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

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.

Leonard B. Boudin:

Now, —

William J. Brennan, Jr.:

Well, I had understood that this statute doesn’t apply at all the — something that you’ve ordered, something you’ve subscribed to —

Leonard B. Boudin:

Well —

William J. Brennan, Jr.:

— but only to things which were sent to you involuntarily.

Leonard B. Boudin:

The difficulty is that with the elimination of the list, Your Honor, you no longer had a subscription technique as the Solicitor General points out in his brief quite correctly.

You can’t tell anymore whether somebody has subscribed because the Post Office doesn’t keep a regular list.

When the Post Office had a list of the people who wanted the propaganda, ‘then they would know who wanted it by subscription or otherwise.’

Now, it can’t be told.

Of course, Solicitor General says perhaps the Post Office will figure out the way to handle that.

William J. Brennan, Jr.:

But so far as the statute’s (Voice Overlap) —

Leonard B. Boudin:

In terms, yes.

William J. Brennan, Jr.:

The statute does not apply to anything that anybody has to be sent to him.

Leonard B. Boudin:

Precisely, in terms.

William J. Brennan, Jr.:

Isn’t that correct?

Leonard B. Boudin:

Now, what we think is the basic defect to the statute is that it cuts under the principle that the Government must not determine or must not facilitate the reading of particular matter and to discourage in anyways slightly or greatly the reading of other matter.

And that this one is in a sense undercuts the principles set forth in such opinions as baits, where the Court talked about the consent of an informed citizenry because the informed must refer to information and the information is not to be the information which the Government wishes to discourage or encourage.

Of course, as the Court has held in Martin against Struthers, the right to read and to receive letter to is correlative to the right to write it and to distribute it.

Now, in addition to the fact that there are delays which are inherent in this system which will be discussed by Mr. Krause in the next case, the whole problem was translation and I’ll be judging it, a judging which the Customs admit is an imprecise one.

(Inaudible)

Leonard B. Boudin:

I think in English, Your Honor.

I think that’s — that one is in English but many come in of course in other languages.

We think this is analogous to a licensing scheme of a kind discussed by the Court in the Lovet — in Lovell against Griffin, in Thomas against Collins, and in Grosjean except here we have the unusual situation of the licensee being the leader, the audience as if you were licensing the people who could attend their meeting instead of the license that required other person conducting the meeting and —

(Inaudible)

Leonard B. Boudin:

Well, there is a license in the sense.

It’s a license which you will get.

But the Court has spoken about licenses which you will get also as being improper (Inaudible) — infringements upon speech.

You will get it if you make your request for it and of course this does cut right into the question of the writer of anonymity of the reader, a right which the Court held existed with respect to the distributor of literature and Kelly against California, circumstances far less invidious because they didn’t involve the question of “communist political propaganda”.

Now, the Government’s response which of course is a critical thing here is two things.

First, the Government says there’s only a momentary listing and then it says there is not the slightest reason to (Inaudible) — to anticipate government reprisal because a person is on such a list.

And it questions whether there would be much community reprisal either if these facts are known.

Leonard B. Boudin:

Our answer is that historically, under the prestatutory program which was eliminated by the order of President Kennedy and then resulted in the statute, the names of person’s requesting the literature were turned over to various congressional committees and then of course generally speaking, there has been unfortunately in the last two decades a loyalty security programs interest in the reading habits of American citizens and this we have documented.

The fact that there is only a momentary request for the literature, doesn’t exclude the possibility that the name will be noted somewhere because the Post Office may revert to its old practice, has changed its practice at least twice in this litigation, the moments are repeated moments instead of the single moment that we had when you could ask for all the literature because it is not true that you can now ask for all “communist propaganda”.

You must ask for the particular item.

The Customs Bureau which also has this literature and which has done most of the revelations to congressional committees in the past are the names of addressees makes no such commitment as the Postmaster General makes in these cases.

And more important, there is no assurance to the public.

I think the Solicitor General was in error in his brief and it wouldn’t make any difference if he weren’t here.

No assurance to the public in the form of a writing or otherwise that the list of names will not be kept even if there weren’t such an assurance.

Surely, the — there are many people in this country who are sufficiently timid and with some justification I fear, not to want to ask the Government.

The Government ascend what is labeled “communist political propaganda” because of the fear of consequences.

Now, we think that under — none of the standards which the various members of the Court have suggested can there be a justification for what the Government has done here in the statute.

Whether the standard be — that suggested in the concurring opinion in Bates of Mr. Justice Black, that First Amendment rights are beyond abridgement or whether it be the one suggested on the other circumstances in Bridges and in the dissenting opinion of Mr. Justice Harlan in Roy, namely a paramount government interest.

And in Bridges, greatest abuses, endangering paramount interest or whether even be the balancing theory which has been suggested in such cases in Barenblatt.

Under none of these circumstances do we think there can be a justification bearing in mind the Government’s very fair concession at page 23 of its brief that we do not suggest says the Government than any such large and important public interest are involved as with — support a true invasion of freedom to speak or publication or a freedom to hear, read and learn.

It says no such interests to implicate on either side.

But we think the key here is, are there large and important public interest which would justify any infringement, large or small upon freedom of speech, freedom of the press.

The Government —

Potter Stewart:

I am —

Leonard B. Boudin:

Yes, Your Honor.

Potter Stewart:

— we have a little difficulty and perhaps this kind of — because I’m — because of daylight saving time or something or maybe obtuse this morning.

Leonard B. Boudin:

(Inaudible)

Potter Stewart:

What the — we’re dealing here with the literature that mailed to unknowing and unwilling addressees by definition under the statute (Voice Overlap) —

Leonard B. Boudin:

Except we must remember that as a matter of practical application we’re now dealing with either mail requested by people and certainly mail desired by people.

I’ll agree if (Voice Overlap) —

Potter Stewart:

If it’s desired, they get it.

Leonard B. Boudin:

If it’s desired they get it but only if they make the formal request, not if they just desire it.

The man who wants the literature which is then coming to him, day after day or month after month, must with (Inaudible) — in order to get each piece of literature, send in a separate card to the Post Office department.

He may want the literature after he’s read the first issue but he doesn’t get the next issue unless he asks for it.

And he hasn’t got the next because he asked.

So this is directed against people who desired the literature and who are compelled that they wanted to make the request.

Have I put the thing in context (Voice Overlap) —

Potter Stewart:

Well, how about the protection of the people who don’t desire it.

Leonard B. Boudin:

That is why now I’m going to come to.

Is there really — is there really a need for the protection of people who don’t want it and is it a need which can justify making it difficult or creating a problem for people who do want it.

Something like the Schneider case, the cleaning of the streets, the dating speech of the literature, only to say that those people who do want it and a larger number want it as it indicated, but, those people who want it are to delay and sometimes not — and send in the request for literature because there are few people who may not want it.

The Government — I think that is a matter of principle that those people who don’t want it can reject it and those people who do want it should not be compelled to make the formal request for “communist political propaganda”.

There is by the way practically no evidence that people who don’t want it are really disturbed when it arrives.

I will deal with the alternatives which I’ll indicate in a few minutes.

But as I looked at the Government’s brief, hearings conducted in 1955 before the House Committee on Un-American Activities where the basis for some indication that a few people didn’t want it.

And the Customs people and the Treasury people testified in the congressional committee hearing after the statute and doing dependency of it.

That very few complaints actually came in to people who didn’t want it.

But the basic principle is, are we to take away for those people who have a right to receive viewpoints from every side.

Take away their right to receive it with equal facility because it is of a special kind, but remember we’re only excluding one kind of propaganda coming as political propaganda and because other people may have their feelings hurt, so I’d questioned if they get it.

Apart of the statute, (Inaudible) receive communist literature, did he notify the closure?

Leonard B. Boudin:

Exactly, that’s exactly the alternative thing we would suggest, Your Honor.

So the effect of this statute, at least so far as he is concerned, is simply (Inaudible).

Leonard B. Boudin:

Exactly.

The individual under 39 CFR .44 — 44.1 can send in a single notice to the Government saying, “Don’t send me for the next two years, probably forever, but two years.”

What the regulation says, any formed propaganda and he will not get it.

That brings us on this aspect of the case to what the Court has said so often that in dealing with a federal statute, suppose in a state statute also, impairing freedom of speech, the question is, is there a reasonable alternative to a drastic statute and the reasonable alternative lies in the exercise by the unwilling individual if there really is such a person of his rights under this regulation.

And I may say that Congressman Walter who as the Court knows was no active friend of communism and with — the greatest one I have ever made and was Chairman of the House Community on Un-American Activities, although he began by considering a statute of this kind, as a very good lawyer, came to the conclusion that the statute was unconstitutional and opposed this particular section which was written in by Senate — Congressman Cunningham and instead proposed the alternative method which appears with respect to obscenity statutes in Section 307 of the same statute and as — in our replied brief and in the appendix, namely notifying the public by individual notices and in the Post Office of the fact that such propaganda comes in and it can always be returned if they don’t want it to the Post Office without charge.

Such is the provision we now have in the law with respect to obscene literature which surely is more offensive, I — well, as at least it’s offensive as so-called, “communist political propaganda”.

(Inaudible)

Leonard B. Boudin:

I don’t know.

I don’t know that Your Honor.

But they certainly can send this back.

Now, we come to the —

(Inaudible) —

Leonard B. Boudin:

Sure, Your Honor.

Hugo L. Black:

— of this, I’m not sure but I’m reading a statute.

Leonard B. Boudin:

Please?

Hugo L. Black:

I’m not sure about reading the statute as to this point —

Leonard B. Boudin:

Please Your Honor.

Hugo L. Black:

Supposed the propaganda should be mailed in or sent in to this country, some printer here decided to sell it and make a profit and he reprints it here, is that barred?

Leonard B. Boudin:

Yes, that will also be barred.

Hugo L. Black:

That is barred?

Leonard B. Boudin:

That is barred, Your Honor.

Yes.

Hugo L. Black:

Supposed he changes some of the words in it.

Leonard B. Boudin:

I should say because the — it originates in a foreign country, in a Communist country.

It would still be covered by it.

The question would be term — meaning of the word origin.

Hugo L. Black:

Suppose he — thinks he can improve it a little and he paraphrase it?

Leonard B. Boudin:

I would say, he still has to give credit to the author or the Government would give credit to the author in determining whether or not it was communist propaganda.

Hugo L. Black:

Then it’s not based on the — I supposed then the Government claim of constitutionality is not based on the — its power to keep things from coming into the country.

Leonard B. Boudin:

No.

Hugo L. Black:

But to keep things from getting to the individual of a particular type.

Leonard B. Boudin:

Yes, that’s quite right Your Honor.

The Government has a — it doesn’t operate on the theory of control over the mails really, it’s very well aware of the dissents in Burleson and in similar cases.

The Government says in addition to the argument which is made with respect to the sensibilities of the individual, that why should we pay for “communist political propaganda”, this is I must say an argument that was reverted by the administration in opposing this particular law, because there’s nothing that I can say that can equal the remarks that were made by the postal authority, the Attorney General’s Office and Customs in opposing the constitutionality, the workability, the fairness and in claiming — asserting the vagueness of this particular statute.

