LIMITATIONS ON THE POSTAL POWER
Like all grants to Congress, the postal power is not unrestrained,
but, as the Supreme Court has expressed it, the difficulty in setting
limits beyond which it may not go, arises, “not from want of power in
Congress to prescribe the regulations as to what shall constitute mail
matter, but from the necessity of enforcing them consistently with
the rights reserved to the people, of far greater importance than the
transportation of the mail.”[275] One, and perhaps the most important,
of these rights is involved when restrictions are applied to periodical
publications (particularly in reference to obscene matter and lottery
tickets), and the question is at once raised as to the freedom of the
press, guaranteed against abridgment by the second clause of the first
amendment to the Federal Constitution.[276] The extent to which this
limitation has been ignored is a moot question. On the one hand, we
have the confident assertion of Von Holst[277] that “the freedom of the
press has become a part of the flesh and blood of the American people
to such an extent, and is so conditioned by the democratic character of
their political and social life, that a successful attack upon it, no
matter what legal authority it might have on its side, is impossible.
Even the gigantic power of slavocracy gave up the battle as hopeless
after the first onslaught.”
On the other hand, Hannis Taylor in his recent work on the American
Constitution remarks that “little need be said as to the clause
forbidding Congress to pass any law ‘abridging the freedom of the
press,’ as that clause has been removed from the Constitution, so far
as the mails are concerned, by the judgment rendered in 1892, _In Re
Rapier_.”[278] And this extreme view may be said to have received some
support from a recent decision of the Supreme Court which upheld the
power of Congress to compel newspapers to publish certain information
concerning their internal affairs, under penalty, for refusal, of being
denied the advantages of low second class rates.[279] Which, then,
is the correct view as to the inviolability or abrogation of this
constitutional guarantee in relation to the mails?
_Freedom of the Press._--In the Convention which framed the Federal
Constitution, Mr. Pinckney, on August 20, 1787, submitted a number of
propositions among which was a guarantee that “the liberty of the Press
shall be inviolably preserved.”[280] The propositions were referred
to the Committee of Detail, and when the question again came up for
consideration on September 14, Mr. Pinckney and Mr. Gerry “moved to
insert a declaration that the liberty of the Press should be inviolably
observed.” This motion was lost, Mr. Sherman remarking that “it is
unnecessary. The power of Congress does not extend to the Press.”[281]
During the discussion of the Constitution by the States, however, the
absence of a guarantee of the freedom of the press was frequently
adverted to. Speaking in the South Carolina House of Representatives,
Mr. C. C. Pinckney said:
“With regard to the liberty of the press, the discussion of that
matter was not forgotten by the members of the Convention. It was
fully debated, and the impropriety of saying anything about it in the
Constitution clearly evinced. The general government has no powers but
what are expressly granted to it; it therefore has no power to take
away the liberty of the press. That invaluable blessing which deserves
all the encomiums the gentleman has justly bestowed upon it, is secured
by all our state constitutions; and to have it mentioned in our general
Constitution would perhaps furnish an argument, hereafter, that the
general government had a right to exercise powers not expressly
delegated to it.”[282]
A different theory was advanced by Hamilton, who, answering the
objection that the Constitution contained no bill of rights, and
treating specifically the absence of any provision safeguarding the
press, asked: “What signifies a declaration that ‘the liberty of
the press shall be inviolably preserved?’ What is the liberty of
the press? Who can give it any definition which would not leave the
utmost latitude for evasion? I hold it to be impracticable; and from
this I infer that its security, whatever fine declarations may be
inserted in any Constitution respecting it, must altogether depend upon
public opinion, and on the general spirit of the people and of the
government....”[283]
A proposal to guarantee the freedom of the press was, however, a part
of the plan for a bill of rights which Madison introduced in Congress
on June 8, 1789.[284] Such a federal provision had been suggested by
the ratifying conventions of three states, and similar provisions were
contained in nine state constitutions.[285] Madison’s proposal was
amended until it provided that “the freedom of speech and of the press
... shall not be infringed” and its language was further modified until
it took the form in which it became a part of the Constitution.
Concerning the meaning of the amendment at the time of its adoption,
there has been little, if any controversy, in spite of Hamilton’s
declaration to the contrary. Blackstone had announced a generally
accepted rule when he said that the liberty of the press “consists in
laying no _previous_ restraint upon publications, and not in freedom
from censure for criminal matter when published. Every freeman has an
undoubted right to lay what sentiments he pleases before the public;
to forbid this, is to destroy the freedom of the press; but if he
publishes what is improper, mischievous, or illegal, he must take the
consequence of his own temerity.... To punish (as the law does at
present) any dangerous or offensive writings, which, when published,
shall, on a fair and impartial trial be adjudged of a pernicious
tendency, is necessary for the preservation of the peace and good
order, of government and religion, the only foundations of civil
liberty.”[286]
In the celebrated case of People v. Croswell, Alexander Hamilton
appearing as counsel for the traverser, laid down the following rule
which was unsupported by the English common law, but which has been
accepted as a proper definition by a number of the present-day state
constitutions. Hamilton said:
“The liberty of the press consists, in my idea, in publishing the
truth, from good motives, and for justifiable ends, though it reflect
on the government, on magistrates, or individuals.... It is essential
to say, not only that the measure is bad and deleterious, but to hold
up to the people who is the author, that in this our free and elective
government, he may be removed from the seat of power.”[287] And Story
was of the opinion that the guarantee “is neither more nor less, than
an expansion of the great doctrine, recently brought into operation in
the law of libel, that every man shall be at liberty to publish what is
true, with good motives, and for justifiable ends.”[288]
The amendment guaranteeing the freedom of the press has never been
before the Supreme Court of the United States in such a manner that a
comprehensive consideration of its meaning and effect has been entered
upon. This is true even of those cases in which the issue was as to
the constitutionality of laws denying newspapers the use of the mails
for various reasons.[289] In fact, the most important _dictum_ of the
Supreme Court occurs in a case where a federal law was not involved,
the Court adopting Blackstone’s definition and holding that “the main
purpose of such constitutional provisions is to ‘prevent all such
_previous restraints_ upon publications as had been practised by other
governments,’ and they do not prevent subsequent punishment of such as
may be deemed contrary to the public welfare.”[290]
The cases, as well as the text-writers, seem to settle that the first
amendment to the Federal Constitution announced no new principles;
it must be interpreted in reference to its meaning at common law.
The principal inhibition upon the legislature is in the enactment of
_previous restraints_, but even here not absolutely. By the civil
law of libel, as it was when the Constitution was adopted, the one
publishing had to answer for personal wrongs, and the criminal law
could punish for defamatory, obscene, blasphemous or seditious
libels. To this extent, there could be, and, in fact, were, previous
restraints.[291]
But a recent writer, after an able consideration of the early
declarations in the light of their history, comes to the conclusion
that “they obliterated the English common-law test of supposed bad
tendency to determine the seditious or blasphemous character of a
publication, and hence obliterated the English common-law crimes
of sedition and blasphemy; shifted the law of obscene and immoral
publications from the region of libel to the region of public
nuisance; and left standing only the law of defamatory publications,
materially modifying that.” Professor Schofield goes on to say that
“the declarations wiped out the English common-law rule in criminal
prosecutions of defamatory libel, ‘The greater the truth the greater
the libel,’” and “threw on American judges in civil and criminal
actions for defamatory libel the new work of determining what is truth
in a publication on a matter of public concern.” The correct view, in
this author’s opinion, is that “if liberty of the press in the First
Amendment means anything it legalizes published truth on all matters
of public concern.”[292] Without, however, attempting to pass judgment
on Professor Schofield’s criticism of the cases, it will be possible,
from either view, to ascertain whether the freedom of the press has
ever been abridged by the denial of the use of the mails (for freedom
of publication includes, although perhaps not absolutely, freedom of
circulation), and to set the limits of congressional action.
Not until 1836 was there any serious discussion of the meaning of the
phrase “liberty of the press” and the limitations it might impose upon
the postal regulations which Congress had the power to make.[293] But
during this year an exhaustive debate took place in the Senate as a
result of President Jackson’s message (December 2, 1835) urging the
enactment of legislation to check the incendiary publications with
which the Northern abolitionists were flooding the slave states. The
evil complained of was serious, and the states were making strenuous
objections to the continued presence in the mails of such literature.
On July 29, 1835, for example, the _Southern Patriot_ of Charleston,
S. C., complained that the mails from the North were “literally
overburthened with the newspaper called ‘The Emancipator’ and two
tracts entitled ‘The Anti-Slavery Record’ and ‘The Slaves’ Friend,’”
This was declared a “monstrous abuse of the public mail” and the
publications were denounced as moral poison, the _Patriot_ adding: “If
the general post office is not at liberty [to prevent circulation],
_it is impossible to answer for the security of the mail in this
portion of the country_, which contains such poisonous and inflammatory
matter.”[294] The Charleston postoffice was in fact entered, and this
particular consignment of papers destroyed. “Extreme cases require
extreme remedies,” said the _Patriot_, and the Charleston _Mercury_
went so far as to predict that anyone violating the South Carolina
law against circulation “would assuredly expiate his offence on the
gallows.”[295] Practically all of the Southern States had extremely
stringent statutes and several provided capital punishment for
offenders.[296]
This occurrence at Charleston led Samuel L. Gouverneur, postmaster at
New York, to suggest to Amos Kendall, the postmaster general, that the
transmission of such papers be suspended, but Arthur Tappan, president
of the American Anti-slavery Society, declined to surrender “any rights
or privileges which we possess in common with our fellow citizens in
regard to the use of the United States mail.”[297] Local postmasters
nevertheless began to take matters in their own hands. In regard to the
detention of incendiary matter by the Charleston postoffice, Kendall
wrote:
“I am satisfied that the postmaster general has no legal authority
to exclude newspapers from the mail, nor prohibit their carriage or
delivery on account of their character or tendency, real or supposed....
