United States Milwaukee Social Democratic Pub Co v. Burleson, No. 155

• Court: United States Supreme Court
• Writing for the Court: CLARKE
• Citation: 65 L.Ed. 704,41 S.Ct. 352,255 U.S. 407
• Parties: UNITED STATES ex rel. MILWAUKEE SOCIAL DEMOCRATIC PUB. CO. v. BURLESON, Postmaster General
• Docket Number: No. 155
• Decision Date: 07 March 1921

255 U.S. 407 41 S.Ct. 352 65 L.Ed. 704 UNITED STATES ex rel. MILWAUKEE SOCIAL DEMOCRATIC PUB. CO.

v.

BURLESON, Postmaster General.

No. 155. Argued Jan. 18 and 19, 1921. Decided March 7, 1921.

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Messrs. Henry F. Cochems, of Milwaukee, Wis., and Charles Poe, of Washington, D. C., for plaintiff in error.

Mr. William H. Lamar, of Washington, D. C., and Mr. Solicitor General Frierson, of Chattanooga, Tenn., for defendant in error.

Mr. Justice CLARKE delivered the opinion of the Court.

After a hearing on September 22, 1917, by the Third Assistant Postmaster General, of the time and character of which the relator (plaintiff in error) had due notice and at which it was represented by its president, an order was entered, revoking the second-class mail privilege granted to it in 1911 as publisher of the Milwaukee Leader. So far as appears, all that the relator desired to say or offer was heard and received. This hearing was had and

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the order was entered upon the charge that articles were appearing in relator's paper so violating the provisions of the National Defense Law, approved June 15, 1917, which has come to be popularly known as the Espionage Act of Congress (40 Stat. 217), as to render it 'nonmailable' by the express terms of title 12 of that act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10401a-10401d). On appeal to the Postmaster General the order was approved. Thereupon the relator filed a petition in the Supreme Court of the District of Columbia, praying that a writ of mandamus issue, commanding the Postmaster General to annul his order and restore the paper to the second-class privilege. To a rule to show cause the Postmaster General answered, and a demurrer to his answer being overruled, and the relator not pleading further, the court discharged the rule and dismissed the petition. The Court of Appeals of the District of Columbia affirmed the judgment of the trial court, and, the constitutional validity of laws of the United States being involved, the case was brought here by writ of error.

The grounds upon which the relator relies are, in substance, that to the extent that the Espionage Act confers power upon the Postmaster General to make the order entered against it, that act is unconstitutional, because it does not afford relator a trial in a court of competent jurisdiction; that the order deprives relator of the right of free speech, is destructive of the rights of a free press, and deprives it of its property without due process of law.

That a hearing, such as was accorded the relator, on precisely such a question as is here involved, when fairly conducted, satisfies all of the requirements of due process of law, has been repeatedly decided. Smith v. Hitchcock, 226 U. S. 53, 60, 33 Sup. Ct. 6, 57 L. Ed. 119; Bates & Guild Co. v. Payne, 194 U. S. 106, 24 Sup. Ct. 595, 48 L. Ed. 894; Public Clearing House v. Coyne, 194 U. S. 497, 24 Sup. Ct. 789, 48 L. Ed. 1092; Lewis Publishing Co. v. Morgan, 229 U. S. 288, 33 Sup. Ct. 867, 57 L. Ed. 1190.

Since the petition in this case was filed, it has also become settled that the Espionage Act is a valid, constitutional

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law. Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. 247, 63 L. Ed. 470; Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. 249, 63 L. Ed. 561; Debs v. United States, 249 U. S. 211, 39 Sup. Ct. 252, 63 L. Ed. 566; Abrams v. United States, 250 U. S. 616, 619, 40 Sup. Ct. 17, 63 L. Ed. 1173.

The first comprehensive law providing for the classification of mails was enacted on March 3, 1879 (20 Stat. 355). From that time to this, mail classification, frequently approved by this court, has dealt only with 'mailable matter.' In section 7 of that act (Comp. St. § 7302), still in effect, 'mailable matter' is divided into four classes, and by section 10 (Comp. St. § 7304) the second class of such 'mailable matter' is defined as including newspapers and periodicals. By section 1 of title 12 of the act of June 15, 1917, supra (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10401a), any newspaper violating any provision of the act is declared to be 'nonmailable matter,' which shall 'not be conveyed in the mails or delivered from any post office or by any letter carrier.'

The extremely low rate charged for second-class mail—to carry it was said, in argument, to cost seven times the revenue which it yields—is justified as a part of 'the historic policy of encouraging by low postal rates the dissemination of current intelligence.' It is a frank extension of special favors to publishers because of the special contribution to the public welfare which Congress believes is derived from the newspaper and other periodical press. 229 U. S. 301, 304, 33 Sup. Ct. 867, 57 L. Ed. 1190.

By now more than 40 years of departmental practice, admission to the privilege of this second-class mail has been obtained for a publication only by a permit, issued by the Postmaster General after a hearing and upon a showing made, satisfactory to him, or his authorized assistants, that it contains and will continue to contain only mailable matter and that it will meet the various statutory and other requirements. Houghton v. Payne, 194 U. S. 88, 94, 24 Sup. Ct. 590, 48 L. Ed. 888.

That the power to suspend or revoke such second-class privilege was a necessary incident to the power to grant it has long been recognized by statute and by many decisions

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of this court. 31 Stat. 1107; Smith v. Hitchcock, 226 U. S. 53, 57, 33 Sup. Ct. 6, 57 L. Ed. 119; Houghton v. Payne, 194 U.S. 88, 24 Sup. Ct. 590, 48 L. Ed. 888; Bates & Guild Co. v. Payne, 194 U. S. 106, 24 Sup. Ct. 595, 48 L. Ed. 894. Under these statutes and decisions, if the newspaper of the relator had come to be so edited that it contained other than 'mailable matter,' plainly it was the intention of Congress that it should no longer be carried as second-class mail and therefore the order to revoke the permit which had been granted to relator was proper and justified; and that it had become so changed in character is the holding of the Postmaster General and of the two lower courts which we are reviewing.

For the purpose of preventing disloyalty and disunion among our people of many origins, and to the end that a united front should be presented to the enemy, the Espionage Act, one of the first of the national defense laws enacted by Congress after the entry of the United States into the World War (approved June 15, 1917, 40 Stat. 217), provided severe punishment for any person who 'when the United States is at war' shall 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 country, or with the intent to promote the success of its enemies, or who shall cause, or attempt to cause, insubordination, disloyalty, mutiny or refusal of duty in such forces, or who shall willfully obstruct the recruiting and enlistment service of the United States (section 3, tit. 1 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c]). One entire title of this act (title 12) is devoted to 'Use of the Mails,' and in the exercise of its practically plenary power over the mails (Ex parte Jackson, 96 U. S. 727, 24 L. Ed. 877; Public Clearing House v. Coyne, 194 U. S. 497, 506, 507, 24 Sup. Ct. 789, 48 L. Ed. 1092; Lewis Publishing Co. v. Morgan, 229 U. S. 288, 313, 33 Sup. Ct. 867, 57 L. Ed. 1190) Congress therein provided that any newspaper published in violation of any of the provisions of the act should be 'nonmailable' and should not be 'conveyed in the mails or delivered from any post office or by any letter carrier.'

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It was under the provisions of this wartime act and under the specific injunction of section 396 of the Revised Statutes of the United States (Comp. St. § 582), declaring it to be the duty of the Postmaster General to 'superintend generally all the business of the [Post Office] Department and to execute all laws relating to the postal service,' that the order in this case was entered.

The Postmaster General avers that, upon the hearing which we have described, he found, that beginning within a week after the declaration of war against the German Government and continuing to the date of the revocation of the second-class privilege herein, the relator had published in its newspaper frequently, often daily, articles which contained false reports and false statements, published with intent to interfere with the success of the military operations of our government, to promote the success of its enemies, and to obstruct its recruiting and enlistment service. For this cause, exercising the power which we have seen had been invested in the Postmaster General by statute for almost 40 years, and which had frequently been exercised by his predecessors, the respondent revoked the scond-class privilege which had been granted to the relator. A similar executive authority with respect to matters within their jurisdiction has been given to the heads of all the great departments of our government and is constantly exercised by them.

This is neither a dangerous nor an arbitrary power, as was argued at the bar, for it is not only subject to review by the courts (the claim of the relator was heard and rejected by two courts before this re-examination of it in this court), but it is also subject to control by Congress and by the President of the United States. Under that Constitution, which we shall find it vehemently denouncing, the rights of the relator were, and are, amply protected by the opportunity thus given it to resort for relief to all three departments of the government, if those rights

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should be invaded by any ruling of the Postmaster General.

All this being settled law, there remains the question whether substantial evidence to support his order may be found in the facts stated in the Postmaster General's answer, which are admitted by the...