refund the amount out of any funds on hand collected by virtue of the act and not remitted to the state treasurer according to law. It seems clear that this refers only to a payment not due and collectible within the terms of the act, and does not authorize a refund on the ground that the act is invalid. Moreover, the act allows the Supervisor to make remittances immediately to the state treasurer of taxes paid under the act, and requires him to do so not later than the 30th day after the last day of the preceding quarter, in which event the right to a refund, if not sooner exercised, would be lost. Whether an aggrieved taxpayer may obtain relief under § 5 is, at best, a matter of speculation. In no view can it properly be said that there exists a plain, adequate and complete remedy at law. Davis v. Wakelee, 156 U.S. 680, 688; Union Pacific R. Co. v. Weld County, 247 U.S. 282, 285.

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 § 1 of the Fourteenth

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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...

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