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In United States ex rel. Milwaukee Social-Democrat Pub. Co. v. Burleson (1921) (65 L. Ed. 704), the Court upheld the action of the Postmaster General in revoking the second-class mail privilege of a newspaper which, contrary to the Espionage Act of June 15, 1917, systematically contained false reports and false statements published with intent to interfere with the success of the milltary operations of the Federal government.
There was a dissenting opinion by Mr. Justice Brandeis in which he apparently conceded the authority of Congress by law to exclude certain materials from the the mails in the interests of the public welfare, but said:
"As a matter of administration the Postmaster General through his subordinates rejects matter offered for mailing or removes matter already in the mail when in his judgment it is nonmailable. The existence in the Postmaster General of the power to do this cannot be doubted. The only question which can arise is whether in the individual case the power has been illegally exercised. While he may thus exclude from the mail specific matter which he deems of the kind declared by Congress to be nonmailable, he may not, either as a preventive measure or as a punishment order that in the future mail tendered by a particular person or the future issues of a particular paper shall be refused transmission."
In recognition of the authority of Congress, Mr. Justice Brandeis said: “The power to police the mails is an incident of postal power. Congress may, of course, exclude from the mails matter which is dangerous or which carries on its face immoral expressions, threats, or libel. It may go further and through its power to exclude exercise, within limits, general police power over the material which it carries, even though its regulations are quite unrelated to the purpose of transporting mails.”
In Gitlov v. Kiely (44 F. (2) 226, affirmed 49 F. (2) 1077 ; certiorari denied, 76 L. Ed. 550), the action of the Post Office Department in excluding from the mail the paper, The Revolutionary Age, issued by the Communist Party, was upheld.
The most recent expression of the Court on the subject of the mailing privilege is that of Hannegan v. Esquire (1946 (90 L. Ed. (8) 429), in which the Court reviewed the action of the Postmaster General in entering an order denying the publication Esquire the second-class mailing privilege under the wording of 39 United States Congress, section 226, which provided :
"Except as otherwise provided by law, the conditions upon the which the publication shall be admitted to the second class are as follows: It must be originated and published for the dissemination of information of a public character or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers. Nothing herein contained shall be so construed as to admit to the second-class rate regular publications designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates."
The Postmaster General ruled that while the publications were not technically. obscene they were morally improper and not for the public welfare and good.
The Court overruled the Postmaster General, saying:
“The power to determine whether a periodical (which is mailable) contained information of a public character, literature, or art does not include the further power to determine whether the contents meet some standard of the public good or welfare."
The case of a public administrative official seeking to exercise a censorship over matter deposited in the mail is quite different from a situation in which Congress, as the representative of the people, has enacted a regulation defining expressly in the public interest what is mailable or nonmailable.
The Supreme Court in some of these opinions has referred to the fact that the special rate granted by Congress to newspapers by which they are carried at less than cost. This has been justified on the ground of the informational and educational value of the press. When publications containing advertisements of alcoholic beverages are sent into States and communities that have voted against the sale of the commodity being advertised, such publications are carrying on a propaganda and educational campaign through their advertising to promote sales, which is in direct contravention of the policy established by law in the jurisdictions into which such material is being sent, and this is being financed in part by the taxpayer.
The United States Criminal Code, title 18, sections 307–309, penalizes the carrying of mail by other than authorized postal methods.
SIMILAR RESTRICTIONS ON USE OF MAILS FOR DISSEMINATION OF LIQUOR ADVERTISING
ENACTED IN 1917 The Jones-Randall amendment to the Post Office Appropriation Act, approved March 3, 1917, title 18, United States Code, section 341, provides :
"No letter, postal card, circular, newspaper, pamphlet, or publication of any kind containing any advertisement of spirituous, vinous, malted, fermented, or other intoxicating liquors of any kind, or containing a solicitation of an order or orders for said liquors, or any of them, shall be deposited in or carried by the mails of the United States, or be delivered by any postmaster or letter carrier, when addressed or directed to any person, firm, corporation, or association, or other addressee, at any place or point in any State or Territory of the United States, or the District of Columbia, at which it is by the law in force in the State or Territory or the District of Columbia at that time unlawful to advertise or solicit orders for such liquors, or any of them, respectively. If the publisher of any newspaper or other publication or the agent of such publisher, or if any dealer in such liquors or his agent, shall knowingly deposit or cause to be deposited, or shall knowingly send or cause to be sent, anything to be conveyed or delivered by mail in violation of the provisions of this section, or shall knowingly deliver or cause to be delivered by mail anything herein forbidden to be carried by mail, shall be fined not more than $1,000 or imprisoned not more than six months, or both; and for any subsequent offense shall be imprisoned not more than one year. Any person violating any provision of this section may be tried and punished, either in the district in which the unlawful matter or publication was mailed or to which it was carried by mail for delivery, according to the direction thereon, or in which it was caused to be delivered by mail to the person to whom it was addressed. The Postmaster General is hereby authorized and directed to make public from time to time in suitable bulletins or public notices the names of States in which it is unlawful to advertise or solicit orders for such liquors.”
