255 U.S. 407 (1921), 166, Milwaukee Social Democratic Publishing Company v. Burleson

• Citation: 255 U.S. 407, 41 S.Ct. 352, 65 L.Ed. 704
• Party Name: Milwaukee Social Democratic Publishing Company v. Burleson
• Case Date: March 07, 1921
• Court: U.S. Supreme Court

Page 407

255 U.S. 407 (1921)

41 S.Ct. 352, 65 L.Ed. 704

Milwaukee Social Democratic Publishing Company

v.

Burleson

No. 166

United States Supreme Court

March 7, 1921

Argued January 18, 19, 1921

ERROR TO THE: COURT OF APPEALS

OF THE DISTRICT OF COLUMBIA

Syllabus

1. The provision of the Espionage Law (Act of June 15, 1917, c. 30, Title XII, 3, 40 Stat. 217) which denies the mails to newspapers and other publications violating its prohibitions was within the power of Congress. P. 409.

2. The second-class mail privilege, previously granted for a newspaper, was revoked by the Postmaster General, upon due notice and hearing, because, from the time the United States entered the World War to the time of the revocation, the paper frequently and persistently printed articles conveying false reports and false statements with intent to promote the success of the enemies of the United States and constituting a willful attempt to cause disloyalty and refusal of duty in the military and naval forces and to obstruct the recruiting and enlistment service. Held that the procedure satisfied due process of law, p. 409; that the publication was clearly violative of § 3 of the Espionage Law, p. 413; that the order did not deprive the publisher of constitutional rights of free speech, or free press, or of property without due process of law, and was amply justified by the evidence. Pp. 409, 415.

3. The conclusion of a head of an executive department upon a matter of fact within his jurisdiction will not be disturbed by the courts unless clearly wrong. P. 413.

4. By long executive practice, admission to the second-class mail privilege is obtained for a publication only by a permit, issued by the Postmaster General, after a hearing and upon a showing satisfactory to him or his authorized assistants, that it contains and will continue to contain only mailable matter and that it will meet the other requirements of the law. Pp. 410, 415.

5. The power of the Postmaster General to revoke the privilege is an incident of the power to grant it, recognized by Congress (31 Stat. 1107) and by decisions of this Court. Pp. 411, 415.

Page 408

6. When a newspaper which has been admitted to the second class privilege publishes nonmailable matter so frequently as to justify the presumption that it will continue to do so, the Postmaster General is empowered (Rev.Stats., § 36) to revoke the privilege not merely as to particular issue containing such matter, but indefinitely for the future, subject to the publisher's right to secure a renewal upon proper application and proof that the paper will conform to the law. P. 416.

4 App.D.C. 26, 258 F. 282, affirmed.

Error to review a judgment of the Court of Appeals of the District of Columbia which affirmed a judgment of the Supreme Court of the District dismissing the relator's petition for a writ of mandamus against the Postmaster General. The facts appear in the opinion of the Court.

CLARKE, J., lead opinion

MR. JUSTICE CLARKE delivered the opinion of the Court.

After a hearing on September 22, 1917, by the Third Assistant Postmaster General, of the time and character of which the relator (plaintiff in error) had due notice and at [41 S.Ct. 353] which it was represented by its president, an order was entered revoking the second-class mail privilege granted to it in 1911 as publisher of the Milwaukee Leader. So far as appears, all that the relator desired to say or offer was heard and received. This hearing was had and

Page 409

the order was entered upon the charge that articles were appearing in relator's paper so violating the provisions of the National Defense Law, approved June 15, 1917, which has come to be popularly known as the Espionage Act of Congress (40 Stat. 217), as to render it "nonmailable" by the express terms of Title XII of that act. On appeal to the Postmaster General, the order was approved. Thereupon the relator filed a petition in the Supreme Court of the District of Columbia praying that a writ of mandamus issue commanding the Postmaster General to annul his order and restore the paper to the second-class privilege. To a rule to show cause the Postmaster General answered, and, a demurrer to his answer being overruled and the relator not pleading further, the court discharged the rule and dismissed the petition. The Court of Appeals of the District of Columbia affirmed the judgment of the trial court, and, the constitutional validity of laws of the United States being involved, the case was brought here by writ of error.

The grounds upon which the relator relies are, in substance, that, to the extent that the Espionage Act confers power upon the Postmaster General to make the order entered against it, that act is unconstitutional because it does not afford relator a trial in a court of competent jurisdiction; that the order deprives relator of the right of free speech, is destructive of the rights of a free press, and deprives it of its property without due process of law.

That a hearing such as was accorded the relator, on precisely such a question as is here involved, when fairly conducted, satisfies all of the requirements of due process of law, has been repeatedly decided. Smith v. Hitchcock, 226 U.S. 53, 60; Bates & Guild Co. v. Payne, 194 U.S. 106; Public Clearing House v. Coyne, 194 U.S. 497; Lewis Publishing Co. v. Morgan, 229 U.S. 288.

Since the petition in this case was filed, it has also become settled that the Espionage Act is a valid, constitutional

Page 410

law. Schenck v. United States, 249 U.S. 47; Frohwerk v. United States, 249 U.S. 204; Debs v. United States, 249 U.S. 211; Abrams v. United States, 250 U.S. 616, 619.

The first comprehensive law providing for the classification of mails was enacted on March 3, 1879 (20 Stat. 355). From that time to this, mail classification, frequently approved by this Court, has dealt only with "mailable matter." In § 7 of that act, still in effect, "mailable matter" is divided into four classes, and, by § 10, the second class of such "mailable matter" is defined as including newspapers and periodicals. By § 1 of Title XII of the Act of June 15, 1917, supra, any newspaper violating any provision of the act is declared to be "nonmailable matter," which shall "not be conveyed in the mails or delivered from any post office or by any letter carrier."

The extremely low rate charged for second-class mail -- to carry it, was said in argument, to cost seven times the revenue which it yields -- is justified as a part of "the historic policy of encouraging by low postal rates the dissemination of current intelligence." It is a frank extension of special favors to publishers because of the special contribution to the public welfare which Congress believes is derived from the newspaper and other periodical press. 229 U.S. 301, 304.

By now more than 40 years of departmental practice, admission to the privilege of this second-class mail has been obtained for a publication only by a permit, issued by the Postmaster General after a hearing and upon a showing made, satisfactory to him or his authorized assistants, that it contains and will continue to contain only mailable matter and that it will meet the various statutory and other requirements. Houghton v. Payne, 194 U.S. 88, 94.

That the power to suspend or revoke such second-class privilege was a necessary incident to the power to grant it has long been recognized by statute and by many decisions

Page 411

of this Court. 31 Stat. 1107; Smith v. Hitchcock, 226 U.S. 53, 57; Houghton v. Payne, 194 U.S. 88; Bates & Guild Co. v. Payne, 194 U.S. 106. Under these statutes and decisions, if the newspaper of the relator had come to be so edited that it contained other than "mailable matter," plainly it was the intention of Congress that it should no longer be carried as second-class mail, and therefore the order to revoke the permit which had been granted to relator was proper and justified, and that it had become so changed in character is the holding of the Postmaster General and of the two lower courts which we are reviewing.

For the purpose of preventing disloyalty and disunion among our people of many origins, and to the end that a united front should be presented to the enemy, the Espionage [41 S.Ct. 354] Act, one of the first of the national defense laws enacted by Congress after the entry of the United States into the World War (approved June 15, 1917, 40 Stat. 217), provided severe punishment for any person who, "when the United States is at war," shall willfully make or convey false reports or false statements with intent to interfere with the operation and success of the military or naval forces of the country, or with the intent to promote the success of its enemies, or who shall cause, or attempt to cause, insubordination, disloyalty, mutiny or refusal of duty in such forces, or who shall willfully obstruct the recruiting and enlistment service of the United States (§ 3). One entire title of this act (Title XII) is devoted to "Use of the Mails," and, in the exercise of its practically plenary power over the mails (Ex parte Jackson, 96 U.S. 727; Public Clearing House v. Coyne, 194 U.S. 497, 506-507; Lewis Publishing Co. v. Morgan, 229 U.S. 288, 313), Congress therein provided that any newspaper published in violation of any of the provisions of the act should be "nonmailable," and should not be "conveyed in the mails or delivered from any post office or by any letter carrier."

Page 412

It was under the provisions of this wartime act and under the specific injunction of § 396 of the Revised Statutes of the United States declaring it to be the duty of the Postmaster General to "superintend generally all the business of the [Post Office] Department and to execute all laws relating to the postal service" that the order in this case was entered.

The Postmaster General avers that, upon the hearing which we have...