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It is our view that the instant bill will not meet these constitutional tests.
Finally, Mr. Chairman, this bill strikes at the rights of a free press. The Supreme Court of the United States, in a very recent decision, its most recent decision on this point, declared that the rights of free speech and a free press are not confined to any field of human interest. It goes on to say, "That judgment (as to whether or not it is within the legislative power) 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 has seemed for counsel for the Anti-Saloon League to be a very simple question has been considered a highly perplexing question by the Supreme Court of the United States.
In the very recent case of Esquire v. Walker, the Supreme Court of the United States enjoined the Postmaster General from exercisin 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 the 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 regulation 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.
Mr. Chairman, a Senator from my own State has said that on some occasions, it is necessary to rise above principle. I submit, sir, that this is not such an occasion.
Senator Reed. Are there any other witnesses who desire to appear in opposition to S. 265?
Mr. Leonard Troester of the Chamber of Commerce of the United States has asked for time, as has Mr. Charles J. Facey, representing the International Brotherhood of Bookbinders.
Let the record show that neither were present when their names were called, Mr. Reporter.
Now, Bishop, if we are going to listen to you sum up, we are going to listen to a summing up from the other side.
What do you want now? Ten minutes each?
I think Dr. Morris ought to have 3 or 4 minutes, and then Mr. Johnson ought to have 5 or 6.
Senator REED. We are not going to arrange a joint debate here. You can take your 10 minutes if you want.
. Mr. Brady. If all of the proponents are going to make a summary, I believe we will probably want to have some rebuttal from our side.
Senator REED. No, we are not going to have a joint debate out of this.
You did make a request for a few minutes to sum up, Bishop Hammaker.
If you take time to sum up, the opponents are going to be given time to sum up, equal time.
If you want to take 10 minutes for summing up by Mr. Johnson, or yourself, you are very welcome to do it.
First, however, there is a young woman here who wants to make a brief statement.
Go around to the witness chair, please.
STATEMENT OF MISS BERYL DILL, ARLINGTON, VA.
Miss Dill. My name is Beryl Dill. My address is Arlington, Va.
A lot of the other girls have not had the opportunity to study and know what alcohol is and what it does. They do not realize the results and the end thereof after using alcoholic beverages. They do not realize that it does not make for such a happy or desirable home as the glamourized liquor advertisements try to make it appear.
A nice teen-ager does not appreciate and is getting tired of going to parties where beer and cocktails are served. Teen-agers do not care to have their escorts' brains fogged by even one drink to the point that he cannot be considered 100 percent reliable.
We are tired of seeing and hearing alcoholic beverage ads make it appear that we accumulate our charm and our unbounded intelligence by the use of certain brands.
I beg you, as the future homemakers, to protect tomorrow's home from alcohol advertising by the passage of the Capper bill, S. 265.
Senator REED. Now, Mr. Johnson, do you wish to take your 10 minutes!
I think you had better come around here, if you please. FURTHER STATEMENT OF HENRY M. JOHNSON, PRESIDENT, NA
TIONAL TEMPERANCE AND PROHIBITION COUNCIL, LOUISVILLE, KY.
Mr. JOHNSON. First, there are a few papers here which I desire to get into the record.
One is a brief prepared on the legal and constitutional questions involved in the bill, prepared by Mr. Edward B. Dunford, associate counsel, in this case, for the proponents.
Senator REED. How long is that, Mr. Johnson? We do not want to burden the record too much.
Mr. JOHNSON. I understand that. This particular document is 32 pages.
Senator REED. All right. We will let it appear.
Mr. Johnson. The last gentleman who appeared directed his attention to that phase of it. Of course, we could probably abbreviate and condense it.
Senator REED. No, we let Mr. Digges read his statement, and he was the first witness who has dealt with the legal and constitutional points. I thought he made a very intelligent discussion on his viewpoint. You are entitled to answer him if you want to, so we will incorporate that into the record.
(The brief referred to is as follows:)
BRIEF IN SUPPORT OF THE CONSTITUTIONALITY OF S. 265, A BILL "TO PROHIBIT THE
TRANSPORTATION IN INTERSTATE COMMERCE OF ADVERTISEMENTS OF ALCOHOLIC BEVERAGES, AND FOR OTHER PURPOSES"
By Edward B. Dunford
PROPOSITION OF LAW SUPPORTED BY THIS BRIEF
This brief is submitted in support of the constitutional authority of Congress to enact S. 265, by Senator Arthur Capper, entitled, “A bill to prohibit the transportation in interstate commerce of advertisements of alcoholic beverages, and for other purposes."
OBJECT OF THE BILL
The general purpose of the bill is to prevent the use of the facilities controlled by the Federal Government for the dissemination of advertisements of alcoholic beverages, or the solicitation of orders therefor, when done in the manner proscribed therein. It relates to interstate transportation, radio broadcasting, and the use of the mails.
WHEN INTERSTATE TRANSPORTATION OF ADVERTISEMENTS ILLEGAL Sections 1 and 2 would make it unlawful for any person engaged in the sale of alcoholic beverages, or for any publisher, or the agent of either, to cause to be transported in the mails or otherwise from any State or Territory or the District of Columbia to any other State or Territory or the District of Columbia, any newspaper, periodical, news reel, photographic film, or record for mechanical reproduction advertising alcoholic beverages or containing the solicitation of an order for alcoholic beverages. Such advertising which originates and is circulated within a single State would not be affected, since being wholly intrastate, it would be subject to State law.
The denial of the right of interstate transportation would also apply only to specifically enumerated types of advertising or solicitation, namely, that contained in newspapers, periodicals, news reels, photographic films, or records for mechanical reproduction; but if they contained the prohibited advertising or solicitation, then their interstate transportation would be barred throughout the United States, without regard to the state of the law in the community to which they are consigned.
The provisions of these sections relating to interstate transportation would seemingly not apply to the interstate transportation by express, freight, or air of circulars, pamphlets, or other types of communication advertising alcoholic beverages or containing the solicitation of an order therefor. This type of advertising is governed by section 5, which would withdraw the mailing privilege therefrom when addressed or directed to any place in which by local law it is made unlawful to advertise or solicit orders for alcoholic beverages. A penalty would also be provided for such unlawful mailing.
The penalties against mailing or interstate transportation of newspapers, periodicals, and other publicity media named in sections 1 and 2 advertising alcoholic beverages or containing the solicitation of an order therefor, are applicable only to the sellers of such beverages, the publishers of such advertising, or their agents; that is, those persons engaged commercially in the dissemination of the interdicted advertising or solicitation.
WHEN TRANSPORTATION BY COMMON OR PRIVATE CARRIERS FOR HIRE UNLAWFUL
Section 3 provides a penalty against any common carrier or private carrier for hire who shall transport from any State or Territory or the District of Columbia to any other State or Territory or the District of Columbia, any newspaper, periodical, news reel, photographic film, or record for mechanical reproduction advertising alcoholic beverages or containing the solicitation of an order for alcoholic beverages. This section relates wholly to interstate transportation and would not affect intrastate transportation of the enumerated types of advertising or solicitation.
BROADCASTING OF ALCOHOLIC-BEVERAGE ADVERTISING UNLAWFUL
Section 4 would make it unlawful to broadcast by means of any radio station for which a license is required any advertisement of alcoholic beverages or the solicitation of an order therefor. This would apply to all radio licensees throughout the United States.
WHEN LETTERS, POSTCARDS, CIRCULARS, AND PAMPHLETS ADVERTISING ALCOHOLIC
BEVERAGES NONMAILABLE AND UNLAWFUL
Section 5 would make letters, postcards, circulars, and pamphlets containing any advertisement of alcoholic beverages or the solicitation of an order therefor nonma ilable if addressed or directed to any place in any State, Territory, or the District of Columbia, if at the time it was made unlawful by local law to advertise or solicit orders therein for such beverages. It would be made unlawful also for any person to deposit such mail for delivery in any place contrary to local law.
The Postmaster General would be required to issue annual bulletins giving the names of the States in which it is unlawful to advertise or solicit orders for alcoholic beverages. The language of this section, applicable to letters, postcards, circulars and pamphlets, is substantially the same as that contained in the Jones-Randall antiadvertising amendment in section 5 of the Post Office Appropriation Act approved March 3, 1917.
The undoubted purpose of the section is to deny the right to mail letters, postcards, circulars, or pamphlets advertising alcoholic beverages or containing the solicitation of orders therefor to be sent into those local areas within a State which have voted no-license and in which it is unlawful at the time to solicit orders for such beverages or to advertise them.
Attention is respectfully called, however, to the fact that in the directive to the Postmaster General he is authorized to issue bulletins giving the names of the States in which it is unlawful to advertise or solicit orders for alcoholic beverages. For the purpose of clarification, and to make section 6 conform to the language of section 5, it is suggested that he should be required to issue annual bulletins or notices giving the names of the States and also the names of the places therein in which it is unlawful to advertise or solicit orders for alcoholic beverages.
Article I, section 8. of the Constitution provides that Congress shall have powerto regulate Commerce
among the several States
“To establish Post Offices and Post Roads;
"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers
Article VI of the Constitution provides :
shall be the supreme Law of the Land
POWER TO REGULATE INCLUDES POWER TO PROHIBIT IN APPROPRIATE CASES
While formerly disputed, it is now well settled by many decisions of the United States Supreme Court that the power to regulate includes also the power to exclude, deny, or prohibit the facilities of interstate commerce to articles, commodities, or the use of its facilities for practices deemed inimical to the general welfare. The fact that legislation enacted by Congress pursuant to the commerce clause may have the characteristics of an exercise of the police power constitutes no objection to its validity.
The principles and authorities dealing with this subject are set forth in the opinion of the Supreme Court in the recent case of Kentucky Whip & Collar Co. V. Illinois Central Ry. Co. (1937) (299 U. S. 334; 81 L. Ed. 270). In this case the Court upheld the constitutionality of the act of Congress of July 24, 1935, making it unlawful to knowingly transport in interstate commerce convict-made goods into a State where such receipt was unlawful. There the Court said:
"FIRST. The commerce clause (art. I, sec. 8, pt. 3) confers upon the Congress the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power 'is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution' (Gibbons v. Ogden, 9 Wheat. 1, 196, 6 L. Ed. 23, 70). By the act now before us, the Congress purports to establish a rule governing interstate transportation, which is unquestionably interstate commerce. The question is whether this rule goes beyond the authority to 'regulate.'
