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Report No. 38

Appendix XIII

U.S.A.-position Regarding Interception of Postal Articles

It would seem1, that in the U.S.A. there are three instrumentalities2 employed by the post office for the restraint of mail. The first is confiscation and destruction, used primarily against obscene matters and foreign political propaganda.

1. See Pritchett American Constitution, (1959), p. 404.

2.. (i) Confiscation and destruction,

(ii) Stop order, and

(iii) Refusal of second class permit.

Since 1957, certain procedural rights for persons whose material was non-mailable on the ground of obscenity have been provided for, namely, written notice of the reasons for barring the mail, hearing before a Post Office examiner, and decision after two days of the hearing in case of a periodical3.

1. 39 Code of Federal Regulations 203 (November 9, 1959), cited in Pritchett American Constitution, (1959), p. 404.

Authority for barring from the mail papers containing foreign political propaganda is said to be derived from the Espionage Act, 19f7, and the Foreign Agents Registration Act, 1938. The 1938 Act required agents for foreign principals within the United States to register, and failure to do so was a crime. The 1917 Act punishes the possession of papers in aid of a foreign Government which violate any penal statute, and also makes such material non-mailable.

The second instrumentality is what is known as "stop order". This was first authorised against persons found to be using the mails to defraud, and the effect of the order was that all mail addressed to the person or company concerned was intercepted, stamped "fraudulent", and returned to the sender. The validity of such order in relation to fraudulent mail has been upheld, though not without strong dissent4-5.

1. Leach v. Carlile, (1923) 258 US 138.

2. Donaldson v. Read Magazine, (1948) 333 US 178.

This power was later authorised in relation to mails dealing with obscenity also. It can be used, however, only against mails addressed to the company concerned which is directly connected with the specific issue of its periodicals which is found to be obscene6. This authority has later been extended to mails suspected of promoting fraud, obscenity or gambling7.

1. Summerfield v. Sunshine Book Co., (1955) 349 US 911.

2. (1956) 70 Stat 699.

The third type of restraint is refusal to grant "second class mailing privileges." This power has been used, though not without dissent8, against matter not mailable under the Espionage Act. The validity of this power in fields unrelated to national security, is doubtful9, and in one case10 the attempt of the Postmaster-General to withdraw the second class mail privilege from a magazine, on the ground that the material was so close to obscene that it was morally improper and not for the public welfare and the public good, was invalidated.

1. Milwaukee Publishing Co. v. Burleson, (1921) 255 US 407.

2. See Hannegan v. Esquire, (1946) 327 US 146.

3. Hannegan v. Esquire, (1946) 327 US 146.

What is and what is not obscene is always a matter difficult to decide. Thus, a post office ban on the mailing of nudist magazines was, in one case, reversed by the Supreme Court1. On the other hand, in a very recent case2, the ban imposed by the Postmaster-General against one Magazine was upheld.

1. Sunshine Book Co. v. Summerfield, (1958) 355 US 372.

2. Case against Ginzberg, regarding the Eros Magazine (Time Magazine, 1st April, 1966) (Supreme Court of USA.).

(1) Power to protect the mails.-Article 1, section 8, clause 7 of the Constitution of the

U.S.A. says, that "The Congress shall have power to establish post offices and post roads". This postal power embraces all measures necessary to ensure the safe and speedy transit and prompt delivery of the mails.

(2) Power to prevent harmful use of the postal facilities.-The postal power also includes the power to exclude from the mails publications designed to defraud the public or corrupt its morals, such as lotteries1 and fraudulent matter2.

1. Jackson (Ex parte), (1878) 96 US 727 (732).

2. Donaldson v. Read Magazine, (1948), 333 US 178.

It may be noted, that in the Donaldson case1 what was sustained was a court order forbidding the delivery of a mail and money orders to a magazine for conducting a puzzle contest which the Postmaster-General had found to be fraudulent.

1. Donaldson v. Read Magazine, (1948), 333 US 178.

But there is some doubt as to whether a power to exclude from second class mail can be exercised arbitrarily, or whether that power is subject to some limitation. While the second class mail need not be kept open to publications of all types1, this does not imply that the power can be exercised arbitrarily2.

1. Hannegon v. Esquire, (1946) 337 US 146 (155) (per Douglas J.)

2. Lewis Publishing Co. v. Morgan, (1913) 229 US 228 (per White CJ).

(3) Excluding power generally as an adjunct to other powers.-Apart from the power to close the mails, to particular types of publications which are harmful, a much broader power of exclusion was asserted in one Act of 1935,1 whereunder to induce compliance with the regulatory requirements of that Act, Congress denied the privilege of using the mails for any purpose to holding companies which failed to obey that law, irrespective of the character of the material to be carried.

The Supreme Court, treating this as a penalty, held the statute to be constitutionally valid, because the regulations whose infractions were thus penalised were themselves valid, but it declared, that Congress could not exercise its control over the mails to enforce requirement which lay outside its constitutional province2-3.

1. The Public Utility Holding Company Act, 1935; see (1946) 15 US Code 79d (79e).

2. Electric Bond & Share Co. v. Securities Exchange Commission, (1938), 303 US 419. See also American (Power and Light) Co. v. S.E.C., (1946) 329 US 90.

3. Electric Band & Share Co. v. Securities Exchange. Commission, (1938) 303 US 419 (422).

Fourth Amendment.-By virtue of the Fourth Amendment, a sealed letter deposited may not be opened by the postal authorities without the sanction of a Magistrate1. The Fourth Amendment, however, is confined to material things, and hence its language cannot be extended to telephone messages.2-3

1. Ex parte Jackson, (1878) 96 US 727 (733).

2. Olmstead v. U.S., (1928) 277 US 438: 73 L Ed 944 (Majority judgment).

3. On Lee v. U.S., (1952) 343 US 747 (753) (Majority judgment).

The following statutory provisions in force in the U.S.A. are relevant1:

1. These refer to the edition of the U.S. Code before 1964. In the 1964 edition of the U.S. Code, some changes have been made but not in substance. See, now, Title 39 USC section 4001, (1964) read with Title 18, sections 1302, 1341, 1342, 1461, 1463, 1714, 1715, 1716 1717, 1718 (1964 edition).

(a) 18 U.S. Code, Article 1717-Letters etc. which are non-mailable "shall not be conveyed in the mails or delivered from any post office etc." These include matter advocating or urging treason, insurrection, or forcible resistance to any law of U.S., and matter in violation of certain sections of Title 18, of the U.S. Code.

[These sections of Title 18, U.S. Code, are

499-Forgery of military etc., passes.

506-Forging of seals.

793-Gathering etc., or losing defence information. 794-Gathering or delivering defence information to Government. 915-(Personation of) foreign diplomats.

954-False statements influencing foreign Government.

956-Conspiracy to injure property of foreign Government.

957-Possession of property in aid of foreign Government.

960-Expedition against friendly nation. 964-Delivering armed vessel to billigerents. 1017-Wrongfully using Government seals.

1542-False statement for passport.

1543-Forgery and false use of passport.

1544 Misuse of passport.

2388-Activities affecting armed forces during war.

(b) 18, U.S. Code, Article 1341 (Fraudulent matter) (Delivery may be withheld).

(c) 18, U.S. Code, Articles 1461 and 1463 (Obscene matter, information about contraceptives, and incitement to heinous crimes) (Delivery may be withheld).

[Indecent matter can be withdrawn from the mails under regulations to be made by the Postmaster-General].

(d) 39, U.S. Code (1960 Revision) Articles 4251, 4351, 4352, 4451, 4551 deal with "second class mail"1. Where any publication has been accorded second class mail privileges, the same shall not be suspended or annulled until a hearing is granted to the parties interested.

We may discuss the procedure regarding second class mail in the U.S.A. A "second class mailing permit" can be denied to a publication by the Post Office. When this is done, publication through the mails becomes prohibitively costly. To be eligible for a second-class permit, a publication must

(i) be issued at stated intervals;

(ii) have a known office;

(iii) be printed;

(iv) be for the dissemination of information of a public.character or devoted to literature, the sciences, arts or some special industry;

(v) have a legitimate list of subscribers;

(vi) be designed primarily for non-advertising purposes2.

