Amicus Curiae Brief — Arkansas Writers' Project, Inc. v. Ragland

-Z | Supreme Court, U.S,

\0/ FILED

No. 85-1370 AUG 2 1986

JOSEPH F. SPANTOL, JR

CLERK

IN THE . =

Supreme Court of the United States

OcTOBER TERM 1985

ARKANSAS WRITERS PROJECT. INC.,

Appellant,

VS.

CHARLES D. RAGLAND, COMMISSIONER

OF REVENUE OF THE STATE OF ARKANSAS.

Appellee.

On Appeal from

The Supreme Court of Arkansas

Motion for Leave to File Brief of Amici Curiae

and Brief of Amici Curiae The Miami Herald

Publishing Company and The American

Newspaper Publishers Association

RICHARD J. OVELMEN Epwarpb Soto

One Herald Plaza COUNSEL OF RECORD

Miami, Florida 33101 Southeast Financial Center

(305) 376-2868 Suite 4350

Miami, Florida 33131-2355

(305) 372-3304

LAURA BESVINICK Geracp B. Cope, Jr.

SHARPSTEIN & SHARPSTEIN, P.A. Greer, Homer, Cope & BONNER, P.A.

3043 Grand Avenue, PH | Southeast Financial Center

Coconut Grove, Florida 33133 Suite 4360

(305) 442-8100 Miami, Florida 33131

(305) 579-0060

Attorneys for Amici Curiae

[ List of counsel continued on inside cover |

i)

M.\ ‘\

Of Counsel:

W. Terry MAGUIRE

GENERAL COUNSEL

THE AMERICAN NEWSPAPER

PUBLISHERS ASSOCIATION

The Newspaper Center

11600 Sunnse Valley Drive

Reston Virginia 22091

(703) 648-1055

PARKER THOMSON

THOMSON ZEDER BOHRER WERTH

ADORNO & RAZOOK

4900 Southeast Financial Center

Miami, Florida 33131

(305) 350-7200

ATTORNEY FOR THE MIAMI HERALD

PUBLISHING COMPANY

No. 85-1370

IN THE

Supreme Court of the United States

Octoser Term 1985

ARKANSAS WRITERS PROJECT. INC..,

Appellant,

VS.

CHARLES D. RAGLAND, COMMISSIONER

OF REVENUE OF THE STATE OF ARKANSAS,

Appellee.

On Appeal from

The Supreme Court of Arkansas

Motion for Leave to File

Brief of Amici Curiae

The Miami Herald Publishing Company, an unincorpo-

rated division of Knight-Ridder Inc.. and The American News-

paper Publishers Association (the “amici”) hereby respectfully

move for leave to file the attached brief of amici curiae in this

case. The consent of counsel for the appellant has been

obtained. The consent of counsel for the appellee was re-

quested but refused.

The Miami Herald Publishing Company is an unincorpo-

rated division of Knight-Ridder Inc. which publishes The

Miami Herald, a daily newspaper of general circulation

throughout the State of Florida. (Knight-Ridder Inc. is a

nationwide communications company engaging in the publica-

tion of magazines, books, and 28 daily newspapers.

ANPA is a non-profit membership corporation organized

under the laws of the Commonwealth of Virginia. its member-

ship consists of more than 1,400 newspapers, with an aggregate

2

circulation exceeding 90% of the national total for daily and

Sunday newspapers.

The amici wouid be adversely affected if the Court upheld

the Arkansas statute at issue in this case. The amici are

particularly concerned about the suggestion made by the

Supreme Court of Arkansas that a sales tax of general appii-

cability could be imposed on newspapers.

The appellant in this case argues primarily that the Ar-

kansas statute is unconstitutional because it singles out certain

periodicals for taxation and exempts others. The appellant

makes no historical argument regarding the relationship be-

tween taxation and the First Amendment. In comparison, the

brief which the amici are requesting permission to file will

argue that a sales tax of general applicability imposed on

newspapers would violate the First Amendment. The brief of

amici will focus on the historical background and the intent of

the Framers in drafting the First Amendment.

Respectfully submitted,

Ebwarpb Soto

COUNSEL oF REcorRD

Southeast Financial Center

Suite 4350

Miami, Florida 33131-2355

(305) 372-3304

No. 85-1370

IN THE

Supreme Court of the United States

OctTosper Term 1985

ARKANSAS WRITERS PROJECT. INC.,

Appellant,

vs.

CHARLES D. RAGLAND, COMMISSIONER

OF REVENUE OF THE STATE OF ARKANSAS,

Appellee.

On Appeal from

The Supreme Court of Arkansas

Brief of Amici Curiae The Miami Herald

Publishing Company and The American

Newspaper Publishers Association

RIcHARD J. OVELMEN Epwarp Soto

One Herald Plaza CouNSEL oF RecorD

Miami, Florida 33101 Southeast Financial Center

(305) 376-2868 Suite 4350

Miami, Florida 33131-2355

(305) 372-3304

Laura BeSVINICK Geraco B. Cope, Jr.

SHARPSTEIN & SHARPSTEIN, P.A. Greer, Homer, Cope & Bonner, P.A.

3043 Grand Avenue, PH |! Southeast Financial Center

Coconut Grove, Florida 33133 Suite 4360

(305) 442-8100 Miami, Florida 33131

(305) 579-0060

Attorneys for Amici Curiae

[ List of counsel continued on inside cover]

Of Counsel:

W. Terry MaGumre

Generat COUNSEL

THE AMERICAN NEWSPAPEP

PUBLISHERS ASSOCIATION

The Newspaper Center

11600 Sunrise Valley Drive

Reston, Virginia 22091

(703) 648-1055

PARKER THOMSON

THOMSON ZEDER BOHRER WERTH

Aporano & Razook

4900 Southeast Financial Center

Miami, Florida 33131

(305) 350-7200

ATTORNEY FOR THE MIAMI HERALD

PUBLISHING COMPANY

TABLE OF CONTENTS

SEE EEE EEE EEE EE EEE EE EEE EEE EEE EERE EEE EEE EEE EERE EEE EEE

I. The Imposition Of Any Sales Tax On The Press

Would Be Contrary To The Intent Of The Framers

Of The First Amendment ..................ccccc0csceceeeeeeeeeeee--

The Framers Intended to Preclude Taxation

Of The Press Imposed At The Point Of Sale ...

A.

CONCLUSION

The Infamous English Stamp Acts Were

General Revenue-Raising Measures

Which Taxed Ne And Other

Goods At The Point Se Ea

The American Colonies Vehemently Op-

posed The Newspaper Tax Included In

The Stamp Act of 1765 ...............00000+. settee

The American Colonies So Opposed

Taxes On Newspaper Sales That They

Repealed All Such Duties By The Time

The Bill Of Rights Was Enacted .............

The Debates Over The Ratification Of

The Constitution Demonstrate The Fra-

mers Did Not Intend Government To

Levy Sales Taxes on Newspapers ...........

The Framers Intended The First Amendment

To Bar Any Tax Which Acted as a “Knowl-

edge Tax” Because They Considered The

— For Abusive Consequences Too

OP iid ee Re a EEE EOS.

10

12

14

"

TABLE OF AUTHORITIES

CASES:

Branzburg v. Hayes, 408 U.S. 665 (1972) ...............

Breard v. Alexandria, 341 U.S. 622 (1951) ............

Edelman v. Jordan, 415 U.S. 651 (1974) ................

Follett v. McCormick, 321 U.S. 573 (1944) .00.........

Giragi v. Moore, 64 P.2d 819 (Ariz.) (on re-

oo a appeal dismissed, 301 U.S. 670

€ FVD Wah caeth eeecttlbentdinletinhiinsess lichnonthadondlttinalinasints

Grosjean v. American Press Co., 297 US. 233

| eatin 5 AG See aT OR ITT RTT TO Oe

Martin v. Struthers, 319 U.S. 141 (1943) ...............

Memphis Steam Laundry Cleaner, Inc. v. Stone,

S42 UB SOB GIGGR) sth ccdaccteciecstisccdsescalccaciciecceee

Minneapolis Star and Tribune Co. v. Minnesota

Commissioner of Revenue, 460 U.S. 575 ( 1983)

Murdock v. Pennsylvania, 319 U.S. 105 (1943) ......

Police Department v. hiosley, 408 U.S. 92 (1972) ..

Ragland v. Arkansas Writers Project, lac., 287

Ark. 155, 697 S.W.2d 94, supplementary opin-

ion on rehearing, 287 Ark. 155, 698 S.W.2d 802

Qi OR Ra OS Re Se

Speiser v. Randall, 357 U.S. 513 (1958) .................

Steinbeck v. Gerosa, 4.N.Y.2d 302, 151 N.E.2d

170, appeal dismissed, 358 U.S. 39 (1958) .........

Tampa Times Co. v. Tampa, 158 Fla. 589, 29

1047 watt appeal dismissed, 332 U.S. 749

Tully v. Griffin, Inc., 429 U.S. 68 (1976) ..........-.

Village of Scha v. Citizens for a Better

Environment, 444 U.S. 620 (1980) .....................

iW

Books:

B. Bailyn & J. Hench (eds.), The Press and the

American Revolution (1980) ......0......ccccccceccceeee

« iserye Free Speech in the United States

C. (1999) History of the Taxes on Knowledge

C. Duniway, The Development of Freedom of the

Press in Massachusetts (1906) 00.0...0........cecessesees

J. Elliot (ed.), The Debates in the Several State

Conventions on the Adoption of the Federal

IIT tistiliinsciectininiensiinsccseenthensenicseteneocsesesces

M. Farrand, The Framing of the Constitution of

the United States (1913) oo... cece cccccceceeeceees

M. Farrand, The Records of the Federal Con-

vention .......... ni atibdialadinddiaeideunbbthneraunstinshedtencleriesase

J. Gerald, The British Press Under Government

Economic Controls (1956) ..........cccccccccssceeseseocese

F. Hudson, Journalism in the United States

] TREES RO ST MONS Ll Ine,

M. Jensen, The Founding of a Nation (1968) ........

J. Levy, Judgments: Essays on American Con-

stitutional History (1972) ooo... eccceccceeceeeceee

J. Lofton, The Press as Guardian of the First

Amendment (1980) o.........cccccccccececcseeesececeeeeeeceee

J. Main, The Antifederalists (1961) ........................

T. May, Constitutional History of England (1891)

C. Miller, The Supreme Court and the Uses of

SEEDER TEEPT SER 2 caer eae een ene

D. Morgan, Retail Sales Tax (1964) ....0..0..0...........

R. Rutland, The Birth of the Bill of Rights ( 1955)

B. Schwartz (ed. ), The Bill of Rights: A Documen-

tary History (1971) 0... eeeecccseeeseeseseneeeeeeneeees

F. 1952) Freedom of the Press in England

-, iene (ed.), The Complete Antifederalist

7 ene What the Antifederalists Were For

J.B. Williams, History of English Journalism

eS GES as CR RM ce

11,12

12

8,9,10,20

12, 13

7,14,15

14

14

16

8,9,10,19

8,14,15,

16,17,18,

19

12,14,

15,18

14

iv

PERIODICALS:

Page

Schlesinger, The Colonial Newspapers and the

Stamp Act, 8 N.E.Q. 66 (1935) .o..ccccccecceeeeceeee i]

Stewart, John Lennox and the Greenock News-

clout: A Fight Against the Taxes on Knowledge,

15 Scot. Hist. Rev. 332 (1918) occ 9,10

Thompson, Massachusetts and New York Stamp

Acts, 26 Wm. & Mary Q. 257 (1969) o.oo... 12

CONSTITUTIONS AND STATUTES:

Laws of Florida, ch. 86-166 00...000.0.cccccccccccccececeeeeee 2

aa eta li Sil AIC 9

ae a. a ame ee .. °5,10,12

SP caee RN Bo cevinitinisnitdetili Rccentiataieidsihitenad 2, passim

MISCELLANEOUS:

All-State Sales Tax Reporter (CCH ) 9 7-025 ......... 2

State Tax Guide (CCH ) 9 60-000 00... 10

\

No. 85-1370

IN THE

Supreme Court of the United States

Octoser Term 1985

ARKANSAS WRITERS PROJECT, INC.,

Appellant,

vs.

CHARLES D. RAGLAND, COMMISSIONER

OF REVENUE OF THE STATE OF ARKANSAS,

Appellee.

On Appeal from

The Supreme Court of Arkansas

Brief of Amici Curiae The Miami Herald

Publishing Company and The American

Newspaper Publishers Association

The Miami Herald Publishing Company, an unincorpo-

rated division of Knight-Ridder Inc. (““The Miami Herald”),

and The American Newspaper Publishers Association

(“ANPA”) respectfully submit this brief as amici curiae. The

amici support Appellant Arkansas Writers Project, Inc. and

urge the Court to reverse the decision of the Arkansas Supreme

Court."

