Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins,
dissenting from the Court's denial of certiorari.
This case presents a highly important question under the First
Amendment, namely whether, as the court below held, American
citizens can be required to apply to the Treasury Department's
Office of Foreign Assets Control for a license in order to receive
magazines, films, or other publications sent to them from mainland
China, North Korea, or North Vietnam. The decision of the Court of
Appeals may well be inconsistent with Lamont v. Postmaster General,
381 U.S. 301
(1965), in which we recently invalidated a somewhat similar
regulation of the Post Office Department. Nevertheless, the Court
denies certiorari here. It seems plain that the sole explanation
for the Court's action is the fact that the petition for
certiorari, having been delayed by an unusually severe snowstorm,
arrived here two days after the 90-day period allowed for seeking
certiorari, 28 U.S.C. 2101(c), would normally expire. Because I
think the important First Amendment issue in this case demands
consideration by this Court, and because I cannot accept the
Court's interpretation of 2101(c), which penalizes petitioners for
a snowstorm, an act of God, I must dissent.
I.
Petitioners are addressees of mail packages containing
publications originating in China and North Vietnam. When these
packages reached the United States they were detained by the
Commissioner of Customs pursuant
Page 394 U.S.
977 , 978
to the Foreign Assets Control Regulations, 31 CFR 500.808. The
Commissioner then sent notice to petitioners, advising them that
this mail would be released only if licenses were obtained from the
Office of Foreign Assets Control. Petitioners did not apply for
licenses but instead brought this suit, claiming that the
regulations were unconstitutional. Their primary claim was and is
that the regulations, by authorizing customs officials to refuse
delivery under some circumstances and by requiring in all cases
that the addressees submit to the cumbersome and time-consuming
licensing process, abridged their First Amendment rights to receive
published material.
The decision below, upholding these regulations, seems difficult
to reconcile with our recent decision in Lamont, supra. In that
case we held unconstitutional a Post Office regulation that
required addressees of 'communist political propaganda' to notify
the Post Office explicity of their desire to receive such
publications in order to obtain delivery. We stated that the fatal
flaw of the scheme was that 'it requires an official act (viz.
returning of the reply card) as a limitation on the unfettered
exercise of the addressee's First Amendment rights'. 381 U S., AT
305. In the present case the burden imposed on addressees is, if
anything, far greater than that involved in Lamont. The addressee
is not merely required to fill out and return a reply card, after
which the magazine will automatically be sent. In the present case
something quite different is required. The addressee must fill out
a detailed license application and file it in duplicate. [
Footnote 1] He has no assurance that
his application, once filed, will be granted, and in fact the
regulations provide only general guidance as to the factors that
will be considered in determining whether to
Page 394 U.S.
977 , 979
grant a license. [
Footnote
2] Processing of the application normally requires about 10
days, according to the Government, but this period, which is itself
not inconsiderable, may in fact represent only the minimum delay.
[
Footnote 3]
Only one justification is suggested for the very severe prior
restraint on First Amendment rights that results from this
licensing scheme. The Court of Appeals said that the regulations
are permissible as a means of restricting the flow of American
currency to designated foreign countries determined to be hostile
to the United States. Petitioners, on the other hand, argue broadly
that they have a right under the First Amendment to purchase
publications from any source of their choosing even a country with
which we might be at war. It may not, however, even be necessary to
reach this important question because there is considerable doubt
whether
Page 394 U.S.
977 , 980
the regulations relating to publications can be considered
necessary for preventing the outflow of American currency. Other
regulations promulgated under the President's emergency power to
control transactions in foreign exchange, 50 U.S.C. App. 5(b),
broadly prohibit the making of any payments directly or indirectly
to the designated foreign countries or their nationals by any
person or corporation subject to the jurisdiction of the United
States, regardless of how such payments are effectuated and
regardless of whether the banks or other institutions serving as
intermediaries are located in third countries. 31 CFR 500.201.
Violation of these regulations is a felony punishable by heavy
penalties. 50 U.S.C. App. 5(b)(1). Although the licensing
provisions related to publications may make it more difficult to
evade this direct prohibition against foreign exchange transactions
with the designated countries, such incidental be efits in the
enforcement of even a permissible governmental policy ordinarily do
not justify infringement on First Amendment rights. Cf. Smith v.
California,
361 U.S.
147 (1959). In addition, the regulations explicitly permit the
purchase of publications from these countries 'without restrictions
as to shipment or method of payment' in the case of universities,
libraries, research and scientific institutions acting under
programs approved by the Librarian of Congress or the National
Science Foundation. 31 CFR 500.204 App. (108). The additional
demand for these publications by private parties may be
insignificant compared to the volume of transactions the Government
has chosen to permit in the case of 'approved' institutions. In
fact, the remaining potential dollar outflow, and especially the
part of it that would not be checked by the general prohibitions
relating to foreign exchange transactions, may be so insubstantial
that the only significant effect of the regulations would
Page 394 U.S.
977 , 981
be to choke off the flow of these publications to readers who
would not actually pay for them but who may not take the trouble to
fill out the required forms or who may not be able to establish, to
the satisfaction of the Government's licensing officials, that the
publications involved were in fact gifts. Under these
circumstances, the regulations involved here surely raise a serious
First Amendment question that should be heard and decided by this
Court.
II.
The only apparent explanation for the Court's denial of
certiorari in this case is the fact that the petition arrived here
two days after the 90- day period allowed by 28 U.S.C. 2101(c) for
seeking certiorari in a civil case would normally have expired. The
circumstances under which this occurred are these. The judgments
sought to be reviewed were entered on November 14, 1968, and the
90-day period therefore expired on Wednesday, February 12, 1969.
The petition for certiorari, along with the required number of
copies, was sent from New York City by first-class mail at about
noon on Monday, February 10. A severe snowstorm had hit New York
City the night before, causing considerable disruption of many
services including, as it turned out, the mails. Counsel for
petitioners no doubt anticipated that some delay might possibly
result from the storm, but since firstclass mail from New York
normally reaches Washington overnight, they could not have
anticipated that it would take more than the remaining two and one-
half days for their petition to arrive. In fact, however, the
petition took four days to reach Washington and was docketed here
on Friday, February 14, 1969.
The statute governing the time for seeking certiorari in a civil
case, 28 U.S.C. 2101(c), provides that a petition for review of any
judgment or decree 'shall be taken or applied for within ninety
days after the entry
Page 394 U.S.
977 , 982
of such judgment or decree.' It is suggested by the Solicitor
General, on behalf of respondents here, that this statute is
'jurisdictional,' and that we must follow it. I agree, of course,
that we should follow the statute. But we must first determine what
the statute means. Commentators and this Court alike have often
said that the statute is 'jurisdictional,' and no doubt this
statement is true in certain senses of that term. But the statement
certainly is not true if it is intended to suggest that the statute
deprives this Court of all power to hear cases filed after the 90-
day period, regardless of whether the delay was caused by
snowstorms making the transportation of the mails impossible. Under
no known principle of statutory construction can such an
interpretation of 2101(c) be supported. Nor have I been able to
find any case interpreting the statute in this way. Although many
cases repeat the 'jurisdictional' formula, none of them that I have
found involved situations where the delay was wholly caused by
circumstances entirely beyond the petitioner's control. In fact,
many of the early cases inte preting Rev.Stat. 997, 1008, the
predecessors of 2101(c), made clear that this Court had power to
waive the time requirement of these provisions under appropriate
circumstances. [
Footnote 4] In
recent years this Court has on occasion granted certiorari and
decided on the merits civil cases that had been filed after the
90-day period, without making any mention of the time question.
See, e. g., Ray v. Pierson,
386 U.S. 547 (1967) (No.
94, October Term, 1966).
In addition, we have squarely adopted this approach in
interpreting several related statutes. The provision governing
direct appeals to this Court from a district court, now 2101(a),
provides that '[t]he record shall
Page 394 U.S.
977 , 983
be made up and the case docketed within sixty days from the time
such appeal is taken under rules prescribed by the Supreme Court.'
