U.S. Supreme Court

Lamont v. Postmaster General,381U.S. 301 (1965)Lamont v. PostmasterGeneral

No. 491

Argued April 26, 1965

Decided May 24, 1965381U.S. 301ast|>*

381U.S. 301

APPEAL FROM THE UNITED STATESDISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEWYORK

Syllabus

These cases challenge the constitutionality of § 305(a) of thePostal Service and Federal Employees Salary Act of 1962, whichrequires the Postmaster General to detain and deliver only upon theaddressee's request unsealed foreign mailings of "communistpolitical propaganda." Under procedure effective March 15, 1965,the Post Office sends to the addressee a card which can be checkedto have the mailing delivered. The card states that, if it is notreturned within 20 days, it will be assumed that the addressee doesnot want that publication or any similar one in the future. Whenthe addressee in these cases received the Post Office notices, theysued to enjoin enforcement of the statute.

Held: the Act, as construed and applied, isunconstitutional, since it imposes on the addressee an affirmativeobligation which amounts to an unconstitutional limitation of hisrights under the First Amendment. Pp.92 U. S.305-307.

229 F.Supp. 913, reversed; 235 F. Supp. 405, affirmed.

Page 381 U. S. 302

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

These appeals present the same question: is § 305(a) of thePostal Service and Federal Employees Salary Act of 1962, 76 Stat.840, constitutional as construed and applied? The statute providesin part:

"Mail matter, except sealed letters, which originates or whichis printed or otherwise prepared in a foreign country and which isdetermined by the Secretary of the Treasury pursuant to rules andregulations to be promulgated by him to be 'communist politicalpropaganda', shall be detained by the Postmaster General upon itsarrival for delivery in the United States, or upon its subsequentdeposit in the United States domestic mails, and the addresseeshall be notified that such matter has been received and will bedelivered only upon the addressee's request, except that suchdetention shall not be required in the case of any matter which isfurnished pursuant to subscription or which is otherwiseascertained by the Postmaster General to be desired by theaddressee."

39 U.S.C. § 4008(a).

The statute defines "communist political propaganda" aspolitical propaganda (as that term is defined in § 1(j) of theForeign Agents Registration Act of 1938 [Footnote 1]) which is

Page 381 U. S. 303

issued by or on behalf of any country with respect to whichthere is in effect a suspension or withdrawal of tariff concessionsor from which foreign assistance is withheld pursuant to certainspecified statutes. 39 U.S.C. § 4008(b). The statute contains anexemption from its provisions for mail addressed to governmentagencies and educational institutions, or officials thereof, andfor mail sent pursuant to a reciprocal cultural internationalagreement. 39 U.S.C. § 4008(c).

To implement the statute, the Post Office maintains 10 or 11screening points through which is routed all unsealed mail from thedesignated foreign countries. At these points, the nonexempt mailis examined by Customs authorities. When it is determined that apiece of mail is "communist political propaganda," the addressee ismailed a notice identifying the mail being detained and advisingthat it will be destroyed unless the addressee requests delivery byreturning an attached reply card within 20 days.

Prior to March 1, 1965, the reply card contained a space inwhich the addressee could request delivery of any "similarpublication" in the future. A list of the persons thus manifestinga desire to receive "communist political propaganda" was maintainedby the Post Office. The Government in its brief informs us that thekeeping of this list was terminated, effective March 15, 1965.Thus, under the new practice, a notice is sent and must be returnedfor each individual piece of mail desired. The only standinginstruction which it is now possible to leave with the Post Officeis not to deliver any "communist political

Page 381 U. S. 304

propaganda." [Footnote 2]And the Solicitor General advises us that the Post OfficeDepartment "intends to retain its assumption that those who do notreturn the card want neither the identified publication nor anysimilar one arriving subsequently."

No. 491 arose out of the Post Office's detention in 1963 of acopy of thePeking Review #12 addressed to appellant, Dr.Corliss Lamont, who is engaged in the publishing and distributingof pamphlets. Lamont did not respond to the notice of detentionwhich was sent to him, but instead instituted this suit to enjoinenforcement of the statute, alleging that it infringed his rightsunder the First and Fifth Amendments. The Post Office thereuponnotified Lamont that it considered his institution of the suit tobe an expression of his desire to receive "communist politicalpropaganda," and therefore none of his mail would be detained.Lamont amended his complaint to challenge on constitutional groundsthe placement of his name on the list of those desiring to receive"communist political propaganda." The majority of the three-judgeDistrict Court nonetheless dismissed the complaint as moot,229 F.Supp. 913, because Lamont would now receive his mail unimpeded.Insofar as the list was concerned, the majority thought that anylegally significant harm to Lamont as a result of being listed wasmerely a speculative possibility, and so, on this score, thecontroversy was not yet ripe for adjudication. Lamont appealed fromthe dismissal, and we noted probable jurisdiction. 379 U.S.926.

Like Lamont, appellee Heilberg in No. 848, when his mail wasdetained, refused to return the reply card and

Page 381 U. S. 305

instead filed a complaint in the District Court for aninjunction against enforcement of the statute. The Post Officereacted to this complaint in the same manner as it had to Lamont'scomplaint, but the District Court declined to hold that Heilberg'saction was thereby mooted. Instead, the District Court reached themerits, and unanimously held that the statute was unconstitutionalunder the First Amendment.236 F.Supp. 405. The Government appealed, and we noted probablejurisdiction. 379 U.S. 997.

There is no longer even a colorable question of mootness inthese cases, for the new procedure, as described above, requiresthe postal authorities to send a separate notice for each item asit is received and the addressee to make a separate request foreach item. Under the new system, we are told, there can be no listof persons who have manifested a desire to receive "communistpolitical propaganda" and whose mail will therefore go throughrelatively unimpeded. The Government concedes that the changedprocedure entirely precludes any claim of mootness and leaves forour consideration the sole question of the constitutionality of thestatute.

We conclude that the Act, as construed and applied, isunconstitutional because it requires an official act(viz., returning the reply card) as a limitation on theunfettered exercise of the addressee's First Amendment rights. Asstated by Mr. Justice Holmes inMilwaukee Pub. Co. v.Burleson,255 U. S. 407,255 U. S. 437(dissenting):

"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 mucha part of free speech as the right to use our tongues. . . .[Footnote 3] "

Page 381 U. S. 306

We struck down inMurdock v. Pennsylvania,319 U.S. 105, a flat license tax on the exercise of FirstAmendment rights. A registration requirement imposed on a laborunion organizer before making a speech met the same fate inThomas v. Collins,323 U. S. 516. Amunicipal licensing system for those distributing literature washeld invalid inLovell v. City of Griffin,303 U.S. 444. We recently reviewed inHarman v.Forssenius,380 U. S. 528, anattempt by a State to impose a burden on the exercise of a rightunder the Twenty-fourth Amendment. There, a registration wasrequired by all federal electors who did not pay the state polltax. We stated:

"For federal elections, the poll tax is abolished absolutely asa prerequisite to voting, and no equivalent or milder substitutemay be imposed. Any material requirement imposed upon the federalvoter solely because of his refusal to waive the constitutionalimmunity subverts the effectiveness of the Twenty-fourth Amendmentand must fall under its ban."

Id. p.380 U. S.542.

Here the Congress -- expressly restrained by the First Amendmentfrom "abridging" freedom of speech and of press -- is the actor.The Act sets administrative officials astride the flow of mail toinspect it, appraise it, write the addressee about it, and await aresponse before dispatching the mail. Just as the licensing ortaxing authorities in theLovell, Thomas, andMurdock cases sought to control the flow of ideas to thepublic, so here federal agencies regulate the flow of mail. We donot have here, any more than we had inHannegan v. Esquire,Inc.,327 U. S. 146, anyquestion concerning the extent to which Congress may

