author: Mr. Justice Brennan Mr. Justice Douglas, Mr. Justice Stewart, Mr. Justice Harlan,

text:
    SHERBERT v. VERNER et al., MEMBERS OF SOUTH CAROLINA EMPLOYMENT SECURITY COMMISSION, et al.
    No. 526.
    Argued April 24, 1963.
    Decided June 17, 1963.

      William D. Donnelly argued the cause and filed briefs for appellant.

      Daniel R. McLeod, Attorney General of South Carolina, argued the cause for appellees'. With him on the brief was Victor S. Evans, Assistant Attorney General.
    Briefs of amici curiae, urging reversal, were filed by Morris B. Abram, Edwin J. Lukas, Arnold Forster, Melvin' L. Wulf, Paul Hartman, Theodore Leskes and Sol Rabkin for the American Jewish Committee et al., and by Leo Pfeffer, Lewis H. Weinstein, Albert'Wald, Shad Polier, Ephraim S. London, Samuel Láwrence Brennglass and Jacob Sheinkman for the Synagogue Council of America et al.
   Mr. Justice Brennan

delivered the opinion of the Court.

Appellant, a member of the Seventh-day Adventist Church, was discharged by her South Carolina employer because she would not work on- Saturday, the Sabbath Day of her faith. When she was unable to obtain' other employment because from conscientious scruples' she would not take Saturday work, she filed a claim for unemployment compensation benefits under the South Carolina Unemployment -Compensation Act. That law provides that, to be eligible for benefits, a claimant must be “able to work and . . . available for work’.'; and, further, that a claimant is ineligible for benefits “ [i] f . . .-he has failed, without good causé . . . to accept available suitable work when offered him by the employment office or the employer . . . The appellee Employment Secu-. rity Commission, in administrative proceedings under the statute, found that appellant’s restriction upon her availability for Saturday work brought 'her within the provision disqualifying for benefits insured workers who fail, without good cause, to accept “suitable work when offered ... by the employment office or thé employer .'...” The Commission’s finding was sustained by the Court of Common Pleas for Spartanburg County.. That court’s judgment was* in turn affirmed by the South Carolina Supreme Court, which rejected appellant’s contention that, as applied to her, the disqualifying provisions of the South Carolina statute abridged her right to the free exercise of her religion secured under the Free Exercise Clause of the First Amendment through the Fourteenth Amendment. The State Supreme Court held specifically that appellant’s ineligibility infringed no constitutional -liberties because such, a construction of the statute “places no restriction upon the appellant’s freedom .of religion nor does it in any way prevent her in the exercise of her right and freedom to observe her religious beliefs in accordance with the dictates of her conscience.” 240 S. C. 286, 303-304, 125 S. E. 2d 737, 746 We noted probable jurisdiction of appellant’s appeal. 371 TJ. S. 938. We reverse the judgmént of the South Carolina Supreme Court and remand for further proceedings not inconsistent with this opinion.

I.

The door of the Free Exercise Clause stands tightly-closed against any governmental regulation of religious beliefs as such, Cantwell v. Connecticut, 310 U. S. 296, 303. Government may neither compel affirmation of a repugnant belief, Torcaso v. Watkins, 367 U. S. 488; nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, Fowler v. Rhode Island, 345 U. S. 67; nor employ the taxing power to inhibit the dissemination of particular religious views, Murdock v. Pennsylvania, 319 U. S. 105; Follett v. McCormick, 321 U. S. 573; cf. Grosjean v. American Press Co., 297 U. S. 233. On the other hand, the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for “even when the action is in accord with one’s religious convictions, [it] is not totally free from legislative restrictions.” Braunfeld v. Brown, 366 U. S. 599, 603. The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. See, e. g., Reynolds v. United States, 98 U. S. 145; Jacobson v. Massachusetts, 197 U. S. 11; Prince v. Massachusetts, 321 U. S. 158; Cleveland v. United States, 329 U. S. 14.

Plainly enough, appellant’s conscientious objection to Saturday work constitutes no conduct prompted by religious principles of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina Supreme Court is to withstand appellant’s constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant’s religion may be justified by a “compelling state interest in the regulation of a subject within the State’s constitutional power to regulate . . . .” NAACP v. Button, 371 U. S. 415, 438.

II.

We turn first to the question whether the disqualification for benefits imposes any burden on the free exercise of appellant’s religion. We think it is clear that it does. In a sense the consequences of such a disqualification to religious principles and practices may be only an indirect result of welfare legislation within the State’s general competence to enact; it is true that no criminal sanctions directly compel appellant to work a six-day week. But this is only the beginning, not the end, of our inquiry. For “[i]f the purpose &r effect of a law is to impede the* observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect.” Braunfeld v. Brown, supra, at 607. Here not only is it apparent that appellant’s declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.

Nor may the South Carolina court’s construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant’s “right” but merely a “privilege.” It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege. American Communications Assn. v. Douds, 339 U. S. 382, 390; Wieman v. Updegraff, 344 U. S. 183, 191-192; Hannegan v. Esquire, Inc., 327 U. S. 146,155-156. For example, in Flemming v. Nestor, 363 U. S. 603, 611, the Court recognized with respect to Federal Social Security benefits that “[t]he interest of a covered employee under the Act is of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause.” In Speiser v. Randall, 357 U. S. 513, we emphasized that conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, as to inhibit or deter the exercise of First Amendment freedoms. We there struck down a condition which limited the availability of a tax exemption to those members of the exempted class who affirmed their loyalty to the state government granting the exemption. While the State was surely under no obligation to afford such an exemption, we held that the imposition of such a condition upon even a gratuitous benefit inevitably deterred or discouraged the exercise of First Amendment rights of expression and thereby threatened to “produce a result which .the State could not command directly.” 357 U. S., at 526. “To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech.” Id., at 518. Likewise, to condition the availability of benefits upon this appellant’s willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties.

Significantly South Carolina expressly saves the Sunday worshipper from having to make the kind of choice which we here hold infringes the Sabbatarian’s religious liberty. When in times of “national emergency” the textile plants are authorized by the State Commissioner of Labor to operate on Sunday, “no employee shall be required to work on Sunday,. . . who is conscientiously opposed to Sunday work; and if any employee should refuse to work on Sunday on account of conscientious . . objections he or she shall not jeopardize his or her seniority by such refusal or be discriminated against in any other manner.” S. C. Code, § 64-4. No question of.the disqualification of a Sunday worshipper for benefits is likely to arise, since we cannot suppose that an employer will discharge him in violation of this statute. The unconstitutionality of the disqualification of the Sabbatarian is thus 'Compounded by the religious discrimination which South Carolina’s general statutory scheme necessarily effects.

III.

We must next consider whether some compelling state interest enforced in the eligibility provisions of the South Carolina statute justifies the substantial infringement of appellant’s First- Amendment right. It is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, “[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation,” Thomas v. Collins, 323 U. S. 516, 530. No such abuse or danger has been advanced in the present caso. The appellees suggest no more than a possibility that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work might not only dilute the unemployment compensation fund but also hinder the scheduling by employers of necessary Saturday work. But that possibility is not apposite here because no such objection appears to have been made before the South Carolina Supreme Court, and we are unwilling to assess the importance of an asserted state interest without the views of' the state court. Nor,' if the contention had been made below, would the record appear to sustain it; there is no proof whatever to warrant such fears of malingering or deceit as those which the respondents now advance. Even if consideration of such. evidence is not foreclosed by the prohibition against judicial inquiry into the truth or falsity of religious beliefs, United States v. Ballard, 322 U. S. 78 — a question- as to which we intimate no view since it is not before us — it is highly doubtful whether such evidence would be sufficient to warrant a substantial infringement of religious liberties. For-even if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, it would plainly be incumbent upon the appellees to demonstrate that no alternative form's of regulation would combat such abuses without infringing First Amendment rights. Cf. Shelton v. Tucker, 364 U. S. 479, 487-490; Talley v. California, 362 U. S. 60, 64; Schneider v. State, 308 U. S. 147, 161; Martin v. Struthers, 319 U. S. 141, 144-149.

In these respects, then, the state interest asserted in the present case is wholly dissimilar to the interests which were found to justify the less direct burden upon religious practices in Braunfeld v. Brown, supra. The Court recognized that the Sunday closing law which that decision sustained undoubtedly served “to make the practice of [the Orthodox Jewish merchants’] . . . religious beliefs more expensive,” 366 U. S., at 605. But the statute was nevertheless saved by a countervailing factor which finds no equivalent in the instant case — a strong state interest in providing one uniform day of pest for all workers. That secular objective could be achieved, the Court found, only by declaring Sunday to be that day of rest. Requiring exemptions for Sabbatarians, while theoretically possible, appeared to present an administrative problem of such magnitude, or to afford the exempted class so great a competitive advantage, that such a requirement would have rendered the- entire statutory-scheme unworkable. In the present case no such justifications underlie the determination of the state court that appellant’s religion makes her ineligible to receive benefits.

IV.

In holding as we do, plainly we are not fostering the “establishment” of the Seventh-day Adventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall. See School District of Abington Township v. Schempp, ante, p. 203. Nor does the recognition of the appellant’s right to unemployment benefits under the state statute serve to abridge any other person’s religious liberties. 'Nor do we, by our decision today, declare the existence of a constitutional right to unemployment benefits on the part of all persons whose religious convictions are the cause of their unemployment. This is not a case in which an employee’s religious convictions serve to make him a nonproductive member of society. See note 2, supra. Finally, nothing we say today constrains the States to adopt any particular form or scheme of unemployment compensation. Our holding today is only that South Carolina may not constitutionally apply the eligibility provisions so as to constrain a. worker to abandon his religious convictions respecting the day of rest. This holding but reaffirms a principle that we announced a decade and a half ago, namely that no State may “exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation:” Everson v. Board of Education, 330 U. S. 1, 16.

In view of the result we have reached under the First and Fourteenth Amendments’ guarantee of free exercise of religion, we have no occasion to- consider appellant’s claim that the denial of benefits also deprived her of the equal protection of the laws in violation of the Fourteenth Amendment.

The judgment of the South Carolina Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Douglas,

concurring.

The case we have for decision seems to me to be of small dimensions, though profoundly important. The question is whether the South Carolina law which dénies unemployment compensation to a Seventh-day Adventist, who, because of her religion, has declined to work on her Sabbath, is a law “prohibiting the free exercise” of religion as those words are used in the First Amendment. It seems obvious to me that this-law does run afoul of that clause.

Religious scruples of Moslems require them to attend a mosque on Friday and to pray five times daily. Religious scruples of a Sikh require -him to carry a regular or a symbolic sword. Rex v. Singh, 39 A. I. R. 53 (Allahabad, 1952). Religious scruples of a Jehovah’s Witness teach him to be a colporteur, going from door to door, from town to town, distributing his religious pamphlets. See Murdock v. Pennsylvania, 319 U. S. 105. Religious scruples of a Quaker compel him to refrain from swearing and to affirm instead. See King v. Fearson, Fed. Cas. No. 7,790, 14 Fed. Cas. 520; 1 U. S. C. § 1; Federal Rules of Civil Procedure, Rule 43 (d); United States v. Schwimmer, 279 U. S. 644, 655 (dissenting opinion). Religious scruples of a Buddhist may require him to refrain from partaking of any flesh, even of fish.

The examples could be multiplied, including those of the Seventh-day Adventist whose Sabbath is Saturday and who is advised not to eat some meats. .

These suffice,, however, to show that .many-people hold beliefs alien to the majority of our society — beliefs that are. protected by the First Amendment but which could easily be trod upon under the guise of “police” or “health” regulations reflecting the majority’s views'

Some have thought that a majority of a community can, through state action, compel a minority to observe their particular religious scruples so long as the majority’s rule can be said to perform some valid secular function. That was the essence of the Court’s decision in the Sunday Blue Law Cases (Gallagher v. Crown Kosher Market, 366 U. S. 617; Braunfeld v. Brown, 366 U. S. 599; McGowan v. Maryland, 366 U. S. 420), a ruling from which I- then dissented (McGowan v. Maryland, supra, pp. 575-576) and still dissent. See Arlan’s Dept. Store v. Kentucky, 371 U. S. 218.

That ruling of the Court travels part of the distance that South Carolina asks us to go now. She asks us to hold that when it comes to a day of rest a Sabbatarian must conform with the scruples of the 'majority in order to obtain unemployment benefits.

The result turns not on the degree of injury, which may indeed be nonexistent by ordinary standards. The harm is the interference with the individual’s scruples or conscience — an important area of privacy which the First Amendment fences off from government. The interference here is as' plain as it is in Soviet Russia, where a churchgoer is given a second-class citizenship, resulting in harm though perhaps not in measurable damages.

This case is resolvable not in terms of what an individual can demand of government, but solely in terms of what government may not .-do. to an individual in violar tion of his religious scruples. The fact that government cannot exact from me a surrender of one iota of my religious scruples does not, of course, mean, that L can demand of government a sum of money, the better to exercise them. For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the' government.

Those considerations, however, are not relevant here. If appellant is otherwise qualified for unemployment benefits, payments will be made to her not as a Seventh-day Adventist, but as an unemployed worker. Conceivably these payments will indirectly benefit her church, but no more so than does the salary of any public employee. Thus, this case does not involve the problems of direct or indirect state assistance to a religious organization — matters relevant to the Establishment Clause, not in issue here.

Mr. Justice Stewart,

concurring in the result.

Although fully agreeing with the result which the Court reaches in this case, I cannot join the Court’s opinion. This case presents a double-barreled dilemma, which in all candor I think the Court’s opinion has not succeeded in papering over. The dilemma ought to be resolved.

I.

Twenty-three years ago in Cantwell v. Connecticut, 310 U. S. 296, 303, the Court said that both, the Establishment Clause and the Free Exercise Clause of the First Amendment were made wholly applicable to the States by the Fourteenth Amendment. In the intervening years several cases involving claims of state abridgment of. individual religious freedom have been decided here— most recently Braunfeld v. Brown, 366 U. S. 599, and Torcaso v. Watkins, 367 U. S. 488. During the same period “cases dealing with the specific problems arising under the ‘Establishment’ Clause which have reached this Court are few in number.” The most recent are last Term’s Engel v. Vitale, 370 U. S. 421, and this Term’s Schempp and Murray cases, ante, p. 203.

I am convinced, that no liberty is more essential to the continued vitality of the free society which our Constitution guarantees than is the religious liberty protected by the Free Exercise Clause explicit in the First Amendment and imbedded in the Fourteenth. And. I regret that on occasion, and specifically in Braunfeld v. Brown, supra, the Court has shown what has seemed to me a distressing insensitivity to the appropriate demands of this constitutional guarantee. By contrast I think that the Court’s approach to the Establishment Clause has on occasion, and specifically in Engel, Schempp and Murray, been not only insensitive, but positively wooden, and that the Court has accorded to the Establishment Clause a meaning which neither the words, the history, nor the intention of the authors of that specific constitutional provision even remotely suggests.

But my views as to the correctness of the Court’s decisions in these cases are beside the point here. The point is that the decisions are on the books. And the result is that there are many situations where legitimate claims under the Free Exercise Clause will run into head-on collision .with the' Court’s insensitive and sterile construction of the Establishment Clause. The controversy now before us is clearly such a case.

Because the appellant refuses to accept available jobs which would require her to work on Saturdays, South Carolina has declined to pay unemployment compensation benefits to her. Her refusal to work on Saturdays is based on the tenets of her religious faith. [The Court says that South Carolina cannot under these circumstances declare her to be not “available for work” within the meaning of its statute because to do so would violate her constitutional right to the free exercise of her religion.

Yet what this Court has said about the Establishment Clause must inevitably lead to a diametrically opposite result. If the appellant’s refusal to work on Saturdays were based on indolence, or on a compulsive desire to watch the Saturday television programs; no one would say that South Carolina could not hold that she was not “available for work” within the meaning of its statute. That being so, the Establishment Clause as construed by this Court not only permits but affirmatively requires South Carolina equally to deny the appellant’s claim for unemployment compensation when her refusal to work on Saturdays is based upon her religious creed. For, as said in Everson v. Board of Education, 330 U. S. 1, 11, the Establishment Clause bespeaks “a government . . . stripped of all power ... to support, or otherwise to assist any or all religions . . . ,” and no State “can. pass laws which aid one religion . . . .” Id., at 15. In Mr. justice Rutledge’s words, adopted by the Court today in Schempp, ante, p. 217, the Establishment Clause forbids “every form of public aid or support for religion.” 330 U. S., at 32. In the words of the Court in Engel v. Vitale, 370 U. S., at 431, reaffirmed today in the Schempp case, ante, p. 221, the Establishment Clause forbids the “financial support of government” to be “placed behind a particular religious belief.”

To require South Carolina to so administer its laws as to pay public money to the appellant under the circumstances of this- case is thus clearly to require the State to violate the Establishment Clause as construed by this Court. This poses no problem for me, because I think the Court’s mechanistic concept of the Establishment Clause is historically unsound and constitutionally wrong. I think the process of constitutional decision in the area of the relationships between government and religion demands considerably more than the invocation of broad-brushed rhetoric of the kind I have quoted. And I think that the guarantee of religious liberty embodied in the Free Exercise Clause affirmatively requires government to create an atmosphere of hospitality and aceommodation to individual belief or disbelief. In short, I think pur Constitution commands the positive protection by government of religious freedom — not only for a minority, however small — not. only for the majority, however large — but for each of us.

South Carolina would deny unemployment benefits to a mother unavailable for work on Saturdays because she was unable to get a babysitter. Thus, we do not have before us a situation where a State provides unemployment compensation generally, and singles out for disqualification only those persons who are unavailable for work on religious grounds. This is not, in short, a scheme which operates so as to discriminate against religion as such. But the Court nevertheless holds that the State must prefer a religious over a secular ground for. being unavailable for work — that state financial support, of the appellant’s religion is constitutionally required to carry out “the governmental obligation of neutrality in the face of religious differences. . . .”

Yet in cases decided under the Establishment Clause the Court has decreed otherwise. It has decreed that government must blind itself to the differing religious beliefs and traditions of the people. With all respect, I think it is the Court’s duty to'face up to the dilemma posed by the conflict between the Free Exercise Clause of the Constitution and the Establishment Clause as interpreted by the Court. It is a duty, I submit, which we owe to the people, the States, and the Nation, and a duty which we owe to ourselves. For so long as the resounding but fallacious fundamentalist rhetoric of some of our Establishment Clause opinions remains on our books, to be disregarded at will as in the present case, or to be undiscriminatingly invoked as in the Schempp case; ante, p. 203, so long will the possibility of consistent and perceptive decision in this most difficult and delicate area of constitutional law be impeded. and impaired. And so long, I fear, will the guarantee of true religious freedom in our pluralistic society be uncertain and insecure.

II.

My second difference with the Court’s opinion is that I cannot agree that today’s decision can stand consistently with Braunfeld v. Brown, supra. The Court .says that there was a “less direct burden upon religious practices” in that : case than in this. With all respect, I think the Court is mistaken, simply as a matter of fact. .The Braunfeld case involved a state criminal statute. The undisputed effect of that statute, as pointed out by Mr. Justice Brennan in his dissenting opinion in that case, was that “ ‘Plaintiff, Abraham Braunfeld, will be unable to continue in his business if he may not stay open on Sunday and he will thereby lose his capital investment.’ In other words, the issue in this case — and we do not understand either appellees or the Court to contend otherwise — is whether a State may put an individual to a choice between his business and his religion.” 366 U. S., at 611.

The impact upon the appellant’s religious freedom in the present case is considerably less onerous. We deal here not with a criminal statute, but with the particularized administration of South Carolina’s Unemployment Compensation Act. Even upon the unlikely assumption that the appellant could not find suitable non-Saturday employment, the appellant at the worst would be denied a maximum of 22 weeks of compensation payments. I agree with the Court that the possibility of that denial is enough to infringe upon the appellant’s constitutional right to the free exercise of her religion. But it. is clear to me that in order to reach this conclusion the Court must explicitly reject the reasoning of Braunfeld v. Brown. I think the Braunfeld case was wrongly decided and should be overruled, and accordingly I concur in the result reached by the Court in the case before us.

