397 U.S. 728 (1970), 399, Rowan v. United States Post Office Department

Docket Nº:No. 399
Citation:397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736
Party Name:Rowan v. United States Post Office Department
Case Date:May 04, 1970
Court:United States Supreme Court

Page 728

397 U.S. 728 (1970)

90 S.Ct. 1484, 25 L.Ed.2d 736

Rowan

v.

United States Post Office Department

No. 399

United States Supreme Court

May 4, 1970

Argued January 22, 1970

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

Syllabus

Appellants, who are in the mail-order business, brought suit to enjoin the operation of 39 U.S.C. § 4009, challenging its constitutionality. That section provides that a person who has received by mail

a pandering advertisement which offers for sale matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative,

may request the Postmaster General to issue an order "directing the sender and his agents or assigns to refrain from further mailings to the named addressee." Such order would also require the sender to delete the addressee's name from his mailing lists, and would prohibit him from trading in lists from which the deletion has not been made. If the Postmaster General believes that his order has been violated, he may notify the sender of his belief and the reasons therefor, and must grant him an opportunity to respond and to have an administrative hearing on whether a violation has occurred. If the Postmaster General thereafter determines that the order has been violated, he may request the Attorney General to seek an order from a district court directing compliance with the prohibitory order. A three-judge court found that § 4009 was constitutional when interpreted to prohibit advertisements similar to those initially mailed to the addressee.

Held:

1. The statute allows the addressee unreviewable discretion to decide whether he wishes to receive any further material from a particular sender. Pp. 731-735.

2. A vendor does not have a constitutional right to send unwanted material into someone's home, and a mailer's right to communicate must stop at the mailbox of an unreceptive addressee. Pp. 735-738.

3. The statute comports with the Due Process Clause, as it provides for an administrative hearing if the sender violates the Postmaster General's prohibitory order, and a judicial hearing prior to issuance of any compliance order by a district court. Pp. 738-739.

Page 729

4. The statute doe not violate due process by requiring that the sender remove the complaining addressee' name from his mailing lists, nor is the statute unconstitutionally vague, as the sender knows precisely what he must do when he receives a prohibitory order. P. 740.

300 F.Supp. 1036, affirmed.

BURGER, J., lead opinion

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

Appellants challenge the constitutionality of Title III of the Postal Revenue and Federal Salary Act of 1967, 81 Stat. 645, 39 U.S.C. § 4009 (1964 ed., Supp. IV), under which a person may require that a mailer remove his name from its mailing lists and stop all future mailings to the householder. The appellants are publishers, distributors, owners, and operators of mail order houses, mailing list brokers, and owners and operators of mail service organizations whose business activities are affected by the challenged statute.

A brief description of the statutory framework will facilitate our analysis of [90 S.Ct. 1487] the questions raised in this appeal. Section 4009 is entitled "Prohibition of pandering advertisements in the mails." It provides a procedure

Page 730

whereby any householder may insulate himself from advertisements that offer for sale "matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative." 39 U.S.C. § 4009(a) (1964 ed., Supp. IV).1

Subsection (b) mandates the Postmaster General, upon receipt of a notice from the addressee specifying that he has received advertisements found by him to be within the statutory category, to issue on the addressee's request an order directing the sender and his agents or assigns to refrain from further mailings to the named addressee. Additionally, subsection (c) requires the Postmaster General to order the affected sender to delete the name of the designated addressee from all mailing lists owned or controlled by the sender and prohibits the sale, rental, exchange, or other transactions involving mailing lists bearing the name of the designated addressee.

If the Postmaster General has reason to believe that an order issued under this section has been violated, subsection (d) authorizes him to notify the sender by registered or certified mail of his belief and the reasons therefor, and grant him an opportunity to respond and have a hearing on whether a violation has occurred.

If the Postmaster General thereafter determines that the order has been or is being violated, he is authorized to request the Attorney General to seek an order from a United States District Court directing compliance with the prohibitory order. Subsection (e) grants to the district court jurisdiction to issue a compliance order upon application of the Attorney General.

Appellants initiated an action in the United States District Court for the Central District of California upon

Page 731

a complaint and petition for declaratory relief on the ground that 39 U.S.C. § 4009 (1964 ed., Supp. IV) is unconstitutional. They alleged that they had received numerous prohibitory orders pursuant to the provisions of the statute. Appellants contended that the section violates their rights of free speech and due process guaranteed by the First and Fifth Amendments to the United States Constitution. Additionally, appellants argued that the section is unconstitutionally vague, without standards, and ambiguous.

A three-judge court was convened pursuant to 28 U.S.C. § 2284 and it determined that the section was constitutional when interpreted to prohibit advertisements similar to those initially mailed to the addressee.2 300 F.Supp. 1036.

The District Court construed subsections (b) and (c) to prohibit "advertisements similar" to those initially mailed to the addressee. Future mailings, in the view of the District Court, "are to be measured by the objectionable material of such first mailing." 300 F.Supp. at 1041. In our view, Congress did not intend so restrictive a scope to those provisions.

I. BACKGROUND AND CONGRESSIONAL OBJECTIVES

Section 4009 was a response to public and congressional concern with use of mail facilities to distribute unsolicited advertisements that recipients found to be offensive because of their lewd and [90 S.Ct. 1488] salacious character. Such mail was found to be pressed upon minors, as well as adults, who did not seek and did not want it. Use of mailing lists of youth organizations was part of the mode of

Page 732

doing business. At the congressional hearings, it developed that complaints to the Postmaster General had increased from 50,000 to 250,000 annually. The legislative history, including testimony of child psychology specialists and psychiatrists before the House Committee on the Post Office and the Civil Service, reflected concern over the impact of the materials on the development of children. A declared objective of Congress was to protect minors and the privacy of homes from such material and to place the judgment of what constitutes an offensive invasion of those interests in the hands of the addressee.

To accomplish these objectives, Congress provided in subsection (a) that the mailer is subject to an order "to refrain from further mailings of such materials to designated addressees." Subsection (b) states that the Postmaster General shall direct the sender to refrain from "further mailings to the named addressees." Subsection (c), in describing the Postmaster's order, states that it shall "expressly prohibit the sender. . . from making any further mailings to the designated addressees. . . ." Subsection (c) also requires the sender to delete the addressee's name "from all mailing lists," and prohibits the sale, transfer, and exchange of lists bearing the addressee's name.

There are three plausible constructions of the statute with respect to the scope of the prohibitory order. The order could prohibit all future mailings to the addressees, all future mailings of advertising material to the addressees, or all future mailings of similar materials.

The seeming internal statutory inconsistency is undoubtedly a residue of the language of the section as it was initially proposed. The section as originally reported by the House Committee prohibited "further mailings of such pandering advertisements," § 4009(a), "further mailings of such matter," § 4009(b), and "any further mailings of pandering advertisements," § 4009(c).

Page 733

H.R.Rep. No. 722, 90th Cong., 1st Sess., 125 (1967). The section required the Postmaster General to make a determination whether the particular piece of mail came within the proscribed class of pandering advertisements, "as that term is used in the Ginzburg case." Id. at 69.

The section was subsequently amended by the House of Representatives to eliminate from the Post Office any censorship function. Congressman Waldie, who proposed the amendment, envisioned a minimal role for the Post Office. The amendment was intended to remove "the right of the Government to involve itself in any determination of the content and nature of these objectionable materials. . . ." 113 Cong.Rec. 28660 (1967). The only determination left for the Postmaster General is whether or not the mailer has removed the addressee's name from the mailing list. Statements by the proponents of the legislation in both the House and Senate manifested an intent to prohibit all further mailings from the sender. In describing the effect of his proposed amendment, Congressman Waldie stated:

So I have said in my amendment that, if you receive literature in your household that you consider objectionable . . . , you can inform the Postmaster General to have your name stricken from that mailer's...

