Case Information
*1 The Attorwy General of Texas JIM MATTOX December 21, 1904
Attorney General supreme court Bulldino Telex 9101874-1397 [12549] ,“otln. TX. 79711. 2548 ‘_ 0. Box elecopier 5121475-02S9 Office Ruilding L.B.J. Comptroller of Public Accounts Honorable Bob Bullc ck State Austin, Texas 707 74 opinion NO. JM-263 RS: Whether imposition of newspapers limited First Amendment to the United tax on the sale violates of the
States Constitution 714 Jackson. Suite 700 hllrs. TX. 752u24508 Dear Mr. Bullock: 141742-8944
Chapter 151 of the Tax Code imposes limited sales, excise, and use taxes on businwses operating within this state engaged in certain ,824 Ahrta Am.. Suite 190 specified activit:tas. Legislation enacted during recently- 3 Paso. TX. 799052793 915633.3494 completed special s:ession repealed section 151.319 of the Tax Code
which exempted the sale or distribution of newspapers from the imposi- tion of the sales tax. Acts 1983, 68th Leg., 2nd C.S., ch. 31, art. _-I Texas. Suite 700 12, 13. at 552. The sale of newspapers, therefore, is now subject Houston. TX. 77002.311 t the tax. 713/223-5888 The First Amendment to the United States Constitution provides in 808 Broadway. Suite 312 pertinent part that “Congress shall make no law . . . abridging ILubbock. TX. 79401-3479 freedom . . . of t’hsr Dress. . . .‘I It is anolicable to the states bv . 108/747-5238 virtue of the Fourzeenth Amendment. Cantwell v. Connecticut, 310 U.S: 296 (1940). You aIrk us the following question: 4309 N. Tenth. Suite B dcAllsn. TX. 78501-1885 Does zhe imposition of the limited sales tax on j121882-4547 the sale of newspapers violate the First Amendment
to the Uwtted States Constitution?
!00 Main Plaza. Suite 400 SW Antonio. TX. 782052797 You assert that the imposition of the tax on the sale of news- 5t212254191 papers ia a direct ‘burden on freedom of the press. Citing Hurdock v.
;‘;nf:;riia , 319 U.S. 105 (1943) and Follett v.. Town of McCormick, U.S. 573 (1444). you suggest in your letter that “[t]he fact 9n Equal OpportunityI that the sales taK is a tax of general application does not change Affirmative Action Employer this basic premls e .” We disagree. Subsequent Supreme Court cases suggest that it does not constitute an impermissible burden on the press. We conclude the above-cited decisions are no longer controlling, and we answer your question in the negative.
Murdock v. Pennsylvania. supra. and Its companion cases. Douglas v. City of Jeannette. 319 U.S. 157 (1943) and Jones v. City of Opelika, 319 U.S. Fr(1943). as well as Follett v. Town of McCormick, S.C., z, each involved the application to religious missionaries *2 Ilonorable Bob Bullock
who sold religious tracts door-to-door of license taxes imposed upon those who sold books. The court concluded in each Instance that the tax constituted an impermisoible burden on the exercise of freedom of court itinerant missionaries. The religion as applied selling the religious tracts characterized the activity of door-to-door as religious wtlvity and concluded that imposition the license tax was a direct burden on the free exercise of religion.
You suggest that, analogously, the repeal of the sales tax exemption for newspapers is likewise an impermissible burden on freedom of the press.
However, these cases /Ire not the court’s last pronouncement on this subject. In Breard v. Alexandria, 341 U.S. 622 (1951). the court upheld, against a claim tha. it was violative, of the First Amendment, Inter alia, a municipal ordinance which prohibited peddlers or canvas- sers from calling upon the occupants of private residences without having first been invited to do so. The court did not construe its decision as having overruled Murdock and its companion cases and Follett; the dissent. hovever, explicitly did so. 341 U.S. 622 at 648. Any doubt as to the ef feet of Breard on Murdock and Follett, however, was dispelled by the recentzof Minneapolis Star and Tribune Comuany v. Minnesofa Cosnnissloners of Revenue, 460 U.S. 575 11983) [hereinafter Minneapolis Star Tribune]. It is to this case that we now turn.
In Minneapolis Star Tribune, the court struck down a Minnesota use tax Imposed on newspaper ink and paper. The court declared f011ow10g:
9. Star Trib,ane insists that the premise of the State’s argusant -- that a generally applic- able ,would be constitutional -- is incorrect, citin:I Follett v. McCormick, 321 U.S.
573, (1944). Mursiock v. Pennsylvania, 319 U.S.
105, (1943), and-Jones v. Opelika, 319 U.S. 103, (1943). We think that Breard V. Alexandria. 341 U.S. 622 (1951). ,Ls more relevant and rebuts Star Tribune’s argument:. There, we upheld an ordinance prohibiting door-to-door solicitation, even though it applied to Prevent the door-to-door sale of subscriptions to magazines, an activity covered by First Amztrdment. Although Martin v. Struthers. 319 U.S. 141 (1943). had struck down a similar ordinance as applied to the distrfbution free religious literature. the Breard Court explained case as emphasizing that information distrjbuted was religious in nature and that the distribution was noncomercial.
U.S., As the dissent in Breard at 642-643.
recognized, the majority opinion substantially undercut both Martin and the cases now relied upon mm-.
liooorable Boh Bullock (313-263) in which the Court had invali-
by Star Tribune, dated ordinances imposing a flat license tax on See 341 U.S. the sale of reliSioua literature. (Black, J., dissenting) mince this
at, 649-650 IN? reconciled with the Jolles. decision cannot Murdock and Martin v. Struthers cases, it seems to -- me that good ludll:ial practice calls for their forthright ove&uL:L”g.‘j Whatever the value of those cases as aut:horlty after Breard. we think them distinguishal~le from a generally applicable In each of those cases, the local sales tax.
government imposed a flat tax, unrelated to the the speaker or to receipts or income expenses of administering a valid regulatory scheme, as a condizion of the right to speak. By imposing the tax ss a ccnditio” of engaging in protected activtt:/, the defendants In those cases imposed a form of prior restraint on speech, rendering highly susceptible to ch.sllenge. Follett, ~upra. at c0*stituti0”a1 576-578; Murdock, j)upra, at 112. 113-114; Jones v.
Opelika, 316 U.S. 584, 609, 611 (1942) (Stone, C.J., dissenting). reasoning approved on rehearing in 319 U.S. 103 (1943); see Crosjean v. America” Press Co., Inc.. :!97 U.Srat 249; see generally Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). In that ;:egard, the cases cited by Star Tribune do not resemble a generally applicable tax. Indeed, our cases have consistently recognized that uondiscriminatory taxes on the receints or income of newsoaners would be permissible, Branzburg v. Rayes. 408 U.S. 665, 683 -- (dictum); Grosjewl V. American Press Co.. Inc., at 250 &ctum); cf. Follett, supra, supra. at (preacher subiect to taxes on income or prope;y) (dictual);- Murdock, s. at 112 (same) (dictum). @mphesis’added).
Minneapolis Star Tribune, l’r,. 9.
The First Amendment <.oes not prohibit all regulation press; there is no question that the states or the federal government can subject newspapers to generally applicable economic regulations without violating the Constitution. As the court in Grosjesn v. American Press Co., Inc., !EE, declared:
It is not intended by anything we have said suggest that the ovnera of newspapers are immune from any of the ordinary forms of taxation for support of the prernment.
lionorsble Bob Bullock
297 U.S., at 250. See. e.g., Cit~iaen>blishing Co. v. United States, laws); Lorain Journal Co. v. United 394 U.S.~ 131 (1969r. (antitrust laws); Breard v. Alexandria, States, 342 U.S. 143 (1951) (antitrust of door-to-door solicitation) ; 5 )klahoma Press supra (prohibition ir Labor Standards Publishing Co. v. Walling. 227 U.S. 186 (1946) (Pa:. __~~~ ~~~ ~~ Act); Habee v. White Plains Publishing Co., 327 U.S. 178 (1946) (Fair Labor StanwAct);Assod.rlted Press v. United States, 326 U.S. 1 --- (1945) (antitrust laws); Associated Press v. NLRB. 301 U.S. 103 (1937) (National Labor Relationsxc); see also Branzburg v. Hayes, 408 U.S.
665 (1972) (enforcement of :rubpoenas) In Minneapolis Star Tribune, down the tax. not because it had the effect of the court struck imposing a burden on the press, -but because the press was singled out for special treatment:
Minnesota, however,, has not chosen to apply Its general sales and use tax to newspapers. Instead, it has created a cpeclal tax that applies only to protected by the First certain publicatic’ns Amendment. Although the [sItate argues now that the tax on paper and ink is part of the general scheme of taxation, the use tax provision . . . is facially discriminatory, singling out publications for treatment that is. to our knowledge, unique in Minnesota tax law.
460 U.S., at 581. The court then set forth the following test:
By creating thi.s special use tax, which, to our knowledge. is without parallel in the State’s scheme. Minnesota has singled out the press for special treatment, We then must determine whether the First Amendment: permits such special taxation.
A tax that burdens rights protected by the First the burden is Amendment cannot stand unless necessary to ach,leve an overriding governmental interest. See, ck:gr, United States v. Lee, 455 U.S. 252 (1982). Any tax that the press must pay, of course, imposes some ‘burden.’ But, as we have observed, see 255, at 581. this Court has long upheld economic regulation the press. The cases approving such economic regulation, however.
emnhasired the kenera aDDliCabilitV -. . . challenged regulation to all businesses, a.
Oklahoma Press Pc.blishing Co. v. Walling. supra, at 194; Mabee VI White Plains Publishing co., supra. at 184; Associated Press v. NLRB, supra, at 132-133 sunnest%a that a regulation that singled the pr.&s q :&:ht place a heavier burden of out justification on !:he State, and we now conclude that the special problems created by differential treatment do indee’d impose such a burden.
Honorable Bob Bullock - Page
The Texas scheme of taxation. as opposed to the Minnesota scheme, does not single out the prew for special treatment. On the contrary, the repeal of the sales tat exemption merely subjects newspapers the generally applicable lialited sales , excise, and use tax imposed on to the repeal, newspapers were singled out other businesses. Prior is no longer the case. Accord- for special favorable treatwnt; ingly, we conclude that the! imposition of the limited sales, excise, and use tax on the sale of newspapers does not violate the First Amendment.
SUMMARY The imposition of the limited excise and use tax on the sale of newspapers does not violate First Amendment.
Very I truly your LJ-/!y 74 AA JIM Attorney General of Texas TOM GREEN
First Assistant Attorney General
DAVID R. RICBARDS
Executive Assistant Attorrwy General
RICK GILPIN
Chairman, Opinion Committee!
Prepared by Jim Moellinger
Assistant Attorney General
APPROVED:
OPINION COlMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Gulllory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood