A. CANTWELL v CONNECTICUT Appellant: Cantwell Respondent: State of Connecticut Ponente: Roberts, J.

May 20, 1940 TOPIC Church and State Free Exercise Clause DOCTRINE Under the constitutional guaranty, freedom of conscience and of religious belief is absolute; although freedom to act in the exercise of religion is subject to regulation for the protection of society. Such regulation, HOWEVER, in attaining a permissible end, must not unduly infringe the protected freedom. SHORT VERSION Cantwell and his two sons were found guilty of violating the common law offense of inciting a breach of peace. They went door-to-door with books and pamphlets in a predominately Roman Catholic street. They played a record entitled "Enemies" which attacked Catholicism. They claimed that the statute, upon which their conviction was based, violated their right to free speech by requiring a permit to solicit donations from people outside of their organization. The Court ruled that the statute requiring a license to solicit for religious purposes was a prior restraint that vested the state with excessive power in determining which groups must obtain a license. Also, the Cantwells did not pose a threat to public order by spreading their message. FACTS Jesse Cantwell and his son were claiming to be ordained as ministers of the Jehovah's Witnesses; they were proselytizing a predominantly Catholic neighborhood in Connecticut1. The Cantwells distributed religious materials (books, pamphlets, records, etc.) by travelling door-to-door and by approaching people on the street. Each of one of them first asks the person for permission to play one of the records. If permission is granted, they ask the person to buy the book, and upon refusal, he solicits contribution towards the publication of the pamphlets as the listener was willing to make. If a contribution was received, a pamphlet was delivered upon the condition that it will be read.

After voluntarily hearing an anti-Roman Catholic message on the Cantwells' portable phonograph, two pedestrians reacted angrily. Both are Roman Catholics and were incensed when Jesse Cantwell played the Enemies. Both were tempted to hit Jesse unless he backs off. No further evidences show that Jesse personally offensive or entered into any argument with those he interviewed. The Cantwells were subsequently arrested for violating a local ordinance requiring a permit for solicitation and for inciting a breach of the peace. The statute under which they are charged provides: No person shall solicit money, services, subscriptions or any valuable thing for any alleged religious, charitable or philanthropic cause, from other than a member of the organization for whose benefit such person is soliciting or within the country in which such person or organization is located unless such cause shall have been approved by the secretary of the public welfare council. Upon application of any person in behalf of such cause, the secretary shall determine whether such cause is a religious one or is a bona fide object of charity or philanthropy and conforms to reasonable standards of efficiency and integrity, and, if he shall so find, shall approve the same and issue to the authority in charge certificate to that effect. Such certificate may be revoked at any time. Any person violating any provision of this section shall be fined not more than one hundred dollars or imprisoned not more than thirty day or both. NOTE: Prior to this case, Father Cantwell (Newton Cantwell) and one of his sons (Russel Cantwell) were already acquitted. ISSUE/HELD WON the solicitation statute or the "breach of the peace" ordinance violate the Cantwells' First Amendment free speech or free exercise rights - YES RATIO In a unanimous decision, the Court held that while general regulations on solicitation were legitimate, restrictions based on religious grounds were not. Because the statute allowed local officials to determine which causes were religious and which ones were not, it violated the First and Fourteenth Amendments. The statute gives the secretary of public welfare the power to determine which groups are religious and therefore, who must obtain a permit before soliciting contributions. "Such a censorship of religion as the means of determining its right to survive is a denial of liberty protected by the First Amendment and included

Cassuis Street is a densely populated area, about 90 percent of which are Roman Catholic

in the liberty which is within the protection of the Fourteenth." Even if an error by the secretary can be judicially corrected by the courts, the process still serves as an unconstitutional prior restraint. "[T]o condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution." The Court also held that while the maintenance of public order was a valid state interest, it could not be used to justify the suppression of "free communication of views." The Cantwells' message, while offensive to many, did not entail any threat of "bodily harm" and was protected religious speech. The Cantwells should not be convicted of posing a threat to public order because they were merely sharing their ideas. When several Catholics became upset at the message one of the sons immediately left the scene in order to avoid a physical confrontation. DECISION Appealed Decision reversed O +nline