INTERESTS OF THE AMICI

The Miami Herald Publishing Company is an unincorpo-

rated division of Knight-Ridder Inc. which publishes The

Miami Herald, a daily newspaper of general circulation

1 The decisions below are reported as Ragland v. Arkansas Writers

Project, Inc., 287 Ark. 155, 697 S.W.2d 94, supplementary opinion on

rehearing, 287 Ark. 155, 698 S.W.2d 802 (1985).

2

throughout the State of Florida. Knight-Ridder Inc. is a

nationwide communications company engaging in the publica-

tion of magazines, books, and 28 daily newspapers.

ANPA is a non-profit membership corporation organized

under the laws of the Commonwealth of Virginia. Its member-

ship consists of more than 1,400 newspapers, with an aggregate

circulation exceeding 90% of the national total for daily and

Sunday newspapers.

The amici would be adversely affected were the Court to

uphold a state statute which imposes a discriminatory tax

burden on certain elements of the press, or discriminates in its

incidence based on the content of the expression published.

Of special concern to the amici is the suggestion by the

Supreme Court of Arkansas that a sales tax of general appli-

cability could be imposed on newspapers.2 The Miami Herald

and ANPA have a substantial interest in explaining why sales

taxes ON newspapers are unconstitutional and why the Framers

of the First Amendment viewed them with particular alarm.?

2 The states have largely avoided attempts to raise tax revenues from

newspaper advertising and circulation sales. Only New Mexico and Hawaii

currently tax newspaper advertising sales. All-State Sales Tax Reporter

(CCH) 494 7-025.16, 7-025.36. At the time of this Court’s opinion in

Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue,

460 U.S. 575 ( 1983) only six states provided newspapers no exemption of any

kind from their sales taxes. Eight states presently apply their sales taxes

without modification to newspapers. All-State Sales Tax Reporter (CCH)

q 7-025.

3 At least in part due to dictum in Minneapolis Star, supra at 588 1.9,

Florida has enacted “Sunset” legislation which would automatically repeal

press-related sales tax exemptions, as wel! as other sales tax exemptions,

unless they are reenacted at the 1987 session of the Florida legislature. Ch.

86-166, Laws of Florida, 1986 Fla. Law Weekly Sess. Law Reporter 822. If

this taxation occurs, Florida newspapers would in a single year suffer a

devastating increase in their tax burden amounting to millions of dollars.

3

SUMMARY OF THE ARGUMENT

The Arkansas sales tax is unconstitutional as applied to

magazines or periodicals of general interest because it “singles

out a few members of the press” for taxation, and no interest

“can justify the scheme.” Minneapolis Star and Tribune Co. v.

Minnesota Commissioner of Revenue, 460 U.S. 575, 592 ( opin-

ion of the Court); id. at 593-94 ( White, J.. concurring). That

this discriminatory classification is predicated on the magazines’

content only renders it the more constitutionally infirm. See

Police Department v. Mosley, 408 U.S. 92, 95-96 (1972);

Speiser v. Randall, 357 U.S. 513, 518 (1958).

This Court need do no more than apply these two

fundamental constitutional principles to decide this case. The

rehearing decision of the Arkansas court, however, invites

adjudication of the larger question regarding the con-

stitutionality of a general sales tax as applied to all of the press.

This Court has suggested on several occasions, most recently in

Minneapolis Star, that “nondiscriminatory taxes on the receipts

or income of newspapers would be permissible.” /d. at 588 n.9,

589 n.12.4 However, the Court has never had this issue before

it on the merits in a case which required its resolution, nor has it

* Conceding that it relied on dictum, the Court stated, ““[O]ur cases have

consistently recognized that nondiscriminatory taxes on the receipts or income

of newspapers would be permissible,” 460 U.S. at 588 n.9, citing Branzburg v.

Hayes, 408 U.S. 665, 683 (1972); Grosjean v. American Press Co., 297 U.S.

233, 250 (1936); Follett v. McCormick, 321 U.S. 573, 578 (1944); Murdock v.

Pennsylvania, 319 U.S. 105, 112 (1943).

The cited cases do not address the issue of a general sales tax on

newspapers, nor is the nondiscriminatory nature of a tax controlling. To the

contrary, the Court said in Murdock, “The fact that the ordinance is

‘nondiscriminatory’ is immaterial.” 319 U.S. at 115. Murdock invalidated a

flat license tax on the exercise of rights protected by the First Amendment,

while suggesting that income or property taxation on the person who engages

in First Amendment activity would be proper. Accord, Follett v. McCormick,

321 U.S. at 577-78; see Grosjean v. American Press Co., 297 U.S. at 245-50

( First Amendment bars “taxes on knowledge” whether imposed as stamp tax

on sale of newspapers, or on advertisements; owners of newspapers not

otherwise immune from ordinary forms of taxation). Finally, Branzburg, in

dictum, said “a newspaper may be subjected to nondiscriminatory forms of

general taxation,” 408 U.S. at 683, citing Grosjean and Murdock. Not only

did Branzburg not address the issue of saies taxation, but Branzburg’s reliance

on Grosjean and Murdock as authority necessarily carries the qualifications

described above.

4

decided such a case involving a sales tax on newspapers.5

More to the point, this Court has stated clearly that it would not

hesitate to invalidate any tax contrary to the imtent of the

Framers of the First Amendment “on that ground alone.” 460

U.S. at 584 n.6.

In Minneapolis Star, the Court invalidated a state use tax

which singled out for taxation components used in the produc-

tion of the state’s larger newspapers. Components used in other

industries were not subject to the use tax and small newspapers

were effectively exempted. The Court held that “[dJifferential

taxation of the press” so burdens First Amendment interests

that it is permitted only when “the State asserts a counter-

balancing interest of compelling importance that it cannot

achieve without differential taxation.” 460 U.S. at 585 (foot-

note omitted ). The Court based its holding at least in part on

the “substantial evidence that differential taxation of the press

would have troubled the Framers of the First Amendment.” /d.

at 583 (footnote omitted). While any fair reading of the

historical materials supports the Court’s conclusion, it does noi

follow that the Framers were concerned only with, or even

primarily with, differential taxation of the press. Likewise, the

simple truth that business regulations of general applicability

are usually less threatening to First Amendment interests than

discriminatory taxes does not mean the Framers believed any

or all nondiscriminatory taxes could be levied on the press.

In fact, the historical evidence reveals the Framers in-

tended the First Amendment to bar more than mere. dis-

crimination in taxation. It shows the Framers would have

found at least equally troubling any application of a general

5 The Court has on several occasions dismissed appeals from state courts

upholding state taxes on the gross receipts of businesses which did not exempt

authors or newspapers from the tax. Steinbeck v. Gerosa, 4 N.Y.2d 302, 15!

N.E.2d 170, appeal dismissed, 358 U.S. 39 (1958) (but newspapers ex-

empted); Tampa Times Co. v. Tampa, 158 Fla. 589, 29 So.2d 368, appeal

dismissed, 332 U.S. 749 ( 1947) (but legislatively overruled ); Giragi v. Moore,

64 P.2d 819 ( Ariz.) (on rehearing), appeal dismissed, 301 U.S. 670 (1937)

( gross receipts tax, not sales). Although such decisions have some preceden-

tial weight, they are not of the same force as an opinion of the Court

addressing the merits of the question. Tully v. Griffin, Inc., 429 U.S. 68, 74-75

(1976); Edelman v. Jordan, 415 U.S. 651, 671 (1974). That no such holding

was required in deciding the Minneapolis Star case is shown infra at 6-7 &

n.6.

5

sales tax to newspapers. The state sales tax, as applied to

newspapers, is the contemporary analogue of the odious

eighteenth-century stamp taxes, or “knowledge taxes.” These

taxes imposed a duty on newspapers and other goods at the

point of retail sale. They were opposed not only because they

were intended to suppress expression or because they singled

out the press for discrimination. Indeed, the Stamp Act of 1765

did neither; it was a revenue-raising tax of broad applicability.

Even the first Stamp Act applied to goods other than news-

papers and served revenue-raising, as well as other, purposes.

In part, these Acts were opposed simply because they taxed the

sale of newspapers to the public. A general sales tax on

newspapers is unconstitutional because it, like the Stamp Act

taxes, is precisely the type of “knowledge tax” the Framers

intended the First Amendment to preclude.

The Framers’ opposition to direct taxes on newspaper sales

is complex and historically rooted in their deep antipathy

toward the English knowledge taxes. Their posture is not

reducible to simple abstract principles, but it may in part be

attributable to the combination of characteristics unique to such

taxes which the Framers believed rendered them too dangerous

to trust government to fairly administer.

The Framers feared the Stamp Acts because they directly

taxed the exercise of a fundamental right, the dissemination

and acquisition of knowledge. The Framers believed that just

as government may not tax prayers or speeches, it may not tax

the dissemination or acquisition of news. This is, in fact, the

central meaning of several of this Court’s more venerable First

Amendment decisions. See, e.g., Follett v. McCormick, 321

U.S. 573 (1944). |

The Framers recognized the Stamp Acts were unrelated to

the profitability of the newspapers to which they applied. Since

the tax had to be paid even when a publisher made no money,

the effect on a marginally profitable publication was to put it

out of business. This was indeed the effect of the infamous

Stamp Acts, and the Framers well knew it. They believed

government should not be granted the power to levy such taxes

because their consequence was an evil irrespective of their

intent.

oe

6

The Framers also feared stamp taxes on the press because,

in the English experience, they often served to place news-

papers beyond the means of the poor. Whether they dis-

criminated or not, flat taxes on the acquisition of news kept

newspapers out of the hands of the English lower classes. The

Framers intended to give the government no such power.

By the time the First Amendment was adopted, no state

imposed a tax on the sale of newspapers. Both Massachusetts

and New York, the only states to place taxes on newspapers,

had repealed them. This Court should adhere to the intent of

the Framers of the First Amendment by declaring that the

exemption of the press from sales taxation is constitutionally

required.

ARGUMENT

1. The Imposition Of Any Sales Tax On The Press Would

Be Contrary To The Intent Of The Framers Of The First

Amendment

There can be no doubt, and the amici express none, that

“the States and the Federal Government can subject news-

papers to generally applicable economic regulations without

creating constitutional problems.” 460 U.S. at 581 (citations

omitted). But it is equally established that when this Court

does “have evidence that a particular law would have offended

the Framers, we have not hesitated to invalidate it on that

ground alone.” /d. at 584 n.6. It is the burden of this brief to

show that the Framers of the First Amendment disapproved of

the imposition of taxes on newspapers at the point of sale.

That this historical conclusion can be generally harmo-

nized with the Court’s prior teachings on the matter, and is

certainly not foreclosed by them, can be shown by a careful

reading of the relevant cases. This Court has noted “differ-

ential taxation of the press would have troubled the Framers of

the First Amendment,” 460 U.S. at 583 ( footnote omitted ), but

it has never stated that only differentia! taxation would have

offended them or that a general tax of any kind applied to the

press would have received their approval. And, although the

7

Court has suggested that a generally applicable tax presents

“little cause for concern” because government will not “destroy

a selected group of taxpayers by burdensome taxation if it must

impose the same burden on the rest of its constituency,” 460

U.S. at 585 (citation omitted ), it has not held that general taxes

are never cause for concern. It is therefore entirely consistent

with this Court’s historical understanding and holdings that the

Framers were vigorously opposed to any taxation of the press at

the point of sale, discriminatory or otherwise. —

A. The Framers Intended to Preclude Taxation Of The

Press Imposed At The Point Of Sale

This Court has observed that “[w]hen the Constitution

was proposed without an explicit guarantee of freedom of the

press, the Antifederalists objected.” 460 U.S. at 584. The

Federalists argued “that such a guarantee was unnecessary

because the Constitution granted Congress no power to control

the press.” Jd. The Antifederalists responded that without

express protection for the press, the “necessary and proper”

clause in combination with the taxing power could be used to

abridge its freedom in much the way that power had been used

in England. 3 J. Elliot (ed.), The Debates in the Several State

Conventions on the Adoption of the Federal Constitution 441-42

(George Mason); J. Main, The Antifederalists 154-55 (1961)

® In reaching its decision in Minneapolis Star this Court held only that a

differential tax on the press must be justified by an overriding state interest

and that the Minnesota tax also was invalid because it discriminated against

certain members of the press. The case did not involve the constitutionality of

any sales tax, and neither of these holdings requires any finding that sales

taxes of general applicability need not exempt newspapers. {t may be

objected that the Court did opine that Minnesota had an available alternative

to differential taxation of the press, in that “the State could raise the revenue

by taxing businesses generally ....” Jd. at $86 (footnote omitted). But a

general tax need not be a sales tax. And the Court found two “fatal flaws” in

Minnesota's claim that its use tax was a “substitute” for its sales tax. Jd. at

587.. First, Minnesota offered no explanation of why it imposed the use tax

instead of the sales tax and since the tax fell on components and not ultimate

sales, it probably was not a substitute for the sales tax. Id. at 588. Second,

“courts as institutions are poorly equipped to evaluate with precision the

relative burdens of various methods of taxation,” so the courts could not

administer a rule allowing differential taxation of the press even if the burden

would be the same or less as that imposed by other taxes on other taxpayers.

