a bill to prohibit acts which Congress may well be without constitutional power to prohibit. If it is the desire of the proponents of the bill to enact national prohibition through congressional action, as it appears to be, let them face the issue squarely and put such a proposal to the Congress, rather than attempting to do indirectly what they may not do directly. B. The bill is class legislation

Under this point, we shall treat another facet of the due-process clause of the Constitution.

The words “due process of law” come to us from Magna Carta. With centuries of interpretation behind them, those words have come to acquire a definitive significance. As stated by the Supreme Court of the United States in 1819 (Columbia Bank v. Okeley, 4 Wheat. 244), “they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.” An arbitrary exercise of the powers of government means a discrimination between persons in similar circumstances (Wallace v. Currin, 306 U. S. 1). Stated in its affirmative sense, "due process of law” implies a general public law, equally binding upon every member of the community, which embraces all persons who are in, or who may come into, like situations and circumstances, and not partial laws affecting classes of individuals, and when applied to special or class legislation; it means in addition that classification must be natural and reasonable (U. S. v. Ballard, 12 F. Supp. 321).

Would the instant bill meet these constitutional tests? It is seriously to be doubted. In fact, so far as printed publications, motion pictures, and the like are concerned, every single operation in intrastate commerce would be exempted. Let us assume that newspaper A on one side of the street confined its circulation to the boundaries of the State itself. It could carry all the beverage advertising it wished within the confines of the local law. Its competitors across the street, newspaper B, has a few subscribers across State lines, which I understand to be a more or less general practice in certain towns in the Midwest. B cannot transport a single copy of paper into a neighboring State, though it may be wet, unless it has deleted all alcoholic beverage advertising. Is this a "natural" and "reasonable" classification? I think not. It in effect is taking out of the pockets of B and putting into the pockets of A a very substantial amount of potential revenue, merely because of the incidental circulation of a few copies of B's paper across State lines, with the possibility of a very remote relation between that circulation and the public welfare of the neighboring State, if any. Where, then, is the threat to the public welfare which would empower Congress to involk its police power? In a balancing of interests, the interests of the people to be protected against the arbitrary invasion to their constitutional rights, as against the interests of a minority who would impose their views on the majority as to what their consciences dictate, the constitutional protection should prevail, C. The bill strikes at the rights of a free press.

In a very recent case before the Supreme Court of the United States (Thomas v. Collins, 65 S. Ct. 315) the Court declared that “the rights for free speech and a free press are not confined to any field of human interest.

"The idea is not sound therefore that the first amendment safeguards are wholly inapplicable to business or economic activity.

Nor, on the other hand, is the answer given, whether what is done is an exercise of those rights and the restriction a forbidden impairment, by ignoring the economic function, because those interests of workingmen are involved or because they have the general liberties of the citizen, as appellant would do.

"These comparisons are at once too simple, too general, and too inaccurate to be determinative. Where the line shall be placed in a particular application rests, not on such generalities, but on the concrete clash of particular interests and the community's relative evaluation both of them and of how the one will be affected by the specific restriction, the other by its absence. That judgment in the first instance is for the legislative body. But in our system where the line can constitutionally be placed presents a question this Court cannot escape answering independently, whatever the legislative judgment, in the light of our constitutional tradition."

What seems so simple to Mr. Dunford is considered a highly perplexing question by the Supreme Court of the United States. Granted, as it must be granted, that the great bulk of the newspapers of the United States circulate in



intrastate commerce, we must now weigh how the restriction upon a free press is to be balanced against the prohibition of a few newspapers carrying certain types of advertising in interstate commerce. The interstate circulation of newspapers is the incident; the right of the free press is fundamental and basic. The restraint upon newspaper circulation would in no event reach to the heart of the question, for the same public, sought to be protected by the legislation, would have itself exposed to beverage advertising in the local newspapers and in outdoor advertising. Thus, some publishers would be made to suffer, without a corresponding benefit to the public. Let us not forget that every liberty specified by the first amendment to the Constitution is protected by the due-process clause of the fifth amendment (U. 8. v. Korner, 56 F. Supp. 2+2).

The proposed legislation appears to advocate censorship in that is prohibits the free circulation in commerce of newspapers and magazines unless certain types of commercial advertising have previously been omitted.

In the very recent case of Esquire v. Walker (66 S. Ct. 456), the Supreme Court of the United States enjoined the Postmaster General from exercising his judgment as to what was good for the public in a magazine circulated in commerce on the ground that it was an unlawful invasion of freedom of speech and freedom of the press. If the Postmaster General may not, by executive order, invade the province of the constitutional provision, can it be said that the Congress has a greater right?

Similarly, the Supreme Court has held that regulations against transporting in the mail printed matter which is open to examination cannot be enforced so as to interfere with the freedom of the press (Ex parte Jackson, 96 U. S. 727).

It is quite true that freedom of the press is not intended to protect those who would encourage a violation of the laws of the United States, particularly in time of war, but we are not here dealing with commodities which are unlawful subjects of commerce. We are dealing with commodities which the people, by constitutional process, have declared to be lawful, subjʼct to local usages, and where it cannot be determined that there is any clear or imminent danger to the public welfare. The proposed legislation, therefore, raises a question of great substance as to the rights of free speech and a free press.

For all of the reasons set forth in this statement, we request that the legislation

not pass.

Mr. DIGges. Our remarks are of two types, Mr. Chairman, those which relate to legislative policy, and those which relate to the legal defects in the bill.

First, as to questions of legislative policy, it is perfectly apparent on its face that this bill addresses itself to commodities which lawfully may be sold in interstate commerce. Nevertheless, it says that the advertising of those products shall be prohibited in all channels of interstate commerce.

So far as I know, no law of the United States has prohibited absolutely the advertising of commodities which might be lawfully produced and lawfully sold, with the single exception of narcotic drugs, which are regulated by international convention, to which the United States is a party.

It is the first appearance of this theory in a bill of the Federal Legislature, Mr. Chairman, which gives us great concern. For if the legislation is a proper exercise of congressional power, it can be extended by similar argument next week to all tobacco advertising, to all drug advertising, and possibly to a host of other commodities.

Certainly there are people in the United States who feel just as strongly as to the deleterious effects of tobacco as they do about the use of alcoholic beverages, and some people even think tobacco is


By similar token, there are many people who feel that drugs are unnecessary, among them being great religious sects, certain types of doctors, and others,

I could go on to give you further illustrations.

Our second point is that the bill prohibits the advertising of lawful commodities in interstate commerce regardless of the wishes of the States where the advertising will have its effect upon the consumer.

The twenty-first amendment has been on the books for almost 14 years. Under that amendment, each State was given absolute authority in its own domain. Can it be said that the States are not intimately in touch with their own public welfare? Of course they are.

Should not the Senate of the United States take legislative notice of such an obvious fact and let the States judge what is best for their own citizens?

The States, as you know, sir, are not lacking in power. It is of great significance to us that the advocates of this bill have come to the Congress rather than to address themselves to their own legislatures.

Perhaps they have tried and been rebuffed. Perhaps they have another end in view. Is it really a curtailment of advertising that they seek, or is their true motive a repeal of the twenty-first amendment by congressional action, so far as it relates to interstate commerce?

The contentions which have come to my notice would seem to indicate that the latter course may be their real objective.

Third, a great defect in the bill, from the viewpoint of those representing the business community, is the proposition that all advertising of alcoholic beverages be banned in the channels of commerce regardless of whether the advertising is offensive to public taste or not.

The bill is not limited to banning advertising which may come into the home by radio; it is not limited to advertising which might be fraudulent, offend good morals or good taste, or which might be deceptive, improperly labeled, uninformative as to contents, or beverages which in fact are intoxicating. It even bans advertising of 3.2 beer which, in many dry States, has been held to be nonintoxicating in fact.

Our fourth point, Mr. Chairman, is that the bill discriminates unjustly against publishers in interstate commerce in favor of those engaged in intrastate commerce, without serving any useful public purpose. Because the advertising is going to come before the public in any event in the local papers and on the local billboards.

We feel, Mr. Chairman, that this bill is an attack upon the free press. This bill would say to the publishers of America that the circulation of public news is dependent upon the question of whether a particular commodity lawful in itself is or is not advertised in the inner pages

If I were a publisher, I would shiver in my boots at the implications of such a principle, because I would say to myself that if the Congress were able to cut off all my revenue from advertising of lawful commodities, it could put me out of business.

S. 265 represents an attempt to reassert congressional control over a moral and social question which was returned to the States by the twenty-first amendment.

Even if Congress had the power, which I doubt, I should think it has certainly surrendered its moral authority to override the wishes of the people unless and until it receives a further mandate from the voters in the form of another constitutional amendment.

of that newspaper:


At the 1939 hearings a great deal was said about radio. We have no interest in that medium of advertising, but it does seem to us, sir, that there has been a change in that medium, a great change, by way of self-government. And certainly we have a Federal Communications Commission which is empowered to look after the public interests in that regard; and if they were really offending the public interest they would have heard long since from the Communications Commission.

