Title 18 U.S.C. § 1725 prohibits the deposit of unstamped
"mailable matter" in a letterbox approved by the United States
Postal Service, and violations are subject to a fine. The local
Postmaster notified appellee civic association that its practice of
delivering messages to residents by placing unstamped notices in
the letterboxes of private homes violated § 1725, and advised it
that, if it and other members of appellee council of civic
associations continued such practice, it could result in a fine.
Appellees then brought suit in Federal District Court against the
Postal Service for declaratory and injunctive relief, contending
that the enforcement of § 1725 would inhibit their communications
with local residents and would thereby deny them the freedom of
speech and press secured by the First Amendment. The District Court
ultimately declared § 1725 unconstitutional as applied to appellees
and the council's member associations and enjoined the Postal
Service from enforcing it as to them.
Held: Section 1725 does not unconstitutionally abridge
appellees' First Amendment rights, inasmuch as neither the
enactment nor the enforcement of § 1725 is geared in any way to the
content of the message sought to be placed in the letterbox. Pp.
453 U. S.
120-134.
(a) When a letterbox is designated an "authorized depository" of
the mail by the Postal Service, it becomes an essential part of the
nationwide system for the delivery and receipt of mail. In effect,
the postal customer, although he pays for the physical components
of the "authorized depository," agrees to abide by the Postal
Service's regulations in exchange for the Postal Service agreeing
to deliver and pick up his mail. A letterbox, once designated an
"authorized depository," does not at the same time transform itself
into a "public forum" of some limited nature to which the First
Amendment guarantees access to all comers. Just because it may be
somewhat more efficient for appellees to place their messages in
letterboxes does not mean that there is a First Amendment right to
do so. The First Amendment does not guarantee access to property
simply because it is owned or controlled by the Government. Pp.
453 U. S.
126-131.
Page 453 U. S. 115
(b) Congress, in exercising its constitutional authority to
develop and operate a national postal system, may properly
legislate with the generality of cases in mind, and should not be
put to the test of defending in one township after another the
constitutionality of a statute under the traditional "time, place,
and manner" analysis. If Congress and the Postal Service are to
operate as efficiently as possible an extensive system for the
delivery of mail, they must adopt regulations of a general
character having uniform applicability throughout the Nation. In
this case, Congress was legislating to promote what it considered
to be the efficiency of the Postal Service, and was not laying down
a generalized prohibition against the distribution of leaflets or
the discussion of issues in traditional public forums. Pp.
453 U. S.
133-133.
(c) While Congress may not, by its own
ipse dixit,
destroy the "public forum" status of streets and parks, a letterbox
may not properly be analogized to streets and parks. Pp.
453 U. S.
133-134.
490 F.
Supp. 157, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, BLACKMUN, and POWELL, JJ., joined.
BRENNAN, J.,
post, p.
453 U. S. 134,
and WHITE, J.,
post, p.
453 U. S. 141,
filed opinions concurring in the judgment. MARSHALL, J.,
post, p.
453 U. S. 142,
and STEVENS, J.,
post, p.
453 U. S. 152,
filed dissenting opinions.
JUSTICE REHNQUIST delivered the opinion of the Court.
We noted probable jurisdiction to decide whether the United
States District Court for the Southern District of
Page 453 U. S. 116
New York correctly determined that 18 U.S.C. § 1725, which
prohibits the deposit of unstamped "mailable matter" in a letterbox
approved by the United States Postal Service, unconstitutionally
abridges the First Amendment rights of certain civic associations
in Westchester County, N.Y. 449 U.S. 1076 (1981). Jurisdiction of
this Court rests on 28 U.S.C.§ 1252.
I
Appellee Council of Greenburgh Civic Associations (Council) is
an umbrella organization for a number of civic groups in
Westchester County, N.Y. Appellee Saw Mill Valley Civic Association
is one of the Council's member groups. In June, 1976, the
Postmaster in White Plains, N.Y. notified the Chairman of the Saw
Mill Valley Civic Association that the association's practice of
delivering messages to local residents by placing unstamped notices
and pamphlets in the letterboxes of private homes was in violation
of 18 U.S.C. § 1725, which provides:
"Whoever knowingly and willfully deposits any mailable matter
such as statements of accounts, circulars, sale bills, or other
like matter, on which no postage has been paid, in any letter box
established, approved, or accepted by the Postal Service for the
receipt or delivery of mail matter on any mail route with intent to
avoid payment of lawful postage thereon, shall for each such
offense be fined not more than $300."
Saw Mill Valley Civic Association and other Council members were
advised that, if they continued their practice of placing unstamped
notices in the letterboxes of private homes, it could result in a
fine not to exceed $300.
In February, 1977, appellees filed this suit in the District
Court for declaratory and injunctive relief from the Postal
Service's threatened enforcement of § 1725. Appellees contended
that the enforcement of § 1725 would inhibit their
Page 453 U. S. 117
communication with residents of the town of Greenburgh and would
thereby deny them the freedom of speech and freedom of the press
secured by the First Amendment.
The District Court initially dismissed the complaint for failure
to state a claim on which relief could be granted.
448 F.
Supp. 159 (SDNY 1978). On appeal, however, the Court of Appeals
for the Second Circuit reversed and remanded the case to the
District Court to give the parties
"an opportunity to submit proof as to the extent of the handicap
to communication caused by enforcement of the statute in the area
involved, on the one hand, and the need for the restriction for
protection of the mails, on the other."
586 F.2d 935, 936 (1978). In light of this language, it was not
unreasonable for the District Court to conclude that it had been
instructed to "try" the statute, much as more traditional issues of
fact are tried by a court, and that is what the District Court
proceeded to do.
In the proceedings on remand, the Postal Service offered three
general justifications for § 1725: (1) that § 1725 protects mail
revenues; (2) that it facilitates the efficient and secure delivery
of the mails; and (3) that it promotes the privacy of mail patrons.
More specifically, the Postal Service argued that elimination of §
1725 could cause the overcrowding of mailboxes due to the deposit
of civic association notices. Such overcrowding would, in turn,
constitute an impediment to the delivery of the mails. Testimony
was offered that § 1725 aided the investigation of mail theft by
restricting access to letterboxes, thereby enabling postal
investigators to assume that anyone other than a postal carrier or
a householder who opens a mailbox may be engaged in the violation
of the law. On this point, a postal inspector testified that 10 of
the arrests made under the external mail theft statute, 18 U.S.C. §
1708, resulted from surveillance-type operations which benefit from
enforcement of § 1725. Testimony was also introduced that § 1725
has been
Page 453 U. S. 118
particularly helpful in the investigation of thefts of
government benefit checks from letterboxes. [
Footnote 1]
The Postal Service introduced testimony that it would incur
additional expense if § 1725 were either eliminated or held to be
inapplicable to civic association materials. If delivery in
mailboxes were expanded to permit civic association circulars --
but not other types of nonmailable matter such as commercial
materials -- mail carriers would be obliged to remove and examine
individual unstamped items found in letterboxes to determine if
their deposit there was lawful. Carriers would also be confronted
with a larger amount of unstamped mailable matter which they would
be obliged to separate from outgoing mail. The extra time resulting
from these additional activities, when computed on a nationwide
basis, would add substantially to the daily cost of mail
delivery.
The final justification offered by the Postal Service for § 1725
was that the statute provided significant protection for the
privacy interests of postal customers. Section 1725 provides postal
customers the means to send and receive mails without fear of their
correspondence becoming known to members of the community.
Page 453 U. S. 119
The Postal Service also argued at trial that the enforcement of
§ 1725 left appellees with ample alternative means of delivering
their message. The appellees can deliver their messages either by
paying postage, by hanging their notices on doorknobs, by placing
their notices under doors or under a doormat, by using newspaper or
nonpostal boxes affixed to houses or mailbox posts, by telephoning
their constituents, by engaging in person-to-person delivery in
public areas, by tacking or taping their notices on a door post or
letterbox post, or by placing advertisements in local newspapers. A
survey was introduced comparing the effectiveness of certain of
these alternatives which arguably demonstrated that between 70-75%
of the materials placed under doors or doormats or hung from
doorknobs were found by the homeowner, whereas approximately 82% of
the items placed in letterboxes were found. This incidental
difference, it was argued, cannot be of constitutional
significance.
The District Court found the above arguments of the Postal
Service insufficient to sustain the constitutionality of § 1725, at
least as applied to these appellees.
490 F.
Supp. 157 (1980). Relying on the earlier opinion of the Court
of Appeals, the District Court noted that the legal standard it was
to apply would give the appellees relief if the curtailment of
their interest in free expression resulting from enforcement of §
1725 substantially outweighed the Government's interests in the
effective delivery and protection of the mails. The District Court
concluded that the appellees had satisfied this standard.
The District Court based its decision on several findings. The
court initially concluded that, because civic associations
generally have small cash reserves and cannot afford the applicable
postage rates, mailing of the appellees' message would be
financially burdensome. Similarly, because of the relatively slow
pace of the mail, use of the mails at certain times would impede
the appellees' ability to communicate quickly with their
constituents. Given the widespread awareness
Page 453 U. S. 120
of the high cost and limited celerity of the mails, the court
probably could have taken judicial notice of both of these
findings.
The court also found that none of the alternative means of
delivery suggested by the Postal Service were
"nearly as effective as placing civic association flyers in
approved mailboxes; so that restriction on the [appellees']
delivery methods to such alternatives also constitutes a serious
burden on [appellees'] ability to communicate with their
constituents."
490 F. Supp. at 160. [
Footnote
2] Accordingly, the District Court declared § 1725
unconstitutional as applied to appellees and the Council's member
associations, and enjoined the Postal Service from enforcing it as
to them.
II
The present case is a good example of Justice Holmes' aphorism
that "a page of history is worth a volume of logic."
Page 453 U. S. 121
New York Trust Co. v. Eisner, 256 U.
