In one of the latest cases construing the amendment, that of Carter v. Commonwealth of Virginia (1944) (88 L. Ed. 605), Mr. Justice Black said in his concurring opinion:

"The twenty-first amendment has placed liquor in a category different from other articles of commerce."

These rulings and the citations of the earlier decisions of Mugler v. Kansas indicate that so far as engaging in the manufacture and sale of liquor is concerned, it is still a privilege and not a right.

POWER TO DEFINE BEVERAGES WHOSE ADVERTISING IS PROHIBITED

In Purity Extract & Tonic Co. v. Lynch (226 U. S. 193, 59 L. Ed. 184), the Supreme Court upheld the authority of the State of Mississippi in the exercise of its police power to prohibit the sale of malt liquors without regard to whether they contained alcohol or were intoxicating, saying:

"It was competent for the legislature of Mississippi to recognize the difficulties besetting the administration of laws aimed at the prevention of traffic in intoxicants. It prohibited, among other things, the sale of 'malt liquors.' In thus dealing with a class of beverages which, in general, are regarded as intoxicating, it was not bound to resort to a discrimination with respect to ingredients and processes of manufacture which, in the endeavor to eliminate innocuous beverages from the condemnation, would facilitate subterfuges and frauds and fetter the enforcement of the law. A contrary conclusion, logically pressed, would save the nominal power while preventing its effective exercise. The statute establishes its own category. The question in this court is whether the legislature had power to establish it. The existence of this power, as authorities we have cited abundantly demonstate, is not to be denied simply because some innocent articles or transactions may be found within the proscribed class."

Congress is possessed of a like power of definition when it exercises any authority conferred upon it by the Constitution. In Ruppert v. Caffey (251 U. S. 264, 64 L. Ed. 260), in sustaining the authority of Congress to adopt the one-half of 1 percent definition, of intoxicating liquors contained in the War Prohibition Act, the Court said:

"The police power of a State over the liquor traffic is not limited to the power to prohibit the sale of intoxicating liquors, supported by a separate implied power to prohibit kindred nonintoxicating liquors so far as necessary to make the prohibition of intoxicants effective; it is a single broad power to make such laws, by way of prohibition, as may be required to effectively suppress the traffic in intoxicating liquors. Likewise the implied war power over intoxicating liquors extends to the enactment of laws which will not merely prohibit the sale of intoxicating liquors, but will effectually prevent their sale. Furthermore, as stated in Hamilton v. Kentucky Distilleries & Warehouse Co. (251 U. S. 146, ante, 194, 40 Sup. Ct. 106), while discussing the implied power to prohibit the sale of intoxicating liquors: 'When the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a State of its police power.''

RADIO IS A MEDIUM OF INTERSTATE COMMERCE

In the early days of the development of the radio in this country the Supreme Court appeared reluctant to pass upon the legal status of the new art until it had become more fully developed. See introduction to Dill on Radio Law, p. VIII.

In 1933, the Court decided the case of Federal Radio Commission v. Nelson Bros. B. & M. Co. (289 U. S. 266, 77 L. Ed. 1166), in which certain definite legal principles relating to the status of radio were established. Mr. Chief Justice Hughes, speaking for the Court, used the following language:

"No question is presented as to the power of the Congress, in its regulation of interstate commerce, to regulate radio communications. No State lines divide radio waves, and national regulation is not only appropriate but essential to the efficient use of radio facilities."

Although the Chief Justice pointed out that the record in the case did not raise the question of the power of Congress to regulate radio as an instrumentality of interstate commerce, the language used by the Court and the fact that it took jurisdiction showed clearly its view that radio is to be regarded as an instrumentality of interstate commerce.

Prior to this decision by the Supreme Court; all of the courts which had passed upon the question had held the radio to be an instrumentality of interstate commerce. See:

· American Bank & Mortgage Corp. v. United States (C. C. A. 7, 52 Fed. (2) 318) Trinity Methodist Church, South, v. Federal Radio Commission, D. C. (Ct. App. 62 Fed. (2) 850, 61 App. D. C. 311).

FKB Broadcasting Assn. v. Federal Radio Commission (60 App. D. C. 79, 47 Fed. (2) 670).

City of New York v. Federal Radio Commission (59 App. D. C. 129, 36 Fed. (2) 115).

General Electric Co. v. Federal Radio Commission (58 App. D. C. 386, 31 Fed. (2) 630).

Station WPT v. Poulnot (D. C.) (46 Fed. (2) 671).

There do not appear to be any decisions to the contrary.

In Associated Press v. National Labor Relations Board (301 U. S. 103, 81 L. Ed. 953), the Supreme Court held that the power of Congress to regulate interstate commerce is not exceeded by applying the National Labor Relations Act of 1935 (49 Stat. at L. 449, C. 372, 29 U. S. C., Sec. 151) prohibiting the discharge of employees because of union activities, in the case of an editorial writer employed by the Associated Press to determine the news value of items received and to rewrite such items for transmission to members of the Associated Press throughout the United States. The Court said:

"Interstate communication of a business nature, whatever the means of such communication, is interstate commerce regulable to Congress under the Constitution. This conclusion is unaffected by the fact that the petitioner does not sell news and does not operate for profit, or that technically the title to the news remains in the petitioner during interstate transmission."

RADIO BROADCASTING A PRIVILEGE, NOT A RIGHT

The Federal Radio Act of 1927 authorized the Commission to issue licenses upon the basis of "public interest, convenience or necessity," and by the Davis amendment of 1928 it was authorized to establish and maintain "as nearly as possible equity of broadcasting service to each of the several zones and to make a fair and equitable allocation of licenses," etc., to each of the States within those zones.

The Supreme Court in Federal Radio Commission v. Nelson Bros. B & N. Co., (289 U. S. 267, 77 L. Ed. 1167) upheld the action of the Federal Radio Commission in refusing the renewal of the licenses of two long-established stations in the State of Illinois and giving the wave frequency assigned them to a station in Indiana. It was found that there was an excess number of licenses in force in Illinois and a deficiency alloted to Indiana, and the evidence, in the judgment of the Commission, showed that the public convenience and interest would be better served through the granting of the license to the Indiana station.

It was held that under this state of facts the denial of the licenses was proper, did not constitute arbitrary action, nor result in the forfeiture of the property of the petitioners because the original licenses of the stations in question were issued "on a temporary basis and subject to such action as the Commission may take after hearing on the application filed by the Illinois station."

In its opinion the Court said:

"This broad authority plainly extended to the deletion of existing stations if that course was found to be necessary to produce an equitable result.

"That the Congress had the power to give the authority to delete stations, in view of the limited radio facilities available and the confusion that would result from interferences, is not open to question.

"Those who operated broadcasting stations had no right superior to the exercise of this power of regulation."

This decision established that there is no absolute right to the use of the radio as a medium of publicity. The large demand for station licenses and the limited number of frequencies which can be assigned, caused Congress to do the only practical thing, viz., to create a Commission with power to issue and revoke licenses based upon showing public convenience, interest, or necessity (Title 47, sec. 303, U. S. C.). Not everyone, therefore, can obtain a station license, and a continuance of a license once granted must depend upon the licensee being able to demonstrate that his programs are in the public interest. The act expressly declares in section 301, "And no such license shall be construed to create any right beyond the terms, conditions, and periods of the license."

The ability of the individual citizen to obtain the use of the radio as a means of expressing his views is further limited by reason of the fact that he must find a radio station that is willing to accept his program. Congress refused to make this medium of interstate commerce a common carrier like the telegraph or telephone companies, which are required to transmit messages for anyone who may apply. (See Dillon Radio Law, p .75; Sta Shine Products Co. v. Station WGBB, 188 I. C. C. 277; also sec. 3 (b) of Federal Communications Act of 1935.)

RESTRICTIONS IN PRESENT FEDERAL COMMUNICATIONS ACT

The following prohibitions and limitations now obtain with respect to the use of the radio under the present law:

Even a candidate for public office who desires to discuss public issues— one of the principal subjects the constitutional provision for free speech was designed to protect-is not entitled to the use of the radio as a matter of right. He may exercise the privilege of radio time only if the station licensee consents. The law merely requires that if the operator permits one candidate to use the radio he must permit other candidates to do so on like terms.

The Federal Communications Act (U. S. C., title 47, sec. 315) provides : "If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station, and the Commission shall make rules and regulations to carry this provision into effect: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is hereby imposed upon any licensee to allow the use of its station by any such candidate."

Title 47, section 316, provides:

"No person shall broadcast by means of any radio station for which a license is required by any law of the United States, and no person operating any such station shall knowingly permit the broadcasting of, any advertisement of or information concerning any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any list of the prizes drawn or awarded by means of any such lottery, gift enterprise, or scheme, whether said list contains any part or all of such prizes. Any person violating any provision of this section shall, upon conviction thereof, be fined not more than $1,000 or imprisoned not more than 1 year, or both, for each and every day during which such offense occurs."

The use of obscene, indecent, or profane language is prohibited by title 47, section 326:

"No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication."

This provision has been upheld by the courts. In Duncan v. United States (1931) (C. C. A. 9, 48 Fed. (2) 128), the court said:

"The appellant does not dispute the right of Congress to regulate interstate communication by radio, but his claim is that the prohibition of the use of obscene language over the radio in such interstate commerce is not a regulation of that commerce; that the remedy for such evils is an appeal to the law of the State in which the broadcasting station is situated; that the use of such language is one properly punishable under the police power of the State, and that under the tenth amendment to the Constitution of the United States such powers are reserved to the States from the United States."

But that court denied the contention of the appellant and sustained a conviction holding that the word used by the defendant was profane within the meaning of the act of Congress. The United States Supreme Court denied a certiorari in this case (283 U. S. 863, 75 L. Ed. 1468).

Title 47, section 325 (a), prohibits the broadcasting of false distress signals: "No person within the jurisdiction of the United States shall knowingly utter or transmit, or cause to be uttered or transmitted, any false or fraudulent signal of distress, or communication relating thereto."

Title 47, section 325 (b) prohibits the rebroadcasting over foreign stations of programs originating in the United States except upon permission of the Commission:

"No person shall be permitted to locate, use, or maintain a broadcast studio or other place or apparatus from which or whereby sound waves are converted into electrical energy, or mechanical or physical reproduction of sound waves pro

duced, and caused to be transmitted or delivered to a radio station in a foreign country for the purpose of being broadcast from any radio station there having a power output of sufficient intensity and/or being so located geographically that its emissions may be received consistently in the United States, without first obtaining a permit from the Commission upon proper application therefor."

The laws of libel are applicable to radio broadcasting (KFKB Broadcasting Co. v. Sorenson, 123 Nebr. 348, 243 N. Y. 82, 82 A. L. R. 1098).

The right of free speech does not confer the right to practice law by radio. In Rosenthal v. Shepard Broadcasting Service (1938) (— Mass. - 12 N. E. (2) 819, 114 A. L. R. 1502) the Supreme Judicial Court of Massachusetts held that a corporation operating a broadcasting station for profit violated the statute of Massachusetts (G. L. (Ter. Ed.) C. 221, sec. 46, as amended by St. 1935, ch. 346, sec. 1) which forbids a corporation to practice law by broadcasting a program known as the Good Will Court. This program consisted of statements of legal questions which members of the public were invited to submit, and of answers thereto given by persons occupying or who had occupied judicial positions, although accompanied by a disclaimer of intention to offer legal service as a substitute for that given by attorneys.

The right of free speech was also held not to confer the right to practice medicine in the interests of the licensee of the station in the case of KFKB Broadcasting Assn. v. Federal Radio Commission (1931) (47 Fed. (2) 670). There the Court of Appeals of the District of Columbia upheld the decision of the Radio Commission in refusing to renew a license to Station KFKB, saying:

"In its Facts and Grounds for Decision, the Commission held 'that the practice of a physician's prescribing treatment for a patient whom he has never seen, and bases his diagnosis upon what symptoms may be recited by the patient in a letter addressed to him, is inimical to the public health and safety, and for that reason is not in the public interest'; that 'the testimony in this case shows conclusively that the operation of station KFKB is conducted only in the personal interest of Dr. John K. Brinkley. While it is to be expected that a licensee of a radio broadcasting station will receive some remuneration for serving the public with radio programs, at the same time the interest of the listening public is paramount, and may not be subordinated to the interests of the station licensee.'

The right of free speech also does not confer the right to appropriate the news covered by a press agency. In Associated Press v. KVOS (1935) (C. C. A. 9th, 80 Fed. (2) 575) news gathered by a press agency and distributed to newspapers for publication was held to be so far, its property that it was entitled to protection ́ against its being pirated or appropriated verbatim by a radio station in broadcasting such news (for which, of course, no charge was made to listeners) over a "newspaper of the air" while the news was hot.

Likewise, the right of free speech does not give the privilege of infringing a copyright. In Buck v. Jewell-LaSalle Realty Co. (283 U. S. 191, 75 L. Ed. 971) it was held:

"The acts of a hotel proprietor in making available to his guests, through the instrumentality of a radio receiving set and loud speakers installed in his hotel, under his control, for the entertainment of his guests, the hearing of a copyrighted musical composition which had been broadcast from a radio transmitting station, constitute a performance of such composition within the meaning of the provisions of the Copyright Act giving the owner the copyright of a musical composition the exclusive right of performance."

In upholding the revocation of a license of Trinity Methodist Church, South v. Federal Radio Commission (1932) (62 Fed. (2) 850) the court of appeals said regarding the nature of the privilege of broadcasting:

"If it be considered that one in possession of a permit to broadcast in interstate commerce may, without let or hindrance from any source, use these facilities, reaching out, as they do, from one corner of the country to the other, to obstruct the administration of justice, offend the religious susceptibilities of thousands, inspire political distrust and and civic discord, or offend youth and innocence by the free use of words suggestive of sexual immorality, and be answerable for slander only at the instance of the one offended, then this great science, instead of a boon will become a scourge, and the Nation a theater for the display of individual passions and the collision of personal interests. This is neither censorship nor previous restraint, nor is it a whittling away of the rights guaranteed by the first amendment, or an impairment of their free exercise. Appellant may continue to indulge his strictures upon the characters of men in public office. He may just as freely as ever criticize religious practices of which he does not approve. He may even indulge private malice or personal

slander-subject, of course, to be required to answer for the abuse thereof-but he may not, as we think, demand, of right, the continued use of an instrumentality of commerce for such purposes, or any other, except in subordination to all reasonable rules and regulations Congress, acting through the Commission, may prescribe.

"Nor are we any more impressed with the argument that the refusal to renew a license is a taking of property within the fifth amendment. There is a marked difference between the destruction of physical property, as in Pennsylvania Coal Co. v. Mahon (260 U. S. 393; 43 S. Ct. 158, 67 L. Ed. 322, 28 A. L. R. 1321) and the denial of a permit to use the limited channels of the air. As was pointed out in American Bond & Mtg. Co. v. United States (C. C. A. 52 F. (2d) 318, 320), the former is vested, the latter permissible, and, as was said by the Supreme Court in Chicago, B. & Q. R. Co. v. Illinois (200 U. S. 561, 593, 26 S. Ct. 341, 350, 50 L. Ed. 596, Ann. Cas. 1175): 'If the injury complained of is only incidental to the legitimate exercise of governmental powers for the public good, then there is no taking of property for the public use, and a right to compensation, on account of such injury, does not attach under the Constitution.' When Congress imposes restrictions in a field falling within the scope of its legislative authority and a taking of property without compensation is alleged, the test is whether the restrictive measures are reasonably adapted to secure the purposes and objects of regulation. If this test is satisfied, then 'the enforcement of uncompensated obedience' to such regulation is not an unconstitutional taking of property without compensation or without due process of law.' Atlantic Coast Line R. Co. v. Goldsboro (232 U. S. 548, 558, 34 S. Ct. 364, 58 L. Ed. 721.)"

THE UNITED STATES MAILS

Title 18, United States Code, sec. 340, declares the following shall be nonmailable:

"All kinds of poison, and all articles and compositions containing poison, and all poisonous animals, insects, and reptiles, and explosives of all kinds, and inflammable materials, and infernal machines, and mechanical, chemical, or other devices or compositions which may ignite or explode, and all disease germs or scabs, and all other natural or artificial articles, compositions, or material, of whatever kind, which may kill or in anywise hurst, harm, or injure another, or damage, deface, or otherwise injure the mails or other property, whether sealed as first-class matter or not, are hereby declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or station thereof, nor by any letter carrier; but the Postmaster General may permit the transmission in the mails, under such rules and regulations as he shall prescribe as to preparation and packing, of any articles hereinbefore described which are not outwardly or of their own force dangerous or injurious to life, health, or property: Provided, That the transmission in the mails of poisonous drugs and medicines may be limited by the Postmaster General to shipments of such articles from the manufacturer thereof or dealer therein to licensed physicians, surgeons, dentists, pharmacists, druggests, cosmetologists, barbers, and veterinarians, under such rules and regulations as he shall prescribe: Provided further, That all spirituous, vinous, malted, fermented, or other intoxicating liquors of any kind are hereby declared to be nonmailable and shall not be deposited in or carried through the mails. Whoever shall knowingly deposit or cause to be deposited for mailing or delivery, or shall knowingly cause to be delivered by mail, according to the direction thereon

* *

Title 39. United States Congress, section 227, provides:

"Nothing herein contained shall be so construed as to allow the transmisson through the mails of any (foreign) publication which violates any copyright granted by the United States."

In the Matter of Orlando Jackson (1878) (24 L. Ed. 877) the Court sustained a conviction of a defendant, indicted for knowingly and unlawfully depositing in the mail a circular concerning a lottery offering prizes, as against the contention that the act was unconstitutional on the ground that it violated the right of freedom of the press. In its opinion the Court said:

"In excluding various articles from the mail the object of Congress has not been to interfere with the freedom of the press or with any other rights of the people, but to refuse its facilities for the distribution of matter deemed injurious to the public morals."