Facts: Fast-forward to the 1930s, when the colorful if dictatorial Huey “Kingfish” Long was governor of Louisiana. Long’s political machine controlled the legislature, but not some newspapers. In fact, 12 of the 13 largest newspapers in Louisiana—all newspapers having a circulation of more than 20,000 a week—were editorially opposed to Governor Long. The Long-controlled legislature passed a statute to put a special 2 percent license tax on all periodicals having a circulation of more than 20,000 copies per week. The nine newspaper publishers who produced the larger-circulation newspapers targeted by the tax sued, claiming that the special tax violated the First Amendment rights of the newspapers.
Issue: Can a discriminatory tax hitting political foes of a government official withstand First Amendment scrutiny.
Decision: (9-0) A unanimous Supreme Court of the United States
Reasons: (Justice George Sutherland, for the Court, with apparent drafting help from the younger, far more liberal, Justice Benjamin Nathan Cardozo.)
The Court’s opinion quoted from the legendary 19th Century American constitutional scholar, Judge Thomas Cooley. The Court quoted Cooley:13
“The evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.”
Grosjean v. American Press Co. remains the leading case awarding the media constitutional protection from discriminatory taxation. And that is important, for as the Court said in Grosjean, “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.”14
13 Grosjean v. American Press Co., 297 U.S. 233, 249 (1936), quoting 2 Cooley’s Constitutional Limitations (8th ed.) p. 886.
14 Ibid., p. 251.