Rowan v. United States Post Office Department

Decision Date04 May 1970
Docket NumberNo. 399,399
Citation397 U.S. 728,90 S.Ct. 1484,25 L.Ed.2d 736
PartiesDaniel ROWAN, dba American Book Service, et al., Appellants, v. UNITED STATES POST OFFICE DEPARTMENT et al
CourtU.S. Supreme Court

Joseph Taback, Beverly Hills, Cal., for appellants.

William D. Ruckelshaus, Washington, D.C., for appellees.

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 the questions raised in this appeal. Section 4009 is entitled 'Prohibition of pandering advertisements in the mails.' It provides a pro-

cedure 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

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 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

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).

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 (Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31).' 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 mailing list.' 113 Cong.Rec. 28660.

The Senate Committee Report on the bill contained similar language:

'If a person receives an advertisement which * * * he * * * believes to be erotically arousing * * * he may notify the Postmaster General of his determination. The Postmaster General is then required to issue an order to the sender directing him to refrain from sending any further mailings of any kind to such person.' S.Rep. No. 801, 90th Cong., 1st Sess., 38; U.S.Code Cong. & Admin.News 1967, p. 2295.

Senator Monroney, a major proponent of the legislation in the Senate, described the bill as follows:

'With respect to the test contained in the bill, if the addressee declared it to be erotically arousing or sexually provocative, the Postmaster General would have to notify the sender to send no more mail to that address * * *.' 113 Cong.Rec. 34231 (1967).3

The legislative history of subsection (a) thus supports an interpretation that prohibits all future mailings independent of any objective test. This reading is consistent with the provisions of related subsections in the section. Subsection (c) provides that the Postmaster General 'shall also direct the sender and his agents or assigns to delete immediately the names of the designated addressees from all mailing lists owned or controlled by the sender or his agents or assigns and, further, shall prohibit the sender and his agents or assigns from the sale, rental, exchange, or other transaction involving mailing lists bearing the names of the designated addressees.' 39 U.S.C. § 4009(c) (1964 ed., Supp. IV).

It would be anomalous to read the statute to affect only similar material or advertisements and yet require the Postmaster General to order the sender to remove the addressee's name from all mailing lists in his actual or constructive possession. The section was intended to allow the addressee complete and unfettered discretion in electing whether or not he desired to receive further material from a particular sender. See n. 6, infra. The impact of this aspect of the statute is on the mailer, not

the mail. The interpretation of the statute that most completely effectuates that intent is one that prohibits any further mailings. Limiting the prohibitory order to similar materials or advertisements is open...

To continue reading

Request your trial
387 cases
  • People v. Glaze
    • United States
    • United States State Supreme Court (California)
    • 7 Agosto 1980
    ...prohibited mailed solicitations to occupants who had advised that they found certain material offensive. (Rowan v. Post Office Dept. (1970) 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736.) In the present case, the government assumes that because masturbation has occurred at some picture arcade......
  • DeGregory v. Giesing
    • United States
    • U.S. District Court — District of Connecticut
    • 16 Marzo 1977
    ..."very basic right to be free from sights, sounds and tangible matter they do not want." Rowan v. Post Office Department, 397 U.S. 728, 736, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 756 (1970); Hynes v. Mayor and Council of the Borough of Oradell, 425 U.S. 610, 619, 96 S.Ct. 1755, 48 L.Ed.2d 243 4 Th......
  • Loza v. Panish
    • United States
    • California Court of Appeals
    • 27 Febrero 1980
    ...the government's need to license this spectrum use in the public interest. Similarly, the high court in Rowan v. United States Post Office, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736, upheld the statutory and administrative postal procedure which allows an addressee to determine whether ma......
  • Com. v. A Juvenile
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 11 Septiembre 1975
    ...of the home of unwelcome views and ideas which cannot be totally banned from the public diaglogue, e.g., Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970), we have at the same time consistently stressed that 'we are often 'captives' outside the sanctuary of the ......
  • Request a trial to view additional results
14 books & journal articles
  • Do Not Knock? Lovell to Watchtower and Back Again
    • United States
    • Capital University Law Review No. 38-3, May 2010
    • 1 Mayo 2010
    ...(quoting Frisby , 487 U.S. at 484–85). 71 See, e.g. , FCC v. Pacifica Found., 438 U.S. 726, 748 (1978); Rowan v. U.S. Post Office Dep’t., 397 U.S. 728, 738 (1970); Kovacs v. Cooper, 336 U.S. 77, 86–87 (1949). 72 See Frisby , 487 U.S. at 484–85. 73 See Mainstream Mktg. Servs., Inc. , 358 F.3......
  • OVERBROAD INJUNCTIONS AGAINST SPEECH (ESPECIALLY IN LIBEL AND HARASSMENT CASES).
    • United States
    • Harvard Journal of Law & Public Policy Vol. 45 No. 1, January 2022
    • 1 Enero 2022
    ...Id. (104.) Keefe, 402 U.S. at 417. (105.) Id. (106.) Id. (107.) See id. at 417-20. (108.) Id. at 419. (109.) Id. at 419-20. (110.) 397 U.S. 728 (111.) Id. at 737. (112.) Id. at 738. (113.) FCC v. Pacifica Found., 438 U.S. 726, 749-50 (1978) (lead opin.); Frisby v. Schultz, 487 U.S. 474, 484......
  • Table of Cases
    • United States
    • The Path of Constitutional Law Suplemmentary Materials
    • 1 Enero 2007
    ...v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), 1448, 1450, 1452 Page 1706 Rowan v. United States Post Office Dep't, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970), Rubin v. Coors Brewing Co., 514 U.S. 476, 115 S.Ct. 1585, 131 L.Ed.2d 532 (1995), 1494 Ruckelshaus v......
  • CUSTOMIZED SPEECH AND THE FIRST AMENDMENT.
    • United States
    • Harvard Journal of Law & Technology Vol. 35 No. 2, March 2022
    • 22 Marzo 2022
    ...could only be mailed to recipients who affirmatively opted into receiving it). (168.) See, e.g., Rowan v. U.S. Post Off. Dep't, 397 U.S. 728, 738 (1970) (upholding law letting individuals opt out of sexually explicit commercial (169.) See Talley v. California, 362 U.S. 60, 63-64 (1960) (rej......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT