Lamont v. Postmaster General

PETITIONER: Lamont
RESPONDENT: Postmaster General
LOCATION: Longshore and Warehouse Union

DOCKET NO.: 491
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 381 US 301 (1965)
ARGUED: Apr 26, 1965
DECIDED: May 24, 1965

Facts of the case

Question

Media for Lamont v. Postmaster General

Audio Transcription for Oral Argument - April 26, 1965 in Lamont v. Postmaster General

Leonard B. Boudin:

-- of Section 305 of the Postal Service and Public Employees Salary Act of 1962.

Is -- Section 3005 authorizes the Postmaster General directs them in fact not to deliver mail except sealed mail which the Secretary of the Treasury has determined to be "communist political propaganda" unless the addressee request the delivery of such mail.

There are exceptions namely, federal agencies, there's government agencies, public libraries and certain institutions of higher learning.

The appellant, Doctor Lamont is a writer and publisher of pamphlets and other materials dealing with public affairs.

In July of 1963, he received a notice from the Postmaster General in the form set forth at page 13 of the record in which he was called that a certain matter which had been determined to be "communist political propaganda" namely an issue of the Peking Review, Chinese publication had been -- had arrived and that it would not be delivered to him unless he requested his delivery by returning that notice.

Dr. Lamont instituted this suit to enjoin the enforcement of the statute, this provision of the statute as unconstitutional for reasons which I shall indicate and this Postmaster General responded by saying that he regarded the suit as a statutory notice of a desire to receive this material therefore all “communist propaganda” so-called, or court found literature would be delivered to Dr. Lamont and the Postmaster General moved to dismiss the suit as moot.

Following a longstanding policy indicated in the record of attempting to avoid a constitutional test to these issues.

The District Court by a divided vote by the statutory court upheld the motion to dismiss as moot on the ground that the basic injury, the failure to receive unless the request was made, no longer existed since the request had been made.

And that the other claim that the list of persons which historically had been kept which constitutes 20,000 a number at the present time, according to the record, of people desiring to receive "communist political propaganda" was not a really dangerous list which could afford any problem to the addressee.

While this case was pending on appeal to this Court, a different District Court in the companion case in California, came to a different conclusion, holding that the issues were not moot, holding that the statute was unconstitutional as an impairment of the right of communication.

And holding that the list was a list of what might be called subversive persons or persons associated with them and therefore presented a deterrent to people requesting such materials.

I understand your (Inaudible) these lists are no longer being kept?

Leonard B. Boudin:

Yes, Your Honor.

Currently, what's happened to the old list?

Leonard B. Boudin:

I shall address myself to that Your Honor.

Yes, while -- shortly after the Fixa case was decided, the Postmaster General for reasons that we don't question at all in terms of propriety, acquiesced in our view that the list at least were very harmful or might be harmful and adopted a new procedure under which he destroyed, he says he did and we accept his word, the existing list of names of people desiring such “communist propaganda”.

Thereby, also revising the procedure so that nobody could receive the mail, by making a single request because for each piece of so-called “communist political propaganda” that arrives in the Post Office, a separate notice is sent to the individual and that individual whom we're sending that notice requesting the mail.

If he says he wants it and the next piece of propaganda arrives, he must still send in another notice otherwise, the list would have to be kept.

On the other hand, if he says he doesn't want the propaganda, then a list is kept, this time what we will call a non-subversive list of people who don't want “communist political propaganda” and therefore will never receive them.

The action taken by the Postmaster General of course eliminates the issue of mootness which is not discussed in the Government's brief which I shall not address myself to.

It does however still pose a very serious question which we address ourselves in this rather brief argument to, namely whether the statute does not in terms of purpose, effect, and language directly as in Speiser, not indirectly as the -- such case as the ACA against Douds according to the Court's holdings affect and abridged freedom of communication.

I shall obtain in a few minutes to the arguments made by the Solicitor General because they must be met here.

But let me begin preliminarily by saying that we think that the statute which allows the Government to say that certain kind of material coming from abroad will come in without any deterrent, without any request, without any delay, without any screening.

Let's take the New Statesman which soundly contains socialist propaganda in which on the other hand, says that material which is “communist propaganda” must be screened, must be read, must be translated, must be determined to be whether it's “communist propaganda” or not and then cannot be delivered unless a request is made by the individual that that does basically interfere as the Attorney General himself said to his representatives when this matter came before the Congress, it does interfere with our conception, our tradition of an open society.

Arthur J. Goldberg:

Mr. Boudin --

Leonard B. Boudin:

Yes, Your Honor.

Arthur J. Goldberg:

-- is this statute, only relate to foreign mail or does it relate also to domestic mail which is the subject of which has foreign (Inaudible)?

Leonard B. Boudin:

The latter as well, Your Honor.

Arthur J. Goldberg:

So in other words if you order something through the bookstore, a magazine or a book that had it's origin abroad, that mail can also be screened under the statute?

Leonard B. Boudin:

Exactly, Your Honor.