Tollett v. United States

• Decision Date: 02 October 1973
• Docket Number: No. 72-1498.,72-1498.
• Parties: Ray Allen TOLLETT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

485 F.2d 1087 (1973)

Ray Allen TOLLETT, Appellant, v. UNITED STATES of America, Appellee.

No. 72-1498.

United States Court of Appeals, Eighth Circuit.

Submitted January 11, 1973.

Decided October 2, 1973.

Thomas B. Pryor, Fort Smith, Ark., for appellant.

James Gutensohn, Asst. U. S. Atty., Fort Smith, Ark., for appellee.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

LAY, Circuit Judge.

Section 1718, Title 18, of the United States Code¹ was found by the federal district court to have been violated by the defendant Ray Allen Tollett. Tollett was convicted and sentenced to two years in prison for mailing eight post-cards containing "scurrilous" and "defamatory" language about a former employee and the latter's wife.² Tollett testified that he believed a former employee of his, L. A. Clower, had committed numerous malicious acts against him, including poisoning his dog and burning down his place of business. Tollett addressed the postcards to "Burns Sheet Metal," the present employer of Clower. The postcards contained vulgar references about Clower's alleged homosexual conduct and referred to Clower's wife and her alleged activities as a prostitute. Tollett testified that he rationalized Clower would be asked about the postcards and once confronted would be forced to confess his involvement in the malicious acts.

On appeal Tollett attacks the constitutionality of the statute on grounds that it violates the First and Fifth Amendments to the United States Constitution.³ Upon analysis, we conclude that the statute is overly broad and violative of the First Amendment guaranteeing freedom of expression.

It is now settled that a person has standing to attack a statute as overly broad if a reasonable construction of the act allows suppression of free speech notwithstanding that the person's own conduct might not be constitutionally protected. This rule is recognized because of the "danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application." Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965), quoting NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Without proper restriction such a law "would tend to suppress constitutionally protected rights." Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 873 (1970). To allow standing under such circumstances "is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression." Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). Since this is a departure from traditional rules of standing the doctrine requires that the overbreadth of a statute "must not only be real, but substantial, as well." Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). However, as our discussion reveals, we find § 1718 substantially overbroad.

In the instant case the trial court ruled that § 1718 was constitutional. In doing so the district judge observed that the balance of the regulatory power of Congress to regulate the mails was paramount as against the expression of scurrilous and defamatory writings which enjoy no protection under the First Amendment. The trial court, citing Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), found that the defendant's writing contained "no ideas expressed on either of the postal cards with the slightest redeeming social importance or of any interest to the public or other important interest" which enjoys constitutional protection.⁴ To avoid confusion, it should be made clear that the defendant was not indicted nor prosecuted for sending lewd or obscene postcards. A separate statute, 18 U.S.C. § 1463, similar to § 1718, punishes the sending of lewd and obscene writings.⁵

Prosecutions under § 1718 have been relatively few since its original passage and few convictions have been obtained. Some of the decisions present bizarre facts⁶ and in some instances it appears courts have construed the act narrowly to avoid possible conviction. Cf. American Civil Liberties Union v. Kiely. 40 F.2d 451 (2d Cir. 1930); United States v. Higgins, 194 F. 539 (W.D.Ky.1912); United States v. Gee, 45 F. 194 (W.D. Mich.1890). Nevertheless the Act has been given tacit constitutional approval. See McCrossen v. United States, 339 F. 2d 810 (10th Cir. 1965); Cherry v. Postmaster General, 272 F.Supp. 982 (D.P.R. 1967), aff'd without opinion (1st Cir.), cert. denied, 391 U.S. 914, 88 S.Ct. 1809, 20 L.Ed.2d 653 (1968).

The government urges constitutionality of the Act based on a series of cases commencing with Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877 (1877) and including Public Clearing House v. Coyne, 194 U.S. 497, 24 S.Ct. 789, 48 L.Ed. 1092 (1904); McCrossen v. United States, 339 F.2d 810 (10th Cir. 1965); American Civil Liberties Union v. Kiely, 40 F.2d 451 (2d Cir. 1930); Warren v. United States, 183 F. 718 (8th Cir. 1910); Cherry v. Postmaster General, 272 F.Supp. 982 (D.P.R.1967), aff'd without opinion (1st Cir.), cert. denied, 391 U.S. 914, 88 S.Ct. 1809, 20 L.Ed.2d 653 (1968). The defendant challenges the rationale behind these decisions since they basically rely on the so-called "privilege doctrine." This reasoning is illustrated by the Supreme Court's early observance:

"The power possessed by Congress embraces the regulation of the entire postal system of the country. The right to designate what shall be carried necessarily involves the right to determine what shall be excluded." Ex parte Jackson, 96 U.S. 727, 732 (1877).

Based on this interpretation the Tenth Circuit observed as recently as 1965 that "the prohibitions contained in that statute § 1718 must be construed in the light of the regulatory power of Congress rather than in the light of any First Amendment limitation." McCrossen v. United States, 339 F.2d 810, 813 (10th Cir. 1965).

The Fifth Circuit recently found in Hiett v. United States, 415 F.2d 664 (5th Cir. 1969), that 18 U.S.C. § 1714 — prohibiting the use of the mails to distribute information concerning the obtaining of foreign divorces — violated the First Amendment. In doing so, the court of appeals rejected the implication of McCrossen's "troublesome, atavistic language" and stated that the privilege doctrine was dead. We agree.

The supporting authority for the government's regulation of the mails on a "privilege" basis is no longer viable. As the Supreme Court said over 25 years ago in Hannegan v. Esquire, Inc., 327 U.S. 146, 155-156, 66 S.Ct. 456, 461, 90 L.Ed. 586 (1946):

"We may assume that Congress has a broad power of classification and need not open second-class mail to publications of all types. The categories of publications entitled to that classification have indeed varied through the years. And the Court held in Ex parte Jackson, 96 U.S. 727 24 L.Ed. 877, that Congress could constitutionally make it a crime to send fraudulent or obscene material through the mails. But grave constitutional questions are immediately raised once it is said that the use of the mails is a privilege which may be extended or withheld on any grounds whatsoever. See the dissents of Mr. Justice Brandeis and Mr. Justice Holmes in Milwaukee Publishing Co. v. Burleson, 255 U.S. 407, 421-423, 430-432, 437-438 41 S.Ct. 352, 357, 358, 360, 361, 363, 65 L.Ed. 704." (Our emphasis).⁷

In Lamont v. Postmaster General, 381 U.S. 301, 305, 85 S.Ct. 1493, 1495, 14 L.Ed.2d 398 (1965), in striking down § 305(a) of the Postal Service and Federal Employees Salary Act of 1962, 39 U.S.C. § 4008(a), dealing with the Postmaster's right to withhold certain mail, the Supreme Court concluded.

"The Act as construed and applied is unconstitutional because it requires an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressee\'s First Amendment rights. As stated by Mr. Justice Holmes in Milwaukee Pub. Co. v. Burleson, 255 U.S. 407, 437 41 S.Ct. 352, 363, 65 L.Ed. 704 (dissenting): `The United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues. . . .\'"

See also Blount v. Rizzi, 400 U.S. 410, 416, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971).

Adhering to the more recent pronouncements we think it better to reason that the prohibitions of § 1718 must be construed in the light of the First Amendment rather than in the light of any regulatory power granted to the Postal Service.

This brings us directly to the discussion of the constitutionality of 18 U.S.C. § 1718.

The government urges it is only the mere act of writing on an exposed postcard that renders the card unmailable under § 1718. The argument follows that this does not amount to an abridgement of a First Amendment right since the statute restrains only the "time, manner and place" of speech. Cf. Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). See also Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966); Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) (Cox I); Cox v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965) (Cox II); Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949); Cox v. New Hampshire, 312 U.S. 569, 575, 61 S.Ct. 762, 85 L.Ed. 1049 (1941).

We find that the constitutionality of § 1718 cannot be sustained under such a facile test. In Konigsberg v. State Bar, 366 U.S. 36, 50-51, 81 S.Ct. 997, 6 L. Ed.2d 105 (1961), Mr. Justice Harlan observed for a "time, place and manner" test to be applicable the statute (1) must not be intended to control the content of the speech and (2) the statute must be necessary to further a significant government interest.

The statute...