U.S. v. Pent-R-Books, Inc.

• Decision Date: 28 June 1976
• Docket Number: Nos. 625,INC,PENT-R-BOOK,s. 625
• Citation: 538 F.2d 519
• Parties: 1 Fed. R. Evid. Serv. 259 UNITED STATES of America, Plaintiff-Appellee, v., Defendant-Appellant. to 644, Dockets 74-2281, 75-6014 to 75-6032.
• Court: U.S. Court of Appeals — Second Circuit

Page 519

538 F.2d 519

1 Fed. R. Evid. Serv. 259

UNITED STATES of America, Plaintiff-Appellee, v. PENT-R-BOOKS, INC., Defendant-Appellant.

Nos. 625 to 644, Dockets 74-2281, 75-6014 to 75-6032.

United States Court of Appeals,

Second Circuit.

Argued March 29, 1976.

Decided June 28, 1976.

Herbert Monte Levy, New York City, for defendant-appellant.

Constance M. Vecellio, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S. Atty., E. D. N. Y., Brooklyn, N. Y., on the brief, Paul B. Bergman, Josephine Y. King, Asst. U. S. Attys., Brooklyn, N. Y., of counsel), for appellee.

Before OAKES and GURFEIN, Circuit Judges, and PIERCE, District Judge. ^*

PIERCE, District Judge:

This appeal, involving twenty cases consolidated for appellate purposes, ¹ presents a variety of questions concerning the federal statute regulating the mailing of pandering advertisements, 39 U.S.C. § 3008 (the Pandering Law). ²

The Pandering Law was enacted by Congress because of a concern about the growing number of complaints received by the Post Office Department and members of Congress concerning the repeated receipt by individuals of unsolicited mail which was found by the individuals to be sexually provocative and offensive. See Senate Report No. 801, U.S.Code Cong. & Admin.News, pp. 2258, 2294, 90th Cong. 1st Sess. (1967). The purpose of the statute was to provide a "procedure 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.' (citation omitted)." Rowan v. Post Office Dept., 397 U.S. 728, 729-30, 90 S.Ct. 1484, 1487, 25 L.Ed.2d 736 (1970).

Subsection [b] of the statute requires the Postal Service, upon notification by an addressee that he has received such mail matter and upon his request, to issue an order to the sender directing the sender to refrain from further mailings to the addressees named in the order which may include the complainant and his minor children. Such a prohibitory order applies to all mailings of any kind from the sender to the named persons. Rowan v. Post Office Dept., supra at 734-35, 90 S.Ct. 1484. Subsection (c) provides that the prohibitory order shall be effective on the thirtieth day following receipt by the sender and requires the sender to take certain steps including deleting the names of the designated persons from its mailing lists to insure the effectiveness of the order.

Subsection (d) requires the Postal Service, when it believes that such a prohibitory order has been violated, that is, that a second mailing has been sent to one of the designated addressees, to serve upon the sender a complaint stating the reasons for its belief. Subsection (d) establishes a procedure for a hearing before the Postal Service, and provides that if the Postal Service determines that a prohibitory order has been violated, it may request the Attorney General to seek an order from a United States District Court directing compliance with the prohibitory order. Subsection (e) grants the district courts jurisdiction to issue such a compliance order and provides that failure to comply with such an order may be punishable by contempt proceedings.

In each of the twenty cases before us, a prohibitory order was issued by the Postal Service to appellant Pent-R-Books, Inc. (Pent-R) with respect to a designated addressee. Thereafter, it was brought to the attention of the Postal Service that individuals who had requested the prohibitory orders had received second mailings from Pent-R, whereupon complaints were issued and, thereafter, a determination was made by the Postal Service, either with or without a hearing, that the prohibitory orders had been violated. At the request of the Postal Service, the Attorney General brought these actions in the United States District Court for the Eastern District of New York seeking the issuance of compliance orders against Pent-R. The parties submitted the administrative record to the district court and made cross-motions for summary judgment without further proceedings in that court. In each of the twenty cases before us the district court entered an order granting the government's motion. It is from these orders that Pent-R appeals.