S. 345,
256 U. S. 349
(1921). For only by review of the history of the postal system and
its present statutory and regulatory scheme can the constitutional
challenge to 1725 be placed in its proper context.
By the early 18th century, the posts were made a sovereign
function in almost all nations because they were considered a
sovereign necessity. Government without communication is
impossible, and until the invention of the telephone and telegraph,
the mails were the principal means of communication. Kappel
Commission, Toward Postal Excellence, Report of the President's
Commission on Postal Organization 47 (Comm.Print 1968). Little
progress was made in developing a postal system in Colonial America
until the appointment of Benjamin Franklin, formerly Postmaster at
Philadelphia, as Deputy Postmaster General for the American
Colonies in 1753. In 1775, Franklin was named the first Postmaster
General by the Continental Congress, and, because of the trend
toward war, the Continental Congress undertook its first serious
effort to establish a secure mail delivery organization in order to
maintain communication between the States and to supply revenue for
the Army. D. Adie, An Evaluation of Postal Service Wage Rates 2
(American Enterprise Institute, 1977).
Given the importance of the post to our early Nation, it is not
surprising that, when the United States Constitution was ratified
in 1789, Art. I, § 8, provided Congress the power "To establish
Post Offices and post Roads" and "To make all Laws which shall be
necessary and proper" for executing this task. The Post Office
played a vital yet largely unappreciated role in the development of
our new Nation. Stagecoach trails which were improved by the
Government to become post roads quickly became arteries of
commerce. Mail contracts were of great assistance to the early
development of new means of transportation such as canals,
railroads, and eventually airlines. Kappel Commission, Toward
Page 453 U. S. 122
Postal Excellence,
supra, at 46. During this developing
stage, the Post Office was to many citizens situated across the
country the most visible symbol of national unity.
Ibid.
The growth of postal service over the past 200 years has been
remarkable. Annual revenues increased from less than $40 million in
1790 to close to $200 million in 1829, when the Postmaster General
first became a member of the Cabinet. However, expenditures began
exceeding revenues as early as the 1820's, as the postal structure
struggled to keep pace with the rapid growth of the country
westward. Because of this expansion, delivery costs to the South
and West raised average postal costs nationally. To prevent
competition from private express services, Congress passed the
Postal Act of 1845, which prohibited competition in letter mail and
established what is today referred to as the "postal monopoly."
More recently, to deal with the problems of increasing deficits
and shortcomings in the overall management and efficiency of the
Post Office, Congress passed the Postal Reorganization Act of 1970.
This Act transformed the Post Office Department into a
Government-owned corporation called the United States Postal
Service. The Postal Service today is among the largest employers in
the world. with a workforce nearing 700,000 processing 106.3
billion pieces of mail each year. Ann. Rep. of the Postmaster
General 2, 11 (1980). The Postal Service is the Nation's largest
user of floor space, and the Nation's largest nonmilitary purchaser
of transport, operating more than 200,000 vehicles. Its rural
carriers alone travel over 21 million miles each day, and its city
carriers walk or drive another million miles a day. D. Adie, An
Evaluation of Postal Service Wage Rates,
supra, at 1. Its
operating budget in fiscal 1980 exceeded $17 billion. Ann. Rep. of
the Postmaster General,
supra, at 2.
Not surprisingly, Congress has established a detailed statutory
and regulatory scheme to govern this country's vast postal system.
See 39 U.S.C. § 401
et seq. and the Domestic Mail
Manual (DMM), which has been incorporated by
Page 453 U. S. 123
reference in the Code of Federal Regulations, 39 CFR pt. 3
(1980). Under 39 U.S.C. 403(a), the Postal Service is directed to
"plan, develop, promote and provide adequate and efficient postal
services at fair and reasonable rates and fees." Section 403(b)(1)
similarly directs the Postal Service "to maintain an efficient
system of collection, sorting. and delivery of the mail
nationwide," and under 39 U.S.C. § 401, the Postal Service is
broadly empowered to adopt rules and regulations designed to
accomplish the above directives.
Acting under this authority, the Postal Service has provided by
regulation that both urban and rural postal customers must provide
appropriate mail receptacles meeting detailed specifications
concerning size, shape, and dimensions. DMM 155.41, 155.43,
156.311, 156.1, and 156.54. By regulation, the Postal Service has
also provided that
"[e]very letter box or other receptacle intended or used for the
receipt or delivery of mail on any city delivery route, rural
delivery route, highway contract route, or other mail route is
designated an authorized depository for mail within the meaning of
18 U.S.C. [§] 1725."
DMM 151.1. A letterbox provided by a postal customer which meets
the Postal Service's specifications not only becomes part of the
Postal Service's nationwide system for the receipt and delivery of
mail, but is also afforded the protection of the federal statutes
prohibiting the damaging or destruction of mail deposited therein.
See 18 U.S.C. §§ 1702, 1705, and 1708.
It is not without irony that this elaborate system of
regulation, coupled with the historic dependence of the Nation on
the Postal Service, has been the causal factor which led to this
litigation. For it is because of the very fact that virtually every
householder wishes to have a mailing address and a receptacle in
which mail sent to that address will be deposited by the Postal
Service that the letterbox or other mail receptacle is attractive
to those who wish to convey messages within a locality, but do not
wish to purchase the stamp or pay such other fee as would permit
them to be transmitted
Page 453 U. S. 124
by the Postal Service. To the extent that the "alternative
means" eschewed by the appellees and found to be inadequate
alternatives by the District Court are in fact so, it is in no
small part attributable to the fact that the typical mail patron
first looks for written communications from the "outside world" not
under his doormat, or inside the screen of his front door, but in
his letterbox. Notwithstanding the increasing frequency of
complaints about the rising cost of using the Postal Service, and
the uncertainty of the time which passes between mailing and
delivery, written communication making use of the Postal Service is
so much a fact of our daily lives that the mail patron watching for
the mailtruck, or the jobholder returning from work looking in his
letterbox before he enters his house, are commonplaces of our
society. Indeed, according to the appellees, the receptacles for
mailable matter are so superior to alternative efforts to
communicate printed matter that all other alternatives for deposit
of such matter are inadequate substitutes for postal
letterboxes.
Postal Service regulations, however, provide that letterboxes
and other receptacles designated for the delivery of mail "shall be
used exclusively for matter which bears postage." DMM 151.2.
[
Footnote 3] Section 1725
merely reinforces this
Page 453 U. S. 125
regulation by prohibiting, under pain of criminal sanctions, the
deposit into a letterbox of any mailable matter on which postage
has not been paid. The specific prohibition contained in § 1725 is
also repeated in the Postal Service regulations at DMM 146.21.
Section 1725 was enacted in 1934
"to curb the practice of depositing statements of account,
circulars, sale bills, etc., in letter boxes established and
approved by the Postmaster General for the receipt or delivery of
mail matter without payment of postage thereon by making this a
criminal offense."
H.R.Rep. No. 709, 73d Cong., 2d Sess., 1 (1934). Both the Senate
and House Committees on Post Offices and Post Roads explained the
principal motivation for § 1725 as follows:
"Business concerns, particularly utility companies, have within
the last few years adopted the practice of having their circulars,
statements of account, etc., delivered by private messenger, and
have used as receptacles the letter boxes erected for the purpose
of holding mail matter and approved by the Post Office Department
for such purpose. This practice is depriving the Post Office
Department of considerable revenue on matter which would otherwise
go through the mails, and at the same time is resulting in the
stuffing of letter boxes with extraneous matter."
Ibid.; S.Rep. No. 742, 73d Cong., 2d Sess., 1
(1934).
Nothing in any of the legislation or regulations recited above
requires any person to become a postal customer. Anyone is free to
live in any part of the country without having letters or packages
delivered or received by the Postal Service by simply failing to
provide the receptacle for those letters and packages which the
statutes and regulations require. Indeed, the provision for
"General Delivery" in most post offices enables a person to take
advantage of the facilities
Page 453 U. S. 126
of the Postal Service without ever having provided a receptacle
at or near his premises conforming to the regulations of the Postal
Service. What the legislation and regulations do require is that
those persons who do wish to receive and deposit their mail at
their home or business do so under the direction and control of the
Postal Service.
III
As early as the last century, this Court recognized the broad
power of Congress to act in matters concerning the posts:
"The power vested in Congress 'to establish post-offices and
post-roads' has been practically construed, since the foundation of
the government, to authorize not merely the designation of the
routes over which the mail shall be carried, and the offices where
letters and other documents shall be received to be distributed or
forwarded, but the carriage of the mail, and all measures necessary
to secure its safe and speedy transit, and the prompt delivery of
its contents. The validity of legislation describing what should be
carried, and its weight and form, and the charges to which it
should be subjected, has never been questioned. . . . The power
possessed by Congress embraces the regulation of the entire Postal
System of the country. The right to designate what shall be carried
necessarily involves the right to determine what shall be
excluded."
Ex parte Jackson, 96 U. S. 727,
96 U. S. 732
(1878).
However broad the postal power conferred by Art. I may be, it
may not, of course, be exercised by Congress in a manner that
abridges the freedom of speech or of the press protected by the
First Amendment to the Constitution. In this case, we are
confronted with the appellees' assertion that the First Amendment
guarantees them the right to deposit, without payment of postage,
their notices, circulars, and flyers in
Page 453 U. S. 127
letterboxes which have been accepted as authorized depositories
of mail by the Postal Service. [
Footnote 4]
In addressing appellees' claim, we note that we are not here
confronted with a regulation which in any way prohibits individuals
from going door-to-door to distribute their message or which vests
unbridled discretion in a governmental official to decide whether
or not to permit the distribution to occur. We are likewise not
confronted with a regulation which in any way restricts the
appellees' right to use the mails. The appellees may mail their
civic notices in the ordinary fashion. and the Postal Service will
treat such notices identically with all other mail without regard
to content. There is no claim that the Postal Service treats civic
notices, because of their content, any differently from the way it
treats any of the other mail it processes. Admittedly, if appellees
do choose to mail their notices, they will be required to pay
postage in a manner identical to other Postal Service patrons, but
appellees do not challenge the imposition of a fee for the services
provided by the Postal Service. [
Footnote 5]
Page 453 U. S. 128
What is at issue in this case is solely the constitutionality of
an Act of Congress which makes it unlawful for persons to use,
without payment of a fee, a letterbox which has been designated an
"authorized depository" of the mail by the Postal Service. As has
been previously explained, when a letterbox is so designated, it
becomes an essential part of the Postal Service's nationwide system
for the delivery and receipt of mail. In effect, the postal
customer, although he pays for the physical components of the
"authorized depository," agrees to abide by the Postal Service's
regulations in exchange for the Postal Service agreeing to deliver
and pick up his mail.
