The first inhibition was made by Congress in the Act of March 3, 1865, and by the Act of June 8, 1872, codifying previous laws and organizing the postoffice on its present basis, the use of the mails was denied to obscene matter, cards “upon which scurrilous epithets may have been written or printed, or disloyal devices printed or engraved” and “letters or circulars concerning illegal lotteries.”[139] It has since been made criminal to take obscene or scurrilous matter from the mails for purposes of circulation.[140]
Before the Supreme Court of the United States, the power of Congress to exclude obscene and indecent matter from the mails[141] has never been seriously questioned, and the points presented for determination, largely to the lower federal courts, have not been as to the constitutional authority of Congress.[142] In 1890, the Supreme Court held that under the Act of July 12, 1876 it was not an offence to deposit in the mails an obscene letter, enclosed in an envelope, and refused to consider the amendment made in 1888 which had extended the inhibition to sealed matter, closed to inspection.[143] But in 1895, the Court determined that while the possession of obscene pictures is not forbidden, it is an offence to deposit in the mails a letter, not in itself objectionable, but conveying information as to where, and of whom, such pictures could be obtained.[144] And the next year the Court refused to accept the defence that the obscene matter was mailed in reply to decoy letters by a government detective.[145]
It was held, moreover, that “the words ‘obscene,’ ‘lewd’ and ‘lascivious,’ as used in the statute, signify that form of immorality which has relation to sexual impurity, and have the same meaning as is given them at common law in prosecutions for obscene libel. As the statute is highly penal, it should not be held to embrace language unless it is fairly within its letter and spirit.”[146] The penal code of 1909 extended the language to exclude “every filthy” book, pamphlet, picture or letter, and this in effect overruled the Swearingen case.[147]
There have been questions, also, as to the requirements for a valid indictment, which, it has been held, need not set out the objectionable matter, but must inform the accused of the nature of the charge against him.[148] The courts have varied as to whether the test of obscenity is that laid down by Lord Cockburn: Is the tendency of the matter “to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort would fall”?[149] or the dictionary meaning as “offensive to chastity, decency or delicacy.” The question as to what is obscene, however, is for the jury to determine.[150]
Congress has also denied postal facilities to “all matter otherwise mailable by law, upon the envelope or outside cover or wrapper of which, or any postal card upon which any delineations, epithets, terms, or language of an indecent, lewd ... libelous, scurrilous, defamatory, or threatening character, or calculated by the terms or manner or style of display and obviously intended to reflect injuriously upon the character or conduct of another, may be written or printed or otherwise impressed or apparent.” This prohibition has been extended to include a postal card demanding the payment of a debt and stating that “if it is not paid at once we shall place the same with our lawyer for collection.”[151]
It has been held, however, that “outside cover or wrapper” does not include the outside sheet of a newspaper and thus the postal authorities are unable to exclude periodical publications on the ground that they contain scurrilous or defamatory matter.[152] From time to time bills have been introduced in Congress to authorize the postmaster general to exclude from the second-class privilege publications, as such, single issues of which are found to contain such non-mailable matter; but no favorable action has ever been taken by Congress on any of these bills. An effort has also been made to deny all postal facilities in such cases.[153]
Vigorous objection has been made to the validity of laws excluding obscene matter, but the arguments have in no case any authoritative sponsorship. One writer, for example, urges that “under the pretext of regulating the mails,” Congress controls “the psycho-sexual condition of the postal patrons.” “The statute,” he goes on to say, “furnishes no standard or test by which to differentiate what book is obscene from that which is not.”[154] Such a contention, so far as it is one of constitutional weakness in Congress is plainly invalid. Immoral libels are an offence at the common law, “not because it is either the duty or province of the law to promote religion or morality by any direct means or punishments, but because the line which must be drawn is between what is and is not the average tone of morality which each person is entitled to expect at the hands of his neighbor as the basis of their mutual dealings.”[155] The standard to determine what is obscene is the same as that which has prevailed at the common law.
The right of individuals to use the mails is not an absolute one; the legislative department of the government may impose reasonable restrictions on its exercise. It may say that a public convenience is not to be used to injure the morals of the citizens and may exclude such injurious matter, not with the view of making immorality criminal, but simply in order that the circulation may not be encouraged by the government. And to make this denial of facilities effective, Congress may punish violations. The grant of the postal power (to borrow the language used by the Supreme Court in a commerce case) “is complete in itself,” and “Congress, as an incident to it, may adopt not only means necessary but convenient to its exercise, and the means may have the quality of police regulations.” The right to use the mails is “given for beneficial exercise,” and may be denied when it “is attempted to be perverted to and justify baneful existence.”[156]
With regard to lotteries, however, the case is not so clear. The law declared that “no letter or circular concerning [illegal] lotteries, so-called gift concerts, or other similar enterprises, offering prizes, or concerning schemes devised and intended to deceive and defraud the public, for the purpose of obtaining money under false pretenses, shall be carried in the mail,” and made violation criminal.[157] In 1876 the word “illegal” was stricken out, so that letters or circulars concerning all lotteries were prohibited,[158] and in 1890 the law was further amended so as to include lottery advertisements in newspapers and to permit postmasters to withhold suspected mail.[159] Trial of offenders may take place either in the district where the letter was mailed, or that to which it was addressed.[160]
The Senate Committee in charge of the amendments proposed in 1890, reported the bill to be based “on the conceded power of the government to determine what character of matter may be sent through the mails; and its purpose is to protect the general welfare and morality of the people against the pernicious effects of lotteries.”[161] For authority the committee relied upon the case of Phalen v. Virginia, in which the Supreme Court said: