*1 OF v. COUNCIL SERVICE POSTAL STATES UNITED ASSOCIATIONS CIVIC GREENBURGH et al. 25, 1981 June April Argued 1981 Decided 80-608. No. *2 J., delivered Rehnquist, opinion of Court, in which BurgeR, J.,C. and Stewart, BlackmüN, and Powell, JJ., joined. Brennan, J., post, p. 134, J., post, p. 141, White, opinions filed concurring in the judgment. Marshall, J., post, p. 142, and Stevens, J., post, p. 152, filed opinions. dissenting Edwin S. Kneedler argued the for cause appellant. On the briefs were Solicitor General McCree, Acting Assistant Attor- ney General Martin, Deputy Solicitor Geller, General Peter Buscemi, William Ranter, and John C. Hoyle.
Jon H. Hammer argued the cause for appellees. With him on the briefs Payson was E. Clark, Jr.* Rehnquist
Justice delivered the opinion of the Court. We noted probable jurisdiction to decide whether United States District Court for the Southern District of
*Samuel J. Cohen filed a brief for the National Association of Letter Carriers, AFL-CIO, as amicus curiae urging reversal. Briefs of urging amici curiae affirmance by were filed Adam Yarmolinsky Stephen T. Owen Independent for al.; Sector et John B. Myer, Virginia David Webster, A. Taylor, E. Larson, Bichard
Bruce J. Ennis for the Piedmont Heights Civil Club, Inc., et al.
§
S. C.
18 U.
correctly determined
York
New
matter”
“mailable
unstamped
deposit
prohibits
Service, un-
States
United
approved
letterbox
cer-
rights
First
abridges
constitutionally
Y.
County, N.
in Westchester
associations
civic
tain
rests
Jurisdiction
S.U.
S. C.
(Coun-
Associations
Greenburgh Civic
Council
Appellee
groups
of civic
number
organization
umbrella
is an
cil)
Valley
Mill
Saw
Appellee
Y.N.
County,
Westchester
groups.
member
Council’s
one
Association
Civic
noti-
Y.,
Plains, N.
White
Postmaster
1976, the
June
In
Association
Valley Civic
Mill
the Saw
Chairman
fied
*3
local
messages
delivering
of
practice
association’s
pamphlets
notices
unstamped
by рlacing
residents
S. C.
of
violation
inwas
homes
private
of
letterboxes
provides:
1725, which
any mail-
willfully deposits
knowingly and
“Whoever
circulars,
accounts,
of
statements
such
matter
able
postage
no
matter, on
like
other
bills, or
sale
or
approved,
established,
box
any letter
paid,
been
delivery
receipt
for
Postal Service
by accepted
avoid
intent
any
route
mail
on
matter
mail
of
such
each
for
thereon, shall
postage
lawful
payment
$300.”
more than
not
fined
be
offense
mem-
Council
other
Association
Civic
Valley
Mill
Saw
practice
their
continued
they
if
advised
were
bers
homes
private
letterboxes
in the
notices
unstamped
placing
$300.
to exceed
in a fine
result
could
it
District
this suit
filed
appellees
February
In
relief
injunctive
declaratory and
for
con-
Appellees
§ enforcement
threatened
Service’s
their
inhibit
would
§of
enforcement
tended
communication with residents of the town of Greenburgh
thereby
would
deny them the freedom
speech
freedom of the press
secured
the First Amendment.
The District Court
initially dismissed the complaint
failure to state a claim on which relief could
granted.
F. Supp.
(SDNY
1978). On appeal, however, the Court
of Appeals for the Second Circuit reversed and remanded the
case to the District Court to give the parties “an opportunity
to submit proof as to the extent of the handicap to communi-
cation caused by enforcement of the statute in the area in-
volved,
the one hand, and the need for the restriction for
protection of the mails, on the other.”
In the proceedings on remand, the Postal Service offered general three justifications for § (1) 1725: pro- § 1725 tects mail revenues; (2) that it facilitates the efficient and secure delivery of the mails; and (3) that promotes privacy of patrons. mail More specifically, the Postal Serv- argued ice that elimination of § 1725 could cause the over- crowding mailboxes due to the deposit of civic association notices. Such overcrowding would in turn constitute an im- pediment to the delivery of the mails. Testimony was of- *4 fered that § 1725 aided the investigation of mail theft by restricting access to letterboxes, thereby postal enabling in- vestigators to assume that anyone other than postal a car- rier or a householder who opens a mailbox may be engaged in the violation of the law. On this point, a postal inspector testified that of the arrests made 10% under the external mail theft statute, 18 U. S. C. § 1708, resulted from surveil- lance-type operations which benefit from enforcement of § 1725. Testimony was also introduced that § 1725 has been govern- of thefts of investigation the in helpful particularly letterboxes.1 from checks benefit ment in- would testimony that introduced Service Postal The or eliminated either 1725 were §if expense additional cur If de- materials. association civic to inapplicable be to held association civic permit to expanded were in mailboxes livery suсh matter nonmailable of types other not circulars —but to obliged be would carriers materials —mail commercial in found items unstamped individual examine remove lawful. was there deposit their if determine to letterboxes amount larger with a confronted be also would Carriers to obliged be they would matter mailable unstamped resulting from time extra The mail. outgoing from separate nationwide aon computed activities, when these additional mail daily cost to substantially add would basis, delivery. for Service Postal by the offered justification final The protection significant provided statute that was Section customers. postal interests privacy for mails receive send to means customers postal provides to known becoming correspondence of their fear without community. members Postal Service that investigator testified a point, On days month or two one on the surveillance physical engage
tries investigator The delivered. are checks government numbers large that having people many more have would 1725 “we without § that testified This mailboxes. vicinity being in mailboxes access be would that we our surveillances hinder activity could type of has subject or ais a mailbox approaching we see person aif sure also investigator App. 160. being there.” reason legitimate con from calls “many phone receives Service stated the area seen been someone report may who citizens cerned possible at all area if respond to try to We mailboxes. of their also The Postal Ibid. may be.” individual who determine type doing a similar who police local assistance receives it is identifying who time “a difficult have would who of surveillance Id., . .” .. mailboxes into exactly going *5 The Postal Service also argued at trial the enforce- ment of § 1725 left appellees with ample alternative means of delivering their message. appellees can deliver their messages by either paying by postage, hanging their notices by doorknobs, placing their notices under doors or under a doormat, by using newspaper nonpostal or boxes affixed to houses or mailbox by posts, telephoning their constituents, by engaging person-to-person delivery in public areas, or tacking taping their notices on a post door or letterbox post, placing advertisements in local newspapers. A survey was introduced comparing the effectiveness of certain of these alternatives which arguably demonstrated that be- tween of the materials placed 70-75% under doors or door- mats or hung from doorknobs were found by the homeowner whereas approximately placed items 82% letter- boxes were found. This incidental difference, it was argued, cannot be of constitutional significance.