Appellees' claim is undermined by the fact that a letterbox,
once designated an "authorized depository," does not at the same
time undergo a transformation into a "public forum" of some limited
nature to which the First Amendment guarantees access to all
comers. There is neither historical nor constitutional support for
the characterization of a letterbox as a public forum. Letterboxes
are an essential part of the nationwide system for the delivery and
receipt of
Page 453 U. S. 129
mail, and, since 1934, access to them has been unlawful except
under the terms and conditions specified by Congress and the Postal
Service. As such, it is difficult to accept appellees' assertion
that, because it may be somewhat more efficient to place their
messages in letterboxes, there is a First Amendment right to do so.
The underlying rationale of appellees' argument would seem to
foreclose Congress or the Postal Service from requiring in the
future that all letterboxes contain locks with keys being available
only to the homeowner and the mail carrier. Such letterboxes are
presently found in many apartment buildings, and we do not think
their presence offends the First Amendment to the United States
Constitution. Letterboxes which lock, however, have the same effect
on civic associations that wish access to them as does the
enforcement of § 1725. Such letterboxes also accomplish the same
purpose -- that is, they protect mail revenues while at the same
time facilitating the secure and efficient delivery of the mails.
We do not think the First Amendment prohibits Congress from
choosing to accomplish these purposes through legislation, as
opposed to lock and key.
Indeed, it is difficult to conceive of any reason why this Court
should treat a letterbox differently for First Amendment access
purposes than it has in the past treated the military base in
Greer v. Spock, 424 U. S. 828
(1976), the jail or prison in
Adderley v. Florida,
385 U. S. 39
(1966), and
Jones v. North Carolina Prisoners' Union,
433 U. S. 119
(1977), or the advertising space made available in city rapid
transit cars in
Lehman v. City of Shaker Heights,
418 U. S. 298
(1974). In all these cases, this Court recognized that the First
Amendment does not guarantee access to property simply because it
is owned or controlled by the government. In
Greer v. Spock,
supra, the Court cited approvingly from its earlier opinion in
Adderley v. Florida, supra, wherein it explained that
"'[t]he State, no less than a private owner of
Page 453 U. S. 130
property, has power to preserve the property under its control
for the use to which it is lawfully dedicated.'"
424 U.S. at
424 U. S. 836.
[
Footnote 6] This Court has not
hesitated in the past to hold invalid
Page 453 U. S. 131
laws which it concluded granted too much discretion to public
officials as to who might and who might not solicit individual
homeowners, or which too broadly limited the access of persons to
traditional First Amendment forums such as the public streets and
parks.
See, e.g., Village of Schaumburg v. Citizens for a
Better Environment, 444 U. S. 620
(1980);
Hague v. CIO, 307 U. S. 496
(1939);
Schneider v. State, 308 U.
S. 147 (1939);
Martin v. City of Struthers,
319 U. S. 141
(1943);
Lovell v. City of Griffin, 303 U.
S. 444 (1938); and
Police Department of Chicago v.
Mosley, 408 U. S. 92
(1972). But it is a giant leap from the traditional "soapbox" to
the letterbox designated as an authorized depository of the United
States mails, and we do not believe the First Amendment requires us
to make that leap. [
Footnote
7]
Page 453 U. S. 132
IV
It is thus unnecessary for us to examine § 1725 in the context
of a "time, place, and manner" restriction on the use of the
traditional "public forums" referred to above. This Court has long
recognized the validity of reasonable time, place, and manner
regulations on such a forum, so long as the regulation is
content-neutral, serves a significant governmental interest, and
leaves open adequate alternative channels for communication.
See, e.g., Consolidated Edison Co. v. Public Service
Comm'n, 447 U. S. 530,
447 U. S.
535-536 (1980);
Linmark Associates, Inc. v.
Willingboro, 431 U. S. 85,
431 U. S. 93
(1977);
Virginia Pharmacy Board v. Virginia Citizens Consumer
Council, Inc., 425 U. S. 748,
425 U. S. 771
(1976);
Grayned v. City of Rockford, 408 U.
S. 104 (1972);
Cox v. New Hampshire,
312 U. S. 569
(1941). But since a letterbox is not traditionally such a "public
forum," the elaborate analysis engaged in by the District Court
was, we think, unnecessary. To be sure, if a governmental
regulation is based on the content of the speech or the message,
that action must be scrutinized more carefully to ensure that
communication has not been prohibited "
merely because public
officials disapprove the speaker's view.'" Consolidated Edison
Co. v. Public Service Comm'n, supra, at 446 U. S. 536,
quoting Niemotko v. Maryland, 340 U.
S. 268, 340 U. S. 282
(1951) (Frankfurter, J., concurring in result). But in this case,
there simply is no question that § 1725 does not regulate speech on
the basis of content. While the analytical line between a
regulation of the "time, place, and manner" in which First
Amendment rights may be exercised in a traditional public forum,
and the question of whether a particular piece of personal or real
property owned or controlled by the government is in fact a "public
forum" may blur at the edges, we think the line is nonetheless a
workable one. We likewise think that Congress may, in exercising
its authority to develop and operate a national postal system,
properly legislate with the generality of cases in mind,
and
Page 453 U. S. 133
should not be put to the test of defending in one township after
another the constitutionality of a statute under the traditional
"time place, and manner" analysis. This Court has previously
acknowledged that the
"guarantees of the First Amendment have never meant 'that people
who want to propagandize protests or views have a constitutional
right to do so whenever and however and wherever they please.'"
Greer v. Spock, 424 U.S. at
424 U. S. 836,
quoting
Adderley v. Florida, 385 U.S. at
385 U. S. 48. If
Congress and the Postal Service are to operate as efficiently as
possible a system for the delivery of mail which serves a Nation
extending from the Atlantic Ocean to the Pacific Ocean, from the
Canadian boundary on the north to the Mexican boundary on the
south, it must obviously adopt regulations of general character
having uniform applicability throughout the more than three million
square miles which the United States embraces. In so doing, the
Postal Service's authority to impose regulations cannot be made to
depend on all of the variations of climate, population, density,
and other factors that may vary significantly within a distance of
less than 100 miles.
V
From the time of the issuance of the first postage stamp in this
country at Brattleboro, Vt., in the fifth decade of the last
century, through the days of the governmentally subsidized "Pony
Express" immediately before the Civil War, and through the less
admirable era of the Star Route Mail Frauds in the latter part of
that century, Congress has actively exercised the authority
conferred upon it by the Constitution "to establish Post Offices
and Post Roads" and "to make all laws which shall be necessary and
proper" for executing this task. While Congress, no more than a
suburban township, may not by its own
ipse dixit destroy
the "public forum" status of streets and parks which have
historically been public forums, we think that, for the reasons
stated, a letterbox may not properly be analogized to streets and
parks.
Page 453 U. S. 134
It is enough for our purposes that neither the enactment nor the
enforcement of § 1725 was geared in any way to the content of the
message sought to be placed in the letterbox. The judgment of the
District Court is accordingly
Reversed.
[
Footnote 1]
On this point, a postal investigator testified that the Postal
Service tries to engage in physical surveillance on the one or two
days a month that large numbers of government checks are delivered.
The investigator testified that, without § 1725,
"we would have many more people having access to the mailboxes
or being in the vicinity of the mailboxes. This type of activity
could hinder our surveillances, in that we would not be sure if a
person we see approaching a mailbox is a subject or has a
legitimate reason for being there."
App. 160. The investigator also stated that the Postal Service
receives
"many phone calls from concerned citizens who may report that
someone has been seen in the area of their mailboxes. We try to
respond to that area if at all possible to determine who that
individual may be."
Ibid. The Postal Service also receives assistance from
local police who may be doing a similar type of surveillance and
who would have "a difficult time identifying who it is exactly
going into mailboxes. . . ."
Id. at 161.
[
Footnote 2]
The District Court reasoned that the alternative methods
suggested by the Postal Service were inadequate because they can
result in the civic notices either being lost or damaged as a
result of wind, rain, or snow. Weatherstripping on doors may
prevent the flyers from being placed under the door. Use of plastic
bags for protection of the civic notices is both time-consuming and
"relatively expensive for a small volunteer organization. . . ."
490 F. Supp. at 160. Deposit of materials outside may cause litter
problems as well as arouse resentment among residents because it
informs burglars that no one is home. Alternative methods which
depend on reaching the occupant personally are less effective
because their success depends on the mere chance that the person
called or visited will be home at any given time. The court also
found that enforcement of § 1725 against civic associations
"does not appear so necessary or contributive to enforcement of
the anti-theft, anti-fraud or Private Express statutes that this
interest outweighs the [appellees'] substantial interest in
expedient and economical communication with their
constituents."
Id. at 163. Based on the above, the District Court
concluded that
"the cost to free expression of imposing this burden on
[appellees] outweighs the showing made by the Postal Service of its
need to enforce the statute to promote effective delivery and
protection of the mails."
Id. at 162.
[
Footnote 3]
There appear to be at least two minor exceptions to this
regulation. DMM 156.58 provides that
"publishers of newspapers regularly mailed as second-class mail
may, on Sundays and national holidays only, place copies of the
Sunday or holiday issues in the rural and highway contract route
boxes of subscribers, with the understanding that copies will be
removed from the boxes before the next day on which mail deliveries
are scheduled."
