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U.S. Supreme Court
CANTWELL v. STATE OF CONNECTICUT, 310 U.S. 296 (1940)
310 U.S. 296
CANTWELL et al.
v.
STATE OF CONNECTICUT.
No. 632.
Argued March 29, 1940.
Decided May 20, 1940.
[310 U.S. 296, 297] Mr. Hayden C. Covington, of New York City, for
appellants and petitioners.
Messrs. Edwin S. Pickett, of New Haven, Conn., and Francis A. Pallotti, of
Hartford, Conn, for appellee and respondent.
[310 U.S. 296, 300]
Mr. Justice ROBERTS, delivered the opinion of the Court.
Newton Cantwell and his two sons, Jesse and Russell, members of a group known
as Jehovah's witnesses, and claiming to be ordained ministers, were arrested
in New Haven, Connecticut, and each was charged by information in five
counts, with statutory and common law offenses. After trial in the Court of
Common Pleas of New Haven County each of them was convicted on the third
count, which charged a violation of 6294 of the General Statutes of
Connecticut,1 and on the fifth count, which charged commission of the common
law offense of inciting a breach of the peace. On appeal to the Supreme Court
the conviction of all three on the third count was affirmed. The conviction
of Jesse Cantwell, on the fifth count, was also affirmed, but the conviction
of Newton and Russell on that count was reversed and a new trial ordered as
to them. 2
By demurrers to the information, by requests for rulings of law at the trial,
and by their assignments of error in the State Supreme Court, the appellants
pressed the contention that the statute under which the third count was drawn
was offensive to the due process clause of the Fourteenth Amendment because,
on its face and as construed and applied, it denied them freedom of speech
and prohibited their free exercise of religion. In like manner [310 U.S. 296,
301] they made the point that they could not be found guilty on the fifth
count, without violation of the Amendment.
We have jurisdiction on appeal from the judgments on the third count, as
there was drawn in question the validity of a state statute under the federal
Constitution, and the decision was in favor of validity. Since the conviction
on the fifth count was not based upon a statute, but presents a substantial
question under the federal Constitution, we granted the writ of certiorari in
respect of it.
The facts adduced to sustain the convictions on the third count follow. On
the day of their arrest the appellants were engaged in going singly from
house to house on Cassius Street in New Haven. They were individually
equipped with a bag containing books and pamphlets on religious subjects, a
portable phonograph and a set of records, each of which, when played,
introduced, and was a description of, one of the books. Each appellant asked
the person who responded to his call for permission to play one of the
records. If permission was granted he asked the person to buy the book
described and, upon refusal, he solicited such contribution towards the
publication of the pamphlets as the listener was willing to make. If a
contribution was received a pamphlet was delivered upon condition that it
would be read.
Cassius Street is in a thickly populated neighborhood, where about ninety per
cent of the residents are Roman Catholics. A phonograph record, describing a
book entitled 'Enemies', included an attack on the Catholic religion. None of
the persons interviewed were members of Jehovah's witnesses.
The statute under which the appellants were charged provides:
€ 'No person shall solicit money, services, subscriptions or any valuable
thing for any alleged religious, charitable [310 U.S. 296, 302] or
philanthropic cause, from other than a member of the organization for whose
benefit such person is soliciting or within the county in which such person
or organization is located unless such cause shall have been approved by the
secretary of the public welfare council. Upon application of any person in
behalf of such cause, the secretary shall determine whether such cause is a
religious one or is a bona fide object of charity or philanthropy and
conforms to reasonable standards of efficiency and integrity, and, if he
shall so find, shall approve the same and issue to the authority in charge a
certificate to that effect. Such certificate may be revoked at any time. Any
person violating any provision of this section shall be fined not more than
one hundred dollars or imprisoned not more than thirty days or both.'
The appellants claimed that their activities were not within the statute but
consisted only of distribution of books, pamphlets, and periodicals. The
State Supreme Court construed the finding of the trial court to be that 'in
addition to the sale of the books and the distribution of the pamphlets the
defendants were also soliciting contributions or donations of money for an
alleged religious cause, and thereby came within the purview of the statute.'
(126 Conn. 1, 8 A.2d 535.) It overruled the contention that the Act, as
applied to the appellants, offends the due process clause of the Fourteenth
Amendment, because it abridges or denies religious freedom and liberty of
speech and press. The court stated that it was the solicitation that brought
the appellants within the sweep of the Act and not their other activities in
the dissemination of literature. It declared the legislation constitutional
as an effort by the State to protect the public against fraud and imposition
in the solicitation of funds for what purported to be religious, charitable,
or philanthropic causes.
