Esquire v. Walker
Decision Date | 04 June 1945 |
Docket Number | No. 8899.,8899. |
Citation | 151 F.2d 49 |
Parties | ESQUIRE, Inc., v. WALKER, Postmaster General. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Bruce Bromley, of New York City, pro hac vice, by special leave of Court, with whom Mr. Hugh Lynch, Jr., of Washington, D. C., was on the brief, for appellant. Messrs. Morris L. Ernst, George S. Collins, Alexander Lindey, and John F. Harding, all of New York City, also were on the brief for appellant.
Mr. Marvin C. Taylor, Department of Justice, of Boston, Mass., pro hac vice, by special leave of Court, with whom Assistant Attorney General Francis M. Shea and Messrs. Arnold Levy and David Lloyd Kreeger, Special Assistants to the Attorney General, and Edward M. Curran, United States Attorney, of Washington, D. C., were on the brief, for appellee. Messrs. Charles B. Murray and Daniel B. Maher, Assistant United States Attorneys, both of Washington, D. C., also entered appearances for appellee.
Mr. Robert E. Coulson, of New York City, on behalf of Reader's Digest Association, Inc., Mr. Albert E. Brault, of Washington, D. C., on behalf of Authors' League of America, Inc., Mr. Charles A. Horsky, of Washington, D. C., on behalf of the American Civil Liberties Union, Mr. Arthur H. Clephane, of Philadelphia, Pa., on behalf of Curtis Publishing Company, and Mr. Elisha Hanson, of Washington, D. C., on behalf of American Newspaper Publishers Association, each filed briefs as amicus curiae, urging reversal.
Before MILLER, EDGERTON, and ARNOLD, Associate Justices.
Writ of Certiorari Granted October 22, 1945. See 66 S.Ct. 100.
Esquire is a well known magazine of general circulation. It contains stories, articles, literary and dramatic reviews. Its contributors include distinguished authors, clergymen, and professors in our best educational institutions.
The Postmaster General revoked the second-class mailing privileges of this magazine, not on the ground of obscenity but because he thought its dominant purpose was to publish writings and pictures described in his order as being "in that obscure and treacherous borderland zone where the average person hesitates to find them technically obscene, but still may see ample proof that they are morally improper and not for the public welfare and the public good."1 The revocation order would cost Esquire about $500,000 a year and put it in such a disadvantageous competitive position that it probably could not continue as a current magazine of general circulation.
The theory of the ruling depriving Esquire of second-class mailing privileges, while at the same time permitting it to be mailed at higher rates, is stated by the Postmaster General as follows:
No doubt such a duty exists. But it does not follow that an administrative official may be delegated the power first to determine what is good for the public to read and then to force compliance with his ideas by putting editors who do not follow them at a competitive disadvantage. It is inconceivable that Congress intended to delegate such power to an administrative official or that the exercise of such power, if delegated, could be held constitutional.2 Congress established the second-class mailing privileges because it believed that periodicals which disseminated public information, literature, art or science deserved to be encouraged on account of their contribution as a class to the public good. But the American way of obtaining that kind of contribution is by giving competitive opportunity to men of different tastes and different ideas, not by compelling conformity to the taste or ideas of any government official. This basic idea has nowhere been more eloquently expressed than in the famous quotation from Mr. Justice Holmes, dissenting in Abrams v. United States:3
What the Government appears to assert is that the power to charge Esquire an additional $500,000 a year for use of the mails, unless it conforms to the Postmaster General's notions of the public good, is not a power to censor because the magazine may be mailed at the higher rate. The key to an understanding of this extraordinary contention is found in the Postmaster General's reference to second-class mailing rates as "unique privileges." He appears to think of his duty under the statute, not as administration of nondiscriminatory rates for a public service, but as analogous to the award of the Navy E for industrial contributions to the war. The Navy E is an award for exceptional merit. The second-class mailing rate is conceived by the Post Office to be an award for resisting the temptation to publish material which offends persons of refinement.
But mail service is not a special privilege.4 It is a highway over which all business must travel.5 The rates charged on this highway must not discriminate between competing businesses of the same kind. If the Interstate Commerce Commission were delegated the power to give lower rates to such manufacturers as in its judgment were contributing to the public good the exercise of that power would be clearly unconstitutional. Such a situation would involve freedom of competitive enterprise. The case before us involves freedom of speech as well.
Little more need be said to decide this case. Nevertheless, since we hope that this is the last time that a government agency will attempt to compel the acceptance of its literary or moral standards relating to material admittedly not obscene, the voluminous record may serve as a useful reminder of the kind of mental confusion which always accompanies such censorship.
The first source of that confusion is, of course, the age old question when a scantily clad lady is art, and when she is highly improper. Some refined persons are hopeful that an answer to this vexing riddle may some day be found. Others are pessimistic. But whichever school eventually proves correct it is clear from the following cross-examination of one of the expert witnesses for the Post Office that the problem had not yet been solved when the record in this case went to press:
A second source of confusion in determining what kind of literature furthers public welfare is the dividing line between refined humor and low comedy. To illustrate the difficulty inherent in this problem we cite the following colloquy between counsel for the Post Office and counsel for Esquire. It...
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