394 U.S. 977 (1969)

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U.S. Supreme Court


394 U.S. 977

Walter D. TEAGUE, III, et al., petitioners, v. REGIONAL COMMISSIONER OR CUSTOMS, REGION II, et al. No. 1061.

Supreme Court of the United States April 21, 1969 Rehearing Denied May 26, 1969. See 395 U.S. 930.

Henry Winestine, Osmond K. Fraenkel, Melvin L. Wulf and Alan H. Levine, for petitioners.

Solicitor General Griswold, for respondents.

Petition for writ of certiorari to the United States Court of Appeals for the Second Circuit.


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.


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 [394 U.S. 977 , 979]

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