415 F.2d 664 (5th Cir. 1969), 25732, Hiett v. United States

Docket Nº:25732.
Citation:415 F.2d 664
Party Name:Tommy HIETT, Appellant, v. UNITED STATES of America, Appellee.
Case Date:August 26, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 664

415 F.2d 664 (5th Cir. 1969)

Tommy HIETT, Appellant,

v.

UNITED STATES of America, Appellee.

No. 25732.

United States Court of Appeals, Fifth Circuit.

Aug. 26, 1969

Page 665

Lee A. Chagra, El Paso, Tex., for appellant.

Andrew L. Jefferson, Jr., Asst. U.S. Atty., San Antonio, Tex., Ray Caballero, Asst. U.S. Atty., Ernest Morgan, U.S. Atty., El Paso, Tex., for appellee.

Before THORNBERRY and SIMPSON, Circuit Judges, and CASSIBRY, District judge.

THORNBERRY, Circuit Judge:

This is an appeal from a judgment of conviction under 18 U.S.C. § 1714 (1964), which prohibits the use of the United States mails to distribute written material 'giving or offering to give information concerning where or how or through whom a divorce may be secured in a foreign country, and designed to solicit business in connection with the procurement thereof.' Appellant contends that this statute is unconstitutional in that it violates the first amendment. We agree and reverse his conviction.

The case was tried without a jury on stipulated facts. Appellant admitted that he had been doing business as Mexico Divorce Consultants, Ltd., at El Paso, Texas, in association with attorneys licensed to practice law in Mexico. Having received inquiries from persons who purported to be interested in securing divorces, he replied by placing in the United States mails letters offering the services of his firm and explaining the procedures to be followed in obtaining both bilateral and ex parte Mexican divorces. Since appellant thus admitted all elements of the offense, he was found guilty as charged on two counts of violating § 1714. The trial court overruled his contention that the statute was unconstitutional. He was sentenced to five months' imprisonment on the first count and fined $5,000 and given a suspended sentence of one year on the second.

The challenge of unconstitutionality against § 1714 presents two main issues. The first is whether Congress may selectively exclude printed matter from the mails, irrespective of its status under the first amendment, solely on the basis of the power to 'establish Post Offices and post Roads.' U.S.Const. Art. I § 8. The second issue is whether § 1714 is a law 'abridging the freedom of speech' within the meaning of the first amendment.

I. THE APPELLANT'S CONDUCT AND ITS RELEVANCE

Before considering the Constitutional issues involved here, we eliminate one question. Appellee points out that when § 1714 was enacted in 1939, the principal evil against which it was directed was the fraudulent solicitation of Mexican divorces that often proved, to the parties' dismay, to be invalid in the United States. Appellee argues that appellant's conduct in this case presents precisely the evil the statute was enacted to prevent. There were statements in appellant's letters to the effect that 'most courts recognize Mexican divorces as valid,' and that service on the spouse for an ex parte divorce could be had by publication. These statements, appellee argues, were misrepresentations because (1) Mexican bilateral divorces were actually invalid in every state of the Union except New York and possibly Arizona and Alabama, see Annot., 13 A.L.R.3d 1419, 1425, 1441 (1967), and (2) not even New York recognized ex

Page 666

parte divorces in which one party was 'served' by publication, see Rosenstiel v. Rosenstiel, N.Y.App.1965, 16 N.Y.2d 64, 262 N.Y.S.2d 86, 209 N.E.2d 709, 13 A.L.R.3d 1401.

Appellant's actual conduct, however, is largely irrelevant here. His attack is on the face of the statute itself. He admits violation of the terms of § 1714, and his conduct is therefore not in issue except as it may furnish an aid to our determining the breadth of application of the statute. It is well settled that if the statute under which appellant has been convicted is unconstitutional, he has not in the contemplation of the law engaged in criminal activity; for an unconstitutional statute in the criminal area is to be considered no statute at all.

Beyond this well-established truth, there is another good reason for our not considering appellant's conduct, and that is that we have no standards by which to do so. Section 1714 indiscriminately prohibits the mailing of certain types of communications, without regard to fraudulent intent. Furthermore, although appellant's statements may have been misleading, there is not a scintilla of evidence in the record indicating any of the elements of fraud. Under the circumstances, these misleading statements may have been honest mistakes as to the law made by an attorney who drafted the letters, or, worst yet, statements that were conceivably true for some limited purposes, the misleading tendencies of which the attorney did not see. Cf. 37 C.J.S. Fraud § 3 (1943). Accordingly, the conviction must stand or fall on the constitutionality of § 1714 alone, and we proceed now to the Constitutional questions.

