Like all grants to Congress, the postal power is not unrestrained, but, as the Supreme Court has expressed it, the difficulty in setting limits beyond which it may not go, arises, “not from want of power in Congress to prescribe the regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with the rights reserved to the people, of far greater importance than the transportation of the mail.”275 One, and perhaps the most important, of these rights is involved when restrictions are applied to periodical publications (particularly in reference to obscene matter and lottery tickets), and the question is at once raised as to the freedom of the press, guaranteed against abridgment by the second clause of the first amendment to the Federal Constitution.276 The extent to which this limitation has been ignored is a moot question. On the one hand, we have the confident assertion of Von Holst277 that “the freedom of the press has become a part of the flesh and blood of the American people to such an extent, and is so conditioned by the democratic character of their political and social life, that a successful attack upon it, no matter what legal authority it might have on its side, is impossible. Even the gigantic power of slavocracy gave up the battle as hopeless after the first onslaught.”
On the other hand, Hannis Taylor in his recent work on the American Constitution remarks that “little need be said as to the clause forbidding Congress to pass any law ‘abridging the freedom of the press,’ as that clause has been removed from the Constitution, so far as the mails are concerned, by the judgment rendered in 1892, In Re Rapier.”278 And this extreme view may be said to have received some support from a recent decision of the Supreme Court which upheld the power of Congress to compel newspapers to publish certain information concerning their internal affairs, under penalty, for refusal, of being denied the advantages of low second class rates.279 Which, then, is the correct view as to the inviolability or abrogation of this constitutional guarantee in relation to the mails?
Freedom of the Press.—In the Convention which framed the Federal Constitution, Mr. Pinckney, on August 20, 1787, submitted a number of propositions among which was a guarantee that “the liberty of the Press shall be inviolably preserved.”280 The propositions were referred to the Committee of Detail, and when the question again came up for consideration on September 14, Mr. Pinckney and Mr. Gerry “moved to insert a declaration that the liberty of the Press should be inviolably observed.” This motion was lost, Mr. Sherman remarking that “it is unnecessary. The power of Congress does not extend to the Press.”281
During the discussion of the Constitution by the States, however, the absence of a guarantee of the freedom of the press was frequently adverted to. Speaking in the South Carolina House of Representatives, Mr. C. C. Pinckney said:
“With regard to the liberty of the press, the discussion of that matter was not forgotten by the members of the Convention. It was fully debated, and the impropriety of saying anything about it in the Constitution clearly evinced. The general government has no powers but what are expressly granted to it; it therefore has no power to take away the liberty of the press. That invaluable blessing which deserves all the encomiums the gentleman has justly bestowed upon it, is secured by all our state constitutions; and to have it mentioned in our general Constitution would perhaps furnish an argument, hereafter, that the general government had a right to exercise powers not expressly delegated to it.”282
A different theory was advanced by Hamilton, who, answering the objection that the Constitution contained no bill of rights, and treating specifically the absence of any provision safeguarding the press, asked: “What signifies a declaration that ‘the liberty of the press shall be inviolably preserved?’ What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer that its security, whatever fine declarations may be inserted in any Constitution respecting it, must altogether depend upon public opinion, and on the general spirit of the people and of the government....”283
A proposal to guarantee the freedom of the press was, however, a part of the plan for a bill of rights which Madison introduced in Congress on June 8, 1789.284 Such a federal provision had been suggested by the ratifying conventions of three states, and similar provisions were contained in nine state constitutions.285 Madison’s proposal was amended until it provided that “the freedom of speech and of the press ... shall not be infringed” and its language was further modified until it took the form in which it became a part of the Constitution.