Pent-R's attacks on the judgments below range from charges that the Pandering Law is unconstitutional to claims that the administrative record before the district court was inadequate to support the entry of summary judgment in particular cases. First, Pent-R argues that the issue is moot, that there is no case or controversy, and that entry of compliance orders is not in the public interest because, since 1969 when the second mailings at issue were received by the complaining individuals, Pent-R has undertaken extensive efforts to assure that there is virtually no likelihood that the mailings would be repeated. Therefore, Pent-R argues, no purpose would be served by the issuing of compliance orders.

In support of this argument, Pent-R contends, as it did below, that as a result of sophisticated and costly computer operations instituted by the company since the enactment of the Pandering Law, it has effectively reduced the violation rate, that is, the number of valid complaints issued with respect to second mailings, to less than one quarter of 1% (0.025%) of the number of prohibitory orders issued to Pent-R in the last five years. In addition, Pent-R contends that repeated requests to the Postal Service and the Justice Department of the United States for suggestions as to how Pent-R could modify its computer operations to improve its performance have been unavailing. Pent-R urges that it has no desire or intention to violate any prohibitory orders it has received or will receive. Thus, Pent-R claims it was an abuse of discretion for the district judge to enter the compliance orders in these cases.

The principal authority on which Pent-R relies for its position is Hecht v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754 (1944). In that case the Supreme Court reviewed a ruling by the United States Court of Appeals for the District of Columbia which had reversed an order of the district court declining to issue an injunction against a department store found to have violated provisions of the Emergency Price Control Act of 1942. The district court had ruled that although the fact of violation was clear, the mistakes made by the store had been made in good faith and with no intent to violate the law. Hecht v. Bowles, supra at 325, 64 S.Ct. 587. The Court of Appeals reversed, holding that where a violation was found, issuance of an injunction was mandatory. The Supreme Court reversed this holding of the court of appeals.

Appellant would have us read Hecht as standing for the proposition that where the issuance of an injunction would have no effect in bringing about better compliance with a particular statutory scheme it is an abuse of discretion to issue an injunction. Even assuming that the factual premise for such a proposition is present here, i. e., that issuance of an injunction would serve no purpose in promoting compliance with the Pandering Law, the Court's decision in Hecht simply does not support appellant's position. While the Supreme Court reversed the holding in Hecht that an injunction was mandatory whenever a violation was shown to have occurred, it specifically did not reach the question of whether the district court's refusal to enter an injunction was an abuse of discretion. It did not decide, or even imply, that it might be an abuse of discretion to issue an injunction in the factual circumstances of the Hecht case.

" In shaping equity decrees, the trial court is vested with broad discretionary power . . .." Lemon v. Kurtzman, 411 U.S. 192, 200, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151 (1973). See Hecht v. Bowles, supra at 329-30, 64 S.Ct. 587. The statute under consideration here expressly empowers the district court to issue a compliance order upon application of the Attorney General, once a finding has been made that a prohibitory order has been violated. § 3008(d) and (e). There is no suggestion in the statute that either the Postal Service or the district court must determine that there is danger of yet a further violation of a prohibitory order before a compliance order may be issued. Moreover, the compliance order is in the nature of a civil, not a criminal order and carries no penalty with it. As Judge Dooling stated, "compliance orders are not punitive, but directory . . . " ³ Most importantly, however, we note that the court below herein did not issue compliance orders after having made a finding that an injunctive order would serve no purpose in furthering the goals of the statutory scheme. Rather, the court found that "(Pent-R's) liability to subjection to individual Compliance Orders of (the) court is the begetter of (it's) praiseworthy compliance effort. . . . " ⁴ We cannot say that Judge Dooling erred in this assessment. Nor do we find that under all the circumstances presented by these cases the district judge abused his discretion in entering compliance orders. ⁵

Appellant's constitutional attacks on the Pandering Law takes the form of claims that the statutory scheme deprives Pent-R of rights under the First Amendment. This issue was decided by the Supreme Court in Rowan v. Post Office Dept., supra, adversely to the position now urged by Pent-R.

Pent-R's First Amendment argument rests squarely on its contentions that both the material which it mails and its right to communicate with willing recipients of its literature are protected by the First Amendment. In Rowan, the Court explicitly and categorically rejected "the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even 'good' ideas...