Id. at 589 (footnote omitted ).

8

(quoting “Timoleon” in N.Y. Journal, Nov. 1, 1787); Lee,

“Letters from the Federal Farmer” IV, in H. Storing (ed. ), The

Antifederalist 59 (1985). As the Court noted in Minneapolis

Star, “[t}he concerns voiced by the Antifederalists led to the

. adoption of the Bill of Rights.” 460 U.S. at 584 (citation

omitted). Because the “framers of the First Amendment were

familiar with the English struggle,” Grosjean v. American Press

Co., 297 US. 233, 248 (1936), it is necessary to view the

Antifederalists’ position against the backdrop of the English

experience with the infamous Stamp Acts or “knowledge taxes”

to understand precisely their “concerns.”

1. The Infamous English Stamp Acts Were General

Revenue-Raising Measures Which Taxed News-

papers And Other Goods At The Point of Sale

By the end of the seventeenth century, as the popular

demand for easily accessible information grew, the English

Crown found it propitious to develop more subtle means to

retain some control. of the press. Public sentiment began to play

a greater role in the conduct of governmental affairs, especially

as competing factions of power sought public support for their

respective positions. Laws which created and supported the

licensing system were regarded as ineffective and unworkable

and by 1694 were allowed to lapse. F. Siebert, Freedom of the

Press in England, 1476-1776, 244, 305-06 (1952).

Despite the fact that the value of a free press was

acknowledged by prominent government officials at the turn of

the century, publications which commented on political affairs

were still viewed with suspicion by government regulators. F.

Siebert, supra, at 305-06. It was in this light that Parliament

first considered taxing the press in order to regulate printed

matter indirectly. F. Siebert, supra, at 306-10; 1 C. D. Collett,

History of the Taxes on Knowledge 7 (1899). Parliament had

just passed its first tax on printed matter (calendars and

almanacs) in 1710, and in 1711 a report had circulated

suggesting that taxation of “weekly newspapers and pam-

phiets . .. would probably reduce the circulation of newspapers

from 45,000 to not above 30,000.” F. Siebert, supra, at 309

(footnote omitted). On January 17, 1712, at the request of the

9

Ecclesiastical Convocation. Queen Anne addressed Parliament

and deplored the

great license .. . taken in publishing false and scandalous

Libels such as are a reproach to any government. This Evil

seems too strong for the Laws now 1m force: it is therefore

recommended to you to find a Remedy equal to the

Mischief.

F. Siebert, supra, at 309; C. D. Collett, supra, at 8.

But suppression was not the only purpose of the tax. Of at

least equal concern to the Crown was the need to raise money

to fight the War of the Spanish Succession. Stewart, John

Lennox and The Greenock Newsclout: A Fight Against the

Taxes on Knowledge, 15 Scot. Hist. Rev. 322, 326-27 (1918);

J. B. Williams, History of English Journalism (1908); F. Sie- -

bert, supra, at 309. The newspaper stamp duty and the special

tax on advertising in England “were a part of ordinary revenue

measures; the position of the government was that the press, as

a business, should pay its fair share of taxes.” J. Gerald, The

British Press Under Government Economic Controls 6 (1956).

Parliament responded on May 16, 1712 by passing the first

general revenue tax which included a tax on newspapers. This

enactment (10 Anne, c. 19), known as the Stamp Act of 1712,

placed a tax on imported linen; soaps; several kinds of agree-

ments written on vellum, parchment, or paper; and printed

papers, pamphlets, and advertisements. The Act earned its

name because it required a stamp to be affixed on all docu-

‘ments, including newspapers at the point of sale. C. D. Collett,

supra, at 8. The law also provided certain “exemptions” or |

“discounts”. For example, there was a one-third “drawback” —

on soap used in making clothes or serges, since the wool

industry had had a long history of favorable treatment by the

government. There was also a “drawback” for paper used by

the universities at Oxford and Cambridge and in Scotland, as

well as for any books printed in Latin, Greek, Oriental, or

Northern languages for the “encouragement of learning.” C. D.

Collett, supra, at 8-9. Thus, the early Stamp Act was directly

10

analogous to the broad contemporary sales tax, even including

a disparate array of exemptions.’

Whatever the intent of the English stamp tax, its effects

were clear. The immediate consequence of the Stamp Act was

the demise of several newspapers. F. Siebert, supra, at 312. As

Sir Richard Steele, editor of the Spectator explained the day

before the Stamp Tax went into effect: “This is the day on

which many eniinent authors will publish their last words.”

C. D. Collett, supra, at 12. The tax likewise retarded the

establishment of mass-circulation newspapers. /d. at 5-6;

Stewart, supra, at 326.

Parliament passed a second Stamp Tax Act in March 1765.

This Act taxed legal documents (including contracts, court

pleas, land grants, college diplomas, and liquor licenses),

publications and advertisements, and gambling items (dice and

playing cards). The stated purpose of the law was to defray

“the expense of defending, protecting, and securing” the co-

lonies. This purpose was real. A large public debt had been

incurred during the Seven Years War, and the Stamp Act was

only one of several measures designed to increase British

egy C. Miller, The Supretie Court and the Uses of History

).

2. The American Colonies Vehemently Opposed The

Newspaper Tax Included in The Stamp Act of 1765

The Stamp Act of 1765 so outraged the colonists that

Parliament repealed it within a year. In passing this Stamp Act,

Prime Minister George Grenville had touched “each nerve

center in American life at which either economic or intellectual

activity was registered.” J. Pole, Foundations of American

Independence, 1763-1815 42 (1973). “No group in America

7 The contemporary form taken by state sales taxes is of relatively recent

vintage, the first modern sales tax law was enacted by West Virginia in 1921,

followed by Georgia in 1929. Morgan, Retail Sales Tax 3 (1964). Today

some 45 states have a sales tax; only Alaska, Delaware, Montana, New

Hampshire, and Oregon do not. St. Tax Guide (CCH) 4 60-000 at p. 6021 fn.

