Appellants, who are in the mail-order business, brought suit to
enjoin the operation of 39 U.S.C. § 4009, challenging its
constitutionality. That section provides that a person who has
received by mail
"a pandering advertisement which offers for sale matter which
the addressee in his sole discretion believes to be erotically
arousing or sexually provocative,"
may request the Postmaster General to issue an order "directing
the sender and his agents or assigns to refrain from further
mailings to the named addressee." Such order would also require the
sender to delete the addressee's name from his mailing lists, and
would prohibit him from trading in lists from which the deletion
has not been made. If the Postmaster General believes that his
order has been violated, he may notify the sender of his belief and
the reasons therefor, and must grant him an opportunity to respond
and to have an administrative hearing on whether a violation has
occurred. If the Postmaster General thereafter determines that the
order has been violated, he may request the Attorney General to
seek an order from a district court directing compliance with the
prohibitory order. A three-judge court found that § 4009 was
constitutional when interpreted to prohibit advertisements similar
to those initially mailed to the addressee.
Held:
1. The statute allows the addressee unreviewable discretion to
decide whether he wishes to receive any further material from a
particular sender. Pp.
397 U. S.
731-735.
2. A vendor does not have a constitutional right to send
unwanted material into someone's home, and a mailer's right to
communicate must stop at the mailbox of an unreceptive addressee.
Pp.
397 U. S.
735-738.
3. The statute comports with the Due Process Clause, as it
provides for an administrative hearing if the sender violates the
Postmaster General's prohibitory order, and a judicial hearing
prior to issuance of any compliance order by a district court. Pp.
397 U. S.
738-739.
Page 397 U. S. 729
4. The statute doe not violate due process by requiring that the
sender remove the complaining addressee' name from his mailing
lists, nor is the statute unconstitutionally vague, as the sender
knows precisely what he must do when he receives a prohibitory
order. P.
397 U. S.
740.
300
F. Supp. 1036, affirmed.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
Appellants challenge the constitutionality of Title III of the
Postal Revenue and Federal Salary Act of 1967, 81 Stat. 645, 39
U.S.C. § 4009 (1964 ed., Supp. IV), under which a person may
require that a mailer remove his name from its mailing lists and
stop all future mailings to the householder. The appellants are
publishers, distributors, owners, and operators of mail order
houses, mailing list brokers, and owners and operators of mail
service organizations whose business activities are affected by the
challenged statute.
A brief description of the statutory framework will facilitate
our analysis of the questions raised in this appeal. Section 4009
is entitled "Prohibition of pandering advertisements in the mails."
It provides a procedure
Page 397 U. S. 730
whereby any householder may insulate himself from advertisements
that offer for sale "matter which the addressee in his sole
discretion believes to be erotically arousing or sexually
provocative." 39 U.S.C. § 4009(a) (1964 ed., Supp. IV). [
Footnote 1]
Subsection (b) mandates the Postmaster General, upon receipt of
a notice from the addressee specifying that he has received
advertisements found by him to be within the statutory category, to
issue on the addressee's request an order directing the sender and
his agents or assigns to refrain from further mailings to the named
addressee. Additionally, subsection (c) requires the Postmaster
General to order the affected sender to delete the name of the
designated addressee from all mailing lists owned or controlled by
the sender and prohibits the sale, rental, exchange, or other
transactions involving mailing lists bearing the name of the
designated addressee.
If the Postmaster General has reason to believe that an order
issued under this section has been violated, subsection (d)
authorizes him to notify the sender by registered or certified mail
of his belief and the reasons therefor, and grant him an
opportunity to respond and have a hearing on whether a violation
has occurred.
If the Postmaster General thereafter determines that the order
has been or is being violated, he is authorized to request the
Attorney General to seek an order from a United States District
Court directing compliance with the prohibitory order. Subsection
(e) grants to the district court jurisdiction to issue a compliance
order upon application of the Attorney General.
Appellants initiated an action in the United States District
Court for the Central District of California upon
Page 397 U. S. 731
a complaint and petition for declaratory relief on the ground
that 39 U.S.C. § 4009 (1964 ed., Supp. IV) is unconstitutional.
They alleged that they had received numerous prohibitory orders
pursuant to the provisions of the statute. Appellants contended
that the section violates their rights of free speech and due
process guaranteed by the First and Fifth Amendments to the United
States Constitution. Additionally, appellants argued that the
section is unconstitutionally vague, without standards, and
ambiguous.
A three-judge court was convened pursuant to 28 U.S.C. § 2284
and it determined that the section was constitutional when
interpreted to prohibit advertisements similar to those initially
mailed to the addressee. [
Footnote
2]
300 F.
Supp. 1036.
The District Court construed subsections (b) and (c) to prohibit
"advertisements similar" to those initially mailed to the
addressee. Future mailings, in the view of the District Court, "are
to be measured by the objectionable material of such first
mailing." 300 F. Supp. at 1041. In our view, Congress did not
intend so restrictive a scope to those provisions.
I
. BACKGROUND AND CONGRESSIONAL OBJECTIVES
Section 4009 was a response to public and congressional concern
with use of mail facilities to distribute unsolicited
advertisements that recipients found to be offensive because of
their lewd and salacious character. Such mail was found to be
pressed upon minors, as well as adults, who did not seek and did
not want it. Use of mailing lists of youth organizations was part
of the mode of
Page 397 U. S. 732
doing business. At the congressional hearings, it developed that
complaints to the Postmaster General had increased from 50,000 to
250,000 annually. The legislative history, including testimony of
child psychology specialists and psychiatrists before the House
Committee on the Post Office and the Civil Service, reflected
concern over the impact of the materials on the development of
children. A declared objective of Congress was to protect minors
and the privacy of homes from such material and to place the
judgment of what constitutes an offensive invasion of those
interests in the hands of the addressee.
To accomplish these objectives, Congress provided in subsection
(a) that the mailer is subject to an order "to refrain from further
mailings of such materials to designated addressees." Subsection
(b) states that the Postmaster General shall direct the sender to
refrain from "further mailings to the named addressees." Subsection
(c), in describing the Postmaster's order, states that it shall
"expressly prohibit the sender. . . from making any further
mailings to the designated addressees. . . ." Subsection (c) also
requires the sender to delete the addressee's name "from all
mailing lists," and prohibits the sale, transfer, and exchange of
lists bearing the addressee's name.
There are three plausible constructions of the statute with
respect to the scope of the prohibitory order. The order could
prohibit all future mailings to the addressees, all future mailings
of advertising material to the addressees, or all future mailings
of similar materials.
The seeming internal statutory inconsistency is undoubtedly a
residue of the language of the section as it was initially
proposed. The section as originally reported by the House Committee
prohibited "further mailings of such pandering advertisements," §
4009(a), "further mailings of such matter," § 4009(b), and "any
further mailings of pandering advertisements," § 4009(c).
Page 397 U. S. 733
H.R.Rep. No. 722, 90th Cong., 1st Sess., 125 (1967). The section
required the Postmaster General to make a determination whether the
particular piece of mail came within the proscribed class of
pandering advertisements, "as that term is used in the
Ginzburg case."
Id. at 69.
The section was subsequently amended by the House of
Representatives to eliminate from the Post Office any censorship
function. Congressman Waldie, who proposed the amendment,
envisioned a minimal role for the Post Office. The amendment was
intended to remove "the right of the Government to involve itself
in any determination of the content and nature of these
objectionable materials. . . ." 113 Cong.Rec. 28660 (1967). The
only determination left for the Postmaster General is whether or
not the mailer has removed the addressee's name from the mailing
list. Statements by the proponents of the legislation in both the
House and Senate manifested an intent to prohibit all further
mailings from the sender. In describing the effect of his proposed
amendment, Congressman Waldie stated:
"So I have said in my amendment that, if you receive literature
in your household that you consider objectionable . . . , you can
inform the Postmaster General to have your name stricken from that
mailer's mailing list."
113 Cong.Rec. 28660. The Senate Committee Report on the bill
contained similar language:
"If a person receives an advertisement which . . . he . . .
believes to be erotically arousing . . . he may notify the
Postmaster General of his determination. The Postmaster General is
then required to issue an order to the sender directing him to
refrain from sending any further mailings of any kind to such
person."
S.Rep. No. 801, 90th Cong., 1st Sess., 38.
Page 397 U. S. 734
Senator Monroney, a major proponent of the legislation in the
Senate, described the bill as follows:
"With respect to the test contained in the bill, if the
addressee declared it to be erotically arousing or sexually
provocative, the Postmaster General would have to notify the sender
to send no more mail to that address. . . ."
113 Cong.Rec. 34231 (1967). [
Footnote 3]
The legislative history of subsection (a) thus supports an
interpretation that prohibits all future mailings independent of
any objective test. This reading is consistent with the provisions
of related subsections in the section. Subsection (c) provides that
the Postmaster General
"shall also direct the sender and his agents or assigns to
delete immediately the names of the designated addressees from all
mailing lists owned or controlled by the sender or his agents or
assigns and, further, shall prohibit the sender and his agents or
assigns from the sale, rental, exchange, or other transaction
involving mailing lists bearing the names of the designated
addressees."
39 U.S.C. § 4009(c) (1964 ed., Supp. IV).
It would be anomalous to read the statute to affect only similar
material or advertisements, and yet require the Postmaster General
to order the sender to remove the addressee's name from all mailing
lists in his actual or constructive possession. The section was
intended to allow the addressee complete and unfettered discretion
in electing whether or not he desired to receive further material
from a particular sender.
See n 6,
infra. The impact of this aspect of the
statute is on the mailer, not
Page 397 U. S. 735
the mail. The interpretation of the statute that most completely
effectuates that intent is one that prohibits any further mailings.
Limiting the prohibitory order to similar materials or
advertisements is open to at least two criticisms: (a) it would
expose the householder to further burdens of scrutinizing the mail
for objectionable material and possible harassment, and (b) it
would interpose the Postmaster General between the sender and the
addressee and, at the least, create the appearance, if not the
substance, of governmental censorship. [
Footnote 4] It is difficult to see how the Postmaster
General could decide whether the materials were "similar" or
possessing touting or pandering characteristics without an
evaluation suspiciously like censorship. Additionally, such an
interpretation would be incompatible with the unequivocal language
in subsection (c).
II
. FIRST AMENDMENT CONTENTIONS
The essence of appellants' argument is that the statute violates
their constitutional right to communicate. One sentence in
appellants' brief perhaps characterizes their entire position:
"The freedom to communicate orally and by the written word and,
indeed, in every manner whatsoever, is imperative to a free and
sane society."
Brief for Appellants 15.
Page 397 U. S. 736
Without doubt, the public postal system is an indispensable
adjunct of every civilized society, and communication is imperative
to a healthy social order. But the right of every person "to be let
alone" must be placed in the scales with the right of others to
communicate.
In today's complex society, we are inescapably captive audiences
for many purposes, but a sufficient measure of individual autonomy
must survive to permit every householder to exercise control over
unwanted mail. To make the householder the exclusive and final
judge of what will cross his threshold undoubtedly has the effect
of impeding the flow of ideas, information, and arguments that,
ideally, he should receive and consider. Today's merchandising
methods, the plethora of mass mailings subsidized by low postal
rates, and the growth of the sale of large mailing lists as an
industry, in itself, have changed the mailman from a carrier of
primarily private communications, as he was in a more leisurely
day, and have made him an adjunct of the mass mailer who sends
unsolicited and often unwanted mail into every home. It places no
strain on the doctrine of judicial notice to observe that, whether
measured by pieces or pounds, Everyman's mail today is made up
overwhelmingly of material he did not seek from persons he does not
know. And, all too often, it is matter he finds offensive.
In
Martin v. Struthers, 319 U.
S. 141 (1943), MR. JUSTICE BLACK, for the Court, while
supporting the "[f]reedom to distribute information to every
citizen,"
id. at
319 U. S. 146,
acknowledged a limitation in terms of leaving "with the homeowner
himself" the power to decide "whether distributors of literature
may lawfully call at a home."
Id. at
319 U. S. 148.
Weighing the highly important right to communicate, but without
trying to determine where it fits into constitutional imperatives,
against the very basic right to be free from sights, sounds, and
tangible matter we do not want, it seems to us that a mailer's
Page 397 U. S. 737
right to communicate must stop at the mailbox of an unreceptive
addressee.
The Court has traditionally respected the right of a householder
to bar, by order or notice, solicitors, hawkers, and peddlers from
his property.
See Martin v. Struthers, supra; cf. Hall v.
Commonwealth, 188 Va. 72, 49 S.E.2d 369,
appeal
dismissed, 335 U.S. 875 (1948). In this case, the mailer's
right to communicate is circumscribed only by an affirmative act of
the addressee giving notice that he wishes no further mailings from
that mailer.
To hold less would tend to license a form of trespass, and would
make hardly more sense than to say that a radio or television
viewer may not twist the dial to cut off an offensive or boring
communication, and thus bar its entering his home. Nothing in the
Constitution compels us to listen to or view any unwanted
communication, whatever its merit; we see no basis for according
the printed word or pictures a different or more preferred status
because they are sent by mail. The ancient concept that "a man's
home is his castle" into which "not even the king may enter" has
lost none of its vitality, and none of the recognized exceptions
includes any right to communicate offensively with another.
See
Camara v. Municipal Court, 387 U. S. 523
(1967).
Both the absoluteness of the citizen's right under § 4009 and
its finality are essential; what may not be provocative to one
person may well be to another. In operative effect, the power of
the householder under the statute is unlimited; he may prohibit the
mailing of a dry goods catalog because he objects to the contents
-- or indeed the text of the language touting the merchandise.
Congress provided this sweeping power not only to protect privacy,
but to avoid possible constitutional questions that might arise
from vesting the power to make any discretionary evaluation of the
material in a governmental official.
Page 397 U. S. 738
In effect, Congress has erected a wall -- or, more accurately,
permits a citizen to erect a wall -- that no advertiser may
penetrate without his acquiescence. The continuing operative effect
of a mailing ban, once imposed, presents no constitutional
obstacles; the citizen cannot be put to the burden of determining
on repeated occasions whether the offending mailer has altered its
material so as to make it acceptable. Nor should the householder
have to risk that offensive material come into the hands of his
children before it can be stopped.
We therefore categorically reject the argument that a vendor has
a right, under the Constitution or otherwise, to send unwanted
material into the home of another. If this prohibition operates to
impede the flow of even valid ideas, the answer is that no one has
a right to press even "good" ideas on an unwilling recipient. That
we are often "captives" outside the sanctuary of the home and
subject to objectionable speech and other sound does not mean we
must be captives everywhere.
See Public Utilities Comm'n v.
Pollak, 343 U. S. 451
(1952). The asserted right of a mailer, we repeat, stops at the
outer boundary of every person's domain.
The statutory scheme at issue accords to the sender an
"opportunity to be heard upon such notice and proceedings as are
adequate to safeguard the right for which the constitutional
protection is invoked."
Anderson Nat. Bank v. Luckett,
321 U. S. 233,
321 U. S. 246
(1944). It thus comports with the Due Process Clause of the Fifth
Amendment. The statutory scheme accomplishes this by providing that
the Postmaster General shall issue a prohibitory order to the
sender on the request of the complaining addressee. Only if the
sender violates the terms of the order is the Postmaster General
authorized to serve a complaint on the sender, who is then allowed
15 days to respond. The sender can then secure an
Page 397 U. S. 739
administrative hearing. [
Footnote 5] The sender may question whether the initial
material mailed to the addressee was an advertisement and whether
he sent any subsequent mailings. If the Postmaster General
thereafter determines that the prohibitory order has been violated,
he is authorized to request the Attorney General to make
application in a United States District Court for a compliance
order; [
Footnote 6] a second
hearing is required if an order is to be entered.
The only administrative action not preceded by a full hearing is
the initial issuance of the prohibitory order. Since the sender
risks no immediate sanction by failing to comply with that order --
it is only a predicate for later steps -- it cannot be said that
this aspect of the procedure denies due process. It is sufficient
that all available defenses, such as proof that no mail was sent,
may be presented to a competent tribunal before a contempt finding
can be made.
See Nickey v. Mississippi, 292 U.
S. 393,
292 U. S. 396
(1934).
Page 397 U. S. 740
The appellants also contend that the requirement that the sender
remove the addressee's name from all mailing lists in his
possession violates the Fifth Amendment because it constitutes a
taking without due process of law. The appellants are not
prohibited from using, selling, or exchanging their mailing lists;
they are simply required to delete the names of the complaining
addressees from the lists and cease all mailings to those
persons.
Appellants next contend that compliance with the statute is
confiscatory because the costs attending removal of the names are
prohibitive. We agree with the conclusion of the District Court
that the
"burden does not amount to a violation of due process guaranteed
by the Fifth Amendment of the Constitution. Particularly when, in
the context presently before this Court, it is being applied to
commercial enterprises."
300 F. Supp. at 1041.
See California State Auto Ins. Bureau
v. Malone, 341 U. S. 105
(1951).
There is no merit to the appellants' allegations that the
statute is unconstitutionally vague. A statute is fatally vague
only when it exposes a potential actor to some risk or detriment
without giving him fair warning of the nature of the proscribed
conduct.
United States v. Cardiff, 344 U.
S. 174,
344 U. S. 176
(1952). Here, the appellants know precisely what they must do on
receipt of a prohibitory order. The complainants' names must be
removed from the sender's mailing lists, and he must refrain from
future mailings to the named addressees. The sender is exposed to a
contempt sanction only if he continues to mail to a particular
addressee after administrative and judicial proceedings. Appellants
run no substantial risk of miscalculation.
For the reasons stated, the judgment appealed from is
affirmed.
It is so ordered.
Page 397 U. S. 741
[
Footnote 1]
Subsection (g) provides that, upon the addressee's request, the
order shall include the names of the addressee's minor children who
reside with him and who have not attained their nineteenth
birthday.
[
Footnote 2]
Judge Hufstedler, concurring specially but without dissent,
would require the District Court, prior to issuing a compliance
order, to determine
de novo whether the sender is a person
who has mailed or has caused to be mailed any pandering
advertisements.
[
Footnote 3]
Senator Hruska spoke similarly:
"Title III would allow the recipient of obscene mail to return
it to the Postmaster General with a request that the Postmaster
General notify the sender to stop mailings to the addressee. . .
."
113 Cong.Rec. 34232 (1967).
[
Footnote 4]
Subsection (d) vests the Postmaster General with the duty to
determine whether the sender has violated the order. This
determination was intended to be primarily a ministerial one
involving an adjudication whether the initial material was an
advertisement and whether the sender mailed materials to the
addressee more than 30 days after the receipt of the prohibitory
order. An interpretation which requires the Postmaster General to
determine whether the subsequent material was pandering and/or
similar would tend to place him "astride the flow of mail. . . ."
Lamont v. Postmaster General, 381 U.
S. 301,
381 U. S. 306
(1965).
[
Footnote 5]
Although subsection (h) specifically excludes the pre-complaint
hearing from the provisions of the Administrative Procedure Act, 5
U.S.C. § 554
et seq. (1964 ed., Supp. IV), the Post Office
Department has promulgated regulations setting forth procedures
governing the departmental administrative hearings. 39 CFR pt.
916.
[
Footnote 6]
The function of the district court is similar to that of the
Postmaster General. It is to determine whether the initial mailing
included advertising material and whether there was a mailing by
the sender to the addressee more than 30 days after receipt of the
order. We reject the suggestions that the section should be read to
require the district judge to make a determination of the
addressee's good faith, or to conduct an independent adjudication
of the pandering nature of the material. The statute was intended
to entrust unreviewable discretion to the addressee to determine
whether or not the advertisement was "erotically arousing or
sexually provocative."
"[T]he sole determination as to whether the literature you
receive is objectionable or not is within your discretion, and you
are not second-guessed on that discretion."
113 Cong.Rec. 28660 (1967) (remarks of Congressman Waldie).
MR. JUSTICE BRENNAN, with whom MR. JUSTICE Douglas joins,
concurring.
I join the Court's opinion, but add a few words. I agree that 39
U.S.C. § 4009 (1964 ed., Supp. IV) is constitutional insofar as it
permits an addressee to require a mailer to remove his name from
its mailing lists and to stop all future mailings to the addressee.
As the Court notes, however, subsection (g) of § 4009 also allows
an addressee to request the Postmaster General to include in any
prohibitory order "the names of any of his minor children who have
not attained their nineteenth birthday, and who reside with the
addressee." In light of the broad interpretation that the Court
assigns to § 4009,
and see ante at
397 U. S. 738,
the possibility exists that parents could prevent their children,
even if they are 18 years old, from receiving political, religious,
or other materials that the parents find offensive. In my view, a
statute so construed and applied is not without constitutional
difficulties.
Cf. Tinker v. Des Moines School Dist.,
393 U. S. 503
(1969);
Ginsberg v. New York, 390 U.
S. 629 (1968). In this case, however, there is no
particularized attack upon the constitutionality of subsection (g),
nor, indeed, is there any indication on this record that, under §
4009(g), children in their late teens have been unwillingly
deprived of the opportunity to receive materials. In these
circumstances, I understand the Court to leave open the question of
the right of older children to receive materials through the mail
without governmental interference and also the more specific
question whether § 4009(g) may constitutionally be applied with
respect to all materials and to all children under 19.