“The post office department was created to serve the people of _each_
and _all_ of the United States and not to be used as the instrument of
their _destruction_.... Entertaining these views, I cannot sanction
and will not condemn the step you have taken. Your justification
must be looked for in the character of the papers detained, and the
circumstances by which you are surrounded.”[298] Kendall left it to the
discretion of the local postmasters as to whether they would carry out
their official duties, or obey the laws of the local jurisdictions.[299]
It was, therefore, no surprise when Jackson adverted to the situation,
and in his annual message asked for legislation denying such
publications the facilities of the postoffice. President Jackson wrote:
“I must also invite your attention to the painful excitement produced
in the south, by the attempts to circulate, through the mails,
inflammatory appeals addressed to the passions of the slaves, in
prints, and in various sorts of publications, calculated to stimulate
them to insurrection and to produce all the horrors of a servile war....
“In leaving the care of other branches of this interesting subject to
the state authorities, to whom they properly belong, it is nevertheless
proper for Congress to take such measures as will prevent the post
office department, which was designed to foster an amicable intercourse
and correspondence between all members of the confederacy, from being
used as an instrument of the opposite character. The general government
to which the great trust is confided of preserving inviolate the
relations created among the states by the Constitution is especially
bound to avoid, in its own action, anything that may disturb them.
I would, therefore, call the special attention of Congress to the
subject, and respectfully suggest the propriety of passing such a
law as will prohibit, under severe penalties, the circulation in the
southern states, through the mail, of incendiary publications intended
to instigate the slaves to insurrection.”[300]
On December 21, 1835, Calhoun moved that “so much of the President’s
message as relates to the transmission of incendiary publications by
the United States mail be referred to a special committee.” King of
Alabama expressed the opinion of several that the regular standing
committee on postoffices would do, since he “felt a confident belief
that there was no disposition in any of its members to have the public
mails prostituted to a set of fanatics.” Preston of South Carolina
thought that a solution of the evil could be arrived at by a method
other than barring the publications from the mail. He proposed “that
the depositing of an incendiary publication in the post office should
be constituted an offence in the state where it took place, and the
letting of it out of the post office should be equally deemed an
offence where it occurred.”[301] Nevertheless, Calhoun’s view prevailed
and the message was referred to a select committee of which he was made
chairman.[302] An elaborate report written by him was presented to the
Senate on February 4, 1836,[303] but with the unqualified concurrence
of only one fellow committeeman. The others opposed, either any federal
action at all, Calhoun’s theory as to the remedy, or some of the
details of the measure which was recommended.
The committee’s report was based upon the premise that Congress had
not the power to pass legislation in accordance with the President’s
recommendation to exclude the objectionable publications from the
mails; such a law, Calhoun thought, “would be a violation of one of the
most sacred provisions of the Constitution, and subversive of reserved
powers essential to the preservation of the domestic institutions of
the slaveholding states, and with them, of their peace and security.”
This would be closely analogous to the Sedition Act which made it
a crime to print “any false, scandalous and malicious writing or
writings, against the government of the United States,” or Congress,
or the President, “with intent to defame ... or to bring them ... into
contempt or disrepute ... or to incite against them, or either of them,
the hatred of the good people of the United States.”[304]
But, said Calhoun, postulating the unconstitutionality of these
provisions, “as abridging the freedom of the press, _which no one
now doubts_, it will not be difficult to show that if, instead of
inflicting punishment for publishing, the act had inflicted punishment
for circulating through the mails for the same offence, it would have
been equally unconstitutional ... To prohibit circulation, is in
effect, to prevent publication ... each is equally an abridgment of the
freedom of the press.
“The prohibition of any publication on the ground of its being immoral,
irreligious, or intended to excite rebellion or insurrection, would
have been equally unconstitutional; and, from parity of reason, the
suppression of their circulation through the mail would be no less
so.”[305]
The fallacy of this is evident. So far as the Sedition Act is
concerned, there are two grounds upon which it could be attacked:
lack of congressional power to punish sedition, and abridgment of
the freedom of the press. The first question, for present purposes,
needs no discussion;[306] but, as for the second, it is well settled
that punishment for seditious, obscene, defamatory and blasphemous
publications, is not in violation of the freedom of the press.[307] In
the United States, then, there is no constitutional restriction which
will compel the government impotently to remain the subject of attacks
upon its stability. The Act of 1798 was very broad and objectionable
on this ground, but the prohibition of seditious utterances urging the
use of force or unlawful means to overthrow the government or falsely
defamatory of federal officers would not infringe any provision of the
bill of rights.[308]
But legislation of the character urged by Jackson was not on all fours
with the Sedition Act, for by that act the government was punishing
publications which it deemed inimical to its own safety. The incendiary
matter, however, concerned the states and only a portion of them; the
power of Congress to prohibit it, therefore, was doubtful, unless
the evil reached such proportions that the menace to the states was
a menace to the federal government. To Calhoun it seemed also that
the prohibition of circulation through the mails was tantamount to a
prohibition of publication.
The right “to determine what papers are incendiary,” the report
argued, and as such to “prohibit their circulation through the mail,
necessarily involves the right to determine what are not incendiary and
to enforce their circulation”; both were matters of state prerogative.
And, if “consequently the right to protect her internal peace and
security belongs to a state, the general government is bound to respect
the measures adopted by her for that purpose, and to cooperate in their
execution, as far as its delegated powers may admit, or the measure
may require. Thus, in the present case, the slaveholding states having
the unquestionable right to pass all such laws as may be necessary
to maintain the existing relation between master and slave in those
states, their right, of course, to prohibit the circulation of any
publication or intercourse calculated to disturb or destroy that
relation is incontrovertible.” The general government is bound, “in
conformity to the principle established, to respect the laws of the
state in their exercise, and so to modify its act as not only not to
violate those of the stated, but as far as practicable, to cooperate in
their execution.”
Simultaneously with the presentation of this report, Calhoun introduced
a bill, framed in accordance with his views, making it unlawful for any
postmaster to receive and put in the mail any publication addressed to
a jurisdiction where its circulation was forbidden. It was made a crime
to deliver such prohibited mail to any person not “duly authorized ...
to receive the same” by the local authorities, and there was a further
provision that the laws of the United States should not be allowed to
protect any postmaster accused of violating local regulations. By this
means, Calhoun thought to preserve the liberty of the press and hand
the matter over to the states for their settlement.[309]
The constitutional questions involved in the report and law proposed
gave rise to a debate of such importance that it has several times been
referred to by the Supreme Court of the United States in passing on
partially analogous matters.[310] Many different views were advanced as
to the correct interpretation of the postal grant which at this time
had received practically no consideration by the judiciary. Webster,
for example, contended that the proposed law “conflicted with that
provision of the Constitution which prohibited Congress from passing
any law to abridge the freedom of speech or of the press. What was
the liberty of the press?” he asked. “It was the liberty of printing
as well as the liberty of publishing, in all the ordinary modes of
publication; and was not the circulation of papers through the mails an
ordinary mode of publication?... Congress might, under this example,
be called upon to pass laws to suppress the circulation of political,
religious, or any other description of publications which produced
excitement in the states.” Finally, he argued, “Congress had not the
power, drawn from the character of the paper, to decide whether it
should be carried in the mail or not; for such decision would be a
direct abridgment of the freedom of the press.”[311]
Clay argued to the same effect, considering the bill uncalled for by
public sentiment, unconstitutional, and containing “a principle of a
most dangerous and alarming character.”[312] Buchanan’s views, however,
were different. “It was one thing [he said] not to restrain or punish
publications; it was another and an entirely different thing to carry
and circulate them after they have been published. The one is merely
passive, the other is active. It was one thing to leave our citizens
entirely free to print and publish and circulate as they pleased; and
it was another thing to call upon us to aid in their circulation. From
the prohibition to make any law ‘abridging the freedom of speech or of
the press,’ it could never be inferred that we must provide by law for
the circulation through the post office of everything which the press
might publish.”[313]
Senator Davis of Massachusetts charged, quite properly, it seems to me,
that the report and bill were in conflict, since “the report sets forth
that Congress has no power to make a law to restrain the circulation
of incendiary papers through the mail, because the post masters have
no right to determine what is and what is not incendiary; and because
to shut papers out of the mail, would be an invasion of the liberty of
the press.” But the bill would have the United States adopt and enforce
state laws prohibiting the circulation of incendiary papers, “having
constitutional power so to do and being bound in duty so to do.”[314]
Another difficulty, as Davis went on to say, was “that incendiary
matter is anything unfavorable to slavery. The general principle urged
by the Senator from Carolina is, that where the states have power to
legislate, the United States is bound to carry into execution their
laws. They have the power to prohibit the circulation of incendiary
matter, and therefore Congress ought to aid that power.”
But to this “there are insurmountable difficulties. How and by whom,
is this law to be executed? Who is to determine, and in what manner,
whether the Constitution of Massachusetts, which declares that all men
are born free and equal, or the Declaration of Independence ... touch
the subject of slavery or are incendiary? Whoever holds this power may
shut up the great channels of inter-communication; may obstruct the
great avenues through which intelligence is disseminated.”[315]
The use of the mail was declared by Mr. Morris of Ohio to be “a
reserved right, with which no law ought to interfere, and not a
governmental machine which Congress can withdraw at pleasure or render
nugatory by the acts of its officers.” Mr. King raised the question as
to federal enforcement of circulation in the states against their will.
It would depend, he said, on the character of the paper. “If it were
a commercial letter ... or any other paper connected with the granted
powers and social relations, as established by the Constitution, and
not inconsistent with the reserved rights of the states, in that case
its circulation might be enforced. If of a different character it could
not be enforced, and the states whose acknowledged rights might be
affected, could interfere and arrest the circulation.”[316]
This debate, although exhaustive, was inconclusive, and some of the
opinions expressed seem, in the light of present day construction of
the postal clause, almost absurd. Considerably changed, Calhoun’s
bill came up for a vote on June 8, 1836, and failed of passage. In
its amended form, the bill no longer required that postmasters know
the laws of the places to which the mail they received was directed.
