Untitled Texas Attorney General Opinion

The Attorwy General of Texas
JIM MATTOX December 21, 1904
Attorney General
supremecourt Bulldino Honorable Bob Bullc ck opinion NO. JM-263
‘_0. Box12549 Comptroller of Public Accounts
,“otln. TX. 79711. 2548 L.B.J. State Office Ruilding RS: Whether imposition of the
51214752501 Austin, Texas 707 74 limited sales tax on the sale
Telex 9101874-1397
of newspapers violates the
elecopier 5121475-02S9
First Amendment to the United
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
,824 Ahrta Am.. Suite 190 use taxes on businwses operating within this state engaged in certain
3 Paso. TX. 799052793 specified activit:tas. Legislation enacted during the recently-
915633.3494 completed special s:ession repealed section 151.319 of the Tax Code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-
_-I Texas. Suite 700
tion of the sales tax. Acts 1983, 68th Leg., 2nd C.S., ch. 31, art.
Houston. TX. 77002.311 t 12, 13. at 552. The sale of newspapers, therefore, is now subject to
713/223-5888 the tax.
The First Amendment to the United States Constitution provides in
808 Broadway. Suite 312
ILubbock. TX. 79401-3479
pertinent part that “Congress shall make no law . . . abridging the
108/747-5238 freedom . . . of t’hsr Dress.
. . . .‘I It is anolicable to the states bv
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
j121882-4547 Does zhe imposition of the limited sales tax on
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,
9n Equal OpportunityI U.S. 573 (1444). you suggest in your letter that “[t]he fact
Affirmative Action Employer that the sales taK is a tax of general application does not change
this basic premls e .” We disagree. Subsequent Supreme Court cases
suggest that it does not constitute an impermissible burden on the
press. We conclude that 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
p. 1171
Ilonorable Bob Bullock - Page 2 (JM-263)
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
religion as applied to itinerant missionaries. The court
characterized the activity of selling the religious tracts
door-to-door as religious wtlvity and concluded that imposition of
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 the
f011ow10g:
9. Star Trib,ane insists that the premise of
the State’s argusant -- that a generally applic-
able sales tax ,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
the First Amztrdment. Although Martin v.
Struthers. 319 U.S. 141 (1943). had struck down a
similar ordinance as applied to the distrfbution
of free religious literature. the Breard Court
explained that case as emphasizing that the
information distrjbuted was religious in nature
and that the distribution was noncomercial. 341
U.S., at 642-643. As the dissent in Breard
recognized, the majority opinion substantially
undercut both mm-. Martin and the cases now relied upon
p. 1172
liooorable Boh Bullock - Page 3 (313-263)
by Star Tribune, in which the Court had invali-
dated ordinances imposing a flat license tax on
the sale of reliSioua literature. See 341 U.S.
at, 649-650 (Black, J., dissenting) mince this
decision cannot IN? reconciled with the Jolles.
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
sales tax. In each of those cases, the local
government imposed a flat tax, unrelated to the
receipts or income of the speaker or to the
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 the tax highly susceptible to
c0*stituti0”a1 ch.sllenge. Follett, ~upra. at
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
sales 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.,
supra, at 250 &ctum); cf. Follett, supra. at
578 (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 of the
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 to
suggest that the ovnera of newspapers are immune
from any of the ordinary forms of taxation for
support of the prernment.
p. 1173
lionorsble Bob Bullock - Page 4 (JM-263)
297 U.S., at 250. See. e.g., Cit~iaen>blishing Co. v. United States,
394 U.S.~ 131 (1969r. (antitrust laws); Lorain Journal Co. v. United
States, 342 U.S. 143 (1951) (antitrust laws); Breard v. Alexandria,
supra (prohibition of door-to-door solicitation) ; 5)klahoma Press
Publishing Co. v. Walling. 227 U.S. 186 (1946) (Pa:.ir Labor __``~ Standards
``~ ``
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,
the court struck down the tax. not because it had the effect of
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
certain publicatic’ns protected by the First
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 tax
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
Amendment cannot stand unless the burden is
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 of the press. The
cases approving such economic regulation, however.
emnhasired the kenera
-. aDDliCabilitV
. . of the
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
out the pr.&s q:&:ht place a heavier burden of
justification on !:he State, and we now conclude
that the special problems created by differential
treatment do indee’d impose such a burden.
p. 1174
Honorable Bob Bullock - Page 5 (JM-263)
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 to
the generally applicable lialited sales , excise, and use tax imposed on
other businesses. Prior to the repeal, newspapers were singled out
for special favorable treatwnt; that is no longer the case. Accord-
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 the
First Amendment.
Very I truly your
74 AA
LJ-/!y
JIM
Attorney General of Texas
TOMGREEN
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
p. 1175