This was omitted in the recodification contained in section 12 of the Liquor Taxing Act of January 11, 1934, and is no longer in effect.
FREEDOM OF SPEECH AND OF THE PRESS
The remaining question to be considered is whether the proposed measure would violate any other provision of the Constitution.
NOT VIOLATIVE OF FIRST AMENDMENT GUARANTEEING FREEDOM OF SPEECH
The article sometimes referred to in this connection is the provision of the first amendment, which declares: “Congress shall make no law * * abridging the freedom of speech, or of the press.
The meaning and scope of this article has been considered by the Supreme Court in a number of cases and it has been given a broad interpretation.
Traditionally, the right of free speech, as guaranteed by the constitutional provision, grew out of the public demand for the right of free expression on civic issues and discussion of public questions. See the opinion of Mr. Justice Sutherland upon this point in Grosjean v. American Press Co., (SO L. Ed. 668).
In the earlier cases there was a tendency on the part of the Court to confine the protection of the amendment to previous restraints, as was said by Mr. Justice Holmes in Patterson v. Colorado ex rel. Attorney General, (205 U. S. 453, 51 L. Ed. 879, 881): "In the first place, the main purpose of such constitutional provisions is to prevent all such previous restraints upon publications as had been practiced by other governments.'”
In more recent times the guaranty of freedom of speech and the press has been broadened beyond what were sometimes referred to as previous restrictions. Mr. Justice Sutherland, speaking for the Court in Grosjean v. American Press Co. (1936) (297 U. S. 233, 80 L. Ed. 661, 66S,) declared : "It is impossible to concede that by the words 'freedom of the press the framers of the amendment intended to adopt merely the narrow view then refiected by the law of England that such freedom consisted only in inmunity from previous censorship."
See also Near v. Minnesota, (283 U. S. 713, 75 L. Ed. 1366); Lovell v. Griffin, (303 U. S. 444, L. Ed. 952).
In these cases the Court also settled the proposition that the fourteenth amendment protects against State action abridging freedom of the press just as the first amendment protects against national action. The Court had declared in Patterson v. Colorado (1907), (20.5 U. S. 454, 51 L. Ed. 881): "We leave unde
cided the question whether there is to be found in the fourteenth amendment a prohibition similar to that in the first.”
While in Prudential Insurance Co. v. Cheek (1922), (259 U, S. 530, 66 L. Ed. 1053), it was said: “But as we have stated, neither the fourteenth amendment nor any other provision of the Constitution of the United States imposes upon the States any restrictions about 'freedom of speech' or of ‘liberty of silence,' nor, as we may add, does it confer any right of privacy upon either persons or corporations."
In Gitlow v. New York (268 U. S. 652, 69 L. Ed. 1145), the Court said: “We do not regard the incidental statement in Prudential Insurance Co. v. Cheek (259 U. S. 530, 66 L. Ed. 1044), that the fourteenth amendment imposes no restrictions on the States concerning freedom of speech, as determinative of the question."
In Near y. Minnesota (1931) (283 U. S. 697, 75 L. Ed. 1363), the Court said: "It is no longer open to doubt that the liberty of the press and of speech is within the law safeguarded by the due-process clause of the fourteenth amendment from invasion by State action.”
To like effect, DeJong v. Oregon, (1937) (81 L. Ed. 279, 299 U. S. 356).
In Grosjean v. American Press Co. (80 L. Ed. 661), the Court held that while a corporation is not a citizen within the meaning of the privileges-and-immunities clause, nevertheless it is a person within the meaning of the equal-protection and due-process-of-law clause of the fourteenth amendment guaranteeing against invasion of freedom of speech.
But even under the broader interpretation of the constitutional provisions relating to freedom of the press adopted in the more recent decisions, there is nothing which militates against the States enacting, in the exercise of their police power, reasonable regulations or prohibitions of the use of the press or similar regulations or prohibitions by the National Government in the exercise of its constitutional powers where they hear a like reasonable relationship to the general welfare.
The cases in which statutes have been invalidated as infringing upon the freedom of the press are clearly distinguishable from the instant proposal. In the case of Lovell v. Griffin (1938) (303 U. S. 444, 82 L. Ed. 952), the Court held invalid an ordinance of the city of Griffin, Ga., saying: "There is thus no restriction in its application with respect to time or place. It is not limited to ways which might be regarded as inconsistent with the maintenance of public order, or as involving disorderly conduct, or molestation of the inhabitants, or the misuse or littering of the streets. The ordinance prohibits the distribution of literature of any kind at any time, at any place, and in any manner without a permit from the city manager."
In Grosjean v. American Press Co. (1936) (2:37 U. S. 233, 80 L. Ed. 680), the Court held invalid a statute of Louisiana exacting a license tax based on gross receipts for the privilege of engaging in the business of publishing advertising in any newspaper, magazine, etc., having a circulation of more than 20,000 copies per week. While the Court recognized the right of the legislature to classify for purposes of taxation, it invalidated this act on the ground that it was discriminatory and was aimed only at certain publications.
In the later case of Western Livestock Co. v. Bureau of Internal Revenue (1938) (303 U. S. 250, 82 L. Ed. 8:23) the Court sustained a statute of New Mexico imposing a tax on gross receipts from the sale of advertising space by a magazine published within the State, although some of the advertising was obtained from other States, when the taxing statute applied uniformly to all publications.
In Herndon v. Loury (1937) (301 U. S. 242, 81 L. Ed. 1066) the Court held invalid a statute of Georgia as construed by the State court for failure to provide a sufficiently ascertainable standard of guilt essential to due process when it penalized attempts by persuasion to induce others to join in the distant future a party or combination to offer forcible resistance to organized government.
In DeJonge v. Oregon (1937) (299 V. S. 3.5+, 81 L. Ed. 278) the Court helil invalid a statute of the State of Oregon which prohibited and punished mere participation in a meeting helt under the auspices of an organization advocating unlawful means to effectuate political changes, where there was no evidence against the accused other than mere participation in the meeting.
In Wear v. Minnesota er rel. Olson (1931) (238 U.S. 697, 70 L. Ed. 1357) a statute of the State of Minnesota providing for the enjoining as a public nuisance the business of regularly and customarily publishing and circulating or giving away a malicious, scandalous, and defamatory newspaper, magazine, or other periodical, unless the owner or publisher shows the truth was published with good motives and for justifiable ends, was held (as to the publishing of charges against public officers for neglecting their duty to suppress crime) inconsistent with the constitutional guaranty of the liberty of the press. Since the disclosure of such conduct might be both scandalous and defamatory, the statute had the effect of suppressing free discussion of public matters and transgressed the constitutional safeguard.
In Stromberg v. California (1931) (283 U. S. 360, 75 L. Ed. 1117) the Court held invalid a section of the penal code of California, as construed by the State court, which penalized the public display of a flag or banner or device as a sign, symbol, or emblem of opposition to organized government as too vague and indefinite and repugnant to the guaranty of liberty contained in the fourteenth amendment. These cases have dealt either with restraints upon the press itself or with the curtailment of political liberty.
On the other hand, statutes which penalize activities for the violent overthrow of the Government have been sustained, as in Gitlov v. New York (1925) (208 U. S. 632, 69 L. Ed. 1138) or the California statute against "criminal syndicalism," in Whitney v. California (1927) 274 U. S. 357, 71 L. Ed. 1095) penalizing the joining of an organization for the violent overthrow of the Government.
But the Court has on many occasions declared that the right of free speech is not an absolute one. In Frohwerk v. United States (249 U. S. 204, 63 L. Ed. 561) the Court, speaking through Mr. Justice Holmes, in upholding a conviction for violation of the Espionage Act of June 15, 1917, as against the contention that it violated the right of free speech, declared : "The first amendment prohibiting legislative action against free speech as such cannot have been and obviously was not intended to give immunity for every possible use of language."
In the case of Associated Press v. National Labor Relations Board (1937) (301 U. S. 103, 81 L. Ed. 953) the Court in its majority opinion said: “The business of the Associated Press is not immune from regulation because it is an agency of the press. The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others. He must answer for libel. He may be punished for contempt of court. He is subject to the antitrust laws. Like others he must pay equitable and nondiscriminatory taxes on his business. The regulation here in question has no relation whatever to the impartial distribution of news.”
And in Robertson v. Baldicin (1897) (165 U. S. 281, 41 L. Ed. 717) Mr. Justice Brown used the following language: “In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (Art 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputations. The right of the people to keep and bear arms (Art. 2) is not infringed by laws prohibiting the carrying of concealed weapons ; the provision that no person shall be twice put in jeopardy (Art. 5) does not prevent a second trial, if upon the first trial the jury failed to agree, or if the verdict was set aside upon the defendant's motion (United States v. Ball, 163 U.' S. 662, 672 )41: 330, 303)); nor does the provision of the same article that no one shall be a witness against himself impair his obligation to testify, if a prosecution against him be barred by the lapse of time, a pardon, or by statutory enactment. Brown v. Walker, 161 U. S. 519, (49 : 819), and cases cited. Nor does the provision that an accused person shall be confronted with the witnesses against him prevent the admission of dying declarations, or the deposition of witnesses who have died since the former trial.”
As a condition for the privilege of entry of publications as secondclass matter, Congress may require the furnishing of certain information with respect to the ownership and circulation of the publications, and require that reading matter paid for shall be marked "advertising.” (Lewis Pub. Co. v. Morgan, 229 U.S. 288).
The act of Congress making it an offense to mail an obscene paper does not contravene this amendment. (Barman v. United States, 50 Fed. 921; United States v. Journal Co., 197 Fed. 415).
The constitutional freedom of the press will not protect the publisher of newspaper articles concerning a pending case, though of public interest, from
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. v. 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.