Constitutionality of Legislation Prohibiting the Mailing of Sexually Oriented Advertisements, 84-15

• Decision Date: 09 August 1984
• Docket Number: 84-15
• Citation: 8 Op. O.L.C. 160
• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Parties: Constitutionality of Legislation Prohibiting the Mailing of Sexually Oriented Advertisements

8 Op. O.L.C. 160

Constitutionality of Legislation Prohibiting the Mailing of Sexually Oriented Advertisements

No. 84-15

United States Department of Justice

August 9, 1984

Ralph W. Tarr Deputy Assistant Attorney General Office of Legal Counsel.

Constitutionality of Legislation Prohibiting the Mailing of Sexually Oriented Advertisements

A draft bill that would prohibit the mailing of photographic sexually oriented advertisements without the addressee's prior written consent, and that would create strict criminal liability in any person who knowingly sends any sexually oriented advertisements to minors, regardless of whether the advertisements are photographic or not, would likely be held unconstitutional by the courts. The provisions in the draft bill are more extensive than necessary to support the interests asserted by the government, and thus would be held inconsistent with protections accorded commercial speech under the First Amendment.

MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGISLATIVE AND INTERGOVERNMENTAL AFFAIRS

This responds to your memorandum seeking the views of this Office regarding the constitutionality of a draft bill, proposed by the Criminal Division, to restrict the mailing of photographic sexually oriented advertisements, "The Sexually Oriented Advertisements Amendments Act of 1984." The bill would amend § 3010 of title 39, the so-called Goldwater Amendment to the Postal Reorganization Act of 1970, Pub. L. No. 91-375, 39 U.S.C. §§ 101 et seq., to create a subcategory of sexually oriented advertisements - the general category of sexually oriented advertisements is presently addressed by § 3010 - known as photographic sexually oriented advertisements. The bill would prohibit the mailing of such materials to any individual without his or her prior written consent. Section 1735 of Title 18 would be amended to provide a fine of "not more than $5, 000 or imprison[ment of] not more than one year, or both" to willful violators of this provision. In addition, the bill would create strict criminal liability in any person who knowingly sends advertisements photographic or otherwise, of a sexually oriented character to persons who are under the age of 18. The penalty for violation of this provision under the proposed amendments to 18 U.S.C. § 1735 would be a fine in an amount "not less than $50, 000, nor more than $100, 000." As amended, § 1735 would provide as an affirmative defense to prosecution for mailing sexually oriented ads to minors "that the minor solicited the mailing from the defendant, and that the defendant believed and had substantial reason to believe that the minor was eighteen years or older."

We believe that this proposed draft bill raises serious constitutional concerns when considered in light of recent decisions of the Supreme Court and lower [ 161] courts dealing with the government's authority to regulate sexually offensive commercial speech. These concerns arise primarily out of the bill's failure to strike what we believe the courts would find to be a constitutionally acceptable balance between the mailer's "right to use the mails [which] is undoubtedly protected by the First Amendment, " Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 76 (1983) (Rehnquist, J. concurring) (citing Blount v. Rizzi, 400 U.S. 410 (1971)), and the individual's "right not to be assaulted by uninvited and offensive sights and sounds" "in the privacy of the home, " Bolger, 463 U.S. at 77 (citing FCC v. Pacifica Foundation, 438 U.S. 726 748 (1978)). Although the courts have recognized that the government clearly may act properly to protect people from unreasonable intrusions into their homes, we are persuaded that the protections currently provided by 39 U.S.C. § 3010 to unwilling recipients of unsolicited advertisements constitute the outer limits of the courts' willingness to uphold governmental prohibitions of commercial speech via the mails, of an offensive, though not "obscene "^[1] nature, absent a more substantial government interest than has been articulated by the Criminal Division.

Similarly with regard to the draft bill's provisions concerning minors, although the courts have recognized, in certain circumstances, a "compelling" governmental interest in '"safeguarding the physical and psychological well-being of . . . minor[s]"' from participating in the production of non-obscene sexually offensive materials, New York v. Ferber, 458 U.S. 747, 757 (1982) (upholding criminal statute prohibiting the knowing promotion of child pornography by distributing materials depicting such) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982)), the values protected by the First Amendment are generally no less applicable to protected materials merely because the government seeks to control the flow of information to minors. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-13 (1975). See also Bolger v. Youngs Drugs Products, Inc., 463 U.S. at 74 n.30 (Rehnquist, J. concurring). Although we recognize that the government has a strong interest in flatly prohibiting the mailing of sexually oriented advertisements, whether photographic or not, to minors, we have serious reservations regarding the ability of the draft bill's proposed strict liability for such distribution to withstand constitutional scrutiny in the courts. We believe that the courts, applying existing Supreme Court precedent, would find that the restrictions contained in the draft bill are more extensive than is necessary to support the [ 162] government's asserted interest, in view of the adequacy of existing statutory provisions and regulations by which minors may be protected, the substantial burden which would be imposed upon mailers to determine the minority status of potential addressees, and the broad "prior restraining" effect that such an amendment would exert, in practice, on mailers with respect to material entitled to some protection under the First Amendment.

L Existing Law

At present, 39 U.S.C. § 3010 permits any unwilling recipient of sexually oriented advertisements

on his own behalf or on the behalf of any of his children who has not attained the age of 19 years and who resides with him or is under his care, custody, or supervision, [to] file with the Postal Service a statement, in such form and manner as the Postal Service may prescribe, that he desires to receive no sexually oriented advertisements through the mails. The Postal Service shall maintain and keep current, insofar as practicable, a list of the names and addresses of such persons and shall make the list (including portions thereof or changes therein) available to any person, upon such reasonable terms and conditions as it may prescribe including the payment of such service charge as it determines to be necessary to defray the cost of compiling and maintaining the list and making it available as provided in this sentence. No person shall mail or cause to be mailed any sexually oriented advertisement to any individual whose name and address has been on the list for more than 30 days.

Id. § 3010(b).^[2] In addition, subsection (a) requires any person who mails sexually oriented advertisements to "place on the envelope or cover thereof his name and address as the sender thereof and such mark or notice as the Postal Service may prescribe." Postal Service regulations require, in part, that mailers of such materials place the legend "Sexually Oriented Ad" clearly on the front of the exterior envelope bearing such materials above the addressee's name; or, "if the contents of the mail piece are enclosed in a sealed envelope or cover, inside the exterior envelope or cover, [the mailer may place] conspicuously the words -˜Sexually Oriented Ad'" on that inside cover. U.S. Postal Service, Domestic Mail Manual § 123.55(a) (incorporated by reference in 39 C.F.R.. § 111.1 (1983)). [ 163]

Section 3011 provides the civil enforcement mechanism for violations of § 3010 and regulations duly promulgated thereunder by the Postal Service. Under this provision, the Postal Service may request the Attorney General to file a civil action on its behalf, seeking injunctive relief, ^[3] against any person whom the Postal Service believes "is mailing or causing to be mailed any sexually oriented advertisement in violation of [§ 3010]."

Criminal penalties for violations of 39 U.S.C. § 3010 are found at 18 U.S.C. §§ 1735 and 1737. Section 1735 provides a fine of "not more than $5, 000 or imprison[ment of] not more than five years, or both, for the first offense and.. . not more than $10, 000 or imprison[ment of] not more than ten years, or both, for any second or subsequent" violation of 39 U.S.C. § 3010. Section 1737 provides the same penalties for "print[ing], reproduc[ing], or manufacturing] any sexually related mail matter, intending or knowing that such matter will be deposited for mailing ... in violation of [39 U.S.C. § 3010]."^[4]

II. The Constitutionality of the Proposed Amendments

A. The Requirement of Prior Written Consent

As noted above, the draft bill seeks to prohibit the mailing of any photographic sexually oriented advertisement without the recipient's prior written consent^[5] The draft bill defines "photographic sexually oriented advertisement" as

any sexually oriented advertisement, as defined in [39 U.S.C. § 3010(d)] consisting in whole or in part of photographs, unless the photographic material constitutes only a small and insignificant part of the whole advertisement.

The draft bill identifies a subcategory of sexually oriented advertisements which the drafters have determined to be "most offensive and intrusive" photographic materials and, regarding mis subcategory of advertisements the [ 164] bill imposes an affirmative...