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436 practice notes
  • 322 F.Supp. 318 (W.D.Pa. 1971), Civ. A. 70-1317, Martin v. Davison
    • United States
    • Federal Cases United States District Courts 3th Circuit
    • January 13, 1971
    ...to one's person may be said to be a right of complete immunity: to be let alone.'' Recently, in Rowan v. United States Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970) the Court held that a person's right to be let alone, in some circumstances, outweighed the freedom of......
  • 569 F.2d 1331 (5th Cir. 1978), 77-5286, United States v. Howard
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • March 23, 1978
    ...162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972), which is all the constitution requires, see Rowan v. United States Post Office Department, 397 U.S. 728, 740, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970); United States v. Harriss, 347 U.S. 612, 617-18, 74 S.Ct. 808, 98 L.Ed. 989 (1954). Accord Anders......
  • 767 F.Supp. 378 (D.Mass. 1991), Civ. A. 89-1914, Aronson v. I.R.S.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • June 24, 1991
    ...autonomy ... to permit every householder to exercise control over unwanted mail." Rowan v. United States Post Office Dept., 397 U.S. 728, 736, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736 (1970). It has also been recognized that commercial solicitations a person may receive as a result of the r......
  • 977 F.2d 299 (7th Cir. 1992), 91-3469, Hessel v. O'Hearn
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • October 6, 1992
    ..."A man's home is his castle" into which "not even the King may enter." Cf. Rowan v. United States Post Office Dept., 397 U.S. 728, 738, 90 S.Ct. 1484, 1491, 25 L.Ed.2d 736 (1970); City of Watseka v. Illinois Public Action Council, 796 F.2d 1547, 1571 (7th Cir.1986); see ......
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385 cases
  • 322 F.Supp. 318 (W.D.Pa. 1971), Civ. A. 70-1317, Martin v. Davison
    • United States
    • Federal Cases United States District Courts 3th Circuit
    • January 13, 1971
    ...to one's person may be said to be a right of complete immunity: to be let alone.'' Recently, in Rowan v. United States Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970) the Court held that a person's right to be let alone, in some circumstances, outweighed the freedom of......
  • 569 F.2d 1331 (5th Cir. 1978), 77-5286, United States v. Howard
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • March 23, 1978
    ...162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972), which is all the constitution requires, see Rowan v. United States Post Office Department, 397 U.S. 728, 740, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970); United States v. Harriss, 347 U.S. 612, 617-18, 74 S.Ct. 808, 98 L.Ed. 989 (1954). Accord Anders......
  • 767 F.Supp. 378 (D.Mass. 1991), Civ. A. 89-1914, Aronson v. I.R.S.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • June 24, 1991
    ...autonomy ... to permit every householder to exercise control over unwanted mail." Rowan v. United States Post Office Dept., 397 U.S. 728, 736, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736 (1970). It has also been recognized that commercial solicitations a person may receive as a result of the r......
  • 977 F.2d 299 (7th Cir. 1992), 91-3469, Hessel v. O'Hearn
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • October 6, 1992
    ..."A man's home is his castle" into which "not even the King may enter." Cf. Rowan v. United States Post Office Dept., 397 U.S. 728, 738, 90 S.Ct. 1484, 1491, 25 L.Ed.2d 736 (1970); City of Watseka v. Illinois Public Action Council, 796 F.2d 1547, 1571 (7th Cir.1986); see ......
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  • Comments on NLRB's Proposed Rule Regarding Union Elections (RIN 3124-AA08
    • United States
    • JD Supra United States
    • August 25, 2011
    ...charges in 2008 and early 2009). 73 510 U.S. 487 (1994). 74 Id. at 501. 75 Id., citing Rowan v. United States Post Office Dept., 397 U.S. 728, 737 (1970); Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).The Coalition for a DemocraticWorkplace -22-Comments on N......
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  • Pervasive image capture and the First Amendment: memory, discourse, and the right to record.
    • United States
    • University of Pennsylvania Law Review Vol. 159 Nbr. 2, January 2011
    • January 1, 2011
    ...that we encounter offends our esthetic, if not our political and moral, sensibilities." (quoting Rowan v. U.S. Post Office Dep't, 397 U.S. 728, 736 (1970))); cf. United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 813 (2000) ("Where the designed benefit of a content-based sp......
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    ...Categories and the First Amendment: A Play in Three Acts, 34 VAND. L. REV. 265, 294 (1981). (129.) See Rowan v. U.S. Post Office Dep't, 397 U.S. 728, 737 (1970) (noting that giving individuals the right to block junk mail is no more problematic than "a radio or television viewer twist[......
  • Neighbor-on-neighbor harassment: does the Fair Housing Act make a federal case out of it?
    • United States
    • Case Western Reserve Law Review Vol. 61 Nbr. 3, March - March 2011
    • March 22, 2011
    ...like the interest in being free from unwanted expression in the confines of one's own home."); Rowan v. U.S. Post Office Dep't, 397 U.S. 728, 737 (1970) ("The ancient concept that a 'man's home is his castle' into which 'not even the king may enter' has lost none of it vitality, a......
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    • Military Law Review Nbr. 198, December 2008
    • December 1, 2008
    ...supra note 67, at 88. 74 Cohen, 403 U.S. at 21. 75 487 U.S. 474 (1988). 76 Id. at 486-87. 77 Id. at 486-88. 78 Rowan v. Post Office Dep't, 397 U.S. 728, 738 (1970). 79 Cohen v. California, 403 U.S. 15, 21-22 (1971). 80 Id. 81 Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 168 ......
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  • Telemarketing sales rule,
    • United States
    • Federal Register January 29, 2003
    • January 29, 2003
    ...senders by notifying the Postmaster General that she wished to receive no further mailings from that sender.\672\ The Court stated: \672\ 397 U.S. 728 We therefore categorically reject the argument that a vendor has a right under the constitution or otherwise to send unwanted material into ......
  • Separate Parts In This Issue Part III Federal Trade Commission,
    • United States
    • Federal Register January 29, 2003
    • January 29, 2003
    ...senders by notifying the Postmaster General that she wished to receive no further mailings from that sender.\672\ The Court stated: \672\ 397 U.S. 728 We therefore categorically reject the argument that a vendor has a right under the constitution or otherwise to send unwanted material into ......
  • Separate Parts In This Issue Part II Federal Communications Commission,
    • United States
    • Federal Register July 25, 2003
    • July 25, 2003
    ...permits a citizen to erect a wall--that no advertiser may penetrate without his acquiescence. Rowan v. United States Post Office, 397 U.S. 728 at 737-738 (1970). Here, the record supports that the government has a substantial interest in regulating telemarketing calls. In 1991, Congress hel......
  • Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003: Definitions, implementation, and reporting requirements,
    • United States
    • Federal Register January 19, 2005
    • January 19, 2005
    ...No commenter argued that these are not substantial government interests. \154\ 15 U.S.C. 7701(b). \155\ See Rowan v. Post Office Dept., 397 U.S. 728 (1970) (The government has a substantial interest in protecting the privacy of individuals in their homes.); Frisby v. Schultz, 487 U.S. 474, ......
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