*1 v. PUB. CO. BURLESON. Syllabus. EX REL. MILWAUKEE SOCIAL STATES
UNITED BUR PUBLISHING COMPANY DEMOCRATIC THE GENERAL LESON, POSTMASTER OF UNITED STATES. OF THE OF APPEALS OF THE DISTRICT TO COURT
ERROR COLUMBIA. Argued 7, January 18, 19, 1921. 155. 1921. :Decided March
No. (Act provision Espionage of June c. Law 1. 217) newspapers denies the mails to XII, Title 40 Stat. which § (cid:127) violating prohibitions, publications was within and other Congress. P. power 409. granted for news- previously 2. mail privilege, The second-class General, by upon notice paper, Postmaster due was revoked because, States entered hearing, from the time'the and- United paper frequently revocation, time of World War. Jhe reports and false state- printed conveying false persistently articles of the enemies of the promote ments intent the success disloyalty constituting attempt cause a wilful States and United and to military forces obstruct duty in the and naval and refusal of procedure Held, recruiting and enlistment service. clearly law, p. 409; publication was process of that the satisfied due Law, p. 413; that the order did not of 3 of violative rights speech, or-free of free deprive publisher constitutional amply law, process of property without due press, or Pp. 409, 415. justified by the evidence. upon matter department The conclusion of-a head of an executive
3. by the courts jurisdiction disturbed of fact his will not be within clearly wrong. unless P. 413. mail By the second-class long practice, admission to 4. executive by a only permit, issued publication privilege is for a obtained showing hearing satis- General, after and will assistants, that contains factory authorized him or his .to and-, meet the that it will only mailable matter continue to contain Pp. 415. other of the law. requirements an privilege is power revoke the Postmaster General 5. Congress (31 recognized grant it, incident 1107) Pp. decisions this court. Opinion of the Court. 255 U.S. 6. When been admitted to the second-class privilege frequently justify publishes matter as to non-mailable so *2 presumption so, the Gen- that it will continue to do the Postmaster (Rev. 396) Stats., privilege, is empowered eral to revoke'the containing indefinitely merely particular matter, as to issues but future, subject right publisher’s the to the to secure a renewal upon proper application proof paper that the will conform the law. P. 416. App. Rep. 282, D. C. 258 Fed. affirmed. judgment review a of the of Appeals Court
Error the District of Columbia which affirmed a judgment Supreme Court the District dismissing the re- petition lator’s for writ of against mandamus the Post- master General. The in appear facts the the opinion of court.
Mr. F. Henry Cochems, with Mr. whom Hubert O. Wolfe Seymour and Mr. Stedman were on brief, plaintiff the in error.
The Solicitor General and Mr. William H. Lamar for defendant in error. ’
Mr. S. John Block and Mr. Seth Shepard,, by leave court, filed brief amid as curiae.
Mr. Justice Clarke opinion delivered the court. hearing After on September Third General, Assistant Postmaster of the time and character which, (plaintiff relator error) due notice had represented and at which it was president, an order entered, revoking the second-class privilege mail granted publisher 1911 as the Milwaukee Leader.. So far as apDears, all relator desired to say offer was received. heard and This hearing was had PUB. CO. BURLESON. Opinion of the Court. were articles charge the order entered wa.s provisions violating in relator’s so appearing paper June Law, approved National Defense as the come known popularly it “non- to render 217), Act of Congress (c. ” of that act. Title XII mailable express terms ap- the order was appeal On General in the Su- proved. petition filed a relator Thereupon Columbia, praying preme Court of the District of commanding writ of issue, mandamus to annul his order and restore the Post- show cause privilege. To a rule to his answer answered, master. General demurrer further, the being pleading overruled relator not petition. thé dismissed discharged court the rule and *3 affirmed of'Columbia The of of District Appeals Court the constitutional court, the judgment of the trial and being involved validity of the United States laws of the. was writ of error. brought case here are, in sub- grounds relies, which the relator Act stance, Espionage confers. that, to the that the extent order to make the General power upon unconstitutional, because entered is it, that act against of competent court it does not a trial in a afford relator right of relator jurisdiction, deprives order the^ press, of a free rights free is speech, destructive due of law. process deprives it of its without property on relator, That a such was accorded hearing, as fairly involved, when as is here precisely question of due process satisfies all conducted, requirements Hitchcock, Smith v. been law, repeatedly has decided. 194 106; U. S. Payne, 53, 60; U. S. Bates & Guild Co. 226 v. 497; U. Coy e, House S. Lewis Clearing 194 Public Publishing Co. v. 229 U. S. Morgan, 288. filed, it has be- this case also petition was
Since valid, Act constitu- settled come 410 1920.
' , Opinion of the Court. 255 TJ. S. States, tional law. Schenck v. Froh 47; United 249 U. S. werk States, 204; v. United U. S. States, Debs v. United States, U. S. Abrams v. United comprehensive
The first law providing for classi fication of (c. 180, mails enacted on March 355). this, classification, From that time to mail frequently approved by court, only has dealt act, “mailable matter.” In 7 of effect, still in § ” “mailable is divided into classes, and, by matter four 10, the class of such second “mailable de matter”.is including newspapers fined periodicals. By 1.§ XII Title of the Act of June 1917, supra, news 15,. any paper violating any provision of the act is declared matter,” “non-mailable conveyed shall “not be in the mails or delivered from any post office or letter carrier.” low extremely rate charged for mail— second-class said, carry it, was in argument, to seven cost times the which it yields
revenue justified as a part of “the —is policy encouraging by historic postal low the dis- rates intelligence.” semination of current ais frank exten- sion of special publishers favors to special because public contribution to the welfare which believes from the newspaper derived other periodical press. 229 U. S. forty years more than
By departmental now practice, privilege of this admission mail publication only been obtained for by permit; issued after a hearing iipon show *4 ing satisfactory him, to or assistants, his made, authorized will that it and continue to only contains contain mailable it will meet statutory matter and various and Houghton other v. U. requirements. Payne, S. or. suspend power That the revoke such second-class necessary it grant incident to the privilege power was a many statute decisions recognized been long CO.,». PUB. BURLESON. Cpurt. Opinion of the of this (31 1107; court. Stat. Smith v. Hitchcock, 53, 57; U. S. Houghton Payne, 88; v. 194 U. S. Bates & Guild Payne, Co. v. 106.) Under these statutes decisions, if of the had comb relator to. be so edited that than it contained other “mailable matter,” plainly Congress intention of that it was the should no longer be carried as second-class mail and there fore permit granted the order to revoke the been had to relator was proper justified, that it had be —and changed holding come so in character is the of the Post master General and of the two lower courts which we are reviewing. disunion disloyalty
For purpose preventing the end that a among many origins, our and to people enemy, the Espión-; presented united front should be Defense laws age Act, one first of the National entry of the United States Congress enacted after the 217), 15,1917, 40 into the June (approved World War who “when any person provided. punishment, severe wilfully convey make or at war” shall United States is with intent interfere reports false or false statements military or naval with the and success operation with, country, promote the intent forces of the or cause, or enemies, attempt or who shall success mutiny or refusal of cause, insubordination, disloyalty, wilfully obstruct duty forces, in such or who shall recruiting and of the United States enlistment service XII) is (§ 3). (Title One entire title of this devoted act Mails,” practically and in of its “Use the exercise (Ex oyer Jackson, 96 U. S. parte the mails plenary Clearing S. Coyne, Public House v. 727; U. S. 313), Co. 229 U. Publishing Morgan, Lewis provided any newspaper published therein of the act should be of the provisions
in violation or “conveyed mails and should not “non-mailable”- carrier.” by any letter any post delivered office *5 Opinion of the Court. act, and of this war-time provisions
It was under Stat- of 396 of the Revised injunction specific under the duty of declaring it to be the States, of the United utes generally the “superintend General department, and execute all [Post business Office] this service,” the order postal relative laws case was entered. avers, hearing that, upon the General
The Postmaster within that, beginning found described, he have which we against the German of war the declaration a week after continuing to the date of the revocation Government and pub- had herein, the relator privilege of the second-class daily, often articles newspaper .frequently, in its lished statements, pub- and false reports false which contained to interfere with the success with intent lished Government, promote of our military operations recruiting and enemies, obstruct its of its and to success exercising the cause, service. For this enlistment we have seen had been invested which had forty and which years, statute almost by respond- by predecessors, exercised his been frequently had which been privilege ent revoked authority A similar the relator. executive granted has been jurisdiction within their to matters respect of our departments of all grepb to the heads given by them. constantly exercised and is Government nor an dangerous arbitrary power, neither a This is only subject for it is not to review bar, argued at re- claim of the relator was heard [the by the courts of it this re-examination courts before jected by two subject by it is also to control but court] Under of the United States. the President denounc- shall find it vehemently we Constitution, pro- amply are, the relator rights were, ing, relief thus given it resort opportunity tected rights those Government, if departments all three PUB. CO. v. BURLESON. MILWAUKEE" Opinion of the Court. be invaded any ruling should of the Postmaster Gen- *6 eral. being law, All this settled there remains the question- “ substantial evidence to support
whether his order be facts stated in found in the General’s are admitted answer, which the demurrer, for the law is, that the conclusion of the head of an executive depart of the Government on such ment a question, when within' will jurisdiction, his not be disturbed by the courts unless clearly opinion they are it is wrong. Smith v. that Independent Hitchcock, 53, 60; Houston v. St. Louis U; Co., 249 king S. and cases Pac cited. In answer of the Postmaster General there were fifty more than quoted excerpts from editorial articles appeared relator’s newspaper at intervals be- 14 and April September 13, 1917, tween first five —the country months after our entered the great upon war— , which, consideration with others not reproduced, he averred, his order was based. going much into detail: Without It was
. declared in the articles, that the war unjustifiable was quoted and dis- part, honorable on-our a cápitalistie war, which had been by a people class, forced its selfish serve ends. Government was Our denounced as a “plutocratic repub- financial and lic,” political- autocracy, and resident praised were it. defaming Russians Other articles de- draft law as arbitrary nounced unconstitutional/ implied counsel that it should not oppressive, be and it obeyed, was respected represented soldiers becoming insane in that long France were such numbers were being convey away of closed cars used to them trains confidently battle front. It'was from the asserted purposely United States was made the Constitution might in order that we not have amendment difficult.of in. this country, President was de- democracy real 414'
Opinion of tne 255 U.S. Court. legislation haying war as autocrat, and the nounced as an guise In stamp Congress.” by a “rubber passed been tp sought convince the readers argument these articles legally could outside soldiers §ent them waging our Government was war country and that ready an honorable Germany when to make conquest ‘ Law The Food Control was denounced Kaiser peace. izing fighting was declared that we were America.” only and supremacy and world domination commercial kings” the “financial concluded that further that when might endanger Allies, they their fighting loans to the peace, quickly move for which would come. Our would repeatedly were condemned and our enemies “Allies” praised. frequently designed publications were not to secure amend-
These arbitrary of the laws denounced in them as repeal ment or hostility to, but to and to encour- oppressive, and create of, may protect them. Fréedom of the age press violation laws, agitation and for modification-or of repeal criticism not extend protection but it does to who counsels him encourages the- violation of the law as exists. #nd preserve Government, adopted our Constitution for those who while protecting not to serve as screen it. clainiing privileges destroy its seek to articles, of the cannot further discussion we Without them, reports to readers of false they conveyed that doubt promote intent to the success false statements with and they and States, of the United that constituted the enemies disloyalty duty cause and refusal of attempt a willful forces and to obstruct military naval the recruit- in violar States, service of the ing and enlistment United Froh- (Schenck States, Law v. United tion of the States, States, supra), and Debs v. United werk United publication brought their that therefore XII express of Title within terms containing them shall be declaring such a law, publication of that MILWAUKEE PUB. CO. v. BURLESON. Opinion of
407.- the Court. 'and conveyed “non-mailable” “shall not be any post or delivered from mails office letter carrier.”
: While adroitly written more pro-German than usual propaganda they of that time, prove nevertheless clearly the publisher deliberately these articles was n persistentlydoing power all its to deter its readers from supporting the war in our which engaged Government was to induce them aid lend and comfort to its enemies. order the Postmaster General only not finds support reasonable in this record is amply justified but by it. only
We shall notice further contention if it should be found that the Postmaster General had au- thority to revoke the privilege single ato paper, issue nevertheless he did have applicable such an order make indefinite future. privilege The second-class ever since 1879 has been granted to newspaper, seen, as we only have on applica tion of publisher entry Upon it to that class. application, an searching investigation publication character is made General, regulations under rules and prescribed him,’ experience proved necessary prevent frauds (United the Government States Postal Laws and Regulations, 1913, to 435, inclusive; 306), §§ copies representative and two issue nearest *8 application date of the to be filed. If required are the is found publication to be entitled second-class issued, to that privilege, permit contains, a effect is relator, provision as did the the the permit.to “the authority given is determination upon herein revocable does, Department publication the not the conform .Such a would be permit, however, to law.” equally the any revocable specific (31 such reservation. without 53, 60). Hitchcock, Smith
Opinion of U.S. the Court. the that the character presumption It is a reasonable privilege, to second-class entitled the as one publication substantially to established, will continue be when thus applicable made permit and therefore maintained, reason, For future. the same and because to the indefinite of a nQt to examine each practicable it be would issue of a continue until' permit revocation must newspaper, the institution, practical Government is a further order. It public conduct of affairs. practical the adapted to maintain a for United States not be possible would to approve officeof the to every newspaper reader country it issue before should allowed to enter each advance when, months, for more than five mails, paper daily, which, articles under the contained, had almost statute, “non-mailable,” it rendered express terms it would continue its it was to conclude reasonable clearly it therefore disloyal and was within publications Stats., to Rev. the Postmaster General given service,” to postal to all laws relative “execute case, suspending in this an order enter, was done as showing should be privilege proper application until simply renewal. The order withdrew made its but did not exclude its privilege, relator done, it classes, might other have and there paper from in it to at nothing was reinstatement time. prevent its ways, publish the relator to mend open was conforming law, then apply anew do, it did mailing privilege. This the second-class imagine, not difficult to but, preferred for reasons theory that Gov- undertaken litigation, futile wage against foreign war competent ernment at- against its insidious foes powerless enemies re- injury relator suffered was the home. Whatéver the Court judgment choice sult its own Appeals
Affirmed. *9 n PUB. CO. BURLESON. 417 Brandéis, j., dissenting. Mr. Justice Brandéis, dissenting.
This during ease arose War; presents World but it peculiar no legal question It is important, war. because measure, what we decide determine in large whether peace press times of our shall be free. The denial to a newspaper entry of as second-class mail, or the of an entry revocation previously made, does not deny admission nor does mail; it de- prive any publisher facility. mail merely deprives him of the low very’ called postal rates, class, second compels him to pay postage for the same service at class, rate third called was, -until recently, from eight to fifteen times as high as the second-class rate.1 Such is the nature the only'effect denying an order revoking the entry. See Postal Laws Regulations, 421, In entry 422 and 423. this case to the second-class §§ mail was revoked had, opinion because' the paper General, systematically inserted editorials and news items which deemed unmailable. The ques- ..he Did tion is: confer presented Congress Post- authority to deny master General postal rates question The ground? statutory on 'that one of construc- authority such tion. No in terms in granted the stat- which declare what utes matter Is unmailable. .shall which, provision of the there laws postal the in- grant tention of bemay inferred? why reasc^ specific the Postmaster General deemed news these editorials and he items unmailable them violative of considered Title XII it is not Act. But contended this specific reason is of' 1 342, c. 1, 3, of March 23 Stat. Act Act § March 17, 180, Compare 3,1917, 359-360. c. Act October § See Message President, Stat. 327. 1101,40 February c. Report transmitting the Commission on Second-Class Matter, Cong., 2d sess., 559, pp. 62d Doc. H. R. Mail S.U. of the Postmaster General’s- scope
legal significance. *10 confessedly same whether the rea authority is alleged of the matter inserted in a quality son for the nonmailable or Espionage Act, it violates the is that newspaper part defraud, it is or laws, or of scheme copyright indecent, is any or or other lotteries, respect concerns shall not be admitted declared matter which of- of scope the Postmas quéstion to the mails.1 The following to us on presented ter General’s record: Leader, 1917 The Milwaukee a daily years prior
Some the Milwaukee Social by newspaper published Democratic to use the application second- Company, made Publishing do so, and thereafter entitled mail, class was declared up large circulation, It built it continuously. used through 9,000 copies daily were distributed which about „In 1917, September, publisher mail. second-class cause authorization ad- “why directed show was . class . . mission to-the second mail matter .... following ground:' be revoked should not ‘ “ is not other or publication periodical ’ meaning governing of the mail- within law publication class, being second in conflict with the able of the matter law embodied Postal in section provisions 4813^ ” Regulations. Laws and (obscene matter, concerning Code, 211 information 1 Criminal § threatening.,matter or (obscene, upon envelopes. libelous abortion); 212§ (matter (schemes cards); concerning lotteries); postal or 213 215 § § insects, intoxicating reptiles, (poisons, explosives, 217 defraud)/§ 4, 1911, 2, 241, 1339, c. Stat. liquors); March § Act § Code, supra, char amended to include matter Criminal 3,. arson, nun-der, assassination; Act of March acter incite 359, violating copyright laws was 1879, 15, Stat. matter 180, c. § 31, 1912, 1, 240, prize-fight excluded; July c. 37 Stat. Act § 5, 39 excluded; by 3,1917, c. Act of were March films intoxicating liquors in orders solicitations advertisements prohibition States. MILWAUKEE PUB. CO. v. BURLESON. J.,
That section relates not specifically to the mail; to all but mail. It recites the provisions of Title XII of the Espionage Act of June c. 40 Stat. 217, 230, which declares unmailable all letters, pictures, publi cations things “in violation of any provisions” act, prescribes fine-and imprisonment pun ishment for the use or attempt to use the postal service for the transmission of such unmailable matter.1 On this to show notice cause the Third Assistant Postmaster General held the customary hearing. informal pub lisher of The Milwaukee Leader had not been convicted by court of violating the Espionage Law; and its rep resentative denied that it had ever committed any act violation of it. But the Third Assistant Postmaster Gen *11 eral issued on October 1917, to postmaster the at Mil waukee the instruction that The Milwaukee Leader “is not entitled to transmission in the mails at the second- class rates of postage because it appears from the evidence in of possession the Department that the publication is not a 'newspaper periodical publication’ or.other within meaning'of the the law governing mailable matter of the it class, being second in conflict with the provisions of the law embodied in section 481H, Postal Laws and-Regula tions.”