Under a penalty of being removed from office, they were forbidden to
deliver publications, the circulation of which was prohibited by local
laws, and in the event that state regulations were not regarded, it was
provided that “nothing in the acts of Congress shall be construed” so
as to furnish immunity from prosecution.[317]
There is much to be said in favor of this bill as amended. To make
their postal agents amenable to local laws as regards the distribution
of certain matter is surely within the constitutional power of
Congress, and the aim should constantly be for the federal government
to legislate so that national and local statutes will be harmonized.
“It must be kept in mind,” the Supreme Court has said, “that we are one
people and that the powers reserved to the states and those conferred
on the nation, are adapted to be exercised, whether independently or
concurrently, to promote the general welfare, material and moral.”[318]
In several instances this _dictum_ of the Court has been effectuated.
The Judiciary Act of 1789[319] adopted “the laws of the several
states” as “rules of decision in trials at common law in courts of
the United States in cases where they apply.”[320] Quarantine and
pilotage regulations have been freely made by the states.[321] During
Mr. Jefferson’s administration (and this was a precedent relied upon by
Calhoun), Congress passed a law forbidding the transportation of free
negroes from one state into any other where by local laws they were
not permitted to reside.[322] The constitutionality of this act was
sustained by Chief Justice Marshall.[323] So also, the congressional
act providing for publicity of campaign expenditures forbids any
candidate for Representative in Congress or for Senator of the United
States to “use money in violation of the laws of the state in which
he resides,”[324] and Congress has adopted and enforced, as its own,
state laws governing elections to the House.[325] Finally, in spite of
the constitutional requirement that bankruptcy laws must be uniform,
Congress has permitted great variance among the several states, their
regulations being enforced by the federal courts. To this there is no
constitutional objection.[326]
There is, thus, a considerable body of analogous authority in support
of Calhoun’s bill as amended. In its first form, the law he proposed
was open to objection in that it required deputy postmasters to
know the regulations of jurisdictions other than their own, and its
effect was to exclude from the mails incendiary matter which the
receiving postmaster thought would be considered objectionable at its
destination. Under the amended act, however, there would be uniformity,
since everything would be transmitted, the restriction being only as to
circulation within the states. In administering a great governmental
establishment, it should be the aim of Congress not to interfere with
the exercise by the states of powers reserved to them.
But Calhoun’s argument that the denial of postal facilities was
tantamount to a denial of the right of publication, is not well
founded, as the Supreme Court of the United States has been at pains
to point out; nevertheless it is true that, in some measure at least,
the First Amendment insures a use of the postoffice.[327] Whether, if
Congress had passed legislation excluding the incendiary literature
from the mails, absolutely, the constitutional guarantee of a free
press would have been violated, depends upon the character of the
publications. If they were of such a seditious tendency that their
menace of established institutions in the states was a menace to
the federal government, if they fomented disorder and proposed to
abolish slavery otherwise than by law, their utterance could have
been prohibited, and the denial of postal facilities would have been
constitutional. Or, if the objectionable publications did not affect
the general government, but incited to arson, murder, etc., and were
not simply political appeals, they could have been excluded, and there
would have been no infringement of the freedom of the press. But the
power of Congress did not extend to the denunciation of anything
unfavorable to slavery; freedom of circulation could not be denied
publications unless they fell within the limits stated above.
The views expressed in this debate on Calhoun’s bill were urged before
the Supreme Court of the United States with considerable force when
it was called upon to determine the constitutionality of the act
excluding lottery tickets from the mails. The prevailing opinion in
the senatorial debate had been, as we have seen, that Congress did
not possess the power to prohibit the carriage in the mails of the
incendiary publications, and to this citation of authority the Supreme
Court replied:
“Great reliance is placed by the petitioner upon these views, coming as
they did in many instances, from men alike distinguished as jurists and
statesmen. But it is evident that they were founded upon the assumption
that it is competent for Congress to prohibit the transportation of
newspapers and pamphlets over postal routes in any other way than by
mail; and of course, it would follow, that if with such a prohibition,
the transportation in the mail could also be forbidden, the circulation
of the documents would be destroyed and a fatal blow given to the
freedom of the press. But we do not think that Congress possesses the
power to prevent the transportation in other ways, as merchandise, of
matter which it excludes from the mails. To give efficiency to its
regulations and prevent rival postal systems, it may, perhaps, prohibit
the carriage by others for hire, over postal routes, of articles which
legitimately constitute mail matter, in the sense in which those terms
were used when the Constitution was adopted,--consisting of letters,
and of newspapers and pamphlets, when not sent as merchandise,--but
further than this its power of prohibition cannot extend.”
And in making a bare denial of the charge that the law abridged the
liberty of the press, the Court went on to say:
“In excluding various articles from the mail, the object of Congress
has not been to interfere with the freedom of the press, or with any
other rights of the people, but to refuse its facilities for the
distribution of matter deemed injurious to the public morals....
