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.
Majority Opinion: (Justice Roberts)|
The statute denies these individuals their due process rights. The state is not permitted
to place this prior restraint on those who seek to solicit contributions. The activity
is not restricted because of its potential for harm, as is evidenced by the fact that
the act could be performed after obtaining a permit. 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 in the liberty which is within the protection of the Fourteenth."
Even if an error by the secretary can be 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 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
This decision made it impermissible for states to place special requirements on people
engaged in spreading a religious message. Also, sharing one's message in an unfriendly
environment does not necessarily pose a threat to public order.
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