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contempt proceedings under Judicial Code, section 268, where the articles tend to obstruct the administration of justice (Toledo Newspaper Co. v. United States, 247 U. S. 402). Doctrine expressly overruled in Nye v. United States (1941) (85 L. Ed. 1172), and in the recent case of Bridges v. California, (86 L. Ed. 192 (1941)), it was held that comment on a case while pending, involving a labor dispute, did not under the facts justify a State court in imposing punishment for contempt.
A statute under which an indictment is framed, charging the offense of mailing a newspaper containing an dvertisement of a State lottery, is not obnoxious to the provision which forbids Congress passing any law abridging the freedom of the press. The circulation of newspapers is not prohibited, but the Government declines to become an agent in the circulation of printed matter which it regards as injurious to the people (In re Rapier, 143 U. S. 134; Horner v. United States, 143 U, S. 213; Same v. Same, 143 U. S. 570).
Act of April 16, 1913 (103 Obio Laws, p. 399), creating a board of censors of motion-picture films, held constitutional (Mutual Film Corp. v. Ohio, 236 U. S. 230; Mutual Film Corp. v. Kansas, 236 U. S. 248).
A precedent for the prohibitions of the proposed bill is found in the present provisions of section 316 of the Communications Act of 1934, which prohibits the broadcasting of any advertisement or information concerning any lottery, gift enterprise, or similar scheme.
The Court has pointed out the distinction between commercial advertising and freedom of the press generally. In Mutual Film Co. v. Industrial Commission of Ohio (1915) (236 U. S. 230, 59 L. Ed. 552, 560) the Supreme Court, in sustaining the Ohio law creating the State board of motion-picture censors as against the contention that it violated the provisions of the State constitution guaranteeing freedom of the press, said: "It cannot be put out of view that the exhibition of moving pictures is a business, pure and simple, originating and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio Constitution, we think, as part of the press of the country, or as organs of public opinion.”
See to like effect Mutual Film Corp. y. Hodges (1915) (236 U. S. 248, 59 L. Ed. 561).
In the Federal Alcohol Administration Act Congress has taken cognizance of the difference between commercial advertising of liquor and the general right of freedom of the press in the authority it has vested in the Administrator to promulgate regulations to prevent unfair trade practices and the deception of the public.
In the most recent cases involving freedom of religion, of the press, and of speech, and the power of the courts to punish for contempt, a broadening of the earlier construction of the constitutional provisions is to be noted.
In Marsh v. Alabama (1946) (90 L. Ed. 6) the question was the right of a corporation to promulgate a rule against the distribution of religious tracts in the company-owned streets. The Court said:
Under our decision in Lovell v. Griggin (82 L. Ed. 949) and others which have followed that case, neither a State nor a municipality can completely bar the distribution of literature containing religious or political ideas on its streets, sidewalks, and public places or make the right to distribute dependent on a flat license tax or permit to be issued by an official who could deny it at will. We have also held that an ordinance completely prohibiting the dissemination of ideas on the city streets cannot be justified on the ground that the municipality holds title to them."
In Thomas v. Collins (89 L. Ed. 430) the Court held unconstitutional the provisions of the Texas statute regulating labor unions, requiring a solicitor for members to register as a prerequisite to operating as an organizer in the State, But the basis upon which the Court acted is significant, for it was said:
"Free discussions concerning the conditions in industry and the causes of labor disputes appear to us indispensable to the effective and intelligent uses of the processes of popular government to shape the destiny of modern industrial society."
No such basic consideration is involved in a measure which proposes merely to withdraw the facilities controlled by the Federal Government from the promotion of liquor sales through commercial advertising.
It is respectfully submitted that legislative practice and the decisions of the courts establish the constitutionality of the proposed legislation for these reasons :
1. The bill is intended to deny the facilities of the Federal Government to commercial advertising of alcoholic beverages.
2. The purpose of commercial advertising is the promotion of sales of such beverages.
3. The Supreme Court has repeatedly held that the sale of intoxicating liquor is not one of the inherent rights of citizenship guaranteed either by the fifth or the fourteenth amendments to the Constitution.
4. The twenty-first amendment to the Constitution nas placed intoxicating liquors in interstate commerce in a different category from any other commodity.
5. Since the bill relates to a business which is subject to the fullest measure of regulation or prohibition in the interests of the public welfare, the denial of the use of the federally controlled facilities of interstate transportation, the radio, and the mails for the promotion of the sale of such commodity does not deny any right of free speech or free press guaranteed by the first amendment to the Constitution.
6. It is settled that the liquor traffic may be prohibited entirely without violating any constitutional right. The exercise of a lesser power of regulation of methods by which liquors may be sold clearly does not impinge upon any constitutional right.
EDWARD B. DUNFORD,
Attorney for Anti-Saloon League of America. Mr. JOHNSON. Then I want to make sure that the sheaf of correspondence which has heretofore been directed to this committee from the Interstate Commerce Commission and the Attorney General and the Federal Trade Commission is in the record.
I will file a copy now, and if it is not already in the record, it certainly should be, because it was directed and prepared for that purpose.
Senator REED. Yes, we always ask the various departments of Government for their opinion on a bill of this character. That may be included in the record.
(The correspondence referred to is as follows:)
REPORTS OF GOVERNMENT AGENCIES ON S. 265
INTERSTATE COMMERCE COMMISSION,
Washington, January 24, 1947. Hon. WALLACE H. WHITE, Jr., Chairman, Committee on Interstate and Foreign Commerce,
United States Senate, Washington, D. C. MY DEAR CHAIRMAN WHITE : Mr. Jarrett's letter of January 18, addressed to the Chairman of the Commission and requesting comments on S. 265, introduced by Senator Capper, "To prohibit the transportation in interstate commerce of advertisements of alcoholic beverages, and for other purposes," has been referred to our legislative committee. After careful consideration by that committee I am authorized to submit the following comments in its behalf:
S. 265 is identical in wording with S. 599 (79th Cong., 1st sess.). The question whether from the standpoint of social welfare advertisements of alcoholic beverages should be barred from interstate movement is not related to the jurisdiction of this Commission, and we are therefore unable to express a helpful opinion with respect to the merits of this legislative proposal. Section 3, however, is of some interest to us. It reads as follows:
"It shall be unlawful for any common carrier or for any private carrier for hire to 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."
In the classification of carriers in the Interstate Commerce Act the term “private carrier for hire” is not used. It seems probable that as here used the term is a misnomer for "contract carrier."
Although carriers could not be held liable for violations of such an act unless they knowingly transported liquor advertisements, they might be put to a considerable burden in trying to avoid any possible charge of a violation. The tendency might be for some to refuse to accept any shipments of magazines, picture films, etc., rather than risk such a charge. In other instances where Congress has prohibited movement of certain articles in interstate commerce the act has been made expressly inapplicable to carrier. For exaliple, in the legislation involving misbranded woolen goods the following provision was included (15 U. S. C. 68a) :
“This section shall not apply to any common carrier or contract carrier in, respect to a wool product shipped or delivered for shipment in commerce in the ordinary course of business.”
We respectfully suggest that a provision similar to this, amended to include any' freight forwarder, be substituted for section 3 in the event that your committee should decide to report S. 265. Respectfully submitted.
WALTER M. W. SPLAWN,
CHARLES D. MAHAFFIE,
OFFICE OF THE ATTORNEY GENERAL,
Washington, D. C., April 3, 1947. Hon. WALLACE H. WHITE, Jr., Chairman, Committee on Interstate and Foreign Commerce,
United States Senate, Washington, D. C. MY DEAR SENATOR: This is in response to your request for my views concerning a bill (S. 265) to prohibit the transportation in interstate commerce of advertisements of alcoholic beverages.
The bill would ban interstate transportation of advertising matter relating to alcoholic beverages. It proposes to make it a criminal offense for personsengaged in the sale of alcoholic beverages or for any publisher of a newspaper or periodical or for a carrier to transport or cause to be transported in interstate commerce any newspaper, periodical, newsreel, photographic film, or record for mechanical reproduction, advertising alcoholic beyerages or containing the solicitation of an order for such beverages. · Radio broadcasting of such advertising and solicitations would be prohibited. The mailing of any letter, postal card, circular, or pamphlet containing any such advertisement or solicitation into any State wherein it is unlawful to advertise or solicit orders for alcoholic beverages would also be made illegal.
This legislation would have far-reaching implications and a serious effect on newspapers and periodicals. The law which would prohibit the advertising of alcoholic beverages, a legitimate commodity in most States, would, in effect, require all newspapers and periodicals with interstate circulation to reject ali such advertising.
Sections 2, 3, and 4 of the legislation present a serious question of interpretation as to whether they are intended to be limited to transportation of advertisements from one State or Territory of the United States to another, without affecting advertisements introduced into the United States from foreign countries. If this is the intention, it would place foreign liquor manufacturers and dealers in a favorable position as compared with manufacturers and dealers in the United States.
Whether in the light of the foregoing considerations the bill should receive favorable action is a question of legislative policy for the consideration of the Congress.
I have been advised by the Director of the Bureau of the Budget that there is no objection to the submission of this report. Sincerely yours,
Tom C. CLARK, Attorney General.
FEDERAL COMMUNICATIONS COMMISSION,
Washington 25, D. C. January 21, 1947. HON. WALLACE H. WHITE, Jr., Chairman, Committee on Interstate and Foreign Commerce,
United States Senate, Washington, D. C. DEAR SENATOR WHITE: In a letter, dated January 18, 1947, Mr. Edward Jarrett, clerk of the Senate Committe on Interstate and Foreign Commerce, has submitted to me for comment a copy of a bill, S. 265, Eightieth Congress, first session.
As set out in its title, the general purpose of S. 255 is to prohibit the transportation in interstate commerce of advertisements of alcoholic beverages. Section 4 of the bill provides that it shall be unlawful to broadcast by means of any radio station, or to permit the broadcasting of any advertisement of alcoholic beverages or the solicitation of an order for alcoholic beverages. Section 7 of the bill prescribes criminal penalties for violation of the prohibitions of the bill.
This bill presents questions of national policy with respect to the advertising of alcoholic beverages and will not affect any existing functions of the Commission. Sincerely yours,
CHARLES R. DENNY, Chairman.
OFFICE OF THE POSTMASTER GENERAL,
Washington 25, D. C., March 6, 1947. Hon. WALLACE H. WHITE, Jr., Chairman, Committee on Interstate and Foreign Commerce,
United States Senate, Washington 25, D. C. DEAR SENATOR: Further reference is made to your letter of January 18, 1947, requesting a report upon S. 265, a bill to prohibit the transportation in interstate commerce of advertisements of alcoholic beverages, and for other purposes.
This bill appears to involve matters of general public policy for determination by the Congress.
Since there is a demand for advertising space at the present time, it is doubtful that postal revenues would be reduced by the provisions of this bill. Later, as shortages are overcome, the prohibition of liquor advertising might cause a slight reduction in postal revenues from second-class matter. In any event, it is not believed that the enactment of this bill would affect more than 1 percent of such revenues, or from $250,000 to $300,000 per year. Definite figures on the percentage of advertising space devoted to liquor advertisements are not immediately available. Some increases in the administrative expenses of the Department also would result from the enactment of the measure.
This Department has been advised by the Bureau of the Budget that there would be no objection to the submission of this report to the committee. Sincerely yours.
J. M. DONALDSON, Acting Postmaster General.
FEDERAL TRADE COMMISSION,
Washington 25, D. C., May 6, 1947.
United States Senate, Washington, D. C. MY DEAR MR. CHAIRMAN : In response to a letter from your committee, dated April 14, 1947, relative to S. 265, Eightieth Congress, first session, a bill to prohibit the transportation in interstate commerce of advertisements of alco. holic beverages, and for other purposes, there is submitted herewith, in tripli: cate, the report of our general counsel.
Pursuant to regulations, this report was submitted to the Bureau of the Budget on April 22, and in a letter of May 5, 1947, the Commission was informed by the Budget that there would be no objection to the submission of this report to the committee. The report is dated April 18, 1947.
By direction of the Commission.
GARLAND S. FERGUSON, Chairman.
MEMORANDUM FOR THE COMMISSION
Re S. 265, Eightieth Congress, a bill to prohibit the transportation in interstate
commerce of advertisements of alcoholic beverages, and for other purposes
By letter, dated April 14, 1947, the clerk of the Senate Committee on Interstate and Foreign Commerce, acting by direction of the chairman of the committee, referred to the Commission, for comment, a copy of the above bill. The bill is designed to prohibit the transportation in interstate commerce of any newspaper, periodical, news reel, photographic film, or record for mechanical reproduction advertising alcoholic beverages, and any letter, postal card, circular, or pamphlet containing any such advertisement if directed to a place in any State or Territory at which the advertising of alcoholic beverages is unlawful,
The bill S. 265, Eightieth Congress, is identical with the bill S. 599, Seventyninth Congress, upon which a report has heretofore been submitted. In that report the conclusion was reached that there is no legal or constitutional objection to the enactment of the bill, and this is still my opinion. In that report, too, it was suggested that an act designed to prevent the transmission of advertisements for intoxicating liquors through the channels of interstate commerce, might well contain a preamble declaring the public policy that Congress desires to promulgate, based on the exercise of its power to protect the health, morals, and social welfare of the public, and this suggestion is also here reiterated.
I am attaching, for the information of the committee, a copy of the previous report on the bill S. 599, Seventy-ninth Congress. Respectfully submitted.
W. T. KELLEY, General Counsel. APRIL 18, 1947.
MEMORANDUM FOR THE COMMISSION
Re S. 599, Seventy-ninth Congress, first session, February 22, 1945 (Senator
Capper), a bill to prohibit the transportation in interstate commerce of advertisements of alcoholic beverages, and for other purposes
Pursuant to the direction of the Commission, the following is submitted by way of comment on the above bill, referred to the Commission by Senator Wheeler, chairman of the Senate Committee on Interstate Commerce.
S. bill 599, above referred to, is identical with S. 575, Seventy-sixth Congress, and S. 1369, Seventy-fifth Congress, upon which reports have heretofore been made. In the report on S. 1369, consideration was given to the power of Congress to pass legislation of this character, in the exercise of its power to regulate interstate commerce, of its power over the mails, and in connection with the question as to whether or not such an act violates the constitutional provision guaranteeing freedom of the press. The general conclusion reached was that Congress had the requisite power to paws such an act and that it would not violate constitutional guatanties. This opinion is adhered to. However, there have been some subsequent decisions relating to this subject which will be considered briefly.
The Twenty-first amendment to the Federal Constitution repeals the Eighteenth amendment, and provides also that “the transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” The Eighteenth amendment prohibited the manufacture and sale or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all Territories subject to the jurisdiction thereof, for beverage purposes. Congress and the several States were given concurrent power to enforce the article by appropriate legislation.
Intoxicating liquors have always been held by the courts to be a commodity of such a nature as to be peculiarly subject to regulation under the police power of the States. However, since the repeal of the eighteenth amendment, it is my opinion that Congress, under prevailing decisions, lacks the power to prohibit outright the transportation of intoxicating liquors in the channels of interstate commerce. Such prohibition, it seems to me, would run counter to the public policy laid down in the twenty-first amendment, repealing the eighteenth. However, that is not to say that Congress has been shorn of all power of regulation over intoxicating liquors.