Jeffersonian Pub. Co. v. West

• Decision Date: 29 August 1917
• Citation: 245 F. 585
• Parties: JEFFERSONIAN PUB. CO. v. WEST, Postmaster.
• Court: U.S. District Court — Southern District of Georgia

245 F. 585

JEFFERSONIAN PUB. CO. v. WEST, Postmaster.

United States District Court, S.D. Georgia.

August 29, 1917

S. G McClendon, of Atlanta, Ga., J. Gordon Jones, of Cordele, Ga Samuel L. Olive, of Augusta, Ga., and B. J. Stevens, of Thomson, Ga., for plaintiff.

W. H Lamar, Sol. for Post Office Department, and Earl B. Barnes Sp. Asst. Atty. Gen., for defendant.

SPEER District Judge.

The bill before the court was brought originally to enjoin the postmaster at Thomson, Ga., from withdrawing the second-class mailing privileges of the Jeffersonian. The action complained of had been taken by the postmaster in obedience to an order of Hon. A. S. Burleson, as Postmaster General.

Appreciating the weighty effect of determination by the Postmaster General of any material and relevant questions of fact arising in the administration of the statutes of Congress relating to his department, a preliminary injunction was withheld. A rule was, however, granted, calling upon the respondent to show cause why the injunction sought should not be granted. At the hearing, it became apparent that the Postmaster General had forbidden the Jeffersonian of the 16th inst. all admittance to the mails; this, upon the ground that it was distinctly unmailable. By suitable amendment, the legality of this conclusion was challenged. The court, being of opinion that the plaintiff was entitled to specific information, not only of those features of the Jeffersonian issued on the 16th inst. held unmailable, but also those in past issues deemed so unmailable as to induce the conclusion by the Attorney General that the publication was not a newspaper, in the meaning of the law conferring the second-class privilege, directed that the respondent should file specifications of all such matter. This has been accordingly done, and thus the question is presented: Do the facts and the determination of the Postmaster General demand or justify a court of the United States in the interference here sought with an administrative branch of government?

In the affidavit of the Postmaster General, after the specification required by the court of the passages in the Jeffersonian held by him to be unmailable, there appears the following statement:

'Deponent further says that in his judgment, in their entirety, the issues (of the Jeffersonian) evince a purpose and intent on the part of the publisher to willfully make or convey false reports or false statements, with intent to interfere with the operation and success of the military or naval forces of the United States, to willfully obstruct the recruiting or enlistment service of the United States to the injury of the service, * * * and that the circulation of such matter is causing antagonism and resistance among the people to the conduct of the war with respect to enlistments, execution of the draft, and the sale of bonds to raise revenue to carry on the war.'

The Postmaster General further states under the sanction of his oath that he is advised and believes that there is an organized propaganda which has inflamed a large body of people to such an extent that it constitutes in effect the advocacy of treason, insurrection, and forcible resistance to the laws of the United States. Upon such information, he states that this has been actually threatened, and that prominent among the publications thus engaged is the Jeffersonian; that the matter it produces to this end, in contemplation of the Espionage Act, is nonmailable. After due and thorough consideration, deponent so decided, but prior to his ruling that the issue of June 28, 1917, was nonmailable, the paper was submitted to the Attorney General of the United States, and deponent was advised by the Attorney General that the paper was in violation of section 3 of title 1 of the Espionage Act. For the same reason, and because it contained matter of the same nonmailable description, the Postmaster General, after examination, caused the postmaster at Thomson to be advised that the issue of August 16th was also unmailable. Thus it will be seen that the court is advised of the concurrent opinion of two members of the cabinet, the chief of the Post Office Department, and the chief of the law department of the government, in justification of the action of which plaintiff complains.

A supreme measure of legislation, enacted by Congress for the successful prosecution of the great war in which the country is engaged, termed the Espionage Act, in title 1, section 3, declares that:

'Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies; and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service * * * of the United States, shall be punished by a fine,' etc.

In connection with this, section 1 of title 12 of the same act must be considered. This declares that:

'Every letter, * * * newspaper, etc., in violation of any of the provisions of this act is hereby declared to be nonmailable, * * * and shall not be

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