Heilberg v. Fixa

Citation236 F. Supp. 405
Decision Date01 February 1965
Docket NumberNo. 41660.,41660.
PartiesLeif HEILBERG, Plaintiff, v. John F. FIXA et al., Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California

Marshall W. Krause, Staff Counsel, American Civil Liberties Union of Northern California, San Francisco, Cal., Coleman Blease, Berkeley, Cal., for plaintiff.

Cecil F. Poole, U.S. Atty., Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for defendants.

Before BONE, Circuit Judge, and WOLLENBERG and ZIRPOLI, District Judges.

Probable Jurisdiction Noted February 1, 1965. See 85 S.Ct. 722.

PER CURIAM.

In this action plaintiff seeks to enjoin the enforcement of 39 U.S.C. § 4008, a statute which regulates the mailing of "communist political propaganda", and an order declaring it unconstitutional. This Court was convened pursuant to 28 U.S.C. § 2282, § 2284. Based on the record made at the hearing on the merits and facts established at prior pretrial proceedings before this Court, including the hearing on defendants' motion to dismiss which was denied, we hold that 39 U.S.C. § 4008 is unconstitutional on its face, as it infringes plaintiff's rights under the First Amendment of the Constitution of the United States, and defendants are enjoined from enforcing this statute.

In order to disclose the constitutional infirmities of the statute at issue, it is necessary to describe briefly its operation. Upon a determination by the Secretary of the Treasury that unsealed mail originating in a foreign country is "communist political propaganda", as defined in 22 U.S.C., § 611(j), The Foreign Agents Registration Act of 1938 as amended, the Postmaster General is authorized to detain the mail upon its arrival for delivery in the United States. The addressee may receive the mail if it was sent pursuant to a subscription or it is ascertained by the Postmaster General that the mail is "desired by the addressee". Mail addressed to government agencies, certain educational institutions and mail governed by cultural exchange agreements is excepted from the operation of the statute.

To implement Section 4008 the Postmaster General and the Customs Bureau maintain eleven screening points in the United States for the interception of "communist political propaganda". The Customs Bureau decides which countries' mail is to be screened and examines such mail routed through the eleven screening points to determine whether it falls within the statutory definition. When it is determined that particular mail is to be classified "communist political propaganda," the addressee is mailed POD Form 2153-X identifying the mail and advising him that it will be destroyed unless he signifies a desire to receive it by returning the form appropriately marked. The addressee may signify a desire to receive the particular mail being detained or a desire to receive the detained mail and any similar publications. A file of cards is maintained of those individuals requesting delivery in the latter case. Thereafter, upon a determination that mail is "communist political propaganda", it is mailed to the addressee without further inquiry.

In the instant case plaintiff received, on or about July 12, 1963, a letter from defendant Fixa containing POD Form 2153-X. The card notified plaintiff that the Post Office was holding a piece of unsealed mail matter entitled "A Proposal Concerning the International Communist Movement", which would be destroyed unless plaintiff returned the form approximately marked within twenty days. Plaintiff refused to sign the card and instead filed this suit. Thereafter, the General Counsel of the Post Office Department notified plaintiff that the filing of this suit constituted an expression of a desire to receive all mail that was and in the future would be detained under the provisions of Section 4008. In short, contrary to plaintiff's wishes, his name was placed on a list of those people desiring to receive "communist political propaganda".

Initially, defendants argue that this action has been rendered moot by the aforementioned action of the General Counsel of the Post Office. This same defense was raised, successfully, in Lamont v. Postmaster General of United States, 229 F.Supp. 913 (D.C. 1964). We cannot agree with that distinguished court. Plaintiff's mail is still subject to delay, since mail originating from designated countries must continue to be classified;1 his name remains on the Postmaster's list of persons desiring to receive communist political propaganda; and there is no guarantee that this list will not be used to his detriment.

To render this case moot under these circumstances is to approve a device which would enable defendants to prevent any potential recipient of mail originating abroad from ever testing the constitutionality of Section 4008. We are not persuaded that the doctrine of mootness requires this result.

It is a well established principle that the "* * * voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot." United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). Admittedly, the case may be nevertheless moot if defendant can demonstrate that the alleged wrong will not be repeated. But what is at issue here is by the very nature of the disputed statute a continuing act. Defendants are required by Section 4008 to continue to detain and classify mail which may be addressed to plaintiff in the future. The action of the General Counsel of the Post Office has caused plaintiff's name to be placed on a list which will continue to exist so long as the statute is enforceable. These are the very practices which are at issue here, and plaintiff is entitled to have the legality of these practices litigated. See United States v. W. T. Grant Co., supra, 632-633, 73 S.Ct. 897-898.

Furthermore, we think contrary to the court in Lamont that plaintiff may also assert the rights of third parties. Generally, a person cannot assert the constitutional rights of others. But this is merely a rule of practice which will not be applied where the fundamental constitutional rights of third parties may be denied and it would be difficult for the persons whose rights are asserted to maintain a suit in their own right. See Barrows v. Jackson, 346 U.S. 249, 255-257, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). Here, persons interested in receiving political matter from abroad may be deterred from bringing suit to challenge Section 4008, lest this be construed as an expression of a desire to receive "communist political propaganda". The social stigma and economic injury they may suffer is very real. We do not think a person should be made to suffer social disapprobation in order to assert his constitutional rights.

Having satisfied ourselves that this action is not moot and that plaintiff has standing to sue, both in his own right and as a representative of third parties, we now turn to the constitutional issue.

The Constitution, Article I, Section 8, invests Congress with the power to regulate the postal system. See also Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877 (1877). But it is axiomatic that this power is not absolute and unfettered. Congressional power in this area is limited and conditioned by other provisions of the Constitution. Thus "* * * Congress may not by withdrawal of mailing privileges place limitations upon the freedom of speech which if directly attempted would be unconstitutional". Speiser v. Randall, 357 U.S. 513, 518, 78 S.Ct. 1332, 1338, 2 L.Ed.2d 1460 (1958). See also Hannegan v. Esquire, Inc., 327 U.S. 146, 155-156, 66 S.Ct. 456, 90 L.Ed. 586 (1946). The apparent conflict between congressional power to regulate the postal system and its impotence to enact postal legislation which tends to inhibit or deter the exercise of First Amendment rights must be resolved by balancing legitimate legislative purposes served by the statute against the restrictions imposed on rights otherwise guaranteed by the First Amendment. See e. g. Dennis v. United States, 341 U.S. 494, 510, 71 S.Ct. 857, 95 L.Ed. 1137 (1951); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939).

In striking this balance we are mindful that First Amendment rights are not absolute, but it is too late in the day to doubt the preferred status these rights enjoy in our constitutional scheme. See Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). The reasons for this preferred status were carefully explained by the Supreme Court in Thornhill v. Alabama, 310 U.S. 88, 101-102, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940):

"The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. * * * Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period."

In a recent elaboration of the so-called balancing test, the Supreme Court has indicated that only a compelling state interest could tip the scale in favor of a statute which burdens the exercise of First Amendment rights. See Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965. Moreover, even if a compelling state interest were shown, the burden remains on the state "* * * to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights."...

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