These cases challenge the constitutionality of § 305(a) of the
Postal Service and Federal Employees Salary Act of 1962, which
requires the Postmaster General to detain and deliver only upon the
addressee's request unsealed foreign mailings of "communist
political propaganda." Under procedure effective March 15, 1965,
the Post Office sends to the addressee a card which can be checked
to have the mailing delivered. The card states that, if it is not
returned within 20 days, it will be assumed that the addressee does
not want that publication or any similar one in the future. When
the addressee in these cases received the Post Office notices, they
sued to enjoin enforcement of the statute.
Held: the Act, as construed and applied, is
unconstitutional, since it imposes on the addressee an affirmative
obligation which amounts to an unconstitutional limitation of his
rights 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 the
Postal Service and Federal Employees Salary Act of 1962, 76 Stat.
840, constitutional as construed and applied? The statute provides
in part:
"Mail matter, except sealed letters, which originates or which
is printed or otherwise prepared in a foreign country and which is
determined by the Secretary of the Treasury pursuant to rules and
regulations to be promulgated by him to be 'communist political
propaganda', shall be detained by the Postmaster General upon its
arrival for delivery in the United States, or upon its subsequent
deposit in the United States domestic mails, and the addressee
shall be notified that such matter has been received and will be
delivered only upon the addressee's request, except that such
detention shall not be required in the case of any matter which is
furnished pursuant to subscription or which is otherwise
ascertained by the Postmaster General to be desired by the
addressee."
39 U.S.C. § 4008(a).
The statute defines "communist political propaganda" as
political propaganda (as that term is defined in § 1(j) of the
Foreign 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 which
there is in effect a suspension or withdrawal of tariff concessions
or from which foreign assistance is withheld pursuant to certain
specified statutes. 39 U.S.C. § 4008(b). The statute contains an
exemption from its provisions for mail addressed to government
agencies and educational institutions, or officials thereof, and
for mail sent pursuant to a reciprocal cultural international
agreement. 39 U.S.C. § 4008(c).
To implement the statute, the Post Office maintains 10 or 11
screening points through which is routed all unsealed mail from the
designated foreign countries. At these points, the nonexempt mail
is examined by Customs authorities. When it is determined that a
piece of mail is "communist political propaganda," the addressee is
mailed a notice identifying the mail being detained and advising
that it will be destroyed unless the addressee requests delivery by
returning an attached reply card within 20 days.
Prior to March 1, 1965, the reply card contained a space in
which the addressee could request delivery of any "similar
publication" in the future. A list of the persons thus manifesting
a desire to receive "communist political propaganda" was maintained
by the Post Office. The Government in its brief informs us that the
keeping of this list was terminated, effective March 15, 1965.
Thus, under the new practice, a notice is sent and must be returned
for each individual piece of mail desired. The only standing
instruction which it is now possible to leave with the Post Office
is not to deliver any "communist political
Page 381 U. S. 304
propaganda." [
Footnote 2]
And the Solicitor General advises us that the Post Office
Department "intends to retain its assumption that those who do not
return the card want neither the identified publication nor any
similar one arriving subsequently."
No. 491 arose out of the Post Office's detention in 1963 of a
copy of the
Peking Review #12 addressed to appellant, Dr.
Corliss Lamont, who is engaged in the publishing and distributing
of pamphlets. Lamont did not respond to the notice of detention
which was sent to him, but instead instituted this suit to enjoin
enforcement of the statute, alleging that it infringed his rights
under the First and Fifth Amendments. The Post Office thereupon
notified Lamont that it considered his institution of the suit to
be an expression of his desire to receive "communist political
propaganda," and therefore none of his mail would be detained.
Lamont amended his complaint to challenge on constitutional grounds
the placement of his name on the list of those desiring to receive
"communist political propaganda." The majority of the three-judge
District 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 any
legally significant harm to Lamont as a result of being listed was
merely a speculative possibility, and so, on this score, the
controversy was not yet ripe for adjudication. Lamont appealed from
the dismissal, and we noted probable jurisdiction. 379 U.S.
926.
Like Lamont, appellee Heilberg in No. 848, when his mail was
detained, refused to return the reply card and
Page 381 U. S. 305
instead filed a complaint in the District Court for an
injunction against enforcement of the statute. The Post Office
reacted to this complaint in the same manner as it had to Lamont's
complaint, but the District Court declined to hold that Heilberg's
action was thereby mooted. Instead, the District Court reached the
merits, and unanimously held that the statute was unconstitutional
under the First Amendment.
236 F.
Supp. 405. The Government appealed, and we noted probable
jurisdiction. 379 U.S. 997.
There is no longer even a colorable question of mootness in
these cases, for the new procedure, as described above, requires
the postal authorities to send a separate notice for each item as
it is received and the addressee to make a separate request for
each item. Under the new system, we are told, there can be no list
of persons who have manifested a desire to receive "communist
political propaganda" and whose mail will therefore go through
relatively unimpeded. The Government concedes that the changed
procedure entirely precludes any claim of mootness and leaves for
our consideration the sole question of the constitutionality of the
statute.
We conclude that the Act, as construed and applied, is
unconstitutional because it requires an official act
(
viz., returning the reply card) as a limitation on the
unfettered exercise of the addressee's First Amendment rights. As
stated by Mr. Justice Holmes in
Milwaukee 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 much
a part of free speech as the right to use our tongues. . . .
[
Footnote 3] "
Page 381 U. S. 306
We struck down in
Murdock v. Pennsylvania, 319 U.
S. 105, a flat license tax on the exercise of First
Amendment rights. A registration requirement imposed on a labor
union organizer before making a speech met the same fate in
Thomas v. Collins, 323 U. S. 516. A
municipal licensing system for those distributing literature was
held invalid in
Lovell v. City of Griffin, 303 U.
S. 444. We recently reviewed in
Harman v.
Forssenius, 380 U. S. 528, an
attempt by a State to impose a burden on the exercise of a right
under the Twenty-fourth Amendment. There, a registration was
required by all federal electors who did not pay the state poll
tax. We stated:
"For federal elections, the poll tax is abolished absolutely as
a prerequisite to voting, and no equivalent or milder substitute
may be imposed. Any material requirement imposed upon the federal
voter solely because of his refusal to waive the constitutional
immunity subverts the effectiveness of the Twenty-fourth Amendment
and must fall under its ban."
Id. p.
380 U. S.
542.
Here the Congress -- expressly restrained by the First Amendment
from "abridging" freedom of speech and of press -- is the actor.
The Act sets administrative officials astride the flow of mail to
inspect it, appraise it, write the addressee about it, and await a
response before dispatching the mail. Just as the licensing or
taxing authorities in the
Lovell, Thomas, and
Murdock cases sought to control the flow of ideas to the
public, so here federal agencies regulate the flow of mail. We do
not have here, any more than we had in
Hannegan v. Esquire,
Inc., 327 U. S. 146, any
question concerning the extent to which Congress may
Page 381 U. S. 307
classify the mail and fix the charges for its carriage. Nor do
we reach the question whether the standard here applied could pass
constitutional muster. Nor do we deal with the right of Customs to
inspect material from abroad for contraband. We rest on the narrow
ground that the addressee, in order to receive his mail, must
request in writing that it be delivered. This amounts, in our
judgment, to an unconstitutional abridgment of the addressee's
First Amendment rights. The addressee carries an affirmative
obligation 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. Their
livelihood may be dependent on a security clearance. Public
officials like schoolteachers who have no tenure might think they
would invite disaster if they read what the Federal Government says
contains the seeds of treason. Apart from them, any addressee is
likely to feel some inhibition in sending for literature which
federal officials have condemned as "communist political
propaganda." The regime of this Act is at war with the
"uninhibited, robust, and wide-open" debate and discussion that are
contemplated 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 decision
of these cases.
* Together with No. 848,
Fixa, Postmaster, San Francisco, et
al. v. Heilberg, on appeal from the United States District
Court for the Northern District of California.
[
Footnote 1]
"The term 'political propaganda' includes any oral, visual,
graphic, written, pictorial, or other communication or expression
by any person (1) which is reasonably adapted to, or which the
person disseminating the same believes will, or which he intends
to, prevail upon, indoctrinate, convert, induce, or in any other
way influence a recipient or any section of the public within the
United States with reference to the political or public interests,
policies, or relations of a government of a foreign country or a
foreign political party or with reference to the foreign policies
of 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 religious
disorder, civil riot, or other conflict involving the use of force
or violence in any other American republic or the overthrow of any
government or political subdivision of any other American republic
by 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 of
any piece of mail (39 CFR § 44.1(a)) or to request in writing a
withholding from delivery for a period not to exceed two years of
specifically described items of certain mail, including "foreign
printed matter."
Ibid. And see Schwartz, The Mail
Must Not Go Through, 11 U.C.L.A. L.Rev. 805, 847.
[
Footnote 3]
"Whatever may have been the voluntary nature of the postal
system in the period of its establishment, it is now the main
artery through which the business, social, and personal affairs of
the people are conducted and upon which depends in a greater degree
than upon any other activity of government the promotion of the
general welfare."
Pike v. Walker, 73 App.D.C. 289, 291, 121 F.2d 37, 39.
And see Gellhorn, Individual Freedom and Governmental
Restraints p. 88
et seq. (1956).
MR. JUSTICE BRENNAN, with whom Mr. Justice GOLDBERG joins,
concurring.
These might be troublesome cases if the addressees predicated
their claim for relief upon the First Amendment rights of the
senders. To succeed, the addressees
Page 381 U. S. 308
would then have to establish their standing to vindicate the
senders' constitutional rights,
cf. Dombrowski v. Pfister,
380 U. S. 479,
380 U. S. 486,
as well as First Amendment protection for political propaganda
prepared and printed abroad by or on behalf of a foreign
government,
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 own
right: they contend that the Government is powerless to interfere
with the delivery of the material because the First Amendment
"necessarily protects the right to receive it."
Martin v. City
of Struthers, 319 U. S. 141,
319 U. S. 143.
Since the decisions today uphold this contention, I join the
Court's opinion.
It is true that the First Amendment contains no specific
guarantee of access to publications. However, the protection of the
Bill of Rights goes beyond the specific guarantees to protect from
congressional abridgment those equally fundamental personal rights
necessary 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 is
such a fundamental right. The dissemination of ideas can accomplish
nothing if otherwise willing addressees are not free to receive and
consider them. It would be a barren marketplace of ideas that had
only sellers and no buyers.
Even if we were to accept the characterization of this statute
as a regulation not intended to control the content of speech, but
only incidentally limiting its unfettered exercise,
see Zemel
v. 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 this
statute "in large public interests such as would be needed to
justify a true restriction upon freedom of expression or inquiry."
Rather, the Government argues that, since an addressee taking the
trouble to return the card can receive the publication named in it,
only inconvenience and not an abridgment is involved. But
inhibition as well as prohibition against the exercise of precious
First 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. The
registration requirement which was struck down in
Thomas v.
Collins, 323 U. S. 516, was
not appreciably more burdensome. Moreover, the addressee's failure
to return this form results in nondelivery not only of the
particular publication, but also of all similar publications or
material. Thus, although the addressee may be content not to
receive the particular publication, and hence does not return the
card, the consequence is a denial of access to like publications
which he may desire to receive. In any event, we cannot sustain an
intrusion on First Amendment rights on the ground that the
intrusion is only a minor one. As the Court said in
Boyd v.
United States, 116 U. S. 616,
116 U. S.
635:
"It may be that it is the obnoxious thing in its mildest and
least repulsive form; but illegitimate and unconstitutional
practices get their first footing in that way, namely, by silent
approaches and slight deviations from legal modes of procedure.
This can only be obviated by adhering to the rule that
constitutional provisions for the security of person and property
should be liberally construed. A close and literal construction
deprives them of half their efficacy, and leads to gradual
depreciation of the right, as if it consisted more in sound than in
substance.
Page 381 U. S. 310
It is the duty of courts to be watchful for the constitutional
rights of the citizens, and against any stealthy encroachments
thereon."
The Government asserts that Congress enacted the statute in the
awareness that Communist political propaganda mailed to addressees
in the United States on behalf of foreign governments was often
offensive to the recipients and constituted a subsidy to the very
governments which bar the dissemination of publications from the
United States. But the sensibilities of the unwilling recipient are
fully safeguarded by 39 CFR § 44.1(a) (Supp.1965) under which the
Post Office will honor his request to stop delivery; the statute
under consideration, on the other hand, impedes delivery even to a
willing addressee. In the area of First Amendment freedoms,
government has the duty to confine itself to the least intrusive
regulations which are adequate for the purpose.
Cf. Butler v.
Michigan, 352 U. S. 380. The
argument that the statute is justified by the object of avoiding
the subsidization of propaganda of foreign governments which bar
American propaganda needs little comment. If the Government wishes
to withdraw a subsidy or a privilege, it must do so by means and on
terms which do not endanger First Amendment rights.
Cf. Speiser
v. Randall, supra. That the governments which originate this
propaganda themselves have no equivalent guarantees only highlights
the cherished values of our constitutional framework; it can never
justify emulating the practice of restrictive regimes in the name
of expediency.
MR. JUSTICE HARLAN concurs in the judgment of the Court on the
grounds set forth in this concurring opinion.