It should be remarked that in these cases the reasoning was largely based on the assumption that prohibiting circulation through the mails was not equivalent to prohibiting publication, and Congress could thus deny postal facilities to matter which it deemed injurious to the people, without interfering with the liberty of the press, since transportation between the states, outside of the mails, would still be possible. But it would seem that this doctrine was repudiated, inferentially at least, when the Supreme Court upheld the law excluding lottery tickets from interstate commerce,[330] and it would, therefore, it seems to me, have been far better if the Court, in the first instance, had adopted other reasoning. It could have held that the liberty of the press suffered abridgment by a denial of postal facilities, but that lottery advertisements, by common opinion, had become as objectionable as immoral writings, and that the latter class,—an exception to the common law guarantee,—could, by reason of a developing moral sense, be made to include the former. Or the Court could have announced as a rule what is probably true, independent of judicial acceptance, that the freedom of the press does not include freedom of advertisement. Or, to advert to the view of Professor Schofield, if the First Amendment protects only publications which have an educational value on matters of national public concern, lottery advertisements do not come within this class; nor do obscene writings.[331] Any one of these theories would have permitted the Supreme Court to render a logical decision, without putting forth a dictum that Congress could not prevent the transportation in other ways of matter excluded from the mails, for this would be a check on circulation which would be a check on publication, and then being forced to take a contrary position in order to declare constitutional a statute which exercised the very power that the Court had doubted. Calhoun’s contention, therefore, seems to be the more logical. As it was, the ratio decidendi of the Court in the Jackson and Rapier cases would have been impossible had the restraint been against writings of an admittedly innocuous character, against political opinions, for example, or against matters not so universally condemned under the police power. And, to repeat, the Court was forced to deny what, I think, is undoubtedly the better doctrine,—that the liberty of the press may be abridged by restrictions on the use of the mails,—a doctrine that will probably be returned to if Congress legislates on publications that are unobjectionable.
The question of anarchistic publications and the postoffice was raised in March, 1908, when President Roosevelt wrote to Attorney General Bonaparte:
“By my direction the Postmaster General is to exclude La Questione Sociale, of Paterson, N. J., from the mails, and it will not be admitted to the mails, unless by order of the court, or unless you advise me that it must be admitted.”[332]
In reply to the President’s letter, Secretary Bonaparte wrote:
“I am obliged to report that I can find no express provision of law directing the exclusion of such matter from the mails, or rendering its deposit in the mails an offense against the United States”; but “I have the honor to advise you that it is clearly and fully within the power of Congress to exclude from the mails publications” such as La Questione Sociale, “and to make the use, or attempted use, of the mails for the transmission of such writings a crime against the United States.”
What Congress thought of anarchy, Mr. Bonaparte said, was shown by the Act of March 7, 1907,[333] excluding and providing for the deportation of anarchists, and the Attorney General made this implied expression of legislative authority (even though in 1903 Congress had expressly refused to pass a law directed against anarchistic publications) a sufficient basis to legalize the action of the President and exclude newspapers which advocated the opinions quoted. The Attorney General’s opinion concluded:
“In the absence of any express provision of law or binding adjudication on this precise point, ... I advise you that, in my opinion, the Postmaster General will be justified in excluding from the mails any issue of any periodical, otherwise entitled to the privileges of second class mail matter, which shall contain any article constituting a seditious libel and counselling such crimes as murder, arson, riot, and treason.”
Such action, the opinion said, would be perfectly safe, since “it is well settled that at common law the owner of a libelous picture or placard or document of any kind is entitled to no damages for its destruction in so far at least as its value may depend on its unlawful significance.” Hence the federal statutes which provide punishment for postmasters who may “unlawfully detain” or “improperly detain” mailable matter, would not operate.[334]
As a matter of fact, the newspaper was excluded for reasons other than its contents, but President Roosevelt transmitted the Attorney General’s opinion to Congress and in a special message said:
“Under this opinion I hold that the existing statutes give the President power to prohibit the Postmaster General from being used as an instrument in the commission of crime; that is, to prohibit the use of the mails for the advocacy of murder, arson, and treason; and I shall act upon such construction. Unquestionably, however, there should be further legislation by Congress in this matter. When compared with the suppression of anarchy, every other question sinks into insignificance.” Congress has since acted by declaring that the term “indecent” in the section against obscene writings, should include “matter of a character tending to incite arson, murder or assassination.”[335]