Article I, Section 8, Clause 7:

[The Congress shall have Power . . . ] To establish Post Offices and post Roads; . . .

In 1872, Congress passed the first of a series of acts to exclude from the mails publications designed to defraud the public or corrupt its morals. In the pioneer case of Ex parte Jackson,1 the Court sustained the exclusion of circulars relating to lotteries on the general ground that “the right to designate what shall be carried necessarily involves the right to determine what shall be excluded.” 2 The leading fraud order case, decided in 1904, held to the same effect.3 Noting that supplying postal facilities “is by no means an indispensable adjunct to a civil government,” the Court held that the “legislative body in thus establishing a postal service may annex such conditions . . . as it chooses.” 4

Later cases first qualified these sweeping assertions and then overturned them, holding government operation of the mails to be subject to constitutional limitations. In upholding requirements that publishers of newspapers and periodicals seeking second-class mailing privileges file complete information regarding ownership, indebtedness, and circulation and that all paid advertisements in the publications be marked as such, the Court emphasized that these provisions were reasonably designed to safeguard the second-class privilege from exploitation by mere advertising publications.5 Chief Justice Byron White warned that the Court by no means intended to imply that it endorsed the Government’s “broad contentions concerning . . . the classification of the mails, or by the way of condition . . . .” 6 Again, when the Court sustained an order of the Postmaster General excluding from the second-class privilege a newspaper he had found to have published material in contravention of the Espionage Act of 1917, the claim of absolute power in Congress to withhold the privilege was sedulously avoided.7

A unanimous Court transformed these reservations into a holding in Lamont v. Postmaster General,8 in which it struck down a statute authorizing the Post Office to detain mail it determined to be “communist political propaganda” and to forward it to the addressee only if he notified the Post Office he wanted to see it. Noting that Congress was not bound to operate a postal service, the Court observed that while it did, it was bound to observe constitutional guarantees.9 The statute violated the First Amendment because it inhibited the right of persons to receive any information that they wished to receive.10

On the other hand, a statute authorizing persons to place their names on a list in order to reject receipt of obscene or sexually suggestive materials is constitutional, because no sender has a right to foist his material on any unwilling receiver.11 But, as in other areas, postal censorship systems must contain procedural guarantees sufficient to ensure prompt resolution of disputes about the character of allegedly objectionable material consistently with the First Amendment.12

Footnotes

1

96 U.S. 727 (1878).

2

Id. at 732.

3

Pub. Clearing House v. Coyne, 194 U.S. 497 (1904), followed in Donaldson v. Read Magazine, 333 U.S. 178 (1948).

4

Pub. Clearing House, 194 U.S. at 506. See also United States v. Bromley, 53 U.S. 88 (1851) (upholding statute imposing fines on commercial carriers of mail for carrying non-mail letters not related to their cargo).

5

Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913).

6

Id. at 316.

7

United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 (1921). See also Hannegan v. Esquire, 327 U.S. 146 (1946) (denying the Post Office the right to exclude Esquire Magazine from the mails on grounds of the poor taste and vulgarity of its contents).

8

381 U.S. 301 (1965).

9

Id. at 305 ( “'The United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues.’” ) (quoting Justice Holmes in United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437 (1921)) (dissenting opinion). See also Blount v. Rizzi, 400 U.S. 410, 416 (1971) (quoting same language). For a different perspective on the meaning and application of Holmes’ language, see United States Postal Service v. Council of Greenburgh Civic Assn’s, 453 U.S. 114, 127 n.5 (1981), although there, too, the Court observed that the postal power may not be used in a manner that abridges freedom of speech or press. Id. at 126. Additionally, first-class mail is protected against opening and inspection, except in accordance with the Fourth Amendment. Ex parte Jackson, 96 U.S. 727, 733 (1878); United States v. van Leeuwen, 397 U.S. 249 (1970). But see United States v. Ramsey, 431 U.S. 606 (1977) (border search).

10

Lamont v. Postmaster General, 381 U.S. 301, 306–07 (1965). See also id. at 308 (concurring opinion). This was the first federal statute ever voided for being in conflict with the First Amendment. See also Bolger v. Youngs Drugs Products Corp., 463 U.S. 60 (1983) (holding unconstitutional a federal statute prohibiting the mailing of unsolicited advertisements for contraceptives); Roth v. United States, 354 U.S. 476, 493 (1957); United States v. Reidel, 402 U.S. 351, 356–357 (1971); Smith v. United States, 431 U.S. 291, 305 (1977) (upholding congressional authority under the postal clause to exclude obscene materials from the mail).

11

Rowan v. Post Office Dep’t, 397 U.S. 728 (1970).

12

Blount v. Rizzi, 400 U.S. 410 (1971).