In general. these sales taxes are peppered with exemptions which serve a

variety of purposes—from ameliorating the regressive character of the tax to

om das ak: i aed C. Oster, State Retail Sales Taxation 114

was more directly affected than the publishers of the twenty-

four newspapers in the mainland colonies.” M. Jensen, The

Founding of a Nation 126 (1968). Benjamin Franklin, who

was serving as a colonial agent in London when the Stamp Act

was adopted, wrote to America. “I think it will affect the

Printers more than anybody .. . as a Sterling Halfpenny Stamp

on every Half Sheet of a Newspaper, and Two shillings Sterling

on every Advertisement, will go near to knock up one Half of

both.” Botein, “Printers and the American Revolution,” in The

Press and the American Revolution \1, 23 (B. Bailyn & J.

Hench, eds., 1980). Foreign-language pub'ications had to pay

twice the normal rates, a severe blow to the German-language

press around Philadelphia, leading Henrich Miller, a German-

language publisher, to call the Stamp Act “the most uncon-

stitutional law imaginable.” Schlesinger, The Colonial News-

papers and the Stamp Act, 8 N.E.Q. 66, 70 (1935).

Some newspapers set off their columns with heavy black

mourning margins the day before the tax went into effect. while

others printed silhouetted skulls and crossed bones to symbolize

a dead free press. J. Lofton, The Press as Guardian of the First

Amendment 2 (1980); M. Jensen, supra, at 127. The New

Hampshire Gazette represented itself as gasping, “/ must Die,

or submit to that which is worse than Death, be Stamped, and

lose my Freedom.” Schlesinger, supra, at 74 (emphasis in

original). Many publishers defied the law, printing their

newspapers on unstamped paper. In New York, Holt’s Gazette

added to its title the motto, “The United Voice of all His

Majesty’s free and loyal Subjects in America—LiIBERTY,

PROPERTY and no STAMPS.” Jd. at 75 (emphasis in

original ).

“The newspapers played a tremendous role in political life

from the Stamp Act onward.” M. Jensen, supra, at 127.

Newspapers reprinted liberally from each other, thus helping to

unite the colonies. They appealed to the masses, stirred their

emotions and urged them to action. /d. at 128. When stamped

copies of newspapers from Barbados and Nova Scotia were

found in Philadelphia, they were publicly burned. Schlesinger,

supra, at 79 n.33. Thus the British themselves helped to make

the American press an instrument of revolution. J. Lofton,

supra, at 2; J. Pole, supra, at 423.

12

In 1765, an assembly of delegates from nine of the colonies

met as the “Stamp Act Congress” to protest the tax. A formal

_ complaint was issued, entitled “A Declaration of Rights and

Grievances,” the basic principles of which were later in-

corporated into the Declaration of Independence. Because of

this opposition, the American stamp tax was repealed less than

a year after its enactment. Z. Chafee, Free Speech in the United

States 321 (1967). In 1787, a leading Antifederalist, Samuel

Bryan, wrote in the Philadelphia Independent Gazette and

Freeman’s Journal that “[i]t was not the mere amount of the

duty on stamps, or tea that America opposed, they were

considered as signals of approaching despotism, as precedents

whereon the superstructure of arbitrary sway was to be reared.”

2H. Storing (ed. ), The Complete Antifederalist 176-77 (9981)

(emphasis in original ).

3. The American Colonies So Opposed Taxes on News-

paper Sales That They Repealed All Such Duties By

The Time The Bill of Rights Was Enacted

The English were surprised by the colonists’ reaction to the

Stamp Act of 1765, but the history of precursor taxes in both

New York and Massachusetts foreshadowed the reception

awaiting the tax. In New York, a tax was imposed on paper in

1756. It met with strong opposition which led to its demise in

1760. L. Levy, Judgments: Essays on American Constitutional

History 128 (1972). James Parker, printer of the New York

Gazette, called the tax “like to a killing Frost,” and complained

in particular that New York’s stamp tax disadvantaged him in

competition with printers in nearby colonies. Thompson,

Massachusetts and New York Stamp Acts, 26 Wm. & Mary Q.

257 (1969); Botein, supra, at 24.

in Massachusetts, a halfpenny newspaper tax was passed

in 1755. As a result of this tax, one newspaper discontinued

publication, while another voiced its opposition to the tax by

printing articles on the freedom of the press extracted f.om

contemporary London newspapers. C. Duniway, The Devel-

opment of Freedom of the Press in Massachusetts 120 (1906).

13

By 1780, after the Declaration of Independence, nine of

the newly-formed state governments included specific press

clauses in their state constitutions. By the time the Constitution

was ratified, every state guaranteed the freedom of the press.

These clauses were couched in terms similar to the eventual

wording of the First Amendment to the Constitution. C.

Duniway, supra, at 132-36. Nevertheless, in 1785 and 1786,

Massachusetts enacted taxes on both newspaper sales and

advertisements. Opposition to these measures was e~>licitly

based on the view that the taxes violated the grrrantee of the

liberty of the press in the Massachusetts constitution:

A series of articles in the Massachusetts Centinel for

Apni and May, 1785, are typical of the feeling against the

tax. It was denounced as “‘the first Stone in the fabrick of

Tyranny”; if the principle of such a tax were once admit-

ted, it might be made prohibitory by a venal House of

Representatives and thus “end the liberty of the press.” It

was contrary to the constitution, because it was a stab at

the freedom of the press, and “whatever tends in the

——smallest degree to deprive the péople of political informa-

tion, is inimical to the principles of Republicanism.”

C. Duniway, supra, at 136 n.2. This is further evidenced by

contemporary articles in the Boston Gazette:

The sixteenth article on our Bill of Rights says: ““The

Liberty of the Press is essential to the security of Freedom

- in a State: It ought not therefore to be restrained in this

commonwealth.”

The duty on advertisements also prevents our publishing

that we have lately reprinted an excellent moral Discourse,

entitled “the Shortness and Affliction of Human Life

illustrated”... .

F. Hudson, Journalism in the United States 164 (1873).

As a result of this opposition, the taxes on newspapers and

advertisements were repealed by 1788. At the time the Bill of

Rights was adopted, no state thought it proper to impose a sales

tax On newspapers, and none did.

14

4. The Debates Over The Ratification Of The Con-

stitutien Demonstrate The Framers Did Not Intend

Government To Levy Sales Taxes On Newspapers

The Constitution originally contained no Bill of Rights and

no guarantee of the liberty of the press. At the Constitutional

Convention, the Federalists had successfully argued that none

was necessary. The immediate public reaction to the proposed

Constitution, however, proved them wrong. The greatest single

objection to the new Constitution was the lack of any explicit

protection for individual rights, and specifically the liberty of

the press. J. Main, supra, at 255; R. Rutland, The Birth of the

Bill of Rights 218 (1955); H. Storing, What the Antifederalists

Were For 64 (1981). The debate between the Antifederalists

and the Federalists over the ratification of the Constitution

centered on this objection. Antifederalists argued that without

an explicit guarantee, the power to tax for the “general

welfare” could be perverted and used to restrict the press. E.g.,

3 J. Elliot, supra, at 441-42 (George Mason); J. Main, supra, at

154-55 (quoting “Timoleon” in N.Y. Journal, Nov. |, 1787).