Concerning the meaning of the amendment at the time of its adoption, there has been little, if any controversy, in spite of Hamilton’s declaration to the contrary. Blackstone had announced a generally accepted rule when he said that the liberty of the press “consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.... To punish (as the law does at present) any dangerous or offensive writings, which, when published, shall, on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of the peace and good order, of government and religion, the only foundations of civil liberty.”286
In the celebrated case of People v. Croswell, Alexander Hamilton appearing as counsel for the traverser, laid down the following rule which was unsupported by the English common law, but which has been accepted as a proper definition by a number of the present-day state constitutions. Hamilton said:
“The liberty of the press consists, in my idea, in publishing the truth, from good motives, and for justifiable ends, though it reflect on the government, on magistrates, or individuals.... It is essential to say, not only that the measure is bad and deleterious, but to hold up to the people who is the author, that in this our free and elective government, he may be removed from the seat of power.”287 And Story was of the opinion that the guarantee “is neither more nor less, than an expansion of the great doctrine, recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives, and for justifiable ends.”288
The amendment guaranteeing the freedom of the press has never been before the Supreme Court of the United States in such a manner that a comprehensive consideration of its meaning and effect has been entered upon. This is true even of those cases in which the issue was as to the constitutionality of laws denying newspapers the use of the mails for various reasons.289 In fact, the most important dictum of the Supreme Court occurs in a case where a federal law was not involved, the Court adopting Blackstone’s definition and holding that “the main purpose of such constitutional provisions is to ‘prevent all such previous restraints upon publications as had been practised by other governments,’ and they do not prevent subsequent punishment of such as may be deemed contrary to the public welfare.”290
The cases, as well as the text-writers, seem to settle that the first amendment to the Federal Constitution announced no new principles; it must be interpreted in reference to its meaning at common law. The principal inhibition upon the legislature is in the enactment of previous restraints, but even here not absolutely. By the civil law of libel, as it was when the Constitution was adopted, the one publishing had to answer for personal wrongs, and the criminal law could punish for defamatory, obscene, blasphemous or seditious libels. To this extent, there could be, and, in fact, were, previous restraints.291
But a recent writer, after an able consideration of the early declarations in the light of their history, comes to the conclusion that “they obliterated the English common-law test of supposed bad tendency to determine the seditious or blasphemous character of a publication, and hence obliterated the English common-law crimes of sedition and blasphemy; shifted the law of obscene and immoral publications from the region of libel to the region of public nuisance; and left standing only the law of defamatory publications, materially modifying that.” Professor Schofield goes on to say that “the declarations wiped out the English common-law rule in criminal prosecutions of defamatory libel, ‘The greater the truth the greater the libel,’” and “threw on American judges in civil and criminal actions for defamatory libel the new work of determining what is truth in a publication on a matter of public concern.” The correct view, in this author’s opinion, is that “if liberty of the press in the First Amendment means anything it legalizes published truth on all matters of public concern.”292 Without, however, attempting to pass judgment on Professor Schofield’s criticism of the cases, it will be possible, from either view, to ascertain whether the freedom of the press has ever been abridged by the denial of the use of the mails (for freedom of publication includes, although perhaps not absolutely, freedom of circulation), and to set the limits of congressional action.
Not until 1836 was there any serious discussion of the meaning of the phrase “liberty of the press” and the limitations it might impose upon the postal regulations which Congress had the power to make.293 But during this year an exhaustive debate took place in the Senate as a result of President Jackson’s message (December 2, 1835) urging the enactment of legislation to check the incendiary publications with which the Northern abolitionists were flooding the slave states. The evil complained of was serious, and the states were making strenuous objections to the continued presence in the mails of such literature.
On July 29, 1835, for example, the Southern Patriot of Charleston, S. C., complained that the mails from the North were “literally overburthened with the newspaper called ‘The Emancipator’ and two tracts entitled ‘The Anti-Slavery Record’ and ‘The Slaves’ Friend,’” This was declared a “monstrous abuse of the public mail” and the publications were denounced as moral poison, the Patriot adding: “If the general post office is not at liberty [to prevent circulation], it is impossible to answer for the security of the mail in this portion of the country, which contains such poisonous and inflammatory matter.”294 The Charleston postoffice was in fact entered, and this particular consignment of papers destroyed. “Extreme cases require extreme remedies,” said the Patriot, and the Charleston Mercury went so far as to predict that anyone violating the South Carolina law against circulation “would assuredly expiate his offence on the gallows.”295 Practically all of the Southern States had extremely stringent statutes and several provided capital punishment for offenders.296
This occurrence at Charleston led Samuel L. Gouverneur, postmaster at New York, to suggest to Amos Kendall, the postmaster general, that the transmission of such papers be suspended, but Arthur Tappan, president of the American Anti-slavery Society, declined to surrender “any rights or privileges which we possess in common with our fellow citizens in regard to the use of the United States mail.”297 Local postmasters nevertheless began to take matters in their own hands. In regard to the detention of incendiary matter by the Charleston postoffice, Kendall wrote:
“I am satisfied that the postmaster general has no legal authority to exclude newspapers from the mail, nor prohibit their carriage or delivery on account of their character or tendency, real or supposed....
“The post office department was created to serve the people of each and all of the United States and not to be used as the instrument of their destruction.... Entertaining these views, I cannot sanction and will not condemn the step you have taken. Your justification must be looked for in the character of the papers detained, and the circumstances by which you are surrounded.”298 Kendall left it to the discretion of the local postmasters as to whether they would carry out their official duties, or obey the laws of the local jurisdictions.299
It was, therefore, no surprise when Jackson adverted to the situation, and in his annual message asked for legislation denying such publications the facilities of the postoffice. President Jackson wrote:
“I must also invite your attention to the painful excitement produced in the south, by the attempts to circulate, through the mails, inflammatory appeals addressed to the passions of the slaves, in prints, and in various sorts of publications, calculated to stimulate them to insurrection and to produce all the horrors of a servile war....
“In leaving the care of other branches of this interesting subject to the state authorities, to whom they properly belong, it is nevertheless proper for Congress to take such measures as will prevent the post office department, which was designed to foster an amicable intercourse and correspondence between all members of the confederacy, from being used as an instrument of the opposite character. The general government to which the great trust is confided of preserving inviolate the relations created among the states by the Constitution is especially bound to avoid, in its own action, anything that may disturb them. I would, therefore, call the special attention of Congress to the subject, and respectfully suggest the propriety of passing such a law as will prohibit, under severe penalties, the circulation in the southern states, through the mail, of incendiary publications intended to instigate the slaves to insurrection.”300
On December 21, 1835, Calhoun moved that “so much of the President’s message as relates to the transmission of incendiary publications by the United States mail be referred to a special committee.” King of Alabama expressed the opinion of several that the regular standing committee on postoffices would do, since he “felt a confident belief that there was no disposition in any of its members to have the public mails prostituted to a set of fanatics.” Preston of South Carolina thought that a solution of the evil could be arrived at by a method other than barring the publications from the mail. He proposed “that the depositing of an incendiary publication in the post office should be constituted an offence in the state where it took place, and the letting of it out of the post office should be equally deemed an offence where it occurred.”301 Nevertheless, Calhoun’s view prevailed and the message was referred to a select committee of which he was made chairman.302 An elaborate report written by him was presented to the Senate on February 4, 1836,303 but with the unqualified concurrence of only one fellow committeeman. The others opposed, either any federal action at all, Calhoun’s theory as to the remedy, or some of the details of the measure which was recommended.
The committee’s report was based upon the premise that Congress had not the power to pass legislation in accordance with the President’s recommendation to exclude the objectionable publications from the mails; such a law, Calhoun thought, “would be a violation of one of the most sacred provisions of the Constitution, and subversive of reserved powers essential to the preservation of the domestic institutions of the slaveholding states, and with them, of their peace and security.” This would be closely analogous to the Sedition Act which made it a crime to print “any false, scandalous and malicious writing or writings, against the government of the United States,” or Congress, or the President, “with intent to defame ... or to bring them ... into contempt or disrepute ... or to incite against them, or either of them, the hatred of the good people of the United States.”304
But, said Calhoun, postulating the unconstitutionality of these provisions, “as abridging the freedom of the press, which no one now doubts, it will not be difficult to show that if, instead of inflicting punishment for publishing, the act had inflicted punishment for circulating through the mails for the same offence, it would have been equally unconstitutional ... To prohibit circulation, is in effect, to prevent publication ... each is equally an abridgment of the freedom of the press.
“The prohibition of any publication on the ground of its being immoral, irreligious, or intended to excite rebellion or insurrection, would have been equally unconstitutional; and, from parity of reason, the suppression of their circulation through the mail would be no less so.”305
The fallacy of this is evident. So far as the Sedition Act is concerned, there are two grounds upon which it could be attacked: lack of congressional power to punish sedition, and abridgment of the freedom of the press. The first question, for present purposes, needs no discussion;306 but, as for the second, it is well settled that punishment for seditious, obscene, defamatory and blasphemous publications, is not in violation of the freedom of the press.307 In the United States, then, there is no constitutional restriction which will compel the government impotently to remain the subject of attacks upon its stability. The Act of 1798 was very broad and objectionable on this ground, but the prohibition of seditious utterances urging the use of force or unlawful means to overthrow the government or falsely defamatory of federal officers would not infringe any provision of the bill of rights.308
But legislation of the character urged by Jackson was not on all fours with the Sedition Act, for by that act the government was punishing publications which it deemed inimical to its own safety. The incendiary matter, however, concerned the states and only a portion of them; the power of Congress to prohibit it, therefore, was doubtful, unless the evil reached such proportions that the menace to the states was a menace to the federal government. To Calhoun it seemed also that the prohibition of circulation through the mails was tantamount to a prohibition of publication.
The right “to determine what papers are incendiary,” the report argued, and as such to “prohibit their circulation through the mail, necessarily involves the right to determine what are not incendiary and to enforce their circulation”; both were matters of state prerogative. And, if “consequently the right to protect her internal peace and security belongs to a state, the general government is bound to respect the measures adopted by her for that purpose, and to cooperate in their execution, as far as its delegated powers may admit, or the measure may require. Thus, in the present case, the slaveholding states having the unquestionable right to pass all such laws as may be necessary to maintain the existing relation between master and slave in those states, their right, of course, to prohibit the circulation of any publication or intercourse calculated to disturb or destroy that relation is incontrovertible.” The general government is bound, “in conformity to the principle established, to respect the laws of the state in their exercise, and so to modify its act as not only not to violate those of the stated, but as far as practicable, to cooperate in their execution.”
Simultaneously with the presentation of this report, Calhoun introduced a bill, framed in accordance with his views, making it unlawful for any postmaster to receive and put in the mail any publication addressed to a jurisdiction where its circulation was forbidden. It was made a crime to deliver such prohibited mail to any person not “duly authorized ... to receive the same” by the local authorities, and there was a further provision that the laws of the United States should not be allowed to protect any postmaster accused of violating local regulations. By this means, Calhoun thought to preserve the liberty of the press and hand the matter over to the states for their settlement.309
The constitutional questions involved in the report and law proposed gave rise to a debate of such importance that it has several times been referred to by the Supreme Court of the United States in passing on partially analogous matters.310 Many different views were advanced as to the correct interpretation of the postal grant which at this time had received practically no consideration by the judiciary. Webster, for example, contended that the proposed law “conflicted with that provision of the Constitution which prohibited Congress from passing any law to abridge the freedom of speech or of the press. What was the liberty of the press?” he asked. “It was the liberty of printing as well as the liberty of publishing, in all the ordinary modes of publication; and was not the circulation of papers through the mails an ordinary mode of publication?... Congress might, under this example, be called upon to pass laws to suppress the circulation of political, religious, or any other description of publications which produced excitement in the states.” Finally, he argued, “Congress had not the power, drawn from the character of the paper, to decide whether it should be carried in the mail or not; for such decision would be a direct abridgment of the freedom of the press.”311
Clay argued to the same effect, considering the bill uncalled for by public sentiment, unconstitutional, and containing “a principle of a most dangerous and alarming character.”312 Buchanan’s views, however, were different. “It was one thing [he said] not to restrain or punish publications; it was another and an entirely different thing to carry and circulate them after they have been published. The one is merely passive, the other is active. It was one thing to leave our citizens entirely free to print and publish and circulate as they pleased; and it was another thing to call upon us to aid in their circulation. From the prohibition to make any law ‘abridging the freedom of speech or of the press,’ it could never be inferred that we must provide by law for the circulation through the post office of everything which the press might publish.”313
Senator Davis of Massachusetts charged, quite properly, it seems to me, that the report and bill were in conflict, since “the report sets forth that Congress has no power to make a law to restrain the circulation of incendiary papers through the mail, because the post masters have no right to determine what is and what is not incendiary; and because to shut papers out of the mail, would be an invasion of the liberty of the press.” But the bill would have the United States adopt and enforce state laws prohibiting the circulation of incendiary papers, “having constitutional power so to do and being bound in duty so to do.”314 Another difficulty, as Davis went on to say, was “that incendiary matter is anything unfavorable to slavery. The general principle urged by the Senator from Carolina is, that where the states have power to legislate, the United States is bound to carry into execution their laws. They have the power to prohibit the circulation of incendiary matter, and therefore Congress ought to aid that power.”
But to this “there are insurmountable difficulties. How and by whom, is this law to be executed? Who is to determine, and in what manner, whether the Constitution of Massachusetts, which declares that all men are born free and equal, or the Declaration of Independence ... touch the subject of slavery or are incendiary? Whoever holds this power may shut up the great channels of inter-communication; may obstruct the great avenues through which intelligence is disseminated.”315
The use of the mail was declared by Mr. Morris of Ohio to be “a reserved right, with which no law ought to interfere, and not a governmental machine which Congress can withdraw at pleasure or render nugatory by the acts of its officers.” Mr. King raised the question as to federal enforcement of circulation in the states against their will. It would depend, he said, on the character of the paper. “If it were a commercial letter ... or any other paper connected with the granted powers and social relations, as established by the Constitution, and not inconsistent with the reserved rights of the states, in that case its circulation might be enforced. If of a different character it could not be enforced, and the states whose acknowledged rights might be affected, could interfere and arrest the circulation.”316
This debate, although exhaustive, was inconclusive, and some of the opinions expressed seem, in the light of present day construction of the postal clause, almost absurd. Considerably changed, Calhoun’s bill came up for a vote on June 8, 1836, and failed of passage. In its amended form, the bill no longer required that postmasters know the laws of the places to which the mail they received was directed. Under a penalty of being removed from office, they were forbidden to deliver publications, the circulation of which was prohibited by local laws, and in the event that state regulations were not regarded, it was provided that “nothing in the acts of Congress shall be construed” so as to furnish immunity from prosecution.317
There is much to be said in favor of this bill as amended. To make their postal agents amenable to local laws as regards the distribution of certain matter is surely within the constitutional power of Congress, and the aim should constantly be for the federal government to legislate so that national and local statutes will be harmonized. “It must be kept in mind,” the Supreme Court has said, “that we are one people and that the powers reserved to the states and those conferred on the nation, are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral.”318 In several instances this dictum of the Court has been effectuated.