Our final point, Mr. Chairman, is that the bill discriminates against magazines and radio in favor of local newspapers. Such a principle cannot be endorsed by my organization, which believes in equal opportunity for all mediums of advertising, freely competing one with the other for the patronage of American business.

We do not like to see one medium given legal favors not accorded to them all

. We do not believe that that is the American way of doing things. Business does not need subsidies; it needs a healthy competitive atmosphere.

I would like to refer very briefly to some legal aspects of this bill which apparently have had no attention.

Much of the argument here has been of a very general nature. I wish to be quite specific.

The definition of an alcoholic beverage in section 6 of the bill is, in our view, so vague and general as to be impossible of interpretation and enforcement. That language is broad enough to encompass such beverages as cough syrups, beef and wine tonics, and 3.2 beer.

Senator REED. I think your point is well taken there. Certainly an alcoholic beverage would have to be defined more definitely if this bill were to be taken up.

Mr. Diggs. I should think so, sir.

Section 2 of the bill is so broad as to be suspectible of manifold interpretations. Section 2 of the bill makes it a criminal offense for a newspaper or other medium of advertising knowingly to cause to be transported in the channels of interstate commerce any publication “advertising alcoholic beverages or containing the solicitation of an order for alcoholic beverages."

The phrase "containing the solicitation of an order for alcoholic beverages" is clear enough and would be well understood by courts and juries, but the phrase "advertising alcoholic beverages" is so broad as to encompass any reference whatsoever to the use of such beverages. It might be broad enough to include news reports as to the use of alcohol. It might also be broad enough to forbid the editorial expression of the owner of the newspaper as to his views on the use of alcohol.

It would forbid to the brewing industry the right to state the basic facts with regard to the contents of its products. It might deny to the industry the right to expound its views on controversial issues of public import.

It might be argued, as I understand it has been contended here, that Congress has no such intention.

That may be, sir. But it seems to me that that is no justification for not making the bill clear in the first instance. Certainly only a few months ago we had our own Supreme Court divided 5 to 4 on a question of congressional intent, when Congress thought it was perfectly clear. And I refer to the Norris-LaGuardia Act.

Section 3 of the bill places an impossible burden on common carriers. I won't belabor that point because counsel for the C. &0. has just touched upon it. But I want to refer, Mr. Chairman, to the constitutional aspects of this legislation, as of great importance. In that regard I wish to make three points.

This bill is a prohibition. It is not regulation. Regulation means to channel the flow, by rules that may be positive or negative in their nature. Such regulation, however, is subject to the due-process provision of the fifth amendment to the Constitution.

The aspect of due process with which we are immediately concerned, is the police power of the Federal Government. A valid exercise of police power must embody, as its objective, the protection of some aspect of public health, morals, or other welfare, and as its modus operandi, an approach which bears a reasonable relation to its motivating purpose.

This bill falls short in both respects.

The facile assumption of counsel for the Antisaloon League that Congress even now has the power of prohibition, regardless of the twenty-first amendment is a statement which bears very close analysis. And I am quoting from a statement made by counsel of the Antisaloon League before this committee, or a subcommittee of this committee on May 29, 1939.

This question is not so clear-cut as it was put by counsel What he in effect is stating is that the Congress, having voted as a matter of national policy, by its advocacy of the twenty-first amendment, that there should be no prohibition of the interstate shipment of alcoholic beverages, and that such advocacy having been ratified by the necessary number of states, may not vitiate the twenty-first amendment by simple congressional act, and repeal that amendment so far as it relates to interstate commerce.

This, sir, is an interesting theory, but it discloses a fundamental misconception of the constitutional history of the United States.

The Federal Government is one of delegated powers and not one of all-pervading sovereignty.

When the States, by virtue of their ratification of the twenty-first amendment, voted that the power over alcoholic beverages was to be reserved to the States, a very serious question is raised as to whether Congress may now render the power of the States nugatory and defeat the twenty-first amendment simply by legislation.

And I have just two final points that I will just take one minute on if I may, sir.

This bill is class legislation. The words “due process of law” come to us from Magna Carta.

As has been stated by the Supreme Court, "They were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice."

Stated in its affirmative sense, “Due process of law” implies a general public law, equally binding upon every member of the community, which embraces all persons who are in, or who may come into, like situations and circumstances, and not partial laws affecting classes of individuals. And I am quoting from a fairly recent decision of the Supreme Court of the United States.

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