This particular exception is designed to protect mail revenues
by encouraging newspapers to use second-class mail for delivery of
their papers. The exception allows distributors to deliver their
papers in letterboxes only under certain conditions and on certain
days when mail service is unavailable. A second exception to the
requirement that only mail which bears postage may be placed in
letterboxes is contained in DMM 156.4, which authorizes rural
postal customers to leave unstamped mail in letterboxes when they
also leave money for postage.
[
Footnote 4]
We reject appellees' additional assertion raised below that 18
U.S.C. § 1725 cannot be applied to them because it was intended to
bar the deposit of commercial materials only. The statute on its
face bars the deposit of "
any mailable matter" (emphasis
added) without proper postage, and, as more fully explained by the
District Court in its initial opinion rejecting this contention,
the legislative history makes clear that both Congress and the
Postal Service understood the statute would apply to noncommercial,
as well as commercial, materials. 448 F. Supp. at 160-162.
[
Footnote 5]
JUSTICE BRENNAN, concurring in the result, quotes the
oft-repeated aphorism of Justice Holmes, dissenting, in
United
States ex rel. Milwaukee Social Democratic Pub. Co. v.
Burleson, 255 U. S. 407,
255 U. S. 437
(1921), that
"[t]he 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, and it
would take very strong language to convince me that Congress ever
intended to give such a practically despotic power to any one
man."
JUSTICE BRENNAN also quoted this aphorism in his opinion for the
Court in
Blount v. Rizzi, 400 U.
S. 410,
400 U. S. 416
(1971), a case dealing with the Postmaster General's authority to
prevent distributions of obscene matter, which has little, if any,
relation to the present case, because no one contends that
appellees' circulars are obscene. JUSTICE BRENNAN, however, does
not refer to the dissenting opinion of Justice Brandeis in
Burleson (with respect to which Justice Holmes said "I
agree in substance with his view." 255 U.S. at
255 U. S.
436). There, Justice Brandeis goes into a more detailed
analysis of the relationship of the mails to the prohibitions of
the First Amendment, and states:
"The Government might, of course, decline altogether to
distribute newspapers; or it might decline to carry any at less
than the cost of service; and it would not thereby abridge the
freedom of the press, since, to all papers, other means of
transportation would be left open."
Id. at
255 U. S. 431.
It seems to us that that is just what the Postal Service here has
done: it has by no means declined to distribute the leaflets which
appellees seek to have deposited in mailboxes, but has simply
insisted that the appellees pay the same postage that any other
circular in its class would have to bear. Thus, neither the dissent
of Justice Brandeis nor of Justice Holmes in
Burleson
supports JUSTICE BRENNAN s position.
[
Footnote 6]
JUSTICE BRENNAN argues that a letterbox is a public forum
because
"the mere deposit of mailable matter without postage is not
'basically incompatible' with the 'normal activity' for which a
letterbox is used,
i.e., deposit of mailable matter with
proper postage or mail delivery by the Postal Service. On the
contrary, the mails and the letterbox are specifically used for the
communication of information and ideas, and thus surely constitute
a public forum appropriate for the exercise of First Amendment
rights subject to reasonable time, place, and manner restrictions
such as those embodied in § 1725. . . ."
Post at
453 U.S.
137-138. JUSTICE BRENNAN's analysis assumes that, simply
because an instrumentality "is used for the communication of ideas
or information," it thereby becomes a public forum. Our cases
provide no support for such a sweeping proposition. Certainly a
bulletin board in a cafeteria at Fort Dix is "specifically used for
the communication of information and ideas," but such a bulletin
board is no more a "public forum" than are the street corners and
parking lots found not to be so at the same military base.
Greer v. Spock, 424 U. S. 828
(1976). Likewise, the advertising space made available in public
transportation in the city of Shaker Heights is "specifically used
for the communication of information and ideas," but that fact
alone was not sufficient to transform that space into a "public
forum" for First Amendment purposes.
Lehman v. City of Shaker
Heights, 418 U. S. 298
(1974). In fact, JUSTICE BLACKMUN recognized in
Lehman
that:
"Were we to hold to the contrary, display cases in public
hospitals, libraries, office buildings, military compounds, and
other public facilities immediately would become Hyde Parks open to
every would-be pamphleteer and politician. This the Constitution
does not require."
Id. at
418 U. S.
304.
For the reasons we have stated at length in our opinion, we
think the appellees' First Amendment activities are wholly
incompatible with the maintenance of a nationwide system for the
safe and efficient delivery of mail. The history of the postal
system and the role the letterbox serves within that system support
this conclusion, and even JUSTICE BRENNAN acknowledges that a
"significant governmental interest" is advanced by the restriction
imposed by § 1725.
Post at
453 U. S.
135.
[
Footnote 7]
JUSTICE MARSHALL in his dissent,
post at
453 U. S. 143,
states that he disagrees
"with the Court's assumption that, if no public forum is
involved, the only First Amendment challenges to be considered are
whether the regulation is content-based . . . and reasonable. . .
."
The First Amendment prohibits Congress from "abridging freedom
of speech, or of the press," and its ramifications are not confined
to the "public forum" first noted in
Hague v. CIO,
307 U. S. 496
(1939). What we hold is the principle reiterated by cases such as
Adderley v. Florida, 385 U. S. 39
(1966), and
Greer v. Spock, supra, that property owned or
controlled by the government which is not a public forum may be
subject to a prohibition of speech, leafleting, picketing, or other
forms of communication without running afoul of the First
Amendment. Admittedly, the government must act reasonably in
imposing such restrictions,
Jones v. North Carolina Prisoners'
Union, 433 U. S. 119,
433 U. S.
130-131 (1977), and the prohibition must be
content-neutral. But, for the reasons stated in our opinion, we
think it cannot be questioned that § 1725 is both a reasonable and
content-neutral regulation.
Even JUSTICE MARSHALL's dissent recognizes that the Government
may defend the regulation here on a ground other than simply a
"time, place, and manner" basis. For example, he says in dissent,
post at
453 U. S.
143:
"The question, then, is whether this statute burdens any First
Amendment rights enjoyed by appellees. If so, it must be determined
whether this burden is justified by a significant governmental
interest substantially advanced by the statute."
We think § 1725 satisfies even the test articulated by JUSTICE
MARSHALL.
JUSTICE BRENNAN, concurring in the judgment.
I concur in the judgment, but not in the Court's opinion. I
believe the Court errs in not determining whether § 1725 is a
reasonable time, place, and manner restriction on appellees'
exercise of their First Amendment rights, as urged by the
Government, and in resting its judgment instead on the conclusion
that a letterbox is not a public forum. In my view, this conclusion
rests on an improper application of the Court's precedents, and
ignores the historic role of the mails as a national medium of
communication.
I
Section 1725 provides:
"Whoever knowingly and willfully deposits any mailable matter
such as statements of accounts, circulars, sale bills, or other
like matter, on which no postage has been paid, in any letter box
established, approved, or accepted by the Postal Service for the
receipt or delivery of mail matter on any mail route with intent to
avoid payment of lawful postage thereon, shall for each such
offense be fined not more than $300."
18 U.S.C. § 1725. Unquestionably, § 1725 burdens in some measure
the First Amendment rights of appellees who seek to "communicate
ideas, positions on local issues, and civic information to their
constituents" through delivery of circulars door-to-door.
490 F.
Supp. 157,
319 U. S. 162
(1980).
See Martin v. City of Struthers, 319 U.
S. 141,
319 U. S.
146-147 (1943). The statute requires appellees either to
pay postage to obtain access to the postal system, which they
assert they are unable to do, or to deposit
Page 453 U. S. 135
their materials in places other than the letterbox, which they
contend is less effective than deposit in the letterbox.
Despite the burden on appellees' rights, I conclude that the
statute is constitutional because it is a reasonable time, place,
and manner regulation.
See Schad v. Mount Ephraim,
452 U. S. 61,
452 U. S. 74-77
(1981);
Consolidated Edison Co. v. Public Service Comm'n,
447 U. S. 530,
447 U. S.
535-536 (1980);
Linmark Associates, Inc. v.
Willingboro, 431 U. S. 85,
431 U. S. 93
(1977);
Grayned v. City of Rockford, 408 U.
S. 104,
408 U. S.
115-116 (1972). First, § 1725 is content-neutral because
it is not directed at the content of the message appellees seek to
convey, but applies equally to all mailable matter.
See
Consolidated Edison Co. v. Public Service Comm'n, supra, at
447 U. S. 536;
Erznoznik v. City of Jacksonville, 422 U.
S. 205,
422 U. S.
209-211 (1975);
Police Department of Chicago v.
Mosley, 408 U. S. 92,
408 U. S. 95
(1972).
Second, the burden on expression advances a significant
governmental interest -- preventing loss of mail revenues. The
District Court's finding that the "failure to enforce the statute
as to [appellees] would [not] result in a
substantial loss
of revenue" may be true,
490 F.
Supp. 157, 163 (emphasis added), but that conclusion overlooks
the obvious cumulative effect that the District Court's ruling
would have if applied across the country. Surely, the Government is
correct when it argues that the Postal Service
"is not required to make a case-by-case showing of a compelling
need for the incremental revenue to be realized from charging
postage to each organization or individual who desires to use the
postal system to engage in expression protected by the First
Amendment."
Reply Brief for Appellant 8.
Third, there are "ample alternative channels for communication."
Consolidated Edison Co. v. Public Service Comm'n, 447 U.S.
at
447 U. S. 535.
Appellees may, for example, place their circulars under doors or
attach them to doorknobs. Simply because recipients may find 82% of
materials left in the letterbox, but only 70-75% of materials
otherwise left at the residence, is not a sufficient reason to
conclude that alternative
Page 453 U. S. 136
means of delivery are not "ample."
