Blount v. Rizzi

• Decision Date: 14 January 1971
• Docket Number: No. 55,55
• Citation: 91 S.Ct. 423,400 U.S. 410,27 L.Ed.2d 498
• Parties: Winton M. BLOUNT, Postmaster General, et al. v. Tony RIZZI, dba the Mail Box
• Court: U.S. Supreme Court

400 U.S. 410

91 S.Ct. 423

27 L.Ed.2d 498

Winton M. BLOUNT, Postmaster General, et al.

v Tony RIZZI, dba the Mail Box.

No. 55.

Argued Nov. 10, 1970.

Decided Jan. 14, 1971.^*

Syllabus

Title 39 U.S.C. § 4006 permits the Postmaster General to stamp as 'Unlawful' and return to the sender letters addressed to any person and to prohibit the payment of postal money orders to that person if he finds, on 'evidence satisfactory to (him),' that the person is obtaining or seeking money through the mails for 'an obscene * * * matter' or is using the mails to distribute information about how such items may be obtained. Under departmental regulations, following cmplaint and notice of hearing, a Judicial Officer holds a hearing and renders his opinion 'with all due speed,' from which there is an administrative appeal. Section 4007 permits district courts to order the defendant's incoming mail detained pending completion of the § 4006 proceedings, upon a showing of 'probable cause' to believe that § 4006 is being violated, under the standards fixed by Fed.Rule Civ.Proc. 65. In No. 55, appellee, a retail magazine distributor against whom the Postmaster General had instituted a § 4006 proceeding, brought an action in the District Court seeking declaratory and injunctive relief. A three-judge court held the statute unconstitutional for failure to meet the requirements of Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 which held with respect to a scheme of administrative censorship that (1) the censor must initiate judicial review and prove that the material is unprotected expression; (2) 'prompt judicial review' is mandatory; and (3) any restraint before a final judicial determination must be limited to the shortest, fixed period compatible with sound judicial resolution. In No. 58, where the Postmaster General applied for a § 4007 order, the District Court, on appellee distributor's counterclaim, held § 4006 unconstitutional under Freedman v. Maryland, supra, and that § 4007's 'probable cause' standard was constitutionally insufficient to support a temporary mail detention order. Held: The administrative censorship scheme created by 39 U.S.C. §§ 4006, 4007 violates the First Amendment since it lacks adequate safeguards against undue inhibition of protected expression. Freedman v. Maryland, supra, Pp. 416—422.

(a) The statutory scheme does not require governmentally initiated judicial participation in the procedure barring the magazines from the mails or assuring prompt judicial review. Pp. 417—418.

(b) The authority given the Postmaster General under § 4007 to apply for a court order for temporary mail detention does not cure the defects in § 4006 since the procedure is only discretionary and the requirement for prompt judicial review is not satisfied by a 'probable cause' finding. Pp. 419—420.

(c) Section 4007 fails to provide that any restraint preceding a final judicial determination' be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution.' 380 U.S., at 59, 85 S.Ct., at 739. Pp. 421—422.

No. 55, 305 F.Supp. 634; No. 58, 306 F.Supp. 1023, affirmed.

Peter L. Strauss, Washington, D.C., for appellants.

Stanley Fleishman, Hollywood, Cal., for appellee Tony Rizzi.

Robert Eugene Smith, Towson, Ind., for appellee The Book Bin.

Mr. Justice BRENNAN delivered the opinion of the Court.

No. 55 (hereafter Mail Box) draws into question the constitutionality of 39 U.S.C. § 4006 (now 39 U.S.C. § 3006, Postal Reorganization Act,^*** 84 Stat. 747), under

^*** The codification of the Act will appear in the 1970 edition of the United States Code. This opinion treats the old Code sections as current which the Postmaster General, following administrative hearings, may halt use of the mails and of postal money orders for commerce in allegedly obscene materials. No. 58 (hereafter Book Bin) also draws into question the constitutionality of § 4006, and, in addition, the constitutionality of 39 U.S.C. § 4007 (now 39 U.S.C. § 3007), 84 Stat. 748, under which the Postmaster General may obtain a court order permitting him to detain the defendant's incoming mail pending the outcome of § 4006 proceedings against him.

39 U.S.C. § 4006 provides in pertinent part:

'Upon evidence satisfactory to the Postmaster General that a person is obtaining or attempting to obtain remittances of money or property of any kind through the mail for an obscene * * * matter * * *, or is depositing or causing to be deposited in the United States mail information as to where, how, or from whom the same may be obtained, the Postmaster General may—

'(1) direct postmasters at the office at which registered letters or other letters or mail arrive, addressed to such a person or to his representative, to return the registered letters or other letters or mail to the sender marked 'Unlawful'; and

'(2) forbid the payment by a postmaster to such a person or his representative of any money order or postal note drawn to the order of either and provide for the return to the remitters of the sums named in the money orders or postal notes.'

Proceedings under § 4006 are conducted according to departmental regulations. A proceeding is begun by the General Counsel of the Post Office Department by written complaint and notice of hearing. 39 CFR §§ 952.5, 952.7, 952.8. The Judicial Officer of the Department holds a trial-type hearing at which a full record is transcribed. He renders an opinion which includes findings of fact and a statement of reasons. 39 CFR §§ 952.9—952.25. The decision is to 'be rendered with all due speed,' 39 CFR § 952.24(a), and there is an administrative appeal. 39 CFR § 952.25. No § 4006 order may issue against the defendant until completion of the administrative proceeding. If, however, the Postmaster General wishes to detain the defendant's incoming mail before the termination of the § 4006 proceedings, he may apply to the United States District Court for the district in which the defendant resides, under 39 U.S.C. § 4007, which in pertinent part provides:¹

'In preparation for or during the pendency of proceedings under (§ 4006) of this title, the United States district court in the district in which the defendant receives his mail shall, upon application therefor by the Postmaster General and upon a showing of probable cause to believe the statute is being violated, enter a temporary restraining order and preliminary injunction pursuant to rule 65 of the Federal Rules of Civil Procedure directing the detention of the defendant's incoming mail by the postmaster pending the conclusion of the statutory proceedings and any appeal therefrom. The district court may provide in the order that the detained mail be open to examination by the defendant and such mail be delivered as is clearly not connected with alleged unlawful activity. An action taken by a court hereunder does not affect or determine any fact at issue in the statutory proceedings.'² In Mail Box, the Postmaster General began administrative proceedings under § 4006 on November 1, 1968. The administrative hearing was concluded December 5, 1968. The Judicial Officer filed his decision December 31, 1968, finding that the specified magazines were obscene and, therefore, entered a § 4006 order—61 days after the complaint was filed. Mail Box filed a complaint in the United States District Court for the Central District of California seeking a declaratory judgment that § 4006 was unconstitutional and an injunction against enforcement of the administrative order. A three-judge court was convened and held that 39 U.S.C. § 4006 'is unconstitutional on its face, because it fails to meet the requirements of Freedman v. Maryland (1965) 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649.' 305 F.Supp. 634, 635 (1969). The court, therefore, vacated the administrative order, directed the delivery 'forthwith' of all mail addressed to Mail Box, and enjoined any proceedings to enforce § 4006.

In Book Bin, the Postmaster General applied to the District Court for the Northern District of Georgia for a § 4007 order pending the completion of § 4006 proceedings against Book Bin.³ Book Bin counterclaimed, asserted that both §§ 4006 and 4007 were unconstitutional and that their enforcement should be enjoined. A three-judge court was convened and held both sections unconstitutional. It agreed with the three-judge court in Mail Box that the procedures of § 4006 were fatally deficient under Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and also held that the finding under § 4007 merely of 'probable cause' to believe material was obscene was not a constitutionally sufficient standard to support a temporary mail detention order. 306 F.Supp. 1023 (1969).

We noted probable jurisdiction of the Government's appeals. 397 U.S. 959, 960, 90 S.Ct. 990, 991, 25 L.Ed.2d 252 (1970). We affirm the judgment in each case.

Our discussion appropriately begins with Mr. Justice Holmes' frequently quoted admonition that, 'The United Sttaes may give up the Post Office when it sees fit, but while it carries it on the ues of the mails is almost as much a part of free speech as the right to use our tongues * * *.' United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437, 41 S.Ct. 352, 363, 65 L.Ed. 704 (1921) (dissenting opinion); see also Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965). Since § 4006 on its face, and § 4007 as applied, are procedures designed to deny use of the mails to commercial distributors of obscene literature, those procedures violate the First Amendment unless they include built-in safeguards against curtailment of constitutionally protected expression, for Government 'is not free to adopt whatever procedures it pleases for dealing with obscenity * * * without regard to the possible consequences for constitutionally protected speech.' Marcus v. Search Warrant, ...