Rowan v. United States Post Office Department, 68-1562-R.

• Decision Date: 30 April 1969
• Docket Number: No. 68-1562-R.,68-1562-R.
• Citation: 300 F. Supp. 1036
• Parties: Daniel ROWAN, doing business as American Book Service, et al., Plaintiffs, v. UNITED STATES POST OFFICE DEPARTMENT; United States Postmaster General, W. Marvin Watson; Attorney General of United States, Ramsey Clark, Defendants.
• Court: U.S. District Court — Central District of California

300 F. Supp. 1036

Daniel ROWAN, doing business as American Book Service, et al., Plaintiffs, v. UNITED STATES POST OFFICE DEPARTMENT; United States Postmaster General, W. Marvin Watson; Attorney General of United States, Ramsey Clark, Defendants.

No. 68-1562-R.

United States District Court C. D. California.

April 30, 1969.

Gold, Herscher & Taback, Beverly Hills, Cal., for plaintiffs.

Wm. Matthew Byrne, Jr., U. S. Atty., Los Angeles, Cal., David J. Anderson and Harland F. Leathers, Attys., Civil Division, Dept. of Justice. Edwin L. Weisl, Jr., Asst. Atty. Gen. and Larry L. Dier, Asst. U. S. Atty., for defendants.

MEMORANDUM OF DECISION

HUFSTEDLER, Circuit Judge, CARR and REAL, District Judges.

CARR and REAL, District Judges.

Plaintiffs herein are all either engaged in the mail order business, distributing, mailing and selling items, books and materials through the United States mail, or in the business of buying and selling lists of names to mail order houses or both.

Each of the plaintiffs have received prohibitory orders issued by the Postmaster General pursuant to the provisions of Public Law 90-206, 81 Stat. 613, now codified as Title 39 U.S.C. § 4009.¹

A three-judge court convened pursuant to 28 U.S.C. § 2284 now considers the attacks of plaintiffs upon the alleged constitutional deficiencies of Title 39 U.S.C. § 4009 as applied to their mail order business. Plaintiffs complain that section 4009 is unconstitutional because:

1. It is particularly violative of free speech granted by the First Amendment of the Constitution,

2. It is violative of due process guaranteed by the Fifth Amendment of the Constitution of the United States,

3. It is vague, ambiguous, uncertain and without standards,

4. It provides an unlawful delegation of powers,

and asks that defendants be temporarily restrained and permanently enjoined from enforcing, implementing, acting upon or demanding performance pursuant to section 4009 of the United States Code, or any administrative determinations or order predicated thereon and that section 4009 be declared null and void.

The matter now comes before the Court upon motion for preliminary injunction on behalf of plaintiffs and defendants' motion to dismiss pursuant to Rule 12(b) Federal Rules of Civil Procedure.²

I. THE FIRST AMENDMENT AND PLAINTIFFS' COMPLAINTS

Use of the mails for the dissemination and distribution of protected materials,³ particularly written materials, is well within the protection and guarantee of the First Amendment of the United States Constitution.⁴ But plaintiff does not here present a per se prohibition of a use of the mails. Execution of any prohibitory order requires:

1. The addressee in his sole discretion believes a pandering advertisement to be erotically arousing or sexually provocative, and,

2. Notice to the Postmaster General by the addressee and request by the addressee of issuance of a prohibitory order.

These provisions make it clear that we must balance free speech when it confronts an unwilling recipient's right of privacy — pre-dating constitutional considerations and constitutionally recognized in United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524; Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 and Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510.

In Breard v. City of Alexandria, supra, a municipal ordinance forbidding peddlers and canvassers from going to private residences without an invitation was upheld. The Court in considering the First Amendment claims of magazine vendors says at 637, 71 S.Ct. at 930:

"We recognize the importance to publishers * * * of house-to-house method of selling by solicitation. As a matter of constitutional law, however, they in their business operations are in no different position so far as the Commerce Clause is concerned than the sellers of other wares. Appellant * * *, is no more free to violate local regulations to protect privacy than are other solicitors."

Plaintiffs maintain that in balancing the guarantee of First Amendment to freedom of speech and of the press and the right of privacy that the right of privacy must yield, citing to us the decision in Lamont v. Commissioner of Motor Vehicles, 269 F.Supp. 880 (S.D. N.Y.1967).

We disagree — particularly in the posture of what is proscribed by the statute here in question. Judge Frankel had before him the enjoining of a sale of lists which (1) were public records, (2) may have contained names of willing as well as unwilling recipients, and (3) were prior restraints. Here we are concerned with a statute that proscribes mailings to an unwilling recipient only. To require a commercial enterprise to strike a name from a mailing list seems little burden to impose to guarantee that dimension of privacy to an individual, otherwise helpless in his home, to "turn off' pandering advertisements which may be erotically arousing or sexually provocative to him and his family.

We accept the suggestion of validity of such a statute as pronounced by the Supreme Court in referring to 39 C.F.R. § 44.1(a)⁵ in Lamont v. Postmaster General, 381 U.S. 301, at page 310, 85 S.Ct. 1493, at 1498, 14 L.Ed.2d 398, when it says:

"The Government asserts that Congress enacted the statute in the awareness that Communist political propaganda mailed to addressees in the United States on behalf of foreign governments was often offensive to the recipients and constituted a subsidy to the very governments which bar the dissemination of publications from the United States. But the sensibilities of the unwilling recipient are fully safeguarded by 39 CFR § 44.1(a) (Supp. 1965) under which the Post Office will honor his request to stop delivery; * * *."

Title 39 U.S.C. § 4009 is only an implementation of the right of an individual to choose what it is he desires to see and read within his own personal sensitivity and concept of privacy.

It is summed up in Kovacs v. Cooper, 336 U.S. 77, at 88, 69 S.Ct. 448, at 454, 93 L.Ed. 513 —

"* * * The preferred position of freedom of speech in a society that cherishes liberty for all does not require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in itself. * * *"

II. DUE PROCESS AND PLAINTIFFS' COMPLAINT

The due process argument of plaintiff has been two-fold — (1) procedural defects and (2) confiscatory aspect of prohibitions on mailing lists.

Procedural Defects:

Title 39 U.S.C. § 4009 meets the requirements of procedural due process, i. e., notice and fair hearing. The statute in clear terms provides:

1. A request from an addressee to the Postmaster General,

2. Issuance of an order by the Postmaster General ordering the sender to refrain from further mailings to a named addressee and deletion of the name of the named addressee from mailing lists,

and without penalty of any kind for violation of the order of the Postmaster General. Upon violation of the prohibitory order:

3. The Postmaster General must serve by registered or certified mail a complaint stating the violation,

4. The sender has 15 days within which to respond to the complaint,

5. If requested by the sender — a hearing to determine whether or not a violation has occurred,

the Postmaster General is still not authorized to prohibit the delivery of any mail even though it may be violative of the order. Effective enforcement can only be had:

6. After request to and action by the Attorney General in petitioning to a United States district court for an order of compliance with the notice.

A violation of the order of the district court may be punished as contempt. A recitation of the procedure makes it abundantly clear that section 4009 comports to the constitutional requirements of due process.

Confiscatory Aspects:

Plaintiff complains that section 4009 in permitting the Postmaster General to order deletion of the name of an addressee from a mailing list is unduly oppressive and amounts to a violation of due process. Plaintiffs argue that their lists are not alphabetical and therefore the cost of deletion is approximately $5.00 per name. This estimated cost, without more, appears incredible. But, assuming that plaintiffs have accurately assessed the cost of eliminating a name from a list, such a burden does not amount to a violation of due process guaranteed by the Fifth Amendment of the Constitution. Particularly when in the context presently before this Court it is being applied to commercial enterprises.

We do not read this statute to require that a sender refrain from any future mailings but only from mailings of "such materials," i. e., "any pandering advertisement which offers for sale matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative." Nor do we read the statute to prevent "sale, rental, exchange or other transaction" of a mailing list from which the name of a complaining addressee has been deleted. Plaintiffs' contentions to the contrary are without merit.

III. VAGUENESS, AMBIGUITY, STANDARD AND UNLAWFUL DELEGATION OF POWER

Plaintiff charges generally vagueness, ambiguity, lack of standard and unlawful delegation of power. It should be noted at the outset that no effective or threatened prohibition of free use of the mails is effected until hearing and order of an appropriate United States district court.

The standard could hardly be clearer than provided here. For the statute provides that the sender can be ordered to refrain from mailing "erotically arousing or sexually provocative" materials, as determined by the addressee, requesting issuance of an order of the Postmaster General. It is after the first mailing that all other proposed mailings are to be measured by the objectionable material of such first mailing.

It is only after determination of a United States district court upon trial and order...