Ibid.; see ante at
453 U. S. 120,
and n. 2.
II
The Court declines to analyze § 1725 as a time. place, and
manner restriction. Instead, it concludes that a letterbox is not a
public forum.
Ante at
453 U. S. 128.
Thus, the Court states that
"it is difficult to conceive of any reason why this Court should
treat a letterbox differently for First Amendment access purposes
than it has in the past treated the military base in
Greer v.
Spock, 424 U. S. 828 (1976), the jail
or prison in
Adderley v. Florida, 385 U. S. 39
(1966), and
Jones v. North Carolina Prisoners' Union,
433 U. S.
119 (1977), or the advertising space made available in
city rapid transit cars in
Lehman v. City of Shaker
Heights, 418 U. S. 298 (1974)."
Ante at
453 U. S. 129.
I believe that the Court's conclusion ignores the proper method of
analysis in determining whether property owned or directly
controlled by the Government is a public forum. Moreover, even if
the Court were correct that a letterbox is not a public forum, the
First Amendment would still require the Court to determine whether
the burden on appellees' exercise of their First Amendment rights
is supportable as a reasonable time, place, and manner
restriction.
A
For public forum analysis,
"[t]he crucial question is whether the manner of expression is
basically incompatible with the normal activity of a particular
place at a particular time."
Grayned v. City of Rockford, supra, at
408 U. S. 116.
We have often quoted Justice Holmes' observation that 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. . . .'"
Blount v. Rizzi, 400 U. S. 410,
400 U. S. 416
(1971), and
Lamont v. Postmaster General, 381 U.
S. 301,
381 U. S. 305
(1965), quoting
United States
ex
Page 453 U. S. 137
rel. Milwaukee Social Democratic Pub. Co. v. Burleson,
255 U. S. 407,
255 U. S. 437
(1921) (Holmes, J. dissenting). [
Footnote 2/1] Our cases have recognized generally that
public properties are appropriate fora for exercise of First
Amendment rights.
See e.g., Tinker v. Des Moines School
District, 393 U. S. 503,
393 U. S. 512
(1969);
Brown v. Louisiana, 383 U.
S. 131,
383 U. S.
139-140,
383 U. S. 142
(1966) (plurality opinion);
Cox v. Louisiana, 379 U.
S. 536,
379 U. S. 543
(1965);
Edwards v. South Carolina, 372 U.
S. 229 (1963). [
Footnote
2/2] While First Amendment rights exercised on public property
may be subject to reasonable time, place and manner restrictions,
that is very different from saying that government-controlled
property, such as a letterbox, does not constitute a public forum.
Only where the exercise of First Amendment rights is incompatible
with the normal activity occurring on public property have we held
that the property is not a public forum.
See Greer v.
Spock, 424 U. S. 828
(1976);
Jones v. North Carolina Prisoners' Union,
433 U. S. 119
(1977);
Adderley v. Florida, 385 U. S.
39 (1966). Thus, in answering
"[t]he crucial question . . . whether the manner of expression
is basically incompatible with the normal activity of a particular
place at a particular time,"
Grayned v. City of Rockford, supra, at
408 U. S. 116,
I believe that the mere deposit of mailable matter without postage
is not "basically incompatible" with the "normal activity" for
which a letterbox is used,
i.e., deposit of mailable
matter with proper postage or mail delivery by the Postal Service.
On the contrary, the mails and the letterbox are specifically used
for the communication of information and ideas, and thus surely
constitute a public
Page 453 U. S. 138
forum appropriate for the exercise of First Amendment rights
subject to reasonable time, place, and manner restrictions such as
those embodied in § 1725 or in the requirement that postage be
affixed to mailable matter to obtain access to the postal
system.
The history of the mails as a vital national medium of
expression confirms this conclusion. Just as
"streets and parks . . . have immemorially been held in trust
for the use of the public and, time out of mind, have been used for
purposes of assembly, communicating thoughts between citizens, and
discussing public questions,"
Hague v. CIO, 307 U. S. 496,
307 U. S. 515
(1939), [
Footnote 2/3] so too the
mails from the early days of the Republic have played a crucial
role in communication. The Court itself acknowledges the importance
of the mails as a forum for communication:
"Government without communication is impossible, and until the
invention of the telephone and telegraph,
the mails were the
principal means of communication. . . . In 1775, Franklin was
named the first Postmaster General by the Continental Congress,
and, because of the trend toward war, the Continental Congress
undertook its first serious effort to establish a secure mail
delivery organization in order to maintain communication between
the States and to supply revenue for the Army."
Ante at
453 U. S. 121
(emphasis added). The Court further points out that "[t]he Post
Office played a
vital . . . role in the development of our
new Nation,"
ibid. (emphasis added), and currently
processes "106.3 billion pieces of mail each year,"
ante
at
453 U. S. 122.
The variety of communication transported by the Postal Service
ranges from the sublime to the ridiculous, and includes newspapers,
magazines, books, films and almost any type and form of expression
imaginable.
See Kappel Commission, Toward Postal
Excellence,
Page 453 U. S. 139
Report of the President's Commission on Postal Organization 478
(Comm.Print 1968). Given "the historic dependence of the Nation on
the Postal Service,"
ante at
453 U. S. 123,
it is extraordinary that the Court reaches the conclusion that the
letterbox, a critical link in the mail system, is not a public
forum.
Not only does the Court misapprehend the historic role that the
mails have played in national communication, but it relies on
inapposite cases to reach its result.
Greer v. Spock,
[
Footnote 2/4]
Adderley v.
Florida, [
Footnote 2/5] and
Jones v. North Carolina Prisoners' Union, [
Footnote 2/6] all rested on the inherent
incompatibility between the
Page 453 U. S. 140
rights sought to be exercised and the physical location in which
the exercise was to occur.
Lehman v. City of Shaker
Heights [
Footnote 2/7] rested
in large measure on the captive audience doctrine, 418 U.S. at
418 U. S. 304,
and in part on the transportation purpose of the city bus system,
id. at
418 U. S. 303.
These cases, therefore, provide no support for the Court's
conclusion that a letterbox is not a public forum.
B
Having determined that a letterbox is not a public forum, the
Court inexplicably terminates its analysis. Surely, however, the
mere fact that property is not a public forum does not free
government to impose unwarranted restrictions on First Amendment
rights. The Court itself acknowledges that the postal power
"may not . . . be exercised by Congress in a manner that
abridges the freedom of speech or of the press protected by the
First Amendment to the Constitution."
Ante at
453 U. S. 126.
Even where property does not constitute a public forum, government
regulation that is content-neutral must still be reasonable as to
time. place, and manner.
See, e.g., Young v. American Mini
Theatres, Inc., 427 U. S. 50,
427 U. S. 63, n.
18 (1976).
Cf. Linmark Associates, Inc. v. Willingboro,
431 U.S. at
431 U. S. 92-93;
Virginia Pharmacy Board v. Virginia Citizens Consumer Council,
Inc., 425 U. S. 748,
425 U. S. 771
(1976). The
Page 453 U. S. 141
restriction in § 1725 could have such an effect on First
Amendment rights -- and does for JUSTICE MARSHALL -- that it should
be struck down. The Court, therefore cannot avoid analyzing § 1725
as a time, place, and manner restriction. [
Footnote 2/8]
III
I would conclude, contrary to the Court, that a letterbox is a
public forum, but nevertheless concur in the judgment because I
conclude that 18 U.S.C. § 1725 is a reasonable time, place, and
manner restriction on appellees' exercise of their First Amendment
rights.
[
Footnote 2/1]
It would make no sense to conclude that the "mails" are a vital
medium of expression, but that letterboxes are not. Inasmuch as the
Postal Service, by regulation, requires postal customers to provide
appropriate mail receptacles conforming to specified dimensions,
the letterbox is an indispensable component of the mail system.
[
Footnote 2/2]
Of course, the postal power must be exercised in a manner
consistent with the First Amendment.
See Blount v. Rizzi,
400 U. S. 410,
400 U. S. 416
(1971);
Lamont v. Postmaster General, 381 U.
S. 301,
381 U. S.
305-306 (1965).
[
Footnote 2/3]
See generally Gibbons,
Hague v. CIO: A
Retrospective, 52 N.Y.U.L Rev. 731 (1977).
[
Footnote 2/4]
In
Greer v. Spock, 424 U. S. 828
(1976), pursuant to base regulations, political candidates were
denied permission to distribute campaign literature and to hold a
political meeting on a military base. In upholding the challenged
regulations, the Court specifically relied on the unique function
of military installations "to train soldiers, not to provide a
public forum,"
id. at
424 U. S. 838,
and the historic power of a commanding officer "
to exclude
civilians from the area of his command.'" Ibid., quoting
Cafeteria Workers v. McElroy, 367 U.
S. 886, 367 U. S. 893
(1961).
[
Footnote 2/5]
In
Adderley v. Florida, 385 U. S.
39 (1966), the Court upheld trespass convictions of
students who were demonstrating on jailhouse property, relying
principally on the purpose of jails, "built for security purposes,"
id. at
385 U. S. 41,
which, unlike "state capitol grounds," are not open to the public.
Ibid.
[
Footnote 2/6]
In
Jones v. North Carolina Prisoners' Union,
433 U. S. 119
(1977), prisoners challenged the constitutionality of prison
regulations prohibiting prisoners from soliciting other inmates to
join a prisoners' labor union and barring union meetings and bulk
mailings concerning the union from outside sources. The Court
upheld the regulations in the face of a First Amendment challenge
on the basis that the First Amendment activity was incompatible
with "reasonable considerations of penal management."
Id.
at
433 U. S. 132.
The Court also rejected the prisoners' equal protection challenge.
The Court analogized a prison to a military base, stating that a
"prison may be no more easily converted into a public forum than a
military base,"
id. at
433 U. S. 134,
and concluded that prison officials could treat the union
differently from other organizations such as the Jaycees and
Alcoholics Anonymous for meetings and for bulk mailing purposes,
because the "chartered purpose of the Union . . . was illegal under
North Carolina law."
