United States v. Book Bin

• Decision Date: 02 March 1970
• Docket Number: Civ. A. No. 12812.
• Parties: UNITED STATES of America and the Postmaster General v. The BOOK BIN.
• Court: U.S. District Court — Northern District of Georgia

306 F. Supp. 1023

UNITED STATES of America and the Postmaster General v. The BOOK BIN.

Civ. A. No. 12812.

United States District Court N. D. Georgia, Atlanta Division.

September 8, 1969.

Probable Jurisdiction Noted March 2, 1970.

John W. Stokes, U. S. Atty., Charles B. Lewis, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiffs.

Hugh W. Gibert, Haas, Holland, Freeman, Levison & Gibert, Atlanta, Ga., Robert Eugene Smith, Towson, Md., for defendant.

Before MORGAN, Circuit Judge, and EDENFIELD and HOOPER, District Judges.

Probable Jurisdiction Noted March 2, 1970. See 90 S.Ct. 991.

EDENFIELD, District Judge:

The issue before this three-judge court is the constitutionality of 39 U.S.C. §§ 4006, 4007, under which the Postmaster General acts to curb the flow of allegedly obscene materials through the mails.

On or about June 10, 1969, a complaint was served on the defendant by a representative of the Postmaster General under 39 U.S.C. § 4006, charging that the magazine "Models of France", distributed by defendant, was obscene. An order granting an expedited proceeding was attached, setting a hearing for July 8, 1969, which has since been postponed indefinitely. On June 13, 1969, the United States notified defendant that a temporary restraining order and preliminary injunction would be sought under 39 U.S.C. § 4007, in the United States District Court for the Northern District of Georgia. Under § 4007, a court, upon a showing of probable cause that the obscenity statute has been violated, may direct the detention of all of a defendant's incoming mail, pending the conclusion of the § 4006 proceedings and any appeal therefrom. By way of answer and counterclaim, defendant has challenged the statutory scheme employed under §§ 4006, 4007. A three-judge court was convened to consider this constitutional challenge. At oral hearing, the Government recognized the desirability of an immediate determination of the constitutional questions.

Under § 4006:

"Upon evidence satisfactory to the Postmaster General that a person is obtaining or attempting to obtain remittances of money or property of any kind through the mail for an obscene, lewd, lascivious, indecent, filthy, or vile article, matter, thing, device, or substance, or is depositing or causing to be deposited in the United States mail information as to where, how, or from whom the same may be obtained, the Postmaster General may—

(1) direct postmasters at the office at which registered letters or other letters or mail arrive, addressed to such a person or to his representatives, to return the registered letters or other letters or mail to the sender marked `Unlawful'; and

(2) forbid the payment by a postmaster to such a person or his representative of any money order or postal note drawn to the order of either and provide for the return to the remitters of the sums named in the money orders or postal notes."

Thus, upon an administrative finding by the Postmaster General that the defendant is sending obscene material through the mail, all of his incoming mail may be marked unlawful and returned to the senders, and the Postmaster General may forbid payment of any money orders or postal notes drawn to his name and likewise return them to the senders.

However, prior to 1956, the Postmaster had no authority to prevent the delivery of mail to the suspected offender during the pendency of the statutory § 4006 proceedings. "As a result, the person against whom such a mail block was finally imposed had frequently already reaped the harvest from his illegal activity and, mail addressed to one location having been blocked, simply launched a similar activity at a new address." Senate Report No. 1818, U.S. Code Cong. and Admin.News, 86th Cong., 2d S., 1960, at p. 3246.