The District Court found the above arguments of the Postal Service insufficient to sustain the constitutionality of § 1725 at least as applied to these appellees. F. Supp. 157 (1980). Relying on the earlier opinion of the Court of Appeals, the District Court noted that the legal standard it was to apply would give the appellees relief if the curtailment of their interest in free expression resulting from enforcement of § 1725 substantially outweighed the Government’s interests in the effective delivery protection of the mails. The District Court concluded that the appellees had satisfied this standard.
The District Court based its decision on several findings. The court initially concluded that because civic associations generally have small cash reserves and cannot afford the ap- plicable postage rates, mailing of the appellees’ message would be financially burdensome. Similarly, because of the relatively slow pace of the mail, use of the mails at certain times impede would the appellees’ ability to communicate quickly with their constituents. Given the widespread aware- *6 120 the mails, the of celerity limited cost high the of
ness of of both notice judicial taken have could probably court findings. these means alternative the of none that found also court The “nearly as were Service Postal the suggested delivery of mail- approved flyers in association civic placing as effective meth- delivery [appellees’] the on restriction that so boxes; on burden a serious constitutes also alternatives such to ods constituents.” their with communicate ability to [appellees’] de- Court District the Accordingly, 160.2 at Supp., F. 490 the appellees applied as unconstitutional clared Serv- Postal the enjoined associations member Council’s them. toas it enforcing ice
II Holmes’ of Justice example good is a case present The logic.” of volume worth is history of page “a that aphorism suggested methods alternative the that reasoned Court District The civic the they result can inadequate because were Service Postal by the rain, snow. or wind, result aas damaged or being lost either notices under being placed flyers from the may prevent doors on Weatherstripping both notices civic the protection bags for plastic Use door. the organiza volunteer a small “relatively expensive consuming and time outside of materials Deposit Supp., at 160. F. . ." 490 .. tion be among residents resentment arouse as well problems litter cause methods Alternative home. one no that burglars informs cause be effective less are personally occupant reaching the depend on or called person chance mere depends on success their cause en found also court time. any given at home will visited necessary so appear “does not associations civic against of § forcement Private or anti-theft, anti-fraud to enforcement contributive substantial [appellees’] outweighs interest statutes Express their constitu communication economical expedient interest concluded above, District on Based Id,., at 163. ents.” [appellees] this burden imposing expression free cost to “the enforce need of its by the showing made outweighs mails.” protection delivery and effective promote statute Id.,
New York Trust Co. Eisner, 256 U. S. For only by review of the history of the postal system and present its statutory and regulatory scheme can the consti- tutional challenge to § 1725 be placed in its proper context.
By the early 18th century, posts were made a sover eign function in almost all nations they because were con sidered a sovereign necessity. Government without communi cation is impossible, and until the invention of the telephone *7 and telegraph, the mails were the principal means of com munication. Kappel Commission, Toward Postal Excellence, Report of the President’s Commission on Postal Organiza tion (Comm. Print 1968). Little progress was made in developing postal system in Colonial America until ap the pointment of Benjamin Franklin, formerly Postmaster at Philadelphia, as Deputy Postmaster General for the Amer ican Colonies in 1753. In 1775, Franklin was named the first Postmaster General the Continental and, Congress, because of the trend toward war, the Continental Congress undertook its first serious effort to establish a secure mail delivery organization in order to maintain communication between the States and to supply revenue for Army. the D. Adie, An Evaluation of Postal Service Wage Rates (American Enterprise Institute, 1977). Given the importance of the post to our early Nation, is not surprising that when the United States Constitution was ratified in Art. I, § 8, provided Congress the power “To establish Post Offices post and Roads” and “To all make Laws which shall be necessary proper” for executing this task. The Post Office played a vital yet largely unappre- ciated role the development of our new Nation. Stage- coach trails which were improved by the Government to post become roads quickly became arteries of commerce. Mail contracts were great assistance to the early develop- ment of new means of transportation such as canals, rail- roads, and eventually airlines. Kappel Commission, To- developing During this supra, Excellence, ward the across situated many citizens towas Post Office stage, Ibid. unity. national symbol visible most country years past over service postal growth than less from increased revenues Annual remarkable. been when in 1829 million $200 to to close million $40 the Cabinet. member became first General Postmaster as early exceeding revenues began expenditures However, pace with keep struggled structure postal as the 1820’s Because of country westward. of the growth rapid aver- raised West South to the delivery costs expansion, competition prevent To nationally. costs age Postal Act passed services, Congress express private and estab- mail letter competition prohibited monopoly.” “postal as the today referred what lished increasing problems deal recently, More management overall shortcomings in deficits Re- the Postal passed Congress Office, Post efficiency Post Act transformed This of 1970. Act organization corporation a Government-owned into Department Office *8 Postal Service The Service. Postal States the United called world, largest employers among today is pieces billion 106.3 700,000 nearing processing force work 11 Postmaster General Rep. of year. Ann. each mail largest user Nation’s is the Postal Service nonmilitary purchaser largest the Nation’s space, floor Its rural vehicles. 200,000 more than operating transport, city day and its miles million each over 21 travel alone carriers Adie, D. day. miles a million drive another walk carriers Its at 1. Rates, supra, Wage Evaluation of An Ann. $17 billion. 1980 exceeded in fiscal budget operating supra, at General, of the Postmaster Rep. detailed stat- has established Congress surprisingly,
Not vast country’s this govern scheme regulatory utory and the Domes- seq. et S. C. 401 system. See 39 postal incorporated has been (DMM), Manual Mail tic reference in the Code of Federal Regulations, 39 pt. CFR (1980). Under 39 U. S. §403 C. (a), the Postal Service is directed to “plan, develop, promote, and provide adequate and efficient postal services at fair and reasonable rates and fees.” Section 403 (b)(1) similarly directs the Postal Serv- ice “to maintain an system efficient of collection; sorting, and delivery of the mail nationwide,” and under 39 U. S. C. § 401 the Postal Service is broadly empowered to adopt rules and regulations designed to accomplish the above directives. Acting under this authority, the Postal Service pro- vided regulation that both urban and rural cus- tomers must provide appropriate mail receptacles meeting specifications detailed concerning size, shape, and dimensions. DMM 155.41, 155.43, 156.311, 156.51, and 156.54. By regu- lation, the Postal Service has provided also that “[e]very letter box or other receptacle intended or used for the re- ceipt or delivery of mail on any city delivery route, rural delivery route, highway contract route, or other mail route is designated an authorized depository for mail within the meaning of 18 U. S. C. 1725.” [§] DMM 151.1. A letter- provided box by a postal customer which meets the Postal Service's specifications not only becomеs part of the Postal Service’s nationwide system for the receipt and delivery of mail, but is also afforded the protection of the federal statutes prohibiting the damaging or destruction of mail deposited therein. See 18 U. S. C. §§ 1705, and 1708. It is not without irony that system elaborate regu- lation, coupled with the historic dependence of the Nation on the Postal Service, has been the causal factor which led to this litigation. For it is because of the very fact virtually every householder wishes to have a mailing ad- dress and a receptacle in which mail sent *9 to that address will be deposited by the Postal Service that the letterbox or other mail receptacle is attractive to those who wish to convey messages within a locality but do not wish to purchase the stamp pay or such other fee as permit would them to be trans- the “al- that extent To the Service. Postal the mitted to be found appellees the eschewed means” ternative so, in fact are District by the alternatives inadequate typical the that fact to the attributable part small in no it is the from communications written for looks first patron mail screen the inside or doormat, his under world” “outside the Notwithstanding letterbox. his but in door, front his of of rising cost the about complaints frequency increasing time the of. uncertainty the Service, and Postal using commu- delivery, written mailing and between passes which fact much sois Service Postal making use nication mail- for watching patron mail daily lives of our in his looking work from returning jobholder truck, our commonplaces are house, his enters he before letterbox receptacles appellees to the according Indeed, society. to efforts to alternative superior so are matter mailable for for alternatives other that all matter printed communicate postal for substitutes inadequate are matter of such deposit letterboxes. letter- provide however, regulations, delivery of for designated receptacles other boxes post- bears which exclusively matter for used “shall mail this merely reinforces Section 151.2.3 DMM age.” regulation. exceptions two minor least appear to be There mailed regularly newspapers “publishers provides 156.58 DMM copies only, holidays place national Sundays and may, on mail second-class route highway contract rural holiday in the issues Sunday or be removed copies will understanding that subscribers, with the boxes are scheduled.” mail deliveries day on which next boxes before by en revenues mail protect designed exception is particular This papers. delivery of their for mail second-class use newpapers to couraging letterboxes papers their deliver distributors exception allows service days mail when on certain conditions certain only under only which mail requirement to the exception A second unavailable. 156.4, DMM is contained in letterboxes placed may be postage bears in letter unstamped mail to leave customers rural authorizes money postage. they also leave when boxes
regulation by prohibiting, under pain of criminal sanctions, deposit into a letterbox of any mailable on matter which postage has not been paid. specific prohibition con- tained in § 1725 also repeated in the Postal Service regula- tions at DMM 146.21.
