1. The provision of the Espionage Law (Act of June 15, 1917, c.
30, Title XII, 3, 40 Stat. 217) which denies the mails to
newspapers and other publications violating its prohibitions was
within the power of Congress. P.
255 U. S.
409.
2. The second-class mail privilege, previously granted for a
newspaper, was revoked by the Postmaster General, upon due notice
and hearing, because, from the time the United States entered the
World War to the time of the revocation, the paper frequently and
persistently printed articles conveying false reports and false
statements with intent to promote the success of the enemies of the
United States and constituting a willful attempt to cause
disloyalty and refusal of duty in the military and naval forces and
to obstruct the recruiting and enlistment service.
Held
that the procedure satisfied due process of law, p.
255 U. S. 409;
that the publication was clearly violative of § 3 of the Espionage
Law, p.
255 U. S. 413;
that the order did not deprive the publisher of constitutional
rights of free speech, or free press, or of property without due
process of law, and was amply justified by the evidence. Pp.
255 U. S. 409,
255 U. S.
415.
3. The conclusion of a head of an executive department upon a
matter of fact within his jurisdiction will not be disturbed by the
courts unless clearly wrong. P.
255 U. S.
413.
4. By long executive practice, admission to the second-class
mail privilege is obtained for a publication only by a permit,
issued by the Postmaster General, after a hearing and upon a
showing satisfactory to him or his authorized assistants, that it
contains and will continue to contain only mailable matter and that
it will meet the other requirements of the law. Pp.
255 U. S. 410,
255 U. S.
415.
5. The power of the Postmaster General to revoke the privilege
is an incident of the power to grant it, recognized by Congress (31
Stat. 1107) and by decisions of this Court. Pp.
255 U. S. 411,
255 U. S.
415.
Page 255 U. S. 408
6. When a newspaper which has been admitted to the second class
privilege publishes nonmailable matter so frequently as to justify
the presumption that it will continue to do so, the Postmaster
General is empowered (Rev.Stats., § 36) to revoke the privilege not
merely as to particular issue containing such matter, but
indefinitely for the future, subject to the publisher's right to
secure a renewal upon proper application and proof that the paper
will conform to the law. P.
255 U. S.
416.
4 App.D.C. 26, 258 F. 282, affirmed.
Error to review a judgment of the Court of Appeals of the
District of Columbia which affirmed a judgment of the Supreme Court
of the District dismissing the relator's petition for a writ of
mandamus against the Postmaster General. The facts appear in the
opinion of the Court.
MR. JUSTICE CLARKE delivered the opinion of the Court.
After a hearing on September 22, 1917, by the Third Assistant
Postmaster General, of the time and character of which the relator
(plaintiff in error) had due notice and at which it was represented
by its president, an order was entered revoking the second-class
mail privilege granted to it in 1911 as publisher of the Milwaukee
Leader. So far as appears, all that the relator desired to say or
offer was heard and received. This hearing was had and
Page 255 U. S. 409
the order was entered upon the charge that articles were
appearing in relator's paper so violating the provisions of the
National Defense Law, approved June 15, 1917, which has come to be
popularly known as the Espionage Act of Congress (40 Stat. 217), as
to render it "nonmailable" by the express terms of Title XII of
that act. On appeal to the Postmaster General, the order was
approved. Thereupon the relator filed a petition in the Supreme
Court of the District of Columbia praying that a writ of mandamus
issue commanding the Postmaster General to annul his order and
restore the paper to the second-class privilege. To a rule to show
cause the Postmaster General answered, and, a demurrer to his
answer being overruled and the relator not pleading further, the
court discharged the rule and dismissed the petition. The Court of
Appeals of the District of Columbia affirmed the judgment of the
trial court, and, the constitutional validity of laws of the United
States being involved, the case was brought here by writ of
error.
The grounds upon which the relator relies are, in substance,
that, to the extent that the Espionage Act confers power upon the
Postmaster General to make the order entered against it, that act
is unconstitutional because it does not afford relator a trial in a
court of competent jurisdiction; that the order deprives relator of
the right of free speech, is destructive of the rights of a free
press, and deprives it of its property without due process of
law.
That a hearing such as was accorded the relator, on precisely
such a question as is here involved, when fairly conducted,
satisfies all of the requirements of due process of law, has been
repeatedly decided.
Smith v. Hitchcock, 226 U. S.
53,
226 U. S. 60;
Bates & Guild Co. v. Payne, 194 U.
S. 106;
Public Clearing House v. Coyne,
194 U. S. 497;
Lewis Publishing Co. v. Morgan, 229 U.
S. 288.
Since the petition in this case was filed, it has also become
settled that the Espionage Act is a valid, constitutional
Page 255 U. S. 410
law.
Schenck v. United States, 249 U. S.
47;
Frohwerk v. United States, 249 U.
S. 204;
Debs v. United States, 249 U.
S. 211;
Abrams v. United States, 250 U.
S. 616,
250 U. S.
619.
The first comprehensive law providing for the classification of
mails was enacted on March 3, 1879 (20 Stat. 355). From that time
to this, mail classification, frequently approved by this Court,
has dealt only with "mailable matter." In § 7 of that act, still in
effect, "mailable matter" is divided into four classes, and, by §
10, the second class of such "mailable matter" is defined as
including newspapers and periodicals. By § 1 of Title XII of the
Act of June 15, 1917,
supra, any newspaper violating any
provision of the act is declared to be "nonmailable matter," which
shall "not be conveyed in the mails or delivered from any post
office or by any letter carrier."
The extremely low rate charged for second-class mail -- to carry
it, was said in argument, to cost seven times the revenue which it
yields -- is justified as a part of "the historic policy of
encouraging by low postal rates the dissemination of current
intelligence." It is a frank extension of special favors to
publishers because of the special contribution to the public
welfare which Congress believes is derived from the newspaper and
other periodical press.
229 U. S. 229
U.S. 301,
229 U. S.
304.
By now more than 40 years of departmental practice, admission to
the privilege of this second-class mail has been obtained for a
publication only by a permit, issued by the Postmaster General
after a hearing and upon a showing made, satisfactory to him or his
authorized assistants, that it contains and will continue to
contain only mailable matter and that it will meet the various
statutory and other requirements.
Houghton v. Payne,
194 U. S. 88,
194 U. S.
94.
That the power to suspend or revoke such second-class privilege
was a necessary incident to the power to grant it has long been
recognized by statute and by many decisions
Page 255 U. S. 411
of this Court. 31 Stat. 1107;
Smith v. Hitchcock,
226 U. S. 53,
226 U. S. 57;
Houghton v. Payne, 194 U. S. 88;
Bates & Guild Co. v. Payne, 194 U.
S. 106. Under these statutes and decisions, if the
newspaper of the relator had come to be so edited that it contained
other than "mailable matter," plainly it was the intention of
Congress that it should no longer be carried as second-class mail,
and therefore the order to revoke the permit which had been granted
to relator was proper and justified, and that it had become so
changed in character is the holding of the Postmaster General and
of the two lower courts which we are reviewing.
For the purpose of preventing disloyalty and disunion among our
people of many origins, and to the end that a united front should
be presented to the enemy, the Espionage Act, one of the first of
the national defense laws enacted by Congress after the entry of
the United States into the World War (approved June 15, 1917, 40
Stat. 217), provided severe punishment for any person who, "when
the United States is at war," shall willfully make or convey false
reports or false statements with intent to interfere with the
operation and success of the military or naval forces of the
country, or with the intent to promote the success of its enemies,
or who shall cause, or attempt to cause, insubordination,
disloyalty, mutiny or refusal of duty in such forces, or who shall
willfully obstruct the recruiting and enlistment service of the
United States (§ 3). One entire title of this act (Title XII) is
devoted to "Use of the Mails," and, in the exercise of its
practically plenary power over the mails (
Ex parte
Jackson, 96 U. S. 727;
Public Clearing House v. Coyne, 194 U.
S. 497,
194 U. S.
506-507;
Lewis Publishing Co. v. Morgan,
229 U. S. 288,
229 U. S.
313), Congress therein provided that any newspaper
published in violation of any of the provisions of the act should
be
"nonmailable," and should not be "conveyed in the mails or
delivered from any post office or by any letter carrier."
Page 255 U. S. 412
It was under the provisions of this wartime act and under the
specific injunction of § 396 of the Revised Statutes of the United
States declaring it to be the duty of the Postmaster General to
"superintend generally all the business of the [Post Office]
Department and to execute all laws relating to the postal service"
that the order in this case was entered.
The Postmaster General avers that, upon the hearing which we
have described, he found that, beginning within a week after the
declaration of war against the German government and continuing to
the date of the revocation of the second-class privilege herein,
the relator had published in its newspaper frequently, often daily,
articles which contained false reports and false statements,
published with intent to interfere with the success of the military
operations of our government, to promote the success of its
enemies, and to obstruct its recruiting and enlistment service. For
this cause, exercising the power which we have seen had been
invested in the Postmaster General by statute for almost 40 years,
and which had frequently been exercised by his predecessors, the
respondent revoked the second-class privilege which had been
granted to the relator. A similar executive authority with respect
to matters within their jurisdiction has been given to the heads of
all the great departments of our government, and is constantly
exercised by them.
This is neither a dangerous nor an arbitrary power, as was
argued at the bar, for it is not only subject to review by the
courts (the claim of the relator was heard and rejected by two
courts before this reexamination of it in this Court), but it is
also subject to control by Congress and by the President of the
United States. Under that Constitution, which we shall find it
vehemently denouncing, the rights of the relator were, and are,
amply protected by the opportunity thus given it to resort for
relief to all three departments of the government if those
rights
Page 255 U. S. 413
should be invaded by any ruling of the Postmaster General.
All this being settled law, there remains the question whether
substantial evidence to support his order may be found in the facts
stated in the Postmaster General's answer, which are admitted by
the demurrer; for the law is that the conclusion of the head of an
executive department of the government on such a question, when
within his jurisdiction, will not be disturbed by the courts unless
they are clearly of the opinion that it is wrong.
Smith v.
Hitchcock, 226 U. S. 53,
226 U. S. 60;
Houston v. St. Louis, etc., Packing Co., 249 U.
S. 479,
249 U. S. 484,
and cases cited.
In the answer of the Postmaster General, there were quoted more
than fifty excerpts from editorial articles which appeared in
relator's newspaper at intervals between April 14 and September 13,
1917 -- the first five months after our country entered the Great
War -- upon consideration of which, with others not reproduced, he
averred, his order was based.
Without going much into detail, it was declared in the quoted
articles that the war was unjustifiable and dishonorable on our
part, a capitalistic war, which had been forced upon the people by
a class to serve its selfish ends. Our government was denounced as
a "plutocratic republic," a financial and political autocracy, and
resident Russians were praised for defaming it. Other articles
denounced the draft law as unconstitutional, arbitrary, and
oppressive, with the implied counsel that it should not be
respected or obeyed, and it was represented that soldiers in France
were becoming insane in such numbers that long trains of closed
cars were being used to convey them away from the battle front. It
was confidently asserted that the Constitution of the United States
was purposely made difficult of amendment in order that we might
not have real democracy in this country, the President was
denounced
Page 255 U. S. 414
as an autocrat, and the war legislation as having been passed by
a "rubber stamp Congress." In the guise of argument, these articles
sought to convince the readers of them that soldiers could not
legally be sent outside the country, and that our government was
waging a war of conquest, when Germany was ready to make an
honorable peace. The Food Control Law was denounced as "Kaiserizing
America." It was declared that we were fighting for commercial
supremacy and world domination only, and that, when the "financial
kings" concluded that further fighting might endanger their loans
to the Allies, they would move for peace, which would quickly come.
Our "Allies" were repeatedly condemned, and our enemies frequently
praised.
These publications were not designed to secure amendment or
repeal of the laws denounced in them as arbitrary and oppressive,
but to create hostility to, and to encourage violation of, them.
Freedom of the press may protect criticism and agitation for
modification or repeal of laws, but it does not extend to
protection of him who counsels and encourages the violation of the
law as it exists. The Constitution was adopted to preserve our
government, not to serve as a protecting screen for those who,
while claiming its privileges, seek to destroy it.
Without further discussion of the articles, we cannot doubt that
they conveyed to readers of them false reports and false
statements, with intent to promote the success of the enemies of
the United States, and that they constituted a willful attempt to
cause disloyalty and refusal of duty in the military and naval
forces, and to obstruct the recruiting and enlistment service of
the United States, in violation of the Espionage Law (
Schenck
v. United States, Frohwerk v. United States, and
Debs v.
United States, supra), and that therefore their publication
brought the paper containing them within the express terms of Title
XII of that law, declaring that such a publication shall be
Page 255 U. S. 415
"nonmailable" and "shall not be conveyed in the mails or
delivered from any post office or by any letter carrier."
While written more adroitly than the usual pro-German propaganda
of that time, they nevertheless prove clearly that the publisher of
these articles was deliberately and persistently doing all in its
power to deter its readers from supporting the war in which our
government was engaged, and to induce them to lend aid and comfort
to its enemies. The order of the Postmaster General not only finds
reasonable support in this record, but is amply justified by
it.
We shall notice further only the contention that, if it should
be found that the Postmaster General had authority to revoke the
second-class privilege as to a single issue of the paper,
nevertheless he did not have power to make such an order applicable
to the indefinite future.
The second-class privilege, ever since 1879, has been granted to
a newspaper, as we have seen, only on application of its publisher
for entry of it to that class. Upon such an application, a
searching investigation of the character of the publication is made
by the Postmaster General, under rules and regulations prescribed
by him, which experience has proved necessary to prevent frauds
upon the government (United States Postal Laws and Regulations
1913, §§ 411-435, inclusive;
229 U. S. 229
U.S. 306), and two representative copies of the issue nearest to
the date of the application are required to be filed. If the
publication is found to be entitled to the second-class privilege,
a permit to that effect is issued which contains, as did the permit
to the relator, the provision that "the authority herein given is
revocable upon determination by the Department that the publication
does not conform to law." Such a permit, however, would be equally
revocable without any such specific reservation. (31 Stat. 1107;
Smith v. Hitchcock, 226 U. S. 53,
226 U. S.
60.)
Page 255 U. S. 416
It is a reasonable presumption that the character of the
publication as one entitled to the second-class privilege, when
thus established, will continue to be substantially maintained, and
therefore such a permit is made applicable to the indefinite
future. For the same reason, and because it would not be
practicable to examine each issue of a newspaper, the revocation of
a permit must continue until further order. Government is a
practical institution, adapted to the practical conduct of public
affairs. It would not be possible for the United States to maintain
a reader in every newspaper office of the country, to approve in
advance each issue before it should be allowed to enter the mails,
and when, for more than five months, a paper had contained, almost
daily, articles which, under the express terms of the statute,
rendered it "nonmailable," it was reasonable to conclude that it
would continue its disloyal publications, and it was therefore
clearly within the power given to the Postmaster General by
Rev.Stats. § 396 "to execute all laws relating to the postal
service," to enter, as was done in this case, an order suspending
the privilege until a proper application and showing should be made
for its renewal. The order simply withdrew from the relator the
second-class privilege, but did not exclude its paper from other
classes, as it might have done, and there was nothing in it to
prevent reinstatement at any time. It was open to the relator to
mend its ways, to publish a paper conforming to the law, and then
to apply anew for the second-class mailing privilege. This it did
not do, but, for reasons not difficult to imagine, it preferred
this futile litigation, undertaken upon the theory that a
government competent to wage war against its foreign enemies was
powerless against its insidious foes at home. Whatever injury the
relator suffered was the result of its own choice, and the judgment
of the Court of Appeals is
Affirmed.
Page 255 U. S. 417
MR. JUSTICE BRANDEIS, dissenting.
This case arose during the Would War, but it presents no legal
question peculiar to war. It is important because what we decide
may determine in large measure whether, in times of peace, our
press shall be free.
The denial to a newspaper of entry as second-class mail, or the
revocation of an entry previously made, does not deny to the paper
admission to the mail; nor does it deprive the publisher of any
mail facility. It merely deprives him of the very low postal rates,
called second-class, and compels him to pay postage for the same
service at the rate called third-class, which was, until recently,
from 8 to 15 times as high as the second-class rate. [
Footnote 1] Such is the nature and the only
effect of an order denying or revoking the entry.
See
Postal Laws and Regulations, §§ 421, 422, and 423. In this case,
entry to the second-class mail was revoked because the paper had,
in the opinion of the Postmaster General, systematically inserted
editorials and news items which he deemed unmailable. The question
presented is: did Congress confer upon the Postmaster General
authority to deny second-class postal rates on that ground? The
question is one of statutory construction. No such authority is
granted in terms in the statutes which declare what matter shall be
unmailable. Is there any provision of the postal laws from which
the intention of Congress to grant such power may be inferred? The
specific reason why the Postmaster General deemed these editorials
and news items unmailable was that he considered them violative of
Title XII of the Espionage Act. But it is not contended that this
specific reason is of
Page 255 U. S. 418
legal significance. The scope of the Postmaster General's
alleged authority is confessedly the same whether the reason for
the nonmailable quality of the matter inserted in a newspaper is
that it violates the Espionage Act, or the copyright laws, or that
it is part of a scheme to defraud, or concerns lotteries, or is
indecent, or is in any other respect matter which Congress has
declared shall not be admitted to the mails. [
Footnote 2] The question of the scope of the
Postmaster General's power is presented to us on the following
record:
Some years prior to 1917, the Milwaukee Leader, a daily
newspaper published by the Milwaukee Social Democratic Publishing
Company, made application to use the second-class mail, was
declared entitled to do so, and thereafter used it continuously. It
built up a large circulation, of which about 9,000 copies were
distributed daily through the second-class mail. In September,
1917, its publisher was directed to show cause
"why the authorization of admission . . . to the second-class
mail matter . . . should not be revoked upon the following
ground:"
"The publication is not 'a newspaper or other periodical
publication' within the meaning of the law governing mailable
matter of the second class, it being in conflict with the
provisions of the law embodied in § 481 1/2, Postal Laws and
Regulations. "
Page 255 U. S. 419
That section relates not specifically to the second-class mail,
but to all mail. It recites the provisions of Title XII of the
Espionage Act of June 15, 1917, c. 30, 40 Stat. 217, 230, which
declares unmailable all letters, pictures, publications, and things
"in violation of any of the provisions" of that act, and prescribes
fine and imprisonment as punishment for the use or attempt to use
the postal service for the transmission of such unmailable matter.
[
Footnote 3] On this notice to
show cause the Third Assistant Postmaster General held the
customary informal hearing. The publisher of the Milwaukee Leader
had not been convicted by any court of violating the Espionage Law,
and its representative denied that it had ever committed any act in
violation of it. But the Third Assistant Postmaster General issued
on October 3, 1917, to the postmaster at Milwaukee the instruction
that the Milwaukee Leader
"is not entitled to transmission in the mail at second-class
rates of postage, because it appears from the evidence in
possession of the Department that the publication is not a
'newspaper or other periodical publication' within the meaning of
the law governing mailable matter of the second class, it being in
conflict with the provisions of the law embodied in § 481 1/2,
Postal Laws and Regulations."
This determination and action were confirmed by the Postmaster
General, and the postmaster at Milwaukee thereafter denied to the
publication transmission at the rates provided by law for
second-class mail. The order did not forbid to the Milwaukee Leader
all use of the mails, nor did it limit in any way the use of the
mail facilities. It merely revoked the so-called second-class
mailing permit, and the effect of this was to impose a
Page 255 U. S. 420
higher rate of postage on every copy of the newspaper thereafter
mailed.
The return filed herein by the Postmaster General alleges that
this order "involved the exercise of judgment and discretion on his
part," and is "not subject to be reviewed, set aside, or controlled
by a court of law," but he gives this justification for his
action:
"By representations and complaints from sundry good and loyal
citizens of the United States and from personal reading and
consideration of the issues of the said relator's publication, from
the date of the declaration of war down to the time of the service
of the citation upon it and the hearing granted in pursuance
thereof, it seemed to this respondent, in the exercise of his
judgment and discretion and in obedience to the duty on him
reposed, as well by the general statutes as by the special
provisions of said Espionage Law, that the provisions of the latter
act were systematically and continually violated by the relator's
publication."
