Whether the advertising of a medicinal preparation through the
mails so grossly overstates its true virtue as to work a fraud upon
the public is a question of fact committed to the decision of the
Postmaster General, and his conclusion will not be reviewed by the
courts when fairly arrived at and supported by substantial
evidence. P. 258 U. S.
267 F. 61 affirmed.
Appeal from a decree of the circuit court of appeals which
affirmed a decision of the district court dismissing the bill in
appellant's suit to enjoin enforcement of a postal fraud order.
MR. JUSTICE CLARKE delivered the opinion of the Court.
The appellant, doing business in the name of "Organo Product
Company," in his bill prayed for an injunction restraining the
Postmaster at Chicago from giving effect to a "fraud order" against
him, issued by the Postmaster General on August 15, 1919, pursuant
to authority of Revised Statute, §§ 3929 and 4041. The order was in
the usual form, prohibiting the delivery of mail or payment of
money orders to appellant, and directing the disposition of mail
which should be addressed to him. The district court, refusing the
injunction, dismissed the bill, and the circuit court of appeals
affirmed its decree. Leach v. Carlile,
267 F. 61.
Page 258 U. S. 139
The appellant was engaged in selling what he called "Organo
Tablets," which he advertised extensively through the mails as
"recommended and prescribed by leading physicians throughout the
civilized world for nervous weakness, general debility, sexual
decline, or weakened manhood and urinary disorders . . . ,
sleeplessness and rundown system,"
and various other ailments.
Appellant is an old offender, a prior fraud order having been
issued against him under another name in April, 1918, as a result
of which he changed his tradename and modified in a measure his
The order complained of was entered after an elaborate hearing,
of which the appellant had due notice and at which he was
represented by counsel, and introduced much evidence.
The only error assigned in this Court is the affirming by the
circuit court of appeals of the decree of the district court,
refusing the injunction and dismissing the bill. In argument, it is
contended that the question decided by the Postmaster General was
that the substance which the appellant was selling did not produce
the results claimed for it, that this, on the record, was a matter
of opinion as to which there was conflict of evidence, and that
therefore the case is within the scope of American School of
Magnetic Healing v. McAnnulty, 187 U. S.
. Without considering whether such a state of facts
would bring the case within the decision cited, it is sufficient to
say that the question really decided by the lower courts was not
that the substance which appellant was selling was entirely
worthless as a medicine, as to which there was some conflict in the
evidence, but that it was so far from being the panacea which he
was advertising it through the mails to be that, by so advertising,
it he was perpetrating a fraud upon the public. This was a question
of fact which the statutes cited committed to the decision of the
Postmaster General, and the applicable, settled rule of law is that
Page 258 U. S. 140
conclusion of a head of an executive department on such a
question, when committed to him by law, will not be reviewed by the
courts where it is fairly arrived at and has substantial evidence
to support it, so that it cannot justly be said to be palpably
wrong, and therefore arbitrary. Bates & Guild Co. v.
Payne, 194 U. S. 106
194 U. S.
-109; Smith v. Hitchcock, 226 U. S.
, 226 U. S. 58
Houston v. St. Louis Independent Packing Co., 249 U.
, 249 U. S. 484
United States ex rel. Milwaukee Social Democratic Publishing
Co. v. Burleson, 255 U. S. 407
255 U. S.
An examination of the record fully justifies the conclusion of
the circuit court of appeals that it not only fails to show that
the Postmaster General had no warrant of law for his order but
that, on the contrary, it shows there was abundant ground for it.
The decree of the circuit court of appeals must be
MR. JUSTICE HOLMES dissenting.
The statute under which fraud orders are issued by the
Postmaster General has been decided or said to be valid so many
times that it may be too late to expect a contrary decision. But
there are considerations against it that seem to me never to have
been fully weighed, and that I think it my duty to state.
The transmission of letters by any general means other than the
post office is forbidden by the Criminal Code, §§ 183-185.
Therefore, if these prohibitions are valid, this form of
communication with people at a distance is through the post office
alone, and, notwithstanding all modern inventions, letters still
are the principal means of speech with those who are not before our
face. I do not suppose that anyone would say that the freedom of
written speech is less protected by the First Amendment than the
freedom of spoken words. Therefore, I cannot
Page 258 U. S. 141
understand by what authority Congress undertakes to authorize
anyone to determine in advance, on the grounds before us, that
certain words shall not be uttered. Even those who interpret the
Amendment most strictly agree that it was intended to prevent
previous restraints. We have not before us any question as to how
far Congress may go for the safety of the nation. The question is
only whether it may make possible irreparable wrongs and the ruin
of a business in the hope of preventing some cases of a private
wrong that generally is accomplished without the aid of the mail.
Usually private swindling does not depend upon the post office. If
the execution of this law does not abridge freedom of speech, I do
not quite see what could be said to do so.
Even if it should be held that the prohibition of other modes of
carrying letters was unconstitutional, as suggested in a qualified
way in Matter of Jackson, 96 U. S.
, it would not get rid of the difficulty to my mind,
because the practical dependence of the public upon the post office
would remain. But the decision in that case admits that possibly at
least the prohibition as to letters would be valid. That case was
not dealing with sealed letters. The decisions thus far have gone
largely, if not wholly, on the ground that, if the government chose
to offer a means of transportation which it was not bound to offer,
it could choose what it would transport, which is well enough when
neither law nor the habit that the government's action has
generated has made that means the only one. But when habit and law
combine to exclude every other, it seems to me that the First
Amendment in terms forbids such control of the post as was
exercised here. I think it abridged freedom of speech on the part
of the sender of the letters, and that the appellant had such an
interest in the exercise of their right that he could avail himself
of it in this case. Buchanan v. Warley, 245 U. S.
MR. JUSTICE BRANDEIS concurs in this opinion.