75 years ago, justices took stand for press freedom

Thursday, February 10, 2011

Seventy-five years ago today, the U.S. Supreme Court unanimously protected freedom of the press when it invalidated a Louisiana tax on larger newspapers in Grosjean v. American Press Co.

In July 1934, the Louisiana Legislature passed a 2% tax on the gross income of newspapers or other periodicals with a circulation of more than 20,000 copies per week. Sen. Huey Long, a former Louisiana governor, had spearheaded support for the tax. The Chicago Tribune ran a story on July 10, 1934, with the headline: “Huey Compels House to Pass Advertising Tax.” The New York Times called the measure the “Long Act” and wrote in December 1935 that “Senator Long jammed [the measure] through the Legislature.” Long had found a way to strike back at negative press coverage.

While the Louisiana Legislature was considering the measure, the Times reported, a circular with the names of Long and the then-Louisiana governor, Oscar Kelly Allen, was laid on the desks of every member of the Legislature. It stated in part: “The lying newspapers are continuing a vicious campaign against giving the people a free right to vote. … It is a system that these big Louisiana newspapers tell a lie every time they make a dollar. This tax should be called a lying tax, 2 cents a line.”

Nine publishers, who printed the 13 largest newspapers in the state, challenged the law in federal court on First Amendment grounds. In March 1935, a federal district court of three judges invalidated the law in American Press Co. v. Grosjean, writing that the Louisiana law violated the equal-protection clause of the 14th Amendment by treating certain publications differently. The court wrote that the law “does not represent a legitimate exertion of the power of classification, is purely arbitrary, and denies the legal protection of the laws to those against whom it discriminates.”

Alice Lee Grosjean, the supervisor of public accounts in Louisiana, appealed to the U.S. Supreme Court. On Feb. 10, 1936, the U.S. Supreme Court agreed with the lower court, but decided the case on First Amendment free-press, not equal-protection, grounds.

Writing for the Court, Justice George Sutherland compared the Louisiana law to licensing taxes condemned in history. He cited the English licensing law that John Milton railed against in Areopagitica in 1644; the Parliament-imposed tax during the reign of Queen Anne in 1712; and the dreaded Stamp Act imposed on the American Colonists in 1765.

Sutherland detailed this history, writing: “For more than a century prior to the adoption of the [First] amendment … history discloses a persistent effort on the part of the British government to prevent or abridge the free expression of any opinion which seemed to criticize or exhibit in an unfavorable light … the agencies and operations of government.”

He said the Louisiana tax was bad not because it took money away from newspaper publishers, but “because in the light of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties. A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves.”

He concluded that the “suspicious” tax was passed “with the plain purpose of penalizing the publishers and curtailing the circulation of a selected group of newspapers.”

The Court’s decision still stands as an important First Amendment precedent against selective, targeted taxation of the press — particularly if imposed with a purpose to silence critical speech.