Amicus Curiae Brief — Lovell v. City of Griffin

* 020) — Office -Supreme Court, U.S |

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JAN 27 199

IN THE CHARLES ELKORE CROPLEY |

é :' CLERK

. Supreme Court of the United States

OCTOBER TERM, 1937.

No. 391.

» a

ALMA LOVELL,

Appellant,

—against—

CITY OF GRIFFIN,

Appellee.’

MOTION AND BRIEF ON BEHALF OF WORKERS’

DEFENSE LEAGUE AS AMICUS CURIAE.

J SAMUEL SLAFF,

Counsel for Workers’ Defense League.

GrorcE SiaFrr (of the New York Bar),

On the Brief.

a a A EEE BERTIER SILI RS WR STORE Te MIE

TABLE OF CASES CITED:

: PAGE

' Barthet vy. City of New Orleans, 24 Fed. 563.........- 9

City of Summitt v. Gramp (Unreported—N. J. Sup.

ORE Ie ree eee Oy er ame

Coughlin vy. Sullivan, 100 N. J. L. 42, 126 Atl. 177..... 9,11

me warce sorneon, BE UU: 6. 726 oo nc eecdsvcscsctes's 6

ree ENO, FO Me Ws DOE. os ins eer hwacse ves a)

Gitlow v. New York, 268 U. 8. 652........\... eee hy a)

Grosjean v. American Press Co., 297 U. 8S. 233......5,7, 12

mornaes ¥. Lowry, Bl U. B.. ZAZ. avec cschenvecse 7

Kish, et al. v. Meaney, et al. (now pending—N. J. Sup.

RT ae Se Reni ar 0 6 he Re OL TOE Robo Pew 12

Lynch vy. Town of Northview, 73 W. Va. 609, 81 8S. E.

Seer CRRA EG aaah Fe Ae ONS ARES RENE H SN 9

Matter of the Application of Nancy Coa, for a writ of

Habeas Cofpus, 60 N. J. L. J., 328............. 10

Bear ¥. Miewete, 250 Ui; BGT oa ote vin cde ccvuns one

Palko v. Connecticut, 82 L. Ed. Ady. Ops. #5, P. 220.. 5

Peo. v. Armstrong, 73 Mich. 288, 41 N. W. 275...... 10

Peo. v. Johnson, 117 Misc. 133, 191 N. Y. S. 750..... 10, 12

State v. Conlon, 65 Conn. 478, 33 Atl. 519............ a

Town of State Center vy. Barenstein, 66 Iowa 249, 23

N. W. G52... eee eee eee eee eee eee nee e eens 9

Yick -Wo v. Hopkins, 118 U. 8. 356.............000 7

LEME ST,

| INTHE. /..

Supreme Court of the United States

OCTOBER TERM, 1937.

No. 391.

-s=

>

AuMA LOVELL,

3 Appellant,

—against—

CITY OF GRIFFIN,

: Appellee.

»™

a

Motion for Leave to File Brief as Amicus .Curiae.

May IT PLEASE THE COURT:

The undersigned, as counsel for the Workers’ De-

fense League, an unincorporated association, has ob-

tained the consent of all counsel of record to the

filing of the accompanying brief and respectfully

moves this Honorable Court for leave to file the same

in this case as amicus curiae.

_ January 20th, 1938...

SAMUEL S.LaFF,

Counsel for Workers’ Defense League.

PET IES

\ IN THE

supe Court of the United States

OCTOBER TERM, 1937.

No. 391.

i,

—

ALMA LOVELL,

Appellant,

—against—

CITY OF GRIFFIN,

Appellee.

=

a

o

BRIEF OF WORKERS’ DEFENSE LEAGUE AS

AMICUS CURIAE.

Statement of the Case. .

The appellant was tried and convicted in the

Recorder’s Court of the City of Griffin, Georgia,

for violation of the ordinance quoted below:

‘SORDINANCE OF City OF GRIFFIN

‘‘Be it ordained by the Board of Commis-

sioners of the City of Griffin:

‘‘Section 1.. That the practice of distributing,

either by hand or otherwise, circulars, handbooks,

advertising, or. literature of any kind, whether

said articles are being delivered free, or whether

same are being sold, within the limits of the City

of Griffin, without first obtaining written per-

mission from the City Manager of the City of

Griffin, such practice shall be deemed a nuisance,

4

and punishable as an offense against the City of

Griffin.

‘‘Section. 2. The Chief of Police of the City -

of Griffin and the police force of the City of

Gri*in are hereby required and directed to sup-

press the same and to abate any nuisance as is

described in the first section of this ordinance.”’

The. judgment of conviction was affirmed by the

Court of Appeals of Georgia. Its opinion appears

at page 16 of the Record and-is sig geen in 55) Ga.

609, 191 S. E. 152.

Interest of the Workers’ Defense League.

Among the purposes of the Workers’ Defense

League is the protection of the rights of assembly,

free speech and freedom of the press. It submits

this brief as amicus curiae because of its opinion

that today many municipal officials are -attempting

to so cireumscribe and limit the rights of free speech |

and press through the medium of unconstitutional

ordinances as to render those rights unavailable to

any but powerful vested property interests. It is its

opinion that this ordinance is unconstitutional on its

. face. The judgment and experience of the Workers’

Defense League is that ordinances of the general

type of the one under immediate consideration are

mainly invoked against minorities and against the ex-

pression of views which offer the possibility, real or

imaginary, of curtailment of special privileges.

Argument.

This Court has held that freedom of speech and

freedom of the press are protected against state in-~

fringement by the Fourteenth Amendment.

5

Near v. Minnesota, 283 U. S. 697;

Gitlow v. New York, 268 U. 8S. 652;

Grosjean Vv. American Press Co., 297 U. S.

" 933s

Palko vy. Connecticut, 82 -L. Ed. Adv. Ops.

#5, P. 220.

@

In the last cited case, this Court said of freedom

of thought and speech (p. 224):

‘‘Of that freedom one may say that it is the

matrix, the indispensable condition, of nearly

every other form of freedom.”’

In every country in the world where a dictator-

ship exists there exists also a controlled pfess.* In

stating that a basic element of any. democracy is a

free and untrammelled press which has the right to

have its opinions and messages disseminated as widely

as possible, we go no further than this Court itself

has gone.

‘‘A free press stands as one of the great inter-

preters between the government and the people.

~ To allow it to be fettered is to fetter ourselves.”’

Grosjean v. American Press Co., supra, 250.

We do not deem it necessary to dwell at any length

upon the fact that the ‘‘press’’ embraces within its

meaning much more than the regularly constituted -

daily or weekly newspapers or magazines. Many of

the greatest struggles for freedom and the rights of

man have been fought and won in England and

America through the pamphleteering activities of

such people as John Milton, Edmund Burke, Thomas

* Report of the Dean of the Graduate School of Journalism of Co-

lumbia University, for period ending June 30, 1937.

Paine, Benjamin Franklin, Samuel Adams, William

Lloyd Garfison, and hosts of others. Nor can freedom |

of the press be restricted to the narrow meaning of

merely liberty to print. The phrase and the concept

are illusory unless they encompass freedom to com-

municate ideas, whether one’s own or another’s. It

must and does include not only the right to write |

and print, but to publish and circulate as well.

F

Ex parte Jackson, 96 U. S. 727, 733.

The issue involved in this case is far broader than

the question of religious freedom. Within the

past decade ordinances of this sort have spotted the

country. This one, and many others as well, pro-

hibit or restrict the distribution in public places of

printed matter and involve a conscious or uncon-

scious fascist throttling of a free press. Whatever

might be said legalistically to justify a restriction on

the distribution of commercial advertising matter

(and we take no position thereon at this time since

it is not germane to the issue—the ordinance being

so much broader in its terms) there can be no justifi-

cation under the guise of the ‘‘police power”’ of sub-

mitting the control of the press to the ecaprice or

whim of any administrative official of any city.

Although a City Council would hardly dare in-

clude such an explicit provision, the power of the

City Manager of Griffin to exercise censorship of the

press is. implicit in this ordinance. Prior to any

issuance of a permit by the City Manager, he may

well demand that the purpose and the nature of the

literature sought to be distributed be disclosed to

him. If the distributor refuses, it requires but little

appreciation of practical political administration to

7

realize that his opportunity of obtaining a permit

is nil. If he consents and discloses, there is placed

in the hands of the City Manager the power to re-

fuse a permit in the event the social, economic, religi-

ous or political views expressed therein fail to meet

with his approval. There is thus placed in his control

as effective a means of censorship as any which have

characterized the worst periods of English history.

‘As early as 1644, John Milton, in an ‘Appeal

for the Liberty of Unlicensed Printing’, assailed

an act of Parliament which had just been passed

providing for censorship of the press previous

to publication. He vigorously defended the right

of every man to make publie his honest views

‘without previous censure’; and declared the im-

possibility of finding any man base enough to

accept the office of censor and at the same time

good enough to be allowed to perform its duties.”’

Grosjean v. American Press Co., supra, 245.

Moreover, the ordinance in question sets up Mao

standards under which the City Manager must Asue

a permit. It thus falls within the condemnatioh of

this Court which said in Herndon v. Lowrt , 301 U.S.

242, 264:

‘‘So vague and indeterminate are the bound-

aries thus set to the freedom of speech . . . that

the law necessarily violates the guaranties of

liberty embodied in the Fourteenth Amendment.”’

This Court, in Yick Wo v. Hopkins, 118 U. 8. 356,

quoted with approval at pages 372, et seq., a state-

ment from a Maryland ease, which said:

“It lays down no rules by which its impartial

execution can be secured, or partiality and -op-

pression prevented . . .; and, when we remember

that this action or non-action may proceed from

ad

.

enmity or prejudice, from partisan zeal or ani-

mosity, from favoritism or other improper influ-

ences and motives easy of concealment and diffi-

- eult to be detected and exposed, it becomes un-

necessary to suggest or comment upon. the in-

justice capable of being wrought under cover

of such a power, for that becomes apparent to

everyone who gives to the subject a moment’s

consideration. In fact an ordinance which clothes

a single individual with such power hardly falls

within the domain of law, and we are constrained

to pronounce it inoperative and void.”’

So too, here the ordinance ‘‘commits to the un-

restrained will of a single public official’ the right

to grant a person permission to distribute or to bar

such person completely from an opportunity of ex-

ercising one phase of his right of freedom of the press.

So too, the ordinance ‘‘lays down no rules by which its

impartial execution can be secured or partiality and

oppression prevented’’. So too, ‘‘when we remember

that this action or non-action may proceed from en-

mity or prejudice, from partisan zeal or animosity,

from favoritism or other improper influences and

motives easy of concealment and difficult to be de-

tected and exposed, it becomes unnecessary to suggest

or comment upon the injustice capable of being

wrought under cover of such a power, for that be-

comes apparent to everyone who gives to the subject

a moment’s consideration’. And so too, here the

Griffin ordinance which ‘‘clothes a single individual

with such power hardly falls within the domain of

law”’. : a

In the unreported case of City of Summitt v. Gramp,

Mr. Justice Case of the New Jersey Supreme Court,

setting aside a conviction, said:

‘*By the terms of the ordinance the permit is

9 >

to issue only upon the written approval of the

Chief of Police, who is given absolute discretion

in. granting or withholding his approval without

any determining factors other than his own im-

pulses. The reservation in an ordinance of dis-

cretionary powers to a public officer to give to

_ one and withhold from another the privilege of

violating the ordinance is condemned by our

cases. . . . It is unreasonable that a Chief of

Police, with no rule of determination except his

_ own wishes, should detérmine who is and who is

not to distribute advertisements.”’

Supporting the same principle are:

Lynch v. Town of Northview, 73 W. Va. 609,

81 S. E. 833; | :

Barthet v. City of New Orleans, 24 Fed. 563;

State v. Conlon, 65 Conn. 478, 33 Atl. 519;

Town of State Center v. Barenstein, 66 Towa

249, 23 N. W. 652.

A few State Courts have, on occasion, upheld or-

dinances restricting the distribution of literature in

public places on the grounds that such laws were a

valid exercise of the police power, 7. e., to prevent

public danger to pedestrians and property as a re-

sult of horses being frightened by swirling handbills

and to prevent street littering. Neither of these

grounds has any validity as an attempted justifica-

tion for stifling a free’ press. The automobile has vir-

tually replaced the horse—and literature other than

purely commercial advertising matter does not have

a tendency to litter.

“Tt cannot be presumed, in the absence of evi-

dence, that the recipients of such pamphlets: would

throw them away.”’

Coughlin v. Sullivan, 100 N. J. L. 42, 126

Atl. 177.

10

But even if it be assumed that the distribution of

the literature in the instant case or other literature

of a wider or narrower appeal. did in fact have a

tendency to and did result in street littering, such a

tendency or such a result can not support a law

which attempts to root out a fundamental right.

Peo. v. Johnson, 117 Mise. 133, 191 N. Y. S.

750, 751.

See also:

Ex parte Pierce, 75 S.. W. 264.

‘‘Street littering’? can very readily be made an

- offense, properly punishable, by any. municipality

which seriously considers that the distribution of

literature presents the possibility of such a result.

But beyond that and to the extreme presented herein~ ~~

no municipality, whether honestly motivated or other-

wise, should be permitted to go.

‘‘What direction or restraint is required for

the public good in the mere act of giving away

an advertising card or handbill? This: part of

the ordinance is not aimed at the littering up of

the streets, or the frightening of horses, but the

offense 1s made complete in itself by the mere

act of distributing or giving away of these enum-

erated articles .-. . . This ordinance not only

does not come within the power granted by the

charter, but it is also unreasonable and unwar-

ranted.’’ (Italics ours.)

Peo. v. Armstrong, 73 Mich. 288, 41 N. W.

275, 277.

Mr. Justice Bodine of the New Jersey Supreme

Court in a recent case, Matter of the Application of

Nancy Cox for a Writ of Habeas Corpus, 60 N. J.

a :

L. J. 328, entered an order finding a handbill ordi-

nance of the Borough of Edgewater unconstitutional,

the State and Federal constitutional issues having

been the sole questions raised on the habeas corpus.

The ordinance there required a permit from thegPolice

Department. He stated: j

“6

- . . I think no one would contend that it

(the federal government) could preclude a citizen

from distributing, by mail, historical documents

or a contemporary comment’ upon matters of

public interest. Neither may a borough, in an

_ attempt to keep its streets clean and unlittered,

forbid a citizen from handing to another citizen

a document of historic and social interest.’’

See also:

Coughlin v. Sullivan, 100 N. J. L. 42, 126

Atl. 177.

We cannot ignore the economic and political reali-

ties inherent in this ordinance and others of a similar

_ nature. These ordinances—and query whether they

are not in the main designed for that very purpose—

permit municipal officials to stifle labor organizational

activities and attacks on inept and corrupt adminis-

tration of public affairs while at the same time offer-

ing lip service to constitutional and statutory rights.

In 1924 an ordinance of this general type was used

by the City of J ersey City, New Jersey, in an at-

tempt to suppress a criticism of the municipal ad-

ministration. See Coughlin v. Sullivan, supra. The

_ very same ordinance there involved and repudiated

by Justice Minturn has never been repealed and is

today being used by J ersey City, under the guidance

of Mayor Frank Hague, to prevent organizational

activity of labor unions affiliated with the Committee

12

for Industrial Organization. (See Record before New

Jersey Supreme Court in matter now pending, Joseph

Kish, et al. v. Thomas F. Meaney, et al., On Applica-

tions for Writs of Certiorari.)

When: the right of any individual ‘i eriticize a

municipal administration, or to attempt to secure the

cooperation and collective activity of others in a law-

ful labor movement, can be impeded or thwarted

under the flimsy pretext of an anti-littering ordinance,

we submit that the matter has become one of national

importance. The ‘“‘handbill ordinance phase’’ of the

problem of freedom of speech and press is one with-

out exact federal precedent for this Court has never

expressed itself on the issue of these particular or-

dinances. The problem is a significant one and

grows more important daily.

A striking attack on freedom of the press involving

daily newspapers was suppressed by this Court in

Grosjean v. American Press Co., supra. The Griffin

type of ordinance, although occasionally encompass-

ing newspapers within its scope, is in practical opera-

tion rarely if ever used against them; rather, it is

used frequently to oppress humble people when their

views and policies offend municipal administrations.

They require the protection of this Court of their con-

stitutionally guaranteed rights when they. use ‘‘pos-

sibly the only means available by the distribution of

‘circulars and pamphlets to the publie”’: People v.

Johnson, supra. >

SAMUEL SLAFF,

Counsel for Workers’ Defense League.

GEORGE SLAFF (of the New York Bar),

On the Brief.

SUPREME COURT OF THE UNITED STATES.

No. 391.—Ocrosrr TrrM, 1937.

Alma Lovell, Appellant, Appeal from the Court of

vs. Appeals of the State of

The City of Griffin. Georgia.

[March 28, 1938.]

Mr, Chief Justice Huaues delivered the opinion of the Court.

Appellant, Alma Lovell, was convicted in the Recorder’s Court

of the City of Griffin, Georgia, of the violation of a city ordinance

and was sentenced to imprisonment for fifty days in default of the

payment of a fine of fifty dollars. The Superior Court of the county

refused sanction of a petition for review; the Court of Appeals

affirmed the judgment of the Superior Court (55 Ga. App. 609) ;

and the Supreme Court of the State denied an application for

certiorari. The case comes here on appeal.

The ordinance in question is as follows:

‘Section 1. That the practice of distributing, either by hand

or otherwise, circulars, handbooks, advertising, or literature of any

kind, whether said articles are being delivered free, or whether

same are being sold, within the limits of the City of Griffin, without

first obtaining written permission from the City Manager of the

City of Griffin, such practice shall be deemed a nuisance, and pun-

ishable as an offense against the City of Griffin.

‘*Section 2. The Chief of Police of the City of Griffin and the

police force of the City of Griffin are hereby required and directed

to suppress the same and to abate any nuisance as is described in

‘the first section of this ordinance’.

The violation, which is not denied, consisted of the distribution

without the required permission of a pamphlet. and magazine in

the nature of religious tracts, setting forth the gospel of the

“*Kingdom of Jehovah’’, Appellant did not apply for a permit,

as she regarded herself as sent “‘ by Jehovah to do His work’’ and |

.that such an application would have been ‘‘an act of disobedience

to His ecommandment’’.

2 Lovell vs. The Criy of Griffin.

Upon the trial, with permission of the court, appellant deraurred

to the charge and moved to dismiss it upon @ number of grounds,

among which was the contention that the ordinance violated the

Fourteenth Amendment of the Constitution of the United States in

abridging ‘‘the freedom of the press’’ an? prohibiting ‘‘the free

exercise of petitioner’s religion’. Thi: contention was thus ex-

pressed : ,

“‘Because said ordinance is contrary to and in violation of the

first amendment to the Constitution of the United States, which °

reacis:

“Congress shall make no law respecting an establishment of re-

ligion, or prohibiting the free exercise thereof, or abridging the

freedom of speech or of the press; or the right of the people peace-

ably to assemble aiid to petition the government for a redress of

grievances.’

‘Said ordinance is also contrary to and in violation of the four-

teenth amendment to the Constitution of the United States, which

had the effect of making the said first amendment applicable to the

States, and which reads:

“All persons born or naturalized in the United States, and sub-

ject to the jurisdiction thereof, are citizens of the United States,

and of the State wherein they reside. No State shall make or en-

force any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive any’ per-

son of life, liberty, or property without due process of law; nor

deny to any person within its jurisdiction the equal protection of

the laws’. :

“Said ordinance absolutely prohibits the distribution of any

literature of any kind within the limits of the City of Griffin with-

out the permission of the City Manager and thus abridges the free-

dom of the press, contrary to the provisions of said quoted amend-

ments.

“‘Said ordinance also prohibits the free exercise of petitioner’s

religion and the practice thereof by prohibiting the’ distribution of

literature about petitionér’s religion in violation of the terms of

Said quoted amendments”.

The Court of Appeals, overruling these objections, sustained the

constitutional validity of the ordinance, saying—

“‘The ordinance is not unconstitutional decause it abridges the

freedom of the press or prohibits the distribution of literature

about the petitioner’s religion, in violation of the fourteenth amend-

ment to the constitution of the United States’’.

While in a separate paragraph of its opinion the court said that

the charge that the ordinance was void because it violated a desig-

Lovell vs. The City of Griffin. } 3

nated provision of the state or federal constitution without stat-

ing wherein there was such a Violatiog, was too indefinite to pre-

' Sent 4 constitutional question, we think that this statement must

have referred to other grounds of demurrer and not to the objec-

tion above quoted which was sufficiently specific and was definitely

ruled upon. The contention as to restraint ‘‘upon the free exercise

of religion’’, with respect ‘to the Same ordinance, was presented

in the case of Coleman v. City of Griffin, 55 Ga. App. 123, and the

appeal was dismissed (October 11, 1937) for want of a substantial

federal question. Reynolds v. United States, 98 U. 8. 145, 16€, 167;

Davis v. Beason, 133 U. 8. 333, 342, 343. But, in the Coleman case,

the Court did not deal with the question of freedom of speech and

of the press as it had not been properly presented. ‘We think

that this question was adequately presented and was decided in

the instant case. Whether it was so presented and was decided is

itself a federal question. Carter v. Texas, 177 U..S. 442, 447;

Ward v. Love County, 253 U. 8. 17, 22; First National Bank v.

Anderson, 269 U. S. 341, 346; Schuylkill Trust Co. v. Pennsylvania,

296 U. S: 113, 121. This Court has jurisdiction.

Freedom of speech and freedom of the press, which are pro-

tected by the First Amendment from infringement by Congress,

are among the fundamental personal rights and liberties which are

protected by the Fourteenth Amendment from invasion by state

action. Gitlow v. New York, 268 U. 8. 652, 666; Stromberg

v. California, 283 U. §. 359, 368; Near v. Minnesota, 283 U. S

697, 707; Grosjean v. American Press Company, 297 U. S. 233,

244; De Jonge v. Oregon, 299 U. S. 358, 364. See, also, Palko

V. Connecticut, decided December 6, 1937. It is also well settled

that municipal ordinances adopted under state authority consti-

tute state action and are within the prohibition of the amend-

ment. Raymond v. Chicago Union Traction Co., 207 U. S. 20;

Home Telephone & Telegraph Co. v. Los Angeles, 227 U. 8. 278;

Cuyahoga Power Company v. Akron, 240 U. 8. 462.

The ordinance in its broad sweep prohibits the distribution of

“‘eirculars, handbooks, advertising, or literature of any kind’’.

It manifestly applies to pamphlets, magazines and periodicals.

The evidence against appellant was that she distributed a cer-

tain pamphlet and a magazine called the ‘Golden Age’’, Whether

in actual administration the ordinartce is applied, as apparently it

4

vo

4 on.