Section 1725 was enacted in 1934 “to curb the practice of depositing statements of account, circulars, sale bills, etc., letter boxes established and approved by the Postmaster General for the receipt or delivery of mail matter without payment of postage thereon by making this a criminal of- fense.” H. R. Rep. No. 73d Cong., 2d Sess., (1934). Both the Senate and House Committees Post Offices and Post explained Roads the principal motivation for § 1725 as follows:
“Business concerns, particularly utility companies, have within the years last few adopted practice having their circulars, statements of account, etc., de- livered private messenger, and have used as recep- tacles the letter boxes erected for the purpose of holding mail matter and approved by the Post Office Depart- ment for such purpose. practice This is depriving the Post Office Department of considerable revenue on mat- ter which would go otherwise through the mails, and at the same time is resulting in the stuffing of letter boxes with extraneous matter.” Ibid.; S. Rep. No. 742, 73d Cong., 2d Sess.,
Nothing in any of the legislation or regulations recited requires above any person to become a postal customer. Anyone is free to live in any part of the country without having letters or packages delivered or received by the Postal Service simply failing provide receptacle for those letters packages statutes regulations re- quire. Indeed, provision for “General Delivery” in most post offices person enables a to take advantage of the fácil- having provided ever without ities regula- conforming premises his near at or receptacle *11 regu- and legislation the What Service. Postal the tions re- to do wish who persons those require do lations do so or business home their their mail deposit and ceive Service. Postal the control direction and the under III the recognized century, the last early as As concerning the matters in act to Congress power of
broad posts: post-offices 'to establish Congress in vested power
“The the since construed, practically has been post-roads’ and merely not to authorize government, of the foundation shall the mail which over routes of the designation the docu- other and letters offices where the carried, be forwarded, or distributed to be received be shall ments necessary all measures mail, and of the carriage the but de- prompt the transit, and speedy safe and its to secure de- legislation validity of The contents. of its livery form, weight and its carried, be should scribing what subjected, be it should to charges which the by Con- possessed power The . .. questioned. been never System entire the regulation the embraces gress be shall what designate right country. what determine right necessarily involves carried Jackson, S.U. parte Ex be excluded.” shall by Art. conferred power broad However in a man- by Congress exercised of course may not be, pro- press or of speech freedom abridges ner In this to the Constitution. First Amendment by the tected apрellees’ assertion with confronted we are case with- right deposit, them the guarantees First Amendment in flyers circulars, and notices, postage, their payment out letterboxes which have been accepted as authorized deposi- tories of mail the Postal Service.4
In addressing appellees’ claim, we note that we are not here confronted regulation which any way prohibits in- dividuals from going door-to-door to distribute their message or which vests unbridled discretion in a governmental official to decide whether to permit the distribution to occur. We are likewise not confronted with regulation any way restricts appellees’ right to use the mails. The appellees may mail their civic notices the ordinary fashion, Postal Service will treat such notices identically with all other mail without regard to content. There is no claim the Postal Service treats civic notices, because of their any content, differently from way it treats any *12 other mail it processes. if Admittedly, appellees do choose to their mail notices, they will be required to pay postage in a manner identical to other Postal Service but patrons, appellees do not challenge imposition of a fee for the pro- services by vided the Postal Service.5 reject appellees’ We additional assertion raised below that 18 U. S. C. applied cannot be to them because it was intended to bar the deposit of only. commercial materials The statute on its face bars the deposit “any of mailable matter” (emphasis added) without proper рost
age, and,
fully
as
explained
more
by the District Court
in its initial
opinion rejecting
contention,
this
legislative
history makes clear that
Congress
both
and the Postal Service understood the
apply
statute would
to noncommercial as
well
commercial materials.
Appellees’ does depоsitory,” an “authorized designated once box, “public into undergo a transformation time the same Amend- the First to nature limited of some forum” his- neither There is comers. all access guarantees ment characterization for the support nor constitutional torical essential an are Letterboxes forum. as a letterbox receipt delivery and system for nationwide part present case any relation to if matter, little which has obscene tions of Justice are obscene. appellees’ circulars one contends because no Justice opinion of dissenting however, not refer does BreNNAN, agree “I said Holmes Justice (with to which respect in Burleson Brandeis Brandéis 436). There, Justice S., at with his view.” 255 in substance the mails relationship of analysis of the detailed a more goes into *13 Amendment, and states: prohibitions of First news distribute to course, altogether decline might, of “The Government service; of the cost than carry any at less might decline to or it papers; all to press, since thereby abridge the freedom would not and it Id,., open.” left transportation would means papers other done: here has just Postal what us that to It seems seek appellees leaflets which distribute declined no means it has appellees simply insisted mailboxes, but has deposited to have have class would in its any circular other postage pay same Justice nor Brandeis of Justice the dissent Thus, neither to bear. position. Brennan’s supports Justice Burleson Holmes mail, since access them has been unlawful ex- cept under the terms and conditions specified by Congress and the Service. As such, it is difficult accept ap- pellees’ assertion that because it may be somewhat more efficient to place their messages in letterboxes there is a First right to do so. The underlying rationale ap- pellees’ argument would seem to foreclose Congress or the Postal Service from requiring in the future that all letter- boxes contain locks with keys being available only to the homeowner and the mail carrier. Such letterboxes are pres- ently found in many apartment buildings, and we do think their presence offends the First Amendment to the United States Constitution. Letterboxes which lock, how- ever, have the same effect on civic associations that wish access to them as does the enforcement § 1725. Such letter- boxes also accomplish the same purpose is, they pro- —that tect mail revenues while at the same time facilitating the secure and efficient delivery of the mails. We do not think the First Amendment prohibits Congress from choosing to accomplish these purposes through legislation as opposed to lock and key.