This determination and action were confirmed by the Postmaster General; and the postmaster at Milwaukee thereafter denied to the publication transmission at the provided by rates law for second-class mail. The order did not forbid to The Milwaukee Leader all use of the. mails; mail, did limit in ahy nor it way the use of the facilities; it merely revoked the so-called second-class mailing permit; and the effect of this impose was to punishment provided Like in all referred statutes to in note supra except mailing p. 418, matter copyright violative of the law criminally. punishable punishment mailing maximum $1,000 a fine of imprisonment films is and prize-fight year. for one U. ..255 S. copy on every rate of higher postage the. ' mailed. thereafter alleges by filed herein the The return and judgment, the exercise of this order.“involved ” reviewed, subject to be his and is “not part discretion on gives he aside, but by law;” set controlled a court-of or. “ . his justification for action: good sundry and “By representations complaints from personal the loyal United States and citizens from said relator reading and consideration of the issues the declaration, ’s down the of war date of publication, from hear upon it", To the time service citation to this granted thereof, re ing pursuance in seemed judgment, exercise his and discretion spondent, in the reposed him as well duty in obedience to on Espion provisions of said general special statutes syste act were provisions that the latter age L^w, continually publi violated the relator’s maticálly-and cation” General, thus that’ the Postmaster appears, supposed discretion, carry
exercise of a refused at second- issues, future of'The Leader, mail rates all Milwaukee class believed it solely systematically because he had violated ' past. appears Act It further partly this belief the contents of past rested issues partly upon “repre- filed return sundry complaints good loyal sentations and and. ” *12 citizens, in incorporated whose statements are not do not record and which to have been to appear called thé Leader, publisher attention of the of The Milwaukee at the refusal, hearing general or is this otherwise. . thereafter accept paper transmission at the second-class is challenged being mail rates as warrant without law. Post-, discussing Congress
In whether conferred upon authority master 'General which he undertook exer- PUB. CO. v. BURLESON. 421 407. whether he would first, I case, consider, in this shall
cise altogether power have had the to exclude second, alleged; and ground all future mail service on the the second- whether he had power deny publisher class rate.
First. Power has never been from the mails exclude Begin General. conferred in terms ning 16,13 507, with thé Stat. 89, Act of March c. 3,1865, § relating 27,1868, c. July obscene matter and Act of 246, 13, 196, concerning lotteries, 15 Stat. .has § from time to time forbidden in the mails deposit certain prescrib matter. In each in addition to instance, ing fine and imprisonment sending as or punishment attempting to through mail, send the prohibited matter it declared that such matter be;conveyed should mail, nor delivered from letter by any office nor post carrier.1 By 335,17 6 of the Act 8,1872, of June c. § 285, (Rev. Stats., 396), the Postmaster General em § powered "superintend of the department, the business ” and execute all laws relative to the service. Asa postal matter of General, through administration the Postmaster his subordinates, rejects mailing, matter offered for or re moves matter already judgment which in his mail, is unmailable. The existence in the Postmaster General of the power to do this The only cannot be doubted. question which can arise is in the individual case whether been illegally exercised.2 while he But
1 Code, 211, 212, 213, 217; Criminal Act of March e. §§ 1069; Espionage 15,1917, 39 Stat. A.ct of XII, June c. Title 40 Stat. 230. excluding newspapers periodicals individual issues of Orders of unmailable matter were because contained therein sustained in Publishing 24; Patten, Rep. Co. v. Patten, Masses Fed. Anderson v. Rep. Publishing Murray, Rep. In Post Fed. Co. v. 230 Fed. Rep. Daily Eagle Brooklyn Voorhies, v. 181 Fed. enjoined being were unwarranted also orders facts. See Brown, Rep. Fed. Davis *13 OCTOBER' dissenting. J., he deems specific the mail matter which from exclude
thus unmailable, be he of the kind declared punishment, measure or as a not, preventive either aas per- by particular tendered in the future mail order that paper shall be refused particular son or the future issues of a transmission. been least, appears at never have recently,
Until been Post Office Department and the questioned excluding that the matter authoritatively advised upon matter as specific mail was limited from the and that the Post- to be unmailable was examination found an exclusion order opera- could not make master General - issues of a newspaper. future tive Kreutzer Sonata had been excluded Tolstoi’s In 1890 newspapers began Certain mails as indecent. from the position instalments and their the book in publish replied: He Attorney General. 'referred to the necessarily I see follows “ do not . . . story publishedjs obscene, thus be- instalment eveiy whole is be It may be, declared to so. story cause of this chapters story entirely or more are indeed, one If so, exclusion, in character. as un- unexceptionable containing might them newspapers’ involve mailable, ” (19 Ops. yourself. Gen. consequences Atty. serious 668.) President Roosevelt asked the Attorney Again, him to deny the mails to an permitted if the law General published language in anarchist Italian advocating articles the murder the po which appéared burning city. lice force of and the Paterson him General advised that such an article con Attorney (it libel been stituted a seditious has since made criminal by statute, 4,1911, 241, 2, 36 1339), Act March c. justified that “the Postmaster (would) excluding any the mails issue of any periodical, privileges entitled second-class mail otherwise MILWAUKEE PUB. CO. v. BURLESON. Brandéis,
matter, which shall sedi- containing contain article *14 counseling libel and murder, arson, tious such crimes as ” (26 riot, Ops. 555.) and treason. Atty. Gen. Attorney point But the General was caréful to out that gave the to of authority law no exclude issues the matter; should objectionable contain no must premised “It be the Postmaster General to of clearly power any per- has no to close the mails class or how- sons, reprehensible practices however be their if were reputation; ever detestable their the question of the mails could be closed to all issues a news- whether admission, of by entitled to an ar- paper, otherwise reason any particular issue, this in could ticle of character there the that the must answered in question be no doubt negative” p. 565. General,. were the power possessed by
If Postmaster decisions, would, finality in of.his. practical he view For of a denial publications. become the universal censor for most of them tanta- of the use the mail would be Congress has right to a denial the circulation. mount to power the deny the Postmaster General granted to mail to one who has been- right sending by matter even by a unlawful a sentenced court convicted jury and who has been found of the mail use mail for frauds using the habitually to have been General has, in to do so in the future. It likely and is or lotteries public, return postmasters'to directed protect to order Post- by the mail addressed to one found to sender in tó or to be in a scheme defraud engaged General master never beyond But this enterprise.1 lottery September 1890, by Act Statutes, 3929, amended 19, § Revised 2,1895, 4, March as amended Act c. 2,26 § Stat. c. May 75,40 Stat. 16,1918, 554—enacted after c. By of the Act 2§ authority judgment in trial con- gone to had was case court — stop, delivery in manper, like Postmaster ferred J., dissenting. . if,-indeed, it it wise,
deemed has considered constitu right tional, using interfere with the civil the mail for .lawful purposes.* The Postmaster General herd power does not claim directly issue an order mail denying newspaper all Indeed, service future.2 he mail asserts that person “upon satisfactory mail to he finds him” whom evidence using to be the mails violation of the Act. Sixty-third 1 In Congress, (1915) bill, Third Session H. R. use,of deny absolutely introduced mail'to person opinion who, General, engaged “is represents engaged publishing any himself as business of books the. or pamphlets indecent, of an' immoral, scurrilous or libellous char The, objected: acter.”' .was “bill would one man . . . invest destroy publisher affording the business of without *15 any opportunity-'for according by jury, regular trial practice. court punishment upon publisher by which be inflicted a the Post provisions master severe, General under the of this bill is most abso lutely depriving using of mails, the of him the States privilege United legitimate even for purposes. Furthermore, . . . makes bill possible practically the Postmaster General-to inflict what is a confiscatory penalty for clearly an offence not defined. .' . . Under such circumstances as these it not safe to leave to the decision man, parte one after an ex a investigation, decision which will involve jof press. freedom of' jury penalty Trial for' and a inflicted specified each safeguard against the only ty act is arbitrary an ' power.” rannical passage. Hearings The bill failed of -before Com Roads, mittee on Post February 1,1915, Office Post Exclusion On of Cong.' Certain the Mails, pp. 38, 39, Publications from 3d 63rd Congress, sess. See The by Lindsay Postal Power of Rogers, Johns Hopkins University (1916, 2), pp. 158,159. Studies XXXIV, Series No. 2In letter to Senator Bankhead the said: regard “I generally will state Department the action of newspaper, periodical that no of privilege been denied the have, mails publications as such. Particular of been issues certain to contain operation found matter which would interfere with the or military success of the or . etc., naval forces . . . etc. . . Aug. therefore question.” Cong. nonmailable under the act in Rec. 1917, pp. Moon, 6851-6857. See also a letter to Mr. Chairman House Committee on Post .Roads, Report Offices and Post House No. 109, Cong., 65th 1st sess. PUB. CO. BURLESON. Brandéis, open is still upon payment Milwaukee Leader third or rates. He contends first, fourth-class however regard special provisions that second-class rates apply may deny particular law under which he rate be at his discretion. This will now considered. contention Second. The mail rate is confined to news and other which papers possess periodicals, qualifica tions and Con comply prescribed with the conditions 1 In gress. General insists present case Postmaster. XII of by reason of violations of Title alleged past had ceased to ful Act, two of the conditions be "His Mail Act filled. Classification reasons are these: 14, 3, 1879, provides March Stat. c. § second-class rates to be mailable at intervals, frequently issued at stated as regularly “must be “That the con c. 359: Act of March. publicatioh.shall admitted to second class be ditions follows: are as intervals, frequently regularly at It be stated (cid:127)First. must issued issue, numbered consecu- year, a date and be times a and bear as four tively. publication. officeof be from a known It must issued Second. sheets, board, printed paper without formed of must be Third. distinguish printed binding, such as leather, other cloth, substantial periodical publications. preservation
books published for the originated, and dissemination It must Fourth. literature, or devoted to piiblicxcharacter, information having legitimate list special industry, and sciences, arts, or some *16 nothing hoioever,That herein contained shall Provided, subscribers; regular publications class rate second as to admit sobe construed advertising circulation, free or purposes, or for designed primarily for rates.” at nominal' circulation for publi- 550, applying to 389, 1, 1912, c. August 24, Stat. Act societies, etc., educational institu- benevolent, professional, cations unions, etc. boards, trade state tions, 553, requiring a sworn August 24, 1912, 389,-§ c. Act of bondholders, stockholders, editors, owners, of the names statement marked plainly “advertisement.” matter be etc., paid that all and 288. Morgan, 229 U. S. Publishing Co. v. Lewis 426. 1920.. S. 255 U. “originated and that it must be and year,” four times a for the dissemination of information of a
published public ” any paper character. If contained matter issue'-of Act, Espionage paper longer “reg violativé of Is no the ularly it has ceased to issued”; likewise be a -‘published pub for the dissemination of information of a ”1 lic argument obviously character. unsound. The requirement “regularly that the be issued” re fers, reading matter, propriety but to the tq fact that publication periodically at intervals must stated be intended and the intention must be out. carried Similarly, requirement that the paper “published be dissemination of information of a public for the character” refers not to the reliability of the information or opinions therein, soundness of the expressed, but general publication. The Classification character Act not purport of, doeá to deal with the pun effect or the for, through ishment crimes publication. á committed simply provides rates and classifies material which be sent at respective says rates. The act what shall August Rec. In a letter to Senator Cong. pp. Bankhead ' 6851-6857, at. argument,, submitted Postmaster said: many (?) years Department “For publications has held not to ‘regularly contemplation issued’ in of law when issue contained,, matter; non-mailable privilege when the has been second-class withdrawn under circumstances, the'formal notice withdrawal has contained the privilege statement the second-class has been grounds on revoked both the stated.” report year ending. In his for the June General'says, p. 46: “In the administration of governing the law matter again necessary found to revoke privilege the second-class mail publications some the reason that contents their more consisted less matter which was non-mailable under the laws, which, other therefore, removed them class-cif publications privilege.” entitled t repeated The statement repor General’s year ending p. June *17 PUB. CO. v. BURLESON. J., dissenting., 407. Brandéis, newspaper. Undoubtedly constitute a of in judgment deciding latitude a whether the definition of a laid publication newspaper meets down law, jurisdiction by the but the courts have to decide the which gives whether reasons an administrative officer his actions of agree requirements the the statute purports Gegiow Uhl, under he act. v. U. S. Magnetic McAnnulty, Healing American School of in a appearing newspaper U. S. fact that material wholly provisions of law is unmailable under different can no whether not the is publication have effect on or it Although law, the it remains newspaper. violates bad newspaper. If it is a act which the makes Act illegal provides pun it not Classification ishment. is, also, presented argument, in brief and
There much of action support claim in of broader insisted that a .citizen uses the mail General. at privi of right not as virtue second-class rates —but in granting which rests the discre lege permission, payment of the Postmaster General. Because the made tion costs, than governmental service is less as it. right person has not qualified sumed properly complain so it is if long offered; may service him. The is called the second-class it is denied to service is spo evidencing such freedom privilege. The certificate But, fact, right lawful permit. ken of as a discretion right independent rates is a postal of its conditions ex right and Postmaster General. mandatory legis wholly upon are and rest defined istence It is Postmaster Gen duty Congress. lation for any prescribed the conditions to determine whether eral of the second- the case This determination rate exist. some of subjects of.enquiry, involve more rate class of other difficulty, than in cases them, perhaps, greater is the Postmaster General But the function the. rates. 255 TJ.S. *18 in In making must, same all cases. the determination he or a form jury, judgment like a court a whether certain' by exist, prescribed conditions on controverted by applying facts or the law. The function strictly is a judicial one, although administering in exercised an exec And it utive office.1 is a function which in either permits discretionary power. volvésor the exercise of The is permit judgifient, so-called mere formal of his but notice indispensable publisher because without it the local will not postmaster second- publication at transmit class permit necessary rates. same sort of for the is first, same bulk service at third or fourth-class rates.2 nothing, in short, There about the second-class rate which slightest furnishes the basis in differentiating law for it from the other rates so fan.as the discretion of the Post grant master General to or withhold it is concerned. legislation Third. Such is the Congress. clearly that there no appears express grant power to deny Postmaster General second-class mail fu- rates to of newspaper turé issues a because in his it opinion had systematically violated Act in past; it seems clear there is no basis equally for the conten- 1 excluding periodicals of the Postmaster General orders from Houghton in mail, Payne, 88; sustained second-class 194 U. S. Bates v. Payne, 106, Hitchcock, 194 U. S. and Smith v. & Guild Co. v. S.U. 53; Clearing the fraud orders in sustained Public as well House v. 497, Coyne, and that with which the 194 U. S. court refused inter Degge Hitchcock, in 162, certiorari 229 U. S. fere involved v. merely Magnetic nature. In American School decisions Hea ling McAnnulty, 94, his fraud order v. was set aside because wholly by the facts. unwarranted legislation “permit” may first, Under recent be issued for either April 28, 1904, 1759, mail. Act of 2, third fourth-class c. Under § 440, May 18, 1916, 13, as amended 33 Stat. Act c. § April 159, 162, 24/1920, Act of c. 41 Stat. iden (cid:127) deposited large quantities in stamps tical articles be without first, rates, according third or áffixed-and sent .at fourth-class to their nature, by paying postage in in lump advance cash in a sum. PUB. CO. BURLESON. respect In implied. that such tion news- at rates mailed there is papers publisher imply power.1 this drastic For clearly no occasion to postmaster, must with the local before publisher deposit publication mailing every issue, copy first subject higher for matter which is now rate examined portion to advertis- in order to determine the devoted 180, 12, 20 Stat. 3,1879, c. Act ing. Act of March § If 3,1917, c. 40 Stat. 327. there is of October ample newspaper, opportu- here is illegal material mail. nity it and remove the discover mail, is the second Indeed, of the four classes alone postal opportunity official of as- which affords to full deposit mail, before whether which it certaining, *19 But matter. even if to transmit proposed mailable they in respect less clear than seem to statutes were adopt to construction because of me, I should be led susceptible rule that “where a statute is the familiar constructions, one of which doubtful by grave two of which arise and other questions constitutional avoided, duty adopt our is to the lat- such are questions ” Co., Delaware & Hudson S. United States v. U. ter. urged by of the construction 366, adoption For 408. only grave question, would raise not General Postmaster ” in suggested doubts as “succession of constitutional
but a Commission, 211 U. S. v. Interstate Commerce Harriman seriously abridge in the free- practice 422. It would 407, preventive measures were considered drastic In the one case where granted foreign language press Congress necessary the case of — —in specifically plain and in discretionary power the Postmaster General to (The By Act 1917, c. 40 Stat. 425 terms. October that, Enemy Act), provided until it was end Trading With foreign language papers should be nonmailable unless a war, previously postmaster, the local been filed with should.have translation grant might permit at his discretion that the but applied publications translation.- This act without mail of the mails. olass sent 255 U. S. it also press. not violate the
dom First Would in practice deprive It would many Amendment? pub- property process without of their due of law. lishers Would not the Fifth it also violate It would Amendment? in publishers punishment practice subject without a hear- it ing by any not court. Would also violate Article III of the Constitution? practice subject publishers would for an punishment to severe infamous crime without trial it by jury. not also violate Sixth Would Amendment? punishment right And the inflicted —denial of a civil —is unusual. it certainly Would also violate Eighth If urged the construction Amendment? questions rejected,
General is these need not answered; appropriate why but seems indicate the doubts raised grave. by them are
(a)
police
power
the mails is
incident
an
Congress may,
course,
postal power.