The facts which were held to support the conviction of Jesse Cantwell on the
fifth count were that he stopped [310 U.S. 296, 303] two men in the street,
asked, and received, permission to play a phonograph record, and played the
record 'Enemies', which attacked the religion and church of the two men, who
were Catholics. Both were incensed by the contents of the record and were
tempted to strike Cantwell unless he went away. On being told to be on his
way he left their presence. There was no evidence that he was personally
offensive or entered into any argument with those he interviewed.
The court held that the charge was not assault or breach of the peace or
threats on Cantwell's part, but invoking or inciting others to breach of the
peace, and that the facts supported the conviction of that offense.
First. We hold that the statute, as construed and applied to the appellants,
deprives them of their liberty without due process of law in contravention of
the Fourteenth Amendment. The fundamental concept of liberty embodied in that
Amendment embraces the liberties guaranteed by the First Amendment. 3 The
First Amendment declares that Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof. The
Fourteenth Amendment has rendered the legislatures of the states as
incompetent as Congress to enact such laws. The constitutional inhibition of
legislation on the subject of religion has a double aspect. On the one hand,
it forestalls compulsion by law of the acceptance of any creed or the
practice of any form of worship. Freedom of conscience and freedom to adhere
to such religious organization or form of worship as the individual may
choose cannot be restricted by law. On the other hand, it safeguards the free
exercise of the chosen form of religion. Thus the Amendment embraces two
concepts,-freedom to believe and freedom to act. The first is absolute but,
in the nature of things, the [310 U.S. 296, 304] second cannot be. Conduct
remains subject to regulation for the protection of society. 4 The freedom to
act must have appropriate definition to preserve the enforcement of that
protection. In every case the power to regulate must be so exercised as not,
in attaining a permissible end, unduly to infringe the protected freedom. No
one would contest the proposition that a state may not, be statute, wholly
deny the right to preach or to disseminate religious views. Plainly such a
previous and absolute restraint would violate the terms of the guarantee. 5
It is equally clear that a state may by general and non-discriminatory
legislation regulate the times, the places, and the manner of soliciting upon
its streets, and of holding meetings thereon; and may in other respects
safeguard the peace, good order and comfort of the community, without
unconstitutionally invading the liberties protected by the Fourteenth
Amendment. The appellants are right in their insistence that the Act in
question is not such a regulation. If a certificate is procured, solicitation
is permitted without restraint but, in the absence of a certificate,
solicitation is altogether prohibited.
The appellants urge that to require them to obtain a certificate as a
condition of soliciting support for their views amounts to a prior restraint
on the exercise of their religion within the meaning of the Constitution. The
State insists that the Act, as construed by the Supreme Court of Connecticut,
imposes no previous restraint upon the dissemination of religious views or
teaching but merely safeguards against the perpetration of frauds under the
cloak of religion. Conceding that this is so, the question remains whether
the method adopted by Connecticut to [310 U.S. 296, 305] that end
transgresses the liberty safeguarded by the Constitution.
The general regulation, in the public interest, of solicitation, which does
not involve any religious test and does not unreasonably obstruct or delay
the collection of funds, is not open to any constitutional objection, even
though the collection be for a religious purpose. Such regulation would not
constitute a prohibited previous restraint on the free exercise of religion
or interpose an inadmissible obstacle to its exercise.
It will be noted, However, that the Act requires an application to the
secretary of the public welfare council of the State; that he is empowered to
determine whether the cause is a religious one, and that the issue of a
certificate depends upon his affirmative action. If he finds that the cause
is not that of religion, to solicit for it becomes a crime. He is not to
issue a certificate as a matter of course. His decision to issue or refuse it
involves appraisal of facts, the exercise of judgment, and the formation of
an opinion. He is authorized to withhold his approval if he determines that
the cause is not a religious one. Such a censorship of religion as the means
of determining its right to survive is a denial of liberty protected by the
First Amendment and included in the liberty which is within the protection of
the Fourteenth.
The State asserts that if the licensing officer acts arbitrarily,
capriciously, or corruptly, his action is subject to judicial correction.
Counsel refer to the rule prevailing in Connecticut that the decision of a
commission or an administrative official will be reviewed upon a claim that
'it works material damage to individual or corporate rights, or invades or
threatens such rights, or is so unreasonable as to justify judicial
intervention, or is not consonant with justice, or that a legal duty has not
[310 U.S. 296, 306] been performed.' 6 It is suggested that the statute is
to be read as requiring the officer to issue a certificate unless the cause
in question is clearly not a religious one; and that if he violates his duty
his action will be corrected by a court.
