CHAPTER VII
The Extension of Federal Control through Exclusion from the Mails
It has already been indicated that, while the postal power of Congress is plenary, extending to the classification and exclusion of articles presented for transmission through the mails, it is not without limits; that its exercise is restricted by provisions found in the Constitution itself,—the guarantees of a free press and immunity from unreasonable searches and seizures. There is, moreover, a further important limitation in that an arbitrary refusal of postal facilities would seem to be a denial of due process of law.
The Supreme Court of the United States has not yet been called upon to set any limit to congressional action under this clause; it has thus far upheld every law restricting the use of the postoffice. But it should be remembered in the discussion which follows that all existing exclusions from the mails can be justified as partaking of the nature of police regulations; the prohibited articles are either inherently injurious, inimical to the health, safety and well being of recipients, or the use of the mails is denied because it would be in furtherance of a design that is condemned by moral considerations or is against public policy.
That this Index Expurgatorius will be extended may be taken for granted. It is in the nature of police regulations that they expand more inclusively and rigorously. For example, in 1912 Congress excluded from the mails moving picture films of prize fights.[418] At the third session of the Sixty-third Congress, moreover, bills were introduced and urged to deny absolutely the use of the mails to any person who, in the opinion of the postmaster general, “is engaged or represents himself as engaged in the business of publishing” any books or pamphlets of an indecent, immoral, scurrilous or libelous character. No letter, packet, parcel, newspaper, book or other thing, said one bill, “sought to be sent through the postoffice by or on behalf or to or on behalf of such person shall be deemed mailable matter, and the postmaster general shall make the necessary rules and regulations to exclude such non-mailable matter from the mails.”[419] The proposed legislation was aimed at certain publications devoted to the unrestrained, defamatory and often indecent criticism of particular religious denominations and their clergy.
The constitutionality of this legislation, however, is open to serious doubt. There can, of course, be no question as to the impairment of religious freedom, for, while this requires freedom of attack, it cannot “justify the violation of public order and common decency”; or, as put by another authority, “the prohibition does not prevent Congress from penalizing the commission of acts, which, although justified by the tenets of a religious sect, are socially or politically disturbing, or are generally reprobated by the moral sense of civilized communities.”[420] Nor is the objection that the freedom of the press would be impaired, since, admitting that a denial of postal facilities would be an impairment of the liberty of publication, the federal guarantee does not include the right to publish scurrilous or libelous utterances on matters of private concern; or, to take Hamilton’s test, there is no publication of truth, with good motives and for justifiable ends.[421]
If the proposed legislation simply made such matter non-mailable and penalized any attempt to use the postoffice for its carriage, it would probably be free from objection. But under the bill quoted above, if it was established that a person made a practice of sending such matter through the mails, the postmaster general would have the absolute authority arbitrarily to deny him facilities for all his mail matter, much of which would be admittedly innocuous; and whether, if the objectionable practices were suspended, the person would again be permitted to make use of the governmental agency, would depend on the discretion of the postmaster general. This official’s authority would, in effect, be to punish for acts not made criminal by Congress. Such legislation would for this reason seem unconstitutional as well as ill-considered.
But this exclusion is in a class by itself. It is an attempt to reach effectively an evil over which there is admittedly some federal control, for Congress may prevent the transmission of scurrilous papers. The objection is to the method of exercise rather than to the existence of the power. Of a different character is the strongly urged proposal that congressional control of the mails may be used as a valid means to compel the performance or non-performance of certain acts by persons, over whom there exists no direct federal authority. In other words, it is contended that Congress has a plenary and arbitrary power to determine who shall use the mails and what articles shall be carried, and therefore may impose any antecedent conditions, no matter how onerous or remote, upon the enjoyment of postal facilities. With the ever increasing frequency and importance of problems demanding a solution by the federal government in the absence of effective, and in some cases even attempted, settlement by the states, Congress is under the necessity of casting about for indirect methods of exerting control, since direct action would be unconstitutional. The use for this purpose of the taxing and commercial powers has in some instances been made, and in others is very strongly urged. It is also argued that Congress may refuse corporations, to whose size, organization, or activities, it objects, the right to sue in federal courts and that national banks may be ordered not to receive their deposits. In asking, therefore, whether it is constitutional for Congress to exert such indirect control under the cloak of regulating the mails, we will merely consider one phase of the larger subject of indirect government.
Such an exercise of power over the mails has been advocated to secure corporate publicity. “Congress,” says one who is in favor of such extension of federal control, “by regulating the use of the mails and channels of interstate commerce, may compel every corporation engaged in any business, whether interstate or not, to give publicity to its corporate affairs, by legislation denying the use of the mails and the instruments of interstate commerce for the transmission of any matter concerning the affairs or business of any corporation that fails to make and file reports of the fullest nature concerning its organization and business, such, for example, as are already exacted from interstate carriers under the Interstate Commerce Act. Such legislation would be valid and enforceable.”[422]
It has been suggested in Congress[423] that an effective punitive method of dealing with monopolistic corporations would be to deny them postal facilities.[424] If such corporations were violating the Sherman Act or were otherwise outlawed by valid legislation, Congress would have the right to deny them the use of the mails, since it would be absurd for the general government to aid, through its instrumentalities, persons or corporations violating laws which it had passed. An illustrative case is afforded by the provision of the Panama Canal Act of August 24, 1912, which says that no vessel owned by any company doing business in violation of any of the acts of Congress relating to interstate commerce “shall be permitted to enter or pass through said canal.”[425]
But it is a different proposition to urge that Congress may deny the use of the mails in order to compel corporate publicity, when, if the legislation directly commanded compliance, it would be clearly ultra vires. Thus, the Pujo Money Trust Committee proposed “that Congress prohibit the transmission by the mails or by telegraph or telephone from one state to another of orders to buy or sell or quotations or other information concerning transactions on any stock exchange, unless [among other conditions] such exchange shall (1) be a body corporate of the state or territory in which it is located.”[426] This proposal was based upon the conclusion of a majority of the committee that “Congress has power to prevent the use of the mails to disseminate quotations or other information concerning transactions on stock exchanges whose facilities are used for purposes of gambling and price manipulation, and that exercising its wide choice of means to that end, it may prohibit the transmission through the mails of any information relating to transactions on exchanges refusing submission to regulations reasonably adapted to preventing the objectionable practices.”[427]