TEAGUE v. REGIONAL COMMISSIONER OF CUSTOMS REGION II

• Decision Date: 01 January 1969
• Citation: 394 U.S. 977
• Court: U.S. Supreme Court

394 U.S. 977

Walter D. TEAGUE, III, et al., petitioners, v. REGIONAL COMMISSIONER OR CUSTOMS, REGION II, et al. No. 1061.

Supreme Court of the United States April 21, 1969 Rehearing Denied May 26, 1969. See 395 U.S. 930.

Henry Winestine, Osmond K. Fraenkel, Melvin L. Wulf and Alan H. Levine, for petitioners.

Solicitor General Griswold, for respondents.

Petition for writ of certiorari to the United States Court of Appeals for the Second Circuit.

Denied.

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting from the Court's denial of certiorari.

This case presents a highly important question under the First Amendment, namely whether, as the court below held, American citizens can be required to apply to the Treasury Department's Office of Foreign Assets Control for a license in order to receive magazines, films, or other publications sent to them from mainland China, North Korea, or North Vietnam. The decision of the Court of Appeals may well be inconsistent with Lamont v. Postmaster General, 381 U.S. 301 (1965), in which we recently invalidated a somewhat similar regulation of the Post Office Department. Nevertheless, the Court denies certiorari here. It seems plain that the sole explanation for the Court's action is the fact that the petition for certiorari, having been delayed by an unusually severe snowstorm, arrived here two days after the 90-day period allowed for seeking certiorari, 28 U.S.C. 2101(c), would normally expire. Because I think the important First Amendment issue in this case demands consideration by this Court, and because I cannot accept the Court's interpretation of 2101(c), which penalizes petitioners for a snowstorm, an act of God, I must dissent.

I.

Petitioners are addressees of mail packages containing publications originating in China and North Vietnam. When these packages reached the United States they were detained by the Commissioner of Customs pursuant

Page 394 U.S. 977 , 978

to the Foreign Assets Control Regulations, 31 CFR 500.808. The Commissioner then sent notice to petitioners, advising them that this mail would be released only if licenses were obtained from the Office of Foreign Assets Control. Petitioners did not apply for licenses but instead brought this suit, claiming that the regulations were unconstitutional. Their primary claim was and is that the regulations, by authorizing customs officials to refuse delivery under some circumstances and by requiring in all cases that the addressees submit to the cumbersome and time-consuming licensing process, abridged their First Amendment rights to receive published material.

The decision below, upholding these regulations, seems difficult to reconcile with our recent decision in Lamont, supra. In that case we held unconstitutional a Post Office regulation that required addressees of 'communist political propaganda' to notify the Post Office explicity of their desire to receive such publications in order to obtain delivery. We stated that the fatal flaw of the scheme was that 'it requires an official act (viz. returning of the reply card) as a limitation on the unfettered exercise of the addressee's First Amendment rights'. 381 U S., AT 305. In the present case the burden imposed on addressees is, if anything, far greater than that involved in Lamont. The addressee is not merely required to fill out and return a reply card, after which the magazine will automatically be sent. In the present case something quite different is required. The addressee must fill out a detailed license application and file it in duplicate. [^{Footnote 1}] He has no assurance that his application, once filed, will be granted, and in fact the regulations provide only general guidance as to the factors that will be considered in determining whether to

Page 394 U.S. 977 , 979

grant a license. [^{Footnote 2}] Processing of the application normally requires about 10 days, according to the Government, but this period, which is itself not inconsiderable, may in fact represent only the minimum delay. [^{Footnote 3}]

Only one justification is suggested for the very severe prior restraint on First Amendment rights that results from this licensing scheme. The Court of Appeals said that the regulations are permissible as a means of restricting the flow of American currency to designated foreign countries determined to be hostile to the United States. Petitioners, on the other hand, argue broadly that they have a right under the First Amendment to purchase publications from any source of their choosing even a country with which we might be at war. It may not, however, even be necessary to reach this important question because there is considerable doubt whether

Page 394 U.S. 977 , 980

the regulations relating to publications can be considered necessary for preventing the outflow of American currency. Other regulations promulgated under the President's emergency power to control transactions in foreign exchange, 50 U.S.C. App. 5(b), broadly prohibit the making of any payments directly or indirectly to the designated foreign countries or their nationals by any person or corporation subject to the jurisdiction of the United States, regardless of how such payments are effectuated and regardless of whether the banks or other institutions serving as intermediaries are located in third countries. 31 CFR 500.201. Violation of these regulations is a felony punishable by heavy penalties. 50 U.S.C. App. 5(b)(1). Although the licensing provisions related to publications may make it more difficult to evade this direct prohibition against foreign exchange transactions with the designated countries, such incidental be efits in the enforcement of even a permissible governmental policy ordinarily do not justify infringement on First Amendment rights. Cf. Smith v. California, 361 U.S. 147 (1959). In addition, the regulations explicitly permit the purchase of publications from these countries 'without restrictions as to shipment or method of payment' in the case of universities, libraries, research and scientific institutions acting under programs approved by the Librarian of Congress or the National Science Foundation. 31 CFR 500.204 App. (108). The additional demand for these publications by private parties may be insignificant compared to the volume of transactions the Government has chosen to permit in the case of 'approved' institutions. In fact, the remaining potential dollar outflow, and especially the part of it that would not be checked by the general prohibitions relating to foreign exchange transactions, may be so insubstantial that the only significant effect of the regulations would

Page 394 U.S. 977 , 981

be to choke off the flow of these publications to readers who would not actually pay for them but who may not take the trouble to fill out the required forms or who may not be able to establish, to the satisfaction of the Government's licensing officials, that the publications involved were in fact gifts. Under these circumstances, the regulations involved here surely raise a serious First Amendment question that should be heard and decided by this Court.

II.

The only apparent explanation for the Court's denial of certiorari in this case is the fact that the petition arrived here two days after the 90- day period allowed by 28 U.S.C. 2101(c) for seeking certiorari in a civil case would normally have expired. The circumstances under which this occurred are these. The judgments sought to be reviewed were entered on November 14, 1968, and the 90-day period therefore expired on Wednesday, February 12, 1969. The petition for certiorari, along with the required number of copies, was sent from New York City by first-class mail at about noon on Monday, February 10. A severe snowstorm had hit New York City the night before, causing considerable disruption of many services including, as it turned out, the mails. Counsel for petitioners no doubt anticipated that some delay might possibly result from the storm, but since firstclass mail from New York normally reaches Washington overnight, they could not have anticipated that it would take more than the remaining two and one- half days for their petition to arrive. In fact, however, the petition took four days to reach Washington and was docketed here on Friday, February 14, 1969.

The statute governing the time for seeking certiorari in a civil case, 28 U.S.C. 2101(c), provides that a petition for review of any judgment or decree 'shall be taken or applied for within ninety days after the entry

Page 394 U.S. 977 , 982

of such judgment or decree.' It is suggested by the Solicitor General, on behalf of respondents here, that this statute is 'jurisdictional,' and that we must follow it. I agree, of course, that we should follow the statute. But we must first determine what the statute means. Commentators and this Court alike have often said that the...