The postal power of Congress: A study in constitutional expansion

by Lindsay Rogers

The Attorney General in his opinion, it may be remarked, did not mention the freedom of the press, and this question was not involved. From what has already been said, it follows that there is no question as to the competency of Congress to pass legislation designed to deny the mails to anarchistic publications if they incite to crime. But the Attorney General’s argument as to the power of the President was not well founded; it granted to an administrative officer arbitrary discretion based on no explicit or implied legislative authority, and sanctioned the exercise of this power on the ground that the one injured could have no legal redress. It is, however, simply a question of whether the exclusion was ultra vires, not whether it was an abridgment of the freedom of the press.[336]

The latest question of the freedom of the press was considered by the Supreme Court in 1913 when it sustained the so-called “newspaper publicity law.” This required publications entered as second class matter (with a few exceptions) to furnish the postoffice department with, and publish semi-annually, a sworn statement of their editors and owners, in addition to marking as an advertisement anything for the publication of which, compensation is received. Newspapers were also required to give information as to their circulation figures.[337]

The law was vigorously assailed as being ultra vires, as denying due process of law, and as impairing the freedom of the press. It “establishes,” said one of the counsel, “a governmental control over newspaper publishers and dictates to them what shall or shall not be published and the manner, form, and time of publishing. In other words, Congress in plain language provided that matter inherently proper and mailable shall be unmailable, not on account of any inherent defect, but solely because the publisher may refuse or neglect to advise the public of certain of his private matters as to which Congress seems to desire the public to be informed. This is not regulation, but paternalism, and a direct and positive abridgment of the freedom of the press.”[338]

The Supreme Court, however, by a narrow line of reasoning, sustained the statute, the opinion showing that in order to receive “entry” as second class matter and get the benefit of low rates, the publication must answer a number of questions concerning ownership, editorial supervision, circulation, sample copies, and advertising discrimination. The Court considered the new law as simply laying down additional conditions, compliance with which would enable the publishers to continue “to enjoy great privileges and advantages at the public expense.” The Court went on to say:

“This being true, the attack on the provision in question as a violation of the Constitution because infringing the freedom of the press and depriving of property without due process of law, rests only upon the illegality of the conditions which the provision exacts in return for the right to enjoy the privileges and advantages of the second class mail classification. The question, therefore, is only this: Are the conditions which were exacted incidental to the power exerted of conferring on the publishers of newspapers, periodicals, etc., the privileges of the second class classification, or are they so beyond the scope of the exercise of that power as to cause the conditions to be repugnant to the Constitution? We may say this is the question, since necessarily if the power exists to legislate by discriminating in favor of the publishers, the right to exercise that power carries with it the authority to do those things which are incidental to the power itself, or which are plainly necessary to make effective the principal authority when exerted.”[339]

Whether this reasoning seems convincing or not, it must nevertheless be conceded that legislation to the same effect, not based upon the power of Congress over the mails, would be unconstitutional, and that in this case, Congress has been permitted to do by indirection what it has not the power directly to accomplish. The step is a short one to requiring, for a continuance of the low second class rates, that newspapers print, or refrain from printing, reading matter of a specified character. The decision, however, lends no support to the belief that if this indirect regulation is carried further, or if there is a real interference with the freedom of the press, the Supreme Court will not intervene.

Such are the incidents in which the liberty of the press has figured, and it is difficult to see how it has ever been abridged. The executive order of President Roosevelt excluding La Questione Sociale from the mails was ultra vires, but, as Attorney General Bonaparte pointed out, the injured parties had slight chance of a remedy at law. Certain it is that the paper in question was so seditious that under a state statute publication could have been stopped, and that an Act of Congress, forbidding such periodicals the privilege of the mails, would not have been in violation of the First Amendment.

The decisions of the Supreme Court which have been quoted lead to no conclusion other than that any attempt on the part of Congress to place a previous restraint upon the press, or even to deny it postal facilities, for no discernible reason, would receive a judicial veto. The exclusion of lottery tickets, obscene matter, and other writings inimical to the public morals, has been clearly within the power of Congress, and legislation forbidding seditious and anarchistic publications when directed against the federal government, or banning them from the mails, would be constitutional. It is true that the “newspaper publicity law,” strictly speaking, is a previous restraint, but the Supreme Court considered it as merely laying down additional and reasonable conditions, compliance with which would enable periodical publications to continue to enjoy great and exclusive advantages of second class privileges,—a satisfactory, if not conclusive basis for the decision; as interpreted by the Court, the act promotes, rather than abridges, the liberty of the press.

Neither reason nor precedent justifies the view, eloquently urged by counsel in this case, that Congress by the law exercises “a governmental control over newspaper publishers and dictates to them what shall not be published, and the manner, form, and time of publishing.” On the contrary, that great “palladium of liberty,”—the freedom of the press,—seems to be in no danger of demolition through congressional action.

Unreasonable Searches and Seizures.—As with the freedom of the press, the Supreme Court of the United States has rarely been asked to restrain the postal power under the provision of the Fourth Amendment to the Constitution which declares that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[340] The scope of this limitation, as applied to the mails, has been described by the Supreme Court in the following terms: