246 F. 24 (2nd Cir. 1917), 123, Masses Pub. Co. v. Patten

Docket Nº:123.
Citation:246 F. 24
Party Name:MASSES PUB. CO. v. PATTEN, Postmaster.
Case Date:November 02, 1917
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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246 F. 24 (2nd Cir. 1917)



PATTEN, Postmaster.

No. 123.

United States Court of Appeals, Second Circuit.

November 2, 1917

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Francis G. Caffey, U.S. Atty., of New York City, for appellant.

Gilbert E. Roe, of New York City, for appellee.

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Before WARD and ROGERS, Circuit Judges, and MAYER, District Judge.

ROGERS, Circuit Judge.

The complainant seeks an injunction restraining the defendant, as postmaster of the city of New York, from treating the August issue of a magazine known as The Masses as nonmailable matter under the act of Congress of June 15, 1917, commonly known as the 'Espionage Act,' and commanding him to transmit the said magazine through the mail in the usual way.

Upon the filing of the complaint an order was entered requiring the defendant to show cause why the injunction should not issue. At the hearing affidavits were presented on behalf of the complainant to show that, if the magazines should be excluded from the mails, the business of the complainant would be practically ruined. An affidavit of the Postmaster General of the United States was presented on behalf of the defendant.

Under the provisions of Espionage Act, title 12, it became the official duty of the Postmaster General to determine what matter is nonmailable, and that official had instructed the postmaster of New York that The Masses was nonmailable. It appears that before this order was issued the solicitor for the department, the Attorney General of the United States, and the Judge Advocate General of the army, the later being a lawyer and charged with the administration of the Draft Act of May 18, 1917, were consulted, and that they each advised that the circulation of the issue in question would constitute an offense under the Espionage Act. And the Judge Advocate General informed the department that it was his opinion that the necessary effect of the issue of this August number would be to cause insubordination, disloyalty, mutiny, and refusal of duty in the naval and military forces of the United States, and that it would obstruct the recruiting and enlistment service of the United States. The learned District Judge, in a carefully prepared opinion, reached the conclusion that the August issue of the publication in question did not contain any illegal matter and that the injunction should issue.

That part of the Espionage Act which is involved here is title 12, which relates to the use of mails, and it reads as follows:

'Sec. 1. Every letter, writing, circular, postal card, picture, print, engraving, photograph, newspaper, pamphlet, book or other publication, matter or thing, of any kind, in violation of any of the provisions of this act is hereby declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier: Provided, that nothing in this act shall be so construed as to authorize any person other than an employe of the Dead Letter Office, duly authorized thereto, or other person upon a search warrant authorized by law, to open any letter not addressed to himself.

'Sec. 2. Every letter, writing, circular, postal card, picture, print, engraving, photograph, newspaper, pamphlet, book, or other publication, matter or thing, of any kind, containing any matter advocating or urging treason, insurrection, or forcible resistance to any law of the United States, is hereby declared to be nonmailable.'

Section 3 of title 12 relates to the punishment to be imposed upon any person who uses or attempts to use the mails for the transmission

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of any matter declared to be nonmailable, and is not involved in this proceeding. But, as section 1 of title 12 makes nonmailable any matter which is in violation of any of the provisions of the act, it will be necessary to consider section 3 of title 1, which reads as follows:

'Sec. 3. Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years or both.'

It is the clear intent of title 12 to close the United States mails to any letters or literature in furtherance of any acts prohibited under the other titles of the statute. It is said that the act violates the First Amendment to the Constitution, which declares that 'Congress shall make no law * * * abridging the freedom of speech, or of the press. ' It is also said that the act violates the Fifth Amendment, which provided that 'no person shall be * * * deprived of life, liberty, or property, without due process of law.'

In his Commentaries on the Laws of England Mr. Justice Blackstone in speaking of the liberty of the press declares that it is 'essential to the nature of a free state. ' It consists, he says, 'in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiments he pleases before the public; but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. ' Volume 4, p. 151. And Mr. Justice Story, in his Commentaries on the Constitution, states that 'every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press. ' Volume 2, sec. 1884 (4th Ed.).

In Patterson v. Colorado, 205 U.S. 454, 462, 27 Sup.Ct. 556, 558, 51 L.Ed. 879, 10 Ann.Cas. 689 (1907), the court, speaking through Mr. Justice Holmes, declares that the main purpose of the constitutional provision as to free press is 'to prevent all such previous 'restraints' upon publications as had been practiced by other governments,' and they do 'not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. ' Now clearly the Espionage Act imposes no restraint prior to publication, and no restraint afterwards, except as it restricts circulation through the mails. Liberty of circulating may be essential to freedom of the press, but liberty of circulating through the mails is not, so long as its transportation in any other way as merchandise is not forbidden.

The Act of Congress now called in question does not undertake to say that certain matter shall not be published nor that it shall not be transmitted in interstate commerce. It simply declares that such matter shall not be carried in the United States mails. In Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877 (1877), the Supreme Court held that

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the power vested in Congress to establish post offices and post roads embraces the regulation of the entire postal system of the country, and that under it Congress can designate what may be carried in the mail and what excluded. In that case Mr. Justice Field, speaking for the court, said:

'In excluding various articles from the mail, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people, but to refuse its facilities for the distribution of matter deemed injurious to the public morals.'

A conviction for depositing in the mail a lottery circular contrary to an act of Congress was sustained. And that decision was adhered to in Re Rapier, 143 U.S. 110, 134, 12 Sup.Ct. 374, 36 L.Ed. 93 (1892). In the latter case Mr. Chief Justice Fuller said:

'The circulation of newspapers is not prohibited, but the government declines itself to become an agent in the circulation of printed matter which it regards as injurious to the people. The freedom of communication is not abridged within the intent and meaning of the constitutional provision unless Congress is absolutely destitute of any discretion as to what shall or shall not be carried in the mails, and compelled arbitrarily to assist in the dissemination of matters condemned by its judgment, through the governmental agencies which it controls. That power may be abused furnishes no ground for a denial of its existence, if government is to be maintained at all.'

In Public Clearing House v. Coyne, 194 U.S. 497, 24 Sup.Ct. 789, 48 L.Ed. 1092 (1904), the court had before it the constitutionality of a law which authorized the Postmaster General 'upon evidence satisfactory to him,' and which did not provide for any trial, hearing, or inquiry of any kind, to shut out of the mails the letters of any person or company conducting a lottery or any other scheme or device for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses. Mr. Justice Brown, writing for the court, said:

'In establishing such (postal) system Congress may restrict its use to letters, and deny it to periodicals; * * * it may admit books to the mails and refuse to admit merchandise, or it may include all of these and fail to embrace within its regulations telegrams or large parcels of merchandise, although in most civilized countries of Europe these are also made a part of the postal service. It may also refuse to include in its mails such printed matter or merchandise as may seem objectionable to it upon the ground of public policy, as dangerous to its employes or injurious to other mail matter carried in the same packages. The...

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