II. THE EFFECT OF THE POSTAL POWER

We are met at the outset with appellee's contention that Congress may exclude 'objectionable' materials from the mails merely on public policy grounds even if it would be under a disability to regulate the existence of the materials themselves or the underlying scheme for which they are used. On this basis, appellee concludes that Congress can prohibit the use of the mails to send out information to solicit divorces, even assuming it is unable, under any of its powers, to outlaw the solicitation itself. We reject this argument and hold that a statute excluding printed communications from the mails must be tested for consistency with the first amendment.

The postal power has been construed with great variation throughout its history, and there is an abundance of dicta that would support appellee's contentions if construed in the absence of more recent decisions. Originally, the power was viewed with a narrowness that today seems surprising. In one early case, the power was limited strictly to 'the designation of roads on which the mails are to be transported.' United States v. Railroad Bridge Co., C.C.N.D.Ill.1855, 27 Fed.Cas. p. 686, No. 16,114. After 1876, however, the pendulum swung the other way, and the postal power was given rapidly expanding latitude. See Kohl v. United States, 1876, 91 U.S. 367, 23 L.Ed. 449; Legislative Reference Service, Library of Congress, The Constitution of the United States of America: Analysis and Interpretation 313 (1964). The pioneer case of Ex parte Jackson, 1878, 96 U.S. 727, 24 L.Ed. 877, upheld the first Congressional use of the power to influence public policy aims. The Supreme Court established a broad postal power: It affirmed a conviction under a statute excluding lottery information from the mails, on the theory that 'the right to designate what shall be carried necessarily involves the right to determine what shall be excluded.' Although Ex parte Jackson also emphasized the 'necessity of enforcing (the postal laws) consistently with the rights reserved to the People, of far greater importance than the transportation of the mail,' the decision spawned a line of cases indicating in dictum that the postal power includes an absolute power of censorship. These cases, in contrast to the original narrow interpretation

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given the post-roads clause, developed the 'privilege' doctrine: They viewed the use of the mails as a privilege to which 'Congress * * * may annex such conditions * * * as it chooses.' Public Clearing House v. Coyne, 1904, 194 U.S. 497, 24 S.Ct. 789, 48 L.Ed. 1092; see also Ex parte Rapier, 1892, 143 U.S. 110, 12 S.Ct. 374, 36 L.Ed. 93; McCrossen v. United States, 10th Cir. 1965, 339 F.2d 810, 11 A.L.R.3d 1268.

Today, whatever the status of the privilege doctrine, the cases establish beyond doubt that the postal power may be used broadly to achieve social and economic results that Congress deems beneficial. For example, the power unquestionably may be used to exclude utterances that are not protected speech on a judgment by Congress that they are harmful. See, e.g., Parr v. United States, 1960, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (mail fraud); Roth v. United States, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (obscenity). It may be used to enforce economic regulatory schemes such as the securities laws. Electric Bond & Share Co. v. SEC, 1938, 303 U.S. 419, 58 S.Ct. 678, 82 L.Ed. 936. Congress evidently even has the power to encourage certain categories of speech over others when it deems that the public interest will be served by its doing so, since it has 'a broad power of classification and need not open second-class mail (which is less expensive) to publications of all types.' Hannegan v. Esquire, Inc., 1946, 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586. In short, today the permissible use of the postal power is similar in breadth to the uses to which the commerce and tax powers have been put. See Sigler, Freedom of the Mails: A Developing Right, 54 Geo.L.J. 30, 37 (1965).

However, it is one thing to say, as the cases hold, that a power of Congress may legitimately be used to protect the public health, safety, welfare, or morals, and quite a different thing to say, as appellee apparently says, that its use for police power purposes automatically overrides the specific limitations on Congressional power that are contained in the Bill of Rights. Admittedly, the freedom of speech is not absolute; but neither may the powers of Congress, even though delegated by the Constitution, be regarded as absolute, since they would obliterate the first amendment if asserted to their logical extreme. Thus both the commerce power and the tax power have been held to be circumscribed by the first amendment. See Red Lion Broadcasting Co. v. FCC, 1969, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371; Murdock v. Pennsylvania, 1943, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292. Similarly, regulation of speech through the postal power, although it is...

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