“Petitioner's argument necessarily recognizes that in certain circumstances an absolute prohibition of interstate transportation is constitutional regulation, The power to prohibit interstate transportation has been upheld by this Court in relation to diseased livestock, lotte tickets, commodities owned by the interstate carrier transporting them, except such as may be required in the conduct of its business as a common carrier, adulterated and misbranded articles, under the Pure Food and Drugs Act, women for immoral purposes, intoxicating liquors, diseased plants, stolen motor vehicles, and kidnapped persons.
"The decisions sustaining this variety of statutes disclose the principles deemed to be applicable. We have frequently said that in the exercise of its control over interstate commerce, the means employed by the Congress may have the quality of police regulations (Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 29 L. Ed. 158, 166, 5 S. Ct. 826, 1 Inters. Com. Rep. 382; Hoke v. United States, 227 U. S. 308, 323, 57 L. Ed. 523, 527, 33 S. Ct. 281, 43 L. R. A. (N. S.) 906, Ann Cas. 1913E, 905 ; Seven Cases v. United States, 239 U. S. 510, 515, 60 L. Ed. 411, 415, 36 S. Ct. 190, L. R. A. 1916D, 161). The power was defined in broad terms in Brooks v. United States (267 U. S. 432, 436, 437, 60 L. Ed. 699, 700, 701, 45 S. Ct. 345 ; 37 A. L. R. 1407). "Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other States from the State of origin In doing this it is merely exercising the police power for the benefit of the public, within the field of interstate commerce.'
“The anticipated evil or harm may proceed from something inherent in the subject of transportation as in the case of diseased or noxious articles, which are unfit for commerce (Hipolite Egg Co. v. United States, 220 U. S. 45, 55 L. Ed. 364, 31 S. Ct. 364; Oregon-Washington R. & Nav. Co. v. Washington, 270 U. S. 87, 99, 70 L. Ed. 492, 487, 46 S. Ct. 279). Or the evil may lie in the purpose of the transportation, as in the case of lottery tickets, or the transportation of women for immoral purposes (Lottery Case (Champion v. Ames), 188 U. S. 321, 358, 47 L. Ed. 492, 502, 23 S. Ct. 321; Hoke v. United States, 227 U. S. 308, 57 L. Ed. 523, 33 S. Ct. 281, 43 L. R. A. (N. S.) 906, Ann. Cas. 1913E, 905, supra; Caminetti v. United States, 242 U S. 470, 486, 61 L. Ed. 442, 453, 37 S. Ct. 192, L. R. A. 1917F, 502, Ann. Cas 1917B, 1168). The prohibition may be designed to give effect to the policies of the Congress in relation to the instrumentalities of interstate commerce, as in the case of commodities owned by interstate carriers (United States ex rel. Atty. Gen. v. Delaware & H. Co., 213 U. S. 366, 415, 53 L. Ed. 836, 851, 20 S. Ct. 527). And, while the power to regulate interstate commerce resides in the Congress, which must determine its own policy, the Congress may shape that policy in the light of the fact that the transportation in interstate commerce, if permitted, would aid in the frustration of valid state laws for the protection of persons and property. (Brooks v. United States, 237 U. S. 432, 69 L. Ed. 699, 45 S. Ct. 345, 37 A. L. R. 1307, supra; Gooch v. United States, 297 U. S. 124, 80 L. Ed. 522, 56 S. Ct. 395).
“The contention is an admission that the act of Congress is invalid merely because the horse collars and harness which petitioner manufacturers and sells are useful and harmless articles. The motor vehicles, which are the subject of the transportation prohibited in the National Motor Vehicle Theft Act, are in themselves useful and proper subjects of commerce but their transportation by one who knows they have been stolen is a gross misuse of interstate commerce and the Congress may properly punish it because of its harmful result and its defeat of the property rights of those whose machines against their will are taken into other jurisdictions.' (Brooks v. United States, supra, 267 U. S., p. 439, 69 L. ed. 702, 45 S. Ct. 345, 37 A. L. R. 1307). Similarly, the object of the Federal Kidnaping Act is to aid in the protection of the personal liberty of one who has been unlawfully seized or carried away (Gooch v. United States, supra; compare United States v. Wheeler, 254 U. S. 281, 65 L. ed. 270, 41 S. Ct. 133).
“On the same general principle, the Congress may prevent interstate transportation from being used to bring to a State articles the traffic in which the State has constitutional authority to forbid, and has forbidden, in its internal commerce. In that view we sustained the acts of Congress designed to prevent the use of interstate transportation to hamper the execution of State policy with respect to traffic in intoxicating liquors. This was not because intoxicating liquors were not otherwise legitimate articles of commerce. On the contrary, they were recognized as such by the usages of the commercial world, the laws of Congress