It thus appears that the Postmaster General, in the exercise of
a supposed discretion, refused to carry at second-class mail rates
all future issues of the Milwaukee Leader solely because he
believed it had systematically violated the Espionage Act in the
past. It further appears that this belief rested partly upon the
contents of past issues of the paper filed with the return and
partly upon "representations and complaints from sundry good and
loyal citizens," whose statements are not incorporated in this
record and which do not appear to have been called to the attention
of the publisher of the Milwaukee Leader, at the hearing or
otherwise. It is this general refusal thereafter to accept the
paper for transmission at the second-class mail rates which is
challenged as being without warrant in law.
In discussing whether Congress conferred upon the Postmaster
General the authority which he undertook to exercise
Page 255 U. S. 421
in this case, I shall consider first whether he would have had
the power to exclude the paper altogether from all future mail
service on the ground alleged, and second, whether he had power to
deny the publisher the second-class rate.
First. Power to exclude from the mails has never been
conferred in terms upon the Postmaster General. Beginning with the
Act of March 3, 1865, c. 89, § 16, 13 Stat. 507, relating to
obscene matter and the Act of July 27, 1868, c. 246, § 13, 15 Stat.
196, concerning lotteries, Congress has from time to time forbidden
the deposit in the mails of certain matter. In each instance, in
addition to prescribing fine and imprisonment as a punishment for
sending or attempting to send the prohibited matter through the
mail, it declared that such matter should not be conveyed in the
mail nor delivered from any post office nor by any letter carrier.
[
Footnote 4] By § 6 of the Act
of June 8, 1872, c. 335, 17 Stat. 285 (Rev.Stats. § 396), the
Postmaster General was empowered to "superintend . . . the business
of the department, and execute all laws relative to the postal
service." As a matter of administration, the Postmaster General,
through his subordinates, rejects matter offered for mailing or
removes matter already in the mail which in his judgment is
unmailable. The existence in the Postmaster General of the power to
do this cannot be doubted. The only question which can arise is
whether, in the individual case, the power has been illegally
exercised. [
Footnote 5] But,
while he may
Page 255 U. S. 422
thus exclude from the mail specific matter which he deems of the
kind declared by Congress to be unmailable, he may not, either as a
preventive measure or as a punishment, order that in the future
mail tendered by a particular person or the future issues of a
particular paper shall be refused transmission.
Until recently, at least, this appears never to have been
questioned, and the Post Office Department has been authoritatively
advised that the power of excluding matter from the mail was
limited to such specific matter as upon examination was found to be
unmailable, and that the Postmaster General could not make an
exclusion order operative upon future issues of a newspaper.
In 1890, Tolstoi's Kreutzer Sonata had been excluded from the
mails as indecent. Certain newspapers began to publish the book in
installments, and their position was referred to the Attorney
General. He replied:
". . . I do not see that it necessarily follows that every
installment of the story thus published is obscene because the
story as a whole is declared to be so. It may be, indeed, that one
or more chapters of this story are entirely unexceptionable in
character. If so, the exclusion, as unmailable, of newspapers
containing them might involve serious consequences to
yourself."
19 Op.Atty.Gen. 667, 668.
Again, in 1908, President Roosevelt asked the Attorney General
if the law permitted him to deny the mails to an anarchist
newspaper, published in the Italian language, in which appeared
articles advocating the murder of the police force of Patterson and
the burning of the city. The Attorney General advised him that such
an article constituted a seditious libel (it has since been made
criminal by statute -- Act of March 4, 1911, c. 241, § 236 Stat.
1339), and that--
"the Postmaster General [would] be justified in excluding from
the mails any issue of any periodical otherwise entitled to the
privilege of second-class mail
Page 255 U. S. 423
matter which shall contain any article constituting a seditious
libel and counseling such crimes as murder, arson, riot, and
treason."
26 Op.Atty.Gen. 555.
But the Attorney General was careful to point out that the law
gave no authority to exclude issues of the paper which should
contain no objectionable matter:
"It must be premised that the Postmaster General clearly has no
power to close the mails to any class of persons, however
reprehensible may be their practices or however detestable their
reputation; if the question were whether the mails could be closed
to all issues of a newspaper, otherwise entitled to admission, by
reason of an article of this kind in any particular issue, there
could be no doubt that the question must be answered in the
negative."
P. 565.
If such power were possessed by the Postmaster General, he
would, in view of the practical finality of his decisions, become
the universal censor of publications. For a denial of the use of
the mail would be, for most of them, tantamount to a denial of the
right of circulation. Congress has not granted to the Postmaster
General power to deny the right of sending matter by mail even to
one who has been convicted by a jury and sentenced by a court for
unlawful use of the mail and who has been found by the Postmaster
General to have been habitually using the mail for frauds or
lotteries and is likely to do so in the future. It has, in order to
protect the public, directed postmasters to return to the sender
mail addressed to one found by the Postmaster General to be engaged
in a scheme to defraud or in a lottery enterprise. [
Footnote 6] But beyond this Congress has
never
Page 255 U. S. 424
deemed it wise, if, indeed, it has considered it constitutional,
to interfere with the civil right of using the mail for lawful
purposes. [
Footnote 7]
The Postmaster General does not claim here the power to issue an
order directly denying a newspaper all mail service for the future.
[
Footnote 8] Indeed, he asserts
that the mail
Page 255 U. S. 425
is still open to the Milwaukee Leader upon payment of first,
third, or fourth class rates. He contends, however, that, in regard
to second-class rates, special provisions of law apply under which
he may deny that particular rate at his discretion. This contention
will now be considered.
Second. The second-class mail rate is confined to
newspapers and other periodicals, which possess the qualifications
and comply with the conditions prescribed by Congress. [
Footnote 9] In the present case, the
Postmaster General insists that, by reason of alleged past
violations of Title XII of the Espionage Act, two of the conditions
had ceased to be fulfilled. His reasons are these: the Mail
Classification Act of March 3, 1879, c. 180, 20 Stat. 358, provides
by § 14 that a newspaper, to be mailable at the second-class rates,
"must be regularly issued at stated intervals as frequently
Page 255 U. S. 426
as four times a year," and that it must be "originated and
published for the dissemination of information of a public
character." If any issue of a paper has contained matter violative
of the Espionage Act, the paper is no longer "regularly issued,"
and likewise it has ceased to be a paper "published for the
dissemination of information of a public character." [
Footnote 10] The argument is
obviously unsound. The requirement that the newspaper be "regularly
issued" refers not to the propriety of the reading matter, but to
the fact that publication periodically at stated intervals must be
intended, and that the intention must be carried out. Similarly,
the requirement that the paper be "published for the dissemination
of information of a public character" refers not to the reliability
of the information or the soundness of the opinions expressed
therein, but to the general character of the publication. The
Classification Act does not purport to deal with the effect of, or
the punishment for, crimes committed through a publication. It
simply provides rates and classifies the material which may be sent
at the respective rates. The act says what shall
Page 255 U. S. 427
constitute a newspaper. Undoubtedly the Postmaster General has
latitude of judgment in deciding whether a publication meets the
definition of a newspaper laid down by the law, but the courts have
jurisdiction to decide whether the reasons which an administrative
officer gives for his actions agree with the requirements of the
statute under which he purports to act.
