CANTWELL v. CONNECTICUT 310 U.S. 296 (1940)

Newton Cantwell and his sons, Jesse and Russell, were arrested in New Haven, Connecticut. As Jehovah's Witnesses and, by definition, ordained ministers, they were engaged in street solicitation. They distributed pamphlets, made statements critical of the Roman Catholic Church, and offered to play for passers-by a phonograph record including an attack on the Roman Catholic religion. The Cantwells were convicted of violating a Connecticut statute that prohibited persons soliciting money for any cause without a certificate issued by the state secretary of the Public Welfare Council. Jesse Cantwell was also convicted of the common law offense of inciting a breach of the peace.

Justice owen j. roberts delivered the opinion of a unanimous Court: although Connecticut had a legitimate interest in regulating the use of its streets for solicitation, the means the state had chosen infringed upon the religious freedom of solicitors. The secretary appeared to have unlimited discretion to determine the legitimacy of a religious applicant and either issue or withhold the certificate. If issuance had been a "matter of course," the requirement could have been maintained, but so wide an official discretion to restrict activity protected by the free exercise clause was unacceptable. (See prior restraint.)

The conviction of Jesse Cantwell for inciting breach of the peace was also constitutionally defective. Justice Roberts noted that the open-endedness of the common law concept of breach of the peace offered wide discretion to law enforcement officials. When such a criminal provision was applied to persons engaging in first amendment -protected speech or exercise of religion there must be a showing of a clear and present danger of violence or disorder. Although Cantwell's speech was offensive to his listeners, it had not created such a danger.

As a religious freedom precedent, Cantwell is important in two ways: first, it made clear that the free exercise clause of the First Amendment applied to the states through the due process clause of the fourteenth amendment; second, it suggested (in contrast to previous case law, for example, reynolds v. united states, 1879) that the free exercise clause protected not only beliefs but also some actions. The protection of belief was absolute, Roberts wrote, but the protection of action was not; it must give way in appropriate cases to legitimate government regulation. The implication was that at least some government regulations of religion-based conduct would be impermissible.

Richard E. Morgan
(1986)