Indeed,
it is difficult to
of any
conceive
why
reason
this
Court should treat a letterbox differently for First Amend-
ment access purposes than it has in
past
treated the
military
base
Greer v. Spock,
This because public forum is a letterbox argues that a Brennan Justice ‘basically not postage is without matter mailable deposit of “the mere e., used, i. a letterbox activity’ for the ‘normal with incompatible’ delivery mail proper postage or with matter mailable deposit of specifi are the letterbox and contrary, the mails On the Service. surely ideas, and thus ahd of information communication cally for the used Amendment of First exercise for the appropriate public a forum constitute such manner restrictions time, place, and subject reasonable rights Post, at 137-138. . .” . . in 1725 embodied § those instru an simply because analysis assumes Brennan’s Justice information,” it of ideas for communication mentality “is used support for such no provide Our eases forum. public thereby a becomes at Fort cafeteria in a board Certainly, bulletin a sweeping proposition. a ideas,” of information communication used for “specifically Dix is the street are than forum” “public amore is no board a bulletin such but military base. same at the so not to found lots parking comers advertising space Likewise, (1976). Spock, S. 424 U. v. Greer Heights is city of Shaker in transportation public available made ideas,” but information communication for the used “specifically “рublic space into transform sufficient was not alone fact City Shaker Lehman purposes. Amendment First forum” recognized fact, Justice In Blackmun Heights, 418 U. that: Lehman hospitals, display cases contrary, to hold to we “Were public facilities and other compounds, military buildings,
libraries, office pam- every would-be open to Hyde Parks immediately become would Id., require.” does the Constitution This politician. phleteer 304. at we think opinion, length in our at have we stated the reasons For incompatible wholly are activities First appellees’ delivery of and efficient the safe system for a nationwide maintenance serves letterbox the role the system and history mail. conclusion, and even BreNNAN Justice supports system within is advanced interest” governmental “significant acknowledges that Post, by 1725. imposed restriction
131
laws
it
granted
concluded
too much discretion to pub
lic officials as to who might and who might not solicit in
dividual homeowners, or which too broadly inhibited the ac
persons
cess of
to traditional First Amendment
forums such
as
public
streets
parks.
See,
g.,
e. Village
Schaum
of
burg v. Citizens
a Better Environment,
IV
1725 in
to examine
for us
unnecessary
thus
It
restriction
and manner”
place,
“time,
aof
context
to above.
referred
forums”
“public
traditional
use
reasonable
validity of
recognized
long
This
manner,
so
forum
on such
regulations
place,
time,
significant
content-neutral,
serves
regulation
long
alternative
adequate
open
leaves
interest,
governmental
*16
Edison
g., Consolidated
e.
See,
communication.
channels
;
(1980)
530, 535-536
Comm’n,
S.U.
447
Service
Public
Co. v.
93
85,
S.
431
Willingboro,
Associates, Inc. v.
Linmаrk
Con
Virginia Citizens
v.
Board
Pharmacy
Virginia
(1977);
v.
Grayned
(1976);
771
748,
Inc.,
Council,
425 U. S.
sumer
Hamp
New
Cox v.
(1972);
104
S.
Rockford, 408 U.
City of
not
is
a letterbox
since
But
S.
shire, 312 U.
569
analysis
the elaborate
forum,”
“public
traditionally
a
such
unnecessary.
think,
was, we
District
in
engaged
con
on the
based
is
regulation
governmental
if a
sure,
To be
scru
must be
that action
message,
or the
speech
tent
not
communication
ensure that
carefully to
more
tinized
“
disapprove
officials
public
'merely because
prohibited
been
”
Public
v.
Co.
Edison
Consolidated
speaker’s view.’
Mary
v.
Niemotko
Comm’n,
quoting
supra, concurring
J.,
(Frankfurter,
(1951)
land,
340 U.
question
no
simply is
there
this case
But in
result).
of content.
the basis
speech
regulate
does
“time,
regulation
a
between
line
analytical
While
may be
rights
First
in which
manner”
place,
question
forum, and the
in a traditional
exercised
owned
property
or real
personal
piece
particular
a
whether
forum”
“public
a
fact
government
or controlled
a work
nonetheless
line
think
edges, we
blur at
exercising
may, Congress
think
likewise
We
one.
able
system,
operate
national
authority
develop
its
mind, and
of cases in
the generality
legislate
properly
should not
put
to the test of defending in one township
after another the
constitutionality
a statute under
tra-
"time,
ditional
place, analysis.
manner”
This Court has
previously acknowledged that
“guarantees
of the First
Amendment have never meant 'that people who
want
prop-
agandize protests or views have a constitutional
right to do
”
so whenever and however and
they
wherever
please.’
Greer
Spock,
v.
V From the time of the issuance of the first postage stamp in this country at Brattleboro, Vt., in the fifth of decade the last century, through the days of the governmentally sub- sidized “Pony Express” immediately before the Civil War, through the less admirable era of the Star Route Mail in Frauds part latter of that century, Congress ac- tively exercised the authority conferred upon by the Con- stitution “to establish Post Offices and Post Roads” and “to make all laws shall be necessary and proper” for exe- this cuting task. While Congress, no more than a suburban township, may not its own ipse dixit destroy “public forum” status of streets and parks which have historically been public forums, we think that for the reasons stated a letterbox properly not be analogized to streets and parks. nor the enactment that neither purposes our enough for It is way con- to the any in geared 1725 was of § enforcement in letterbox. placed to be sought message tent accordingly Court is the District judgment
Revеrsed. judgment. concurring in Brennan, Justice opinion. not the Court’s in but judgment, in the I concur § whether determining errs in I believe appellees’ on restriction manner place, and time, reasonable urged rights, Amendment First of their exercise con- instead on judgment its resting Government, and view, my In forum. not a a letterbox clusion the Court’s application improper rests on an conclusion na- as a of the mails role the historic ignores precedents of communication. medium tional provides:
Section 1725 any mail- deposits willfully knowingly “Whoever sale accounts, circulars, as statements able such matter has been postage no matter, on which like bills, or other accepted established, or approved, box any letter paid, mail delivery receipt by the Postal payment with intent avoid mail route any matter on each such thereon, shall for offense postage of lawful 18 U. C. 1725. $300.” than not more fined First measure the burdens some Unquestionably, § to “communicate who seek appellees rights issues, civic information local ideas, positions constituents,” delivery of circulars door-to-door. through their Struthers, City (1980). See Martin F. Supp. *18 appel- requires (1943). The statute S. 146-147 141, 319 U. sys- postal to the to obtain access postage to pay lees either deposit they do, to they are unable assert tem, their materials places other than they the letterbox, which contend less effective deposit than in the letterbox.
Despite the burden on appellees’
rights,
conclude that the
statute
constitutional because it is a reasonable time, place,
regulation.
manner
See Schad v. Mount Ephraim, 452
74-77
61,
(1981);
Consolidated Edison Co.
Public
v.
Service Comm’n,
Second, the burden expression advances a significant governmental preventing loss of mail revenues. interest — The District Court’s finding “failure to enforce statute as to [appellees] would result [not] a substantial loss of revenue” be true, 490 F. Supp. (emphasis added), but that conclusion overlooks the obvious cumulative effect that the District Court’s ruling would have if applied across the country. Surely, the Government is correct when argues the Postal Service “is required make case-by-case showing of a need for compelling the incremental revenue to be realized from charging postage to each organi- zation or individual who desires to use system to engage in expression protected by the First Amendment.” Reply Brief for Appellant 8.
Third, there are “ample alternative channels for communi- cation.” Consolidated Edison Co. v. Public Comm’n, 447 U. S., Appellees may, example, place their circulars under doors or attach them to doorknobs. Simply recipients because may find of materials left the let- 82% terbox, only but of materials otherwise left at the 70-75% residence, is not a sufficient reason to conclude that alterna- *19 136 Ibid.; ante, see at “ample.” delivery means of are not
tive 120, n. 2.
II
time, place, anаlyze
1725 as a
The Court declines
is
that a letterbox
Instead,
it concludes
manner restriction.
Ante,
states that
forum.
at 128. Thus
Court
public
not a
why
any reason
this Court
“it is
to conceive of
difficult
differently
Amendment
for First
a letterbox
should treat
mili-
past treated the
it has in the
purposes than
access
(1976),
jail
tary
Spock,
Greer v.
A question For forum is whether analysis, crucial “[t]he expression basically incompatible the manner of activity of time.” particular place particular normal City Grayned Rockford, supra, at 116. We have often v. “ States Justice Holmes’ observation 'United quoted may give up fit, the Post but while it car- Office when sees use of free part it on the the mails is almost much a ries v. right tongues as the use our ....’” Blount speech Rizzi, (1971), S. 400 U. and Lamont v. Postmaster General, ex (1965), quoting 381 U. United States
rel. Milwaukee Social Democratic Pub. Co. Burleson,
U. S. 407, 437 (1921) (Holmes, J., dissenting).1 Our cases
have recognized generally that public properties are appro
priate
fora
exercise of First
rights.
See,
g.,
e.
*20
Tinker v. Des Moines School District,
The conclusion, “streets expression confirms this Just use for the immemorially held trust been parks . . . have pur mind, used have been and, out of time citizens, communicating thoughts between poses assembly, CIO, 307 U. Hague v. public questions,” discussing days early from the too the mails (1939).3 so communication. role in a crucial Republic played have as a of the mails acknowledges importance itself forum for communication: impossible, communication
“Government without *21 telegraph, telephone until of the and the invention . . communication. . principal means mails were the Postmaster Gen- In the first 1775, Franklin was named and, Congress, because eral Continental war, Congress undertook toward the Continental trend delivery its first to establish a secure mail serious effort communication be- organization order to maintain Army.” revenue for the supply tween the States and to Ante, added). 121 (emphasis at points played out Post
The Court further Office “[t]he Nation,” . development a vital . role in the of our new . ibid, (emphasis added), currently processes and “106.3 billion ante, pieces year,” variety com- of mail each at munication transported ranges the Postal Service from ridiculous, sublime to the newspapers, magazines, includes books, films, any type expression and almost form imaginable. Kappel Commission, See Toward Postal Excel-
3 generally Gibbons, Hague Retrospective, See v. CIO: A 52 N. Y. U. L. (1977). Rev. 731
139 lence, Report of the President’s Commission on Orga- 1968). nization (Comm. 47-48 Print Given “the historic de- pendence of ante, the Nation on Postal Service,” 123, at is extraordinary the Court reaches the conclusion that the letterbox, a critical link system, in the mail pub- is not a lic forum. only
Not misapprehend does the Court the historic role the mails have played national communication, but it inapposite relies on cases to its reach result. Greer Spock,4 v. Adderley Florida,5 v. and Jones v. North Carolina Prisoners’ Union,6 all rested on the inherent incompatibility between Spock, In Greer pursuant v. (1976), regulations U. S. to base political candidates permission were denied campaign to distribute litera political ture and to hold meeting military a upholding on a In base. challenged regulations, specifically unique the Court relied on the function military soldiers, provide forum,” installations “to train not. “ id., 838, at power and the commanding historic of a officer ‘to exclude ” command,' civilians from the area Ibid., quoting of his Workers Cafeteria McElroy, v. 367 U. S. 5 Adderley In Florida, (1966), trespass 385 U. upheld the Court jailhouse convictions of students demonstrating property, who were relying principally purpose jails, security purposes,” on the “built for id., capitol grounds,” open unlike “state are public. Ibid. Union, (1977),
6 In Jones v. North Carolina Prisoners’
rights City Shaker v. Lehman to occur. was which the exercise captive audience on the measure large Heights7 rested transportation part on the 304, and S., 418 at doctrine, U. id., cases, These there- 303. city at system, bus purpose that a conclusion Court's support for the no fore, provide public not a forum. letterbox is
B forum, public a is not a letterbox determined that Having analysis. Surely, how- its inexplicably terminates forum does public a is not property mere fact ever, the on restrictions unwarranted impose government not free acknowledges that Court itself rights. Amendment The First Congress in by exercised “may not ... power press speech or of abridges the freedom a manner to the Constitution.” First Amendment by the protected pub- does not constitute Ante, property where at Even must content-neutral regulation that is forum, lic government time, See, g., e. and manner. place, as to still be reasonable 50, 63, Theatres, Inc., 427 S. Young U. v. American Mini Willingboro, Associates, Inc. v. n. Linmark (1976). 18 Cf. Pharmacy Virginia Citi- Virginia Board S., 92-93; U. Inc., Council, S. zens Consumer (1974), City the Court Heights, 418 U. Lehman v. Shaker In only advertising buses, four Justices upheld political but a ban on city system a First advertising space in is not transit concluded system They transit reached that result because the forum. political speech, minimize chances on “to sought, its limitation imposing upon a favoritism, abuse, appearance of risk judg Id., Douglas in the at 304. Justice concurred captive audience.” right petitioner no constitutional ground that had the narrow on ment captive message upon a audience. Joined Justices his to force ground that “the I dissented Powell, Stewart, Marshall, expression city for the dissemination of information a forum created displayed service accepted and commercial when ideas Id., rapid transit vehicles.” at 310. its advertisements on *23 restriction in § 1725 could have such an effect on First Amend- rights ment for does Justice Marshall —that —and it should be struck down. The Court, therefore, cannot avoid analyz- ing time, § aas place, and manner restriction.8 I—i
h-H hH I would conclude, contrary to the Court, that a letterbox forum, but, nevertheless, concur in judgment because conclude that 18 U. S. C. § 1725 is a time, reasonable place, and manner restriction on appellees’ exercise of their First Amendment rights.