Mr. Justice Harlan,

whom Mr. Justice White joins,

dissenting.

Today’s decision is disturbing both in its rejection of existing precedent and in its implications for the future. The significance of the decision can bes.t be understood after an examination of the state law applied in this case.

South Carolina’s Unemployment Compensation Law was enacted in 1936 in response to the grave social, and economic problems that arose during the depression of that period. As stated in the statute itself:

“Economic insecurity due to unemployment is a serious menace to health, morals and welfare of the people of this State; involuntary unemployment is therefore a subject of general interest and' concern . . . ; the achievement of social security requires protection against this greatest hazard of our economic life; this can be provided by encouraging the employers to provide more stable employment and by the systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance.” § 68-38. (Emphasis added.)

Thus the purpose of the legislature was to tide people over, and to avoid social and economic chaos, during periods when work was unavailable. But at the same time there was clearly no intent to provide relief for those who for purely personal reasons were or became unavailable for work. In accordance with this design, the legislature provided, in § 68-113, that “[a]n unemployed insured worker shall be eligible to receive benefits with respect to any week only if the Commission finds that . . . [h]e is able to work and is available for work . . . (Emphasis added.)

The South Carolina Supreme Court has uniformly applied this law in conformity with its clearly expressed purpose. It has consistently held that one is not “available for work” if his unemployment-has resulted not from the inability of industry to provide a job but rather from personal circumstances, no matter how compelling. The reference to “involuntary unemployment” in the legislative statement of policy, whatever a sociologist, philosopher, or theologian might say, has been interpreted not to embrace such personal circumstances. See, e. g., Judson Mills v. South Carolina Unemployment Compensation Comm’n, 204 S. C. 37, 28 S. E. 2d 535 (claimant was “unavailable for work” when she became unable to work the third shift, and limited her availability to the other -two, because of the need to care for her four children) ; Stone Mfg. Co. v. South Carolina Employment Security Comm’n, 219 S. C. 239, 64 S. E. 2d 644; Hartsville Cotton Mill v. South Carolina Employment Security Comm’n, 224 S. C. 407, 79 S. E. 2d 381.

In the present case all that the state court has done is to apply- these accepted principles. Since virtually all of the mills in the Spartanburg area were operating on a six-day week, the appellant was “unavailable for work,” and thus ineligible for benefits, when personal considerations prevented her from accepting employment on a full-time basis in the industry and locality in which she had worked. The fact that these personal considerations sprang from her religious convictions was wholly without relevance to the state .court’s application of the law. Thus in no proper sense can it be said that the State discriminated against the appellant on the basis of her religious beliefs or that she was denied benefits because she was a Seventh-day Adventist. She was denied benefits just as any other claimant would be denied benefits who was not “available for work” for personal reasons.

With this background, this Court’s decision comes into clearer focus. What the Court is holding is that if the State chooses to condition unemployment compensation on the applicant’s availability for work, it is constitutionally compelled to carve out an exception — and to provide benefits — for those whose unavailability is due to their religious convictions. Such a holding has particular significance in two respects.

First, despite the Court’s protestations to the contrary, the decision necessarily overrules Braunfeld v. Brown, 366 U. S. 599, which held that it did not offend the “Free Exercise” Clause of the Constitution for a State to forbid a Sabbatarian to do business on Sunday. The secular purpose of the statute before us today is even clearer than that involved in Braunfeld. And just as in Braunfeld — where exceptions to the Sunday closing laws for Sabbatarians would have been inconsistent with the purpose to achieve a uniform day of rest and would have required case-by-case inquiry into religious beliefs — so here, an exception to the rules of eligibility based on religious convictions would necessitate judicial examination of those convictions and would be at odds with the limited purpose of the statute to smooth out the economy during periods of industrial instability. Finally, the indirect financial burden of the present law is far less than that involved in Braunfeld. Forcing a store owner to close his business on Sunday may well have the effect of depriving him of a satisfactory livelihood if his religious convictions require him to close on Saturday as well. Here we are dealing only with temporary benefits, amounting to a fraction of regular weekly wages and running for not more than 22 weeks. See §§ 68-104, 68-105. Clearly, any differences between this case and Braunfeld cut against the present appellant.

Second, the implications of the present decision are far more troublesome than its apparently narrow dimensions would indicate at first glance. The meaning of today’s holding, as already noted, is that the State must furnish unemployment benefits to one who is unavailable for work if the unavailability stems from the exercise of religious convictions. The State, in other words, must single put for financial assistance those whose behavior is religiously motivated, even though it. denies such assistance to others whose identical behavior (in this case, inability to work on Saturdays) is not religiously motivated.

It has been suggested that such singling out of religious conduct for special treatment may violate the constitutional limitations on state action. See Kurland, Of Church and State and The Supreme Court, 29 U. of Chi. L. Rev. 1; cf. Cammarano v. United States, 358 U. S. 498, 515 (concurring opinion). My own view, however, is that at least under the circumstances of this case it would, be a permissible accommodation of religion for the State, if it chose to do so, to create an exception to its eligibility requirements for persons like the appellant. The constitutional obligation of “neutrality,” see School District of Abington Township v. Schempp, ante, p. 222, is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation. There are too many instances in which no such course can be charted, too many areas in which the pervasive activities of the State justify some special provision for religion to prevent it from being submerged by an all-embracing secularism. The State violates its obligation of neutrality when, for example,, it mandates a daily religious exercise in its public schools, with all the attendant pressures on the school children that such an exercise entails. See Engel v. Vitale, 370 U. S. 421; School District of Abington Township v. Schempp, supra. But there is, I believe, enough flexibility in the Constitution to permit a legislative judgment accommodating an unemployment compensation law to the exercise of religious beliefs such as appellant’s.

For very much the same reasons, however, I cannot subscribe to the conclusion that the State is constitutionally compelled to carve out an exception to its general rule of eligibility in the present case. Those situations in which the Constitution may require special treatment on account of religion are, in my view, few and far between, arid this view is amply supported by the course of constitutional litigation in this area. See, e. g., Braunfeld v. Brown, supra; Cleveland v. United States, 329 U. S. 14; Prince v. Massachusetts, 321 U. S. 158; Jacobson v. Massachusetts, 197 U. S. 11; Reynolds v. United States, 98 U. S. 145. Such compulsion in the present case is particularly inappropriate in light of the indirect, remote, and insubstantial effect of the decision below on the exercise of appellant’s religion and in light of the direct financial assistance to religion that today’s decision requires.

For these reasons I respectfully dissent from the opinion and judgment of the Court.

       Appellant became a member of the Seventh-day Adventist Church in 1957, at a time when her employer, a textile-mill operator, permitted her to work a five-day week. It was not until 1959 that the work week was changed to six days, including Saturday, for all three shifts in the employer’s mill. No question has been raised in this case concerning the sincerity of appellant’s religious beliefs. Nor is there any doubt that the prohibition against Saturday labor is a basic tenet of the Seventh-day Adventist creed, based upon, that religion’s interpretation of the Holy Bible.

       After her discharge, appellant sought employment with three other mills in the Spartanburg area, but found no suitable five-day work available at any of the mills. In filing her claim with the Commission, she expressed a willingness to accept employment at other mills, or even in another industry, so long as Saturday work was not required. The record indicates that of the 150 or more'Seventh-day Adventists in the Spartanburg area, only appellant and one other have been unable to find suitable non-Saturd'ay employment.

       The pertinent sections of the South Carolina Unemployment Compensation Act (S. C. Code, Tit. 68, §§ 68-1 to 68-404) are as follows:
      .“§ 68-113. Conditions of eligibility for benefits. — An unemployed insured worker shall be eligible to receive benefits with respect to any week only if the Commission finds that: ...
      “(3) He is able to work and is available for work, but no claimant shall be considered available for work if engaged in self-employment of such nature as to return or promise remuneration in excess of' the weekly benefit amounts he would have received if otherwise unemployed over such period of time.....
      “§ 68-114. Disqualification for benefits. — Any insured worker shall be ineligible -for benefits: . . .
      “'(2) Discharge for misconduct. — If the Commission finds that he has been discharged for misconduct connected with his most recent work prior to filing a request for determination of insured status or a request for initiation of a claim series within an established benefit year, with such ineligibility beginning with the effective date of such request, and continuing not less than five nor more than the next twenty-two consecutive weeks (in addition to the waiting period), as determined by the- Commission in each case according to the seriousness of the misconduct ....
      “(3) Failure to accept work. — (a) If the Commission finds'that he has failed, without good cause, (i) either to apply for available suitable work, when so directed by the employment office or the Commission, (ii) to accept available suitable work when offered him by the employment office or the employer or (iii) to return to his customary self-employment (if any) when so directed by the Commission, such ineligibility shall continue for a period of five weeks (the week in which- such failure occurred and the next four weeks in addition to the waiting period) as determined by the Commission according to the circumstances in each case ....
      “(b) In determining whether or not any work is suitable for an individual, the Commission shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation and the distance of the available work from his residence.”

       It has been suggested that appellant is not within the elass entitled to benefits under the South Carolina statute because her unemployment did not result from discharge or layoff due to lack of work. It is true that unavailability for work for some personal reasons not having to do with matters of conscience or religion has been held to be a basis of disqualification for benefits. See, e. g., Judson Mills v. South Carolina Unemployment Compensation Comm’n, 204 S. C. 37, 28 S. E. 2d 535; Stone Mfg. Co. v. South Carolina Employment Security Comm’n, 219 S. C. 239, 64 S. E. 2d 644. But appellant claims that the Free Exercise Clause prevents the State from basing the denial of benefits upon the “personal reason” she gives for not working on Saturday. Where the consequence of disqualification so directly affects First Amendment rights, surely we should not conclude that every “personal reason” is a basis for disqualification in the absence of explicit language to that effect in the statute or decisions of the South Carolina Supreme Court. Nothing we have found in the statute or in the cited decisions, cf. Lee v. Spartan Mills, 7 CCH Unemployment Ins. Rep. S. C. ¶ 8156 (C. P. 1944), and certainly nothing in the South Carolina Court’s opinion in this case so construes the statute. Indeed, the contrary seems to have been that court’s basic assumption, for if the eligibility provisions were thus limited, it would have been unnecessary for the court to have decided appellant’s constitutional challenge to the application of the statute under the Free Exercise Clause.
      Likewise, the decision of the State Supreme Court does not rest upon a finding, that appellant was disqualified for benefits because she had been “discharged for misconduct” — by reason of her Saturday absences — within the meaning of §68-114(2). That ground was not adopted by the South Carolina Supreme Court, and the appellees do not urge in this Court that the disqualification rests upon that ground.

       In a closely analogous context, this Court said:
      “. . . the fact that no direct restraint or punishment is imposed upon speech or assembly does not determine the free speech question. Under some circumstances, indirect ‘discouragements’ undoubtedly have the same coercive effect upon the exercise of First Amendment rights as imprisonment, fines, injunctions or taxes. A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.” American Communications Assn. v. Douds, 339 U. S. 382, 402. Cf. Smith v. California, 361 U. S. 147, 153-155.

       See for examples of conditions and qualifications upon governmental privileges and benefits which have been invalidated because of their tendency to inhibit constitutionally protected activity, Steinberg v. United States, 143 Ct. Cl. 1, 163 F. Supp. 590; Syrek v. Cali

        fornia Unemployment Ins. Board, 54 Cal. 2d 519, 354 P. 2d 625; Fino v. Maryland Employment Security Board, 218 Md. 504, 147 A. 2d 738; Chicago Housing Authority v. Blackman, 4 Ill. 2d 319, 122 N. E. 2d 522; Housing Authority of Los Angeles v. Cordova, 130 Cal. App. 2d 883, 279 P. 2d 215; Lawson v. Housing Authority of Milwaukee, 270 Wis. 269, 70 N. W. 2d 605; Danskin v. San Diego Unified School District, 28 Cal. 2d 536, 171 P. 2d 885; American Civil Liberties Union v. Board of Education, 55 Cal. 2d 167, 359 P. 2d 45; cf. City of Baltimore v. A. S. Abell Co., 218 Md. 273, 145 A. 2d 111. See also Willcox, Invasions of the First Amendment Through Conditioned Public Spending, 41 Cornell L. Q. 12 (1955); Emerson, Toward a General Theory of the First Amendment, 72 Yale L. J. 877, 942-943 (1963); 36 N. Y. U. L. Rev. 1052 (1961); 9 Kan. L. Rev. 346 (1961); Note, Unconstitutional Conditions, 73 Harv. L. Rev. 1595, 1599-1602 (1960).

       We note that before the instant decision, state supreme courts had, without exception, granted benefits to persons who were physically available for work but unable to find suitable employment solely because of a religious prohibition against Saturday work. E. g., In re Miller, 243 N. C. 509, 91 S. E. 2d 241; Swenson v. Michigan Employment Security Comm’n, 340 Mich. 430, 65 N. W. 2d 709; Tary v. Board of Review, 161 Ohio St. 251, 119 N. E. 2d 56. Cf. Kut v. Albers Super Markets, Inc., 146 Ohio St. 522, 66 N. E. 2d 643, appeal dismissed sub nom. Kut v. Bureau of Unemployment Compensation, 329 U. S. 669. One author has observed, “the law was settled that conscientious objections to work on the Sabbath made such work unsuitable and that such objectors were nevertheless available for work. .... A contrary opinion would make the unemployment compensation law unconstitutional, as a violation of freedom of religion. Religious convictions, strongly held, are so impelling as to constitute good cause for refusal. Since availability refers to suitable work, religious observers were not unavailable because they excluded Sabbath work.” Altman, Availability for Work: A Study in Unemployment Compensation (1950), 187. See also Sanders, Disqualification for Unemployment Insurance, 8 Vand. L. Rev. 307, 327-328 (1955); 34 N. C. L. Rev. 591 (1956); cf. Freeman, Able To Work and Available for Work, 55 Yale L. J. 123, 131 (1945). Of the 47 States which have- eligibility provisions similar to those of- the South Carolina statute, only 28 appear to have given administrative rulings concerning the eligibility of persons whose religious convictions prevented them from accepting available work. Twenty-two of those States have held such persons entitled to benefits, although apparently only one such decision rests exclusively upon the federal constitutional ground which constitutes -the basis of our decision. See 111 U. of Pa. L. Rev. 253, and n. 3 (1962); 34 N. C. L. Rev. 591, 602, n. 60 (1956).

       See Note, State Sunday Laws and the Religious Guarantees of the Federal Constitution, 73 Harv. L. Rev. 729, 741-745 (1960).

       These considerations also distinguish the quite different case of Flemming v. Nestor, supra, upon which appellees rely. In that case the Court found that the compelling federal interests which underlay the decision of Congress to impose such a disqualification justified whatever effect the denial of social security benefits may have had upon the disqualified class. See 363 U. S., at 612. And compare Torcaso v. Watkins, supra, in which an undoubted state interest in ensuring the veracity and trustworthiness of Notaries Public was held insufficient to justify the substantial infringement upon the religious freedom of applicants for -that position which resulted from a required oath of belief in God. See 74 Harv. L. Rev. 611, 612-613 (1961); 109 U. of Pa. L. Rev. 611, 614-616 (1961).

       See Shorter Encyclopaedia of Islam (Cornell Press, 1953), 336, 493.

       See Narasu, The Essence of Buddhism (3d ed. 1948), 52-55 ; 6 Encyclopaedia of Religion and Ethics (1913), 63-65.

       See Seventh-day Adventists Answer Questions on Doctrine (1957), 149-153, 622-624; Mitchell, Seventh-Day Adventists (1st ed. 1958), 127, 176-178.

        McGowan v. Maryland, 366 U. S. 420, 442.

       The obvious potentiality of such collision has been studiously ignored by the Court, but has not escaped the perception of commentators. See, e. g., Katz, Freedom of Religion and State Neutrality, 20 U. of Chi. L. Rev. 426, 428 (1953); Kauper, Prayer, Public Schools and the Supreme Court, 61 Mich. L. Rev. 1031, 1053 (1963).

       See Judson Mills v. South Carolina Unemployment Compensation Comm’n, 204 S. C. 37, 28 S. E. 2d 535; Hartsville Cotton Mill v. South Carolina Employment Security Comm’n, 224 S. C. 407, 79 S. E. 2d 381.

       As noted by the Court, “The record indicates that of the 150 or more Seventh-day Adventists in the Spartanburg area, only appellant and one other have been unable to find suitable non-Saturday employment.” Ante, p. 399, n. 2.

       I am completely at a loss to understand note 4 of the Court’s opinion. Certainly the Court is not basing today’s decision on the unsupported supposition that some day, the South Carolina Supreme Court may conclude that there is some personal reason for unemployment that may not disqualify a claimant for relief. In any event, I submit it is perfectly clear that- South Carolina would not compensate persons who became unemployed for any personal reason, as distinguished from layoffs or lack of work, since the State Supreme Court’s decisions make it plain that such persons would not be regarded as “available for work” within the manifest meaning of the eligibility requirements. Nor can I understand what this Court means when it says that “if the eligibility provisions were thus limited, it would have been unnecessary for the [South Carolina] court to have decided appellant’s constitutional challenge . . . .”

       The Court does suggest, in a rather startling disclaimer, ante, pp. 409-410, that its holding is limited in applicability to those whose religious convictions do not make them “nonproductive” members of society, noting that most of the Seventh-day Adventists in the Spartanburg area are employed. But surely this disclaimer cannot be taken seriously, for the Court cannot mean that the. case would have come out differently if none of the Seventh-day Adventists in Spartan-burg had been gainfully employed, or if the appellant’s religion had prevented her from working on Tuesdays instead of Saturdays. Nor can the Court be suggesting that it will make a value judgment in each case as to whether a particular individual’s religious convictions prevent him from being “productive.” I can think of no more inappropriate function for this. Court to perform.

       The Court’s reliance on South Carolina Code § 64-4, ante, p. 406, to support its conclusion with respect to free exercise, is misplaced. Section 64-4, which is not a part of the Unemployment Compensation Law, is an extremely narrow provision that becomes operative only during periods of national emergency and thus has no bearing in the circumstances of the present case. And plainly under our decisions in the “Sunday law” cases, appellant can derive no support for her position from the State’s general statutory provisions setting aside Sunday as a uniform day of rest.

       Since the Court states, ante, p. 410, that it does not reach the appellant’s “equal protection” argument, based upon South Carolina’s emergency Sunday-work provisions, §§ 64-4, 64-6, I do not consider it appropriate for me to do so.


source: Caselaw Access Project

author:
Mr. Justice Stewart,
      Mr. Justice Brennan,

license: Public Domain

text:
    HEAD, DOING business as LEA COUNTY PUBLISHING CO., et al. v. NEW MEXICO BOARD OF EXAMINERS IN OPTOMETRY.
    No. 392.
    Argued April 15-16, 1963.
    Decided June 17, 1963.

      Carol J. Head argued the cause and filed briefs for appellants.

      Earl E. Hartley, Attorney General of New Mexico, and Robert F: Pyatt, Special Assistant Attorney General, argued the cause and filed a brief for appellee.

      By special leave of Court, Solicitor General Cox argued the cause for the United States, as amicus curiae, urging reversal as to appellant Permian Basin Radio Corp. With him on the brief were Assistant Attorney General Loevinger, Bruce J. Terris, Lionel Kestenbaum, Max D. Paglin, Daniel R. Ohlbaum and Ruth V. Reel.

      Ellis Lyons, Leonard J. Emmerglick, Harold Kohn and William P. MacCracken, Jr. filed a brief for the American Optometric Association, Inc., as amicus curiae, urging affirmance.
   Opinion of the Court by

Mr. Justice Stewart,

announced by Mr. Justice White.

This case comes to us on appeal from the Supreme Court of New Mexico. One of the appellants, Agnes K. Head, owns a newspaper in Hobbs, New. Mexico. The other appellant, Permian Basin Radio Corporation, owns and operates a radio station there. Hobbs is in the southeastern corner of the State, close, to the Texas border, and much of the area served by both the radio station and the newspaper lies m Texas; The appellants were enjoined from accepting or publishing .within the State of' New Mexico a Texas optometrist’s advertising found to be in violation of New Mexico law. The appellants claim that the state law, as applied, imposes an unlawful burden on interstate commerce. Permian also argues that regulation of advertising by radio has been preempted by the Communications Act of 1934. We noted probable jurisdiction, 371 U. S. 900, and invited the Solicitor General to express the Government’s views concerning the question of federal preemption. We have concluded that the judgment should be affirmed.