The second class permit cannot, however, be denied on the ground that the publication does not contribute to the public welfare. The Post Office Department denied a second class mailing to the Esquire magazine, on the ground that the publication did not contribute to the public good and to the public welfare, but the Supreme Court3 did not uphold this standard, and pointed out, that to withdraw this privilege from a publication simply because its contents seemed to one official not good for the public would sanction withdrawal of the second-class rate tomorrow from another periodical whose social or economic views seemed harmful to another official.

(e) 39, U.S.C. (1960 Revision) Article 4005-Where the Postmaster-General finds any person conducting lotteries or fraudulent schemes through the mail, he can stop such mail matter of those persons.

(f) Vol. 39, U.S.C. (1960 Revision)4 Articles 4006-4007 empower the Postmaster-General to exclude the letters and mail matter of any person obtaining through mail, money for obscene. lewd, etc., articles, or depositing in mails information as to where such articles can be obtained. He can make an interim order for 20 days, and get it confirmed by the U.S. District Court.

Note.- The power to authorise temporary detention of mail does not apply to mail address to publishers of publications which have entry as second class matter, or to mail addressed to the agents of those publishers.

(h) Vol. 39, U.S.C. (1960 Revision).

Section 4008-(added in 1962)-Mail matters, except sealed letters, originating, etc., in a foreign country and determined by the Secretary to the Treasury to be "Communist political propaganda" shall be detained by the Postmaster-General, and the addressee notified. If the addressee does not desire delivery within a reasonable time (not exceeding 60 days), it is disposed of as the Postmaster-General directs.

(i) Vol. 39, U.S.C. (1960 Revision)-

Section 4001- (1) Matter the deposit of which in mails is punishable under the following sections of Title 18 of U.S.C. is non-mailable.

(2) Non-mailable matter is to be disposed of as the Postmaster-General directs. The sections of Title 18 of referred to are-

Title 18 U.S.C. Provision referred to
18 1302 Lotteries.
18 1341 Frauds & spindles.
18 1342 Fictitious name or address for unlawful business.
18 1461 Obscenity inciting abortion and filthy, vile and indecent thing etc.
18 1463 Obscene, etc., matter of envelope.
18 1714 Foreign divorce information.
18 1715 Firearms.
18 1716 Injurious articles (poisons, replies, etc.).
18 1717 Many matters, including matter advocating treason, insurrection or forcible resistance to any U.S. law.
18 1718 Libellous matters on wrappers, etc.

Note.- Under 18 U.S.C., Section 1716, no person other than an authorised officer of the Dead Letter Office or acting under a search-warrant can open a letter without the addressee's consent.

(j) It is stated5-6, that in the U.S.A. publications, (particularly those received from foreign countries) have been held up, if in the opinion of the officials concerned the publications showed a subversive intent.

(k) Mails sent from abroad to persons not registered under the Foreign Agents' Registration Act, 1938 (as amended) can be forfeited.

(l) In times of war, special restrictions under the Espionage Act, 1917 come into play7-8.

(m) There is a provision prohibiting interception of telephonic communication9. But that is not relevant for the present purpose.

1. As to second class privileges, see

Hannegan v. Esquire, (1946) 327 US 146, which seems to limit the authority of Milwaukee

Leader case, (1921) 255 US 407.

2. See Wiggins Freedom or Secrecy (Oxford University Press, New York), (1956) p. 187.

3. Hannegan v. Espquire, (1946) 327 US 146 (157, 158).

4. For the law before 1960, see Gellhorn & Bysee Administrative Law, 91960), pp. 771-772.

5. Wiggins Freedom or Secrecy, (Oxford University Press, New York), (1936), p. 187.

6. See also Castberg Freedom of Speech in the West, (1960), (Allen & Unwin), p. 145, referring to Bolte Security through Book Burning (1955), p. 90.

7. Masses Publishing Co. v. Patten, (1917) 244 Fed 535 (August 1917 issue of a magazine excluded from the mails being of a revolutionary and anti-war character).

8. Milwaukee v. Burleson, (1921) 255 US 407.

Sections 501, and 605, and 1308, Federal Communications Act, (1934), 47 USC 151; See "Electronic Eavesdropping" (1964) Am Bar Ass, Journal 540, 542 and 543.

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