Justice White, concurring the judgment.
There is doubt no system that the postal is a Gov- massive, ernment-operated communications facility open to all forms of written expression protected by the First Amendment. No one questions, however, Government, operator may system, impose a fee on those who would use the system, even though the user fee measurably reduces ability of persons various or organizations to communicate with others. Appellees do argue may they use the mail for home delivery free of charge. A justifi- self-evident cation for postage is Government insist that those who use the mails contribute to the expense main- taining operating the facility.
No different answer is required in this case appel- because lees do not insist on free delivery home only desire to use part system, the mailbox. The Government’s inter- est in defraying its operating expenses remains, and it is clear 8Even if the letterbox were purely characterized as private property being regulated Government, property rather than incorporated has become into the “Postal system Service’s nationwide receipt delivery mail,” ante, 123, subject would still be to time, place, analysis. and manner See, g., Young e. v. American Mini Theatres, Inc., 427 U. n. 18 *24 bur- a materials is unstamped with mailbox stuffing the that system. on the den those situations suffice even would justification
This the prevent putative totally fee will the insisting on where correspondents, with intended communicating his from user means available alternative e., there would adequate be no i. no for reason, For this if recipients. the intended to reach re- the inquire whether appropriate it I not find other, do or manner place time, a reasonable here is issue striction that the apparent is however, it that, Besides regulation. satisfying necessarily depend not does validity of user fees requirements. or manner place typical time, system whether the inquiry the bootless is Equally obviously the fee, pay will who For all forum. public is a may charged, be fee a user whether is only question the and is, case. of this the circumstances and proposition general as a I con- charge, a fee valid the is sure quite amI Because judgment. in the cur dissenting. Marshall,
Justice Congress granted of the Constitution Framers the When Roads,” Post Offices Post authority establish “[t]o Gov- Federal powers they placed 7, I, cl. 8, Art. Protect- service. communication national a behind ernment re- efficiency service of that viability and ing the economic objective. congressional important legitimate a mains I but ground, on that defended involves statute case This in- purpose achieving unnecessary for it is believe to communication. underlying commitment with consistent anyone prohibits C. § statute, 18 U. challenged any matter” “mailable unstamped knowingly placing for receiv- Postal States by the United approved box Vio- Service. by carried material depositing ing or of- $300 each up to fines punished lators claimed, and associations civic case, appellee In fense. unreason- criminal statute that this agreed, the District Court expression. of free right Amendment their First restricts able theory that its on the today upholds the statute The Court property on residential situated focus—-the letterbox —is ac- guarantees First forum to which the public result, analysis, I to the exception cess. take prerogatives over lose their premise private persons they for mail service. supply own and letterboxes if no assumption the Court’s disagree with First, Amendment chal only First forum involved, content- regulation are whether lenges to be considered ante, *25 reasonable, n. ante, at and based, 132-133, see which, public forum, were Even if the Postal Service the statute advanced I do not suggest, accept, Ias later expression. free of abridgment as an challenged is a law its aid deposit to carry to their own circulars seek Appellees use them who private persons by owned letterboxes them forbidding criminal statute challenge the to mail, receive then, is whether question, private letterboxes. this use enjoyed rights any First this statute burdens this burden whether If it must be determined so, appellees. substan interest governmental significant justified Co. Edison See Consolidated by the statute. tially advanced Gray (1980); 530, S. Comm’n, 447 U. v. Public (1972); Cameron 104, S. Rockford, 408 U. City ned v. Ala Thornhill v. (1968); Johnson, 611, 616-617 390 U. v. S. (1940). 88, 104-105 bama, 96, S. 310 U. Amend- enjoy the First civic associations appellee
That their doubted; both cannot expression of free right ment First core of the within the fall practices and their purposes con- long recognized haveWe protections. Amendment’s to appellees do, seek, groups rights stitutional in- and civic issues, on local ideas, positions “communicate 1 through handouts written their constituents” to formation 157, 162 Supp. F. 1 490 thereby promote to the free discussion of governmental
affairs so central to our democracy. See, e. g., Martin
City
v.
Struthers, 319 U. S. (1943);
146-147
Schneider v.
State,
Countervailing public interests, such as protection against fraud preservation privacy, warrant some limita tion on door-to-door solicitation and canvassing. we But have consistently held any such restrictions, be valid, “ must be narrowly drawn 'in such a manner as not to intrude ” upon the rights of free speech.' Hynes Mayor *26 v. and Council Borough Oradell, 425 U. S. of 610, 616 (1976), of quoting Thomas v. Collins, 323 U. 516, S. 540-541 (1945). Conse I quently, agree cannot with the Court's ante, conclusion, at 132-133, that we need not ask whether the against ban placing such messages in letterboxes is a restriction on appellees’ free expression rights. Once appellees are at the doorstep, only § 1725 restricts them from placing their in circulars the box provided by the resident. The District Court determined after an evidentiary hearing only by that placing their circu lars the letterboxes may appellees be certain their messages will be secure from wind, rain, or snow, and at the same time will alert the attention of the residents without
145 notifying burglars would-be no one returned home doorways items from stoops. Supp. 157, remove or 490 F. (1980). 160-163 The the de- court concluded thаt costs and lays of put appellees’ mail service the mails out of reach, alternatives, placing that other as in door- such their circulars Id., ways, satisfactory.” are “much less at 160.2 We have similarly past in the First recognized placed the burden rights when alternative of commu- the channels nication likeli- cost, autonomy, involve more less and reduced Associates, reaching hood of the intended audience. Linmark Willingboro, 85, (1977). Inc. v. S. U. ground no to disturb of see these factual determinations
the And, facts, trier of fact. these given heavy bears a burden to show legitimate that its interests are substantially appellees’ served the restriction of free- dom of expression. g., Hynes e. v. Council See, Mayor and Borough Oradell, supra, Konigsberg v. 617-618; California, 36, State Bar v. (1961); 49-51 Marsh Alabama, Although majority U. S. findings clearly does rule that the trial er- court’s were set them roneous, required aside, would the Court persuasive finds interests asserted the Postal Service defense of the statute. Those mail “protecting] interests — revenues while at the same time facilitating the secure and delivery ante, mails,” efficient at 129—are both indeed legitimate important. But mere assertion of impor- an legitimate satisfy interest does not tant, requirement restriction challenged specifically precisely serve Hynes Mayor See Borough end. and Council 2Indeed, litigation appellees record in this indicates that circulated less information using when inhibited from the letterboxes. Plaintiffs’ Interrogatories, Answer to Record, Written 8, pp. No. 6-7. Doe. ¶ practical applying effect of the statute in residential communities preclude Scouts, Boy Scouts, charities, would Girl neighbors, and others leaving place likely *27 messages. for
146 536, Louisiana, 379 Cox v.
Oradell, See also supra. uniformly and applied be must (restriction (1965) 557-558 nondiscriminatorily). Service Postal that the concluded Court the District
Here, [ap- as to statute the to enforce failure “has not shown revenue, or loss of substantial in a would result pellees] protect ability government’s in the reduction significant mail theft, mail prosecuting by investigating mails the delivery service.” mail private unauthorized fraud, or I can proof, failure of this light In 163.3 at Supp., P. Federal Government that the conclusion the Court’s join "community resi to inform ability appellees’ curtail may thus fear, threat decision, civic matters. That local dents about expression, free belief that from this Court’s departure ens every nearly condition, indispensable matrix, the “the Connecticut, S.U. v. Palko freedom,” other form govern such unnecessarily before yield must not (1937), ex efficiency. Certainly, free economy mental interests as intruding the where yield here, not have to should pression exceptions created As the enforced.4 been has seldom statute security mails ensuring the interest The Government’s 1708. To extent directly by 18 U. S. C. §§ more advanced overcrowding efficiency problems are attributed security and larger simply requiring resolved letterboxes, problem could boxes. significant the District revenues, it mail protection of As given appellees' using prohibitive, mails found cost it useful for delivery great make delays too in mail budgets, and the compliance appellees’ Apparently, Supp., 490 F. appellees’ needs. Although pro- mail not increase revenues. 1725 would S. C. with 18 U. of national obviously take form must tection nondiscriminatory terms application, a statute’s having broad regulation, Murdock speech is demonstrated. infringement of where not save 105, 115 319 U. S. Pennsylvania, Postal Service knew argument at oral Appellant conceded attempted prosecution under statute. only one no convictions prosecution because was unsuccessful Arg. 15. That Oral Tr. of dismissed depositing vague prohibition on impermissibly Court found the District
147
demonstrate,5
Service itself
the statute’s as
by the Postal
by
less intrusive
purposes easily could
advanced
serted
permit
alternatives,
nondiscriminatory
requirement
such as a
unstamped circulars in letterboxes.6 There
depositing
constitutionally
I
18
S.
1725
defective.
fore,
§
would find U. C.
case,
from
must differ with
apart
Even
the result
public
concept
applica-
use of the
forum
to avoid
the Court’s
threshold bar-
tion of the First Amendment. Rather than a
of
reaching
that must
the terrain
rier
be surmounted before
concept
forum has more
Amendment,
public
First
governmental
locations to
properly
open
been used to
varied
subject
the con-
equal public
expression,
access for free
to
time,
necessary
preserve
on
or manner
to
place,
straints
g., Grayned
City
Rockford,
E.
v.
governmental
function.
Chicago
S.,
public school);
115-117
around
(area
408 U.
at
Military
(CA7)
F.
Project
Chicago,
(city
v.
508
2d 921
Area
cert,
Albany
denied,
(1975);
421
S. 992
airport),
U.
Welfare
Wyman,
F.
Organization
(CA2) (wel-
493
2d 1319
Rights
v.
cert,
nom.
waiting room),
office
denied sub
Lavine v.
fare
Organization,
Wolin cert, (1968); Reilly S. 940 denied, 393 U. authority), (port courthouse). 1974) (rotunda (RI Supp. Noel, 384 F. Heights, City Shaker Lehman v. generally See Public Speech Fora Americana: Stone, (1974); 298, 303 ap- decisions (1974). These 233, 251-252 Rev. S. Ct. Places, Amend- the First concept secure forum ply *29 by governmental unfettered expression commitment ment’s audience, or occasion. scope, proper of its designation ap- my conclusion support precedents these believe The claim. Amendment First in their prevail should pellees to embrace this Court led the mails function of traditional States United ‘“[t]he Holmes’ statement Justice it carries fit, but while it sees when the Post Office give up as speech of free part as much mails is the use of the it on Postmaster Lamont v. tongues right to use our ....’” ex States United (1965), quoting General, 301, 305 381 U. S. Burleson, 255 Pub. Co. v. Democratic rel. Milwaukee Social its Given J., dissenting). (1921) (Holmes, 407, S. 437 commu- of written purveyor traditional use pervasive be viewed may properly I believe, Service, nication, the Postal easily distinguishable on relies forum. The Court public as a Postal contrary For the conclusion. in reaching cases communication, facilitate very is to purpose Service’s and mass military bases, jails, from the differentiates it surely ante, by Court, relied discussed in cases transportation School Independent Moines Tinker v. Des 129-130.7 Cf. at 7 letter the conclusion that supporting than Rather 129-130, majority, ante, at public forum, the cited not a cases box is First Amend The Court resolved two point in the direction. other fact Union, Prisoners’ 433 U. S. North Carolina in Jones v. issues ment pris rights retained convicted scope of associational (1977): the 119 analyzed right, any, mail rates. Court oners, if to bulk and their not principle prison, “an inmate does that while under the both issues rights his status that are ‘inconsistent with those First retain objectives legitimate penological corree- prisoner or with the as a
149
Dist., 393
S.U.
503,
(1969). Drawing from the excep-
tional cases,
speech
where
has been limited for special reasons,
does
strike me as
analysis.
commendable
The inquiry in our public forum cases has instead asked
whether "the manner of expression is basically incompatible
”
system.’
tions
Id.,
129,
quoting
Procunier,
Pell v.
417 U.
817,
S.
(1974). No
principle
such
apрlies
appellees.
Furthermore,
public
analysis
forum
in Jones asked whether exercise of the First Amendment
rights would be incompatible with
purposes
of the governmental
facility,
question
answerable
negative
in the
in this ease.
In
Spock,
Greer v.
828,
U. S.
(1976),
the Court concluded that
Fort Dix
public
was not a
forum due to
military
its
purpose and the
“
power of
'the commanding officer summarily to exclude civilians from
”
the area of his command’
(quoting
Workers v. McElroy,
Cafeteria
U. S.
893 (1961)). At the
time,
same
emphasized
Court
political campaign literature could still be distributed at the base unless
posed
danger
a clear
to troop discipline and loyalty, 424
S.,U.
at 840.
Thus, the base
“public
remained a
forum” at least for written communi
plurality
cation. A
City
Lehman v.
Shaker Heights,
418 U.
303-304 (1974), found
city
system
transit
not a
*30
forum because its advertising space was incidental to its primary commer
cial transportation purpose.
plurality
nevertheless recognized that the
present
state action
necessitated a balancing analysis of the First Amend
ment interests of
seeking
those
advertising space and the interests of the
government and the users of the
system.
transit
Further,
plu
both the
rality and Justice Douglas, in
separate
his
opinion concurring in the re
sult, relied on an analogy to the mass media which has no obligation
under
First Amendment to broadcast or print any particular story or
Id.,
(opinion
advertisement.
at 303
of Blackmun,
J.);
id.,
(opin
at 306
ion Douglas, J.).
of
In contrast, the Postal
obliged
Service is
accept
to
all mailable
Finally,
matter.
