John Hessin Clarke

“ The grounds upon which the relator relies are, in substance, that to the extent that the Espionage Act confers power upon the Postmaster General to make the order entered against it, that act is unconstitutional, because it does not afford relator a trial in a court of competent jurisdiction; that the order deprives relator of the right of free speech, is destructive of the rights of a free press, and deprives it of its property without due process of law. ”

“ The fact that material appearing in a newspaper is unmailable under wholly different provisions of law can have no effect on whether or not the publication is a newspaper. Although it violates the law, it remains a newspaper. If it is a bad newspaper, the act which makes it illegal, and not the Classification Act, provides the punishment. ”

“ Congress has not granted to the Postmaster General power to deny the right of sending matter by mail even to one who has been convicted by a jury and sentenced by a court for unlawful use of the mail and who has been found by the Postmaster General to have been habitually using the mail for frauds or lotteries and is likely to do so in the future. ”

“ The contention that, because the rates are noncompensatory, use of the second-class mail is not a right, but a privilege, which may be granted or withheld at the pleasure of Congress, rests upon an entire misconception, when applied to individual members of a class. ”

“ Freedom of the press may protect criticism and agitation for modification or repeal of laws, but it does not extend to protection of him who counsels and encourages the violation of the law as it exists. ”

“ The punishment inflicted is not only unusual in character; it is, so far as known, unprecedented in American legal history. Every fine imposed by a court is definite in amount. [18] Every fine prescribed by Congress is limited in amount. Statutes frequently declare that each day's continuation of an offense shall constitute a new crime. But here a fine imposed for a past offense is made to grow indefinitely each day-perhaps throughout the life of the publication. ”

“ The order revoking the entry of the Milwaukee Leader to second-class mail was clearly a punitive, not a preventive, measure, as all classes of mail except the second were, as the Postmaster General states, left open to it, provided it had sufficient financial resources. Of the three left available, the third class, being for 'miscellaneous printed matter,' was an appropriate one for distributing newspapers and was the cheapest. But the additional cost to the publisher involved in distributing daily 9,000 copies, by the third-class mail would be a very serious one. ”

“ The first comprehensive law providing for the classification of mails was enacted on March 3, 1879 (20 Stat. 355) . From that time to this, mail classification, frequently approved by this court, has dealt only with 'mailable matter.' In section 7 of that act (Comp. St. § 7302) , still in effect, 'mailable matter' is divided into four classes, and by section 10 (Comp. St. § 7304) the second class of such 'mailable matter' is defined as including newspapers and periodicals. ”

“ The Sixth Amendment guarantees that, in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, and that he shall be confronted with the witnesses against him. ”

“ For this cause, exercising the power which we have seen had been invested in the Postmaster General by statute for almost 40 years, and which had frequently been exercised by his predecessors, the respondent revoked the scond-class privilege which had been granted to the relator. A similar executive authority with respect to matters within their jurisdiction has been given to the heads of all the great departments of our government and is constantly exercised by them. ”

“ The existence in the Postmaster General of the power to do this cannot be doubted. The only question which can arise is whether in the individual case the power has been illegally exercised. [5] But while he may thus exclude from the mail specific matter which he deems of the kind declared by Congress to be unmailable, he may not, either as a preventive measure or as a punishment, order that in the future mail tendered by a particular person or the future issues of a particular paper shall be refused transmission. ”

“ The second-class mail rate is confined to newspapers and other periodicals, which possess the qualifications and comply with the conditions prescribed by Congress. [9] In the present case the Postmaster General insists that by reason of alleged past violations of title 12 of the Espionage Act, two of the conditions had ceased to be fulfilled. His reasons are these: The Mail Classification Act of March 3, 1879, c. ”

“ Already, having grown at the rate of say $150 a day, it may aggregate, if the circulation has been maintained, about $180,000 for the 3 years and 4 months since the order was entered; and its growth continues. ”