Id. at
433 U. S.
135-136.
[
Footnote 2/7]
In
Lehman v. City of Shaker Heights, 418 U.
S. 298 (1974), the Court upheld a ban on political
advertising in buses, but only four Justices concluded that
advertising space in a city transit system is not a First amendment
forum. They reached that result because the transit system sought,
by its limitation on political speech, "to minimize chances of
abuse, the appearance of favoritism, and the risk of imposing upon
a captive audience."
Id. at
418 U. S. 304.
Justice Douglas concurred in the judgment on the narrow ground that
petitioner had no constitutional right to force his message upon a
captive audience. Joined by JUSTICES STEWART, MARSHALL, and POWELL,
I dissented on the ground that
"the city created a forum for the dissemination of information
and expression of ideas when it accepted and displayed commercial
and public service advertisements on its rapid transit
vehicles."
Id. at
418 U. S.
310.
[
Footnote 2/8]
Even if the letterbox were characterized as purely private
property that is being regulated by the Government, rather than
property which has become incorporated into the "Postal Service's
nationwide system for the receipt and delivery of mail,"
ante at
453 U. S. 123,
§ 1725 would still be subject to time, place, and manner analysis.
See, e.g., Young v. American Mini Theatres, Inc.,
427 U. S. 50,
427 U. S. 63, n.
18 (1976).
JUSTICE WHITE, concurring in the judgment.
There is no doubt that the postal system is a massive
Government-operated communications facility open to all forms of
written expression protected by the First Amendment. No one
questions, however, that the Government, the operator of the
system, may impose a fee on those who would use the system, even
though the user fee measurably reduces the ability of various
persons or organizations to communicate with others. Appellees do
not argue that they may use the mail for home delivery free of
charge. A self-evident justification for postage is that the
Government may insist that those who use the mails contribute to
the expense of maintaining and operating the facility.
No different answer is required in this case because appellees
do not insist on free home delivery and desire to use only a part
of the system, the mailbox. The Government's interest in defraying
its operating expenses remains, and it is clear
Page 453 U. S. 142
that stuffing the mailbox with unstamped materials is a burden
on the system.
This justification would suffice even in those situations where
insisting on the fee will totally prevent the putative user from
communicating with his intended correspondents,
i.e.,
there would be no adequate alternative means available to reach the
intended recipients. For this reason, if for no other, I do not
find it appropriate to inquire whether the restriction at issue
here is a reasonable time, place or manner regulation. Besides
that, however, it is apparent that the validity of user fees does
not necessarily depend on satisfying typical time, place or manner
requirements.
Equally bootless is the inquiry whether the postal system is a
public forum. For all who will pay the fee, it obviously is, and
the only question is whether a user fee may be charged, as a
general proposition and in the circumstances of this case. Because
I am quite sure that the fee is a valid charge, I concur in the
judgment.
JUSTICE MARSHALL, dissenting.
When the Framers of the Constitution granted Congress the
authority "[t]o establish Post Offices and Post Roads," Art. I, §
8, cl. 7, they placed the powers of the Federal Government behind a
national communication service. Protecting the economic viability
and efficiency of that service remains a legitimate and important
congressional objective. This case involves a statute defended on
that ground, but I believe it is unnecessary for achieving that
purpose and inconsistent with the underlying commitment to
communication.
The challenged statute, 18 U.S.C. § 1725, prohibits anyone from
knowingly placing unstamped "mailable matter" in any box approved
by the United States Postal Service for receiving or depositing
material carried by the Postal Service. Violators may be punished
with fines of up to $300 for each offense. In this case, appellee
civic associations claimed, and
Page 453 U. S. 143
the District Court agreed, that this criminal statute
unreasonably restricts their First Amendment right of free
expression.
The Court today upholds the statute on the theory that its focus
-- the letterbox situated on residential property -- is not a
public forum to which the First Amendment guarantees access. I take
exception to the result, the analysis, and the premise that private
persons lose their prerogatives over the letterboxes they own and
supply for mail service.
First, I disagree with the Court's assumption that, if no public
forum is involved, the only First Amendment challenges to be
considered are whether the regulation is content-based,
see
ante at
453 U. S.
132-133, and reasonable,
ante at
453 U. S. 131,
n. 7. Even if the Postal Service were not a public forum, which, as
I later suggest, I do not accept, the statute advanced in its aid
is a law challenged as an abridgment of free expression. Appellees
seek to carry their own circulars and to deposit them in
letterboxes owned by private persons who use them to receive mail,
and challenge the criminal statute forbidding this use of private
letterboxes. The question, then, is whether this statute burdens
any First Amendment rights enjoyed by appellees. If so, it must be
determined whether this burden is justified by a significant
governmental interest substantially advanced by the statute.
See Consolidated Edison Co. v. Public Service Comm'n,
447 U. S. 530,
447 U. S. 540
(1980);
Grayned v. City of Rockford, 408 U.
S. 104,
408 U. S. 115
(1972);
Cameron v. Johnson, 390 U.
S. 611,
390 U. S.
616-617 (1968);
Thornhill v. Alabama,
310 U. S. 88,
310 U. S. 96,
104-105 (1940).
That appellee civic associations enjoy the First Amendment right
of free expression cannot be doubted; both their purposes and their
practices fall within the core of the First Amendment's
protections. We have long recognized the constitutional rights of
groups which seek, as appellees do, to "communicate ideas,
positions on local issues, and civic information to their
constituents" [
Footnote 3/1]
through written handouts,
Page 453 U. S. 144
and thereby to promote the free discussion of governmental
affairs so central to our democracy.
See e.g., Martin v. City
of Struthers, 319 U. S. 141,
319 U. S.
146-147 (1943);
Schneider v. State,
308 U. S. 147
(1939);
Lovell v. Griffin, 303 U.
S. 444 (1938). By traveling door to door to hand-deliver
their messages to the homes of community members, appellees employ
the method of written expression most accessible to those who are
not powerful, established, or well financed. "Door to door
distribution of circulars is essential to the poorly financed
causes of little people."
Martin v. City of Struthers,
supra, at
319 U. S. 146.
See Schneider v. State, supra, at
308 U. S. 164.
Moreover, "[f]reedom of speech, freedom of the press, freedom of
religion are available to all, not merely to those who can pay
their own way."
Murdock v. Pennsylvania, 319 U.
S. 105,
319 U. S. 111
(1943). And such freedoms depend on liberty to circulate;
"
indeed, without circulation, the publication would be of
little value.'" Talley v. California, 362 U. S.
60, 362 U. S. 64
(1960), quoting Lovell v. Griffin, supra, at 303 U. S.
452.
Countervailing public interests, such as protection against
fraud and preservation of privacy, may warrant some limitation on
door-to-door solicitation and canvassing. But we have consistently
held that any such restrictions, to be valid, must be narrowly
drawn "
in such a manner as not to intrude upon the rights of
free speech.'" Hynes v. Mayor and Council of Borough of
Oradell, 425 U. S. 610,
425 U. S. 616
(1976), quoting Thomas v. Collins, 323 U.
S. 516, 323 U. S.
540-541 (1945). Consequently, I cannot agree with the
Court's conclusion, ante at 453 U. S.
132-133, that we need not ask whether the ban against
placing such messages in letterboxes is a restriction on appellees'
free expression rights. Once appellees are at the doorstep, only §
1725 restricts them from placing their circulars in the box
provided by the resident. The District Court determined after an
evidentiary hearing that only by placing their circulars in the
letterboxes may appellees be certain that their messages will be
secure from wind, rain, or snow, and at the same time will alert
the attention of the residents without
Page 453 U. S. 145
notifying would-be burglars that no one has returned home to
remove items from doorways or stoops.
490 F.
Supp. 157, 160-163 (1980). The court concluded that the costs
and delays of mail service put the mails out of appellees' reach,
and that other alternatives, such as placing their circulars in
doorways, are "much less satisfactory."
Id. at 160.
[
Footnote 3/2] We have in the past
similarly recognized the burden placed on First Amendment rights
when the alternative channels of communication involve more cost,
less autonomy, and reduced likelihood of reaching the intended
audience.
Linmark Associates, Inc. v. Willingboro,
431 U. S. 85,
431 U. S. 93
(1977).
I see no ground to disturb these factual determinations of the
trier of fact. And, given these facts, the Postal Service bears a
heavy burden to show that its interests are legitimate and
substantially served by the restriction of appellees' freedom of
expression.
See, e.g., Hynes v. Mayor and Council of the
Borough of Oradell, supra, at
425 U. S.
617-618;
Konigsberg v. State Bar of California,
366 U. S. 36,
366 U. S. 49-51
(1961);
Marsh v. Alabama, 326 U.
S. 501,
326 U. S. 509
(1946). Although the majority does not rule that the trial court's
findings were clearly erroneous, as would be required to set them
aside, the Court finds persuasive the interests asserted by the
Postal Service in defense of the statute. Those interests --
"protect[ing] mail revenues while at the same time facilitating the
secure and efficient delivery of the mails,"
ante at
453 U. S. 129
-- are indeed both legitimate and important. But mere assertion of
an important, legitimate interest does not satisfy the requirement
that the challenged restriction specifically and precisely serve
that end.
See Hynes v. Mayor and Council of the Borough
of
Page 453 U. S. 146
Oradell, supra. See also Cox v. Louisiana,
379 U. S. 536,
379 U. S.
557-558 (1965) (restriction must be applied uniformly
and nondiscriminatorily) .
Here, the District Court concluded that the Postal Service
"has not shown that failure to enforce the statute as to
[appellees] would result in a substantial loss of revenue, or a
significant reduction in the government's ability to protect the
mails by investigating and prosecuting mail theft, mail fraud, or
unauthorized private mail delivery service."