Section 67-7-13 of the New-Mexico Statutes Annotated deals generally with the practice of optometry. It prohibits several varieties of unauthorized practice, and forbids even licensed practitioners from employing certain sales techniques, such as house-to-house canvassing, peddling on streets or highways, or offering lenses and frames as premiums. It also prohibits:

“(m) Advertising by any means whatsoever the quotation of any prices or terms on eyeglasses, spectacles, lenses, frames or mountings, or which quotes discount to be offered on eyeglasses, spectacles, lenses, frames or mountings or which quotes 'moderate prices,’ 'low prices,’ 'lowest prices,’ 'guaranteed glasses,’ 'satisfaction guaranteed,’ or words of similar import.”

The purpose of this provision, according to the Supreme Court of New Mexico, is to “protect . . . citizens against the evils of price-advertising methods tending to satisfy the needs of their pocketbooks rather than the remedial requirements of their eyes.” 70 N. M. 90, 94, 370 P. 2d 811, 813. Similar laws have been enacted in many States to assure high standards of professional competence,

The facts stated in the complaint were not disputed. Appellants received and published advertisements from Abner Roberts, an optometrist who resided and conducted his business in the State of Texas, just a few miles east of Hobbs. In the words of the complaint, this advertising consisted of “the quotation of prices on eyeglasses and spectacles, and of the quotation o'f. discounts to be offered on eyeglasses and' spectacles.” The appellants conceded that the advertising violated § 67-7-13 (m). Finding the statute applicable and violated, the trial court enjoined each of the appellants “from accepting or publishing within the State of New Mexico advertising of any nature from Abner Roberts which quotes prices or terms on eyeglasses ... or which quotes moderate prices, low prices, lowest prices, guaranteed glasses, satisfaction guaranteed, or words of similar import . . . .” The Supreme Court of New Mexico affirmed, ruling that the injunction did not unlawfully burden interstate commerce and that the State’s jurisdiction had not been ousted by federal legislation. 70 N. M. 90, 370 P. 2d 811.

I.

Without doubt, the appellants’ radio station and newspaper are engaged in interstate commerce, and the injunction in this case has unquestionably imposed some restraint upon that commerce. But these facts alone do not add up to an unconstitutional burden on interstate commerce. As we said in Huron Portland Cement Co. v. City of Detroit, 362 U. S. 440, upholding the application of a Detroit smoke abatement ordinance to ships engaged in interstate and international commerce: “In determining whether the state has imposed an undue burden on interstate commerce, it must be borne in mind that the Constitution when ‘conferring upon Congress the regulation of commerce, . . . never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country. Legislation, in a great variety of ways, may affect commerce and persons engaged in it without constituting a regulation of it, within the meaning of the Constitution.’ Sherlock v. Ailing, 93 U. S. 99, 103; Austin v. Tennessee, 179 U. S. 343; Louisville & Nashville R. Co. v. Kentucky, 183 U. S. 503; The Minnesota Rate Cases, 230 U. S. 352; Boston & Maine R. Co. v. Armburg, 285 U. S. 234; Collins v. American Buslines, Inc., 350 U. S. 528.” 362 U. S., 443-444.

Like the smoke abatement ordinance in the Huron-case, the statute here involved is a measure directly addressed to protection of the public health, and the statute thus falls within the most traditional concept of what is compendiously known as the police power. The legitimacy of state legislation in this precise area has been expressly established. Williamson v. Lee Optical Co., 348 U. S. 483. A state law may not be struck down on the mere showing that its administration affects interstate commerce in some way. “State regulation, based on the police power, which does not discriminate against interstate commerce or operate to disrupt its required uniformity, may constitutionally stand.” Huron Portland Cement Co. v. City of Detroit, supra, at 448.

It has not been suggested that, the statute, applicable alike to “any person” within the State of New Mexico, discriminates against interstate commerce as such. Nor can we find that the legislation impinges upon an area of interstate commerce which by its nature requires uniformity of regulation. The appellant's haye pointed to no regulations of other States imposing conflicting duties, nor can we readily imagine any. Colorado Anti-Discrimination Comm’n v. Continental Air Lines, 372 U. S. 714. We hold that the New Mexico statute, as applied here to prevent the publication in New Mexico of the proscribed price advertising, does not impose a constitutionally prohibited burden upon interstate commerce.

II.

In dealing with the contention that New Mexico’s jurisdiction to regulate radio advertising has been preempted by the Federal Communications Act, we may begin by noting that the validity of this claim cannot be judged by reference to broad statements about the “comprehensive” nature of federal regulation under, the Federal Communications Act. “[T]he ‘question whether Congress and its commissions acting under it have so far exercised the exclusive jurisdiction that belongs to it as to exclude the State, must be answered by a judgment upon the particular case.’ Statements concerning the ‘exclusive jurisdiction’ of Congress beg the only controversial question: whether Congress intended to make its jurisdiction exclusive.” California v. Zook, 336 U. S. 725, 731. Kelly v. Washington, 302 U. S. 1, 10-13. In areas of the law not inherently requiring national uniformity, our decisions are clear in requiring that state statutes, otherwise valid, must be upheld unless there is found “such actual conflict between the two schemes of regulation that both cannot stand in the same area, [or] evidence of a congressional design to preempt the field.” Florida Avocado Growers v. Paul, 373 U. S. 132, 141.

The specific provisions of the federal statute chiefly relied upon to support Permian’s claim are those governing the granting, renewal, and revocation of broadcasting licenses. Under the broad standard of “public interest, convenience, and necessity,” the Federal Communications Commission may consider a wide variety of factors in passing upon the fitness of an applicant. It is argued that the content.of advertising is one of the factors which may be considered, and there is evidence that the Commission itself has on occasion so interpreted its authority. Further, the United States argues that the Commission has the authority to promulgate general regulations concerning the subject of advertising for the guidance of broadcasters. See Federal Communications Comm’n v. American Broadcasting Co., 347 U. S. 284, 289-290. . This grant of federal power, it is argued, is sufficient to oust state regulation of radio advertising.

Assuming this to be a correct statement of the Commission’s authority, we are nevertheless not persuaded that the federal legislation in this field has excluded the application of a state law -of the kind here involved. The nature of the regulatory power given to the federal agency convinces us that Congress could not have intended its grant of authority to supplant all the detailed state regulation of professional advertising .practices, particularly when the grant of power to the Commission was accompanied by no substantive standard other than the “public interest, convenience, and necessity.” The Solicitor General has conceded that the power of license revocation is not a plausible, substitute for state law dealing with “traditional” torts or crimes committed through the use of radio. We can find no material difference with respect to the less “traditional” statutory violation here involved. In the absence of positive evidence of legislative intent to the contrary, we cannot believe Congress has ousted the States from an area of such fundamentally local concern.

Finally, there has been no showing of any conflict between this state law and the federal regulatory system, or that the state law stands as an obstacle to the full effectiveness, of the federal statute. No specific federal regulations even remotely in conflict with the New Mexico law have been called to our attention. The Commission itself has apparently viewed state regulation of advertising as complementing its regulatory function, rather than in any way conflicting with it. As in Colorado Anti-Discrimination Comm’n v. Continental Air Lines, Inc., 372 U. S. 714, at 724, we are satisfied that the state statute “at least so long as any power the [Commission] may have remains ‘dormant and unexercised,’ will not frustrate any part of the purpose of the federal legislation.”

Mr. Justice Douglas concurs in the result.

Affirmed.

Mr. Justice Brennan,

concurring.

I agree that the attack on the New Mexico statute as an unreasonable burden on interstate commerce has no merit and therefore join Part I of the Court’s opinion. The attack based on the Supremacy Clause — the contention that the Federal Communications Act preempts the subject matter of this state regulation — is not; however, so easily answered. Although I conclude that it too cannot prevail, I think it is appropriate that I state separately my reasons for reaching that result. For only recently we held, in Farmers Educational & Cooperative Union v. WDAY, Inc., 360 U. S. 525, that the Communications Act displaced the state law of defamation insofar as that law directly conflicted with the “equal time” aims of § 315. Cf. Radio Station WOW, Inc., v. Johnson, 326 U. S. 120; Allen B. Dumont Labs. v. Carroll, 184 F. 2d 153. What reasons arise from the relevant state and federal legislation governing advertising which require a different conclusion in this case?

I.

I agree that, as the Court says, the New Mexico statute is not displaced by the FCC’s powers “governing the granting, renewal, and revocation of broadcasting licenses.” If that were the only sanction which the Commission might apply to the advertising practices which the New Mexico statute forbids, the basis for any claim of the federal statute’s preemptive effect would be removed. For the Commission has long disclaimed the effectiveness of attempting to police minor deviations and indiscretions in programming and advertising by the use of “the cumbersome weapons of criminal' penalties and license refusal and revocation.” Regents of the University System of Georgia v. Carroll, 338 U. S. 586, 602. This obstacle led the Congress in 1960, on the recommendations of the Commission and the Attorney General, to amend the Communications Act to authorize the Commission to impose money forfeitures, 47 U. S. C. §-503 (b), and to grant short-term licenses, 47 U. S. C. § 307 (d). The amendments also strengthened the Commission’s, preexisting power to issue cease-and-desist orders, 47 U. S. C. § 312 (b). The Commission was thus expressly given more discriminating tools “in dealing with violations in situations where revocation or suspension does not appear to be appropriate.”

The Commission has been prompt to apply its new sanctions. Some stations “whose violation records indicated need for closer supervision” have been limited to short-term licenses. Forfeitures have been imposed for “violations that do not warrant revocation proceedings”; and cease-and-desist orders have been issued for the first time in broadcast cases. Thus infractions which would heretofore have gone formally unregulated are apparently now being dealt with because the Commission may impose sanctions more commensurate with the gravity of the offense.

This is not to say that before the 1960 amendments the Commission never found the cancellation power useful in curbing some abuses now policed under the less drastic sanctions. Indeed, the Commission’s informal policing of minor complaints had some success precisely because the “death sentence” could be imposed. “The licensing power of the FCC,” one.commentator has said, “hangs like a constant Damocles’ sword over broadcasting.” The Commission • regularly reported to Congress that a great number of complaints about programming or advertising were readily resolved by “informal adjustment,” without need for recourse to formal hearings, much less to revocation proceedings. The Commission, it appears, though sparingly invoking the cancellation power, had “powerful informal sanctions working in its favor, for the constant theoretical threat of license revocation at renewal time is always present .... [I] f a complaint arises in the programming field that accuses a station of violating FCC standards the mere notification of the respondent of the fact of the complaint would result in immediate settlement in many cases.”

It seems to me, then, that a conclusion of nondisplacement of the state statute at bar by the Federal Communications Act can rest neither upon the practical inability of the FCC to police those practices which the State has forbidden, nor upon any want of authority in the Commission to regulate the subject matter of the New Mexico statute. Actually, the Commission has concerned itself with the content of radio advertising almost from the time that federal regulation of commercial broadcasting began. Advertising abuses in the early days of radio were a constant source of embarrassment and concern to the Commission and its predecessor, .the Federal Radio Commission. One of the principal abuses complained of was the very aspect of commercial sponsorship with which the New Mexico statute is concerned — “direct” or price advertising. The First Annual Radio Conference, meeting in 1922 at the invitation of Secretary Hoover, strongly recommended “that direct advertising in radio broadcasting service be absolutely prohibited . ...” At least one station lost its license during the ’20’s because, among other abuses, it had indulged excessively in “direct advertising, including the quoting of prices.” And until the passage of ‘the Communications Act in 1934, members of the Commission and of Congress continued to hope that broadcasting free of all commercial — or at least devoid of direct advertising, one form of sponsorship particularly objected to — might become a commercial reality. Even representatives of the industry shared this hope for a time.

The advent of the 1930’s apparently foreclosed the possibility of radio without commercials, and the Commission shifted its attention, to a more discriminating appraisal of the content of advertising over the air. As early as 1928, for example, the General Counsel of the Radio Commission held that abuses in network cigarette advertising — while not a sufficient basis for revocation proceedings against an individual licensee — might on renewal militate against the requisite* finding of broadcasting in “the public interest.” During the mid-1930’s, moreover, the Commission repeatedly warned that advertising excesses and the use of commercial material offensive to the listening public might constitute grounds for the cancellation of a license. However, no license appears to have been withdrawn solely for that reason. Rather, the possibility of cancellation seems to have been employed as a threat, and an effective one, for the Commission continued to report its satisfaction that many complaints of this nature were settled through the use of warnings and other informal sanctions outside the formal administrative machinery. Recourse to these informal solutions seems to have been extensive at least until 1940.

Since World War II, however, the Commission has apparently followed a policy which puts less emphasis upon regulation of the content and quality of commercials. In its 1946 “Blue Book,” the Commission, although cataloguing various advertising abuses, including several which directly involved content, expressly disavowed any intention to regulate directly “advertising excesses other than an excessive ratio of advertising time to program time . . . .” The “Blue Book” stated, regarding the other forms of abuse; “The Commission has no desire to concern itself with the particular length, content, or irritating qualities of particular commercial plugs.” There are more recent signs of renewed attention to the subject of advertising content, but nothing appears to approach, the pervasive superintendence of the.1930’s. In any event the FCC has seemed content to leave to the Federal Trade Commission the regulation of much of the field, particularly the policing of false, misleading or deceptive advertising designed for radio and television broadcast. While the FCC has consistently warned its licensees that the continued broadcasting of material found by the FTC to be deceptive or misleading “would raise serious questions as to whether such stations are operating in the public interest,” its policy seems to have been to leave the matter of direct and immediate sanctions largely to the Trade Commission.

II.

It is against this pattern of federal regulation that we must apply in this case the settled tests by which we determine whether federal legislation has displaced state regulation of a given, subject matter. Under the first test the subject matter, here radio and television broadcasting, is clearly not one “by its very nature admitting only of national supervision . . . .” Florida Lime & Avocado Growers, Inc., v. Paul, 373 U. S. 132, 143. Nothing in our decisions which have required particular state regulations to yield to the Communications Act suggests such a view of the regulatory field. Cf. Farmers Educational & Cooperative Union v. WDAY, Inc., supra. Although in Radio Station WOW, Inc., v. Johnson; supra, at 131-132, we decreed the displacement of state law in some respects, we recognized that state regulation in other respects might be constitutional.

The second test, whether there is evidence of congressional intent exclusively to occupy the field, is apposite but the requisite evidence is lacking. We have said, to be sure, that “[n]o state lines divide the radio waves, and national regulation is not only appropriate but essential to the efficient use of radio facilities.” Federal Radio Comm’n v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266, 279. But that language should not be read as construing the Communications Act to mandate the ouster of all local regulation the application of which might in any way prevent perfect national uniformity. Indeed, even the Solicitor General, in his brief as amicus curiae, concedes as much by his recognition that Congress intended the survival of certain “traditional” state powers and remedies — particularly common-law tort and traditional criminal sanctions.

Rather than mandate ouster of state regulations, several provisions of the Communications Act suggest a congressional design to leave standing various forms of state regulation, including the form embodied in the New Mexico statute. First, the Act contains a “saving clause,” 47 U. S. C. § 414, providing that “Nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.” Of course such a general provision does not resolve specific problems, Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658, 671, n. 22, but its inclusion in the statute plainly is inconsistent with congressional displacement of the state statute unless a finding of that meaning' is unavoidable. Second, the statutory regulation of radio and television broadcasting is far less comprehensive than the regulation in the very same title of telephone and telegraph facilities, Federal Communications Comm’n v. Sanders Bros. Radio Station, 309 U. S. 470, 474 — yet even as to those means of communications some subjects and remedies are saved to state regulation. Finally, Congress has enacted detailed regulations of some broadcasting practices (not including that regulated by the New Mexico statute) — e. g., the manner in which sponsorship must be identified and announced, 47 U. S. C. § 317; the uttering of any “obscene, indecent, or profane language” over the air, 18 U. S. C. § 1464; and the transmission of communications known to contain fraudulent matter, 18 U. S. C. § 1343; cf. 47 U. S. C. § 509. While the failure expressly to regulate nondeceptive advertising surely does not deprive the FCC of all such jurisdiction, that failure argues against a congressional design that state regulation was to be ousted. Cf. Federal Communications Comm’n v. American Broadcasting Co., 347 U. S. 284.

This brings me to the third test — whether as a practical matter “both regulations can be enforced without impairing the federal superintendence of the field . . . .” Flor ida Lime & Avocado Growers, Inc., v. Paul, supra, at 142. It is the application of this criterion which reveals the basic difference between this case and WDAY. We held there that the strong federal interest represented by the “equal time” obligation which § 315 imposes upon broadcasters with respect to political candidates would be frustrated if not altogether defeated by the survival of state remedies against the broadcaster for allegedly defamatory political broadcasts. Thus the conflict in operation between the federal and state laws which converged in that case made it inevitable that the state law should yield in the interests of a particúlar federal regulatory scheme.

The instant, case, by contrast, presents no such conflict or dissonance. The New Mexico law is one designed principally to protect the State’s consumers against a local evil by local application to forbid certain forms of advertising Tn all mass media. Such legislation, whether concerned with the health and safety of consumers, or with their protection against fraud and deception, embodies a traditional state interest of the sort which our decisions have consistently respected. Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230. Nor is such legislation required to yield simply because it may in some degree restrict the activities of one who holds a federal license. Cf. Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 447-448.

A conclusion that the state regulation is ousted by the federal requires, under this third test, a showing of conflict either in purpose o.r in operation between the state and federal regulations involved. The contrary of such a showing is made here, for the FCC, in determining whether a licensee’s operation has served the public interest, considers whether he has complied with state and local regulations governing advertising — in other words, the Commission accords important deference to the continued operation of state law in this field. Moreover, the: National Association of. Broadcasters has also consistently counseled obedience to state law on such matters. The Association, in its extensive Codes of Good Practices for both radio and television, unmistakably enjoins each member to “refuse the facilities of his station to an advertiser where he has-good reason to doubt the integrity of the advertiser, the truth of the advertising representations, or the compliance of the advertiser with the spirit and purpose of all applicable legal requirements”; the Television Code, moreover, expressly enjoins: “Diligence should be exercised to the end that advertising copy accepted . . . complies with pertinent Federal, state and local laws.”

Finally, a practical consideration militates strongly against giving the federal statute preemptive effect in the absence of a clear congressional mandate. Even if the FCC is generally able and willing to regulate advertising abuses, the agency would understandably desire to share with state agencies the responsibility for policing the myriad local and occasional violations of the canons of advertising. Otherwise the burden might well become so heavy as to produce a “no-man’s land,” cf. Guss v. Utah Labor Board, 353 U. S. 1, in which there would be at best selective policing of the various advertising abuses and excesses which are now very extensively regulated by state law. That could only mean a partial exemption of radio and television, alone among the media, from local regulations and a denial of the protection which consumers rightly expect from government.

III.

Our holding today intimates no view of the constitutionality of several other superficially similar forms of state regulation of broadcasting. First, nothing here said suggests that a system of state regulation, although not in direct conflict with federal law, would pass muster if it were so pervasive and so burdensome upon broadcasters as to interfere substantially with the overall purposes of federal regulation. Cf. Allen B. Dumont Labs. v. Carroll, supra. Second, .nothing said answers the problem of the situation, factually closer to that at bar but legally quite distinct, which would be presented if a State in which nationwide network material originates sought to restrict network advertising' under a statute enacted for the protection only of that State’s consumers. Such regulation might well exceed the scope of the State’s legitimate interests and involve a constitutionally illegitimate attempt to control communications beyond its borders. Cf. Bibb v. Navajo Freight Lines, Inc., 359 U. S. 520; Southern Pacific Co. v. Arizona, 325 U. S. 761, 775. Third, nothing said here may be read to sustain the constitutionality of applications of local advertising regulations which threaten to make it impossible for a local station to transmit network broadcasts because of their sponsorship. While the State’s interest might be no different from that protected by this New Mexico statute, the more drastic effect of the regulation upon the exercise of the broadcaster’s federal license and his access to network material might well require a different result. All that the Court decides today is that this New Mexico statute may constitutionally be enforced against radio broadcasters equally with other news media doing business in New Mexico.

       48 Stat. 1064, as amended, 47 U. S. C. § 151 et seq.

       “(i) Either in person or by or through solicitors or agents giving or offering to .give to any person eyeglasses, spectacles or lenses, either with or without frames or mountings, as a premium or inducement for any subscription to any book, set of books, magazines, magazine, periodical or other publication, or as a premium or inducement for the purchase of any goods, wares or merchandise.
      . . . . .
      “(k) .The making of a house to house canvass either in person or through solicitors or associates for the purpose of selling, advertising or soliciting the sale of eyeglasses, spectacles, lenses, frames, mountings, eye examinations or optometrical services.
      “(l) The peddling of eyeglasses, spectacles or lenses from house to house or on the streets or highways, notwithstanding any law for the licensing of peddlers.”

       See Ark. Stat. Ann. § 72-815 (1957 Replacement); Cal. Bus. & Professions Code §3129; Del. Code Ann., Tit. 24, §2113; Fla. Stat. Ann. §§463.11, 463.14; Hawaii Rev. Laws § 68-9 (d) (1960 Supp.); Ind. Stat. Ann. §§ 63-1018a (e), 63-1019 (f) (1961); Ky. Rev. Stat. §320.300; La. Rev. Stat. §37:1063; Mich. Stat. Ann. § 14.648 (i) (1961 Supp.); Minn. Stat. Ann. §148.57 (3); Mo. Ann. Stat. §336.110; Mont. Rev. Codes §66-1302 (11); Neb. Rev. Stat. § 71-148; Nev. Rev. Stat. § 636:300 (10); N. J. Stat. Ann. §45:12-11 (h) (1962 Supp.); N. C. Gen. Stat. § 90-124 (9); N. Dak. Cent. Code §43-13-29; Okla. Stat. Ann., Tit. 59, §943; Ore. Rev. Stat. § 683.140 (6); Pa. Stat. Ann., Tit. 63, § 237; R. I. Gen. Laws § 5-35-22; S. C. Code of Laws § 56-1075; S. Dak. Code §27.0707 (6) (1960 Supp.); Tenn. Code Ann. § 63-815; Va. Code §54-388, par. 2 (d).; Wash. Rev. Code Ann. § 18.53.140; W. Va. Code §2937 (1961); Wis. Stat. Ann. § 153.10.

       The case is not one, therefore, in which the State seeks to justify a statute as a health measure on the attenuated theory that the economic well-being of a profession or industry will assure better performance in the public interest. See Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 522-523. Compare Semler v. Dental Examiners, 294 U. S. 608.

       The appellants have argued that the decree below will have the effect of preventing communication between the Texas optometrist and Texas residents. A similar argument was rejected in Railway Express Agency v. New York, 336 U. S. 106, which held valid a local ordinance prohibiting the display of advertising on trucks which also operated in other States.

        E. g., National Broadcasting Co. v. United States, 319 U. S. 190, 213 (“wide licensing and regulatory powers”), id., at 217 (“comprehensive powers to promote and realize the vast potentialities of radio”); Federal Communications Comm’n v. Pottsville Broadcasting Co., 309 U. S. 134, 137 (“unified and comprehensive regulatory system for the industry”).
      It is to be noted that this case in no way involves the Commission’s jurisdiction over technical matters such as a frequency allocation, over which federal control is clearly exclusive. 47 U. S. C. § 301.

       See Hines v. Davidowitz, 312 U. S. 52.

       See 47 U.S. C. §§303 (j), 307 (a), (d), 308 (a), 309 (a), and 312.

       We have been cited to specific instances in which the content of advertising analogous to that involved in this case has been considered. See, e. g., Farmers & Bankers Life Ins. Co., 2 F. C. C. 455; WSBC, Inc., 2 F. C. C. 293; Oak Leaves Broadcasting Station, Inc., 2 F. C. C. 298. And see KFKB Broadcasting Assn. v. Federal Radio Comm’n, 60 App. D. C. 79, 47 F. 2d 670.

       See Interstate Commerce Comm’n v. Los Angeles, 280 U. S. 52, 68-70. Compare Allen B. Dumont Laboratories v. Carroll, 184 F. 2d 153, which held state censorship of motion pictures shown on television preempted by those provisions of the federal act expressly dealing with “'communications containing profane or obscene words, language, or meaning.” 47 U. S. C. §303 (m)(1)(D).

       Our attention has been directed to the following statement of Commission policy:
      “In those localities and states where the sale of alcoholic beverages is prohibited by local or state statutes, such advertising by radio in those areas would, of course, not be in the public interest, since adherence to the laws of the state in which a station is located, especially laws expressive of the public policy of the state or locality on subjects relative to health, safety, and morals, is an important aspect of operation in the public interest. Obviously, the same is true with respect to those areas .where advertising of alcoholic beverages is prohibited by law.” F. C. C. Letter to Sen. Edwin C. Johnson, Chairman of the Senate Committee on Interstate and Foreign Commerce, August 11, 1949, 5 Pike & Fischer Radio Reg. 593-594.

       The appellants urge three additional grounds for reversal. Each may be disposed of briefly., First, both appellants urge that the state statute deprives them of property, in violation of the Due Process Clause. That claim is foreclosed by Williamson v. Lee Optical Co., 348 U. S. 483. See also Ferguson v. Skrupa, 372 U. S. 726. The appellant Head claims that denial of her right to do business with Abner Roberts is a violation of her. privileges and immunities of national citizenship. But the Privileges and Immunities Clause of the Fourteenth Amendment does not create a naked right to conduct a business free of otherwise valid state regulation. ' Madden v. Kentucky, 309 U. S. 83,. 92-93. Finally,'it is contended that the injunction constitutes an invalid restraint upon freedom of speech protected by the Fourteenth Amendment. This argument was not made to the state courts, nor was it reserved in the notice of appeal to this Court. Under Rule 10, par. 2, of the Rules of this Court, “Only the questions set forth in the notice of appeal or fairly comprised therein will be considered by the court.” See also Rule 15, par. 1 (e)(1).

       See H. R. Rep. No. 1800, 86th Cong., 2d Sess. 16 (“The principal administrative sanctions which the FCC is presently authorized to invoke against licensees who flout the law are license revocation and cease and desist orders. Revocation, of course, amounts to a death 'sentence for the licensee. It may also have a serious effect upon the community served by the licensee. Because of its severity, it has seldom if ever been invoked.”). See also, e. g., Smead, Freedom of Speech by Radio and Television (1969), 3; Note, State Regulation of Radio and Television, 73 Harv. L. Rev. 386, 390 (1959); Note, Broadcast Licensee’s Past Conduct as a Determinant of the Public Interest, 23 U. of Pitt. L. Rev. 157,160 (1961). The comment of one author is particularly apposite to the question of this case: “The great reluctance of the Commission to exercise its power of revocation, its lack of power to suspend licenses and its recognition of the importance of commercial advertising to radio broadcasting, make it customary for broadcast advertising to be considered by the Commission only on applications for renewal of station licenses.” 2 Socolow, The Law of Radio Broadcasting (1939), 1005.
      Not only was the drastic nature of the “death sentence” a deterrent to its application against lesser violations — in addition, it was suggested that licensing controls constituted at best only indirect regulation of the parties primarily at fault in cases of advertising excesses or abuses — the networks and the sponsors themselves — and were therefore inequitable as well as unduly harsh. See Deceptive Practices in the Broadcasting Media, December 30, 1959, 19 Pike & Fischer Radio Reg. 1901, 1918; Note, The Regulation of Advertising, 56 Col. L. Rev. 1018, 1049 (1956).

       The Attorney General, in his letter to the President, summarized his recommendation as follows:
      “Second, as a practical matter, the one sanction expressly conferred by statute upon the Federal Communications Commission for use against a broadcast licensee who fails to operate-in the public interest is to withdraw his broadcasting license permanently — a sanction so severe that it has been imposed only rarely. The Federal Communications Commission should be expressly authorized also to impose less severe sanctions for actions violating the Communications Act or regulations issued pursuant to it. Such sanctions, for example, could include temporary suspension or conditional licenses.” Deceptive Practices in the Broadcasting Media, Report to the President by the Attorney General, December 30, 1959, 19 Pike & Fischer Radio Reg. 1901, 1905. See also, for the Commission’s view prior to 1960, Hearings before a Subcommittee of the Senate Committee on Interstate and Foreign Commerce on S. 1333, 80th Cong., 1st Sess. 14, 51.

       H. R. Rep. No. 1800, 86th Cong., 2d Sess. 17; see also S. Rep. No. 1857, 86th Cong., 2d Sess. 4, 8-10. In addition to the three sanctions' provided by the Communications Act amendments of 1960, the House bill had also originally provided for a Commission power to suspend licenses for minor violations, for periods not. to exceed 10 days: The Senate Committee, however, recommended against the provision for suspension, and it was dropped from the final bill. See generally, concerning the scope and provisions of the 1960 amendments, Enforcement Provisions of the Communications Act, 18 Fed. Communications B. J. 45 (1963).

       See 28 F. C. C. Ann. Rep. 47-48 (1962); New York Times, July 14, 1961, p. 37, col. 2. Although under the Communications Act of 1934 the Commission presumably possessed the power to issue licenses for terms shorter than the statutory maximum, a formal rule provided that maximum-period licenses would be regularly granted. The purpose of the amendment was, therefore, simply to reaffirm the existence of the power to issue licenses for less than the statutory three-year maximum. See H. R. Rep. No. 1800, 86th Cong., 2d Sess. 8-9.

       See 28 F. C. C. Ann. Rep. 46-47 (1962). At least one of the forfeiture proceedings reported by the Commission in its most recent report concerned the advertising practices of a licensee, who paid a forfeiture of $5,000. See id., at 54.

       See 27 F. C. C. Ann. Rep. 37, 40 (1961). Although provision was made for cease-and-desist orders in 1952, see 66 Stat. 717, until the 1960 amendment this sanction was invoked only in cases involving technical violations.

