Lovell v. City of Griffin

Petitioner
Alma Lovell
Respondent
City of Griffin, Georgia
Petitioner's Claim
A city ordinance prohibiting distribution of any kind of literature within the city limits without permission of the city manager violates the First and Fourteenth. Amendments.
Chief Lawyer for Petitioner
O. R. Moyle
Chief Lawyers for Respondent
Hughes Spalding and Sumter M. Kelley
Justices for the Court
Hugo Lafayette Black, Louis D. Brandeis, Pierce Butler, Charles Evans Hughes(writing for the Court), James Clark McReynolds, Stanley Forman Reed, Owen Josephus Roberts, Harlan Fiske Stone
Justices Dissenting
None (Benjamin N. Cardozo did not participate)
Place
Washington, D.C.
Date of Decision
28 March 1938
Decision
The city ordinance was invalidated on its face under the First Amendment, andthe defendant's conviction was reversed.
Significance
This decision made it clear that municipalities could not enact ordinances prohibiting the distribution of literature on public streets at all times, at all places, and under all circumstances without the city's permission. Such anordinance was an unconstitutional censorship or prior restraint upon First Amendment freedoms. The decision also made clear that a facially unconstitutional ordinance could be ignored. The defendant was not required to apply for apermit before challenging the ordinance in court. This decision limited thescope of local governments' power to regulate the distribution of literaturein public places that previously had been taken for granted.
Printed publications, including pamphlets, leaflets, and handbills, have beenhistoric weapons in the defense of liberty. They have been used in the United States since pre-Revolutionary times to disseminate information to the public, including controversial and unpopular political, social, and religious ideas. For years legislatures, local authorities, and the courts have grappledwith claims of the right to disseminate ideas in public places as against claims of an effective power in government to keep the peace and to protect other interests of a civilized community. Beginning in the 1930s, the Jehovah's Witnesses became involved in a lengthy series of Supreme Court decisions expanding the rights of religious proselytizers and other advocates to use the streets and parks to broadcast their ideas.
In 1938, a Jehovah's Witness, Alma Lovell, was charged in a Georgia state court with violating a city ordinance requiring written permission from the citymanager to distribute "circulars, handbooks, advertising or literature of any kind" within the city limits. Under the ordinance, distributing literaturewithout permission was deemed a nuisance and was punishable as an offense against the city. Lovell violated the ordinance by distributing, without prior permission, a religious pamphlet and magazine setting forth the gospel of the"Kingdom of Jehovah." Lovell had not applied for a permit because she regarded herself as sent "by Jehovah to do His work" and considered that applying for permission would be "an act of disobedience to His commandment."
At trial Lovell moved to dismiss it the charge, contending that the ordinanceabridged the freedom of the press and prohibited the free exercise of her religion in violation of the First Amendment to the U.S. Constitution. As a result, the ordinance also violated the Fourteenth Amendment, which prohibited states from denying U.S. citizens the fundamental personal rights and liberties protected under the Constitution. According to the Lovell, the ordinance abridged the freedom of the press because it absolutely prohibited distributionof any kind of literature within the city limits without the city manager'spermission. The Lovell also claimed that the ordinance prohibited the free exercise of religion by prohibiting her from distributing literature about herreligion. Lovell was convicted and sentenced to a $50 fine or 50 days in jailif the fine was not paid. The superior court of the county refused her petition for review. The Georgia Court of Appeals overruled the defendant's objections, sustained the constitutional validity of the ordinance, and affirmed the judgment of the superior court. The Supreme Court of Georgia subsequently denied an application for certiorari, and an appeal was made to the U.S. Supreme Court.
A Substantial Federal Question
The U.S. Supreme Court accepted the case after determining that the appeal presented a substantial federal question within its jurisdiction. The questionthat the Court found adequately presented was whether the ordinance violatedthe freedom of speech and of the press. The Court decided not to review the issue of free exercise of religion because the issue had been previously presented to the Court and dismissed for want of a substantial federal question inColeman v. City of Griffin.
Ordinance Is Unconstitutional Prior Restraint
In an opinion authored by Chief Justice Hughes, the Supreme Court ruled thatthe ordinance was unconstitutional on its face and reversed Lovell's conviction. By ruling that the ordinance was unconstitutional "on its face," the Court limited its analysis to the language used in the ordinance, i.e., the "face" of the ordinance, and did not consider how the ordinance was applied. The Court ruled that, because the ordinance prohibited distribution of any kind ofliterature in any manner, at any place, and at any time without a permit from the city manager, the ordinance was an unconstitutional prior restraint inviolation of the First Amendment. Previous Supreme Court decisions had upheldthe power of local authorities to vest in a single official the discretion to issue permits or licenses, including a permit to speak in a public commons,Davis v. Massachusetts 1897. This decision placed some limits on thispower.
Before looking at the ordinance itself, the Supreme Court set forth two legalprinciples: (1) that freedom of speech and freedom of the press, protected under 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; and, (2) that municipal ordinances adopted under state authority constitute state action and are within the prohibition of the Fourteenth Amendment.
The Supreme Court next reviewed the language of the ordinance and concluded that, "The ordinance in its broad sweep prohibits the distribution of `circulars, handbooks, advertising, or literature of any kind.' It manifestly appliesto pamphlets, magazines, and periodicals . . . The ordinance embraces `literature' in the widest sense." The Court also concluded that the ordinance was" . . . 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."
The Court pointed out that there was no language in the ordinance suggestingthat the city was concerned with literature that was obscene or offensive topublic morals or that advocated unlawful conduct. There was also no languagesuggesting that the ordinance was concerned with distribution methods that might be regarded as "inconsistent with the maintenance of public order, or asinvolving disorderly conduct, the molestation of inhabitants, or the misuse or littering of the streets." According to the Court, the ordinance prohibitedthe distribution of "literature of any kind at any time, at any place, and in any manner without a permit from the city manager."
Because of the unrestrained reach of its language, the Court found the ordinance invalid on its face. The Court concluded that, regardless of the reasonsthe city had for adopting the ordinance, "its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship." Viewing the struggle for the freedom of the press froman historical perspective, the Court stated,