490 F. Supp. at 163. [
Footnote
3/3] In light of this failure of proof, I cannot join the
Court's conclusion that the Federal Government may thus curtail
appellees' ability to inform community residents about local civic
matters. That decision, I fear, threatens a departure from this
Court's belief that free expression, as "the matrix, the
indispensable condition, of nearly every other form of freedom,"
Palko v. Connecticut, 302 U. S. 319,
302 U. S. 327
(1937), must not yield unnecessarily before such governmental
interests as economy or efficiency. Certainly, free expression
should not have to yield here, where the intruding statute has
seldom been enforced. [
Footnote
3/4] As the exceptions created
Page 453 U. S. 147
by the Postal Service itself demonstrate, [
Footnote 3/5] the statute's asserted purposes easily
could be advanced by less intrusive alternatives, such as a
nondiscriminatory permit requirement for depositing unstamped
circulars in letterboxes. [
Footnote
3/6] Therefore, I would find 18 U.S.C. § 1725 constitutionally
defective.
Even apart from the result in this case, I must differ with the
Court's use of the public forum concept to avoid application of the
First Amendment. Rather than a threshold barrier that must be
surmounted before reaching the terrain of the First Amendment, the
concept of a public forum has more properly been used to open
varied governmental locations to equal public access for free
expression, subject to the constraints on time, place, or manner
necessary to preserve the governmental function.
E.g., Grayned
v. City of Rockford, 408 U.S. at
408 U. S.
115-117 (area around public school);
Chicago Area
Military Project v. Chicago, 508 F.2d 921 (CA7) (city
airport),
cert. denied, 421 U.S. 992 (1975);
Albany
Welfare Rights Organization v. Wyman, 493 F.2d 1319 (CA2)
(welfare office waiting room),
cert. denied sub nom. Lavine v.
Albany Welfare Rights Organization, 419 U.S. 838 (1974);
Page 453 U. S. 148
Wolin v. Port of New York Authority, 392 F.2d 83 (CA2)
(port authority),
cert. denied 393 U.S. 940 (1968);
Reilly v. Noel, 384 F.
Supp. 741 (RI 1974) (rotunda of courthouse).
See generally
Lehman v. City of Shaker Heights, 418 U.
S. 298,
418 U. S. 303
(1974); Stone, Fora Americana: Speech in Public Places, S.Ct.Rev.
233, 251-252 (1974). These decisions apply the public forum concept
to secure the First Amendment's commitment to expression unfettered
by governmental designation of its proper scope, audience, or
occasion.
I believe these precedents support my conclusion that appellees
should prevail in their First Amendment claim. The traditional
function of the mails led this Court to embrace Justice Holmes'
statement that
"'[t]he United States may give up the Post Office when it sees
fit, but while it carries it on, the use of the mails is as much a
part of free speech as the right to use our tongues. . . .'"
Lamont v. Postmaster General, 381 U.
S. 301,
381 U. S. 305
(1965), quoting
United States ex rel. Milwaukee Social
Democratic Pub. Co. v. Burleson, 255 U.
S. 407,
255 U. S. 437
(1921) (Holmes, J., dissenting). Given its pervasive and
traditional use as purveyor of written communication, the Postal
Service, I believe, may properly be viewed as a public forum. The
Court relies on easily distinguishable cases in reaching the
contrary conclusion. For the Postal Service's very purpose is to
facilitate communication, which surely differentiates it from the
military bases, jails, and mass transportation discussed in cases
relied on by the Court,
ante at
453 U. S.
129-130. [
Footnote 3/7]
Cf. 393 U. S. Des
Moines Independent School
Page 453 U. S. 149
Dist., 393 U. S. 503,
393 U. S. 512
(1969). Drawing from the exceptional cases, where speech has been
limited for special reasons, does not strike me as commendable
analysis.
The inquiry in our public forum cases has instead asked whether
"the manner of expression is basically incompatible
Page 453 U. S. 150
with the normal activity of a particular place at a particular
time."
Grayned v. City of Rockford, 408 U.S. at
408 U. S. 116.
Compare Grayned v. City of Rockford (restriction on speech
permissible near school while in session)
with Tinker v. Des
Moines Independent School Dist., supra, (symbolic speech
protected even during school hours);
Cameron v. Johnson,
390 U. S. 611
(1968) (restriction on picketing permitted where limited to
entrance of courthouse),
with Brown v. Louisiana,
383 U. S. 131
(1966) (silent protest in library protected);
Adderley v.
Florida, 385 U. S. 39 (1966)
(protest near jailyard inconsistent with jail purposes),
with
Edwards v. South Carolina, 372 U. S. 229
(1963) (protest permitted on state capitol grounds). Assuming for
the moment that the letterboxes, as "authorized depositories," are
under governmental control, and thus part of the governmental
enterprise, their purpose is hardly incompatible with appellees'
use. For the letterboxes are intended to receive written
communication directed to the residents, and to protect such
materials from the weather or the intruding eyes of would-be
burglars.
Reluctance to treat the letterboxes as public forums might stem
not from the Postal Service's approval of their form, but instead
from the fact that their ownership and use remain in the hands of
private individuals. [
Footnote 3/8]
Even that hesitation, I should think, would be misguided, for those
owners necessarily retain the right to receive information as a
counterpart of the right of speakers to speak.
Kleindienst v.
Mandel, 408 U. S. 753,
408 U. S.
762-765 (1972);
Red Lion Broadcasting Co. v.
FCC, 395 U. S. 367,
395 U. S.
389-390 (1969);
Lamont v. Postmaster General,
supra, at
381 U. S. 307;
Martin v. City of Struthers, 319 U.S. at
319 U. S. 143.
Cf. Procunier v. Martinez, 416 U.
S. 396,
416 U. S. 408
(1974) (communication by letter depends on receipt by addressee).
On that basis alone, I would doubt the validity of 18 U.S.C. §
1725, for it deprives residents of the information
Page 453 U. S. 151
which civic groups or individuals may wish to deliver to these
private receptacles. [
Footnote
3/9]
I remain troubled by the Court's effort to transform the
letterboxes entirely into components of the governmental enterprise
despite their private ownership. Under the Court's reasoning, the
Postal Service could decline to deliver mail unless the recipients
agreed to open their doors to the letter carrier -- and then the
doorway, or even the room inside could fall within Postal Service
control. [
Footnote 3/10] Instead
of starting with the scope of governmental control, I would adhere
to our usual analysis which looks to whether the exercise of a
First Amendment right is burdened by the challenged governmental
action, and then upholds that action only where it is necessary to
advance a substantial and legitimate governmental interest. In my
view, the statute criminalizing the placement of hand-delivered
civic association notices in letterboxes fail this test. The brute
force of the criminal sanction and other powers of the Government,
I believe, may be
Page 453 U. S. 152
deployed to restrict free expression only with greater
justification. I dissent.
[
Footnote 3/1]
490 F.
Supp. 157, 162 (1980).
[
Footnote 3/2]
Indeed, the record in this litigation indicates that appellees
circulated less information when inhibited from using the
letterboxes. Plaintiffs' Answer to Written Interrogatories, Record,
Doc. No. 23, � 8, pp. 7. The practical effect of applying the
statute in residential communities would preclude Girl Scouts, Boy
Scouts, charities, neighbors, and others from leaving invitations
or notes in the place residents most likely check for messages.
[
Footnote 3/3]
The Government's interest in ensuring the security of the mails
is advanced more directly by 18 U.S.C. §§ 1341, 1708. To the extent
that the security and efficiency problems are attributed to
overcrowding in letterboxes, the problem could be resolved simply
by requiring larger boxes.
As for protection of mail revenues, it is significant that the
District Court found the cost of using the mails prohibitive, given
appellees' budgets, and the delays in mail delivery too great to
make it useful for appellees' needs. 490 F. Supp. at 160.
Apparently, appellees' compliance with 18 U.S.C. § 1725 would not
increase mail revenues. Although protection of the Postal Service
obviously must take the form of national regulation, having broad
application, a statute's nondiscriminatory terms may not save it
where infringement of speech is demonstrated.
Murdock v.
Pennsylvania, 319 U. S. 105,
319 U. S. 115
(1943).
[
Footnote 3/4]
Appellant conceded at oral argument that the Postal Service knew
of no convictions and only one attempted prosecution under the
statute. Tr. of Oral Arg. 15. That unsuccessful prosecution was
dismissed because the District Court found impermissibly vague the
prohibition on depositing unstamped "mailable matter such as
statements of account, circulars, sales bills,
or other like
matter."
United States v. Rogers, Cr. No. 72-87 (MD
La. Feb. 16, 1973) (emphasis added). Apparently, no prosecutions
have since been attempted, although the statute may be used to
support the efforts of local postal offices in collecting unpaid
postage. Tr. of Oral Arg. 15.
[
Footnote 3/5]
The Postal Service has interpreted the statute to exempt
mailslots,
id. at 8, and to provide exception for certain
kinds of deliveries, Domestic Mail Manual (DMM) 156.58 (newspapers,
normally mailed but delivered on Sunday or holidays); 39 CFR §
310.6 (1979) (letters dispatched within 50 miles of destination and
same-day delivery). And by applying only to "mailable matter," the
statute excludes pornography and other items not lawfully carried
by the Postal Service. The Service thus has itself acknowledged
that the statute sweeps more broadly than necessary.
[
Footnote 3/6]
Such a permit requirement could accomplish the central purpose
of the statute -- to restrain commercial enterprises from avoiding
postal fees by employing their own delivery services.
See
ante at
453 U. S.
125.
[
Footnote 3/7]
Rather than supporting the conclusion that the Postal Service
letterbox is not a public forum, the cases cited by the majority,
ante at
453 U. S.
129-130, in fact point in the other direction. The Court
resolved two First Amendment issues in
Jones v. North Carolina
Prisoners' Union, 433 U. S. 119
(1977): the scope of associational rights retained by convicted
prisoners, and their right, if any, to bulk mail rates. The Court
analyzed both issues under the principle that, while in prison,
"an inmate does not retain those First Amendment rights that are
'inconsistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system.'"