Page 381 U. S. 307

classify the mail and fix the charges for its carriage. Nor dowe reach the question whether the standard here applied could passconstitutional muster. Nor do we deal with the right of Customs toinspect material from abroad for contraband. We rest on the narrowground that the addressee, in order to receive his mail, mustrequest in writing that it be delivered. This amounts, in ourjudgment, to an unconstitutional abridgment of the addressee'sFirst Amendment rights. The addressee carries an affirmativeobligation which we do not think the Government may impose on him.This requirement is almost certain to have a deterrent effect,especially as respects those who have sensitive positions. Theirlivelihood may be dependent on a security clearance. Publicofficials like schoolteachers who have no tenure might think theywould invite disaster if they read what the Federal Government sayscontains the seeds of treason. Apart from them, any addressee islikely to feel some inhibition in sending for literature whichfederal officials have condemned as "communist politicalpropaganda." The regime of this Act is at war with the"uninhibited, robust, and wide-open" debate and discussion that arecontemplated by the First Amendment.New York Times Co. v.Sullivan,376 U. S. 254,376 U. S.270.

We reverse the judgment in No. 491 and affirm that in No.848.

It is so ordered.

MR. JUSTICE WHITE took no part in the consideration or decisionof these cases.

* Together with No. 848,Fixa, Postmaster, San Francisco, etal. v. Heilberg, on appeal from the United States DistrictCourt for the Northern District of California.

[Footnote 1]

"The term 'political propaganda' includes any oral, visual,graphic, written, pictorial, or other communication or expressionby any person (1) which is reasonably adapted to, or which theperson disseminating the same believes will, or which he intendsto, prevail upon, indoctrinate, convert, induce, or in any otherway influence a recipient or any section of the public within theUnited States with reference to the political or public interests,policies, or relations of a government of a foreign country or aforeign political party or with reference to the foreign policiesof the United States or promote in the United States racial,religious, or social dissensions, or (2) which advocates, advises,instigates, or promotes any racial, social, political, or religiousdisorder, civil riot, or other conflict involving the use of forceor violence in any other American republic or the overthrow of anygovernment or political subdivision of any other American republicby any means involving the use of force or violence."

22 U.S.C. § 611(j).

[Footnote 2]

A Post Office regulation permits a patron to refuse delivery ofany piece of mail (39 CFR § 44.1(a)) or to request in writing awithholding from delivery for a period not to exceed two years ofspecifically described items of certain mail, including "foreignprinted matter."Ibid.And see Schwartz, The MailMust Not Go Through, 11 U.C.L.A. L.Rev. 805, 847.

[Footnote 3]

"Whatever may have been the voluntary nature of the postalsystem in the period of its establishment, it is now the mainartery through which the business, social, and personal affairs ofthe people are conducted and upon which depends in a greater degreethan upon any other activity of government the promotion of thegeneral welfare."

Pike v. Walker, 73 App.D.C. 289, 291, 121 F.2d 37, 39.And see Gellhorn, Individual Freedom and GovernmentalRestraints p. 88et seq. (1956).

MR. JUSTICE BRENNAN, with whom Mr. Justice GOLDBERG joins,concurring.

These might be troublesome cases if the addressees predicatedtheir claim for relief upon the First Amendment rights of thesenders. To succeed, the addressees

Page 381 U. S. 308

would then have to establish their standing to vindicate thesenders' constitutional rights,cf. Dombrowski v. Pfister,380 U. S. 479,380 U. S. 486,as well as First Amendment protection for political propagandaprepared and printed abroad by or on behalf of a foreigngovernment,cf. Johnson v. Eisentrager,339 U.S. 763,339 U. S.781-785. However, those questions are not before us,since the addressees assert First Amendment claims in their ownright: they contend that the Government is powerless to interferewith the delivery of the material because the First Amendment"necessarily protects the right to receive it."Martin v. Cityof Struthers,319 U. S. 141,319 U. S. 143.Since the decisions today uphold this contention, I join theCourt's opinion.