To this suggestion there are several sufficient answers. The line between a
discretionary and a ministerial act is not always easy to mark and the
statute has not been construed by the State court to impose a mere
ministerial duty on the secretary of the welfare council. Upon his decision
as to the nature of the cause, the right to solicit depends. Moreover, the
availability of a judicial remedy for abuses in the system of licensing still
leaves that system one of previous restraint which, in the field of free
speech and press, we have held inadmissible. A statute authorizing previous
restraint upon the exercise of the guaranteed freedom by judicial decision
after trial is as obnoxious to the Constitution as one providing for like
restraint by administrative action. 7
Nothing we have said is intended even remotely to imply that, under the cloak
of religion, persons may, with impunity, commit frauds upon the public.
Certainly penal laws are available to punish such conduct. Even the exercise
of religion may be at some slight inconvenience in order that the state may
protect its citizens from injury. Without doubt a state may protect its
citizens from fraudulent solicitation by requiring a stranger in the
community, before permitting him publicly to solicit funds for any purpose,
to establish his identity and his authority to act for the cause which he
purports to represent. 8 The state is likewise free to regulate the time [310
U.S. 296, 307] and manner of solicitation generally, in the interest of
public safety, peace, comfort or convenience. But to condition the
solicitation of aid for the perpetuation of religious views or systems upon a
license, the grant of which rests in the exercise of a determination by state
authority as to what is a religious cause, is to lay a forbidden burden upon
the exercise of liberty protected by the Constitution.
Second. We hold that, in the circumstances disclosed, the conviction of Jesse
Cantwell on the fifth count must be set aside. Decision as to the lawfulness
of the conviction demands the weighing of two conflicting interests. The
fundamental law declares the interest of the United States that the free
exercise of religion be not prohibited and that freedom to communicate
information and opinion be not abridged. The state of Connecticut has an
obvious interest in the preservation and protection of peace and good order
within her borders. We must determine whether the alleged protection of the
State's interest, means to which end would, in the absence of limitation by
the federal Constitution, lie wholly within the State's discretion, has been
pressed, in this instance, to a point where it has come into fatal collision
with the overriding interest protected by the federal compact.
Conviction on the fifth count was not pursuant to a statute evincing a
legislative judgment that street discussion of religious affairs, because of
its tendency to provoke disorder, should be regulated, or a judgment that the
playing of a phonograph on the streets should in the interest of comfort or
privacy be limited or prevented. Violation of an Act exhibiting such a
legislative judgment and narrowly drawn to prevent the supposed evil, would
pose a question differing from that we must here answer. 9 Such a declaration
of the State's policy [310 U.S. 296, 308] would weigh heavily in any
challenge of the law as infringing constitutional limitations. Here, however,
the judgment is based on a common law concept of the most general and
undefined nature. The court below has held that the petitioner's conduct
constituted the commission of an offense under the State law, and we accept
its decision as binding upon us to that extent.
The offense known as breach of the peace embraces a great variety of conduct
destroying or menacing public order and tranquility. It includes not only
violent acts but acts and words likely to produce violence in others. No one
would have the hardihood to suggest that the principle of freedom of speech
sanctions incitement to riot or that religious liberty connotes the privilege
to exhort others to physical attack upon those belonging to another sect.
When clear and present danger of riot, disorder, interference with traffic
upon the public streets, or other immediate threat to public safety, peace,
or order, appears, the power of the state to prevent or punish is obvious.
Equally obvious is it that a state may not unduly suppress free communication
of views, religious or other, under the guise of conserving desirable
conditions. Here we have a situation analogous to a conviction under a
statute sweeping in a great variety of conduct under a general and indefinite
characterization, and leaving to the executive and judicial branches too wide
a discretion in its application.
Having these considerations in mind, we note that Jesse Cantwell, on April
26, 1938, was upon a public street, where he had a right to be, and where he
had a right peacefully to impart his views to others. There is no showing
that his deportment was noisy, truculent, overbearing or offensive. He
requested of two pedestrians permission to play to them a phonograph record.
The permission was granted. It is not claimed that he [310 U.S. 296, 309]
intended to insult or affront the hearers by playing the record. It is plain
that he wished only to interest them in his propaganda. The sound of the
phonograph is not shown to have disturbed residents of the street, to have
drawn a crowd, or to have impeded traffic. Thus far he had invaded no right
or interest of the public or of the men accosted.
The record played by Cantwell embodies a general attack on all organized
religious systems as instruments of Satan and injurious to man; it then
singles out the Roman Catholic Church for strictures couched in terms which
naturally would offend not only persons of that persuasion, but all others
who respect the honestly held religious faith of their fellows. The hearers
were in fact highly offended. One of them said he felt like hitting Cantwell
and the other that he was tempted to throw Cantwell off the street. The one
who testified he felt like hitting Cantwell said, in answer to the question
'Did you do anything else or have any other reaction?' 'No, sir, because he
said he would take the victrola and he went.' The other witness testified
that he told Cantwell he had better get off the street before something
happened to him and that was the end of the matter as Cantwell picked up his
books and walked up the street.
Cantwell's conduct, in the view of the court below, considered apart from the
effect of his communication upon his hearers, did not amount to a breach of
the peace. One may, however, be guilty of the offense if he commit acts or
make statements likely to provoke violence and disturbance of good order,
even though no such eventuality be intended. Decisions to this effect are
many, but examination discloses that, in practically all, the provocative
language which was held to amount to a breach of the peace consisted of
profane, indecent, or abusive remarks directed to the person of the hearer.
Resort to epithets or [310 U.S. 296, 310] personal abuse is not in any
proper sense communication of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act would raise no question
under that instrument.
We find in the instant case no assault or threatening of bodily harm, no
truculent bearing, no intentional discourtesy, no personal abuse. On the
contrary, we find only an effort to persuade a willing listener to buy a book
or to contribute money in the interest of what Cantwell, however misguided
others may think him, conceived to be true religion.
In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields the tenets of one man may seem the rankest
error to his neighbor. To persuade others to his own point of view, the
pleader, as we know, at times, resorts to exaggeration, to vilification of
men who have been, or are, prominent in church or state, and even to false
statement. But the people of this nation have ordained in the light of
history, that, in spite of the probability of excesses and abuses, these
liberties are, in the long view, essential to enlightened opinion and right
conduct on the part of the citizens of a democracy.
The essential characteristic of these liberties is, that under their shield
many types of life, character, opinion and belief can develop unmolested and
unobstructed. Nowhere is this shield more necessary than in our own country
for a people composed of many races and of many creeds. There are limits to
the exercise of these liberties. The danger in these times from the coercive
activities of those who in the delusion of racial or religious conceit would
incite violence and breaches of the peace in order to deprive others of their
equal right to the exercise of their liberties, is emphasized by events
familiar to all. These and other transgressions of those limits the states
appropriately may punish. [310 U.S. 296, 311] Although the contents of the
record not unnaturally aroused animosity, we think that, in the absence of a
statute narrowly drawn to define and punish specific conduct as constituting
a clear and present danger to a substantial interest of the State, the
petitioner's communication, considered in the light of the constitutional
guarantees, raised no such clear and present menace to public peace and order
as to render him liable to conviction of the common law offense in question.
10
The judgment affirming the convictions on the third and fifth counts is
reversed and the cause is remanded for further proceedings not inconsistent
with this opinion. So ordered.
Reversed and remanded.
Footnotes
[ Footnote 1 ] General Statutes 6294 as amended by 860d of the 1937
supplement.
[ Footnote 2 ] 126 Conn. 1, 8 A.2d 533.
[ Footnote 3 ] Schneider v. State, 308 U.S. 147, 160 , 60 S.Ct. 146, 150.
[ Footnote 4 ] Reynolds v. United States, 98 U.S. 145 ; Davis v. Beason, 133
U.S. 333 , 10 S.Ct. 299.
[ Footnote 5 ] Compare Near v. Minnesota, 283 U.S. 697, 713 , 51 S.Ct. 625,
630.
[ Footnote 6 ] Woodmont Ass'n v. Milford, 85 Conn. 517, 522, 84 A. 307, 310;
see also Connecticut Co. v. Norwalk, 89 Conn. 528, 531, 94 A. 992.
[ Footnote 7 ] Near v. Minnesota, 283 U.S. 697 , 51 S.Ct. 625.
[ Footnote 8 ] Compare Lewis Publishing Co. v. Morgan, 229 U.S. 288 ,
306-310, 33 S. Ct. 867, 871, 873; People of State of New York ex rel. Bryant
v. Zimmerman, 278 U.S. 63, 72 , 49 S.Ct. 61, 64, 62 A. L.R. 785.
[ Footnote 9 ] Compare Gitlow v. New York, 268 U.S. 652, 670 , 671 S., 45
S.Ct. 625, 631; Thornhill v. Alabama, 310 U.S. 88 , 60 S.Ct. 736, 742- 746,
84 L.Ed. --.
[ Footnote 10 ] Compare Schenck v. United States, 249 U.S. 47, 52 , 39 S.Ct.
247, 249; Herndon v. Lowry, 301 U.S. 242, 256 , 57 S.Ct. 732, 738; Thornhill
v. Alabama, 310 U.S. 88 , 60 S.Ct. 736, 84 L.Ed. --.
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