Id. at
433 U. S. 129,
quoting
Pell v. Procunier, 417 U.
S. 817,
417 U. S. 822
(1974). No such principle applies to appellees. Furthermore, the
public forum analysis in
Jones asked whether exercise of
the First Amendment rights would be incompatible with the purposes
of the governmental facility, a question answerable in the negative
in this case.
In
Greer v. Spock, 424 U. S. 828,
424 U. S. 838
(1976), the Court concluded that Fort Dix was not a public forum,
due to its military purpose and the power of "
the commanding
officer summarily to exclude civilians from the area of his
command'" (quoting Cafeteria Workers v. McElroy,
367 U. S. 886,
367 U. S. 893
(1961)). At the same time, the Court emphasized that political
campaign literature could still be distributed at the base unless
it posed a clear danger to troop discipline and loyalty, 424 U.S.
at 424 U. S. 840.
Thus, the base remained a "public forum" at least for written
communication. A plurality of the Court in Lehman v. City of
Shaker Heights, 418 U. S. 298,
418 U. S.
303-304 (1974), found the city transit system not a
public forum because its advertising space was incidental to its
primary commercial transportation purpose. The plurality
nevertheless recognized that the state action present necessitated
a balancing analysis of the First Amendment interests of those
seeking advertising space and the interests of the government and
the users of the transit system. Further, both the plurality and
Justice Douglas, in his separate opinion concurring in the result,
relied on an analogy to the mass media which has no obligation
under the First Amendment to broadcast or print any particular
story or advertisement. Id. at 418 U. S. 303
(opinion of BLACKMUN, J.); id. at 418 U. S. 306
(opinion of Douglas, J.). In contrast, the Postal Service is
obliged to accept all mailable matter. Finally, in Adderley v.
Florida, 385 U. S. 39
(1966), the security needs of the jail were critical to the Court's
conclusion that trespassers on the jail grounds could properly be
prosecuted. Adderley itself noted that spaces more
traditionally used by the public would more likely be public
forums, id. at 385 U. S. 41-42,
and this treatment is appropriate here, given the traditional
public use of the Postal Service. The determinative question in
each of these cases was not whether the government owned or
controlled the property, but whether the nature of the governmental
interests warranted the restrictions on expression. That is the
question properly asked in this case.
[
Footnote 3/8]
But see Marsh v. Alabama, 326 U.
S. 501 (1946).
[
Footnote 3/9]
The Court announced the First Amendment rights of recipients in
Lamont v. Postmaster General, 381 U.
S. 301 (1965). There, the Court struck down a postal
regulation denying delivery of Communist propaganda sent from
outside the country, even though the regulation permitted such
delivery to recipients who notified the Postal Service in writing
that they wished to receive the material. Untenable, in the Court's
view, was the fact that, under the regulatory scheme, "[t]he
addressee carries an affirmative obligation which we do not think
the Government may impose on him."
Id. at
381 U. S. 307.
The concern for the addressee's First Amendment rights should
govern here.
[
Footnote 3/10]
Appellant suggests no First Amendment problem is presented
because residents would not erect letterboxes but for the Postal
Service, and the First Amendment did not compel the creation of the
Service. Brief for Appellant 18-19. This argument obviously proves
too much, because the First Amendment did not ordain the
establishment of schools or libraries, and yet we have held that,
once established, these public facilities must be managed
consistently with the First Amendment.
Tinker v. Des Moines
Independent School Dist., 393 U. S. 503
(1969);
Brown v. Louisiana, 383 U.
S. 131 (1966).
JUSTICE STEVENS, dissenting.
JUSTICE MARSHALL has persuaded me that this statute is
unconstitutional, but I do not subscribe to all of his reasoning.
He is surely correct in concluding that content-neutral
restrictions on the use of private letterboxes do not automatically
comply with the First Amendment simply because such boxes are a
part of the Postal Service. Like libraries and schools, once these
facilities have come into existence, the Government's regulation of
them must comply with the Constitution.
See ante at
453 U. S. 151,
n. 10. I cannot, however, accept the proposition that these private
receptacles are the functional equivalent of public fora.
My disagreement with the Court and with JUSTICE MARSHALL can
best be illustrated by looking at this case from the point of view
of the owner of the mailbox. The mailbox is private property; it is
not a public forum to which the owner must grant access. If the
owner does not want to receive any written communications other
than stamped mail, he should be permitted to post the equivalent of
a "no trespassing" sign on his mailbox. A statute that protects his
privacy by prohibiting unsolicited and unwanted deposits on his
property would surely be valid. The Court, however, upholds a
statute that interferes with the owner's receipt of information
that he may want to receive. If the owner welcomes messages from
his neighbors, from the local community organization, or even from
the newly arrived entrepreneur passing out free coupons, it is
presumptively unreasonable to interfere with his ability to receive
such communications. The nationwide criminal statute at issue here
deprives millions of homeowners of the legal right to make a simple
decision affecting their ability to receive communications from
others.
Page 453 U. S. 153
The Government seeks to justify the prohibition on three
grounds: avoiding the loss of federal revenue, preventing theft
from the mails, and maintaining the efficiency of the Postal
Service. [
Footnote 4/1] In my
judgment, the first ground is frivolous and the other two, though
valid, are insufficient to overcome the presumption that this
impediment to communication is invalid.
If a private party -- by using volunteer workers or by operating
more efficiently -- can deliver written communications for less
than the cost of postage, the public interest would be well served
by transferring that portion of the mail delivery business out of
the public domain. I see no reason to prohibit competition simply
to prevent any reduction in the size of a subsidized monopoly. In
my opinion, that purpose cannot justify any restriction on the
interests in free communication that are protected by the First
Amendment.
To the extent that the statute aids in the prevention of theft,
that incidental benefit was not a factor that motivated Congress.
[
Footnote 4/2] The District Court
noted that the testimony indicated that § 1725 "was marginally
useful" in the enforcement of the statutes relating to theft of
mail.
490 F.
Supp. 157, 161-162 (1980). It concluded, however, that the
Government had failed to introduce evidence sufficient to
justify
Page 453 U. S. 154
the interference with First Amendment interests. [
Footnote 4/3] The Court does not quarrel
with any of the District Court's findings of fact, and I would not
disturb the conclusion derived from those findings.
Mailboxes cluttered with large quantities of written matter
would impede the efficient performance of the mail carrier's
duties. Sorting through papers for mail to be picked up or having
no space in which to leave mail that should be delivered can
unquestionably consume valuable time. Without the statute that has
been in place for decades, what may now appear to be merely a minor
or occasional problem might grow like the proverbial beanstalk.
Rather than take that risk, Congress has decided that the wiser
course is a total prohibition that will protect the free flow of
mail.
But as JUSTICE MARSHALL has noted, the problem is susceptible of
a much less drastic solution.
See ante at
453 U. S. 146,
n. 3. There are probably many overstuffed mailboxes now -- and if
this statute were repealed, there would be many more -- but the
record indicates that the relatively empty boxes far outnumber the
crowded ones. If the statute allowed the homeowner to decide
whether or not to receive unstamped communications -- and to have
his option plainly indicated on the exterior of the mailbox -- a
simple requirement that overstuffed boxes be replaced with larger
ones should provide the answer to most of the Government's concern.
[
Footnote 4/4]
Page 453 U. S. 155
I am fully aware that it is one thing to sit in judicial
chambers and opine that a postal regulation is not really necessary
and quite another to run a mammoth and complex operation like the
Postal Service. Conceivably, the invalidation of this law would
unleash a flow of communication that would sink the mail service in
a sea of paper. But were that to happen, it would merely
demonstrate that this law is a much greater impediment to the free
flow of communication than is presently assumed. To the extent that
the law prevents mailbox clutter, it also impedes the delivery of
written messages that would otherwise take place.
Finally, we should not ignore the fact that nobody has ever been
convicted of violating this middle-aged nationwide statute. It must
have been violated literally millions of times. Apparently the
threat of enforcement has enabled the Government to collect some
postage from time to time or to cause a few violators to
discontinue their unlawful practices, but I have the impression
that the general public is, at best, only dimly aware of the law,
and that numerous otherwise law-abiding citizens regularly violate
it with impunity. This impression supports the conclusion that the
statute is indeed much broader than is necessary to serve its
limited purpose. Because, as JUSTICE MARSHALL has demonstrated, it
does unquestionably abridge the free exchange of written
expression, I agree with his conclusion that it violates the First
Amendment.
I respectfully dissent.
[
Footnote 4/1]
Although the Government also advances the privacy interests of
the mailbox owner, those interests would, of course, be protected
by allowing the individual owner to make the choice whether he
wanted to receive unstamped mail.
[
Footnote 4/2]
The Government,
see Brief for Appellant 4, n. 4, cites
legislative history indicating that the "principal motivation for
the statute" was the protection of postal revenues and prevention
of overstuffing of mailboxes. The Government later notes that,
"[a]lthough Congress' primary purpose in enacting Section 1725
was the protection of mail revenues, the statute also plays a role
in the investigation of mail theft."
Id. at 7. Because this justification, unlike the other
two, was formulated after the statute was enacted, it is not
entitled to the same weight as the purposes that actually motivated
Congress.
[
Footnote 4/3]
The District Court held that
"enforcement of § 1725 against civic associations does not
appear so necessary or contributive to enforcement of the
anti-theft, anti-fraud or Private Express statutes that this
interest outweighs the plaintiffs' substantial interest in
expedient and economical communication with their
constituents."
490 F. Supp. at 163.
[
Footnote 4/4]
To the extent that the efficiency of the Postal Service would be
impeded by the effort required for mail carriers to sort through
papers for outgoing mail, the solution is again in the hands of the
individual owner of the mailbox. If he wants to use this method of
sending letters and wants also to receive unstamped communications,
he runs the risk that his outgoing mail will not be seen by the
mail carrier.