Gegiow v. Uhl,
239 U. S. 3;
American School of Magnetic Healing v. McAnnulty,
187 U. S. 94. The
fact that material appearing in a newspaper is unmailable under
wholly different provisions of law can have no effect on whether or
not the publication is a newspaper. Although it violates the law,
it remains a newspaper. If it is a bad newspaper, the act which
makes it illegal, and not the Classification Act, provides the
punishment.
There is also presented, in brief and argument, a much broader
claim in support of the action of the Postmaster General. It is
insisted that a citizen uses the mail at second-class rates not as
of right, but by virtue of a privilege or permission the granting
of which rests in the discretion of the Postmaster General. Because
the payment made for this governmental service is less than it
costs, it is assumed that a properly qualified person has not the
right to the service so long as it is offered, and may not complain
if it is denied to him. The service is called the second-class
privilege. The certificate evidencing such freedom is spoken of as
a permit. But in fact the right to the lawful postal rates is a
right independent of the discretion of the Postmaster General. The
right and conditions of its existence are defined, and rest wholly
upon mandatory legislation of Congress. It is the duty of the
Postmaster General to determine whether the conditions prescribed
for any rate exist. This determination in the case of the
second-class rate may involve more subjects of inquiry, some of
them, perhaps, of greater difficulty, than in cases of other rates.
But the function of the Postmaster General is the
Page 255 U. S. 428
same in all cases. In making the determination, he must, like a
court or a jury, form a judgment whether certain conditions
prescribed by Congress exist, on controverted facts or by applying
the law. The function is a strictly judicial one, although
exercised in administering an executive office. [
Footnote 11] And it is not a function which
either involves or permits the exercise of discretionary power. The
so-called permit is mere formal notice of his judgment, but
indispensable to the publisher because, without it, the local
postmaster will not transmit the publication at second-class rates.
The same sort of permit is necessary for the same bulk service at
first, third, or fourth-class rates. [
Footnote 12] There is nothing, in short, about the
second-class rate which furnishes the slightest basis in law for
differentiating it from the other rates so far as the discretion of
the Postmaster General to grant or withhold it is concerned.
Third. Such is the legislation of Congress. It clearly
appears that there was no express grant of power to the Postmaster
General to deny second-class mail rates to future issues of a
newspaper because, in his opinion, it had systematically violated
the Espionage Act in the past, and it seems equally clear that
there is no basis for the contention
Page 255 U. S. 429
that such power is to be implied. In respect to newspapers
mailed by a publisher at second-class rates, there is clearly no
occasion to imply this drastic power. [
Footnote 13] For a publisher must deposit with the
local postmaster, before the first mailing of every issue, a copy
of the publication which is now examined for matter subject to a
higher rate, and in order to determine the portion devoted to
advertising. Act of March 3, 1879, c. 180, § 12, 20 Stat. 359; Act
of October 3, 1917, c. 63, § 1101, 40 Stat. 327. If there is
illegal material in the newspaper, here is ample opportunity to
discover it and remove the paper from the mail. Indeed, of the four
classes of mail, it is the second alone which affords to the postal
official full opportunity of ascertaining, before deposit in the
mail, whether that which it is proposed to transmit is mailable
matter. But even if the statutes were less clear in this respect
than they seem to me, I should be led to adopt that construction
because of the familiar rule that
"where a statute is susceptible of two constructions, by one of
which grave and doubtful constitutional questions arise and by the
other of which such questions are avoided, our duty is to adopt the
latter."
United States v. Delaware & Hudson Co.,
213 U. S. 366,
213 U. S.
408.
For adoption of the construction urged by the Postmaster General
would raise not only a grave question, but a "succession of
constitutional doubts," as suggested in
Harriman v. Interstate
Commerce Commission, 211 U. S. 407,
211 U. S. 422.
It would in practice seriously abridge the freedom
Page 255 U. S. 430
of the press. Would it not also violate the First Amendment? It
would in practice deprive many publishers of their property without
due process of law. Would it not also violate the Fifth Amendment?
It would in practice subject publishers to punishment without a
hearing by any court. Would it not also violate Article III of the
Constitution? It would in practice subject publishers to severe
punishment for an infamous crime without trial by jury. Would it
not also violate the Sixth Amendment? And the punishment inflicted
-- denial of a civil right -- is certainly unusual. Would it also
violate the Eighth Amendment? If the construction urged by the
Postmaster General is rejected, these questions need not be
answered; but it seems appropriate to indicate why the doubts
raised by them are grave.
(a) The power to police the mails is an incident of the postal
power. Congress may, of course, exclude from the mails matter which
is dangerous or which carries on its face immoral expressions,
threats, or libels. It may go further, and through its power of
exclusion exercise, within limits, general police power over the
material which it carries, even though its regulations are quite
unrelated to the business of transporting mails.
In re
Rapier, 143 U. S. 110;
Lewis Pub. Co. v. Morgan, 229 U.
S. 288. As stated in
Ex Parte Jackson,
96 U. S. 727,
96 U. S.
732:
"The difficulty attending the subject arises not from the want
of power in Congress to prescribe regulations as to what shall
constitute mail matter, but from the necessity of enforcing them
consistently with rights reserved to the people, of far greater
importance than the transportation of the mail."
In other words, the postal power, like all its other powers, is
subject to the limitations of the Bill of Rights.
Burton
v.United States, 202 U. S. 344,
202 U. S. 371.
Compare Adair v. United States, 208 U.
S. 161. Congress may not, through its postal police
power, put limitations upon the freedom of the press which, if
directly attempted, would be unconstitutional.
Page 255 U. S. 431
This Court also stated in
Ex Parte Jackson that
"[l]iberty of circulating is as essential to that freedom as
liberty of publishing; indeed, without the circulation, the
publication would be of little value."
It is argued that, although a newspaper is barred from the
second-class mail, liberty of circulation is not denied, because
the first and third-class mail and also other means of
transportation are left open to a publisher. Constitutional rights
should not be frittered away by arguments so technical and
unsubstantial. "The Constitution deals with substance, not shadows.
Its inhibition was leveled at the thing, not the name."
Cummings v.