To remedy this situation, the Postmaster General in 1956 received congressional authority to enter an order permitting the temporary, 20-day, impounding of a defendant's incoming mail pending culmination of statutory proceedings and appeal, if necessary to the enforcement of § 4006. The United States District Court could extend the period of detention upon the petition of the Postmaster General. Because of the hardship imposed by the 20-day limitation, the Post Office Department requested— and a House of Representatives bill granted—a 45-day period of detention of a defendant's incoming mail, after which an extension could be obtained by a United States District Court order. However, in 1960, the Congress adopted a Senate measure which removed the arbitrary time limit on detention pending § 4006 action, by substituting a judicial injunction permitting detention throughout the course of the statutory proceedings under § 4006. The 1960 bill, now § 4007, was designed to insure "court supervision of the exercise of the power to detain mail" coming to the defendant. See, U.S.Code Cong. and Admin.News, 86th Cong., 2d S., 1960, at p. 3246; Manual Enterprises, Inc. v. Day, 370 U.S. 478, 512-519, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962) (Brennan, J., concurring). Section 4007 provides, in pertinent part:

"(a) In preparation for or during the pendency of proceedings under sections 4005 and 4006 of this title, the United States district court in the district in which the defendant receives his mail shall, upon application therefor by the Postmaster General and upon a showing of probable cause to believe the statute is being violated, enter a temporary restraining order and preliminary injunction pursuant to rule 65 of the Federal Rules of Civil Procedure directing the detention of the defendant's incoming mail by the postmaster pending the conclusion of the statutory proceedings and any appeal therefrom. The district court may provide in the order that the detained mail be open to examination by the defendant and such mail be delivered as is clearly not connected with the alleged unlawful activity. An action taken by a court hereunder does not affect or determine any fact at issue in the statutory proceedings."

Section 4007 thus complements § 4006, see, 39 C.F.R. § 952.6, and the two sections should be interpreted together. For reasons set out below, we find this statutory scheme violative of the First Amendment to the United States Constitution.

First, under § 4007, the United States can obtain a court order detaining all of the incoming mail to the defendant. The breadth of this section goes far beyond merely maintaining the status quo. While the defendant may secure delivery of mail which is clearly "not connected with the alleged unlawful activity", the statute imposes an affirmative obligation upon him to examine the mail and demonstrate its non-connection. This obligation to come from under an overly broad statutory imposition puts an unconstitutional restraint on the defendant's First Amendment rights. Thus, in Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965), the Court considered a procedure under which the Postmaster General could withhold communist political propaganda sent to an addressee—as well as similar material sent in the future, if the addressee did not return a card to the post office within 20 days of its receipt. In order to receive the mail, the addressee had to request in writing on the card that it be delivered. This procedure was struck down because, as in the instant action, "the addressee carries an affirmative obligation which we do not think the Government may impose on him. This requirement is almost certain to have a deterrent effect * * *." Lamont v. Postmaster General, supra, at 307, 85 S.Ct. at 1496. Justice Brennan, in a concurrence, recognized that the consequence of inaction by the addressee was not only nondelivery of the material in question, but "a denial of access to like publications which he may desire to receive." 381 U.S. at 309, 85 S.Ct. at 1498. Like the procedures considered in Lamont, § 4007 suffers both from a fatal overbreadth of reach, in detaining all incoming mail, and from imposition of an unwarranted affirmative obligation on the defendant to remove mail unrelated to the alleged obscenity in question. It disrupts, rather than maintains, the status quo, pending post office action in § 4006.

Second, the procedures established in §§ 4006, 4007, do not pass constitutional muster under the tests established by the Supreme Court of the United States. Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) (per Brennan, J.), establishes the litmus tests by which we should be guided in cases such as this. There the Supreme Court recognized, as it had before, Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961), that prior submission of material to agency censorship action was not per se unconstitutional under proper safeguards. To avoid First Amendment problems, the Court required that the procedures impose the burden of proof on the censor to show obscenity, permit restraint prior to judicial review only to preserve the status quo, limit the restraint to the shortest period compatible with sound judicial administration, and assure prompt and complete judicial review. The procedures established under §§ 4006, 4007, fall short of meeting these rigid requirements.

Under these sections, no restraint is generally imposed under § 4006 until a § 4007 judicial order is obtained. However, under § 4007, the court must issue a restraining order merely upon a showing of "probable cause." This judicial determination of probable cause is not binding in any way on the administrative decision in § 4006. Section 4007 specifically provides, "An action taken by a court hereunder does not affect or determine any fact at issue in the statutory proceedings." Indeed, this quoted passage was inserted at the behest of the Postmaster General to "guarantee that counsel for a mailer will not be able to raise successfully a bar to all further administrative proceedings in a case in which the Government failed to...