Lewis Publishing Company v. Edward Morgan Journal of Commerce Commercial Bulletin v. Albert Burleson, 819

• Court: United States Supreme Court
• Writing for the Court: White
• Citation: 57 L.Ed. 1190,33 S.Ct. 867,229 U.S. 288
• Parties: LEWIS PUBLISHING COMPANY, Appt., v. EDWARD M. MORGAN, as Postmaster of the United States of America in and for New York City, Borough of Manhattan. JOURNAL OF COMMERCE & COMMERCIAL BULLETIN, Appt., v. ALBERT S. BURLESON, 1 as Postmaster General of the United States; James C. McReynolds, as Attorney General of the United States, et al
• Docket Number: Nos. 819 and 818,No. 819,No. 818,819,818,s. 819 and 818
• Decision Date: 10 June 1913

229 U.S. 288

33 S.Ct. 867

57 L.Ed. 1190

LEWIS PUBLISHING COMPANY, Appt.,

v EDWARD M. MORGAN, as Postmaster of the United States of America in and for New York City, Borough of Manhattan.

No. 819.

JOURNAL OF COMMERCE & COMMERCIAL BULLETIN, Appt.,

v ALBERT S. BURLESON,¹ as Postmaster General of the

United States; James C. McReynolds, as Attorney General

of the United States, et al.

No. 818.

Nos. 819 and 818.

Argued December 2 and 3, 1912.

Decided June 10, 1913.

Mr. James M. Beck for appellant in No. 819.

[Argument of Counsel from pages 289-293 intentionally omitted] Messrs. Robert C. Morris, and Guthrie B. Plante for appellant in No. 818.

Solicitor General Bullitt for appellees.

[Argument of Counsel from pages 293-296 intentionally omitted] Mr. Chief Justice White delivered the opinion of the court:

The postoffice appropriation act of August 24, 1912 (37 Stat. at L. 553, 554, chap. 389), in § 2, contains the following:

'Sec. 2. . . . That it shall be the duty of the editor, publisher, business manager, or owner of every newspaper, magazine, periodical, or other publication, to file with the Postmaster General and the postmaster at the office at which said publication is entered, not later than the first day of April and the first day of October of each year, on blanks furnished by the Postoffice Department, a sworn statement setting forth the names and postoffice addresses of the editor and managing editor, publisher, business managers, and owners, and, in addition, the stockholders, if the publication be owned by a corporation; and also the names of known bondholders, mortgagees, or other security holders; and also, in the case of daily newspapers, there shall be included in such statement the average of the number of copies of each issue of such publication sold or distributed to paid subscribers during the preceding six months: Provided, That the provisions of this paragraph shall not apply to religious, fraternal, temperance, and scientific, or other similar publications: Provided, further, That it shall not be necessary to include in such statement the names of persons owning less than one per centum of the total amount of stock, bonds, mortgages, or other securities. A copy of such sworn statement shall be published in the second issue of such newspaper, magazine, or other publication printed next after the filing of such statement. Any such publication shall be denied the privileges of the mail if it shall fail to comply with the provisions of this paragraph within ten days after notice by registered letter of such failure.

'That all editorial or other reading matter published in any such newspaper, magazine, or periodical for the publication of which money or other valuable consideration is paid, accepted, or promised shall be plainly marked 'advertisement.' Any editor or publisher printing editorial or other reading matter for which compensation is paid, accepted, or promised, without so marking the same, shall, upon conviction in any court having jurisdiction, be fined not less than fifty dollars ($50) nor more than five hundred dollars ($500).'

The two appellants, publishers of newspapers in the city of New York, complaining that this legislation abridged the freedom of the press protected by the 1st, and constituted a denial of the due process of law guaranteed by the 5th, Amendment to the Constitution, filed their bills against designated officials of the United States to prevent the enforcement of the provision in question. The bills were dismissed for want of equity, and this appeal was taken directly to this court, because of the rights asserted under the Constitution. Coming to define the controversy in order to appreciate and restrict the issues, to the end that we may pass on none but the questions which are necessary to be decided, it is to be observed that there are some differences in the mode in which the cases are stated in the pleadings and in the argument. But after all, these divergences give rise to no real distinction between the two cases, and we hence treat them as one. At the outset, in order to state in the most direct way the grievances which the publishers deem they have suffered, we reproduce, retaining the italics, the statement made on that subject in the opening passages of the argument of the counsel for the Lewis Publishing Company:

'The newspaper law, whose constitutionality is in this suit called into question, is neither in form nor substance a law to regulate the carriage of the mails, but to regulate journalism.

'In this respect it has the merit of sincerity. It does not pretend to be in aid of the Postoffice Department. That Department did not seek its enactment, but protested against it.

'The law in question makes no reference to the mails, except that it uses exclusion therefrom as a means of enforcing this censorship of the press.

'Even this remote connection is wanting in the latter section of the law, which requires paid reading matter to be formally branded as an advertisement. Its enforcement is left to a criminal action for a penalty.

'The law has two plainly avowed objects.

'The first is to compel a disclosure to the government, under oath, of the names and addresses of the editors, publishers, business managers, and owners, stockholders, security creditors, and the daily circulation of such newspapers for the preceding six months.

'This will be hereafter referred to as the inquisitorial provision.

'The second object is to compel a disclosure to the public, through newspaper publication, of these facts, and also whether any editorial or reading matter in such publication has been inserted for a valuable consideration.

'This will be hereafter referred to as the publicity provision.

'The publicity provision cannot be referred to any proper function of the Postoffice Department. Its function is to carry the mails, and in such carriage it cannot matter whether the public are advised as to the ownership, editorial direction, and circulation of a newspaper or not, or whether the matter which it publishes is published for a consideration.'

And thus interpreting the assailed provision not as a mere exertion of legislative power to additionally prescribe the conditions by which publishers might continue to enjoy the right to participate in the large pecuniary advantages and other privileges created in their favor through the classification of mail matter, but, on the contrary, treating the provision as a substantive exercise of a legislative authority not possessed, and which unduly restricted the freedom of the press, thinly disguised as a regulation of the mails, and enforceable by an absolute exclusion from the right to all mail service, the legal propositions advanced are as follows:

'1. The Constitution has not, either under the post-roads clause or elsewhere, delegated to the Federal government the power (1) to compel these disclosures, and (2) to direct their publication, or (3) to compel paid reading matter to be marked as an advertisement.

'2. The Constitution not only failed to give such power, but it expressly forbade it, by the 1st Amendment, prohibiting any law 'abridging the freedom of the press.'

'3. The requirement that a certain class of newspapers shall disclose to the public by publication the most intimate details of their business, and use their own capital. labor facilities, and valuable space for such disclosure, is a taking of 'liberty' and 'property' without due process of law, and a like taking of valuable property rights for an assumed public use without just compensation.'

On the other hand, putting aside what we deem to be minor subdivisions, broadly stated, all the contentions of the government are reducible to the following: (a) That the assailed provision in no sense can be considered as an attempted exertion of power to regulate the freedom of the press, or even as the exercise of the legislative authority to regulate the mails in the larger or general sense of that term, since, when rightly construed, the provision only deals with what is known as second-class mail matter, and imposes conditions necessary to be complied with to enable publishers to participate in the great and exclusive privileges and advantages which arise from the right to use the second-class mail. (b) That the precedent conditions thus imposed are relevant to the purpose which was intended to be accomplished by Congress in creating the second-class mail privilege, and are either directly or incidentally embraced in the power to regulate the mails, and, in doing so, to confer the second-class privilege. (c) That even if these propositions be not well founded, and the provision be given the significance attributed to it by the publishers, nevertheless it is valid as an exertion by Congress of its power to establish postoffices and post roads,—a power which conveys an absolute right of legislative selection as to what shall be carried in the mails, and which therefore is not in any wise subject to judicial control, even although in a given case it may be manifest that a particular exclusion is but arbitrary, because resting on no discernible distinction, nor coming within any discoverable principle of justice or public policy.

From this statement of the opposing contentions it is apparent that the first and fundamental cause of difference arises from the widely conflicting views entertained concerning the meaning of the assailed provision, and that hence it becomes primarily necessary to settle such differences; that is, to determine the true meaning of the provision. Moreover, as the controversy concerning the meaning of the provision involves its relation to the law concerning the carriage of newspapers in the mails, in force at the time of the passage of the provision, and an appreciation of its letter and spirit, it also becomes necessary to consider that law, its origin and development.

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