Harmful Use of Postal Facilities

Congress Power To Prevent Harmful Use of the Postal Facilities

In 1872, Congress passed the first of a series of acts to exclude from the mails publications designed to defraud the public or corrupt its morals. In the pioneer case of Ex parte Jackson,1 the Court sustained the exclusion of circulars relating to lotteries on the general ground that “the right to designate what shall be carried necessarily involves the right to determine what shall be excluded.” 2 The leading fraud order case, decided in 1904, held to the same effect.3 Pointing out that it is “an indispensable adjunct to a civil government,” to supply postal facilities, the Court restated its premise that the “legislative body in thus establishing a postal service may annex such conditions . . . as it chooses.” 4

More about Congress Power to Prevent Harmful Use of the Postal Facilities

Later cases first qualified these sweeping assertions and then overturned them, holding government operation of the mails to be subject to constitutional limitations. In upholding requirements that publishers of newspapers and periodicals seeking second-class mailing privileges file complete information regarding ownership, indebtedness, and circulation and that all paid advertisements in the publications be marked as such, the Court emphasized that these provisions were reasonably designed to safeguard the second-class privilege from exploitation by mere advertising publications.5 Chief Justice White warned that the Court by no means intended to imply that it endorsed the Government's “broad contentions concerning . . . the classification of the mails, or by the way of condition . . . .” 6 Again, when the Court sustained an order of the Postmaster General excluding from the second-class privilege a newspaper he had found to have published material in contravention of the Espionage Act of 1917, the claim of absolute power in Congress to withhold the privilege was sedulously avoided.7

Congress Power to Prevent Harmful Use of the Postal Facilities: Developments

A unanimous Court transformed these reservations into a holding in Lamont v. Postmaster General,8 in which it struck down a statute authorizing the Post Office to detain mail it determined to be “communist political propaganda” and to forward it to the addressee only if he notified the Post Office he wanted to see it. Noting that Congress was not bound to operate a postal service, the Court observed that while it did, it was bound to observe constitutional guarantees.9 The statute violated the First Amendment because it inhibited the right of persons to receive any information that they wished to receive.10

Other Aspects

On the other hand, a statute authorizing persons to place their names on a list in order to reject receipt of obscene or sexually suggestive materials is constitutional, because no sender has a right to foist his material on any unwilling receiver.11 But, as in other areas, postal censorship systems must contain procedural guarantees sufficient to ensure prompt resolution of disputes about the character of allegedly objectionable material consistently with the First Amendment.12

Resources

References

This text about Harmful Use of Postal Facilities is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

[Footnote 1] 96 U.S. 727 (1878).

[Footnote 2] 96 U.S. at 732.

[Footnote 3] Public Clearing House v. Coyne, 194 U.S. 497 (1904), followed in Donaldson v. Read Magazine, 333 U.S. 178 (1948).

[Footnote 4] 194 U.S. at 506.

[Footnote 5] Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913).

[Footnote 6] 229 U.S. at 316.

[Footnote 7] United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 (1921). See also Hannegan v. Esquire, 327 U.S. 146 (1946), denying the Post Office the right to exclude Esquire Magazine from the mails on grounds of the poor taste and vulgarity of its contents.

[Footnote 8] 381 U.S. 301 (1965).

[Footnote 9] 381 U.S. at 305, quoting Justice Holmes in United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437 (1921) (dissenting opinion): “The United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues. . . .” See also Blount v. Rizzi, 400 U.S. 410, 416 (1971) (quoting same language). But for a different perspective on the meaning and application of Holmes' language, see United States Postal Service v. Council of Greenburgh Civic Assn's, 453 U.S. 114, 127 n.5 (1981), although there too the Court observed that the postal power may not be used in a manner that abridges freedom of speech or press. Id. at 126. Notice, too, that first-class mail is protected against opening and inspection, except in accordance with the Fourth Amendment. Ex parte Jackson, 96 U.S. 727, 733 (1878); United States v. van Leeuwen, 397 U.S. 249 (1970). But see United States v. Ramsey, 431 U.S. 606 (1977) (border search).

[Footnote 10] Lamont v. Postmaster General, 381 U.S. 301, 306-07 (1965). See also id. at 308 (concurring opinion). This was the first federal statute ever voided for being in conflict with the First Amendment.

[Footnote 11] Rowan v. Post Office Dep't, 397 U.S. 728 (1970).

[Footnote 12] Blount v. Rizzi, 400 U.S. 410 (1971).

Tables of Contents

• Harmful Use of Postal Facilities and other Topics in the Contents – Article 1 of the U.S. Constitution
• U.S. Constitutional Law Category
• List of amendments to the U.S. Constitution
• Harmful Use of Postal Facilities and other Topics in the Constitution Contents
• Interpretation of the U.S. Constitution (Table of Contents)
• Clauses of the Constitution (Table of Contents)

Exclusive Power as an Adjunct to Other Powers

The cases just reviewed involved attempts to close the mails to communication that were deemed to be harmful. A much broader power of exclusion was asserted in the Public Utility Holding Company Act of 1935.13 To induce compliance with the regulatory requirements of that act, Congress denied the privilege of using the mails for any purpose to holding companies that failed to obey that law, irrespective of the character of the material to be carried. Viewing the matter realistically, the Supreme Court treated this provision as a penalty. Although it held this statute constitutional because the regulations whose infractions were thus penalized were themselves valid,14 it declared that “Congress may not exercise its control over the mails to enforce a requirement which lies outside its constitutional province. . . .” 15

Resources

References

This text about Harmful Use of Postal Facilities is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

[Footnote 13] 49 Stat. 803, 812, 813, 15 U.S.C. §§ 79d, 79e.

[Footnote 14] Electric Bond & Share Co. v. SEC, 303 U.S. 419 (1938).

[Footnote 15] 303 U.S. at 442.

Tables of Contents

• Harmful Use of Postal Facilities and other Topics in the Contents – Article 1 of the U.S. Constitution
• U.S. Constitutional Law Category
• List of amendments to the U.S. Constitution
• Harmful Use of Postal Facilities and other Topics in the Constitution Contents
• Interpretation of the U.S. Constitution (Table of Contents)
• Clauses of the Constitution (Table of Contents)