       Schwartz, .Antitrust and the FCC: The Problem of Network Dominance, 107 U. of Pa. L. Rev. 753, 769 (1959).

       See 2 F. C. C. Ann. Rep. 19 (1936); 4 F. C. C. Ann. Rep. 69 (1938); 7 F. C. C. Ann. Rep. 27 (1941); Smead, Freedom of Speech by Radio and Television (1959), 30 and n. 63; Note, The Regulation of Advertising, 56 Col. L. Rev. 1018, 1048 (1956). One author has suggested that “[t]he net result has been regulation of programming by raised eyebrow.” Note, Broadcast Licensee’s Past,Conduct as a Determinant of the Public Interest, 23 U. of Pitt. L. Rev. 157, 170 (1961). It hás also been noted that speeches and informal statements by individual Commissioners have often had significant impact upon programming and other activities of licensees. Note, Television Programming, Communication Research, and the FCC, 23 U. of Pitt. L. Rev. 993, 996 (1962).

       Woll, Administrative Law: The Informal Process (1963), 139.

         See Emery, Broadcasting and Government: Responsibilities and Regulations (1961), 11-13; Moser and Lavine, Radio and the Law (1947), §§42, 43; Perry, Weak Spots in the American System of Broadcasting, 177 Annals Am. Acad. Pol. & Soc. Sci. 22, 24-25 (1935).

       Quoted in Federal Communications Commission, Public Service Responsibility of Broadcast Licensees (1946), 41.

        Ibid. The Commission explained its refusal to prohibit all direct advertising as follows: “The Commission is not fully convinced that it has heard both sides of the matter, but is willing to concede that in some localities the quoting of direct merchandise- prices may serve as a sort of local market, and in that community , a service may thus be rendered. That such is not the case generally, however, the commission knows from thousands and thousands of letters which it has had from all over the country complaining of such practices.” 2 F. R. C. Ann. Rep. 168-169 (1928).

       See, e. g., Hearings before Senate Committee on Interstate Commerce on S. .6, 71st Cong., 1st Sess., pt. 5, p. 192; id., pt. 6, p. 230. One may only speculate what might have been the course of American broadcasting had such a prohibition been imposed. For recent difficulties which Sweden has experienced under a general ban on radio advertising, see New York Times, April 2, 1961, p. 1, col. 3; id., April 3, 1961, p. 8, col. 4.

       Hearings before Senate Committee on Interstate Commerce on S. 6, 71st Cong., 2d Sess., pt. 13, pp. 1705-1706. Compare Durstine, The Future of Radio Advertising in the United States, 177 Annals Am. Acad. Pol. & Soc. Sci. 147, 149 (1935).

       Opinion No. 32, 1928-1929 Opinions of the General Counsel, Federal Radio Commission, 77, 81-82. The General Counsel also rejected the contention that such consideration of a licensee’s past advertising practices might amount to censorship, partly on the ground of a “necessary distinction between restrictions placed upon the transmission of intelligence for which there is a general public demand and need and limitations imposed upon broadcasting propaganda, intended to obtain commercial success, for which there is no such demand or need.” Id., at 81.
      Shortly after the issuance of the General Counsel’s opinion, the Chairman of the Federal Radio. Commission was asked by Senator Dill during his appearance before the Senate Commerce Committee whether he thought the Commission had sufficient power “through its power of regulation and its determination of public interest to handle objectionable advertising.” The Chairman replied, “I think so, Senator Dill, because we have had little trouble about it, even without direct power. We have been able to improve some programs.” Hearings before Senate Committee on Interstate Commerce on S. 6, 71st Cong., 1st Sess., pt. 6, p. 230.

       See, e. g., Knickerbocker Broadcasting Co., 2 F. C. C. 76; WSBC, Inc., 2 F. C. C. 293; Hammond-Calumet Broadcasting Corp., 2 F. C. C. 321; Oak Leaves Broadcasting Station, Inc., 2 F. C. C. 298; Farmers & Bankers Life Ins. Co., 2 F. C. C. 455. In Ben S. McGlashan, 2 F. C. C. 145, 152, the Commission dismissed as “manifestly contrary to the law” the suggestion that “licensees should not have the duty of examining into the propriety of advertising to be broadcast . . . .” Cf. KFKB Broadcasting Assn., Inc., v. Federal Radio Comm’n, 60 App. D. C. 79, 47 F. 2d 670. See generally Moser and Lavine, Radio and the Law (1947), §43; Note, Governmental Regulation of the Program Content of .Television Broadcasting, 19 Geo. Wash. L. Rev. 312, 317 (1951).

       Federal Communications Commission, Public Service Responsibility of Broadcast Licensees (1946), 47.

        Id., at 56.

       See, e. g., WREC Broadcasting Service, 10 Pike & Fischer Radio. Reg. 1323, 1350-1351, 1358-1359; Liberty Television, Inc., 30 F. C. C. 411, 414; 28 F. C. C. Ann. Rep. 54-55 (1962). Cf. Public Notice, “Double Billing” Practices, March 7, 1962, 23 Pike & Fischer Radio Reg. 175; Sam Morris, 11 F. C. C. 197; Hale and Hale, Competition or Control II: Radio and Television Broadcasting, 107 U. of Pa. L. Rev. 585, 603-607 (1959).

       Liaison Between FCC and FTC Relating to False and Misleading Radio and TV Advertising, Feb. 21, 1957, 14 Pike & Fischer Radio Reg. 1262.
      The Trade Commission first assumed responsibility for radio advertising in 1934, see 2 Socolow, The Law of Radio Broadcasting (1939), §§ 540-542; Davis, Regulation of Radio Advertising, 177 Annals Am. Acad. Pol. & Soc. Sci. 154, 156-157 (1935). The FCC also instituted during the 1930’s a policy of referring misleading and deceptive advertising complaints to the Trade Commission. See 6 F; C. C. Ann.'Rep. 55 (1940); 7 F. C. C. Ann. Rep. 27 (1941). Since 1957 there has been a particularly close liaison between the two agencies with respect to advertising matters, see Deceptive Practices in the Broadcasting Media, 19 Pike & Fischer Radio Reg. 1901, 1923; 27 F. C. C. Ann. Rep. 40 (1961). The FCC has also announced a policy of keeping. its licensees informed of applicable rulings of the Trade Commission, 28 F. C. C. Ann. Rep. 44 (1962). For surveys of the Trade Commission’s present regulation of radio and television advertising, see generally Emery, Broadcasting and Government: Responsibilities and Regulations (1961), 58-65; Smead, Freedom of Speech by Radio and Television (1959), 31-33; 37 Notre Dame Law. 524 (1962); 36 St. John’s L. Rev. 274 (1962); 10 U. C. L. A. L. Rev. 417 (1963).
      In view of the activity of the Federal Trade Commission in matters of radio and television advertising, it might be argued that the Supremacy Clause question should be judged by the powers and sanctions of that agency instead of by those of the FCC. Several answers may be made to that suggestion. First, the remedial powers of the Trade Commission are only very rarely accorded preemptive effect, e. g, Bedno v. Fast, 6 Wis. 2d 471, 95 N. W. 2d 396. Second, broadcasters and publishers are expressly exempted from the criminal penalties against false and deceptive advertising, 15 U. S. C. § 54 (b). Thus, FTC regulation of advertising' over the air tends to be indirect, the sanctions being imposed upon the sponsor, and, occasionally, upon the advertising agency. See, e. g., Colgate-Palmolive Co. v. Federal Trade Comm’n, 310 F. 2d 89. Third, it appears that the FTC is neither equipped for nor desirous of assuming exclusive responsibility for essentially local advertising abuses, particularly where the state regulation complements the federal prohibitions. See Comment, State Control of Bait Advertising, 69 Yale L. J. 830, 845-846 (1960). Finally, federal preemption would threaten to disrupt unduly the existing schemes of state and local regulation of advertising in an area in which no overriding need for federal uniformity appears, Note, The Regulation of Advertising, 56 Col. L. Rev. 1018, 1076 (1956), and in which there may even be some doubt as to the FTC’s jurisdiction, see 29 Geo. Wash. L. Rev. 808, 811-813 (1961).

       Compare, e. g., Kroeger v. Stahl, 248 F. 2d 121, with, e. g., Western Union Telegraph Co. v. State, 207 Ga. 675, 63 S. E. 2d 878; National Broadcasting Co. v. Board of Public .Utility Comm’rs, 25 F. Supp. 761; RCA Communications, Inc., v. Patchogue Broadcasting Co., Inc., 19 Pike & Fischer Radio Reg. 2071. See generally Emery, Broadcasting and Government: Responsibilities and Regulations (1961), 72-73; Note, State Regulation of Radio Lotteries, 1952 Wis. L. Rev. 177, 180-181.

       See Note, State Regulation of Radio and Television, 73. Harv. L. Rev. 386, 387-388 (1959); Note, Governmental Regulation of the Program Content of Television Broadcasting, 19 Geo. Wash. L. Rev. 312, 322-323 (1951).

       See Letter of Acting Chairman Paul A. Walker to Senator Edwin C. Johnson, August 11, 1949, 5 Pike & Fischer Radio Reg. 593, 594.

       Quoted in Emery, Broadcasting and Government: Responsibilities and Regulations (1961), 430, 445.

        Id., at 445.

       See generally Moser and Lavine, Radio and the Law (1947), c. V; Note, State Regulation of Radio Lotteries, 1952 Wis. L. Rev. 177; State Legislation Affecting Radio and Television, 1951-1952, 12 Fed. Communications B. J. 261 (1952); Note, State. Control of Bait Advertising, 69 Yale L. J. 830 (1960).

       This is not to suggest that a statute which formally exempted certain media from penalties upon certain types of advertising would necessarily represent any violation of the Equal Protection Clause. See Packer Corp. v. Utah, 285 U. S. 105, 108-110. Cf. Calif. Bus. & Prof. Code § 17502, which was amended in 1951 to exempt from the prohibitions against false and deceptive advertising a newspaper or radio station which “broadcasts or publishes an advertisement in good faith, without knowledge of its false, deceptive, or misleading character.”

       See Note, State Regulation of Radio and Television, 73 Harv. L. Rev. 386, 393-395 (1959).