Adderley
in
v. Florida,
151 tion which civic groups or individuals wish to deliver to private receptacles.9 these
I remain troubled the Court’s effort to transform the letterboxes entirely into components governmental en- terprise despite their private ownership. Under the Court’s reasoning, Postal Service could decline un- deliver mail the recipients less agreed open their to the letter doors carrier —and then the doorway, even the room inside could fall within Postal Service control.10 of starting Instead the scope governmental I would to our control, adhere analysis usual which looks to whether the exercise of a First Amendment right is burdened by challenged governmen- tal action, and upholds then that action only where necessary to advance a legitimate govern- substantial and mental In my interest. view, the statute criminalizing the placement of hand-delivered civic association notices in letter- fails, boxes this test. The brute force of the criminal sanction and other powers of the Government, may be believe, 9The Court rights announced the First recipients in Amendment General, Lamont v. Postmaster (1965). There, U. S. the Court postal regulation struck down a denying delivery propa of Communist ganda sent from country, though regulation outside the per even delivery mitted recipients such who notified the Postal Service in writ ing they Untenable, wished to receive the material. in the Court’s view, was the fact regulatory that under the scheme, addressee “[t]he carries an.affirmative obligation which we do not think the Government may impose Id., on him.” at 307. The concern for the First addressee’s rights govern should here. 10Appellant suggests problem presented no First Amendment because residents would not letterboxes Service, erect but for the Postal and the compel First Amendment did not the creation of the Service. Brief for Appellant argument obviously proves 18-19. This much, too because the First Amendment did not ordain the libraries, establishment of schools or yet have established, we held that once these facilities must be managed consistently with the First Tinker Moines Amendment. v. Des Independent Dist., (1969); School Louisiana, U. S. 503 Brown v. U. S. *32 justifi- greater only with expression free to restrict deployed I dissent. cation. dissenting. Stevens,
Justice this statute me that persuaded Marshall Justice his reason- to all I not subscribe do but unconstitutional, content-neutral concluding that surely correct ing. He is not auto- do letterboxes private on the use restrictions because simply First matically comply with Like libraries Service. of the part are a such boxes existence, into come have facilities these once schools, the Con- comply with them must regulation Government’s accept however, ante, cannot, n. 10. at See stitution. func- are the receptacles private these proposition fora. public equivalent tional Mar- with Justice with the
My disagreement from case looking at this can best be illustrated shall The mailbox mailbox. of the of the owner point of view to forum is not a property; private to re- does want If the owner access. grant must owner mail, stamped than communications other any written ceive “no tres- of a equivalent post to permitted he should his protects A mailbox. statute sign on his passing” deposits unwanted unsolicited privacy prohibiting however, Court, be valid. surely would property his receipt owner’s interferes upholds statute If the owner want to receive. he information com- local from neighbors, his from messages welcomes newly arrived en- from munity organization, even un- presumptively it is coupons, free passing out trepreneur such ability receive his to interfere with to reasonable issue statute criminal The nationwide communications. legal right of homeowners deprives millions here com- affecting ability receive their simple decision make a others. munications
The Government seeks justify prohibition on three grounds: the loss of revenues, federal avoiding preventing *33 from theft the mails, the efficiency maintaining of the my In Service.1 judgment ground the first is frivolous the other two, though valid, are insufficient to overcome the presumption this impediment that communication invalid.
If private party by using volunteer or by op- workers — erating efficiently more deliver written communications —can for less than the cost of postage, public interеst would be well served transferring portion that delivery mail business out of domain. I see no pro- reason to hibit competition simply to prevent any reduction in the size of a subsidized monopoly. my In opinion, purpose that justify any cannot restriction on the interests free com- munication protected that are by the First Amendment.
To the extent that the statute aids prevention in the that theft, incidental benefit was not a factor that motivated Congress.2 The District Court noted that the testimony in- dicated that 1725 “was marginally useful” in the enforce- ment of the relating statutes to theft of mail. 490 F. Supp. 157, 161-162 (1980). It concluded, however, that the Gov- ernment had failed to introduce evidence sufficient justify 1Although the Government also privacy advances the interests of the owner, mailbox those interests protected would of be allowing course the individual owner to make the choice whether he wanted to receive unstamped mail. Government, Appellant see Brief for legislative n. history cites indicating that “principal motivation for protec the statute” was the tion of prevention revenues and of overstuffing of mailboxes. The later Government notes that “[although Congress’ primary purpose in en acting protection Section 1725was the revenues, of mail the statute plays also investigation a role of mail Id., theft.” at 7. justifi Because this cation, two, unlike the other was formulated after the enacted, statute was is not entitled weight to the same purposes as the actually that Congress. motivated The Court interests.3 First with interference findings Court’s District of the any quarrel not does derived conclusion disturb the I would fact, and findings. those matter of written large quantities cluttered with
Mailboxes carrier’s mail performance efficient impede would up picked for mail to papers Sorting through duties. be de- should mail leave in which space no having With- time. consume valuable unquestionably can livered decades, what place been that has statute out might problem or occasional merely a minor to be appear now take than Rather beanstalk. proverbial like the grow is a total course the wiser decided risk, Congress of mail. the free flow protect will prohibition *34 is sus- noted, problem has as Justice But Marshall ante, 146, n. See drastic solution. much less of a ceptible now—and mailboxes many overstuffed probably are There many more —but would repealed there were statute if this far out- relatively empty boxes that indicates the record home- allowed the statute If the ones. the crowded number unstamped com- to or not receive whether to decide owner on the plainly indicated option have his to munications —and over- that simple requirement the mailbox —a exterior provide larger ones should with replaced boxes be stuffed concern.4 of the Government’s to most answer against civic that “enforcement held The District enforcement necessary to or contributive appear not so does associations out interest that this Express statutes Private anti-theft, anti-fraud economical expedient interest plaintiffs' substantial weighs the Supp., at 163. F. their constituents.” communication be im would efficiency the Postal Service that extent To through papers for required carriers to sort for mail by the effort peded individual owner of the again the hands mail, the solution outgoing sending letters and use this method to If he wants mailbox. the risk that communications, he runs unstamped receive also wants by the mail carrier. seen outgoing mail will his .be
I fully thing judicial that one to sit in cham- am aware it is really necessary opine that a is not regulation bers complex operation another to run quite a mammoth and this Conceivably, like the Postal Service. the invalidation of sink law would unleash a flow of communication that would happen, the mail in a But were paper. service sea of that to greater merely it demonstrate law a much would this impediment pres- to the free flow of communication than is ently prevents assumed. To extent law mailbox that the clutter, messages it impedes delivery also of written place. would otherwise take
Finally, nobody ignore we should not fact that ever has been convicted of nationwide violating middle-aged stat- literally ute. It must have been violated millions of times. Apparently the of enforcement has threat enabled the Gov- ernment to postage collect some time or to cause time to discontinue their practices, few violators unlawful but general impression only have the is at best dimly aware the law and numerous otherwise law- abiding regularly impunity. citizens violate with This im- pression supports the conclusion that the statute is indeed necessary much than is its purpose. broader serve limited Because, demonstrated, as Justice it does Marshall unquestionably abridge exchange expres- the free of written sion, I his agree with conclusion that it violates the First *35 Amendment.
I respectfully dissent. invitations notes residents most check