United States v. Treatman

• Citation: 408 F. Supp. 944
• Decision Date: 06 February 1976
• Docket Number: No. CV 74-2569-R and CV 75-744-IH.,CV 74-2569-R and CV 75-744-IH.
• Parties: UNITED STATES of America, Plaintiff, v. David M. TREATMAN aka Dave Davis, dba Erik Imports, Defendant. UNITED STATES of America, Plaintiff, v. Richard L. JAMES et al., Defendants.
• Court: U.S. District Court — Central District of California

408 F. Supp. 944

UNITED STATES of America, Plaintiff, v. David M. TREATMAN aka Dave Davis, dba Erik Imports, Defendant.

UNITED STATES of America, Plaintiff, v. Richard L. JAMES et al., Defendants.

Nos. CV 74-2569-R and CV 75-744-IH.

United States District Court, C. D. California.

February 6, 1976.

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William D. Keller, U. S. Atty. by John E. Nordin, II, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff.

Michael S. Luros, Joseph Taback, Gold, Herscher & Taback, Beverly Hills, Cal., for defendant.

Before ELY, Circuit Judge, and HILL and REAL, District Judges.

OPINION

IRVING HILL, District Judge:

39 U.S.C. § 3010 prohibits the mailing of sexually oriented advertisements to persons who have informed the Postal Service that they do not desire to receive such material. The Postal Service maintains a list of such persons, which list is available to all mailers. Where a mailer has been found by a court to have violated § 3010, by sending such material to any person whose name has appeared on the list for at least 30 days, 39 U.S.C. § 3011 authorizes a district court to issue against the mailer various types of injunctive relief which limit and restrict him in sending and receiving mail. We set forth the relevant provisions of both sections in the margin.¹ In what is apparently a case of first impression, we hold in this Opinion that § 3011 is unconstitutional in most respects. We hold it to be constitutionally valid in a very limited context.

As the caption shows, we sit in two separate cases involving separate mailers and separate mailings. By agreement of all parties, the two cases have been consolidated. In each case, the Defendant admits that before the instant action was begun, he violated § 3010 by mailing sexually oriented advertisements to several persons whose names and addresses had appeared for more than 30 days on the Postal Service list of persons desiring not to receive such material. The government seeks against each Defendant the maximum permitted relief, i. e., all of the various types of injunctions authorized by § 3011. In each case, the Defendant resists the issuance of any injunctive relief at all on the ground that § 3011 is totally unconstitutional. Moreover, Defendants have each filed a counterclaim seeking a declaration that § 3011, on its face and as applied, is totally unconstitutional. A three-judge court was convened because each Defendant's counterclaim seeks an injunction prohibiting the enforcement of § 3011 against him.

It is necessary, at the threshold, to outline the statutory scheme in some detail and separately to characterize each of the types of injunctive relief authorized under § 3011.

Section 3010, the validity of which is not here challenged, permits an individual to inform the Postal Service in writing that he does not wish to receive sexually oriented advertisements. The Postal Service is required to keep a current list of the names and addresses of such persons and to make available to any mailer a copy of the list. The section goes on to prohibit the mailing of any sexually oriented advertisements to any person whose name has been on the list for more than 30 days. Section 3010(a) also requires any person mailing sexually oriented advertisements to place on the envelope or cover thereof "such mark or notice as the Postal Service may prescribe". By regulations, the Postmaster General has prescribed that such materials shall contain, on the outside envelope or on an inside sealed envelope, the words "Sexually Oriented Ad".² The validity of these regulations is not before us.

Section 3010(d) defines a "sexually oriented advertisement". The instant cases were argued to the Court on stipulated facts. In each case, the materials in question are before us as part of the stipulation. Each of the instant Defendants admits that the materials which are the subject of the action against him fall within the statutory definition. The statutory definition of "sexually oriented advertisement" is not coterminus with any statutory or decisional definition of obscenity. The government does not contend that any of the materials involved in either case are obscene. Thus, obscenity is not an issue in the instant matter.

We proceed now to analyze § 3011, the statute which is attacked herein. Section 3011(a) provides that if the Postal Service believes a person is mailing sexually oriented advertisements in violation of § 3010 to a person named in the list, it may request the Attorney General to commence a civil action in the district court for injunctive relief. If the court finds that the defendant has violated § 3010 as alleged, it may issue an injunction which may include one or more of the types of injunctive relief described in subsections (a)(1), (a)(2) and (a)(3) of § 3011:

(a)(1) Injunction — an injunction prohibiting the defendant from mailing any sexually oriented advertisement. The injunction may prohibit such mailing to any specified addressee, to any specified group of addressees or to all persons.

(a)(2) Injunction — an injunction requiring any postmaster to whom the defendant delivers sexually oriented advertising for mailing, to refuse to accept from him any and all such advertisements for mailing.

(a)(3) Injunction — an injunction ordering any postmaster at a Post Office serving the defendant, to hold up all incoming mail addressed to the defendant. The defendant then has an opportunity to examine and obtain delivery of such of his incoming mail as is clearly not connected with sexually oriented advertising, and the Postmaster is ordered to return all the rest of the incoming mail to the senders marked as being responses to sexually oriented advertising.

We will refer to these types of injunctions hereinafter by the subsection number, e. g., "(a)(1) injunction".

Section 3011(c) authorizes the district court to issue, pendente lite, a temporary restraining order or preliminary injunction, of the (a)(1) and (a)(2) types. Section 3011(c) also authorizes a pendente lite injunction of the (a)(3) type but even broader. It may order the detention of all of the defendant's incoming mail pending the "conclusion of the judicial proceedings." This denies the defendant even an opportunity to obtain such mail as is not related to sexually oriented advertising until his trial is over. Depending on the time required to conclude the case, subsection (c) could authorize the total detention of all of a defendant's incoming mail for months or years.

We note that in addition to the injunctive provisions of § 3011, there are criminal sanctions for willful violations of § 3010. See 18 U.S.C. §§ 1735, 1737. These criminal provisions are not in issue in the instant cases.

DISCUSSION OF PRIOR DECISIONS

The statute under attack authorizes a wide range of injunctive relief and we are required to pass upon the validity of several different types of authorized injunctions. Our legal discussion will therefore be somewhat compartmentalized. We believe it would be helpful, therefore, to abstract in one section those cases to which we will be making frequent references. The government contends that Rowan v. U. S. Post Office, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970), and two three-judge court opinions, Universal Specialties v. Blount, 331 F.Supp. 52 (C.D.Cal.1971), and Pent-R Books v. U. S. Postal Service, 328 F.Supp. 297 (E.D.N.Y.1971), are dispositive of all issues before us. We do not agree.

In Universal Specialties, a mailer, on constitutional grounds, sought an injunction against the enforcement of both § 3010 and § 3011 and the regulations promulgated thereunder. The court found that the regulations were incorrectly promulgated. On that ground, the court enjoined the Postal Service pendente lite from enforcing the regulations. The case appears to have been terminated without any further decision and without trial. Apparently the regulations were subsequently repromulgated so as to avoid the infirmity pointed out by that court. The opinion does not reach the question of the constitutional validity of any portion of § 3011.

In Pent-R Books, the court dealt extensively with several aspects of § 3010 and the regulations thereunder. The case was initiated by a mailer who apparently challenged only the validity of § 3010. The government had apparently not sought any injunction under § 3011. The opinion holds § 3010 to be constitutionally valid but does not consider the validity of § 3011 in any respect.

The most significant decision for our purposes is Rowan, even though there the Supreme Court held constitutionally valid a statute which is not before us, i. e., 39 U.S.C. § 3008 (previously found at 39 U.S.C. § 4009 (1964) Ed.Supp.IV). That statute is designed to protect individuals from receiving pandering advertisements through the mails if they do not desire to receive such advertisements. As construed by the Supreme Court, it permits an individual who has received what he believes to be a pandering advertisement from a given mailer to obtain from the Postal Service an order that such mailer shall no longer address to him any advertisement of any kind whatsoever. The Supreme Court, speaking unanimously, balanced the First Amendment rights of the mailer against the privacy rights of the unwilling recipient. While recognizing that the material involved was within the ambit of the First Amendment, the Court denied the existence of a constitutional right "to send unwanted material into the home of another." As the Court said, "no one has the right to press even `good' ideas on an unwilling recipient", 397 U.S. at 738, 90 S.Ct. at 1491. In an oft-quoted statement, the Court said "a mailer's right to communicate must stop at the mailbox of an unreceptive addressee", 397 U.S. at 736-37, 90 S.Ct. at 1490.

There are important differences between § 3008 involved in Rowan, and §§ 3010 and 3011, here...