“Nor can any regulations be enforced against the transportation of
printed matter in the mail, which is open to examination, so as to
interfere in any manner with the freedom of the press. _Liberty of
circulating is as essential to that freedom as liberty of publishing;
indeed, without the circulation, the publication would be of little
value. If, therefore, printed matter be excluded from the mails, its
transportation in any other way cannot be forbidden by Congress._”[328]
In 1890 Congress extended the inhibition to “any newspaper, circular,
pamphlet, or publication of any kind, containing any advertisement of
any lottery,” and again the Supreme Court held that there had been no
impairment of the freedom of the press. The Court said:
“We cannot regard the right to operate a lottery as a fundamental right
infringed by the legislation in question; nor are we able to see that
Congress can be held, in its enactment, to have abridged the freedom
of the press. The circulation of newspapers is not prohibited, but the
government declines itself to become an agent in the circulation of
printed matter which it regards as injurious to the people. The freedom
of communication is not abridged within the intent and meaning of the
constitutional provision unless Congress is absolutely destitute of
any discretion as to what shall, or shall not be carried in the mails,
and compelled arbitrarily to assist in the dissemination of matter
condemned by its judgment, through the governmental agencies which it
controls. That power may be abused furnishes no ground for a denial of
its existence, if government is to be maintained at all.”[329]
It should be remarked that in these cases the reasoning was largely
based on the assumption that prohibiting circulation through the
mails was not equivalent to prohibiting publication, and Congress
could thus deny postal facilities to matter which it deemed injurious
to the people, without interfering with the liberty of the press,
since transportation between the states, outside of the mails,
would still be possible. But it would seem that this doctrine was
repudiated, inferentially at least, when the Supreme Court upheld the
law excluding lottery tickets from interstate commerce,[330] and it
would, therefore, it seems to me, have been far better if the Court,
in the first instance, had adopted other reasoning. It could have
held that the liberty of the press suffered abridgment by a denial
of postal facilities, but that lottery advertisements, by common
opinion, had become as objectionable as immoral writings, and that
the latter class,--an exception to the common law guarantee,--could,
by reason of a developing moral sense, be made to include the former.
Or the Court could have announced as a rule what is probably true,
independent of judicial acceptance, that the freedom of the press does
not include freedom of advertisement. Or, to advert to the view of
Professor Schofield, if the First Amendment protects only publications
which have an educational value on matters of national public concern,
lottery advertisements do not come within this class; nor do obscene
writings.[331] Any one of these theories would have permitted the
Supreme Court to render a logical decision, without putting forth a
_dictum_ that Congress could not prevent the transportation in other
ways of matter excluded from the mails, for this would be a check on
circulation which would be a check on publication, and then being
forced to take a contrary position in order to declare constitutional
a statute which exercised the very power that the Court had doubted.
Calhoun’s contention, therefore, seems to be the more logical. As it
was, the _ratio decidendi_ of the Court in the Jackson and Rapier cases
would have been impossible had the restraint been against writings of
an admittedly innocuous character, against political opinions, for
example, or against matters not so universally condemned under the
police power. And, to repeat, the Court was forced to deny what, I
think, is undoubtedly the better doctrine,--that the liberty of the
press may be abridged by restrictions on the use of the mails,--a
doctrine that will probably be returned to if Congress legislates on
publications that are unobjectionable.
The question of anarchistic publications and the postoffice was raised
in March, 1908, when President Roosevelt wrote to Attorney General
Bonaparte:
“By my direction the Postmaster General is to exclude _La Questione
Sociale_, of Paterson, N. J., from the mails, and it will not be
admitted to the mails, unless by order of the court, or unless you
advise me that it must be admitted.”[332]
In reply to the President’s letter, Secretary Bonaparte wrote:
“I am obliged to report that I can find no express provision of law
directing the exclusion of such matter from the mails, or rendering
its deposit in the mails an offense against the United States”; but
“I have the honor to advise you that it is clearly and fully within
the power of Congress to exclude from the mails publications” such as
_La Questione Sociale_, “and to make the use, or attempted use, of the
mails for the transmission of such writings a crime against the United
States.”
What Congress thought of anarchy, Mr. Bonaparte said, was shown by the
Act of March 7, 1907,[333] excluding and providing for the deportation
of anarchists, and the Attorney General made this implied expression
of legislative authority (even though in 1903 Congress had expressly
refused to pass a law directed against anarchistic publications) a
sufficient basis to legalize the action of the President and exclude
newspapers which advocated the opinions quoted. The Attorney General’s
opinion concluded:
“In the absence of any express provision of law or binding adjudication
on this precise point, ... I advise you that, in my opinion, the
Postmaster General will be justified in excluding from the mails any
issue of any periodical, otherwise entitled to the privileges of second
class mail matter, which shall contain any article constituting a
seditious libel and counselling such crimes as murder, arson, riot, and
treason.”