Missouri, 4 Wall. 277,
71 U. S. 325.
The government might, of course, decline altogether to distribute
newspapers, or it might decline to carry any at less than the cost
of the service, and it would not thereby abridge the freedom of the
press, since to all papers other means of transportation would be
left open. But to carry newspapers generally at a sixth of the cost
of the service, and to deny that service to one paper of the same
general character because, to the Postmaster General, views therein
expressed in the past seem illegal would prove an effective
censorship and abridge seriously freedom of expression. [
Footnote 14]
How dangerous to liberty of the press would be the
Page 255 U. S. 432
holding that the second-class mail service merely a privilege,
which Congress may deny to those whose views it deems to be against
public policy, is shown by the following contention made in 1912 by
the Solicitor General in the
Lewis case (
See
Brief, pp. 46, 47):
"A possible abuse of power is no argument against its existence,
but we may as well observe that a denial of the mails to a paper
because of its ownership or the views held by its owners may well
be illegal as having no relation to the thing carried in the mails
unless the views are expressed in the paper; but
if
such views are expressed in the paper, Congress can doubtless
exclude them, just as Congress could now exclude all papers
advocating lotteries, prohibition, anarchy, or a protective tariff
if a majority of Congress thought such views against public
policy."
(Italics in the original.) [
Footnote 15]
(b) The right which Congress has given to all properly
circumstanced persons to distribute newspapers and periodicals
through the mails is a substantial right.
Hoover v.
McChesney, 81 F. 472;
Payne v. Nat. Ry.Pub. Co., 20
App.D.C. 581; 192 U.S. 602. It is of the same nature as -- indeed,
it is a part of -- the right to carry on business which this Court
has been jealous to protect against what it has considered
arbitrary deprivations.
Adair v. United States,
208 U. S. 161;
Coppage v. Kansas, 236 U. S. 1;
Adams v. Tanner, 244 U. S. 590;
Allgeyer v. Louisiana, 165 U. S. 578. A
law by which certain publishers were unreasonably or arbitrarily
denied the low rates would deprive them of liberty or property
without due process of law, and it
Page 255 U. S. 433
would likewise deny them equal protection of the laws.
Compare Second Employers' Liability Cases, 223 U. S.
1,
223 U. S. 52-53.
The Court might hold that a statute which conferred upon the
Postmaster General the power to do this, because of supposed past
infractions of law, was unreasonable and arbitrary; particularly in
respect to second-class mail, which affords ample opportunity for
preventing the transmission of unmailable matter, and hence
obnoxious to the Fifth Amendment.
The contention that, because the rates are noncompensatory, use
of the second-class mail is not a right, but a privilege, which may
be granted or withheld at the pleasure of Congress rests upon an
entire misconception when applied to individual members of a class.
The fact that it is largely gratuitous makes clearer its position
as a right, for it is paid for by taxation. [
Footnote 16]
(c) The order revoking the entry of the Milwaukee Leader to
second-class mail was clearly a punitive, not a preventive,
measure, as all classes of mail except the second were, as the
Postmaster General states, left open to it, provided it had
sufficient financial resources. Of
Page 255 U. S. 434
the three left available, the third class, being for
"miscellaneous printed matter," was an appropriate one for
distributing newspapers, and was the cheapest. But the additional
cost to the publisher involved in distributing daily 9,000 copies,
by the third-class mail would be a very serious one. The actual and
intended effect of the order was merely to impose a very heavy
fine, possibly $150 a day, for supposed transgression in the past.
But the trial and punishment of crimes is a function which the
Constitution, Article III, § 2, cl. 3, entrusts to the judiciary.
[
Footnote 17] I am not aware
that any other civil administrative officer has assumed, in any
country in which the common law prevails, the power to inflict upon
a citizen severe punishment for an infamous crime. Possibly the
court would hold that Congress could not, in view of Article III of
the Constitution, confer upon the Postmaster General, as a mere
incident in the administration of his department, authority to
issue an order which could operate only as a punishment.
See
Wong Wing v. United States, 163 U. S. 228,
163 U. S.
235-237.
(d) The Sixth Amendment guarantees that, in all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial by an impartial jury of the state and district wherein
the crime shall have been committed, and that he shall be
confronted with the witnesses against him. It is only in the case
of petty offenses that the jury may be dispensed with.
Schick
v. United States, 195 U. S. 65,
195 U. S. 68.
What is in effect a very heavy fine has been imposed by the
Postmaster General. It has been imposed because he finds that the
publisher has committed the crime of violating the Espionage Act.
And that finding is based in part upon "representations and
complaints from sundry good and loyal citizens"
Page 255 U. S. 435
with whom the publisher was not confronted. It may be that the
Court would hold, in view of Article Sixth in our Bill of Rights,
that Congress is without power to confer upon the Postmaster
General, or even upon a court, except upon the verdict of a jury
and upon confronting the accused with the witnesses against him,
authority to inflict indirectly such a substantial punishment as
this.
See Callan v. Wilson, 127 U.
S. 540;
Thompson v. Utah, 170 U.
S. 343.
(e) The punishment inflicted is not only unusual in character;
it is, so far as known, unprecedented in American legal history.
Every fine imposed by a court is definite in amount. [
Footnote 18] Every fine prescribed
by Congress is limited in amount. Statutes frequently declare that
each day's continuation of an offense shall constitute a new crime.
But here, a fine imposed for a past offense is made to grow
indefinitely each day -- perhaps throughout the life of the
publication. Already, having grown at the rate of say $150 a day,
it may aggregate, if the circulation has been maintained, about
$180,000 for the three years and four months since the order was
entered, and its growth continues. It was assumed in
Waters-Pierce Oil Co. v. Texas (No. 1), 212 U. S.
86,
212 U. S. 111,
that an excessive fine, even if definite, would violate the Eighth
Amendment. Possibly the Court, applying the Eighth Amendment, might
again, as in
Weems v. United States, 217 U.
S. 349,
217 U. S. 381,
make clear the "difference between unrestrained power and that
which is exercised under the spirit of constitutional limitations
formed to establish justice."
The suggestion is made that, if a new application for entry to
second-class mail had been made, the publishers might have been
granted a certificate. It is no bar to proceedings to set aside an
illegal sentence that an application
Page 255 U. S. 436
to the Executive for clemency might have resulted in a
pardon.
In conclusion, I say again -- because it cannot be stressed too
strongly -- that the power here claimed is not a war power. There
is no question of its necessity to protect the country from
insidious domestic foes. To that end, Congress conferred upon the
Postmaster General the enormous power contained in the Espionage
Act of entirely excluding from the mails any letter, picture, or
publication which contained matter violating the broad terms of
that act. But it did not confer, and the Postmaster General
concedes that it did not confer, the vague and absolute authority
practically to deny circulation to any publication which in his
opinion is likely to violate in the future any postal law. The
grant of that power is construed into a postal rate statute passed
40 years ago which has never before been suspected of containing
such implications. I cannot believe that, in establishing postal
classifications in 1879, Congress intended to confer upon the
Postmaster General authority to issue the order here complained of.
If, under the Constitution, administrative officers may, as a mere
incident of the peacetime administration of their departments, be
vested with the power to issue such orders as this, there is little
of substance in our Bill of Rights, and in every extension of
governmental functions lurks a new danger to civil liberty.
