381 U.S. 301 (1965), 491, Lamont v. Postmaster General

Docket Nº:No. 491
Citation:381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398
Party Name:Lamont v. Postmaster General
Case Date:May 24, 1965
Court:United States Supreme Court

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381 U.S. 301 (1965)

85 S.Ct. 1493, 14 L.Ed.2d 398



Postmaster General

No. 491

United States Supreme Court

May 24, 1965

Argued April 26, 1965




These cases challenge the constitutionality of § 305(a) of the Postal Service and Federal Employees Salary Act of 1962, which requires the Postmaster General to detain and deliver only upon the addressee's request unsealed foreign mailings of "communist political propaganda." Under procedure effective March 15, 1965, the Post Office sends to the addressee a card which can be checked to have the mailing delivered. The card states that, if it is not returned within 20 days, it will be assumed that the addressee does not want that publication or any similar one in the future. When the addressee in these cases received the Post Office notices, they sued to enjoin enforcement of the statute.

Held: the Act, as construed and applied, is unconstitutional, since it imposes on the addressee an affirmative obligation which amounts to an unconstitutional limitation of his rights under the First Amendment. Pp. 305-307.

229 F.Supp. 913, reversed; 235 F.Supp. 405, affirmed.

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DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

These appeals present the same question: is § 305(a) of the Postal Service and Federal Employees Salary Act of 1962, 76 Stat. 840, constitutional as construed and applied? The statute provides in part:

Mail matter, except sealed letters, which originates or which is printed or otherwise prepared in a foreign country and which is determined by the Secretary of the Treasury pursuant to rules and regulations to be promulgated by him to be "communist political propaganda", shall be detained by the Postmaster General upon its arrival for delivery in the United States, or upon its subsequent deposit in the United States domestic mails, and the addressee shall be notified that such matter has been received and will be delivered only upon the addressee's request, except that such detention shall not be required in the case of any matter which is furnished pursuant to subscription or which is otherwise ascertained by the Postmaster General to be desired by the addressee.

39 U.S.C. § 4008(a).

The statute defines "communist political propaganda" as political propaganda (as that term is defined in § 1(j) of the Foreign Agents Registration Act of 19381 ) which is

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issued by or on behalf of any country with respect to which there is in effect a suspension or withdrawal of tariff concessions or from which foreign assistance is withheld pursuant to certain specified statutes. 39 U.S.C. § 4008(b). The statute contains an exemption from its provisions for mail addressed to government agencies and educational institutions, or officials thereof, and for mail sent pursuant to a reciprocal cultural international agreement. 39 U.S.C. § 4008(c).

To implement the statute, the Post Office maintains 10 or 11 screening points through which is routed all unsealed mail from the designated foreign countries. At these points, the nonexempt mail is examined by Customs authorities. When it is determined that a piece of mail is "communist political propaganda," the addressee is mailed a notice identifying the mail being detained and advising that it will be destroyed unless the addressee requests delivery by returning an attached reply card within 20 days.

Prior to March 1, 1965, the reply card contained a space in which the addressee could request delivery of any "similar publication" in the future. A list of the persons thus manifesting a desire to receive "communist political propaganda" was maintained by the Post Office. The Government in its brief informs us [85 S.Ct. 1495] that the keeping of this list was terminated, effective March 15, 1965. Thus, under the new practice, a notice is sent and must be returned for each individual piece of mail desired. The only standing instruction which it is now possible to leave with the Post Office is not to deliver any "communist political

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propaganda."2 And the Solicitor General advises us that the Post Office Department "intends to retain its assumption that those who do not return the card want neither the identified publication nor any similar one arriving subsequently."

No. 491 arose out of the Post Office's detention in 1963 of a copy of the Peking Review #12 addressed to appellant, Dr. Corliss Lamont, who is engaged in the publishing and distributing of pamphlets. Lamont did not respond to the notice of detention which was sent to him, but instead instituted this suit to enjoin enforcement of the statute, alleging that it infringed his rights under the First and Fifth Amendments. The Post Office thereupon notified Lamont that it considered his institution of the suit to be an expression of his desire to receive "communist political propaganda," and therefore none of his mail would be detained. Lamont amended his complaint to challenge on constitutional grounds the placement of his name on the list of those desiring to receive "communist political propaganda." The majority of the three-judge District Court nonetheless dismissed the complaint as moot, 229 F.Supp. 913, because Lamont would now receive his mail unimpeded. Insofar as the list was concerned, the majority thought that any legally significant harm to Lamont as a result of being listed was merely a speculative possibility, and so, on this score, the controversy was not yet ripe for adjudication. Lamont appealed from the dismissal, and we noted probable jurisdiction. 379 U.S. 926.

Like Lamont, appellee Heilberg in No. 848, when his mail was detained, refused to return the reply card and

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instead filed a complaint in the District Court for an injunction against enforcement of the statute. The Post Office reacted to this complaint in the same manner as it had to Lamont's complaint, but the District Court declined to hold that Heilberg's action was thereby mooted. Instead, the District Court reached the merits, and unanimously held that the statute was unconstitutional under the First Amendment. 236 F.Supp. 405. The Government appealed, and we noted probable jurisdiction. 379 U.S. 997.

There is no longer even a colorable question of mootness in these cases, for the new procedure, as described above, requires the postal authorities to send a separate notice for each item as it is received and the addressee to make a separate request for each item. Under the new system, we are told, there can be no list of persons who have manifested a desire to receive "communist political propaganda" and whose mail will therefore go through relatively unimpeded. The Government concedes that the changed procedure entirely precludes any claim of mootness and leaves for our consideration the sole question of the constitutionality of the statute.

We conclude that the Act, as construed and applied, is unconstitutional because it requires an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressee's First Amendment rights. As stated [85 S.Ct. 1496] by Mr. Justice Holmes in Milwaukee Pub. Co. v. Burleson, 255 U.S. 407, 437 (dissenting):

The United States may give up the post office when it sees fit, but, while it carries it on, the use of the mails is almost as much a part of free speech as the right to use our tongues. . . .3

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