William J. Brennan, Jr.

“ In addition to the question whether the particular matter is obscene, the Post Office order raises insistent questions about the validity of the whole procedure which gave rise to it, vital to the orderly development of this body of law and its administration. We risk erosion of First Amendment liberties unless we train our vigilance upon the methods whereby obscenity is condemned no less than upon the standards whereby it is judged. ”

“ That power is inferred from the declaration that every item proscribed in § 1461 is 'nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.' Even granting that these words on their face permit a construction allowing the Post Office the power it asserts, their use in a criminal statute, their legislative history, and the contrast with the words and history of other provisions dealing with similar problems, raise the most serious doubt that so important and sensitive a power was granted by so perfunctory a provision. ”

“ There are two possible constructions of § 1461 on the basis of this brief Senate discussion. One possibility is that short of breaking seals, [7] the postmasters could remove matter which they thought from its face or the name of its sender to be obscene. The second construction is that postmasters could remove matter but only to turn it over to the appropriate authorities as the proposed subject of a criminal prosecution-and also of course after that material had been determined, in a criminal trial of its sender, to be obscene. ”

“ The removal of obscene material has not been the Post Office's only weapon against it. In 1950, § 4006 was enacted granting special powers over the mail of any person found, to the Postmaster General's satisfaction, to be using the mails to obtain money for or to be providing information about any obscene or vile article or thing: Postmasters could mark mail sent to that person 'unlawful' and return it to its sender ”

“ In 1868, in considering a provision making it unlawful to deposit letters or circulars concerning lotteries, House Conferees struck a Senate proposal which would have authorized postmasters to remove from the mail and deposit in dead letter offices any letters or circulars thought to concern lotteries. House Postal Committee Chairman Farnsworth explained 'We thought that was a dangerous power to confer upon postmasters, and therefore we have stricken it out. That section provides that it shall be unlawful to deposit in the mails * * * which we thought would be a wise provision. ”

“ Such power is directly contrary to the letter and spirit of normal due process, as exemplified by the Administrative Procedure Act, which requires a hearing before any penalty may be imposed. The Post Office Department has made its case for this legislation on the grounds that a temporary and summary procedure is required to deal with fly-by-night operators using the mails to defraud or to peddle pornography, who may go out of business-or change the name of their business or their business address- before normal legal procedures can be brought into operation. ”

“ Subsequent developments concerning the removal of matter from the mails reveal a nearly contemporaneous strong distaste for and awareness of constitutional doubts about nonjudicial censorship, such as reflects meaningfully on the ambiguity surrounding § 1461's enactment. That ambiguity has persisted throughout § 1461's history of amendment, reconsideration, and codification. ”

“ We just hope that we get by with it as long as we can.' [29]
' (S) ometimes you can get five people together, and you can give them five pieces of mail, and ask them to mark them, and you will get five different results, because in some cases it is just one of those things that depends on your own personal ideas and your own bringing up; it depends upon how strongly you feel about things, and there are some types of that material that you just can't get two people to agree on no matter how reasonably and how objectively they look upon it. ”

“ Those immoral and obscene and indecent publications are printed in this country, as well as abroad * * *. How do we reach the situation? We make it a crime to circulate those books in this country, and we punish that offense the same as we punish every other offense, by proper prosecution. Likewise, we prohibit the circulation of material of that kind in the mails, and if anybody circulates it in the mails he becomes liable to indictment and prosecution. ”

“ Petitioners, publishers of certain magazines, employ the mails in the distribution of about half of their claimed circulation of 25,000. On March 25, 1960, petitioners deposited 405 copies of their publications for transmission as second class mail from Alexandria, Virginia, to Chicago. However, the Alexandria postmaster, acting, apparently without notice to petitioners, on his belief that the magazines might be obscene and therefore 'nonmailable' under 18 U.S.C. § 1461, 18 U.S.C.A. § 1461, withheld delivery and forwarded samples to the General Counsel of the Post Office Department. ”

“ But when we come to prohibit the transmission of any matter through the mails, we ought to understand pretty well what it is. There are many things that a portion of our people would consider immoral that other portions would consider entirely moral. Some people might consider a pack of card highly immoral ”

“ The Government asserts only that at the administrative level the petitioners made no objection to the procedure. The Government does not suggest that the challenge to the Post Office's power to act at all had to be made before the administrative body. That challenge presents a jurisdictional question and is open to the petitioners even if not initially asserted in the agency proceeding. ”

“ President, in prohibiting the transmission of any matter through the mails there ought to be great care used and it ought to be particularly described and defined. All of that which is described in the beginning of the first section of this bill is eminently proper to prohibit from being transmitted through the mails ”

“ But, in any event, testimony before committees, committee reports, and administrative usurpation, do not, either singly or collectively, suffice to establish authorization.
We have sustained the criminal sanctions of § 1461 against a challenge of unconstitutionality under the First Amendment. Roth v. ”

“ Petitioners then moved for summary judgment, arguing, inter alia, that 'the Post Office Department held a time-consuming hearing, the product of which was an Order contrary to the established law of the United States * * *. ”

“ Hearings before House Committee on the Post Office and Post Roads on Exclusion of Certain Publications from the Mails, 63d Cong., 3d Sess. (1915) ; United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 424, 41 S.Ct. 352, 358, 65 L.Ed. 704 (Brandeis, J., dissenting) .
31 H.R.Rep.No.2510, 82d Cong., 2d Sess. 5, 32.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105) . ”