Such action, the opinion said, would be perfectly safe, since “it is
well settled that at common law the owner of a libelous picture or
placard or document of any kind is entitled to no damages for its
destruction in so far at least as its value may depend on its unlawful
significance.” Hence the federal statutes which provide punishment for
postmasters who may “unlawfully detain” or “improperly detain” mailable
matter, would not operate.[334]
As a matter of fact, the newspaper was excluded for reasons other
than its contents, but President Roosevelt transmitted the Attorney
General’s opinion to Congress and in a special message said:
“Under this opinion I hold that the existing statutes give the
President power to prohibit the Postmaster General from being used
as an instrument in the commission of crime; that is, to prohibit
the use of the mails for the advocacy of murder, arson, and treason;
and I shall act upon such construction. Unquestionably, however,
there should be further legislation by Congress in this matter. When
compared with the suppression of anarchy, every other question sinks
into insignificance.” Congress has since acted by declaring that
the term “indecent” in the section against obscene writings, should
include “matter of a character tending to incite arson, murder or
assassination.”[335]
The Attorney General in his opinion, it may be remarked, did not
mention the freedom of the press, and this question was not involved.
From what has already been said, it follows that there is no question
as to the competency of Congress to pass legislation designed to deny
the mails to anarchistic publications if they incite to crime. But
the Attorney General’s argument as to the power of the President was
not well founded; it granted to an administrative officer arbitrary
discretion based on no explicit or implied legislative authority,
and sanctioned the exercise of this power on the ground that the one
injured could have no legal redress. It is, however, simply a question
of whether the exclusion was _ultra vires_, not whether it was an
abridgment of the freedom of the press.[336]
The latest question of the freedom of the press was considered by
the Supreme Court in 1913 when it sustained the so-called “newspaper
publicity law.” This required publications entered as second class
matter (with a few exceptions) to furnish the postoffice department
with, and publish semi-annually, a sworn statement of their editors and
owners, in addition to marking as an advertisement anything for the
publication of which, compensation is received. Newspapers were also
required to give information as to their circulation figures.[337]
The law was vigorously assailed as being _ultra vires_, as denying
due process of law, and as impairing the freedom of the press. It
“establishes,” said one of the counsel, “a governmental control over
newspaper publishers and dictates to them what shall or shall not be
published and the manner, form, and time of publishing. In other words,
Congress in plain language provided that matter inherently proper and
mailable shall be unmailable, not on account of any inherent defect,
but solely because the publisher may refuse or neglect to advise the
public of certain of his private matters as to which Congress seems
to desire the public to be informed. This is not regulation, but
paternalism, and a direct and positive abridgment of the freedom of the
press.”[338]
The Supreme Court, however, by a narrow line of reasoning, sustained
the statute, the opinion showing that in order to receive “entry”
as second class matter and get the benefit of low rates, the
publication must answer a number of questions concerning ownership,
editorial supervision, circulation, sample copies, and advertising
discrimination. The Court considered the new law as simply laying
down additional conditions, compliance with which would enable the
publishers to continue “to enjoy great privileges and advantages at
the public expense.” The Court went on to say:
“This being true, the attack on the provision in question as a
violation of the Constitution because infringing the freedom of the
press and depriving of property without due process of law, rests only
upon the illegality of the conditions which the provision exacts in
return for the right to enjoy the privileges and advantages of the
second class mail classification. The question, therefore, is only
this: Are the conditions which were exacted incidental to the power
exerted of conferring on the publishers of newspapers, periodicals,
etc., the privileges of the second class classification, or are they
so beyond the scope of the exercise of that power as to cause the
conditions to be repugnant to the Constitution? We may say this is
the question, since necessarily if the power exists to legislate by
discriminating in favor of the publishers, the right to exercise that
power carries with it the authority to do those things which are
incidental to the power itself, or which are plainly necessary to make
effective the principal authority when exerted.”[339]
Whether this reasoning seems convincing or not, it must nevertheless be
conceded that legislation to the same effect, not based upon the power
of Congress over the mails, would be unconstitutional, and that in this
case, Congress has been permitted to do by indirection what it has not
the power directly to accomplish. The step is a short one to requiring,
for a continuance of the low second class rates, that newspapers print,
or refrain from printing, reading matter of a specified character. The
decision, however, lends no support to the belief that if this indirect
regulation is carried further, or if there is a real interference with
the freedom of the press, the Supreme Court will not intervene.
Such are the incidents in which the liberty of the press has figured,
and it is difficult to see how it has ever been abridged. The
executive order of President Roosevelt excluding _La Questione Sociale_
from the mails was _ultra vires_, but, as Attorney General Bonaparte
pointed out, the injured parties had slight chance of a remedy at law.
Certain it is that the paper in question was so seditious that under a
state statute publication could have been stopped, and that an Act of
Congress, forbidding such periodicals the privilege of the mails, would
not have been in violation of the First Amendment.
The decisions of the Supreme Court which have been quoted lead to no
conclusion other than that any attempt on the part of Congress to
place a previous restraint upon the press, or even to deny it postal
facilities, for no discernible reason, would receive a judicial veto.
The exclusion of lottery tickets, obscene matter, and other writings
inimical to the public morals, has been clearly within the power
of Congress, and legislation forbidding seditious and anarchistic
publications when directed against the federal government, or banning
them from the mails, would be constitutional. It is true that the
“newspaper publicity law,” strictly speaking, is a previous restraint,
but the Supreme Court considered it as merely laying down additional
and reasonable conditions, compliance with which would enable
periodical publications to continue to enjoy great and exclusive
advantages of second class privileges,--a satisfactory, if not
conclusive basis for the decision; as interpreted by the Court, the act
promotes, rather than abridges, the liberty of the press.
Neither reason nor precedent justifies the view, eloquently urged
by counsel in this case, that Congress by the law exercises “a
governmental control over newspaper publishers and dictates to them
what shall not be published, and the manner, form, and time of
publishing.” On the contrary, that great “palladium of liberty,”--the
freedom of the press,--seems to be in no danger of demolition through
congressional action.
_Unreasonable Searches and Seizures._--As with the freedom of the
press, the Supreme Court of the United States has rarely been asked to
restrain the postal power under the provision of the Fourth Amendment
to the Constitution which declares that “the right of the people
to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.”[340] The scope of this limitation,
as applied to the mails, has been described by the Supreme Court in the
following terms:
“A distinction is to be made between different kinds of mail matter,
between what is intended to be kept free from inspection, such as
letters and sealed packages, subject to letter postage, and what is
open to inspection.... Letters and sealed packages of this kind in the
mail are to be as fully guarded from examination and inspection, except
as to their outward form and weight, as if they were retained by the
parties forwarding them in their own domiciles. The constitutional
guaranty of the right of the people to be secure in their papers
against unreasonable searches and seizures extends to their papers thus
closed against inspection, wherever they may be. Whilst in the mail,
they can only be opened and examined under like warrant, issued upon
similar oath or affirmation, particularly in describing the thing to
be seized, as is required when papers are subjected to search in one’s
own household. No law of Congress can place in the hands of officials
connected with the postal service any authority to invade the secrecy
of letters and such sealed packages; and all regulations adopted as
to mail matter of this kind must be in subordination to the great
principle embodied in the Fourth Amendment of the Constitution.”[341]
The limitation operates chiefly upon administrative officials who
attempt to get evidence of violations of the law regarding obscene
literature and fraudulent matter excluded from the mails. In regard to
this the Court said:
“Whilst regulations excluding matter from the mails cannot be enforced
in a way which would require or permit an examination into letters,
or sealed packages subject to letter postage, without warrant issued
upon oath or affirmation, in the search for prohibited matter, they
may be enforced upon competent evidence of their violation obtained
in other ways; as from parties receiving the letters and packages, or
from agents depositing them in the postoffices, or others cognizant of
the facts. And as to the objectionable printed matter which is open
to examination, the regulations may be enforced in a similar way, by
the imposition of penalties for their violation through the courts,
and, in some cases by the direct action of the officers of the postal
service. In many instances those officers can act upon their own
inspection, and, from the nature of the case, must act without other
proof; as where the postage is not prepaid, or where there is an excess
of weight over the amount prescribed, or where the object is exposed,
and shows unmistakably that it is prohibited, as in the case of an
obscene picture or print. In such cases, no difficulty arises, and no
principle is violated in excluding the prohibited articles and refusing
to forward them. The evidence respecting them is seen by everyone and
is in its nature conclusive.”[342]
This view of the law has been acquiesced in by Congress which has
provided that nothing in the acts excluding certain matters from
the mails, “shall be so construed as to authorize any person other
than an employee of the Dead Letter Office, duly authorized thereto,
to open any letter not addressed to himself.”[343] The regulations
promulgated for the postoffice department, provide, moreover, that
neither postmasters, inspectors, employees, nor officers of the law,
“without legal warrant therefor, have authority to open under any
pretext a sealed letter while in the mails, not even though it may
contain improper or criminal matter, or furnish evidence for the
conviction of offenders,” and out of excess of caution, it is further
added that “the seal of letters or packages suspected to contain
unmailable matter shall not be broken to ascertain that fact.”[344]
The regulations provide that matter manifestly unmailable shall be
withdrawn and sent to the Division of Dead Letters with a statement
of the facts upon which such action was taken; if there is doubt as
to the propriety of such disposition, the matter shall be sent to the
Assistant Attorney General for the Postoffice Department, for his
decision.[345] Any unlawful opening of the mail by a postal employee is
dealt with criminally.[346] Special regulations govern the examination
by a customs officer of sealed packages supposed to be dutiable, in the
presence of the addressee, but before delivery to him.[347]
If, then, at times, administrative zeal may lead to a disregard of
these regulations, the official is criminally liable, and the one
whose sealed mail is searched, has a right of action for damages. But
the avowed purpose of Congress and of the postoffice department is to
subordinate efficiency in the detection of wrongdoing to the right of
the people, under the Fourth Amendment, to be secure in their sealed
papers when they are in the hands of the government for transmission
through the mails.[348]