exclude from the
dangerous
which is
mails matter
or
carries on its
expressions,
face immoral
threats
It may
libels.
go
through
power
exercise,
further and
its
of exclusion
within
police
limits, general
power over the material which it
regulations
carries,
though
quite
even
are
unrelated to
transporting
mails.
In re Rapier,
the business
143 U. S.
Publishing
Morgan,
Lewis
Co.
How Chafee, 105-109, Speech” by Jr., pp. Zechariah See “Freedom being put editor “A fears out 233-234; p. also 199: mailing denial of the by the administrative business prospect prison subject jury than the to a much more privilegé uniformly prescribing that a statute similar been held trial.” It has public provisions observe or the order of a penalties for failure although hearing, after- full is a deterrent commission, made service judicial right review, amount denial potent as to so process taking property due of law in violation without operate as parte Young, 123, 147; Ex 209 U. S. Amendment. of the Fourteenth Wadley Ry. 340, 349; Tucker, U. S. Southern Co. v. Missouri Pacific Operating Love, Georgia, 651, 662; U. S. Oklahoma Co. Ry. Co. v. 331, 337. *21 1920. 432 Brandéis, J., dissenting. S. 255 IT. mail holding merely service Congress may deny to those whose privilege, which views be against public policy by shown deems in following by made 1912 the Solicitor General contention (see Brief, in Case pp. 46-47): Lewis of power argument against “A abuse is no possible its may we well existence, but as observe a denial the mails to a because of ownership its or the views held its illegal owners well be having as no re- thing lation to the in carried the mails unless the views are in the paper; but such views expressed expressed are if in paper Congress can. doubtless them, exclude just Congress as could now all exclude papers advocating lotteries, prohibition, anarchy, protective or a tariff if a majority Congress thought against public views policy.” (Italics original.)
(b) right given to all properly persons ciroumstaneed to distribute newspapers and periodicals through the mails is a substantial right. Hooverv. 81 Fed. McChesney, Rep. 472; Payne v. National Railway Publishing Co., D. App. C. of the same Itds nature as, indeed,' it is part of, carry on right business which this court has been
jealous
against
to protect
what it has considered arbitrary
Adair v.
-deprivations.
United States, 208
S. 161;
U.
v.
Coppage Kansas,
U. S.
v.
1; Adams
Tanner, 244
590; Allgeyer Louisiana,
U. S.
The contention
because
not a
but
right
mail is
pensatory, use of the second-class
or withheld at
granted
which
a privilege
misconception,
upon
an entire
pleasure
Congress, rests
a
The
of Glass.
to individual members
applied
when
its position
makes clearer
gratuitous
that it is largely
fact
it
right;
for
is
for
taxation.1
paid
of The
entry
Milwaukee
revoking
The order
(c)
not a
clearly
punitive,
mail was
Leader to second-class
of mail
except
as all classes
preventive measure;
,
states,
open
left
were, as the Postmaster General
second
Of
it had sufficient financial resources.
provided
directly,
large part,
trae, although
This is
the deficit
covered
net
service
the Govern
by profits on
mail. The
cost of this
first-class
equal
expenditures
of its
was,
War,
one-tenth
before the
ment
World
Publishing
Compare
Co. v.
postal purposes.
other than
Lewis
for all
Morgan,
288, 304, with
Abstract
the United
S.
34. Statistical
U.
p.
justification
non-compensatory
for this
(1911)
States
that education in its broad sense —intellectual
lies in
belief
service
through
information and of
activity fostered
the dissemination of
striving
self-governing
of a
free,
essential
life
to the
ideas —is
many
comparable to
ren
non-compensatory
service
This
people.
g.,
Government,
communication
e.
facilitation
dered
services,
passport
for all
port, canal,
or consular
commerce
only
none,
are
charges,
small
made.
judged by
furnishing public
must be
service
That a Government
callings,
on Freedom of
ordinary
public
see Chafee
standards of
Review, 186,
Law
p.
citing
Laski in 31 Harvard
Speech,
H. J.
Authority
State, p.
the Modern
Laski’s
TERM, 1920.
TJ.
S.
available,
class, being
the third
for
left
“mis
the three
matter,”
appropriate
was an
one
printed
cellaneous
distributing newspapers
cheapest.
was the
But the
publisher
distributing
additional cost
involved in
copies by
daily 9,000
third-class mail would be
very
one.
actual'and
serious
intended effect
merely
impose
very
fine, possibly
order was
heavy
transgression
day,
supposed
$150 a
past.
But
punishment
trial and!
crimes
ais
function which
III,
Article
Constitution,
cl.
entrusts to the
am not
judiciary.1
I
aware that
oiher civil ad
assuméd,
ministrative officer has
in any
ntry
cm
in which
prevails,
the common law
to icfiict
*23
punishment
citizen severe
for an
cime. Pos
infamous
sibly
court .would hold that Congress
not,
in
could
III of
view of Article
the Constitution,-
upon
confer
as a mere incident in the ad
of his department,
ministration
authority to issue an
operate only
could
order which
as
punishment.
a
See
Wong
United
Wing
States,
v.