Fas

4 Lovell vs. The City of Griffin.

could be, to newspapers does not appear. The City Manager

testified that ‘‘every one applies to me for a license to-distribute

literature in this City. None of these people (including defendant)

secured a permit from me to distribute literature in the City of

Griffin’’. The ordinance is not limited to “‘literature’’ that is ob-

Scene or offensive to public morals or that advocates unlawful

conduct. There is no‘suggestion that the pamphlet and magazine

distributed in the instant case were of that character. The or-

dinance embraces ‘‘literature’’ in the widest sense.

The ordinance is comprehensive with respect to the method of

distribution. It covers every sort of circulation ‘either by hand

or otherwise’’. There is thus no restriction in its application with

respect to time or place. It is ‘not limited to ways which might be

regarded as inconsistent with the maintenance of public order, or

as involving disorderly conduct, the molestation of the inhabitants,

or the misuse or littering of the streets. The ordinance prohibits

the distribution of literature of any kind at any time, at any place, °

and in any manner without a permit from the City Manager.

We think that the ordinance is invalid on its face. Whatever

the motive which induced its adoption, its character is such that

it strikes at the very foundation of the freedom of the press by

subjecting it to license and censorship. The struggle for the free-

dom of the press was primarily directed against the power of the

licensor. It was against that power that John Milton directed

his assault by his ‘‘Appeal for the Liberty of Unlicensed Print:

ing’. And the liberty of the press became initially a right to

publish ‘‘without a license what formerly could be published only

with one.’"! While this freedom from previous restraint upon

publication cannot be regarded as exhausting the guaranty of lib-

erty, the prevention of that restraint was a leading purpose in the

adoption of the constitutional provision. See Patterson v. Colo-

rado, 205 U. S. 454, 462; Near v. Minnesota, 283 U. S. 697, 713-716;

Grogjean v. American Press Company, 297 U. S. 233, 245, 246.

Legislation of the type of the ordinance in question would restore

the system of license and censorship in its baldest form. - .

The liberty of the press is not confined to newspapers and periodi-

cals. It necessarily embraces pamphlets and leaflets. These in-

deed have been historic weapons in the defense of liberty, as the

1 See Wickwar, ‘‘The Struggle for the Freedom of the Preas’’, p. 15.

Lovell vs. The City of Griffin. 5

pamphlets of Thomas Paine and others in our own history abun-

dantly attest. The press in its historic connotation comprehends

every sort of publication which affords a vehicle of information and

opinion.? What we have had regent occasion to say with respect to

the vital importance of protecting this essential liberty from every

Sort of infringement need not be repeated. Near y. Minnesota,

supra; Grosjean v. American Press Company, supra; De Jonge

v. Oregon, supra.

The ordinance cannot be Saved because it relates to distribution

and not to publication. “‘Liberty of circulating is as essential to

that freedom as liberty of publishing; indeed, without the circula-

tion, the publication would be of little value’, Er parte Jackson,

96 U. S. 727, 733. The license tax in Grosjeon y. American Press

Company, supra, was held invalid because of its direct tendency to

restrict circulation.

As the ordinance is void on its face, it was not necessary for

appellant to seek a permit under it. She was entitled to contest

its validity in answer to the charge against-her. Smith v. Cahoon,

283 U. S. 553, 562.

The judgment is reversed and the cause is remanded for further

proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Carpozo took no part in the consideration and deci-

Sion of this case.

A true copy.

Test:

Clerk, Supreme Court, U. &..

2 See also, Starr v, Brush, 185 App. Div, (N. ¥.) 261; Dearborn Publish-

ing Company v. Fitzgerald, 271 Fed. 479; Ex parte Campbell, 29¥ Pac. 952;

Coughlin v, Sullivan, 100 N. J. L. 12. Compare People v. Armstrong, 73

Mich. 288; City of Chicago v. Schultz, 341 Tl. 208 3 People v. Armentrout,