They further argued that because the power to tax was not

limited, it would extend to everything, including the press,

unless a guarantee of press freedom was added. E.g., Lee,

“Letters from the Federal Farmer” IV, XVI, in H. Storing

(ed.), The Antifederalist 49, 85-86; 4 H. Storing (ed.), The

Complete Antifederalist 206-07 (Thomas Cogswell). The

Antifederalists explicitly stated that a Bill of Rights was needed

to prevent the government from imposing stamp taxes on

newspapers. As one pamphleteer wrote:

Congress have power to lay all duties of whatever kind,

and although they could not perhaps directly bar the

freedom of the Press, yet they can do it in the exercise of

the powers that are expressly decreed to them. Remember

® Late in the Convention, E!bridge Gerry and Charlies Pinckney moved

that a clause be added to the proposed constitution guarantéeing “that the

liberty of the Press should be inviolably observed—.” 2 M. Farrand (ed.},

The Records of the Federal Convention 617 (Madison). Roger Sherman

responded, “It is unnecessary—The Power of Congress does not extend to the

Press,” and the motion was voted down 6-5. Id. at 618. See M. Farrand, The

Framing of the Constitution of the United States 124 (1913). -

15

there are such things as stamp duties and that these will as

effectually abolish the freedom of the press as any express

declaration.

3 H. Storing (ed.), The Complete Antifedevalist 81-82 (empha-

sis in original). The Federalists argued primarily that no

guarantee of the liberty of the press was necessary because

nothing in the Constitution gave Congress the power to tax the

press. E.g, 2 J. Elliot, supra, at 435-36, 453-54 (James

Wilson ); 3 J. Elliot, supra, at 469 (Edmund Randolph); 4 J.

Elliot, supra, at 208-09 ( Richurd Spaight).

In the end, the Antifederalists prevailed. The Constitution

was ratified, but only on the understanding that a Bill of Rights,

including a guarantee of the liberty of the press, would follow

immediately. An analysis of the arguments of the prevailing

parties—the Antifederalists—is therefore essential to an under-

standing of the intent of the Framers of the First Amendment.

460 US. at 584-85.

The Antifederalists were concerned that the proposed

Constitution could be abused by the new federal government

and employed against the press. Richard Henry Lee, one of the

most widely read and respected of the Antifederalists, wrote in

his “Letters From the Federal Farmer” of the danger to the

press posed by the taxing power. Lee feared that, in the

absence of an explicit constitutional guarantee, Congress could

properly consider itself free to employ the taxing power against

the press, just as it would against any other industry. And,

because of the supremacy clause, state constitutional guarantees

would be powerless to bar federal taxation of the press:

Should the printer say, the freedom of the press was

secured by the constitution of the State in which he lived,

congress might, and perhaps, with great propriety, answer,

that...in exercising the powers assigned them, and in

making laws to carry them into execution Congress are

restrained by nothing beside the federal constitution.

Lee, “Letters From the Federal Farmer” IV, in H. Storing

(ed.), The Antifederalist 59.

16

Lee expanded on this argument in Federal Farmer XVI.

He initially noted the widespread belief that the freedom of the

press “ought not to be restrained by any taxes.” Then he

warned the press is provided no protection by the fact that the

Constitution does not expressly give the Congress the power to

tax it. The danger, Lee notes, is that the power to tax is

unlimited:

But, say the advocates, all powers not given are re-

served:—true; but the great question is, are not powers

given, in the exercise of which this mght may be de-

stroyed?.... [T]he question is, what laws will congress

have a right to make by the constitution of the union, and

particularly touching the press? By art. I, sect. 8, congress

will have the power to lay and collect taxes, duties, imposts

and excise. By this congress will clearly have power to lay

and collect all kind of taxes whatever—taxes on houses,

lands, polls, industry, merchandize, &c.—taxes on deeds,

bonds, and all written instruments—on writs, pleas, and all

judicial proceedings, on licenses, naval officers papers. &c.

on newspapers, advertisements, &c.... Printing, like all

other businesses, must cease when taxed beyond its profits;

and it appears to me, that a power to tax the press at

discretion, is a power to destroy or restrain the freedom of it.

Lee, “Letters From_the Federal Farmer” XVI, in H. Storing

(ed.), The Antifederalist 85-86 (emphasis added ).

Lee’s fear regarding the taxing power and the press was

voiced by many Antifederalists. In New York, Melancton

Smith explained why the Constitution needed a press clause:

“We contend, that by the indefinite powers granted to the

gereral government, the liberty of the press may be restricted by

duties, &c. and therefore the constitution ought to have stipu-

lated for its freedom.” 1 B. Schwartz (ed.), The Bill of Rights:

A Documentary History 576 (1971).

The Antifederalists did not distinguish between taxes

levied specifically on the press for purposes of suppression and

general taxation of the press. A constitutional guarantee of the

freedom of the press was understood to bar both equally. Thus,

17

in Federal Farmer IV, Lee notes that, without an explicit

guarantee, Congress would be free both to lay “any duties

whatever on printing” and to lay “duties particularly heavy on

certain pieces printed.” Likewise in Federal Farmer XVI, Lee

explains that left unrestricted the taxing power will reach

“newspapers [and] advertisements,” just as it does “industry

{and} merchandize.” In the minds of the Antifederalists, a

guarantee of the liberty of the press was essential to stop

Congress from laying amy duties at the point of sale on the

press.

The important lesson taught by the history of the Framers’

opposition to the stamp taxes is they were deeply offended by

any tax on the sale of newspapers to the general public. Even

where stamp taxes were enacted for revenue-raising purposes

and had a broad applicability, they were anathema to the

Framers. An important purpose of the First Amendment was

to ban taxation of the press at the point of sale, which

necessarily precludes imposition of a general sales tax. It

follows that the exemption sought by the Arkansas Writers

Project must be granted.

B. The Framers Intended the First Amendment to Bar Any

Tax Which Acted as a “Knowledge Tax” Because They

Considered The Potential for Abusive Consequences Too

Great

The unrelenting antipathy of the Framers toward any tax

on knowledge, whether in the form of the Stamp Act of the

colonial era or the contemporary sales tax on newspapers,

reflects most profoundly the Framers’ reading of English and

colonial history and the socio-political world of eighteenth

century A’ .erica. The complexity of the Framers’ rationale

does no’ .end itself to any reductionist explanation, but several

powerful themes run through the Framers’ writings on those

matters which help in part to explain their view.

First, the Stamp Act, like the sales tax, directly burdened

the exercise of a right: the acquisition of news and information.

As New Hampshire Chief Justice Thomas Cogswell, wrote:

The liberty of the Press is essential to a free people, it

ought therefore to be inviolably preserved and secured in

the Bill of Rights, and no duty or tax to be imposed

thereon, of what name or nature soever.

4H. Storing (ed.), The Complete Antifederalist 206-07. Sim-

ilarly Lee, in his “Letters from the Federal Farmer” noted:

All parties apparently agree, that the freedom of the press

is a fundamental right, and ought not to be restrained by

any taxes, duties, or in any manner whatever.

Lee, “Letters From the Federal Farmer” XVI, in H. Storing

(ed.), The Antifederalist 85.

This Court has long recognized the danger of allowing

states to tax the exercise of constitutional rights. Follett v.

McCormick, 321 US. at 578 (no requirement “to pay a tax for

the exercise of that which the First Amendment has made a

high constitutional privilege”); Murdock v. Pennsylvania, 315

U.S. 105, 113 (1943) (“A state may not impose a charge for

the enjoyment of a right granted by the federal constitution.” ).®

Second, the Framers were deeply concerned by the fact

that the stamp tax (like the sales taxes) imposed a burden on

newspapers unrelated to their profitability. Richard Henry Lee

expressed this fear most clearly: “Printing, like’ all other busi-

91In Minneapolis Star, the Court suggested in dicta that Breard v.

Alexandria, 341 U.S. 622 (1951), “substantially undercut” this line of cases

. which began with Martin v. Struthers, 319 U.S. 141 (1943), 460 US. at 586

n.9. But neither Martin nor Breard addressed the question of whether a direct

tax may be placed on the exercise of a right since neither involved taxation.

The Beard decision held only that any First Amendment interest in soliciting

periodical subscriptions door-to-door at private homes, in the absence of an

invitation from the homeowner, must give way to the privacy rights of the

tromeowner. That Breard did not disturb Murdock and Follett regarding the

rule of law prohibiting direct taxation of rights is evident from the restatement

of that position by the Court in the term immediately following the Breard

decision. Memphis Steam Laundry Cleaner, Inc. v. Stone, 342 US. 389

( 1952).

Whether Breard itself remains good law in any respect is open to serious

doubt. Compare Breard with Village of Schaumburg v. Citizens for a Better

Environment, 444 U.S. 620, 632 n.7 (1980) (“To the extent that any of the

Court’s past decisions discussed in Part IT [including Beard] hold or indicate

that commercial speech is excluded from First Amendment protection, those

decisions, to that extent, are no longer good law.”).

19

nesses, must cease when taxed beyond its profits.” Lee, “‘ Letters

From the Federal Farmer” XVI, in H. Storing (ed.), The

Antifederalist 85-86 (emphasis added ).

The Framers knew that marginally profitable newspapers,

whether large or small, often did not survive a tax imposed at

the point of sale. They knew this because the English and

Massachusetts experience demonstrated it. As Professor Siebert

starkly observed: “A sizable number of newspapers were

immediately killed by the Act.” F. Siebert, supra, at 312.

Jonathan Swift noted the draconian effect of the Stamp Act on

the English “penny press” with typical, yet telling, hyperbole:

Do you know that all Grub-street is dead and gone

last week? ... [N]Jow every single half-sheet pays a

halfpenny to the queen. The Observator is fallen; the

Medleys are jumbled together with the Flying Post; the

Examiner is deadly sick; the Spectator keeps up and

doubles its price.

Id. at 313. Because they knew the potential danger of direct

sales taxes to economically weak publications, the Framers

greatly feared them. It was no solace to them that a sales tax

which applied to a variety of goods would drive marginally

profitable non-press companies out of business as effectively as

it killed the profitless members of the press.

Third, perhaps the Framers’ greatest concern was the

effect of a stamp tax on newspaper sales, particularly the less

affluent populace. They understood that the English Crown

had used such taxes to place acquisition of the news beyond the

reach of many members of the public. As noted above, the

intent of the first stamp tax was in part to reduce newspaper

circulation by one-third. F. Seibert, supra, at 308-09. The

primary victims of the tax were the inexpensive publications

which had formerly circulated widely among the general

public:

Was there no way by which, without the necessity of

constant contention, private men might be prevented from

using the Press to make their opinions public? The pam-

phleteers were not rich, but they were often persons of

20

education, and not penniless. When only a few copies of

their writings were wanted they could pay for them, but

now that reading was become more common, and that

great numbers of copies were printed, the cost had, to a

great extent, to be paid by the readers. If these sheets

could be taxed their distribution might become difficult,

and when any one attempted to evade the tax he could be

punished, not as a libeller, but as a smuggler, and the

character of what was printed would not come under

discussion, as it generally would in a trial for libel.

C.D. Collett, supra, at 7.1

Whether these concerns of the Framers retain all of their

’ vitality today is beyond the issue and the record of this case. It

is enough that a law imposing taxes on the retail sale of

newspapers “would have offended the Framers”; the Court

should not “[hesitate] to invalidate it on that ground alone.”

460 US. at 584 n. 6.

10 “Cheapness and expansion were evidently becoming the characteristics

of the periodical press; to which every tax, however light, was an impediment.

Hence a new movement for the repeal of all ‘Taxes on knowledge’ led by Mr.

Milner Gibson, with admirable ability, address, and persistence. In 1853, the

advertisement duty was swept away; and in 1855, the last penny of newspaper

stamp was relinquished. Nothing was now left but the duty on paper; and

this was assailed with no less vigor. Denounced by penny newspapers, which

the repeal of the stamp duty had called into existence; complained of by

publishers of cheap books; and deplored by the friends of popular education,

it fell, six years later, after a parliamentary contest memorable in history. And

now the press was free alike from legal oppression and fiscal impediments.”

2 T. May, Constitutional History of England 215 (1891).

21

CONCLUSION

For the reasons stated, the First Amendment precludes

imposition of a sales tax on the press. Accordingly, the

judgment below should be reversed.

Respectfully submitted,

EpwarbD Soto

COUNSEL OF RECORD

Southeast Financial Center

Suite 4350

6 Miami, FL 33131-2355

(305) 372-3304

August 1986