Lamont v. Postmaster General of United States

Decision Date05 May 1964
Citation229 F. Supp. 913
PartiesCorliss LAMONT d/b/a Basic Pamphlets, Plaintiff, v. The POSTMASTER GENERAL OF the UNITED STATES, Defendant.
CourtU.S. District Court — Southern District of New York

Leonard B. Boudin, of Rabinowitz & Boudin, New York City, for plaintiff.

Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York (Anthony J. D'Auria, Asst. U. S. Atty., on the brief), for defendant.

Before HAYS, Circuit Judge, and LEVET and FEINBERG, District Judges.

HAYS, Circuit Judge.

This action challenges the constitutionality of 39 U.S.C. § 4008 (Supp. IV 1959-62), added by Pub.L. 87-793, § 305 (a), Oct. 11, 1962, 76 Stat. 840, which establishes a screening program for communist political propaganda originating abroad and deposited in the United States mails as unsealed mail matter. As plaintiff has requested an injunction restraining the enforcement of an Act of Congress, this court was convened pursuant to 28 U.S.C. §§ 2282, 2284 (1958).1 Plaintiff has moved for summary judgment and defendant has cross-moved to dismiss the complaint for lack of jurisdiction over the subject matter and for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b) (1) and (6). We conclude that the plaintiff's motion should be denied and that the complaint must be dismissed.

Section 4008 requires the Postmaster General to detain all unsealed mail matter originating abroad and found to be "communist political propaganda," unless such material has been furnished pursuant to a subscription, or the addressee (upon being notified of the detention) requests delivery, or the Postmaster General otherwise ascertains the addressee's desire to receive the detained matter.2 There are exceptions which include mail addressed to federal agencies, public libraries, educational institutions, and their officials and mail governed by a cultural exchange agreement. To implement Section 4008 the Post Office Department and the Customs Bureau maintain eleven screening points for the interception of communist political propaganda originating abroad. When it is determined that particular mail matter is communist political propaganda a notice (POD Form 2153-X) is sent to the addressee identifying the material being detained and advising the addressee that it will be destroyed within 20 days unless delivery is requested. Part of the form is a reply card on which the addressee may instruct the Post Office whether or not he wants the publication listed and similar publications delivered in the future. A list is kept of those requesting delivery of such material so that thereafter their mail will not be detained.

The facts are undisputed. Plaintiff, Corliss Lamont, is engaged in publishing and distributing pamphlets and other literature. He frequently receives both solicited and unsolicited mail from all over the world. In July 1963 Lamont was notified by the Post Office Department in San Francisco of the detention of communist political propaganda. Lamont did not reply to the notice. Instead he commenced this action to enjoin the enforcement of the statute. He alleges that Section 4008 infringes his first amendment right to freedom of speech and press and violates the due process clause of the fifth amendment by creating arbitrary and unreasonable classifications.3

Shortly after Lamont commenced his action the Acting General Counsel of the Post Office Department wrote to him advising him that the Postmaster General considered the filing of the complaint to constitute an expression of Lamont's desire to receive communist political propaganda mail matter and that, Lamont's wishes having thus been ascertained, his mail would not be detained in the future. Lamont thereupon amended his complaint to request an order directing that his name be removed from any list or record maintained by defendant of persons desiring to receive communist political propaganda. The amended complaint asserted that maintenance of such a list, with the inherent possibility of public disclosure, violated Lamont's first and fifth amendment rights.

Keeping in mind "the long-established principle that `we ought not to pass on questions of constitutionality * * * unless such adjudication is unavoidable,'" Rosenberg v. Fleuti, 374 U. S. 449, 451, 83 S.Ct. 1804, 1806, 10 L.Ed. 2d 1000 (1963), we proceed to an examination of defendant's claim first, that the dispute is moot since the Postmaster General has ordered that Lamont's mail not be detained in the future, and second, that Lamont has made no sufficient showing of a threat of injury by reason of the listing of his name.

1. Mootness

Lamont's first claim rests on the assertion that his freedom to read, a freedom he finds in the first amendment guaranty of freedom of speech and press, is infringed by the deterrent effect of the requirement that he request delivery of communist political propaganda. But that requirement is no longer applicable to him since defendant has ordered the unimpeded delivery of plaintiff's mail. And, setting aside for the moment his objection to being included in defendant's list, Lamont does not contend that his rights are being violated by the statute as presently applied.

When the relief sought, here the unimpeded delivery of mail, is obtained in some other manner prior to final judicial disposition, the controversy becomes moot and the court ceases to have jurisdiction. Taylor v. McElroy, 360 U.S. 709, 79 S.Ct. 1428, 3 L.Ed.2d 1528 (1959); Atherton Mills v. Johnston, 259 U.S. 13, 42 S.Ct. 422, 66 L.Ed. 814 (1922). The same principle applies even when challenged governmental action continues to affect the complainant if no objection is raised to the changed manner of its incidence. Natural Milk Producers Ass'n v. San Francisco, 317 U.S. 423, 63 S.Ct. 359, 87 L.Ed. 375 (1943). See generally Diamond, Federal Jurisdiction To Decide Moot Cases, 94 Pa.L.Rev. 125, 133-35 (1946).

Lamont argues that a defendant cannot moot a controversy in which the public interest is involved by the expedient of ceasing to apply a statute once a court challenge has been instituted. He contends that the Government has attempted to render this action moot as part of a policy of avoiding an adjudication of the statute's validity, that the persons whose freedom is most curtailed by the statute are those too timorous to protest, and that there is consequently a public interest in permitting plaintiff to continue his action so as to obtain an adjudication on behalf of these other persons.

The cases upon which Lamont relies, e. g., United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43, 65 S. Ct. 11, 89 L.Ed. 29 (1944); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 516, 31 S.Ct. 279, 55 L.Ed. 310 (1911), do not support his thesis. The public interest involved in those cases was that of enforcement by the Government of a regulatory statute. The cases hold that voluntary cessation of allegedly illegal conduct will not render the cause moot where the defendant is able at any time to recommence the illegal conduct. If there is no likelihood of a return to the old ways, the controversy will be moot even though the public interest is involved.

"The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion. * * * For to say that the case has become moot means that the defendant is entitled to a dismissal as a matter of right * * *. The courts have rightly refused to grant defendants such a powerful weapon against public law enforcement.
"The case may nevertheless be moot if the defendant can demonstrate that `there is no reasonable expectation that the wrong will be repeated.'"

United States v. W. T. Grant Co., supra, 345 U.S. at 632-633, 73 S.Ct. at 897, 97 L.Ed. 1303 (Footnotes omitted; emphasis added).

It is not contended here that the Postmaster General is likely to resume detention of Lamont's mail. Nor could it be. This is not a case where abandonment by a defendant of a prior course of conduct is to be explained by a change in attitude which may prove transient. Here the Postmaster General's actions have at all times been consistent with the mandate of the statute. The statute has been enforced both before and after the initiation of this action. Lamont, by his own move, has changed the manner of enforcement as to him.

Moreover Lamont does not seek here to enforce a regulatory statute. He asks us to hold a statute invalid under the constitution. We know of no instance where the Supreme Court in rejecting a claim of mootness has announced a "public interest" in the adjudication of a constitutional issue. Our tradition of judicial reluctance to decide constitutional questions in advance of strictest necessity, see Ashwander v. T.V.A., 297 U.S. 288, 346-348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) — and particularly the line of decisions holding that a litigant who invokes the power to annul legislation on grounds of its unconstitutionality "must be able to show * * * that he has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement," Massachusetts v. Mellon, 262 U. S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923); see Poe v. Ullman, 367 U.S. 497, 502-509, 81 S.Ct. 1752, 6 L.Ed. 2d 989 (1961) (opinion of Frankfurter, J.); Communist Party of the United States v. Subversive Activities Control Bd., 367 U.S. 1, 70-81, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961); Comment, Threat of Enforcement — Prerequisite of a Justiciable Controversy, 62 Colum.L.Rev. 106 (1962) — dictates the conclusion that in cases such as this the public interest requires an exacting application of the standards governing mootness claims. See Donaldson v. Read Magazine, Inc., 333 U.S. 178, 184, 68 S.Ct. 591, 92 L.Ed. 628 (1948).

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