It is true that the First Amendment contains no specificguarantee of access to publications. However, the protection of theBill of Rights goes beyond the specific guarantees to protect fromcongressional abridgment those equally fundamental personal rightsnecessary to make the express guarantees fully meaningful.See,e.g., Bolling v. Sharpe,347 U. S. 497;NAACP v. Alabama,357 U. S. 449;Kent v. Dulles,357 U. S. 116;Aptheker v. Secretary of State,378 U.S. 500. I think the right to receive publications issuch a fundamental right. The dissemination of ideas can accomplishnothing if otherwise willing addressees are not free to receive andconsider them. It would be a barren marketplace of ideas that hadonly sellers and no buyers.

Even if we were to accept the characterization of this statuteas a regulation not intended to control the content of speech, butonly incidentally limiting its unfettered exercise,see Zemelv. Rusk,381 U. S. 1,381 U. S. 16-17,we

"have consistently held that only a compelling [governmental]interest in the regulation of a subject within [governmental]constitutional power to regulate can justify

Page 381 U. S. 309

limiting First Amendment freedoms."

NAACP v. Button,371 U. S. 415,371 U. S. 438.The Government's brief expressly disavows any support for thisstatute "in large public interests such as would be needed tojustify a true restriction upon freedom of expression or inquiry."Rather, the Government argues that, since an addressee taking thetrouble to return the card can receive the publication named in it,only inconvenience and not an abridgment is involved. Butinhibition as well as prohibition against the exercise of preciousFirst Amendment rights is a power denied to government.See,e.g., Freedman v. Maryland,380 U. S. 51;Garrison v. Louisiana,379 U. S. 64;Speiser v. Randall,357 U. S. 513. Theregistration requirement which was struck down inThomas v.Collins,323 U. S. 516, wasnot appreciably more burdensome. Moreover, the addressee's failureto return this form results in nondelivery not only of theparticular publication, but also of all similar publications ormaterial. Thus, although the addressee may be content not toreceive the particular publication, and hence does not return thecard, the consequence is a denial of access to like publicationswhich he may desire to receive. In any event, we cannot sustain anintrusion on First Amendment rights on the ground that theintrusion is only a minor one. As the Court said inBoyd v.United States,116 U. S. 616,116 U. S.635:

"It may be that it is the obnoxious thing in its mildest andleast repulsive form; but illegitimate and unconstitutionalpractices get their first footing in that way, namely, by silentapproaches and slight deviations from legal modes of procedure.This can only be obviated by adhering to the rule thatconstitutional provisions for the security of person and propertyshould be liberally construed. A close and literal constructiondeprives them of half their efficacy, and leads to gradualdepreciation of the right, as if it consisted more in sound than insubstance.

Page 381 U. S. 310

It is the duty of courts to be watchful for the constitutionalrights of the citizens, and against any stealthy encroachmentsthereon."

The Government asserts that Congress enacted the statute in theawareness that Communist political propaganda mailed to addresseesin the United States on behalf of foreign governments was oftenoffensive to the recipients and constituted a subsidy to the verygovernments which bar the dissemination of publications from theUnited States. But the sensibilities of the unwilling recipient arefully safeguarded by 39 CFR § 44.1(a) (Supp.1965) under which thePost Office will honor his request to stop delivery; the statuteunder consideration, on the other hand, impedes delivery even to awilling addressee. In the area of First Amendment freedoms,government has the duty to confine itself to the least intrusiveregulations which are adequate for the purpose.Cf. Butler v.Michigan,352 U. S. 380. Theargument that the statute is justified by the object of avoidingthe subsidization of propaganda of foreign governments which barAmerican propaganda needs little comment. If the Government wishesto withdraw a subsidy or a privilege, it must do so by means and onterms which do not endanger First Amendment rights.Cf. Speiserv. Randall, supra. That the governments which originate thispropaganda themselves have no equivalent guarantees only highlightsthe cherished values of our constitutional framework; it can neverjustify emulating the practice of restrictive regimes in the nameof expediency.

MR. JUSTICE HARLAN concurs in the judgment of the Court on thegrounds set forth in this concurring opinion.