ROWAN v. U. S. POST OFFICE DEPT.
Legal provision: Amendment 1: Speech, Press, and Assembly
Argument of Joseph Taback
Chief Justice Warren E. Burger: Number 399, Rowan doing Business as American Book Service against the United States.
Mr. Taback, you may proceed whenever you’re ready.
Mr. Joseph Taback: Mr. Chief Justice and may it please the Court.
The appeal here before this Court, is from a judgment of the three-judge court of the United States District Court with the Central District of California.
The jurisdiction of the Court is grounded upon Section 1253 of the Title 28 of United States Codes.
The appellants are in the mail order business.
They are distributors and disseminators of books, pamphlets, various matters and materials that traffic and conduct its way through the mail.
The law which is brought here on focus by this appeal is Section 301 of the Public Law 90206 or is codified 39 US Code 4009.
The action below was that for declaratory relief and seeking an injunction against the enforcement, implementation, and administration of the statute.
The result in the court below was a verdict of three to nothing, upholding the constitutionality of the statute and denying the relief sought.
Upon this appeal, it does seem that the issues are made much clear then they were even in the court below.
This is come to be because a statute which reportedly was not an ambiguous has now received the same interpretation by the Government as well as the appellants herein.
Well, interpretation is contrary to the construction inter -- and the interpretation given by the US District Court.
This is a new twist, if you will, a matter which is occurred at the time of this appeal.
Justice John M. Harlan: What was the matter of dispute?
Mr. Joseph Taback: I say this is a matter which is now occurred at the time of appeal.
Part of that Mr. Justice Harlan, the Government and more particularly at the time of their motion to affirm, attempted to adopt the view and interpretation of the US District Court which incidentally was by way of two votes for one interpretation and other vote for another construction.
Justice Potter Stewart: In the District Court, did the Government take the position as to the meaning and construction of the statute that it takes here or did invite the District Court to take the position of that Court took?
Mr. Joseph Taback: Mr. Justice Stewart, in answer to your question, the Government did take the view that they take here today, in the District Court.
However, upon examination by one of the three judges, the Government did become somewhat, took a dual role if you will, but I would have to answer that they did adopt the view which they adopt today in the District Court.
Justice Potter Stewart: But during the presentation of the case the counsel perhaps saw which way the wind was blowing, can (Inaudible), did he?
Mr. Joseph Taback: I would believe that to be your first statement, Mr. Justice Stewart.
Chief Justice Warren E. Burger: In fact do will you mean alternative positions or is that --
Mr. Joseph Taback: In answer to your question --
Chief Justice Warren E. Burger: Correct adaptation?
Mr. Joseph Taback: -- in answer to your question, Mr. Chief Justice, I feel that the Government took a very strongly position in their argument and therefore, I could not feel that it was an alternative position per se.
I think that would be my distinction.
They were quite positive in what this legislation meant.
They were quite conscious to the legislative history and the plain meaning of the statute.
The statute itself, involves the mailing of materials or advertising which maybe turned off by a recipient, if that recipient in his sole discretion determines that it is a erotically arousing or sexually provocative.
Upon making such a discretionary determination, the recipient may obtain a prohibitory order from the Post Office Department issued against the mailer, his assigns or his agents.
That order or the contents of the order are set forth in the statute.
Three things must be placed in the order, and we say must in the mandatory sense because the statute calls for shall, the Postmaster General shall and he shall order the mailer, “Do not mail anything further to such a complaining recipient.”
He shall direct the mailer to remove from any list in his possession or under his control or the under the control of his agents or assigns the name of such a complaining addressee.
And thirdly, this order shall direct the mailer, “Do not sell, transfer, exchange or rent any list containing the name of the complaining addressee.”
This order then is served upon the mailer.
The difficulty –-
Justice Potter Stewart: Before this is an accurate form in the back of the -- of your opening brief, right?
Mr. Joseph Taback: Mr. Justice Stewart that is Exhibit A to the appellant's opening brief is an exact order and it is the order arising out of the case reference in the appendix of Lee Jay Winkler which appears at page 22 of the appendix and is in connection with the matters set forth there.
The first principal problem as same relates to the First Amendment, appellants contend that to repose within an addressee the discretionary power to say, “I do not want anything that you send to me, any mail,” appellants submit is a direct violation and in complete derogation of the First Amendment.
Chief Justice Warren E. Burger: That's the case, isn't it right there, the while case?
Mr. Joseph Taback: That is -- Mr. Chief Justice that is certainly one of the principal issues.
I think in conjunction therewith, we have a secondary aspect of the First Amendment and that is namely, the further mailing of any materials which in that aspect becomes a prior restraint, it not only as prohibition but it is an inhibition depending on which interpretation this Court might involve itself with or look at for the statutory construction.
Chief Justice Warren E. Burger: Well, is it your view that the statute is broad enough so that if it could reach Sears Roebuck catlog or Montgomery word “catalog”.
Mr. Joseph Taback: Mr. Chief Justice, it has reached the Sears Roebuck catlog, it has reached the Family Heritage bible, it has reached various organizations and I think that what is the subject of one of the -- on the amicus briefs here before this Court.
Chief Justice Warren E. Burger: And you think a citizen has no right to say the Sears Roebuck or Montgomery Word, I don't want your catalog and don't send it to me?
Mr. Joseph Taback: That certainly is one of the principal issues in this case and an answer to that Mr. Chief Justice, I believe there are several of facets.
I believe that the under First Amendment, the free expression through the mails is of more paramount right, the more fundamental right within the society.
So hence, if we must create polarity between what has been termed as the right of privacy which I believe you elude to, the answer of appellants is that the free speech is far more paramount and must override that aspect of the recipient saying, “I do not want or I have a right not to receive.”
In addition, we submit however and I think this is more fundamental, that assuming arguendo that a recipient does has have such a right, this statute goes too far, too fast and hence we are never met by the issue.
I submit that this is an issue created by the Government in saying that right of privacy has now being polarized with free speech, but I believe that there are too many pitfalls before we arrive at that point.
Chief Justice Warren E. Burger: Do you place this on a higher claims or more preferred position than the right to address oral communications?
Mr. Joseph Taback: I don't believe Mr. Chief Justice that there are any claims.
I don't believe that there is a latter within the First Amendment.
I believe that each mode of communication as this Court has said, in a sense spins upon its own peculiarly or on its own way and must be looked at.
I believe in this complex, urban society in which we reside, the mails are a very important vehicle.
So, I do not in anyway determine which is the higher form of communication.
I think communication is protected by the First Amendment per se.
Chief Justice Warren E. Burger: Then it would follow that your clients could stand outside of the mailbox or on the premises and make a speech, and require the occupant to listen to it, there are no difference in the claims.
Mr. Joseph Taback: This particular aspect again goes back to the annunciations that have been made previously that each mode of expression, each form of expression rather pivots upon its own.
The situation of standing outside of one's home and making the speech has the element of a helpless inescapable recipient.
Chief Justice Warren E. Burger: But there's a little bit of trespass in there, isn't there?
Mr. Joseph Taback: There could well be.
There could well be, but then again, there is always trespass whenever we have speech in a sense there is always someone who does not want to hear what the other person says and I suppose that there is trespass when they sound of one's voice or the wave lengths bounce off his ears but in the society which has preferred free speech that trespass must give way to the greater right embodied within the Constitution.
Justice Thurgood Marshall: Well, assuming that as a citizen who does not like certain kinds of literature and doesn't want it in his house and is appalled by just a presence of it in his house.
How can you stop him finding that literature through his mail slot in his house.
How can he stop that?
How can he protect his “privacy”?
Mr. Joseph Taback: Well, Mr. Justice Marshall, I believe that inherit in that question would be -- would have to be the concession that there is right of privacy involved at that juncture.
It is appellant's position that under this statute and under that question, there is no right of privacy.
The right --
Justice Thurgood Marshall: You mean, I have no right to keep that type of literature out of my house?
Mr. Joseph Taback: I would say, under this statute, there is no right.
Justice Thurgood Marshall: Under this statute there is no right to keep it out?
Mr. Joseph Taback: I am attempting to limit my answer to the statute.
I believe the statute goes too far in its encroachment to give that right in answer to the question.
Justice Thurgood Marshall: Well, my question was how can that citizen prevent that literature from coming through his mail slot into his house, how?
Mr. Joseph Taback: There is only one -- there is only one way that I know of Mr. Justice Marshall that a citizen may prevent the transmission of third class mail to his home and that is under the post office regulation which I believe this 39 CFR 44.1, I believe I am quoting it correctly.
As far as picking and choosing mail per se that he does not want or as the statute does in its second aspect, “any mail regardless of its content, the second mailing whether it'd be political, religious or that type of speech which has been time honored by this Court, that a citizen should not the right to exclude without determining what the content of the material is because the right of free speech is greater.
There is no right --
Justice Thurgood Marshall: Well, his mail is out of privacy is already gone, is that your position?
Mr. Joseph Taback: Mr. Justice Marshall, my position is that under these circumstances, there never has been a right of privacy or in the alternative if I must, that right of privacy under those circumstances in the face of a statute is drawn and the First Amendment must give way.
Justice Thurgood Marshall: In this place, who has a real conscientious feeling about it with just -- there's no way out?
Mr. Joseph Taback: I think the answer of Judge Frankel in the District Court probably states it more eloquently.
The distance from the mailbox to the ash can is a short distance in the light of the First Amendment.
Chief Justice Warren E. Burger: Why you should have to walk it?
Mr. Joseph Taback: Because --
Chief Justice Warren E. Burger: If he doesn't want to?
Mr. Joseph Taback: Because in a complex society as we reside in, certain things give way.
Speech is paramount, speech is the matrix --
Chief Justice Warren E. Burger: Paramount over what?
Mr. Joseph Taback: Paramount virtually to every right, every thing we do within our society and it is within that framework that we balance --
Justice John M. Harlan: Would you go so far as to say that the First Amendment would require the -- would give your client for example, the right to compel the recipient with his obligations --
Mr. Joseph Taback: Mr. Justice Harlan, no we do not.
We certainly make throw that away.
No one can compel any person to read anything.
Justice Byron R. White: But you did claim constitutional right place the -– you should have the material be just in place and he made about or he has a spot with more that withheld -- you claim a constitutional right and place of the mailing of the house?
Mr. Joseph Taback: Yes, we do Mr. Justice White, whether it be in the slot and the door or a mailbox standing out on the street.
Justice Byron R. White: And why do you be one to deal with the (Inaudible)?
I mean set it out, you mean that if you don't you want it?
Suppose you --
Mr. Joseph Taback: I think there are several aspects to that answer.
Pragmatically, I think one of the problems to be candid is that there is a tremendous burden.
There is an onerous burden within this commercial realm of distribution of removing these names from the lists.
The burden was spelled out in appellant's opening brief as well as in the amicus brief.
It is a real --
Justice Byron R. White: You say what tasked have – one of the facets is financial burden?
Mr. Joseph Taback: It is a financial and business burden that is only one facet.
Justice Byron R. White: And if hasn't to much to do with speech, on commercial communication --
Mr. Joseph Taback: Well, that is certainly the position of the Government Mr. Justice White.
I do not believe that commercial communications deserve a lower rung if there be a latter on the First Amendment than any other form of speech.
Justice Byron R. White: Well, that is the point.
This is the point right -- certain act to this step but that give you protecting is impossible to determine that had any -- not have to take name off rather than being able to communicate because you go to communicate any way with these people because they do not accept the communication?
Mr. Joseph Taback: That may well be but as I pre-phrase my answer, there are several aspects to that.
I think the second aspect, probably the most troublesome aspect of the statute I might add, is a fact that no further mailing of any kind whatsoever, maybe made by a mailer.
Regardless of content, therein lies --
Justice Byron R. White: Let's assume that the -- let assume that is included to be leaving -- if only similar of the very kind that simple out of us that the adversely the appellee, he is going to be asking, would he?
Mr. Joseph Taback: The -- if the statute were so construed in spite of a fact that the legislative history is contrary to that construction and that was the construction of the court below, the problem would become certainly clearer.
It would become more in the realm of constitutional regulation, but I would then submit to the Court, that any type of regulation of speech must be carefully scrutinized and I believe this particular avenue is one that should left open.
Justice William J. Brennan: Mr. Taback, I gather you see no relevance of Valentine and Chrestensen to this problem?
Mr. Joseph Taback: Valentine versus Chrestensen gave me a great deal of trouble Mr. Justice Brennan. However, I just define and I review the matter in this fashion.
One, I think the subsequent pronouncements of this Court, Time versus Hill, Times versus Sullivan have swept the Valentine case aside on reflection.
The Valentine case I say is too broad.
Secondarily, the Valentine case dealt with --
Justice William J. Brennan: I thought -- I thought that in Times and Sullivan opinion, am I wrong, we made some references to indicate that Valentine and Chrestensen was not, at least as of that time disapproved, is it?
Mr. Joseph Taback: I believe it did but it went on to note that the fact of commercialism itself will not take speech out of the First Amendment.
Secondarily, I believe that the Valentine case like so many of the other speech regulation cases dealt with a situation of the public streets within a confines of local government.
I think under these circumstances weight was given to that local regulation keeping the streets open which is there as important in many senses as that particular speech involved.
So, I do not -- I am not at this point burdened by Valentine.
Chief Justice Warren E. Burger: Do you see a connection between what the Court had to say in Ginzburg about the pandering aspect and the limitations here?
Mr. Joseph Taback: Mr. Chief Justice, I do not and I do not because of this reason.
I believe this Court in the Ginzburg case, addressed itself to a completely different problem and that was problem of whether the advertisement connected with the actual material could be used as evidence in determining whether the material itself was obscene.
The connection if I do find one, under the words of several of the justices on this Court said, “That possibly pandering statutes could be created if they were ambiguous, the illusions of the fact that it would be a very difficult item by which to regulate and a very troublesome one.”
But again, the defining of pandering within that context as it was done, I feel related only to this ultimate issue of whether that material for the first time, could be used in discerning and determining whether the material itself was obscene.
Chief Justice Warren E. Burger: Do you think Congress would have -- would be inhibited in anyway from passing the statute that upon request of a householder no mailman set foot on or put any mail in the box or on the premises of a householder?
He said, I don't want the mailman here, just cut me off, do you see a constitutional objection?
Mr. Joseph Taback: Yes, I do.
Chief Justice Warren E. Burger: What is it?
Mr. Joseph Taback: I believe again that by being a citizen within the society, he subjects himself to communication and certain ordinary living aspects.
The mail is so basic and so critical that that mail must be delivered.
He chooses not to read it --
Chief Justice Warren E. Burger: Even if he doesn't want it?
Mr. Joseph Taback: Receiving it per se in his hands is not the crux, reading it is the problem and he always has that free choice, unfettered to throw it in the ash can.
To keep the mailman away is to enclose this individual off to create a situation where communication will be --
Chief Justice Warren E. Burger: Well, then that it would follow if you put a high wall and a bunch of very disagreeable dogs out to keep people away, somehow or other the householder would be violating the First Amendment rights of all the potential mailers?
Mr. Joseph Taback: No, I -- Mr. Chief Justice, I do not submit that.
What we have here if the householder chooses to take his individual action he may but here we have a Government intervening, a Government issuing a prohibitory order in mandatory language that no further mail regardless of content shall be forwarded.
Chief Justice Warren E. Burger: Then you mean, I can violate to your client's First Amendment rights but the Government is holding and I as an individual citizen?
Mr. Joseph Taback: An individual citizen, I think would have a great difficulty under the law in violating First Amendment rights.
However, interaction between individual citizens may involve the First Amendment.
Justice John M. Harlan: What you say is that the other governmental action cannot assist individual from exposing himself (Inaudible) --
Mr. Joseph Taback: No, Mr. Justice Harlan.
I -- what I am saying is that when governmental action involves itself and certainly do the degree or point unnecessary, we have a different matter.
I do not say that the Government cannot assist.
I am certain that the Government can certainly constitutionally, but when it does, this escape hatch that it is individual action or a personal action is closed.
We now have the governmental intrusion and it must be viewed far differently than citizen against citizen.
Justice John M. Harlan: Up to that time?
Mr. Joseph Taback: I beg your pardon, Sir.
Justice John M. Harlan: The Government can assist as far this kind of thing is concerned a man who wants to protect himself against the mail he didn't want to see?
Mr. Joseph Taback: I believe the Government can assist if it can constitutionally do it, yes.
Justice John M. Harlan: Do you think it can?
Mr. Joseph Taback: I think the Government can do it.
I don't think they have done it constitutionally in this situation before this Court.
Justice John M. Harlan: Probably, no governmental act in here or in fact that they honor in the private defense?
Mr. Joseph Taback: To this point and Mr. Justice Harlan, I disagree for the following reasons.
It is the Government that issues the prohibitory order.
It is the Government who lays down what cannot be done.
It is the Government that picks up the schedule for a second hearing in the event of the second mailing regardless of content.
It is the Government that conducts that hearing.
It is the Government who had set down the rules and regulations for conduct about the hearing and it is the Government who will enforce.
Justice John M. Harlan: Are all this is triggered by the request of the individual?
Mr. Joseph Taback: Indeed, and I think when we begin to swift according to word of this Court, we find that there is much governmental action and therefore it does become a governmental intrusion.
It is the Government who empowered and directed if they so find to sentence or cite the individual for contempt.
We start off with what an individual triggering but the involvement, the participation is governmental participation as with the --
Justice John M. Harlan: It's a governmental action, no question about that.
The question is whether it's permissible or not?
Mr. Joseph Taback: Under this statute and within this context, I submit it is not.
One of the more telling points with regard to this again is the plain meaning of the statute, legislative history of the statute, the reports of the committee before the Senate and House as to what the statute meant.
I emphasize again, that the Congressmen involved, Senators in hearing the matter clearly demonstrated that they wanted no administrative participation or as little as possible.
No judicial review and in fact within the statute, they eliminate judicial review and they remove the matter from the Administrative Procedure Act.
People testifying before the Senate, former Attorney General questioned its constitutionality.
General counsel for post office asked that the statute not be passed.
The American Mailers' Association, the American Publicists' Association, the list goes on all asking of the matter not be passed, including the American Bar Association pleading that we are retrograding, we are going back towards by removing a procedure so critical from the Administrative Procedure Act, the statute was passed.
It was clear that the sole discretion of the individual was to be the target.
Chief Justice Warren E. Burger: Are you suggesting the American Bar Association took a position on a substantive merit through the statute itself or just the procedural aspect?
Mr. Joseph Taback: The American Bar Association took a primary and I believe, singular position with only with regard to the procedural aspects, and that was the fact what had been removed from the Administrative Procedures Act.
The legislative history again clearly calls for what the Government interprets the statute to be.
The individual is to reign free, it is his discretion and we are somewhat surprised to find that the Government retreats to a position if in fact they cannot save of the constitutionality by its interpretation to appoint -- let us, then examine and review the addressee, let us determine whether he has acted in good faith.
This flies in a face of the governmental or the legislative history and intent.
Time is splitting and at this juncture I merely wish to comment and point to the Court that the procedures embodied in the hearing that is involved in the statute falls of a far distance from the Fifth Amendment.
There is no right to confront your complainant.
There is no adversary procedure and constitutional issues cannot be raised.
I have attempted on numerous occasions, it is a subject of an affidavit within the appendix starting at page 22 and all affidavits, the record below were un-controverted, nothing was forwarded, nothing came in contravention to those affidavits.
One comment, the amicus brief of the Direct Mail Advertising Association clearly says that, unless you can interpret this matter our way which is namely a finding or administrative procedure ex parte, if you will, that the material is pandering, the law is too broad, it is too sweeping.
The court below “Judge Hufstedler said, we can only salvage the statute by meticulously construing it and shrinking it down to constitutional size and the interpretation given by that court below in salvaging is contrary to the position taken by the Government, contrary to the legislative history and hence it must fall.
It is contrary to the appellants view.”
It was clearly the view of Congress that this matter be a subjective determination unfettered and uncontrolled and in the face of the First Amendment this cannot go in that fashion.
The right of privacy, one the last note on that, has always or more traditionally involved the Government attempting to discover something about some one else.
We do not have it here.
We have merely an envelop going to someone.
I call to the Court's attention Exhibit D attached to the affidavit filed at page 22 of the appendix which entered into the evidence and was un-controverted, a notice to a recipient that if you do want this just hand it back to your Postmaster.
This is what has been done and yet the statute went far a field and found it necessary to build in a contempt proceeding ultimate jail sentence if necessary and we say taking the entire matter together, like it's -- if will assist your statutes 4008, 4006 is as unconstitutional as those prior statutes.
Justice Thurgood Marshall: If you want to have is that spending the Court will be very expensive to take names of the list?
And you now say that you invite the people to send it back so that you would take your name off the list?
Mr. Joseph Taback: There is a method by which it can be taken off the list at a more reduced cost and this is what we mean, Mr. Justice Marshall.
If the envelope with the label is returned, there is a better chance of doing it because the label usually in commercial distribution has a code.
The lists themselves are not alphabetized, there is no way to go through to the A's or B's.
If you have the coded label at least you are given a reference point to a commercial mailing list.
Without that envelope, without that label, there is undue and owner is a burden in shifting through a 100,000 or 200,000 names that may pass from mail --
Justice Thurgood Marshall: Well, most of essential label, you would loose that complain?
Mr. Joseph Taback: We would certainly assist.
Justice Thurgood Marshall: You'd lose that party of complaint.
Mr. Joseph Taback: It would assist, I'm not saying that it would not create a burden.
It would help and reduce the cost and burden.
It would not eliminate it completely.
Chief Justice Warren E. Burger: But you want to put the burden on the taxpayer, the recipient to ought to the garbage pail or whatever to dispose it.
Collectively, that burden is a large burden and if you have 200,000 people on you mailing list, isn't it?
Mr. Joseph Taback: I don't believe that it is a burden that is unwarranted.
I think, we think we are dealing with the First Amendment right and if that to be burden the shift of the burden should be in that direction as opposed to a failure or inability mail in any sense.
Chief Justice Warren E. Burger: Thank you, Mr. Taback.
Argument of William D. Ruckelshaus
Mr. William D. Ruckelshaus: Mr. Chief Justice and may it please the Court.
Since that the -- now that there seems to be some concern about just precisely what the Government's position is, either below or in our motion to affirm in our brief, let me make it perfectly clear, precisely what the Government's position is.
It's our position that Congress has said, when an individual in our society receives through the mail material which in his sole discretion, he believes to be a pandering advertising and he again finds in his sole discretion this material to be erotically arousing or sexually provocative, he can tell the sender, “Don't send me anymore material!”
And he lists, the addressee a list -- enlist to support of the Post Office in informing the sender of his desires and if the sender persist, after one prohibiting from the post office, he maybe enjoined from continuing to send the material to an unwilling recipient.
If he still persists, he maybe held in contempt by that Court which has issued the injunction for violating the Court's order.
We believe that Congress has sought to protect a man in his own home.
Congress knew, I think it is clear from the legislative history --
Justice William J. Brennan: Excuse me, Mr. Ruckelshaus.
Does this statute reach any addressee or only one's home?
Mr. William D. Ruckelshaus: It reaches --
Justice William J. Brennan: That is -- would it reach for example mail addressed to a business establishment?
Mr. William D. Ruckelshaus: Yes, I think that it would, Mr. Justice Brennan.
Justice William J. Brennan: Any addressee at all?
Mr. William D. Ruckelshaus: Yes.
Justice William J. Brennan: You don't see any difficulty, I suppose?
Mr. William D. Ruckelshaus: Well, I would take it that the alternative to attempting to limit this to a man's home, would be extremely difficult if not being easily discernible where a man would live, for instance or where he could object to this kind of thing or anything coming into his home.
We think that the purpose of the statute obviously was to protect a man his own home and if there was language in the statute which extended that purpose, it was necessary under the circumstances.
Justice William J. Brennan: Well, I take of then if it was something just addressed to General Motors Corporation, Detroit, Michigan, and General Motors didn't want to receive it, it's not just to an individual, just the General Motors Corporation, the statute would fall?
Mr. William D. Ruckelshaus: I -- under the broadest possible interpretation, I assume that it could but it was obviously aimed at an individual, although if you send it, the statute that it says if you send it an address, listed only to occupant that that is a violation of prohibitory order against that address.
So, I imagine the same thing would apply.
We think that Congress said that a man in his own home has the right to be unreasonable and they also sought to protect the unreasonable man in his own home.
And I think that --
Justice John M. Harlan: That's wrong because with this statute to cover, I would see unless the statute seem immaterial to this apparent would it be -- so how they just sent dirty pictures, may I ask you?
