American Civil Liberties Union v. Kiely

• Decision Date: 07 April 1930
• Docket Number: No. 196.,196.
• Citation: 40 F.2d 451
• Parties: AMERICAN CIVIL LIBERTIES UNION, Inc., v. KIELY, City Postmaster.
• Court: U.S. Court of Appeals — Second Circuit

40 F.2d 451 (1930)

AMERICAN CIVIL LIBERTIES UNION, Inc., v. KIELY, City Postmaster.

No. 196.

Circuit Court of Appeals, Second Circuit.

April 7, 1930.

Arthur Garfield Hays, of New York City (Albert E. Kane, of New York City, of counsel), for appellant.

Charles H. Tuttle, U. S. Atty., of New York City (Samuel C. Coleman, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The postmaster of New York, acting under instructions of the Postmaster General, refused to receive from the complainant for transmission through the mails a quantity of envelopes because of matter printed on the face of the envelopes.

The envelopes sought to be mailed contained a pamphlet advocating the pardon of Tom Mooney, who was convicted in the state of California for exploding a bomb in San Francisco on July 22, 1916, whereby ten people were killed, and was thereafter sentenced to life imprisonment. The pamphlet purports to show requests for pardon by jurymen, by the judge who conducted the trial, as well as by other public officials, and contains detailed arguments attempting to establish that the conviction was obtained upon perjured testimony. It is not contended that the pamphlet was in itself nonmailable, but it is said that the envelope was properly excluded from the mails because it had on its face these words: "Pardon Tom Mooney — Innocent," "The Horror of 13 Years Unjust Imprisonment," and around the border, the words: "Tom Mooney Frame-up," "A Terrible Indictment," "California's Shame," "Justice California Style."

The Postmaster General and the postmaster relied on section 212 of the United States Criminal Code (18 USCA § 335) which declares: "All matter otherwise mailable by law, upon the envelope or outside cover or wrapper of which or any * * * epithets, terms, or language of * * * libelous, scurrilous, defamatory, or threatening character, or calculated by the terms or manner or style of display and obviously intended to reflect injuriously upon the character or conduct of another, may be written or printed or otherwise impressed or apparent, are hereby declared nonmailable matter, and shall not be conveyed in the mails nor delivered from any post office. * * *"

The complainant is a New York membership corporation seeking to promote the pardon of Mooney. It contends that its purpose is aided by having on the envelopes which contain the pamphlets that it desires to circulate sensational inscriptions which will attract the attention of the public, and it may be that such things aid its propaganda and may in some cases prevent the envelopes and their contents from being thrown into waste paper baskets unread by the recipients.

There can be no doubt that the United States may prohibit the carriage by mail of such things as it pleases. The question is whether the inscriptions on the envelopes in truth are "libelous, scurrilous, defamatory * * * or calculated by the terms or manner or style of display and obviously intended to reflect injuriously upon the character or conduct of another." If they are not of this sort, the Postmaster General cannot exclude them, though he is an official required to use his discretion in determining whether a particular publication is nonmailable, and "his decision must be regarded as conclusive by the courts, unless it appears that it is clearly wrong." Masses Publishing Co. v. Patten (C. C. A.) 246 F. 24, 33, L. R. A. 1918C, 79, Ann. Cas. 1918B, 999; Bates & Guild Co. v. Payne, 194 U. S. 108, 24 S. Ct. 595, 48 L. Ed. 894; Smith v. Hitchcock, 226 U. S. 58, 33 S. Ct. 6, 57 L. Ed. 119.

Upon the rejection of the envelopes by the postmaster of New York, the complainant brought suit to restrain the defendant from treating them as nonmailable, and moved for an injunction pendente lite. The defendant likewise moved to dismiss the bill of complaint on the ground that it failed to state a cause of action. The District Judge denied the application for an injunction and granted the motion to dismiss the bill in a memorandum in which he said:

"I think the word `defamatory' as used in the statute is not limited to instances where specific individuals may be identified as the objects of defamation. The envelope is certainly defamatory of the State of California and of some undefined persons therein who have had to do with the Mooney case. Under these circumstances I think the postal authorities were within their discretion in excluding the envelopes."

The meaning and scope of the statute is tested by this appeal, and we must determine whether the words inscribed on the envelopes in question are "libelous," "scurrilous," or "defamatory," or are "calculated to reflect injuriously upon the character or conduct of another." These terms necessarily must be read in a legal sense, and the general field of libel would seem to furnish the proper background for their interpretation. The apparent object of section 212 of the Criminal Code (18 USCA § 335) was to prevent wanton attacks upon individuals who could be identified from the inscription on the envelope. Section 212 has nothing to do with the contents of the envelope, and only relates to what is on the cover. The contents may be mailed freely, provided they are not...