(d)
guarantees
Sixth Amendment
in all
prosecutions the accused
enjoy
criminal
shall
right
trial
speedy
public
to a
an impartial
jury of the
district
State and
wherein the crime shall have been
and that he
committed
shall be confronted with the
against him.
witnesses
It is only in the
petty
case of
the jury may
offences that
be dispensed with. Schick v.
195 U.
States,
United
S.
68. What is in
very
effect a
imposed
fine
been
heavy
the Postmaster General.
imposed
It
because
has been
he finds that
the publisher
the crime
has committed
of violating
Act»
finding is based
And that
in part upon “representations
good
complaints
sundry
and loyal citizens”
1 Compare Harbor Commissioners v.
491;
88 Cal.
Co.,
Redwood
638; Langenberg
Co. v.
212 Ill.
etc., Ry.
Cleveland,
People,
v.
Decker,
Sims,
(e) punishment is, in Amer known, it so far as character; unprecedented is history. Every imposed by fine court legal ican Every prescribed by Congress' amount.1 fine definite declare that frequently limited amount. Statutes shall constitute continuation ian offence day’s each past imposed But offence here fine crime. new through indefinitely day perhaps each grow made to — having grown publication. Already, the life out say if the day, may aggregate, $150 the rate at maintained, $180,000 about for the has been circulation entered; and four months since years three order'was assumed in Waters- continues. It was growth (No. 1), Texas U. S. Oil v. Pierce Co. definite, if would violate fine, even excessive
an court, applying Possibly Amendment. Eighth United might again, as in Weems Amendment, Eighth *24 the "difference S. make clear States, 217 U. is that which exercised power unrestrained between to limitations formed spirit of constitutional under justice.” establish application made if a new suggestion is that the publishers mail made to second-class had been
entry
to
granted
is no bar
been
a certificate.
might have
sentence,
ap-
an
an
illegal
to set aside
that
proceedings
Bennett,
(Ind.) 37, 38;
State, 1
Compare
Blackf.
State v.
Morris v.
Car.)
50; Easterling
State,
(N.
Holmes, plication to Exécutive for might clemency have “ pardon. in a . resulted say' I again
In conclusion it cannot be —because strongly power too stressed here claimed is —that There is no power. question not war of its necessity to protect country insidious -domestic foes. Congress conferred upon To that end the Postmaster power General enormous contained in the Espionage entirely excluding from Act any mails letter, .of which picture or publication contained matter violating of that act. broad terms But it did not confer— General and the Postmaster concedes did not vague confer—the absolute authority practically deny any circulation publication which in his violate in likely opiniort future postal law. grant of that construed postal into a rate forty years passed ago statute never before suspected containing such implications. been I can- establishing postal not believe classifications in intended to confer upon authority issue the order here complained of. Constitution, under the If, may, officers administrative peace incident a mere time administration of be vested departments, with the power their to issue such there is little -this, orders as Bill substance in our of. every governmental and in extension of Rights functions civil danger liberty. links new Holmes, dissenting. Me. Justice advantage I have had the of reading the judgment in this my brother Brandéis case and I agree in súbstance first it his At view. seemed to if a pub- me that in terms should announce print lisher he proposed demand a should it must second-class rate treason the Postmaster General would authority be that have *25 CO. v. BURLESON. PUB. Holmes, me I convinced that was reflection has it. But to refuse nothing to rate do with wrong. question has mailable, I matter is and am whether question determine advance Postmaster cannot satisfied that the to going be non-mailable newspaper certain that a but the to it the use mails ground deny on that charged. says the statute shall postage that raté second- or revoke the may deny Of course the with the comply does not that publication class rate to brother statute, my it but as to conditions attached attached to the the conditions pointed out, Brandéis has justify be made to by the cannot second-class rate statute quibble. On the except by action the Postmaster’s use the mails right regulation other hand measure as a war peculiarities Act has no obscene, cases, earlier similar to that but are declared non- that violate act Papers documents. transmission mails the use mailable and only given power But made criminal. of them is forwarding papers is to refrain them the senders. Act to return when received 217, 230. Act 30, XII, c. Title 40 Stat. 1917, 15, of June could not c. 40 Stat. of May He should not newspaper certain order general issue a it it or certain thought likely he because be carried The United talk. treasonable would contain obscene but fit, it Post Office when give, up the .sees States is almost as much use of the mails on the carries it while tongues, our use right as the free, part speech to convince me that very strong language it would take give practically despotic such a intended Congress ever man., is no it has pretence There one its I limits of not consider the Therefore do done so. power. constitutional is to rate to the second-class
To refuse all the effect impossible circulation make OCTOBER TERM, 1920. *26 Syllabús. 255 ü. S. the order I supposed. have I repeat. IWhen ob- serve that only powers expressly given to. the Post- master General to prevent the carriage of unlawful matter of the present kind are to stop and to papers return al- ready existing and I posted, when notice that the con- ditions expressly attached to the second-class rate look only to wholly matters, different I and when consider the ease with which claimed could be used to very interfere with I rights, sacred am of opinion refusal to allow the relator the rate which it to, entitled was whenever its was carried, ground on the paper ought not to be carried all, unjustified by at statute and was a serious attack upon liberties that not even the war induced Con- gress infringe.
PAYNE, INTERIOR, SECRETARY OF THE ET AL.
v. UNITED STATES EX REL. NEWTON. OF APPEALS ERROR TO COURT OP THE DISTRICT OP THE
COLUMBIA. Argued 14, 1921. 123. 1920. Decided March No. December the issuance of 1. lapse years the date two After the receipt upon.a entry law, final under the homestead if no receiver's against validity entry pending, of the protest then contest Department required, 3,1891, of the Act March the Land Hoglund, for the land. P. 442. Lane v. patent S. 174. to issue 244 U. give entryman, provision is to after the purpose of this legal advantage patent title thus limited, time validity entry from controversy over any later transfer P. 444. courts. department to the suspended by patent is not the initiation after duty to issue proceedings department elapsed years have two