[
Footnote 1]
Act March 3, 1885, c. 342, § 1, 23 Stat. 387; Act March 3, 1879,
c. 180, § 17, 20 Stat. 359, 360.
Compare Act Oct. 3, 1917,
c. 63, § 1101, 40 Stat. 327.
See Message of the President,
February 22, 1912, transmitting the Report of the Commission on
Second-Class Mail Matter, 62d Cong., 2d Session, H.R.Doc. 559, pp.
56-61.
[
Footnote 2]
Criminal Code, § 211 (obscene matter, information concerning
abortion); § 212 (obscene, libelous or threatening matter upon
envelopes or postal cards); § 213 (matter concerning lotteries); §
215 (schemes to defraud); § 217 (poisons, insects, reptiles,
explosives, intoxicating liquors). By Act March 4, 1911, c. 241, §
2, § 211 of the Criminal Code,
supra, was amended to
include matter of a character to incite arson, murder, or
assassination; by Act March 3, 1879, c. 180, § 15, 20 Stat. 359,
matter violating copyright laws was excluded; by Act July 31, 1912,
c. 263, § 1, 37 Stat. 240, prize-fight films were excluded; by Act
March 3, 1917, c. 162, § 5, 39 Stat. 1069, advertisements and
solicitations for orders for intoxicating liquors in prohibition
states.
[
Footnote 3]
Like punishment is provided in all statutes referred to in
note 2 except that mailing
matter violative of the Copyright Law is not punishable criminally.
The maximum punishment for mailing prize-fight films is a fine of
$1,000 and imprisonment for one year.
[
Footnote 4]
Criminal Code, §§ 211, 212, 213, 217; Act March 3, 1917, c. 162,
§ 5, 39 Stat. 1069; Espionage Act June 15, 1917, c. 30, Title XII,
40 Stat. 230.
[
Footnote 5]
Orders excluding individual issues of newspapers or periodicals
because of unmailable matter contained therein were sustained in
Masses Publishing Co. v. Patten, 246 F. 24, and
Anderson v. Patten, 247 F. 382. In
Post Publishing Co.
v. Murray, 230 F. 773, and
Brooklyn Daily Eagle v.
Voorhies, 181 F. 579, such orders were enjoined as being
unwarranted by the facts.
See also Davis v. Brown, 103 F.
909.
[
Footnote 6]
Revised Statutes, § 3929, as amended by Act Sept.19, 1890, c.
908, § 2, 26 Stat. 465 as amended by Act March 2, 1895, c.191, § 4,
28 Stat. 964.
By § 2 of the Act of May 16, 1918, c. 75, 40 Stat. 554, enacted
after this case had gone to judgment in the trial court, authority
was conferred upon the Postmaster General to stop in like manner
delivery of mail to a person whom he finds "upon evidence
satisfactory to him" to be using the mails in violation of the
Espionage Act.
[
Footnote 7]
In the Sixty-Third Congress, Third Session (1915), a bill, H.R.
20644, was introduced to deny absolutely the use of the mail to any
person who, in the opinion of the Postmaster General,
"is engaged or represents himself as engaged in the business of
publishing any books or pamphlets of an indecent, immoral,
scurrilous or libelous character."
It was objected, the
"bill would invest one man . . . with the power to destroy the
business of a publisher without affording any opportunity for trial
by jury, according to regular court practice. The punishment which
may be inflicted upon a publisher by the Postmaster General under
the provisions of this bill is most severe, absolutely depriving
him of the privilege of using the United States mails, even for
legitimate purposes. . . . Furthermore, this bill makes it possible
for the Postmaster General to inflict what is practically a
confiscatory penalty for an offense not clearly defined. . . .
Under such circumstances as these, it is not safe to leave to the
decision of one man, after an
ex parte investigation, a
decision which will involve the freedom of the press. Trial by jury
and a penalty inflicted for each specified act is the only
safeguard against an arbitrary and tyrannical power."
The bill failed of passage. Hearings before Committee on Post
Office and Post Roads, February 1, 1915, On Exclusion of Certain
Publications from the Mails, pp. 38, 39, 63d Cong.3d Sess.
See The Postal Power of Congress, by Lindsay Rogers, Johns
Hopkins University Studies (1916, Series XXXIV, No. 2) pp. 158,
159.
[
Footnote 8]
In a letter to Senator Bankhead, the Postmaster General
said:
"I will state generally with regard to the action of the
Department that no newspaper or periodical has been denied the
privilege of the mails as such. Particular issues of certain
publications have been found to contain matter that would interfere
with the operation and success of the military and naval forces,
etc., etc. . . . , and therefore unmailable under the act in
question."
Cong.Rec. Aug. 22, 1917, pp. 6851-6857.
See also a
letter to Mr. Moon, Chairman of the House Committee on Post Offices
and Post Roads, House Report No. 109, 65th Congress, 1st
Session.
[
Footnote 9]
Act of March 3, 1879, c. 180, § 14, 20 Stat. 359:
"That the conditions upon which a publication shall be admitted
to the second-class are as follows:"
"First. It must regularly be issued at stated intervals, as
frequently as four times a year, and bear a date of issue, and be
numbered consecutively."
"Second. It must be issued from a known office of
publication."
"Third. It must be formed of printed paper sheets, without
board, cloth, leather, or other substantial binding, such as
distinguish printed books for preservation from periodical
publications."
"Fourth. It must be originated and published for the
dissemination of information of a public character, or devoted to
literature, the sciences, arts, or some special industry, and
having a legitimate list of subscribers:
Provided,
however, that nothing herein contained shall be so construed
as to admit to the second class rate regular publications designed
primarily for advertising purposes, or for free circulation, or for
circulation at nominal rates."
Act of August 24, 1912, c. 389, § 1, 37 Stat. 550, applying to
publications of benevolent, professional, etc., societies,
educational institutions, state boards, trade unions, etc.
Act of August 24, 1912, c. 389, § 2, 37 Stat. 553, requiring a
sworn statement of the names of editors, owners, stockholders,
bondholders, etc., and that all paid matter be plainly marked
"advertisement."
Lewis Publishing Co. v. Morgan,
229 U. S. 288.
[
Footnote 10]
In a letter to Senator Bankhead August 22, 1917, Cong.Rec. pp.
6851-6857, submitted at the argument, the Postmaster General
said:
"For many (?) years, this department has held publications not
to be 'regularly issued' in contemplation of law when any issue
contained nonmailable matter, and when the second-class privilege
has been withdrawn under such circumstances, the formal notice of
withdrawal has contained the statement that the second-class
privilege has been revoked on both the grounds stated."
In his report for the year ending June 30, 1918, the Postmaster
General says, p. 46:
"In the administration of the law governing second-class matter,
it was again found necessary to revoke the second-class mail
privilege of some publications for the reason that their contents
consisted more or less of matter which was nonmailable under the
Espionage and other laws, and which therefore removed them from the
class of publications entitled to that privilege."
The statement is repeated in the Postmaster General's Report for
the Year Ending June 30, 1919, p. 25.
[
Footnote 11]
The orders of the Postmaster General excluding periodicals from
second-class mail sustained in
Houghton v. Payne,
194 U. S. 88,
Bates & Guild Co. v. Payne, 194 U.
S. 106, and
Smith v. Hitchcock, 226 U. S.
53, as well as the fraud orders sustained in
Public
Clearing House v. Coyne, 194 U. S. 497, and
that with which the Court refused to interfere by certiorari in
Degge v. Hitchcock, 229 U. S. 162,
involved merely decisions of this nature. In
American School of
Magnetic Healing v. McAnnulty, 187 U. S.
94, his fraud order was set aside because wholly
unwarranted by the facts.
[
Footnote 12]
Under recent legislation, a "permit" may be issued for either
first, third or fourth class mail. Under Act April 28, 1904, c.
1759, § 2, as amended by Act May 18, 1916, c. 126, § 13, and Act
April 24, 1920, 41 Stat. 583, identical articles may be deposited
in large quantities without stamps affixed and sent at first, third
or fourth class rates, according to their nature, by paying the
postage in advance in cash in a lump sum.
[
Footnote 13]
In the one case where drastic preventive measures were
considered necessary -- in the case of the foreign language press
-- Congress granted discretionary power to the Postmaster General
specifically and in plain terms. By Act Oct. 6, 1917, c. 106, § 19,
40 Stat. 425 (the Trading with the Enemy Act), it was provided
that, until the end of the war, foreign language papers should be
nonmailable unless a translation should have been previously filed
with the local postmaster, but that the Postmaster General might,
at his discretion, grant a permit to mail without such translation.
This act applied to publication sent by any class of the mails.
[
Footnote 14]
See "Freedom of Speech" by Zechariah Chafee, Jr., pp.
105-109, 233-234; also p. 199:
"A newspaper editor fears being put out of business by the
administrative denial of the second-class mailing privilege much
more than the prospect of prison subject to a jury trial."
It has been uniformly held that a statute prescribing similar
penalties for failure to observe its provisions or the order of a
public service commission, although made after full hearing, are a
deterrent so potent as to amount to a denial of the right to a
judicial review, and operate as a taking of property without due
process of law in violation of the Fourteenth Amendment.
Ex
Parte Young, 209 U. S. 123,
209 U. S. 147;
Missouri Pacific Ry. Co. v. Tucker, 230 U.
S. 340,
230 U. S. 349;
Wadley Southern Ry. Co. v. Georgia, 235 U.
S. 651,
235 U. S. 662;
Oklahoma Operating Co. v. Love, 252
U. S. 351,
252 U. S.
337.
[
Footnote 15]
It was, perhaps, in reference to this contention that the Court
said in closing its opinion in that case (p
229 U. S.
316):
"We do not wish even by the remotest implication to be regarded
as assenting to the broad contentions concerning the existence of
arbitrary power through the classification of the mails, or by way
of conditions embodied in the proposition of the government which
we have previously stated."
[
Footnote 16]
This is true although the deficit is covered directly, in large
part, by profits on first-class mail. The net cost of this service
to the government was, before the World War, equal to one-tenth of
its expenditures for all other than postal purposes.
Compare
Lewis Publishing Co. v. Morgan, 229 U.
S. 288,
229 U. S. 304,
with 34 Statistical Abstract of the United States (1911)
p. 656. The justification for this noncompensatory service lies in
the belief that education in its broad sense -- intellectual
activity fostered through the dissemination of information and of
ideas -- is essential to the life of a free, self-governing and
striving people. This noncompensatory service is comparable to many
rendered by the government --
e.g., to the facilitation of
communication and commerce by port, canal, passport, or consular
services, for all of which only small charges, or none, are
made.
That a government furnishing public service must be judged by
ordinary standards of public callings,
see Chafee on
Freedom of Speech, p. 109, citing H. J. Laski, in 31 Harvard Law
Review, 186, and Laski's Authority in the Modern State, p. 378.
[
Footnote 17]
Compare Harbor Commissioners v. Redwood Co., 88 Cal.
491;
Cleveland, etc., Ry. Co. v. People, 212 Ill. 638;
Langenberg v. Decker, 131 Ind. 471;
In re Sims,
54 Kan. 1.
[
Footnote 18]
Compare Morris v. State, 1 Blackf. (Ind.) 37, 38;
State v. Bennett, 20 N.C. 170;
Easterling v.
State, 35 Miss. 210.
MR. JUSTICE HOLMES, dissenting.
I have had the advantage of reading the judgment of my Brother
BRANDEIS in this case, and I agree in substance with his view. At
first it seemed to me that, if a publisher should announce in terms
that he proposed to print treason and should demand a second-class
rate, it must be that the Postmaster General would have
authority
Page 255 U. S. 437
to refuse it. But reflection has convinced me that I was wrong.
The question of the rate has nothing to do with the question
whether the matter is mailable, and I am satisfied that the
Postmaster cannot determine in advance that a certain newspaper is
going to be nonmailable, and, on that ground, deny to it not the
use of the mails but the rate of postage that the statute says
shall be charged.
Of course, the Postmaster may deny or revoke the second-class
rate to a publication that does not comply with the conditions
attached to it by statute; but as my Brother BRANDEIS has pointed
out, the conditions attached to the second-class rate by the
statute cannot be made to justify the Postmaster's action except by
a quibble. On the other hand, the regulation of the right to use
the mails by the Espionage Act has no peculiarities as a war
measure, but is similar to that in earlier cases, such as obscene
documents. Papers that violate the Act are declared nonmailable,
and the use of the mails for the transmission of them is made
criminal. But the only power given to the Postmaster is to refrain
from forwarding the papers when received, and to return them to the
senders. Act of June 15, 1917, c. 30, Title XII, 40 Stat. 217, 230;
Act of May 16, 1918, c. 75, 40 Stat. 553, 554. He could not issue a
general order that a certain newspaper should not be carried
because he thought it likely or certain that it would contain
treasonable or obscene talk. 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, 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. There is no pretence that it has done so.
Therefore, I do not consider the limits of its constitutional
power.
To refuse the second-class rate to a newspaper is to make its
circulation impossible, and has all the effect of
Page 255 U. S. 438
the order that I have supposed. I repeat. When I observe that
the only powers expressly given to the Postmaster General to
prevent the carriage of unlawful matter of the present kind are to
stop and to return papers already existing and posted, when I
notice that the conditions expressly attached to the second-class
rate look only to wholly different matters, and when I consider the
ease with which the power claimed by the Postmaster could be used
to interfere with very sacred rights, I am of opinion that the
refusal to allow the relator the rate to which it was entitled
whenever its newspaper was carried, on the ground that the paper
ought not to be carried at all, was unjustified by statute and was
a serious attack upon liberties that not even the war induced
Congress to infringe.