ASSOCIATED STUD., U. OF CAL. AT RIVERSIDE v. Attorney Gen. of United States

• Decision Date: 28 November 1973
• Docket Number: No. 72-1327-F.,72-1327-F.
• Court: U.S. District Court — Central District of California
• Parties: ASSOCIATED STUDENTS FOR the UNIVERSITY OF CALIFORNIA AT RIVERSIDE, an unincorporated association, et al., Plaintiffs, v. ATTORNEY GENERAL OF the UNITED STATES et al., Defendants.

368 F. Supp. 11

ASSOCIATED STUDENTS FOR the UNIVERSITY OF CALIFORNIA AT RIVERSIDE, an unincorporated association, et al., Plaintiffs, v. ATTORNEY GENERAL OF the UNITED STATES et al., Defendants.

No. 72-1327-F.

United States District Court, C. D. California.

November 28, 1973.

Carlyle W. Hall, Jr., Mary D. Nichols, John R. Phillips, Brent N. Rushforth, Fredric P. Sutherland, Center for Law in the Public Interest, Los Angeles, Cal., for plaintiffs.

William D. Keller, U. S. Atty., Frederick M. Brosio, Jr., Donald J. Merriman, Asst. U. S. Attys., Michael Hunter, Atty., Department of Justice, Los Angeles, Cal., for defendants.

Arthur S. Ecker, for Los Angeles Area Council Planned Parenthood World Population, Beverly Hills, Cal., amicus curiae.

Before CARTER, Circuit Judge, and EAST and FERGUSON, District Judges.

OPINION AND ORDER

FERGUSON, District Judge:

This is an action for declaratory and injunctive relief and relief in the nature of mandamus. The plaintiffs seek to invalidate (a) those portions of 18 U.S.C. § 1461 which provide that information concerning abortion is "nonmailable matter" and make the knowing use of the mails for such matter a crime, and (b) the provisions of § 1461 which, together with 39 U.S.C. § 3001(e), make the mailing of unsolicited advertisements of birth control devices a crime.¹ Plaintiffs contend that, both on their face and as applied to plaintiffs, these portions of 18 U.S.C. § 1461 violate the First Amendment, in that they create an unconstitutional system of prior restraint upon protected speech and are unconstitutionally vague and overbroad. We hold that at least one class of plaintiffs has standing to maintain this action and in part grant the relief requested.

Since the action seeks an "injunction restraining the enforcement, operation or execution of an Act of Congress for repugnance to the Constitution," a three-judge district court was convened under 28 U.S.C. § 2282 to decide this case pursuant to 28 U.S.C. § 2284.

The action was brought by the named individual plaintiffs as a class action under Rule 23 of the Federal Rules of Civil Procedure, on behalf of themselves and all other students at the University of California at Riverside (UCR) who now or in the future may want to send or receive information about birth control or abortion through the United States mails. In a pre-trial conference order, the parties stipulated that (1) the class is so numerous that joinder of all of its members is impractical, (2) common questions of law and fact are presented, (3) the claims of the representative parties are typical of those of the class, (4) the defendants have acted on grounds generally applicable to the class, and (5) the interests of the class are fairly and adequately represented by the named individual plaintiffs.

The stipulation has eliminated any issue with reference to whether the action is properly a class action in accordance with Rule 23 of the Federal Rules of Civil Procedure. Therefore, this opinion shall not have any precedential value with regard to that matter in any possible subsequent proceedings or otherwise.

Plaintiff Associated Students of the University of California at Riverside (ASUCR) is the official student government organization on the Riverside campus of the University of California. ASUCR is funded by student fees and supports projects of interest to students on the Riverside campus.

The named individual plaintiffs are all resident students at UCR. They include the president and vice-president of ASUCR and the editor of the student newspaper at UCR. Federal jurisdiction is invoked upon the grounds that this is an action concerning the postal service, 28 U.S.C. § 1339, and that the action is in the nature of mandamus to compel an officer of the United States Postal Service to perform a duty owed to the plaintiffs, 28 U.S.C. § 1361. The action seeks a declaration of plaintiffs' rights under 28 U.S.C. §§ 2201 and 2202, an injunction pursuant to 28 U.S.C. § 2282, and relief in the nature of mandamus under 28 U.S.C. § 1361.

The court finds the following facts:

1. In February 1971, plaintiff Tobin purchased 3,000 copies of a 48-page printed pamphlet entitled "Birth Control Handbook" (5th ed. rev. 1969), published by students at McGill University in Montreal. The text covers the anatomy of male and female sexual organs, hormones and the menstrual cycle, the physiology of sexual intercourse, conception, birth control, abortion, and venereal disease, and also contains a bibliography of medical publications. The chapters on birth control discuss in detail the mode of operation, effectiveness, and disadvantages of all medically approved forms of contraception including the "rhythm method" endorsed by the Catholic Church. The chapter on abortion describes and evaluates the safety of various abortion procedures and discusses the legal status of abortions in different states and countries. Information in the Handbook is presented in a straightforward, clinical manner. The purchase price of $120 plus air freight from Montreal to Los Angeles was paid by check from the general fund of plaintiff ASUCR.

2. During the first week of March 1971, approximately 1,850 copies of the Handbook plus a one-page Explanatory Sheet were distributed by hand or via UCR campus mail to women students living in dormitories at UCR. No complaints that this material was offensive or annoying were received. The Explanatory Sheet indicates that the Handbook is being distributed because of frequent requests received by ASUCR for information about abortion and birth control. It describes two family planning clinics in Riverside and states that "The Dalkon shields (intra-uterine device) are available there at one of the clinics, for women who have not been pregnant." The Sheet refers the reader to ASUCR for additional information about abortion or for any other advice.

3. In mid-March, plaintiffs Tobin and Rabinovitch and several others placed about 1,250 copies of the Handbook and Explanatory Sheet in individual envelopes and addressed them separately to all registered women students living off-campus. The names and addresses of these students were obtained from a computer listing maintained by the University. The students affixed 15 cents postage to each envelope, stamped them "Third Class Mail", and listed the return address of ASUCR.

4. On March 22, 1971, plaintiffs delivered the 1,250 stamped, addressed envelopes containing copies of the Handbook and Explanatory Sheet to the clerk of the United States Post Office in Riverside, California, for mailing.

5. Later that day, the Dean of Students at the University, Mr. Ed Kushner, notified plaintiffs that the Post Office had opened one of the envelopes pursuant to its custom of inspecting to make sure that bulk third-class mailings contain only printed matter. Dean Kushner said he had been informed by the postal officials that the Post Office refused to mail the Handbooks and Explanatory Sheets because they violated a postal regulation prohibiting the mailing of birth control and abortion information. Dean Kushner also told the plaintiffs that he had arranged for the return of their postage as follows: if plaintiffs removed the Handbooks and Explanatory Sheets from the envelopes and returned the canceled envelopes to the Post Office for counting, the Postal Service would shred the envelopes and return the postage. Plaintiffs complied with this plan and postage was returned.

6. On March 25, 1971, defendant Scudder, the Riverside Postmaster, wrote to Dean Kushner citing § 123.723 of the Postal Manual as his authority for refusing to mail the Birth Control Handbook and Explanatory Sheet. That section provided that "any written or printed matter giving information as to how to obtain any article or to use any means for preventing conception or producing abortion is unmailable."

7. On September 1, 1971, Carlyle W. Hall, Jr., attorney for plaintiffs, wrote to defendant Scudder, contending that § 123.723 of the Postal Manual conflicted with the 1971 amendments to 18 U.S.C. § 1461, Pub.L. 91-662, 84 Stat. 1973, since the amendments generally deleted references to information concerning "prevention of conception" from the statute, resulting in the postal regulation's being invalid under the amended statute. The letter asserted that the Postmaster's refusal to deliver plaintiffs' Handbooks and Explanatory Sheets was contrary to law and demanded that the materials be accepted for mailing without further delay. Mr. Hall also requested payment for the cost of the shredded envelopes and for the labor required to address, stuff and sort the envelopes.

8. Mr. O. R. Stites, Jr., the Assistant Regional Counsel for the United States Postal Service, responded to Mr. Hall on February 22, 1972. His letter stated that the Handbook and enclosure were still "nonmailable matter" because they contained information regarding the "procuring or producing of abortion" under the fourth paragraph of 18 U.S.C. § 1461. Mr. Stites also asserted that the Explanatory Sheet might constitute "nonmailable matter" under the eighth paragraph of 18 U.S.C. § 1461, which, together with 39 U.S.C. § 3001(e), provides that "any unsolicited advertisement of matter which is designed, adapted, or intended for preventing conception" is nonmailable matter. He suggested that the statement in the Explanatory Sheet that "The Dalkon shields (intra-uterine device) are available there at a public hospital, for women who have not been pregnant" could be construed as unsolicited advertising of birth control devices within the prohibition of the statute.

Mr. Stites' letter concluded that any further attempt to mail the Handbooks and Explanatory Sheets would be turned over to the United States Attorney for prosecution under 18 U.S.C. § 1461:

"With respect to your request that the Postmaster now accept the same matter for mailing, we are instructing the Postmaster, by copy of

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