[t]he 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 pressbecame initially a right to publish `without a license what formerly could bepublished 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.

According to the Court, enforcing the ordinance would "restore the system of license and censorship in its baldest form."
`Press' Includes Pamphlets
The fact that Lovell was distributing pamphlets, rather than newspapers or periodicals was irrelevant to the Court. Since the "press" connotes every sortof publication that affords a vehicle of information and opinion, liberty ofthe press necessarily embraces pamphlets and leaflets. The fact that the ordinance regulated only distribution and not publication also could not save it.Liberty of press includes by necessity liberty to circulate as well as publish. Without circulation, publication would be of little value. In view of thefacial unconstitutionality of the ordinance, the Court concluded its opinionby ruling that defendant was not required to apply for a permit under the ordinance in order to challenge the ordinance in answer to the charge against her.
Impact
This decision was the first in a long line of Supreme Court cases that struckdown city ordinances requiring prior permission of an official in order to distribute literature within the limits of that city. The following year, in Schneider v. State (1939), the Supreme Court invalidated three of fourordinances from New Jersey, California, Wisconsin, and Massachusetts, each forbidding distribution of leaflets. Between 1938 and 1955, Jehovah's Witnessesalone won numerous U.S. Supreme Court cases based on claims that their freedom of speech, press, assembly, or worship were violated by laws and ordinances regulating, among other things, distribution and sales of literature, peddling, charitable solicitations, preaching in public parks, door bell ringing,and the use of "fighting words." As late as 1985, in Lowe v. SEC, thereasoning of Lovell was used by the Supreme Court in deciding whetheran injunction against the publication of an investment newsletter was an unconstitutional prior restraint.
Related Cases

• Davis v. Massachusetts, 167 U.S. 43 (1897).
  
• Near v. Minnesota, 283 U.S. 697 (1931).
  
• Coleman v. City of Griffin, 302 U.S. 636 (1937).
  
• Hague v. C.I.O., 307 U.S. 496 (1939).
  
• Schneider v. State, 308 U.S. 147 (1939).
  
• Cantwell v. Connecticut, 310 U.S. 296 (1940).
  
• Cox v. New Hampshire, 312 U.S. 569 (1941).
  
• Jamison v. Texas, 318 U.S. 413 (1943).
  
• Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947).
  
• Niemotko v. Maryland, 340 U.S. 268 (1951).
  
• Shuttlesworth v. Birmingham, 394 U.S. 147 (1969).
  
• Lowe v. SEC, 472 U.S. 181 (1985).