Mr. William D. Ruckelshaus: No, it has to be a pandering advertisement, Mr. Justice Harlan.
The statute is clear on that.
I think it is the advertising nature of the material that is sought to be controlled here.
Justice John M. Harlan: That's was it carries the publisher's name without warning here the picture lie that it might be able to observed by the advertise it?
Mr. William D. Ruckelshaus: Yes, you might.
I take it there would some gray area as to precisely what an advertisement was.
Justice Potter Stewart: But it does cover only advertisements?
Mr. William D. Ruckelshaus: Yes, that's right, Mr. Justice Stewart?
Justice Potter Stewart: And in it terms only pandering advertisements which the addressee believes to be erotically arousing or sexually provocative, but as I understand your point is that and your construction of the statute that is if the addressee, John Smith thinks that an advertisement from a furniture store is a erotic or sexually arousing, he can prevent any further mailings to him from that furniture store.
It is absolute none further discretion, is that correct?
Mr. William D. Ruckelshaus: Yes, Mr. Justice Stewart.
He can notify the Post Office although, this he would be in himself violating the obvious intent of the statute and nevertheless --
Justice Potter Stewart: The moment I thought the obvious intent of the statute was to make him to sole judge?
Mr. William D. Ruckelshaus: Yes, but assuming again that it has some relation to a pandering advertisement as far as the individual was concerned, I think that given the purpose of the statute which was due rule number one to leave it in his discretion as to what he should refuse to receive and secondly, to get the administrative branch and the courts out business to determine whether he was rational in that exercise.
It's necessary for him took also be able to say, this is in my own home as far I'm concerned, I don't want to receive this.
It's erotically arousing --
Justice Potter Stewart: I don't want to receive any further mailings from this sender?
Mr. William D. Ruckelshaus: Yes, that's right.
Justice Potter Stewart: Of whatever nature and that's the statute saying.
Justice William J. Brennan: Mr. Ruckelshaus, that means I take it if the Safeway Stores sends to my home an advertisement that we're selling Maine potatoes this week at $0.50 a pack, that the language pandering in the statute is quite meaningless because in my subjective judgment that's erotically arousing.
The Post Office has to issue an order at my request to Safeway not to deliver anymore advertisements for the Maine potatoes to my house, is that right?
Mr. William D. Ruckelshaus: That is the interpretation which I think must be given to the statute given the congressional history and intent.
Justice William J. Brennan: Well, then what's the significance of the pandering language in the statute, if that's the --
Mr. William D. Ruckelshaus: Well, I think the significance is that this language is as evidenced by the pamphlet that the Post Office itself has put out the language was to tell the individual this what we're trying to get -- give you a chance to refuse to receive in your home.
Justice William J. Brennan: But if the Post Office can't say to me, well, an advertisement for -- by Safeway to sell Maine potatoes is not something that under the statute, you can refuse to receive or at least require us to tell Safeway not to send to your home anymore?
Mr. William D. Ruckelshaus: If the Post Office could make such a determination, I -- we submit that if would frustrate the second purpose of Congress which was to get the Post Office out of the business of censorship.
Justice William J. Brennan: Well, I ask again, what possible significance is the attempted limitation of pandering advertisements have?
Mr. William D. Ruckelshaus: Well, I think Mr. Justice Brennan it was to tell the individual in his home that this is what Congress intended was to allow you to get pandering material out of your home.
And in spite of the brief of the Direct Mail Advertisers in amicus brief, there is nothing before this Court that the purpose of the statute is being widely abused by individuals in their home.
And we have as we've noted in our brief some 368,000 complaints in the Post Office and the Justice Department.
At the end of last month, we had filed some 21,000 complaints.
We do not -- we have not filed any complaints and off in an effort to enforce the prohibitory order that have -- not having to do with the some sexual orientation.
Now, that I think what Congress was recognizing that if they're going to get the courts and administrative branch out they have to give this discretion to the individual that even to be unreasonable in his own home.
Justice William J. Brennan: Mr. Attorney General, I take it your -- you would be making the same argument if Congress had passed a statute which said that anybody who wants to stop any mail being sent from anyone in do so?
Mr. William D. Ruckelshaus: There is a regulation that the Post Office now has which under -- in a footnote to the Lamont case and in the regulation itself has been so interpreted an individual could notify the Post Office and say, “I don't want to receive anymore mail.”
Justice William J. Brennan: Well, I know but let's assume this statute instead of having a limitation on it it was concerning pandering advertisements, just simply said that these procedure was available whenever an addressee of mail didn't want to receive anymore mail from that sender?
Mr. William D. Ruckelshaus: I don't think that there'd be any constitutional difficulty with that, this is our position.
Justice William J. Brennan: You'd make the same argument that is --
Mr. William D. Ruckelshaus: Precisely the same argument.
I think the reason that the pandering advertisement is in the statute even in this context is to notify the individual, this is what we meant and not to have that individual use his power to prohibit somebody from coming into his home and communicating with him indiscriminately and unreasonably.
And that really what we have here is very analogous to the right of an individual has to turn off the television set, to turn the radio if he's listening to a speech in a park to simply walk from the speech.
Now, he is here using the Post Office to --
Justice Byron R. White: What right do you think that you are -- is being asserted on behalf of the home owner?
Mr. William D. Ruckelshaus: I think that it's a broad right to, Mr. Justice White of privacy and that --
Justice Byron R. White: What amendment do you -- is there some place to a Constitution you'd find that right?
Mr. William D. Ruckelshaus: I don't know that we have to find such a right existing in the Constitution.
I think if you take Judge Cooley's statement in his law of torts, simply the right to be let alone as a common law right, not necessarily a constitutional right or as Mr. Justice Goldberg suggested in Griswold against Connecticut, that if the right itself emanates hope from the totality of constitutional scheme under which we live, I think nevertheless it has become more and more important in our society that we recognize a right simply to let alone.
Justice Byron R. White: You think a person has a right to read or listen to only what he wants to read or listen to?
Mr. William D. Ruckelshaus: Absolutely.
I think he has the right.
Justice Byron R. White: Because it's a First Amendment right, isn't it?
Mr. William D. Ruckelshaus: Well, it's the right -- the right certainly -- the right to receive is just as important as the right to communicate and has been protected under the First Amendment.
Justice Byron R. White: How about the right not to receive?
Mr. William D. Ruckelshaus: I think that's a corollary certainly of the right to receive.
At least in the in the mail cases the right to receive has been recognized the by Supreme Court and I think there is a corollary of it the right not to receive and I think in this society that we live in, it's as strength and as communication becomes more and more widespread and the variety of ideas and thought in our culture becomes less and there's the population grows and as we come together and live closer in cities and as we talked about not only air and water pollution, but also noise pollution that this right to be let alone, his right that needs to be recognized in our law and needs to be recognized by this Court.
Justice Potter Stewart: Well, they may not be I don't think you need to suggest it, you don't perhaps need to go so far as to apply that there's any federal right, any constitutional general right to be let alone.
That generally is considered to be a right to recognize by the law of torts and protected by state law, I gather property rights but all you need to -- the only federal right involved here, I should think in this aspect to be your case is the First Amendment right, the right of choice, and the right of choosing what a person wants to see or what he wants to hear, also involves his right to close his eyes or to stop up his ears, isn't that about it?
Mr. William D. Ruckelshaus: That's I think that certainly is corollary to the right to receive whatever he wants to.
Justice Potter Stewart: Yes, the right to choose what you want to read or what you want you want to see involves the right to say, I don't want to see this.
I don't want of -- even -- of course that's what it is?
Justice William O. Douglas: There is counter to a big chapter in the American history involving compulsory public school attendance.
Mr. William D. Ruckelshaus: I think that the compulsory public school attendance, Mr. Justice Douglas is not necessarily.
Justice William O. Douglas: I'm just thinking in terms of closing the door or shutting our eyes, shutting your ears off and just becoming isolated from the whole world.
Maybe that's a good constitutional doctrine, but we never yet decided it?
Mr. William D. Ruckelshaus: No, I think that's right.
We have not and this Court has not under the Constitution decided that a man has a right to close his eyes or refuse to hear.
Justice Byron R. White: Reed against Alexandria if I have the name of that case correctly?
Mr. William D. Ruckelshaus: The --
Justice Byron R. White: -- the captive audiences on the buses?
Mr. William D. Ruckelshaus: The brief case involves door-to-door solicitation --
Justice Potter Stewart: Well, I am thinking of a different one.
Justice William O. Douglas: Hollick, Hollick --
Mr. William D. Ruckelshaus: The Hollick case involved the -- again, this was not in this case the Hollick case that at the bus company and did have the right pursuant to District of Columbia ordinance to play music on the bus and the right of privacy did not refer to the people --
Justice Potter Stewart: And I suppose the adults could not be compelled to go school everyday and that listen to things teacher, they don't want to listen to either, could they constitutionally, right?
Mr. William D. Ruckelshaus: I think that were -- we're dealing with these kinds of rights, we have to be careful to delineate each one for discussing and in this instance, I think clearly the right to receive has a corollary of a right to turn off unwanted material and that's what we're talking about in this statute.
Chief Justice Warren E. Burger: Mr. Attorney General, is there any, going back to Mr. Justice Douglas point, question is there any federal authority that can make anybody go to school, any where, any time?
Mr. William D. Ruckelshaus: No, I --
Chief Justice Warren E. Burger: This is a matter of state that you're trying to make --
Mr. William D. Ruckelshaus: Mr. Chief Justice, that's right it's the states which have laws which provide that of age of 16 --
Chief Justice Warren E. Burger: Well, I suppose some states might say you have to go school and until you're 12, and others might say, 14, and other might say some other age.
Mr. William D. Ruckelshaus: Yes, that is -- there is no constitutional right that -- or constitutional mandate that people have to go to school up until a certain age.
Chief Justice Warren E. Burger: But -- and we've never found this -- so far as I know have we -- any federal constitutional barrier to a state requiring students to go and listen as Justice Douglas suggested to teachers and attend school or has the question never been brought here?
Justice William O. Douglas: Oh, we had it in the Pierce case, in Sister's case from Oregon and a phase of that was hear parent's right from education control the education to child --
Mr. William D. Ruckelshaus: Well, I think this what we're talking about here is the parent the right to --
Justice William O. Douglas: I'm just -- I wasn't making the point, I was just sounding a caveat on this big general principle you were trying to get us to embrace.
Mr. William D. Ruckelshaus: Well, I think that the principle itself is it has to be delineated on case-by-case basis, but I think the principle itself as suggested in the amicus brief that the right of privacy is only the right control knowledge about oneself is and will become a considerably broader concept and the way they would attempt to limit it in that case.
Now, as far as the First Amendment provision itself is concerned, I think that we have a basic distinction in what the Congress sought to do in this statute and the exercise of First Amendment rights that have been upheld in previous mail cases and the previous cases in this Court.
And that is that here, where individual decides he wants no further communication from a mailer, his decision affects only himself and I think this is the prism through which the First Amendment claim here has to be viewed.
In all other cases, where an individual, or an agency, or a governmental unit decided that they did not like what was being communicated, their attempt to stop the communication did not affect even a single individual or the majority, it affected everyone and that there is a great distinction between this case and those kind of cases.
We're not talking about a case where the Post Master General would say, you can't send anymore mail through the -- or anymore of this kind of material or magazines, or books through the mail to anyone.
Now, he simply saying this individual in the society has told me, I don't want to be communicated from the sender anymore and he is notifying the sender of that individual's desire.
It has nothing to do with the sender's right to communicate to everyone else within the society.”
If you're talking about a chill on the First Amendment rights, there's no evidence in this case that anyone else has been inhibited from receiving of that material if that's their desire and nor is there any evidence that there's any change in the material that is being send out, it is precisely the same kind of thing that is being distributed.
And I think about the same token in the Bynum Books case where we have a Censorship Board, where what the Censorship Board did to an individual book distributors in Rhode Island is now the same situation as we have here, because it's then affected everyone and here it only affects an individual.
And I think the reason for the difficulties in the other cases is that decision of a majority or a single could affect what every man wanted to receive and that situation does not happen it here.
We have a situation where we simply turning off speech and as has been suggested, I think that the right to receive has the corollary right of not to receive.
Chief Justice Warren E. Burger: And you regard it as no different basically, constitutionally from turning off the radio or the television by the twist of the dial?
Mr. William D. Ruckelshaus: I don't see any distinction because I believe that the individual obviously has this right and he can't turn off the mail without some assistance from the Post Master.
Chief Justice Warren E. Burger: And the only difference would be that if the appellant claims that this is expensive for him to be turned off?
Mr. William D. Ruckelshaus: Well, I think if that claim of expense is there because in the past there was no concern as far as the senders were concern about the sensibilities of the addressees.
And what Congress said, is this going to have to have to be a cost of your business.
When an addressee is offended by material that you send him he has the right to tell you not to send him anymore?
And then --
Justice Potter Stewart: Well, General there is a very great, big difference though between turning off the radio or television and writing to some sender of mail and saying please, never send me anything again ever through the mail, and this statute because in the first examples, the Government is not implicated whatsoever.
This is purely an individual personal action, we have exercise of free choice.
Here, the Government of the United States is implicated, that's only reason this case is here?
If the people can --
Mr. William D. Ruckelshaus: I think it's right but the only reason the Government is not implicated as a sensor or has an inhibitor or prohibiter of First Amendment rights, they're implicated simply because this is the only way it can be turned off and that what Congress has done in any implicating government and I agree that's why I agree with you that is why it is here -- is simply used him as the hand that turns off the radio and television.
Justice Thurgood Marshall: The other difference is that you turned the radio on but in this case, you didn't turn that mail on, he turned the mail on.
Mr. William D. Ruckelshaus: Well, I think that he could maybe --
Justice Thurgood Marshall: That's why he turned it on -- no, I mean, if he turned it on, he shouldn't cry about having to pay to turned it off.
He, the guy who mailed it.
Mr. William D. Ruckelshaus: I see your point, Mr. Justice Marshall, and I think that's what was Congress' point that the cost involved is simply a recognition that he has to give to the sensibilities of the recipient and I don't believe that that should render this statute with any constitutional difficulty.
Chief Justice Warren E. Burger: Is there anything in this record about the sender's having a pattern of sending some of this material to 11, 12-year-old, 7th and 8th's Grade people so as to be able to get it altered in the schools?
Mr. William D. Ruckelshaus: There is a great deal of testimony to that effect in the congressional record and then in legislative history of the statute.
This is obviously what the Congress was attempting to get at.
There is no evidence in this record that this is what these plaintiffs or appellants here were doing or the direct mail orders.
As Congressman Waldie, I think said on the floor of the House, the man who gave the shape to this present statute, he said, I am the Supreme Court in the particular household in which my children reside, and from my decision there is no appeal.
And I would take it that this is what the Congress was attempting to do.
To say that a man in his own home can refuse to receive material because it might have a deleterious effect on his children as far as he was concerned and this was his decision in his own home and there is -- and that legislative history is replete with this kind of testimony.
Justice Hugo L. Black: What kind of an order does an Attorney General has to make or the Post Master General have to make?
Mr. William D. Ruckelshaus: What kind of an order, Mr. Justice Black?
Justice Hugo L. Black: Yes.
Mr. William D. Ruckelshaus: There is a reprint --
Justice Hugo L. Black: The pandering material.
Mr. William D. Ruckelshaus: He --
Justice Hugo L. Black: The pandering advertiser?
Mr. William D. Ruckelshaus: Under the statute --
Justice Hugo L. Black: Who decide while it's pandering?
Mr. William D. Ruckelshaus: The individual himself in his sole discretion.
Justice Hugo L. Black: I don't read the statute that way?
Mr. William D. Ruckelshaus: Mr. Justice Black, the statute as we have discussed, I think at some length in our brief, can be said to be ambiguous.
The court below seem to read --
Justice Hugo L. Black: It's probably ambiguous as far as that's concerned it seems to me and what he suppose to do is the order no such pandering material.
Now, who decides whether such pandering material?
Mr. William D. Ruckelshaus: I think that's what Section (a) of the statute says, Mr. Justice Black.
It also says in Section (c) of the statute, the order of Post Master General shall expressly prohibit the sender and his agents or assigns from making any further mailings to the designated addressee.
Justice Hugo L. Black: What kind of mailing?
Mr. William D. Ruckelshaus: Any mailings, whatsoever, Mr. Justice Black.
Justice Hugo L. Black: Forbidding sending anything to him?
Mr. William D. Ruckelshaus: That's right, any further mailings, whatsoever, Mr. Justice Black.
Justice Hugo L. Black: Well, I can understand that; (a) bothers me a little because --
Mr. William D. Ruckelshaus: Well, I think (a) can only be understood if --
Justice Hugo L. Black: Mr. Attorney General, I mean the Post Master General, what the duty to define some thing is pandering and I would have a little difficulty myself.
Mr. William D. Ruckelshaus: Yes, and I think the Post Master General is equally concerned about having that onus upon his shoulders and he in the administrative pamphlet which has been put out in the order that sense out, he sees this statute as meaning precisely what Congress itself saw its meaning and that is that he had no discretion to determine what was, and what was not a pandering?
Justice Hugo L. Black: I wonder why if they wonder just and able to household to keep him company send him something.
It just didn't say that --
Mr. William D. Ruckelshaus: Because I don't think that's what they mean --
Justice Hugo L. Black: Why did it get mixed up with pandering?
Mr. William D. Ruckelshaus: Because, Mr. Justice Black, the legislative history shows that isn't what they trying to do.
They tried to do two things.
They tried to give the individual the right to decide in his own discretion, what was and what was not pandering or what was sexually --
Justice Hugo L. Black: Now, I can't find whether statutes says that, let him to part to determine what was and what was not pandering?
Mr. William D. Ruckelshaus: Well, I think if you read Section (a) as having pandering advertisement being modified also by in his sole discretion and which -- in a way in which it can be read, it is clear that this is what Congress intended.
So, legislative history shows that it's clear, this is what the Congress --
Justice Hugo L. Black: But then attempted to find it pandering but it left it that he could decide what company should send him mail, I could understand him.
Mr. William D. Ruckelshaus: Well, I think the reason they did not want to do that was because there is a lot of controversy within Congress over the merits or demerits of so-called junk mail.
Justice Hugo L. Black: But if it's junk mail for the sender, as I understand it that theory as it that somebody was recipient, has the right to determine whether he wants it or not and so why not let him determine and just say that, he can't get anymore mail to those people.
Why did mixed it up with a definition of pandering, that I do not understand.
Mr. William D. Ruckelshaus: Because they did -- the evil, at which Congress was attempting to direct itself, was the mailing into the individual's home of material that was pornographic, or was obscene, or whatever you want to call it.
And Congress had a second purpose which was to get the administrative branch and the Courts out of the business of making this determination.
And therefore, they put pandering advertisement in the statute and left it to the sole discretion of the individual to decide it.
Hoping that not --
Justice Hugo L. Black: Not -- whether is pandering.
Not whether -- I didn't think so.
Mr. William D. Ruckelshaus: Well, I think that Section (a) --
Justice Hugo L. Black: I thought the Post Master General had to determine that?
Mr. William D. Ruckelshaus: This is not the Post Master General's interpretation.
It is not our interpretation.
We don't believe it's what the Congress intended from the legislative history, and I think the statute can be rationally read as meaning that all further mail was to be prohibited and that only discretion that the Post Master General had was to decide, whether there had been a mailing that was objected to by an addressee, that was an advertisement.
And then what he sends this information back to the sender and says, “No further mailings are to be sent” which is precisely what his order says as reprinted at the back of appellant;s opening brief.
Justice Hugo L. Black: Are they affirmed?
Mr. William D. Ruckelshaus: And it says, no further mailings, whatsoever, not any similar mailings.
Justice Hugo L. Black: But it said such mail.
Justice William O. Douglas: What you mean to say that if the addressee includes that one thing that he received was pandering, he can have that stopped and it was therefore stopped everything coming from the same sender, even though it might not to be pandering on the second, or third, or tenth, or hundredth mailing?
Mr. William D. Ruckelshaus: That's right, Mr. Justice Douglas because the alternative was to make the sender decide what was pandering, have that decision reviewed by the administrative branch and then again, reviewed by courts and the Congress saw that is getting his right back into the problem that existed before.
Justice Byron R. White: Mr. Ruckelshaus, you do concede don't you or do you that the Post Master has to decide before he issues an order that the material is an advertisement?
Mr. William D. Ruckelshaus: Yes, I think he can decide that very easily.
Justice Byron R. White: Well, I know but you concede that he does have to decide that?
He has no authority to the order anybody not to mail based on a non-advertising material?
Mr. William D. Ruckelshaus: No, I think the statute --
Justice Byron R. White: Well, I know but you said -- but here you have two words, pandering advertisement and you say that Post Master General cannot issue an order unless it's an advertisement and so he has to decide in his own mind whether it's an advertisement.
Now, where do you get the -- on what do you base your decision that or argument that while he can decide what's an advertisement, he has no authority to decide what's the pandering advertisement?
Mr. William D. Ruckelshaus: Well, I think because of the obvious difficulties in deciding what is pandering and what isn't and the more objective standards that can be used in deciding, what is an advertisement?
Justice Byron R. White: You must base it then just on the legislative history rather than the words --
Mr. William D. Ruckelshaus: Well, I've -- we have, I think discussed in our brief that there are some apparent difficulties with the language of the statute, but I think when you read Section (a) in conjunction with (b) and (c), it's clear that what the Congress intended and what the statute says is any further mailings.
Justice Byron R. White: Well, now let's assume that the Post Master General issues the order there are further mailings of the same kind or just any further mailing and he goes into Court for an order?
Mr. William D. Ruckelshaus: Well, he is authorized to request the Attorney General who is authorized --
Justice Byron R. White: Alright, alright the Attorney General goes into court for an order and on that hearing, before an order to stop mailing, it's clearly proved (a) that it was an advertisement alright, but no man in his right mind would call this a pandering advertisement, let's assume it was Mr. Justice Brennan said a potato advertisement from Safeway.
Now, do you think the court is going to issue the order?
Mr. William D. Ruckelshaus: I don't think the Court will ever have such case before it --
Justice Byron R. White: I know it --
Mr. William D. Ruckelshaus: -- Mr. Justice White and if it does, I think that given this structures of the statute --
Justice Byron R. White: No, but you're going to have -- you would have a lot of cases where the sender would say, this is a pandering advertisement and does the court have to decide whether it's a pandering advertisement?
Mr. William D. Ruckelshaus: It does not.
I don't think that this is exactly what Congress wanted to keep the courts from having to do was to make this determination again in this instance --
Justice Byron R. White: Well, take the potato advertisement, would the court issue the order?
Mr. William D. Ruckelshaus: Assuming that the Attorney General brought such a case.
I think that the Court --
Justice Byron R. White: Well, if the Attorney General doesn't bring it, he's deciding in his mind then, that this is not a pandering advertisement?
Mr. William D. Ruckelshaus: Well, it's says he's authorized to bring the case, it doesn't shall --
Justice Byron R. White: So there is some administrative discretion with that various --
Mr. William D. Ruckelshaus: But its way off on one end Mr. Justice White, in terms of --
Justice Byron R. White: And that so, I don't know the Department of Justice is in the way off on one end?
Mr. William D. Ruckelshaus: Well, I mean [Attempt to Laughter] --
Justice William O. Douglas: But in terms of literature, it might not be way off on one end?
Mr. William D. Ruckelshaus: Well, I think if there was an abuse -- of an obvious abuse of a lower court's decision in issuing which is basically an equitable proceeding and injunction that -- there might be some grounds for an appeal from that decision.
But the -- we have used the standard in our brief as a suggested standard of a good faith standard.
Any standard that you use, you have difficulty with it because how can you determine good faith to the addressees not a present in court and he may will not be present in court if he is at the other end of the country.
So, that I think that to the extent that a court would received one of these things that obviously what wasn't advertisement, they had no relation whatsoever the pandering our sexually oriented material that a court couldn't in its equity power refused to exercise its discretion in entering an order.
Just as the Attorney General where it says he's authorized to bring such a case and where it says, in the second stage the Post Master General is authorized to request the Attorney General.
Justice Byron R. White: But I take it that you would say that the District Court when it asked to enter that order, it would look at that potato advertisement.
It could issue the injunction in its discretion and you're saying that the statute apparently would authorize the District Court to issue that injunction and that it would be no violation of the statute to order a person to quit sending potato advertisement.
Mr. William D. Ruckelshaus: I don't think that we need to go that far.
I think it may well be if it's potatoes that the court on the appeal could it be said to have abused its discretion.
Chief Justice Warren E. Burger: Thank you, Mr. Attorney General.
Thank you for your submission.
The case is submitted.