Heilberg v. FixaHeilberg v. Fixa
- Reporters:
- Before:
- Bone
In this action plaintiff seeks to enjoin the enforcement of
In order to disclose the constitutional infirmities of the statute at issue, it is necessary to describe briefly its operation. Upon a determination by the Secretary of the Treasury that unsealed mail originating in a foreign country is “communist political propaganda”, as defined in
To implement
*407
In the instant case plaintiff received, on or about July 12, 1963, a letter from defendant Fixa containing POD Form 2153-X. The card notified plaintiff that the Post Office was holding a piece of unsealed mail matter entitled “A Proposal Concerning the International Communist Movement”, which would be destroyed unless plaintiff returned the form approximately marked within twenty days. Plaintiff refused to sign the card and instead filed this suit. Thereafter, the General Counsel of the Post Office Department notified plaintiff that the filing of this suit constituted an expression of a desire to receive all mail that was and in the future would be detained under the provisions of
Initially, defendants argue that this action has been rendered moot by the aforementioned action of the General Counsel of the Post Office. This same defense was raised, successfully, in Lamont v. Postmaster General of United States, 229 F.Supp. 913 (D.C. 1964). We cannot agree with that distinguished court. Plaintiff’s mail is still subject to delay, since mail originating from designated countries must continue to be classified ; 1 his name remains on the Postmaster’s list of persons desiring to receive communist political propaganda; and there is no guarantee that this list will not be used to his detriment.
To render this case moot under these circumstances is to approve a device which would enable defendants to prevent any potential recipient of mail originating abroad from ever testing the constitutionality of
It is a well established principle that the “ * * * voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot.” United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). Admittedly, the case may be nevertheless moot if defendant can demonstrate that the alleged wrong will not be repeated. But what is at issue- here is by the very nature of the disputed statute a continuing act. Defendants -are required by
Furthermore, we think contrary to the court in Lamont that plaintiff may also assert the rights of’ third parties. Generally, a person cannot assert the constitutional rights of others. But this, is merely ‘a rule Of practice which will not be applied where the fundamental constitutional rights of third parties may be denied and it would be difficult for the. persons whose rights’ are asserted to maintain a suit in their own right. See Barrows v. Jackson, 346 U.S. 249, 255-257, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). Here, persons interested in receiving political matter from abroad may be deterred from bringing suit to challenge
Having satisfied ourselves that this action is not moot and that plaintiff has standing to sue, both in his own right *408 and as a representative of third parties, we now turn to the constitutional issue.
The Constitution, Article I, Section 8, invests Congress with the power to regulate the postal system. See also Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877 (1877). But it is axiomatic that this power is not absolute and unfettered. Congressional power in this area is limited and conditioned by other provisions of the Constitution. Thus “ * * * Congress may not by withdrawal of mailing privileges place limitations upon the freedom of speech which if directly attempted would be unconstitutional”. Speiser v. Randall, 357 U.S. 513, 518, 78 S.Ct. 1332, 1338, 2 L.Ed.2d 1460 (1958). See also Hannegan v. Esquire, Inc., 327 U.S. 146, 155-156, 66 S.Ct. 456, 90 L.Ed. 586 (1946). The apparent conflict between congressional power to regulate the postal system and its impotence to enact postal legislation which tends to inhibit or deter the exercise of First Amendment rights must be resolved by balancing legitimate legislative purposes served by the statute against the restrictions imposed on rights otherwise guaranteed by the First Amendment. See e. g. Dennis v. United States, 341 U.S. 494, 510, 71 S.Ct. 857, 95 L.Ed. 1137 (1951); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939).
In striking this balance we are mindful that First Amendment rights are not absolute, but it is too late in the day to doubt the preferred status these rights enjoy in our constitutional scheme. See Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). The reasons for this preferred status were carefully explained by the Supreme Court in Thornhill v. Alabama, 310 U.S. 88, 101-102, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940):
“The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. * * * Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.”
In a recent elaboration of the so-called balancing test, the Supreme Court has indicated that only a compelling state interest could tip the scale in favor of a statute which burdens the exercise of First Amendment rights. See Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965. Moreover, even if a compelling state interest were shown, the burden remains on the state “ * * * to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.” Sherbert v. Verner, supra, at 407, 83 S.Ct. at 1796. With these considerations in mind, we turn now to the case at bar.
What injuries have been suffered by plaintiff? He asserts that his mail is subject to unnecessary delay because of the screening program made necessary by
The right to distribute and receive controversial literature may require constitutional protection where disclosure may subject the distributor or recipient to social disapprobation or economic injury. In Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), the Supreme Court had before it an ordinance requiring that handbills show the name of the distributor. The Court said: “There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression.”, Talley v. California, supra, at 64, 80 S.Ct. at 538. If identification of a distributor is constitutionally impermissible, a fortiori, identification of a recipient, whose rights are similarly protected [see Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943)], would no less “tend to restrict * * * freedom of expression”.
That a person may be reluctant to disclose his desires under the circumstances of this ease is not fanciful. Similar lists under earlier non-statutory screening programs were routinely turned over to the House Committee on Un-American Activities. See Hearings before the House Committee on Un-American Activities, 85th Congress, 2d session, p. 2794 (1958). Assurances by defendant that these practices have been discontinued cannot be reasonably expected to mitigate a person’s reluctance to have his name associated with “communist political propaganda”. There are no similar assurances that this information will not be made available in the future in view of the lack of a statutory requirement that information received pursuant to
Moreover, the practices made necessary by
A reading of the legislative history 2 makes it abundantly clear that the purpose of the new legislation was primarily to control, restrict and prevent the delivery of matter found to be communist propaganda, an infringement upon the dissemination of ideas, and, therefore, a clear and direct invasion of First Amendment territory. To overcome this infirmity in the statute the government must assert and prove both that there is a compelling state interest and that no alternative remedy would achieve the end desired without infringement. Sherbert v. Verner, supra, 374 U.S. at 406-407, 83 S.Ct. 1790. This the government has failed to do, for its alleged state interests, while “compelling” in theory, are insubstantial, illusory in fact and ignore available alternatives. They are clearly incompatible with the requirements of a free society.
The defendants have asserted as the purpose of
“Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.” (Id. at 146-147, 63 S.Ct. at 865).
Even if this asserted purpose were to be found compelling, there is a readily available alternative which would protect the recipient’s interest without infringing upon the free expression of others. The Federal regulations [39 C. F.R. 44.1(a)] provide that any person may authorize the postmaster to withhold the delivery of specifically described classes of foreign printed matter and to substitute his judgment as to classification for that of the addressee.
Another purpose asserted for
Finally, the government asserts in its trial brief that
For the foregoing reasons this Court is satisfied that the asserted purposes of
The Court having found that
Notes
. The Lamont court assumed, presumably on the record before it, that once the government agreed no longer to detain the plaintiff’s mail, there would be “un- , impeded delivery”. Id. at 916. The record herein is clearly to the contrary.
. “Postal Rate Revision of 1962”, Hearings before the Senate Committee on Post Office and Civil Service, 87th Congress, 2d Session (1962); “Exclusion of Communist Political Propaganda Erom The U.S. Mails”, Hearings before the House Committee on Post Office and Civil Service, 88tli Congress, 1st Session (1963).