“I am satisfied that the postmaster general has no legal authority to exclude newspapers from the mail, nor prohibit their carriage or delivery on account of their character or tendency, real or supposed....
“The post office department was created to serve the people of each and all of the United States and not to be used as the instrument of their destruction.... Entertaining these views, I cannot sanction and will not condemn the step you have taken. Your justification must be looked for in the character of the papers detained, and the circumstances by which you are surrounded.”[298] Kendall left it to the discretion of the local postmasters as to whether they would carry out their official duties, or obey the laws of the local jurisdictions.[299]
It was, therefore, no surprise when Jackson adverted to the situation, and in his annual message asked for legislation denying such publications the facilities of the postoffice. President Jackson wrote:
“I must also invite your attention to the painful excitement produced in the south, by the attempts to circulate, through the mails, inflammatory appeals addressed to the passions of the slaves, in prints, and in various sorts of publications, calculated to stimulate them to insurrection and to produce all the horrors of a servile war....
“In leaving the care of other branches of this interesting subject to the state authorities, to whom they properly belong, it is nevertheless proper for Congress to take such measures as will prevent the post office department, which was designed to foster an amicable intercourse and correspondence between all members of the confederacy, from being used as an instrument of the opposite character. The general government to which the great trust is confided of preserving inviolate the relations created among the states by the Constitution is especially bound to avoid, in its own action, anything that may disturb them. I would, therefore, call the special attention of Congress to the subject, and respectfully suggest the propriety of passing such a law as will prohibit, under severe penalties, the circulation in the southern states, through the mail, of incendiary publications intended to instigate the slaves to insurrection.”[300]
On December 21, 1835, Calhoun moved that “so much of the President’s message as relates to the transmission of incendiary publications by the United States mail be referred to a special committee.” King of Alabama expressed the opinion of several that the regular standing committee on postoffices would do, since he “felt a confident belief that there was no disposition in any of its members to have the public mails prostituted to a set of fanatics.” Preston of South Carolina thought that a solution of the evil could be arrived at by a method other than barring the publications from the mail. He proposed “that the depositing of an incendiary publication in the post office should be constituted an offence in the state where it took place, and the letting of it out of the post office should be equally deemed an offence where it occurred.”[301] Nevertheless, Calhoun’s view prevailed and the message was referred to a select committee of which he was made chairman.[302] An elaborate report written by him was presented to the Senate on February 4, 1836,[303] but with the unqualified concurrence of only one fellow committeeman. The others opposed, either any federal action at all, Calhoun’s theory as to the remedy, or some of the details of the measure which was recommended.
The committee’s report was based upon the premise that Congress had not the power to pass legislation in accordance with the President’s recommendation to exclude the objectionable publications from the mails; such a law, Calhoun thought, “would be a violation of one of the most sacred provisions of the Constitution, and subversive of reserved powers essential to the preservation of the domestic institutions of the slaveholding states, and with them, of their peace and security.” This would be closely analogous to the Sedition Act which made it a crime to print “any false, scandalous and malicious writing or writings, against the government of the United States,” or Congress, or the President, “with intent to defame ... or to bring them ... into contempt or disrepute ... or to incite against them, or either of them, the hatred of the good people of the United States.”[304]
But, said Calhoun, postulating the unconstitutionality of these provisions, “as abridging the freedom of the press, which no one now doubts, it will not be difficult to show that if, instead of inflicting punishment for publishing, the act had inflicted punishment for circulating through the mails for the same offence, it would have been equally unconstitutional ... To prohibit circulation, is in effect, to prevent publication ... each is equally an abridgment of the freedom of the press.
“The prohibition of any publication on the ground of its being immoral, irreligious, or intended to excite rebellion or insurrection, would have been equally unconstitutional; and, from parity of reason, the suppression of their circulation through the mail would be no less so.”[305]
The fallacy of this is evident. So far as the Sedition Act is concerned, there are two grounds upon which it could be attacked: lack of congressional power to punish sedition, and abridgment of the freedom of the press. The first question, for present purposes, needs no discussion;[306] but, as for the second, it is well settled that punishment for seditious, obscene, defamatory and blasphemous publications, is not in violation of the freedom of the press.[307] In the United States, then, there is no constitutional restriction which will compel the government impotently to remain the subject of attacks upon its stability. The Act of 1798 was very broad and objectionable on this ground, but the prohibition of seditious utterances urging the use of force or unlawful means to overthrow the government or falsely defamatory of federal officers would not infringe any provision of the bill of rights.[308]