The Judiciary Act of 1789319 adopted “the laws of the several states” as “rules of decision in trials at common law in courts of the United States in cases where they apply.”320 Quarantine and pilotage regulations have been freely made by the states.321 During Mr. Jefferson’s administration (and this was a precedent relied upon by Calhoun), Congress passed a law forbidding the transportation of free negroes from one state into any other where by local laws they were not permitted to reside.322 The constitutionality of this act was sustained by Chief Justice Marshall.323 So also, the congressional act providing for publicity of campaign expenditures forbids any candidate for Representative in Congress or for Senator of the United States to “use money in violation of the laws of the state in which he resides,”324 and Congress has adopted and enforced, as its own, state laws governing elections to the House.325 Finally, in spite of the constitutional requirement that bankruptcy laws must be uniform, Congress has permitted great variance among the several states, their regulations being enforced by the federal courts. To this there is no constitutional objection.326
There is, thus, a considerable body of analogous authority in support of Calhoun’s bill as amended. In its first form, the law he proposed was open to objection in that it required deputy postmasters to know the regulations of jurisdictions other than their own, and its effect was to exclude from the mails incendiary matter which the receiving postmaster thought would be considered objectionable at its destination. Under the amended act, however, there would be uniformity, since everything would be transmitted, the restriction being only as to circulation within the states. In administering a great governmental establishment, it should be the aim of Congress not to interfere with the exercise by the states of powers reserved to them.
But Calhoun’s argument that the denial of postal facilities was tantamount to a denial of the right of publication, is not well founded, as the Supreme Court of the United States has been at pains to point out; nevertheless it is true that, in some measure at least, the First Amendment insures a use of the postoffice.327 Whether, if Congress had passed legislation excluding the incendiary literature from the mails, absolutely, the constitutional guarantee of a free press would have been violated, depends upon the character of the publications. If they were of such a seditious tendency that their menace of established institutions in the states was a menace to the federal government, if they fomented disorder and proposed to abolish slavery otherwise than by law, their utterance could have been prohibited, and the denial of postal facilities would have been constitutional. Or, if the objectionable publications did not affect the general government, but incited to arson, murder, etc., and were not simply political appeals, they could have been excluded, and there would have been no infringement of the freedom of the press. But the power of Congress did not extend to the denunciation of anything unfavorable to slavery; freedom of circulation could not be denied publications unless they fell within the limits stated above.
The views expressed in this debate on Calhoun’s bill were urged before the Supreme Court of the United States with considerable force when it was called upon to determine the constitutionality of the act excluding lottery tickets from the mails. The prevailing opinion in the senatorial debate had been, as we have seen, that Congress did not possess the power to prohibit the carriage in the mails of the incendiary publications, and to this citation of authority the Supreme Court replied:
“Great reliance is placed by the petitioner upon these views, coming as they did in many instances, from men alike distinguished as jurists and statesmen. But it is evident that they were founded upon the assumption that it is competent for Congress to prohibit the transportation of newspapers and pamphlets over postal routes in any other way than by mail; and of course, it would follow, that if with such a prohibition, the transportation in the mail could also be forbidden, the circulation of the documents would be destroyed and a fatal blow given to the freedom of the press. But we do not think that Congress possesses the power to prevent the transportation in other ways, as merchandise, of matter which it excludes from the mails. To give efficiency to its regulations and prevent rival postal systems, it may, perhaps, prohibit the carriage by others for hire, over postal routes, of articles which legitimately constitute mail matter, in the sense in which those terms were used when the Constitution was adopted,—consisting of letters, and of newspapers and pamphlets, when not sent as merchandise,—but further than this its power of prohibition cannot extend.”
And in making a bare denial of the charge that the law abridged the liberty of the press, the Court went on to say:
“In excluding various articles from the mail, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people, but to refuse its facilities for the distribution of matter deemed injurious to the public morals....
“Nor can any regulations be enforced against the transportation of printed matter in the mail, which is open to examination, so as to interfere in any manner with the freedom of the press. Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value. If, therefore, printed matter be excluded from the mails, its transportation in any other way cannot be forbidden by Congress.”328
In 1890 Congress extended the inhibition to “any newspaper, circular, pamphlet, or publication of any kind, containing any advertisement of any lottery,” and again the Supreme Court held that there had been no impairment of the freedom of the press. The Court said:
“We cannot regard the right to operate a lottery as a fundamental right infringed by the legislation in question; nor are we able to see that Congress can be held, in its enactment, to have abridged the freedom of the press. The circulation of newspapers is not prohibited, but the government declines itself to become an agent in the circulation of printed matter which it regards as injurious to the people. The freedom of communication is not abridged within the intent and meaning of the constitutional provision unless Congress is absolutely destitute of any discretion as to what shall, or shall not be carried in the mails, and compelled arbitrarily to assist in the dissemination of matter condemned by its judgment, through the governmental agencies which it controls. That power may be abused furnishes no ground for a denial of its existence, if government is to be maintained at all.”329
It should be remarked that in these cases the reasoning was largely based on the assumption that prohibiting circulation through the mails was not equivalent to prohibiting publication, and Congress could thus deny postal facilities to matter which it deemed injurious to the people, without interfering with the liberty of the press, since transportation between the states, outside of the mails, would still be possible. But it would seem that this doctrine was repudiated, inferentially at least, when the Supreme Court upheld the law excluding lottery tickets from interstate commerce,330 and it would, therefore, it seems to me, have been far better if the Court, in the first instance, had adopted other reasoning. It could have held that the liberty of the press suffered abridgment by a denial of postal facilities, but that lottery advertisements, by common opinion, had become as objectionable as immoral writings, and that the latter class,—an exception to the common law guarantee,—could, by reason of a developing moral sense, be made to include the former. Or the Court could have announced as a rule what is probably true, independent of judicial acceptance, that the freedom of the press does not include freedom of advertisement. Or, to advert to the view of Professor Schofield, if the First Amendment protects only publications which have an educational value on matters of national public concern, lottery advertisements do not come within this class; nor do obscene writings.331 Any one of these theories would have permitted the Supreme Court to render a logical decision, without putting forth a dictum that Congress could not prevent the transportation in other ways of matter excluded from the mails, for this would be a check on circulation which would be a check on publication, and then being forced to take a contrary position in order to declare constitutional a statute which exercised the very power that the Court had doubted. Calhoun’s contention, therefore, seems to be the more logical. As it was, the ratio decidendi of the Court in the Jackson and Rapier cases would have been impossible had the restraint been against writings of an admittedly innocuous character, against political opinions, for example, or against matters not so universally condemned under the police power. And, to repeat, the Court was forced to deny what, I think, is undoubtedly the better doctrine,—that the liberty of the press may be abridged by restrictions on the use of the mails,—a doctrine that will probably be returned to if Congress legislates on publications that are unobjectionable.
The question of anarchistic publications and the postoffice was raised in March, 1908, when President Roosevelt wrote to Attorney General Bonaparte:
“By my direction the Postmaster General is to exclude La Questione Sociale, of Paterson, N. J., from the mails, and it will not be admitted to the mails, unless by order of the court, or unless you advise me that it must be admitted.”332
In reply to the President’s letter, Secretary Bonaparte wrote:
“I am obliged to report that I can find no express provision of law directing the exclusion of such matter from the mails, or rendering its deposit in the mails an offense against the United States”; but “I have the honor to advise you that it is clearly and fully within the power of Congress to exclude from the mails publications” such as La Questione Sociale, “and to make the use, or attempted use, of the mails for the transmission of such writings a crime against the United States.”
What Congress thought of anarchy, Mr. Bonaparte said, was shown by the Act of March 7, 1907,333 excluding and providing for the deportation of anarchists, and the Attorney General made this implied expression of legislative authority (even though in 1903 Congress had expressly refused to pass a law directed against anarchistic publications) a sufficient basis to legalize the action of the President and exclude newspapers which advocated the opinions quoted. The Attorney General’s opinion concluded:
“In the absence of any express provision of law or binding adjudication on this precise point, ... I advise you that, in my opinion, the Postmaster General will be justified in excluding from the mails any issue of any periodical, otherwise entitled to the privileges of second class mail matter, which shall contain any article constituting a seditious libel and counselling such crimes as murder, arson, riot, and treason.”
Such action, the opinion said, would be perfectly safe, since “it is well settled that at common law the owner of a libelous picture or placard or document of any kind is entitled to no damages for its destruction in so far at least as its value may depend on its unlawful significance.” Hence the federal statutes which provide punishment for postmasters who may “unlawfully detain” or “improperly detain” mailable matter, would not operate.334
As a matter of fact, the newspaper was excluded for reasons other than its contents, but President Roosevelt transmitted the Attorney General’s opinion to Congress and in a special message said:
“Under this opinion I hold that the existing statutes give the President power to prohibit the Postmaster General from being used as an instrument in the commission of crime; that is, to prohibit the use of the mails for the advocacy of murder, arson, and treason; and I shall act upon such construction. Unquestionably, however, there should be further legislation by Congress in this matter. When compared with the suppression of anarchy, every other question sinks into insignificance.” Congress has since acted by declaring that the term “indecent” in the section against obscene writings, should include “matter of a character tending to incite arson, murder or assassination.”335
The Attorney General in his opinion, it may be remarked, did not mention the freedom of the press, and this question was not involved. From what has already been said, it follows that there is no question as to the competency of Congress to pass legislation designed to deny the mails to anarchistic publications if they incite to crime. But the Attorney General’s argument as to the power of the President was not well founded; it granted to an administrative officer arbitrary discretion based on no explicit or implied legislative authority, and sanctioned the exercise of this power on the ground that the one injured could have no legal redress. It is, however, simply a question of whether the exclusion was ultra vires, not whether it was an abridgment of the freedom of the press.336
The latest question of the freedom of the press was considered by the Supreme Court in 1913 when it sustained the so-called “newspaper publicity law.” This required publications entered as second class matter (with a few exceptions) to furnish the postoffice department with, and publish semi-annually, a sworn statement of their editors and owners, in addition to marking as an advertisement anything for the publication of which, compensation is received. Newspapers were also required to give information as to their circulation figures.337
The law was vigorously assailed as being ultra vires, as denying due process of law, and as impairing the freedom of the press. It “establishes,” said one of the counsel, “a governmental control over newspaper publishers and dictates to them what shall or shall not be published and the manner, form, and time of publishing. In other words, Congress in plain language provided that matter inherently proper and mailable shall be unmailable, not on account of any inherent defect, but solely because the publisher may refuse or neglect to advise the public of certain of his private matters as to which Congress seems to desire the public to be informed. This is not regulation, but paternalism, and a direct and positive abridgment of the freedom of the press.”338
The Supreme Court, however, by a narrow line of reasoning, sustained the statute, the opinion showing that in order to receive “entry” as second class matter and get the benefit of low rates, the publication must answer a number of questions concerning ownership, editorial supervision, circulation, sample copies, and advertising discrimination. The Court considered the new law as simply laying down additional conditions, compliance with which would enable the publishers to continue “to enjoy great privileges and advantages at the public expense.” The Court went on to say:
“This being true, the attack on the provision in question as a violation of the Constitution because infringing the freedom of the press and depriving of property without due process of law, rests only upon the illegality of the conditions which the provision exacts in return for the right to enjoy the privileges and advantages of the second class mail classification. The question, therefore, is only this: Are the conditions which were exacted incidental to the power exerted of conferring on the publishers of newspapers, periodicals, etc., the privileges of the second class classification, or are they so beyond the scope of the exercise of that power as to cause the conditions to be repugnant to the Constitution? We may say this is the question, since necessarily if the power exists to legislate by discriminating in favor of the publishers, the right to exercise that power carries with it the authority to do those things which are incidental to the power itself, or which are plainly necessary to make effective the principal authority when exerted.”339
Whether this reasoning seems convincing or not, it must nevertheless be conceded that legislation to the same effect, not based upon the power of Congress over the mails, would be unconstitutional, and that in this case, Congress has been permitted to do by indirection what it has not the power directly to accomplish. The step is a short one to requiring, for a continuance of the low second class rates, that newspapers print, or refrain from printing, reading matter of a specified character. The decision, however, lends no support to the belief that if this indirect regulation is carried further, or if there is a real interference with the freedom of the press, the Supreme Court will not intervene.
Such are the incidents in which the liberty of the press has figured, and it is difficult to see how it has ever been abridged. The executive order of President Roosevelt excluding La Questione Sociale from the mails was ultra vires, but, as Attorney General Bonaparte pointed out, the injured parties had slight chance of a remedy at law. Certain it is that the paper in question was so seditious that under a state statute publication could have been stopped, and that an Act of Congress, forbidding such periodicals the privilege of the mails, would not have been in violation of the First Amendment.
The decisions of the Supreme Court which have been quoted lead to no conclusion other than that any attempt on the part of Congress to place a previous restraint upon the press, or even to deny it postal facilities, for no discernible reason, would receive a judicial veto. The exclusion of lottery tickets, obscene matter, and other writings inimical to the public morals, has been clearly within the power of Congress, and legislation forbidding seditious and anarchistic publications when directed against the federal government, or banning them from the mails, would be constitutional. It is true that the “newspaper publicity law,” strictly speaking, is a previous restraint, but the Supreme Court considered it as merely laying down additional and reasonable conditions, compliance with which would enable periodical publications to continue to enjoy great and exclusive advantages of second class privileges,—a satisfactory, if not conclusive basis for the decision; as interpreted by the Court, the act promotes, rather than abridges, the liberty of the press.
Neither reason nor precedent justifies the view, eloquently urged by counsel in this case, that Congress by the law exercises “a governmental control over newspaper publishers and dictates to them what shall not be published, and the manner, form, and time of publishing.” On the contrary, that great “palladium of liberty,”—the freedom of the press,—seems to be in no danger of demolition through congressional action.
Unreasonable Searches and Seizures.—As with the freedom of the press, the Supreme Court of the United States has rarely been asked to restrain the postal power under the provision of the Fourth Amendment to the Constitution which declares that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”340 The scope of this limitation, as applied to the mails, has been described by the Supreme Court in the following terms:
“A distinction is to be made between different kinds of mail matter, between what is intended to be kept free from inspection, such as letters and sealed packages, subject to letter postage, and what is open to inspection.... Letters and sealed packages of this kind in the mail are to be as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly in describing the thing to be seized, as is required when papers are subjected to search in one’s own household. No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the Fourth Amendment of the Constitution.”341
The limitation operates chiefly upon administrative officials who attempt to get evidence of violations of the law regarding obscene literature and fraudulent matter excluded from the mails. In regard to this the Court said:
“Whilst regulations excluding matter from the mails cannot be enforced in a way which would require or permit an examination into letters, or sealed packages subject to letter postage, without warrant issued upon oath or affirmation, in the search for prohibited matter, they may be enforced upon competent evidence of their violation obtained in other ways; as from parties receiving the letters and packages, or from agents depositing them in the postoffices, or others cognizant of the facts. And as to the objectionable printed matter which is open to examination, the regulations may be enforced in a similar way, by the imposition of penalties for their violation through the courts, and, in some cases by the direct action of the officers of the postal service. In many instances those officers can act upon their own inspection, and, from the nature of the case, must act without other proof; as where the postage is not prepaid, or where there is an excess of weight over the amount prescribed, or where the object is exposed, and shows unmistakably that it is prohibited, as in the case of an obscene picture or print. In such cases, no difficulty arises, and no principle is violated in excluding the prohibited articles and refusing to forward them. The evidence respecting them is seen by everyone and is in its nature conclusive.”342
This view of the law has been acquiesced in by Congress which has provided that nothing in the acts excluding certain matters from the mails, “shall be so construed as to authorize any person other than an employee of the Dead Letter Office, duly authorized thereto, to open any letter not addressed to himself.”343 The regulations promulgated for the postoffice department, provide, moreover, that neither postmasters, inspectors, employees, nor officers of the law, “without legal warrant therefor, have authority to open under any pretext a sealed letter while in the mails, not even though it may contain improper or criminal matter, or furnish evidence for the conviction of offenders,” and out of excess of caution, it is further added that “the seal of letters or packages suspected to contain unmailable matter shall not be broken to ascertain that fact.”344 The regulations provide that matter manifestly unmailable shall be withdrawn and sent to the Division of Dead Letters with a statement of the facts upon which such action was taken; if there is doubt as to the propriety of such disposition, the matter shall be sent to the Assistant Attorney General for the Postoffice Department, for his decision.345 Any unlawful opening of the mail by a postal employee is dealt with criminally.346 Special regulations govern the examination by a customs officer of sealed packages supposed to be dutiable, in the presence of the addressee, but before delivery to him.347
If, then, at times, administrative zeal may lead to a disregard of these regulations, the official is criminally liable, and the one whose sealed mail is searched, has a right of action for damages. But the avowed purpose of Congress and of the postoffice department is to subordinate efficiency in the detection of wrongdoing to the right of the people, under the Fourth Amendment, to be secure in their sealed papers when they are in the hands of the government for transmission through the mails.348