The Court held, under circumstances much less compelling than those
present here, that this provision did not eliminate our power to
hear appeals docketed after the 60-day period, noting that '[i]t
would not expedite determination of constitutional questions to
dismiss appeals because of errors in practice.' United Public
Workers of America v. Mitchell,
330 U.S.
75, 86 (1947). The cases deciding the timeliness of an appeal
to the court of appeals have reached the same result under statutes
that were even more clearly phrased in mandatory terms, and did not
explicitly include even an indirect reference to a judicial
rule-making power on the subject. E. g., Georgia Hardwood Lumber
Co. v. Compania,
323
U.S. 334 (1945); R. F. C. v. Prudence Securities Advisory
Group,
311 U.S.
579 (1941).
As all these cases show, the Court's draconic interpretation of
the statute is not supported by our prior decisions. Nor does the
language of the statute itself dictate the Court's result. The
statute does not say explicitly that the time limitation may be
inapplicable under certain extenuating circumstances but it also
does not say that the time limit must be ruthlessly applied in
every conceivable situation, without regard to hardships involved
or extenuating circumstances present. The Court therefore must
decide what is the more sensible interpretation of the statute. I
for one cannot think of any purpose Congress might have had that
could possibly be served by holding that a litigant can be defeated
solely because of a delay that was entirely beyond his control. As
we stressed in the R. F. C. case, supra:
'If that were true, the existence of
the right to appeal would be subject to contingencies which no
Page 394 U.S.
977 , 984
degree of diligence by an appellant could control. Ambiguities
in statutory language should not be resolved so as to imperil a
substantial right which has been granted.' 311 U.S., at 582.
It might be well to imagine for a moment what would have
happened if some Senator or Representative had suggested an
amendment to 'clarify' the proposed 2101(c) by stating that a
petition filed after the 90-day period will not be out of time
'when the delay is caused solely by an interruption of the mail
service due to snow storms.' It is conceivable that more than a few
members of Congress would consider such an amendment an insult to
this Court's intelligence and would feel it unnecessary to lead
this Court by the hand on such matters of elementary common sense.
It is impossible, however, to believe that any of them would have
regarded an amendment to the opposite effect as properly reflecting
the purpose of the statute, and yet this opposite amendment, ruling
a petition out of time under these circumstances, is precisely the
amendment that the Court today tacitly engrafts onto 2101(c).
I would not adopt any such pointlessly harsh interpretation of
the statute, one that furthers no congressional objective
whatsoever and denies litigants their opportunity to seek review in
this Court on the basis of atmospheric events wholly beyond their
control. This is a return to all the cruel technicalities of
commonlaw pleading, and then some. I would grant certiorari and
hear argument on the vital First Amendment issues at stake in this
case
Mr. Justice HARLAN would also grant certiorari, but would
postpone the question of jurisdiction to consideration of the case
on the merits.
Footnotes
Footnote 1 31 CFR
500.801(b)(2).
Footnote 2 31 CFR 500.204
App. (108) provides as follows:
'Publications and films from China,
North Korea and North Viet Nam. Publications and films originating
in mainland China, North Korea or North Viet Nam are licensed for
commercial importation provided all payments due to the suppliers
are made into blocked accounts. Publications and films originating
in mainland China, North Korea, and North Viet Nam are also
licensed without restrictions as to shipment or method of payment
under programs approved by the Librarian of Congress or the
National Science Foundation for universities, libraries, research
and scientific institutions. Such publications and films are also
licensed in exchange for publications from the United States.
Additionally, such publications and films are licensed when the
Office of Foreign Assets Control is satisfied that they are bona
fide gifts to the importers and that there is not and has not been
since the effective date any direct or indirect financial or
commercial benefits to designated countries or nationals thereof
from the importations.'
Footnote 3 After the
commencement of this suit, petitioner Pollin applied for a license
and after waiting four weeks received only a request for additional
information; the license was finally granted after a total delay of
eight weeks. Similarly, petitioner Teague waited five weeks after
submitting a license application, only to receive a request that he
answer an additional number of detailed questions; he did not
pursue the matter further.
Footnote 4 See e. g.,
Grigsby v. Purcell,
99 U.S.
505, 506-507 ( 1879); Richardson v. Green,
130 U.S.
104, 111 ( 1889); Green v. Elbert,
137 U.S.
615, 621-623 ( 1891).