# Amicus Curiae Brief — Arkansas Writers' Project, Inc. v. Ragland > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0077%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1987 - **Citation:** 481 U.S. 221 ## Text -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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0077%3A13. Public record. Not legal advice.