And the Government answered to this subsidy argument before the congressional committee.

Post Office committee said as follows —

Hugo L. Black:

When you say the Government, who do you mean?

Leonard B. Boudin:

The Administration, the Executive Branch of the Government opposed the statute as unconstitutional.

Hugo L. Black:

But what — who was the witness?

Leonard B. Boudin:

Deputy — then Deputy Attorney General White, Assistant Attorney General Katzenbach, Mr. Doyle, the Postmaster General.

Now let me be perfectly fair and say that what they opposed was the original Cunningham Bill, which would have — which indicates the purpose of Congressman Cunningham in the statute which would have prescribed all “communist propaganda” from coming in, sealed or unsealed and making no exceptions.

But the Government’s opposition as expressed through the witnesses whom I’ve indicated was an absolute opposition, not limited to the terms of the bill and relying upon the basic principles which the Court has set forth in — with respect to free trade and ideas.

Now in the course of that testimony Mr. Justice Black, the Government pointed out that you cannot treat the mail coming in, in isolation and assumed that we are giving a subsidy to foreign “communist propaganda” because it is part of a reciprocal arrangement under the Universal Postal Convention under which the sending country gets the postage and the receiving country does the delivery.

And of course we send out much more to the so-called communist bloc and therefore we receive it, the United States much more postage than they receive.

But I don’t regard that frankly as the critical argument here, nor do I regard the practical argument which is now available to us on the basis of the testimony given by the Post Office officials and Customs officials that this program is costing a half a million dollars a year even if we put aside the fact that instead of one letter there are sometimes three that “communist propaganda” comes in.

Leonard B. Boudin:

The notice goes back and the mail goes out, a half a million dollars for the purpose of saving very little literature from going out.

I consider even that argument not an important argument here and the basic one is the one that was made by Mr. Justice Brandeis dissenting in Burleson that was made in the Hannegan case that was made — that is suggested in the dissent of Mr. Justice Harlan.

Namely that you cannot use the subsidy theory, the second class mail theory as it was in order to screen political or economic content.

You cannot say that we will let the second, because of the subsidy argument we will let the London Economists come through and we will not let the Moscow Daily News.

Because here really is the Government determining how it will facilitate literature and the mails are not a faucet to be turned on full speed if the literature is approved by the Government and to be reduced in pressure if the literature is disapproved by the Government even though eventually it may sift through to the individual.

Hugo L. Black:

What is the basic argument made as to the importance of this to the Government?

Leonard B. Boudin:

The Government says that isn’t very important really.

Hugo L. Black:

So what is the basic reason of —

Leonard B. Boudin:

It says that we have to protect the sensibilities of those people who don’t want it and we mustn’t subsidize communist literature.

I’m giving Your Honor the basic argument of the Government and they attempt to assimilate this to the Breard against City of Alexandria which involved of course with Your Honor dissenting a commercial solicitation, door-to-door salesmen and the Government attempts to assimilate this by a rather far reaching metaphor what it calls the sending of the mail and intrusion into the mailbox as if this were a physical trespass.

Hugo L. Black:

But I don’t suppose we intrude into anything when we send radio messages over to the Bureau, what they call the, behind the iron curtain?

Leonard B. Boudin:

Well, the Government would answer that it has a right, (Inaudible), and so we have the right to do whatever we want over there but we also have a right to protect the mailbox from intrusion here although nobody has equated this with the amount of junk mail that comes readily.

Now I have a few minutes with —

Arthur J. Goldberg:

But wouldn’t the Government also argues, doesn’t it, that the communist countries will not reciprocally compare the American publications from the access to there service.

Leonard B. Boudin:

That suggestion is made in the brief.

It is not agreed to by the administration before the Postal Service Committee.

They say there isn’t evidence of non-delivery but even if it were true of course we have the right to revise under 39 U.S.C. 505 (a) the right to revise our postal arrangements to other countries to change the rates and of course the more fundamental argument again, I move away from money is, are we going to screen the American people in accordance with the views of a customs house inspector.

Arthur J. Goldberg:

I thought there was a more fundamental argument against the Government.

I hadn’t understood that the American Constitution is popular over in communist countries.

Leonard B. Boudin:

Yes, yes.

I —

Arthur J. Goldberg:

(Inaudible) your arguments.

Leonard B. Boudin:

That is really what I meant to say that we are governed here by a constitution.

But the chief —

Hugo L. Black:

I suppose you would say that we have a right to be less fear by foreign propagandas than they do.

Leonard B. Boudin:

I’m sure we do but sometimes a statute is passed like this almost a one man job I may say, giving full credit to Congressman Cunningham against all administration which suggests a contrary view and a fear of “communist propaganda”.

This of course rate the question of what is “communist political propaganda”?

And Your Honor we’ll see the very broad definition that appears on a Foreign Agents Registration Act which maybe alright so far as the Government has agreed with me before the House Committee — Senate Committee maybe alright so far as requiring a man to register because then it doesn’t make much difference what the definition is, the propaganda.

But when you are dealing here with a restriction on freedom of the press, freedom of communication, then it does make a difference whether the definition is a vague or a precise one and the Customs’ officials themselves in congressional hearings which is to be held after the statute, say we need a definition of what is foreign “communist propaganda” because it relates under the statute anything whatsoever to do with the foreign policy of the United States to anything whatever to do with the policies and views of a foreign country with any attempt to promote, these are the words, racial, religious and social tension.

I think the word or it’s a similar word, very broad, and you have 50 Customs officials and translators sitting on these low 11 offices throughout the United States reading all these mail, translating it and trying to decide whether its “communist political propaganda”.

Does it matter what you think it is?

Leonard B. Boudin:

Yes, it must come —

May I —

Leonard B. Boudin:

— because it’s communist, Your Honor.

That must come from a group of countries that we can call the communist countries because they are denied foreign assistance, they are denied the benefits of tariffs.

William J. Brennan, Jr.:

Well, at least the ones that the page — put under page four of Government’s brief I guess, is that it?

Leonard B. Boudin:

Yes, that’s correct.

William J. Brennan, Jr.:

And those includes Germany, is that —

Leonard B. Boudin:

I think East Germany —

William J. Brennan, Jr.:

— Germany, is that right?

Leonard B. Boudin:

— I don’t think West Germany.

William J. Brennan, Jr.:

It just says Germany in here.

Leonard B. Boudin:

Well, perhaps it’s all of Germany that’s being screened at the moment.

William J. Brennan, Jr.:

What — those such as Japan and Mexico?

Leonard B. Boudin:

Well, they screen all material coming from Japan and Mexico because they think that communist literature might come through those countries but it wouldn’t be “communist political propaganda” necessarily if it came from Japan.

William J. Brennan, Jr.:

Canada too, it says here.

Leonard B. Boudin:

Well, it’s a broad statute because we must be very sure what the American people would be allowed to read.

William J. Brennan, Jr.:

Why Canada and not England?

Leonard B. Boudin:

Because they feel that Canada maybe an entrance point for “communist propaganda”.

Its —

(Inaudible)

Leonard B. Boudin:

Oh yes, oh yes, the whole eastern bloc.

Would it be satisfactory Mr. Chief Justice if I reserved whatever I have left which is about two minutes until the conclusion so I interrupt the Solicitor General with this argument.

Earl Warren:

Yes, you may.

Leonard B. Boudin:

Thank you.

Earl Warren:

Mr. Solicitor General.

Archibald Cox:

Mr. Chief Justice, may it please the Court.

I think it might be useful in clarifying the issues in this case if I were to begin by giving a very few words about the background of Section 305 even though we’re concerned directly of course not with the background but with that statute.

It’s not necessary to go farther back except in very general terms than to the period during and shortly after the World War II.

During World War II, a program of screening of foreign propaganda at that time, Nazi German propaganda was instituted by the Executive Branch on the strength of an opinion by Attorney General Jackson.

Archibald Cox:

That program continued for a time through the 1940s and 1950s of being in its set up chiefly by executive and administrative action, and came in the course of time, I think it’s proper to say to be directed at the communist countries.

In its beginning and in the early 1950s as I understand it, it did amount to a total blocking, if I may use that, suppression if you will, of “communist political propaganda”.

There were many, many complaints including complaints from government agencies, educational institutions doing work at one time or another for the Government.

And during the late 1950s the program was changed in such a way that the addressees of “communist political propaganda” were as or whether they wished it.

If they sent back an affirmative response saying that they did wish it then it were sent to them.

If they didn’t reply or replied at the negative then of course it was not sent to them.

That state of affairs continued until the spring of 1961 when President Kennedy terminated the entire program.

He acted on the basis of opinions from his Attorney General that there was doubt as to the statutory base for this program and from the Secretary of State as I recall it to the effect that this was impeding his efforts to workout cultural exchanging.

Arthur J. Goldberg:

Mr. General, so you admit that the National Security felt that —

Archibald Cox:

The matter was reviewed by the National Security of Council and it concluded that the statute serves no useful purpose.

The matter then came up before Congress in connection — and most importantly where the Postal Service and Public Employees Salary Act which was enacted in — ultimately in 1963.

The Cunningham Amendment which was proposed in the House by Congressman Cunningham and was adopted by the House put back on a flat measure barring the delivery of “communist political propaganda”.

There was talk of some exceptions for certain institutions but generally speaking the measure was an absolute prohibition.

William J. Brennan, Jr.:

So that was an amendment to what?

Archibald Cox:

To the pay-raise bill.

Hugo L. Black:

Which one?

Archibald Cox:

The one that we all finally got Your Honor.

Hugo L. Black:

Oh.

Archibald Cox:

I do not make excuse of it Your Honor.

The Cunningham Amendment, the absolute prohibition was very strongly opposed by the Attorney General or the Treasury or the Post Office and other interested party.

But I would emphasize that the opposition of which Mr. Boudin speak was to the Cunningham Amendment and the absolute prohibition are now the logic of some of the things that were said in terms of our commitment to the pre-circulation of ideas or may well apply as a matter of policy to this bill too.

But I don’t think it’s fair to say that the Department of Justice expressed — then expressed the opinion that the present Section 305 is unconstitutional or that Congressman Walter expressed the opinion that the present Section 305 is unconstitutional.

When the bill went to the Senate, it was proposed to be substituted for it, a measure that essentially stemmed from a proposal introduced by Senator Butler, which would, in substance reinstitute, the latter phase what I would call the administrative problem.

Hugo L. Black:

What did you say, that was all authored by?

Archibald Cox:

The ori — the — it stemmed from a bill originally offered by Senator Butler of Maryland, I think.

It stated, perhaps my memory is wrong, it’s stated in that brief for sure.

Senator, excuse me, I’m — Mr. Boudin tells me it was Senator Bush of Connecticut, now I remember he’s correct.

I —

Hugo L. Black:

Thank you.

Archibald Cox:

Ultimately there — went through the Congress.

Archibald Cox:

The measure, Section 305 which is reprinted at page 31 just about the very back of our brief and I think it’s important to note its scope.

It provides that mail matter except sealed letters, in other words unsealed letter which originates or is printed or otherwise prepared in a foreign country.

Now I understand that the term originates has never been applied to reprints in this country of matter that was originally printed in foreign countries.

I’ve checked just now with the representatives of the Post Office and that’s what they tell me to be the case.

And I don’t believe it was intended to apply to reprints.

For example, that the New York Times reprints very frequently “communist political propagandas”, speeches by communist officials speakers in Hanoi or in Moscow and no one has ever suggested that that is barred from the mails.

William J. Brennan, Jr.:

But if a speech reprinted in the Time were put in a letter form in Russia and sent here that would be “communist propaganda”, isn’t it?

Archibald Cox:

If it were printed in pamphlets form so that it’s not sealed.

William J. Brennan, Jr.:

Although it appeared in the New York Times.

Archibald Cox:

That would be treated as “communist political propagandas”.

There’s no question about that.

If there, the statute then goes on, I emphasized in other words that it does not apply to things reprinted here which originates or which is printed or otherwise prepared in a foreign country and which is determined by the Secretary of the Treasury to be “communist political propaganda” shall be what?

Shall be detained by the Postmaster General upon its arrival for delivery in the United States or upon its subsequent deposit in the United States domestic mails, I’ll come back to that.

And the addressee and — the addressee shall be notified that such a matter has been received and will be delivered only upon the addressee’s request.

So that everything is delivered if he so request and I’ll explain the mechanics in a moment.

Except that such detention shall not be required in the case of any matter which is furnished pursuant to subscription or which is otherwise ascertained by the Postmaster General to be desired by the addressee.

In other words the theory of it is that it is held up to discover the addressee’s wishes, if you have reason to suppose that the addressee wants it either because it’s subscription mail or because you have some other satisfactory evidence that he wants it, then you’re not to hold it up.

And pursuant I think to that same general theme an exception over on page 32 makes the provisions of the Section inapplicable to public libraries or the Government and educational institutions of higher learning.

Again, I presumed because it is supposed that those institutions, the libraries are receiving matters of all kinds and presumably wished this.

And I passed over the point of matter shall be held up upon arrival in the United States or upon its subsequent deposit in the United States’ mails.

Let me deal with the problem of subsequent deposit first.

The statute as written apparently applies to say a large box of pamphlets that were sent to this country from Moscow or by freight were delivered to a — someone, a bookseller in this country and by him deposited in the mails.

I want to emphasize two things about that.

In the first place as a practical matter, neither the Customs Bureau nor the Post Office has discovered any very workable way of applying the statute in such cases and it is hardly ever applied to any such material.

It comes in, we don’t check the mail of everybody in this country and except for a few spot checks on distributors who are known to be receiving for one reason or another, a lot of material of this kind, the mail simply goes out or there have been one or two such instances and the statute has there been applied.

Hugo L. Black:

How will the man know —

Archibald Cox:

I —

Hugo L. Black:

How will the man know whether he’s on the list that the Postmaster General thinks he ought to look at this mail?

Archibald Cox:

I don’t suppose he would.

The terms of looking at his mail of course, we’re talking about — only about unsealed mails.

Hugo L. Black:

I am talking about — I’m talking abut this mail.

Archibald Cox:

Well, you’re talking about the mail that as —

Hugo L. Black:

(Voice Overlap)

Archibald Cox:

The man I described as bookseller sends this out.

Hugo L. Black:

Mail that’s sent to him like I get all the time that I never ask for, some of it are never wanted.

But he gets everyday, how would I know whether they were letting me — had my name on so that I couldn’t get it.

Archibald Cox:

No.

I must’ve misled Your Honor because that isn’t the situation that I was trying to describe.

I was trying to describe the person who receives something by express in this country and who is in the business of circulating these publications to others.

Hugo L. Black:

Yes, but —

Archibald Cox:

I was saying that the Postmaster General or has on occasion made spot checks of the matter deposited in the mails by such a person to see whether he was obliged to provide Section 305 to it.

William J. Brennan, Jr.:

Well, does that mean, for example if John Jones had addressed to him a box of a thousand pamphlets with a communist manifesto from Moscow, it might be that the Post Office would see how many of those he dropped in the mail, is that it?

Archibald Cox:

It might be that the Customs Bureau would discover that John Jones was getting a great deal of this.

William J. Brennan, Jr.:

Yes.

Archibald Cox:

And it might then say to the Post Office, “John Jones is getting a great deal of foreign communist propaganda, you would better see whether Section 305 applies to it”.

And in that event the Post Office might, and we’re talking about one case in a thousand but I —

William J. Brennan, Jr.:

Apply it to what he is mailing.

Archibald Cox:

Might look at what he is mailing —

William J. Brennan, Jr.:

Yes.

Archibald Cox:

— and then apply the steps of the statute.

William J. Brennan, Jr.:

Yes.

Archibald Cox:

His mail would — what he deposits would go into the mail.

Now, I want to emphasize in addition to the fact as a practical matter, this is very intriguing.

Second, that that is not either of these cases.

We were clearly dealing with matter from the foreign countries in these cases.

There’s no complaint here about domestic matters.

Second, I would emphasize, it seems to me that the case of domestic mailings is quite separable in two respects.

In the first place I think that there may well be questions of statutory interpretation as to just what is meant by the words that I read or that conceivably could have a limiting interpretation put upon them.

Again, I would think that the constitutional issues with respect to a domestic mailer, domestic sender were certainly different from the issues with respect to these foreign mailings coming from overseas.

Hugo L. Black:

Are you going to tell us why?

Archibald Cox:

Because I think that the foreign — well, I have to face up the question of the rights of the recipients.

I think that the foreign senders, this being materials sent by on behalf of foreign governments do not have First Amendment rights.

William J. Brennan, Jr.:

Well, any —

Archibald Cox:

So I say, I have to face the problem with the rights of the recipients and I intend to do it.

William J. Brennan, Jr.:

But what I meant was you’re going to say why that this same kind of law couldn’t be constitutionally applied to people in this country who want to send this same politic — “communist propaganda” inside the country.

Archibald Cox:

Oh!

What I was trying to suggest was that the man who mails it in the country has a First Amendment right.

But the man who mails it on behalf of the Hanoi Government I suggest has no First Amendment right.

William J. Brennan, Jr.:

And the other —

Archibald Cox:

When he is abroad.

William J. Brennan, Jr.:

Do I understand yet on his mail on behalf of the Hanoi Government from South Vietnam, it’s not screened?

Archibald Cox:

At the present time the South Vietnam may not be —

William J. Brennan, Jr.:

It’s being screened.

Archibald Cox:

— screened.

The problem there —

(Inaudible)

William J. Brennan, Jr.:

I really, really —

Archibald Cox:

Well, we’re — let me describe if I may the operation of this statute in the case of mail coming from the foreign countries.

The mail arrives in large sacks that we’ve all seen on the Post Office truck.

Frequently an entire sack will contain as it does in those in News Week and Time when the case of domestic mail or copies of some foreign publication possibly, the Peking Review, from Crocodile, or the pamphlets that have been specially printed, are all such unsealed mail, of course it’s likely — is liable to go through the Customs anyway whether there were this statute or not.

Not all of it, it would be inspected by Customs in the absence of the statute but a substantial part would.

Under this statute when the mail arrives, let me suppose, New York, I — the — everything from these countries that are listed here, and I’m now speaking of Russia, is routed through — everything unsealed is routed through — is dumped out from the mailbag.

The Post Office looks at it and what happens to be sealed in the mailbag is then sent on its way.

In addition, the Post Office looks to see how much of it is addressed to exempt people and that is immediately screened out.

To give you an illustration, in February 1965 that there were 1 million, 280 some thousand pieces of mail that arrived in New York City that might have been, might have been “communist political propaganda”.

There was at least a question raised about that.Of those sum, a 137,000 were found to be addressed to colleges, public libraries and the like and were found exempt.

This left that some 11 — 1,150,000 to go to Customs.

They’re comparable figures in the record in the Fixa case.

I’m using February 1965 just because they’re more up to date.

But there are comparable figures in the record.

Archibald Cox:

Of that 1,150,000 that went to Custom, 760,000 pieces were found not to be “communist political propaganda” and 380,000 roughly were found to be communist political —

William J. Brennan, Jr.:

Any indication of delay before that —

Archibald Cox:

Yes.

I’ll come to that in just a minute, Your Honor.

Hugo L. Black:

Is there an indication of how long it took them — and how many people it took, and how long it took to do that screening?

Archibald Cox:

I haven’t the figure on New York alone, the total number of employees involved in this program as I saw the figures in the last appropriation hearing were I think 38 translators, this is at 11 points around the country, not at New York alone, you might figure 40% roughly in New York.

And the Post Office I think said that between 45 or 50 something in that order of its employees were involved in this program.

So the total is somewhere between 80 and a 100.

There must be (Inaudible) —

Archibald Cox:

Well, you see there are many kinds of publications that they know from lists, what they are, and as soon as they know the name of it, there are many things that I guess they’ve — as I imagined it can almost go like that and I suppose occasionally the mistake.

Now of the 380,000 that were classified as “communist political propaganda”, a card was sent out by the Post Office from one of these 11 central points, not from the local Post Office, although it would go through the one of the Post Office asking the addressee whether he wanted the material or not.

If he said it — if he marked the card that he did want it, it was then sent to him forthwith.

Potter Stewart:

Would the card —

Archibald Cox:

And the average —

Potter Stewart:

Would the card contain a specific identification of the material —

Archibald Cox:

No.

It would simply —

Potter Stewart:

— or would it just say (Voice Overlap) —

Archibald Cox:

— say mail, I believe to be “communist political propaganda”.

Potter Stewart:

It wouldn’t say the Peking Review.

Archibald Cox:

It wouldn’t say what it was, no.

Arthur J. Goldberg:

Mr. Solicitor General, who makes the —

Archibald Cox:

Excuse me.

(Inaudible)

Archibald Cox:

The particular publication?

I’m told that I’m wrong about that and that it did identify the particular publication.

I’m surprised as you can see but I’m sure these gentlemen know better than I did.

My impression had been the other way.

I’ll check during the lunch hour and make sure but they must know.

Arthur J. Goldberg:

Who makes the — who makes the determination in these 11 key points as to whether the literature is “communist political propaganda”?

Archibald Cox:

Well, it’s made — it’s made by employees of the Customs Bureau who have had some training, some instructions, and they make summaries of what they‘ve done and they’re reviewed by people higher up the line.

This has been done for some period and therefore (Inaudible) undoubtedly have been developed.

Earl Warren:

Is there a review procedure or do they just leave it to the (Voice Overlap) —

Archibald Cox:

Well, they report to their superiors what they’ve done.

If they’re in doubt, they may go to a superior.

If that’s — that’s the end of the matter.

Earl Warren:

What’s (Voice Overlap) —

William J. Brennan, Jr.:

What screens them for infections of these things?

Archibald Cox:

What?

William J. Brennan, Jr.:

Who screens them for the infections from these things?

Archibald Cox:

I don’t think the theory of the statute Your Honor really can be said in any sense to be one of infection of anyone.

As Your Honor pointed out earlier, this may very well be published in the New York Times, the Peking Review at first could be bought on the streets of New York.

I expect it could to be bought here in Washington, on Cambridge, any number of places.

In addition, everyone who wants this is free to get it.

It was made quite clear by Congressman Cunningham among others, that even the theory was not one of infection.

It was as I shall attempt to argue when I’ve described this a matter of balancing in a way that I think is fairly small on either side of the interest of those who didn’t want this or — and interest in not subsidizing foreign governments in intruding this upon people against the interest of those who do want it which I shall have to agree as to some extent or cause something in the President.

(Inaudible) produce the dissemination of American propaganda in communist countries?

Archibald Cox:

One of the reasons stated in the debate and presented in the hearings by Congressman Cunningham and the other supporters was that this might operate as a lever to force the Communist nations to circulate our material more freely or whether what happens to the things that we’ve mailed to the Communist government seems to be a matter of some doubt.

I don’t — I certainly have no evidence that this has operated as a lever.

I don’t — and we don’t argue here that this should be justified as the conduct of foreign policy by the Congress.

How many are the same as to what Section of the bill was passed?

Archibald Cox:

Not to my knowledge Your Honor.

(Voice Overlap)

Archibald Cox:

I want to say just a few —

Earl Warren:

General I’m — perhaps you’d know the answer by this time to this question but suppose a document comes from, let’s say Russia, and clearly the — your people in this country in the Customs service would consider it “communist propaganda” and subjected to the — to this Act.

Now suppose this same material came with a same content from England, would it come through in the ordinary channel?

Archibald Cox:

It would — from England it would come through in the ordinary channel.

It would be looked at only to this extent.

The question then would be, was the — this applies Mr. Chief Justice, perhaps I didn’t emphasize it sufficiently in the definition of foreign political propaganda only to material put out by or on behalf of one of the Communist government —

Earl Warren:

And if it —

Archibald Cox:

— a Communist country is the —

Earl Warren:

But if —

Archibald Cox:

Now, if it is — yes, I’m going to answer your question.

Earl Warren:

Right, go ahead.

Archibald Cox:

If — the question might come up for example, whether the London Daily work is published by or on behalf of the Soviet Union, as a matter of fact there is no evidence now that we have that it is subsidized by them and that London Daily Worker comes in without any notices of this kind going out.

So that the same kind of material to answer your question directly may come in from other countries unless there is some reason to believe that it is published, put out by or on behalf of the Communist countries.

Earl Warren:

And who makes that determination?

Archibald Cox:

That has to be made by the Customs Bureau in applying the statutes.

Earl Warren:

And do they do that by their own investigative process or do they have other agencies of the Government investigating a mail that come from England and from France?

Archibald Cox:

Well, I don’t — I’m afraid that the investigation is rather cursory and unless they would find some affirmative evidence that it is subsidized then it comes in.

As I say, the London Daily Worker does come in, there’s been no effort to extend this in terms of things printed in the Communist country of — there, there is a very strong inference that it’s published by or on behalf of the Communist government.

But it says —

Archibald Cox:

It comes from some other country of — unless there’s some affirmative evidence to counteract.

Then the practice is to take it that it isn’t so far.

Tom C. Clark:

But the test I guess by the statute, Section 5 (j) is the source not to the content, I mean the —

Archibald Cox:

It’s both.

That is to say, it must be a political propaganda as defined in the statute.

It’s a very, very broad definition taken from the Foreign Agents Registration Act.

Tom C. Clark:

Yes, but what would they’ll pass muster coming from England would not muster that came from (Voice Overlap) —

Archibald Cox:

Oh, quite, quite.

On the other hand, remember that —

Tom C. Clark:

And we’re talking about such things as — I suppose the European common market, it calls the position on England and all that.

(Voice Overlap)

Archibald Cox:

No, things that came from France would be treated like things coming from England.

Up to date.

Archibald Cox:

Well, if there were determination made under the Trade Agreements Acts and other legislation that brought the propaganda within the definition upon political propaganda and “communist political propaganda” then the practice would change, yes.

I wanted to say just a few more words if I may about the mechanics of this.

I think the Court would be interested.

Earl Warren:

I would like to know just a little more about this.

Has there been any mail that came from England subjected to the provision of this statute?

Archibald Cox:

There has been —

Earl Warren:

(Voice Overlap)

Archibald Cox:

There have been some publications of where there was evidence that there was a subsidy from Russia or some other Communist country and the statue has been applied.

Earl Warren:

And then — and that’s done just through the Customs service?

Archibald Cox:

Yes, yes.

Of course, all that is done is the receipt — all that is done is that the recipient has sent a notice saying, “Do you want this?”

That’s all that happened.

Arthur J. Goldberg:

Mr. Solicitor —

Archibald Cox:

Nothing else happens to it.

Just, “Do you want it?”

If he says, “Yes.”

He gets it.

Arthur J. Goldberg:

Mr. General, would you —

Earl Warren:

He gets his name on the black book.

Archibald Cox:

No — well, if I could finish my description of the practice Your Honor, you’ll see that it does not go in any black book.

Earl Warren:

But it did for a long time.

Archibald Cox:

It — for a time, it went in the list of those who wanted the materials.

(Voice Overlap)

Archibald Cox:

No doubt about that.

It was — I don’t think there is any evidence that it was used as a black book.

It did go in a card list of people who wanted this material, does not now.

And that list (Inaudible)?

Archibald Cox:

I don’t know evidence that that list went to any committee.

Did it go to a committee, to groups investigating loyalty and security of —

Archibald Cox:

I don’t know of any evidence that it went to any group investigating loyalty.

Earl Warren:

Can you say that —

Archibald Cox:

There were —

Earl Warren:

And you say that it didn’t?

Archibald Cox:

I can’t say that I know it didn’t because I haven’t inquired.

I’ll get the best information I can.

Earl Warren:

— does the department represent that it never went to anyone outside the department?

In its conviction?

Archibald Cox:

I could represent that every effort was made that it wouldn’t.

Arthur J. Goldberg:

Is not going now?

Archibald Cox:

And it’s certainly isn’t going now but I really don’t think that there is any basis in this record or in anything that has been quoted with respect to the earlier program from any congressional hearings that gives any basis for supposing that individual’s names as such were turned over to be investigated.

I — the case ought to be decided on the facts and not upon insinuations, speculations, but certainly, there’s no such proof here.

It has been requested or furnished to anybody.

I can’t cover every unauthorized thing but as a matter of government policy and the instructions, that is the fact.

Second, I want to make it perfectly clear that as a matter of determined policy there will be no reinstitution of the keeping of a card file or list of people who wanted “communist propaganda”.

Except possibly, and this is only possibly, where they indicate that they wish their names kept on file.

I add that possibly only for this reason, today they are not kept even if they asked it.

They would be told that it won’t be kept.

But there have been two difficulties as a result of the March 1st order.

In the first place, there is the provision in the statue with respect to subscriptions.

I — and the difficulty of administering that is very great because there are many things that are stamped subscription copy which aren’t subscription copies, and the Post Office is trying to find a way of dealing with that.

Second, there is the provision in the statute which requires the Postmaster General not to detain the mail when he otherwise ascertains that it’s desired by the addressee.

And it would seem to me and I suggest the Postmaster General that if I were to write a letter saying, “I want you to deliver this mail and I want you to keep my mail on — my name on file so that you can deliver it,” then there might be a real question whether he had any authority not to do that.

Now those things I’ve stated exemptions just to be — or to protect the Postmaster General in considering these things.

I repeat categorically, that with the possible exception of someone who says, “I want my name kept on file,” that there is no thought of reinstituting the old system.

Indeed, the judgment — that part of the judgment below that enjoins keeping the list under those circumstances is objectionable to us only on the ground that it’s totally unnecessary.

It’s not anything that’s of any practical moment in the operation of the statute.

Hugo L. Black:

Mr. Solicitor General, do we have any — I haven’t read the briefs, but any precedents, if you think cover this type of legislation in the country?

Archibald Cox:

I don’t think that there’s any precedent directly implied, no Mr. Justice Black.

Hugo L. Black:

Were there any?

Archibald Cox:

Either way.

Hugo L. Black:

Any laws in connection with the abolition of literature going into the south that you remember?

Archibald Cox:

I don’t recall — what you say doesn’t remind me of anything that —

Hugo L. Black:

Yes, well, I was curious whether we did have anything like this.

Archibald Cox:

I think not except for the — well, there was — one always to think when he starts dwelling on the subject, there was of course a far more severe censorship during World War I that was sustained in the Burleson case but we do not contend that the prevailing opinion in the Burleson case any longer represents the dominant view of constitutional law.

Indeed, we concede that the First Amendment has some application to the handling of unsealed mail, second and third, (Inaudible) fourth class mail.

Archibald Cox:

But I don’t think of any other precedents.

Now with —

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

Yes.

And of course we have something somewhat similar in the case of the Foreign Agents Registrations Act where someone in this country as agent for a foreign government puts out this kind of propaganda.

It must be labeled indeed.

I had — connection to this case, a copy of the Peking Review which has that label in it.

Well, that’s not quite the same thing.

Hugo L. Black:

Was that — nothing on obscene literature that you know of.

This (Voice Overlap) —

Archibald Cox:

I don’t think that anything quite like this has been applied to obscene literature.

Alright, in coming to the legal issues, I do want to stress two familiar — almost paneled but nonetheless vital distinctions.

One is between the wisdom of legislation and the constitutionality of legislation.

I’m not here to argue nor this Court here to decide whether this is a sensible statute, whether it’s necessary, or whether it’s wise or whether it’s foolish.

Under our constitution, as everyone knows, but its worth recalling, the function of deciding whether a law is why this for Congress subject to the President’s power if he don’t, for the Congress alone.

And the second familiar precept that I would like to emphasize is difference, if I may put it this way without getting any disrespect, between fancy and fact, between broad and some — therefore somewhat loose characterizations, and the actual impingement of the statute on some concrete interest of the plaintiff because it seems to us that viewed in terms of the concrete — of concrete constitutional adjudication, Section 305 is really a rather minor regulation of the handling of unsealed mail from foreign countries developed by Congress to accommodate the conflicting interests of two groups of citizens both of whom or one of whom has to yield a little to the other unless the essential right of one is to be wholly overwritten by the other.

Now here, one group of citizens is worried and offended by the receipt of such unsolicited propaganda from foreign countries.

These people object to the delivery of mail to themselves.

Another group wants the “communist propaganda” delivered to them in regular courts.

Since most of this mail is unsolicited, indeed one estimated under the old program went as high as 90%.

But since most of it is unsolicited, there’s no way of knowing whether any particular addressee wants the mail or would be in the group worried about it and offended by receiving it.

And in Section 305, what Congress in effect has done has said, “Let’s pause and find out the addressee’s wishes.

If he wants it, then we’ll deliver it to him.”

Hugo L. Black:

What is the objective (Inaudible)?

Archibald Cox:

Well, I think that there are several things that may be said about that.

One is, I don’t quite see why the plaintiffs are anymore entitled to put a burden on the people who don’t want it other than the people who don’t want it or to put the burden on the plaintiffs.

After all, all that the plaintiffs are being asked to do is to exercise a little bit of patience, a led pencil, and to mail the postcard.

I should say because the question was asked of me before and I got the verdict.

When I said a little bit of patience, the best information I can get is that the total delay, may average about two weeks as a result of this statute.

Arthur J. Goldberg:

We are talking aobut the stacks of mail (Inaudible)

Hugo L. Black:

(Inaudible)

Arthur J. Goldberg:

Well, that is one way.

Now here of course, throughout, in terms about the recipients stopping them, there are several other things to be noted.

In the first place, most of the recipients don’t know at least in the case of the first few letters that this is coming.

It’s unsolicited to begin with.

Why should they take the —

William J. Brennan, Jr.:

But it (Inaudible) as Justice Clark said, they all get these, stacks of unsolicited mail?

Archibald Cox:

That’s true but it doesn’t say to me that the facts that we get in —

William J. Brennan, Jr.:

Well, I — I don’t quite (Voice Overlap) —

Archibald Cox:

— indicates that there is —

William J. Brennan, Jr.:

What is Government’s interest in picking out this particular rather than some of the other stuff that’s just the —

Archibald Cox:

Well, I think it’s — I think that the interest that the Congress was concerned with were two fold.

First, that this was mail which many of the recipients did find offensive and did write to the Post Office and did write to their Congressman objecting to it.

Second, we are concerned with a subsidy going to the benefit of those who are publishing this on behalf of a foreign country.

Now the — I was going to go on and show, I’ll state it now and elaborate it a little bit in a moment.

The only — the affect that this has when one comes right down to it, is to withhold the subsidy of the — generally speaking, second and third class mail because it’s unsealed mail; from those publishing by and behalf of a foreign government of the opportunity to intrude this upon those who do not want it or who maybe to indifferent indicate that they do want it.

And I think when it comes down to Justice Brennan, when one is all done with the way it operates is this.

On the one hand, there is some delay in terms of the recipient, average is two weeks.

On the — also, on that side of it is a little bit of nuisance.

They do have to fill out the card and send it back, but that’s all of the cards are then thrown away.

The interest on the other side that Congress were seeking to secure were first, even though it cost of money to see that everybody got what he wanted.

They didn’t want to finance foreign governments intruding communist propaganda on American citizens who didn’t want it, who weren’t — who didn’t desire it.

And in the course of doing that, they not only avoid it giving those publishing by or on behalf of a foreign government a subsidy, but they did avoid offending the sensibilities of those who didn’t want this.

Now you say, “Well, we all get a lot of junk mails.”

And of course, we all do get a lot of junk mail.

And perhaps, this is something that maybe proposed as the plaintiffs argued by saying, “Well, the amount of the injury is no greater than the distance from the mailbox to the scrap basket.”

But I suggest that the — that that is not necessarily true.

One of the letters which was sent in to the Post Office indicates that some of the people who received this mail feel a good deal more offended and a good deal more worried by the recidivist, junk advertisements they get.

And however we appraise that, isn’t it fair to say that it’s just about of the same order of interference with their interest, if I may put it that way as this, is interference with the plaintiff’s interest.

It doesn’t seem to me that one need to look at this as something very grave either way.

Archibald Cox:

There’s no real suppression of this material.

There’s no effort to keep it from circulating, that’s not what’s involved here.

William J. Brennan, Jr.:

Well, what other — I wonder though — I wonder if it’s not rather the burden on the Government but — show an interest since you concede that there is a First Amendment problem involved here, why do you approach it from the other side?

I think that’s (Voice Overlap) —

Archibald Cox:

Well, I attempted to state —

William J. Brennan, Jr.:

Well, we have to impose it to the side of the Government showing that this — this was justified.

Archibald Cox:

I attempted to suggest that there were two interests.

I don’t know of any other.

William J. Brennan, Jr.:

I see.

Archibald Cox:

One is the intrusion, the interest of the same character as the Court held was entitled to be taken into account in Breard against City of Alexandria.

Now, the other is the desire not to subsidize or to have our taxpayer’s money used for the benefit of — essentially, for the benefit of foreign government.

Arthur J. Goldberg:

Mr. General, the Post Office I believe under the present law to take care of the second matter by increasing the rate for — would be self-sustaining, is that correct?

Archibald Cox:

The rate is not paid by the foreign mailer.

Arthur J. Goldberg:

Well, they have to pay some postage in order to get this into the mail —

Archibald Cox:

The mail, it’s fixed by their government and paid to their government.

Arthur J. Goldberg:

— but isn’t this done by bilateral postal convention —

Archibald Cox:

That is right.

Arthur J. Goldberg:

— in which we get some revenues, as of —

Archibald Cox:

No, we don’t get any revenues from what’s mailed in Poland or Russia or —

Arthur J. Goldberg:

Isn’t it (Voice Overlap) —

Archibald Cox:

— in China.

Arthur J. Goldberg:

Because I — I maybe ignorant about this but I thought that these rates are determined by negotiation in which you offset proceeds versus expenditures that is what I think, am I wrong about that?

Archibald Cox:

I’m afraid I’m over my head, I didn’t think it was.

But I don’t really get —

Arthur J. Goldberg:

No, I thought it was something (Voice Overlap) —

Archibald Cox:

I don’t really know.

Arthur J. Goldberg:

I maybe wrong —

Archibald Cox:

But its — the mail that they mail, I do know, we get no receipt from it.

And, I don’t want — let me make — if I have to — I meant to as I stated it.

I don’t mean to say that we are saving money under 305.

Arthur J. Goldberg:

It may be possible.

Archibald Cox:

That would give a false impression.

What I sought to emphasize was that the subsidy didn’t go to the foreign country from which the mail comes.

Arthur J. Goldberg:

Would you comment in reference to the question of Justice Brennan asked you about who the burden was and the interest?

Would you comment on the statistics on page 6 of the yellow grid, appellee’s brief which apparently were furnished by the Post Office in which are the actual experience under this statute?

That’s the yellow appellee’s brief.

Archibald Cox:

Yes, those are the figures that —

Arthur J. Goldberg:

Yes.

Which were true (Voice Overlap) —

Archibald Cox:

— come from —

Arthur J. Goldberg:

Which would show — and I have in here, it shows that out of 35,000 notices sent out, 15,000 were not returned, 4500 were undeliverable, 8900 were returned asking that no such mail be delivered, 6721 were returned asking that all such mail be delivered and 3900 were returned asking that particular publication be delivered.

Now, this would seem the basis of the returns here that more people — putting aside those who made no return, it’s the Post Office I take it retreats because they don’t want it.

Archibald Cox:

I think —

Arthur J. Goldberg:

I would assume.

But among those who return in this ballot we have here; among those who returned there would be more people wanting to keep it even though it was unsolicited presumably, than people who asked that it be (Voice Overlap) —

Archibald Cox:

Well, that’s sometimes true Mr. Justice and sometimes not true.

For example, like when I was attempting to state how this acted, I just gotten down to define it, that saying that in February 1965, there were 200,000, roughly 206,000, not want it and 154,000 want it.

They ran to percentages so far as I could make out of one-third to one-half in each group bearing from time to time.

But I’ve — my comment, implication to what you’re saying — the implication to what Mr. Justice Brennan said is that again, I think if we put this in the proper perspective, that this isn’t an effort, it’s a pressure; that it is sure nuisance, some interference, some delay, I don’t attempt to deny that.

Also, some gains on the other side.

It would seem to me that in that area, something that’s a fairly minor regulation of the handling mail.

And it may be important here that this is mail.

It seems to be important here that this is mail coming from foreign country, sent by or on behalf of foreign government.

When one takes those things into account, the most I need to show I think, is that this was not an improper choice on the part of the Congress.

William J. Brennan, Jr.:

Well, Mr. Solicitor — am I not right Mr. Solicitor General that in general formulation, where we’re dealing in the First Amendment area, what we have said about the required governmental interest has been expressed and have a strong language as of compelling interest.

Archibald Cox:

Yes.

I would — I would think that this should be taken into account Mister Justice.

If my view of the order of what we are dealing with here is correct, if we look on this in terms of the considerations I just stated on the other side.

But then we really aren’t talking in the order of suppression of speech.

We’re down in talking about questions as — or shall a picnic be permitted to use that part of the park or somebody be use — permitted to use that part of the park for a speech.

Archibald Cox:

And I take it in that area that there is larger scope for the police power if I may call it that, I think Your Honor sees what I mean, the phrase (Voice Overlap) —

William J. Brennan, Jr.:

Well, we have also said of course that obviously there’s a governmental power to regulate time and place.

But is that really what this (Voice Overlap) —

Archibald Cox:

Well, isn’t that almost all theses comes to?

After all —

William J. Brennan, Jr.:

Because that’s your argument.

Archibald Cox:

It’s our argument.

William J. Brennan, Jr.:

Yes.

Archibald Cox:

Yes sir.

And I — let’s look at — its — that’s our argument that it —

William J. Brennan, Jr.:

Yes.

Archibald Cox:

— comes down to that sort of thing.

The executive branch has stated it before the Congress that the things that those — that it’s expensive, difficult to administer.

But Congress passed the law.

It is our duty to carry it out.

Here, let’s look at the various points on which the statute may impinge on First Amendment interests.

But first, as I see it, one can’t call this in any sense censorship or suppression of what maybe sent in the mail.

Anything may go into the mail just as freely as before.

Anybody may send it and receive it just as really as before.

And indeed, that’s shown by the fact that — not only that it’s delivered but if it’s printed in this country, it may be circulated.

If it’s — it may be circulated in other ways than the mail.

Now second, let’s look at the thing from the standpoint of the senders.

Anybody may send, there’s no restriction on who may send.

It might affect — the only people affected by the application of the statute in this case, as I go back to my distinction between domestic mailings and foreign mailings, are people out of this country who are dealing with material published by or on behalf of a foreign communist party.

Even those people, I doubt if they have any constitutional rights that are involved here.

Even those people are affected only to this extent that they don’t get the benefit of having the mail delivered that what I believe is cost to the United States.

To people who want or don’t want it are to — are sufficiently indifferent so they won’t send the card back, that’s all.

Otherwise, the sender isn’t affected in anyway.

Now, let’s look at it from the standpoint of those to whom the mail is addressed.

They are put — they certainly are required to get a license or anything like that, the citation of Thomas and Collins and Lovell and the City of Griffin that seemed to me very far off.

Archibald Cox:

They are required to mark a postcard unless they’re in the exempt class.

They are informed on the postcard as it is now being prepared.

I’m not certain if it’s in use but it’s in the course of being put in use.

They are requested to indicate whether they want the material and I’m told that it is customary.

I was in error earlier that it is customary to put the name of it on the postcard, whether it was always done, I can’t say, but it’s customary to it, it’s intended to be done.

Then they have a chance to check a box as to whether they want this material or they don’t want it.

William J. Brennan, Jr.:

Incidentally —

Archibald Cox:

That they are told — perhaps I should read the instruction.

William J. Brennan, Jr.:

This incidentally is a special form, it’s not like the card but when they fail to get you at home or something that —

Archibald Cox:

This special form.

William J. Brennan, Jr.:

A special form.

Archibald Cox:

This is special form, right here, I had one in my pocket earlier but —

William J. Brennan, Jr.:

(Voice Overlap)

Archibald Cox:

And it says on it Mr. Justice —

Hugo L. Black:

(Inaudible) send it in an envelope?

Archibald Cox:

What?

Hugo L. Black:

Did the Government ever send it in an envelope?

Archibald Cox:

No, it’s a postcard.

Hugo L. Black:

Open postcard?

Archibald Cox:

It’s an open postcard.

The form says on it that all previous records of addressees requesting delivery of foreign “communist political propaganda” have been destroyed and no records will be maintained in the future on addressees in this regard.

If you check box one, this card will also be destroyed and you will be contacted each time foreign “communist political propaganda” is addressed to you.

So that’s so far as it’s within the power of the Government to give assurance that only it’s doing is requesting the Post Office to mail this to him or the Government has given that assurance to I sus — submit that assurance as it’s pledged and it’s good.

So that the addressee suffers what I would call “one delay” which I think is the most serious aspect to the thing and two, a little bit of trauma.

I do — those figures you’ve cited Justice Goldberg and the comparable one as to which I referred suggest to me, the trouble really isn’t very much because a surprising proportion of them have been sent back.

And that one of the things that interested me was that so many of the people who didn’t want the mail took the trouble to send the postcard back because if you don’t want the mail, all you have to do is not send it back.

So apparently, I am for one that it isn’t very much trouble and two, that some of theses people perhaps had rather strong feelings about whether they wanted it to come to them or not or which tends to fit in with what I’ve said earlier about the interest of the (Voice Overlap) —

William J. Brennan, Jr.:

Well, (Voice Overlap) — might not have some apprehensions about people knowing that they can’t from an open card that the (Voice Overlap) —

Archibald Cox:

Well, of course Your Honor —

William J. Brennan, Jr.:

— “communist propaganda” is being addressed to them.

Archibald Cox:

I don’t believe so in view of the numbers that have sent it back.

Also, there’s another thought —

William J. Brennan, Jr.:

Well, I’m just suggesting that may count for many of them sending it back.

Archibald Cox:

No, but look at all those who do send back if they want it.

They’re just about as many.

Justice Goldberg cited as an instance where there were more than those who didn’t.

In addition, it seems to me there’s another element if we’re going to speculate about names coming to be known and people identified.

If I live in that kind of a community, I wonder if I wouldn’t worry about these being delivered to me, just as much as I would about sending the postcard back, delivered to me without — in the absence of 305.

Here, I come to be known, and I regret to say that people sometimes have been known, are not of any of the Government’s doing but have been known as people who were getting socialists or communists mail.

He reads The Daily Worker, he does this, he does that.

But to some degree, I think this is all to speculate it —

William J. Brennan, Jr.:

(Voice Overlap)

Archibald Cox:

— really to base any judgment on but to some degree, this protects people who could say to the Post Office, “Don’t put this stuff on my doorstep.

The nosy neighbors are going to draw the wrong inference.”

Hugo L. Black:

Well, as I understand it, the literature is not based on the fact that its published on the envelope, is it, that’s a political propaganda?

Archibald Cox:

Well, much of these —

Hugo L. Black:

(Voice Overlap)

Archibald Cox:

Much of these would not be in envelopes, some would, some would be in closed wrappers like The New Republic comes in and nobody could tell.

Other of it I think comes open so that anyone could see it.

There’d be all kinds Mr. —

Hugo L. Black:

Some — that there’d be quite a difference between living in a village of 400 and getting it into a city of a million.

Archibald Cox:

A big difference.

And in the city of the million, except for a few people in the apartment house, nobody would know.

In the village, that could be gossiped both from the card and from the getting of mail.

But I’m suggesting that if we’re going to engage in that kind of speculation, there is the man who didn’t want it, who has it coming to him —

May I ask —

Archibald Cox:

— and his neighbor and the postman know it.

William J. Brennan, Jr.:

But that just suggests Mr. Solicitor General that the — rather than expose people one way or the other, why that citizen to that kind of suspicion, one way or the other.

The different — not the show of or rather a fair interest I suggest, but —

Archibald Cox:

But the person —

William J. Brennan, Jr.:

You mean (Inaudible) of the area.

Archibald Cox:

That person, if I get this and my neighbors in a little town in Maine, my summer neighbors find me getting this and they draw the inference that because I’m reading the Peking Review, I’m a suspicious fellow.

It’s not the Government who except by delivering the mail is subjecting me to that it’s the fellow who sent it.

William J. Brennan, Jr.:

Well, I thought you told us all that fellow has to do is tell the Post Office he doesn’t want it, doesn’t need the statute.

Archibald Cox:

If that would be —

William J. Brennan, Jr.:

(Voice Overlap) — in that respect.

Archibald Cox:

If everybody went in and told the Government he didn’t want it then apparently that would hold it up and then it wouldn’t be delivered.

As a matter of fact, I suppose that would cost to a good deal of the delay that I mentioned here because the Government would have to hold things up while it was checking them against a very elaborate list.

Hugo L. Black:

Is that a difference between those two instances, that in the one instance, the man decides for him said, “You take this or leave it?”

But he goes and sends it.

In the other instance, the Government steps in as a (Inaudible) and arranges it so rather than difficult for him to say, “I want it.”

Archibald Cox:

Well, I wouldn’t quite agree with Your Honor’s characterization.

I would say that — I would say that the burden of indifference is shifted by the — yes, the burden of overcoming indifference of inertia is shifted in this statute and that one of the justifications for doing that is as the Congress saw it, to stop subsidizing foreign countries that want to take advantage of this Government subsidy and aid in overcoming the burden of indifference, and the Government — Congress has said in effect, “Well, we’re not going to aid you to overcome the burden of indifference but we’re going to find out whether the addressee wishes.”

Hugo L. Black:

And you’ve argued it on the basis and I think it’s a very excellent argument in those facts, if I may say, that all that’s involved here really and always to considers A and B called subsidy and the other sensibility, can we be blind enough to think that the real obvious and purposes is not to keep out argument in favor of communist party or communist government, isn’t that?

Do you think there’s a — slightest possibility was then passed but for that dominant motive?

Archibald Cox:

Well, I don’t — I’ve said two things, Justice Black.

One is that the motive of some of the people who voted for legislation certainly is not the standard by which this Court should do its constitutionality.

Hugo L. Black:

(Voice overlap)

Don’t you think that —

Archibald Cox:

No —

Hugo L. Black:

Don’t you that’s what it passed to prevent?

Archibald Cox:

No, Your Honor.

I think that — no, I don’t.

Hugo L. Black:

You think that the Cunningham didn’t pass — get it passed over (Voice Overlap) —

Archibald Cox:

Mr. Cunningham didn’t get his way.

I think that —

Hugo L. Black:

But just filed it, didn’t he?

Archibald Cox:

But he didn’t get the suppression part of it.

That’s just it.

I think that the motive of some —

Hugo L. Black:

Did he vote against it?

Archibald Cox:

— of the Congressmen —

Hugo L. Black:

Did he then vote against it?

Archibald Cox:

He was content to get what he did.

In fact, he claimed as — he claimed —

William J. Brennan, Jr.:

He got what he wanted.

(Inaudible)

Archibald Cox:

That’s a very familiar thing for members of Congress.

If I might just say one sentence to answer Justice Black, seriously Justice Black, I do think that there were people who as they voted this through the House wanted to stop distributing this.

Mr. Boudin quotes from the end of his reply brief as if it were a description of the statute, what they said about the House bill?

It did put a stop to distributing it, no doubt about that.

But they didn’t get their word and there must have been people in the Congress who strongly objected to the suppression.

There were probably people in the Congress who objected to the whole thing.

And where the place of balance was dragged, was not in terms of suppressing any of it.

I most earnestly submit that it circulate, it circulates freely except for the delay and the nuisance.

And in the end, I don’t think this is realistic.

Whatever one may think is a matter of political principle or whatever one may think in terms of the symbolism, stands behind this or whatever one may think would be a good place for Congress that are otherwise, that there is no escape as a matter of constitutional adjudication.

From looking at what it actually does, and I think it comes down to the things that I have identified I think to decide.

Thank you.

Earl Warren:

Mr. Krause.

Marshall Warren Krause:

May it please the Court.

I represent the appellees, Mr. Heilberg.

In the court below, our three judges unanimously held the statute to be unconstitutional and I think if that judgment is affirmed here, it would be the first congressional enactment to be held unconstitutional on the basis of violation of the First Amendment.

I think the thing for me to do is to answer some of the questions that were raised on the earlier argument.

First of all, Justice Stewart asked about, “Doesn’t this apply just to something which is not ordered?”

The answer to that is no.

It applies to any material determined to be political propaganda from a communist nation so long as it comes or is prepared in a foreign country.

The statute, Section 4008 (a) says that such detention shall not be required which is discretionary, if it’s furnished pursuant to the subscription or which is otherwise ascertained by the Postmaster General to be desired.

As a matter of fact, everything that is determined to be “communist political propaganda” whether subscribed to or desired or not desired is being screened under this program.

It’s not just the program that applies to unsolicited mail.

Marshall Warren Krause:

Now, Justice Black asked about reprinted —

(Inaudible)

Marshall Warren Krause:

Well —

Arthur J. Goldberg:

You said (Inaudible)

Marshall Warren Krause:

I think that the Postmaster and the Solicitor General must agree with me also because they have applied this program to matter furnished pursuant to subscription because they can’t tell whether it’s furnished pursuant to subscription.

Arthur J. Goldberg:

well — the Solicitor General has said that they realized that that is a problem and they are trying to accommodate this problem with not keeping a list which I can understand is a very difficult problem to work out.

But I think the statute, but you were talking about the statute putting aside for — they’re doing it.

Marshall Warren Krause:

Yes.

Arthur J. Goldberg:

It would seem to me that statute is a mandatory statute and it says that except that such attempt shall not be required in the subscription.

Marshall Warren Krause:

Well —

Arthur J. Goldberg:

Would you think so?

Marshall Warren Krause:

I say — I think one can read that language in two ways and one, the Congress telling the Postmaster General not to require it or Congress granting discretion, “You don’t have to do it if you don’t want to”.

That’s — and that is — it’s the latter way in which I read the words “shall not be required”.

I didn’t think that it would be a violation of the statute if the Postmaster General decided we’re going to require these cards even on subscription matter.

Now, talking about material which is reprinted from a communist nation, let’s say a speech of (Inaudible) reprinted in the United States, the statute applies to all matter which is printed or otherwise prepared in a nation which is a nation as to which trade restrictions are in effect namely, the communist nations.

If a communist leader prepares a speech, to me, this is otherwise prepared in a communist country and it doesn’t matter where that is printed.

If it‘s printed in the United States, if it’s printed in El Salvador, if it’s printed in China, once it’s deposited in the international mail and comes to this country, the statute applies.

The statute applies if it’s subsequently deposited in the United States mail is —

William J. Brennan, Jr.:

I don’t understand this that looking at Footnote 2 at page 4.

What then is the statutory authority for making available of the Customs Bureau mail that comes from Canada, Japan and Mexico?

Marshall Warren Krause:

Justice Brennan, there are absolutely no restrictions as to what countries Customs chooses to screen their mail.

They can choose any country which they believe in their unlimit — unlimited discretion might be sending material which is otherwise prepared or printed —

William J. Brennan, Jr.:

Well, if —

Marshall Warren Krause:

— in a communist nation.

William J. Brennan, Jr.:

Do I understand from this that the statute — this statute we’re talking about is applied to that mail?

Marshall Warren Krause:

Yes sir.

Its — it — it’s just a matter of grace that the Customs Bureau has chosen to include Canada and not include Argentina.

This is the information we have at this time that Argentina is not included.

Tomorrow, the mail from Argentina might be decided that it contains material prepared —

William J. Brennan, Jr.:

Well, what I’m trying to get at is this, as I understood you, all these so-called communist front countries and communist country, this is a matter of the statute.

William J. Brennan, Jr.:

It’s mandatory though, is it?

Marshall Warren Krause:

It has to be printed or otherwise prepared —

William J. Brennan, Jr.:

Yes, in those —

Marshall Warren Krause:

— in one of those countries.

William J. Brennan, Jr.:

But it does — oh, I get it.

Now, what you’re telling is that it doesn’t matter from what country it’s mailed, right?

Marshall Warren Krause:

That’s right.

Let’s say — let’s say it’s otherwise prepared in China —

William J. Brennan, Jr.:

Oh, I see.

Marshall Warren Krause:

— then mailed to Argentina and then mailed from Argentina to the United States.

William J. Brennan, Jr.:

I see.

Marshall Warren Krause:

Now, according to the information, Customs does not look at mail from Argentina but they do look at mail from Canada, from Taiwan, from other countries which they found to contain that material otherwise prepared.

And Chief Justice Warren, you asked about England.

England is a country which is covered by the screening program.

We have set this out in detail in our brief from testimony from congressional mater — congressional hearings.

Mr. Fishman who is the Deputy Collector in New York has said this, and I’m reading from page 3 of my — the appellee’s brief, “We have examined a great deal of material which comes from England, some of it published by known communist front organizations or representatives thereof.”

Now England is not listed here but they examined it anyway.

Earl Warren:

But I merely picked England as being a friendly country.

Would you say the same thing as to all friendly countries?

Marshall Warren Krause:

As far as I know, they can examine any mail which they think might contain material otherwise prepared in a communist nation and there are just no limits.

Potter Stewart:

Or even in the absence of the statute, what you’ve just said is correct, is it not?

Customs can examine any unsealed mail, first, for the purpose of — the basic simple purpose of seeing whether it qualifies for the rate for third or fourth class mail?

Secondly, to see whether or not it contains any contraband or otherwise unimportable matter, isn’t that correct?

Marshall Warren Krause:

Well, I hope I’m (Voice Overlap) —

Potter Stewart:

Everything you’ve said is true about all mail coming from foreign countries, isn’t that right?

Marshall Warren Krause:

I hope I’m not being purist in answering your question but it — in my opinion that is not right.

Customs must examine mail for appropriate purpose.

The purpose as you’ve suggested are proper.

And my theory of our argument is that the purpose that they are examining mail under this program is improper because it’s intended to restrict —

Potter Stewart:

Well, of course that’s what this case is about.

Marshall Warren Krause:

That’s right and so we —

Potter Stewart:

The (Inaudible) of this statute but so far as the — as their power and even their duty to look at all mail coming from abroad, they have plenty of power and in fact have duties under other statutes not involved in this case.

Marshall Warren Krause:

If they are acting for a proper purpose that then — if that — with that qualification, I accept your statement.

Arthur J. Goldberg:

Is that (Inaudible)?

Marshall Warren Krause:

Yes sir, it is.

Now, Mr. Cox says we wouldn’t do a thing like that.

I mean that’s not sensible and he’s — but if we’re talking about the words of this statute that’s —

Arthur J. Goldberg:

Well, what would you get (Inaudible)?

Marshall Warren Krause:

Alright.

Arthur J. Goldberg:

Do you think one (Inaudible) —

Marshall Warren Krause:

First of all, —

Arthur J. Goldberg:

— the proceedings that the Court (Inaudible)?

Marshall Warren Krause:

First of all, that first sentence of subsection (a) of Section 4008, otherwise prepared in a foreign country.

Now, England is a foreign country, the material is prepared in that foreign country.

You might say that the material is prepared in the Soviet Union because that’s where it was written and we usually think of preparation as putting it in — putting an idea into words.

So whether you say the material is prepared in the Soviet Union or in England, it’s covered.

And all that happened, all that has to happen is that the Customs Bureau determines that it’s “communist political propaganda” because it is issued by or on behalf of any country and I’m now reading from subsection (b) issued by or behalf — on behalf of any country.

Now, when the preceding of the Soviet Union issues its proceedings, this is material issued by or on behalf of a communist country.

I think that that language is quite clear, that’s where I get it.

Arthur J. Goldberg:

(Inaudible)

Marshall Warren Krause:

Yes.

Arthur J. Goldberg:

(Inaudible)

Marshall Warren Krause:

Only if Customs determines that Bertrand Russell is indicating this — issuing this material by or on behalf of a communist nation.

Now, they may or may not determine that.

I would hope that they wouldn’t determine it and I hope — I would hope that the speech would not be so classified.

But let me say this that there’s absolutely unreviewable discretion on behalf of the Customs Department to determine that Bertrand Russell’s remarks are in fact prepared on behalf of the communist nation and there is no hearing procedure, there is no remedy.

It is “communist political propaganda” and the full sanctions of the program applied.

Arthur J. Goldberg:

(Inaudible)

Its really a material issue on behalf of a foreign country, and (Inaudible)?

Marshall Warren Krause:

I think it —

Arthur J. Goldberg:

(Inaudible)

Marshall Warren Krause:

I think it definitely would, yes.

Hugo L. Black:

So the Congressman permitted to receive any of this or without having it inspected, are they also —

Marshall Warren Krause:

No.

Hugo L. Black:

— protected on the —

Marshall Warren Krause:

I have to give a qualified answer to that.

Hugo L. Black:

— propaganda?

Marshall Warren Krause:

Congressmen and Supreme Court Justices, etcetera are entitled to receive this material without any card because —

Hugo L. Black:

Which Section?

Marshall Warren Krause:

Section (c) of 4008 exempts any official of the Government agency.

However, even mail addressed to Congressmen and Supreme Court Justices goes to a special screening unit which is set out to look at this mail and it’s only after the screening unit looks at the mail and determines if the addressee is exempt that its set on — sent on.

Therefore, even as to exempt mail and even as to sealed mail, you have a delay while it goes to the screening unit.

Hugo L. Black:

Is that a — I gather this, did you mean a Congressman may get it because Congress is a United States government agency, is that it?

Marshall Warren Krause:

Yes.

Its —

Hugo L. Black:

Well, is it?

Is the Congressman an agency?

Potter Stewart:

Or any official thereof, it’s the catchall at the end there, isn’t it?

Marshall Warren Krause:

Yes, any official thereof is a catchall —

Potter Stewart:

And thereof I supposed that refers back to all of these various exempt addressees.

Marshall Warren Krause:

Yes.

I wondered about that word “agency” myself.

William J. Brennan, Jr.:

Is this Court an agency?

Marshall Warren Krause:

I don’t know.

I would think that the Post Office would treat you —

William J. Brennan, Jr.:

I mean, we can’t get it?

Marshall Warren Krause:

— as an agency.

I would imagine that they would.

Let me point out another — this raises another point.

Hugo L. Black:

You don’t have any other in your brief, didn’t you?

Marshall Warren Krause:

Communist political propaganda, I may.

Arthur J. Goldberg:

(Inaudible)

Marshall Warren Krause:

Oh —

Arthur J. Goldberg:

(Inaudible), a newspaper is exempt?

Marshall Warren Krause:

Newspapers are not exempt.

Arthur J. Goldberg:

(Inaudible)

Marshall Warren Krause:

That’s just the exact point I was going to raise that newspapers are not exempt.

But the general counsel of the Post Office testified before congressional hearings that they exempt newspapers, they exempt radio stations, they exempt televisions stations and they exempt magazines because they have made a decision that it’s otherwise desired by these kinds of entities.

And I think they’ve made that decision very wisely because they would have one big squawk if they didn’t make that.

And it’s the same thing they do as to any plaintiff who brings a lawsuit.

They’ve determined that he otherwise desires this mail.

So anyone who squawks gets on the exempt list so to speak.

But even if you’re on the exempt list I want to emphasize your mail was sent to one of the screening units if it’s from one of the country’s designated, one of the 28 countries and it’s delayed.

Now, Justice Douglas asked us, is the test, the source of the mail or is it the content and the answer you were given as the source of the mail, but I think that’s the wrong answer.

The test is the content.

The source does not matter so long as it is otherwise prepared on behalf of a nation which is a — one of these nations as to which trade regulations are suspended.

So the test is the content that the content whether its “communist political propaganda” that is does it fall within the Foreign Agents Registration Act definition which is perhaps one of the most big statutes on our statute books.

Now, did the lists go to investigators?

There’s no evidence that under the present program they did.

There is evidence on page 19 of the yellow appellee’s brief that under the past program they did.

For instance, the counsel for the Un-American Activities Committee asks Mr. Fishman, “You have given the committee in private session list in great volume of the recipients of this “communist political propaganda”, have you not?”

The answer to that is right.

Now, the Section 4008 program is a direct progeny of the former program as to which Mr. Fishman testified that great list had been given to the Un-American Activities Committee that we can determine by Senator Bush’s comments when he introduced this bill.

This is Senator Bush’s bill.

This is not Representative Cunningham’s bill.

Representative Cunningham provided the political pressure by attaching his bill as a writer to the pay — postal rate increase bill.

But Senator Bush put his bill into the Senate and this was the bill passed by the Senate and then Congressman Cunningham said he was satisfied with it and he accepted it.

Now, here’s what Senator Bush said on introducing his bill which became this statute, “This legislation is needed to counteract the unfortunate effects of an executive order issued on March 17th, 1961 in which the President ordered an immediate discontinuation of a program to intercept “communist political propaganda” from abroad.

The justification for the executive or — I’m reading —

Earl Warren:

Who made that statement?

Earl Warren:

Who made that —

Marshall Warren Krause:

This is Senator Bush —

Earl Warren:

— on the subject of —

Marshall Warren Krause:

— and this is on Appendix page 13 of our yellow brief.

The previous program as to which Senator Bush referred which was stopped by President Kennedy was explicitly to stop this mail because of its content.

There was no subsidy raised, there was no sensibilities raised, it was merely on the content of the mail and this program of course the successor to that program.

Now Justice Black, you raised an interesting point about — is there any historical precedent?

Yes, there is a historical precedent.

Walter Gellhorn points out in his book Individual Freedom of Government Restraint, page 88; that President Andrew Jackson instructed his Postmaster General to have southern postmasters disclosed to the public those people who received abolitionist literature.

Hugo L. Black:

That was in effect for some time, was it not?

Marshall Warren Krause:

I don’t know how long it was in effect.

That information is not given but this is on page 88 of Water Gellhorn’s book and he quotes from the correspondence of President Jackson.

Hugo L. Black:

Was there not an investigation made by the committee which became a Senate document?

Marshall Warren Krause:

Yes sir.

Hugo L. Black:

(Voice Overlap)

Marshall Warren Krause:

That’s discussed in the Jackson case, ex parte Jackson.

And —

William O. Douglas:

What is title of that book?

Marshall Warren Krause:

Individual Freedom and Governmental Restraints, Walter Gellhorn, page 88.

And I might suggest also there’s a historical background in Eberhard Deutsch’s article in 1936 Michigan Law Review which goes over Calhoon’s objections to a similar program.

Hugo L. Black:

36 Michigan (Voice Overlap) —

Marshall Warren Krause:

36 Michigan Law Review.

I don’t have the page.

It’s by Mr. Deutsch.

Now, the statistics in which were — were talked about by Justice Goldberg, I think are really crucial because this point that over half of the people who got the cards wouldn’t return them.

Whether they didn’t want to return them, whether they were afraid to return them, whether they’ve lost them, of course we don’t know.

But over half of the cards were not returned at all.

I think that this is quite indicative of the way this program operates because it is the major portion of these cards.

People don’t even take the trouble to say that they don’t want the mail.

I think this is indicative of its deterrent effect.

(Inaudible)

Marshall Warren Krause:

Pardon me?

Potter Stewart:

I have completely missed the whole burden that — which you had to do is say that you do want the mail.

If you don’t take —

Marshall Warren Krause:

If you get —

Potter Stewart:

— the trouble then you don’t get the mail because you haven’t affirmatively said you do want —

Marshall Warren Krause:

No, there is — there are blanks on the postcards.

There’s one of these postcards in our record on page 10 which is — that has four blanks.

It says, “Check here, this publication or similar publication” or “Do not deliver this publication or similar publication.”

Now, the majority of —

Potter Stewart:

Well, if you don’t do anything, if you don’t do anything, what happens?

Marshall Warren Krause:

You don’t do anything, first, the card doesn’t tell you what’s going to happen.

But the Solicitor General has said in Footnote 4 of his brief, “If you don’t do anything, they’ll consider that you don’t want that mail and you don’t want any other mail —

Potter Stewart:

That’s at —

Marshall Warren Krause:

— which isn’t — which is a result which could not be anticipated by a person who doesn’t check that card.

In other words, the card gives you (Voice Overlap) —

Potter Stewart:

But now, they send out a new card with every piece of mail, under the current system.

Marshall Warren Krause:

No, not if a person says that he doesn’t want the mail then they file that desire — that indication.

Potter Stewart:

If he doesn’t do anything about today’s postcard, then next week he may get another postcard if some more mail comes addressed to him, is that right or am I — if I’ve misunderstood the —

Marshall Warren Krause:

There’s just not enough information to answer that question.

They may indicate — they may file that that with the do-not desire cards in which case he would never get anymore, or they may just keep sending out cards.

I don’t know what the practice is now.

Potter Stewart:

Mr. Krause, let me see if I understand that.

This exhibit you have names a particular — periodically, proposal concerning the general line of the International Communist Movement, 1963 in what topic?

Marshall Warren Krause:

And the period — the original periodical is in Esperanto and this is a translator’s —

Potter Stewart:

Well, whatever it is, this — I’m just reading what this card said.

Marshall Warren Krause:

Yes.

Potter Stewart:

Now, if that came to Mr. Heilberg and he did not send the card back, he would not receive that periodical, would he?

Marshall Warren Krause:

And he would receive no other “communist political propaganda” —

Potter Stewart:

That I don’t understand, is that what the —

Marshall Warren Krause:

Well, I don’t understand it either but that’s —

Potter Stewart:

The Solicitor General tells us that, it’d be nothing at all?

Marshall Warren Krause:

Yes.

Let’s look at Footnote — let’s look at Footnote 4 of this brief.

I’ll read the footnote because it’s a short one.

The Post Office Department intends to retain it’s assumption that those who do not return the card want neither the identified publication nor any similar one arriving subsequently.

Arthur J. Goldberg:

That is a part of that card?

Marshall Warren Krause:

No sir.

The card does not say it.

Arthur J. Goldberg:

(Inaudible)

Marshall Warren Krause:

Yes.

Arthur J. Goldberg:

If you require (Inaudible)?

Marshall Warren Krause:

Yes, that’s right.

I think that I overlooked that when I spoke.

And I have to take back what I said about the addressee not really knowing that.

I —

Arthur J. Goldberg:

Do you suppose under (Inaudible)?

Marshall Warren Krause:

Yes.

Potter Stewart:

I have great difficulty understanding the Footnote 4 that you just read to us, the Government’s brief at the same time that we’re told that no list is kept of any kind.

Marshall Warren Krause:

Yes, that’s right.

Potter Stewart:

Can they do this both?

Marshall Warren Krause:

I don’t know.

And the regional letter of the Postmaster General is very explicit.

Page 38 of the Solicitor’s brief towards the bottom, the Department will not in the future maintain any record of the wishes of those addressees who desired to receive “communist political propaganda”, those — that’s those who desire to receive it.

Now, how could they ever are going to determine those who —

Potter Stewart:

But they keep a record of those who do not desire —

Marshall Warren Krause:

Yes.

Potter Stewart:

I see.

Marshall Warren Krause:

How they are going to determine those who subscribed, I have not the slightest idea but I’m quite sure they couldn’t do it unless they change this regional letter because it’s very different.

They can’t keep any list under the regional letter which is —

Arthur J. Goldberg:

No, no.

The — I think we have to be clear.

I don’t think there’s an inconsistency except the —

Potter Stewart:

I guess not.

Arthur J. Goldberg:

— the problem of the subscription if the Solicitor General —

Marshall Warren Krause:

Yes.

Arthur J. Goldberg:

— said there were such.

Would you — they keep a — they — (Inaudible) that those who do not return the cards, do they (Inaudible) — if you have returned the card, they assume they will not want this or any similar (Inaudible).

Marshall Warren Krause:

Yes.

And I’m —

Arthur J. Goldberg:

In having this — I don’t want it, that they’re saying that they do not (Inaudible) because they want it.

Marshall Warren Krause:

They think that a person can’t be hurt by not wanting literature but as a matter of fact, the general counsel of the Post Office testified that there are those people who returned the cards even though they don’t want the literature because they have relatives in iron curtain countries and they’re afraid this might get back that they’re not taking the literature and this might hurt their relatives.

And so they have inconsistent positions here.

Now, you asked, couldn’t you raise the postal rates, let me take a minute to say how international mail rates are determined.

The country of origin pays whatever is necessary and takes whatever steps to deliver international mail to the country of receipt, to the border of the country of receipt.

They have to pay for that whatever where they do it.

Now, at the border, at the country of receipt, the mail is delivered free.

This is done under the International Postal Convention on the agreement that our mail from the United States which we send out will also be delivered free in whatever country it’s sent to.

But we send out more mail than we receive.

Therefore, foreign governments, if there’s any subsidy here are subsidizing us.

We get more mail delivered for free than they get delivered for free.

Now on the cost here, what we’re worried about is, is there any cost that can be avoided by not delivering mail?

It’s possible to deliver — to save some money but it’s certainly not a subsidy to any foreign government, let me say this, the actual facts as we’ve said in our — set out in our brief is that about 50,000 pieces of mail are stopped from delivery each year at a cost of a half a million dollars a year which is $10 for each piece of mail not delivered.

Now, I don’t think the taxpayers are getting a very good deal on this, I don’t think it is saving the taxpayer’s money not to deliver this mail.

I think that we have to worry here about direct infringements of First Amendment rights, as well as indirect infringements of First Amendment rights by mail being sent to the screening points which is sealed mail.

And I think it’s very significant to point out that the representatives of the Post Office said that this mail comes all mixed up, all different classes.

If it comes from a country that’s on the list, it’s all sent to the screening unit, then it’s dumped out, then these — the sealed mail and the exempt mail is sent on.So sealed mail and exempt mail is itself delayed by this program.

It doesn’t come with nice little bags, Mr. Abelle (ph) testified.

Then everything is opened and its read and it’s labeled and there’s a process of deciding what is and what isn’t “communist political propaganda” which may delay it as the Solicitor General says for two weeks, then a determination of the desire is made or all these postcards go back and forth.

All that I think is a direct infringement on First Amendment rights and I think that the delay of sealed and exempt mail was an indirect infringement on First Amendment rights and the Government has shown no compelling interest for that infringement.

Marshall Warren Krause:

The right to receive is of course protected and I think there’s a license to receive mail required by this statute, same way that there’s a license to give a speech required by Thomas versus Collins.

You don’t send in your little registration form, you don’t get your mail.

That is a license.

Potter Stewart:

You think the — I just think out loud.

Do you think that there’s a — there’s any right at all not to receive what you don’t want that the — and that the First Amendment involves any right at all not to read what you don’t want to read?

Marshall Warren Krause:

I don’t think you could be forced to read but to receive it is a different question.

Potter Stewart:

You think — do you think you can be force to receive what you don’t want?

Marshall Warren Krause:

No I don’t think so.

I think you — you have the right to — you have the burden though to indicate that you don’t want to receive it, just as this Court held in Martin versus Struthers that anyone who didn’t want someone ringing their doorbell could put a no trespassing sign and most likely this would be honored.

And if it wasn’t there could be perhaps some criminal statute to punish it.

I think that the right to receive is so much superior —

Potter Stewart:

Than the right not to receive.

Marshall Warren Krause:

— right not to receive that it can’t be in the same class.

Potter Stewart:

But you think there is such a thing as a claim of a right not to receive what you don’t want to receive, you don’t want to be bothered with, you don’t want it in your waste baskets, you don’t want any — at any place around.

You haven’t asked for it and you don’t want it.

Marshall Warren Krause:

I think that’s a valuable right.

I’m not sure it’s a constitutional right.

I wouldn’t put it on a constitutional level —

Potter Stewart:

What kind of right (Voice Overlap) —

Marshall Warren Krause:

— unless you were so annoyed —

Potter Stewart:

What kind of right is it?

I mean if it’s a right at all, what is it?

Marshall Warren Krause:

It’s a right that deserves our sympathy.

We don’t want to be bombarded by things that we don’t want but I think the Government is not required to prevent it as they are required to prevent First Amendment infringements.

And I think that the Government has adequate steps to prevent it now in the regulations we cite in our brief.

They can notify the Postmaster General and they won’t get any of this mail.

And there’s no harmful consequences from such a notification.

Lastly, I would just like to say that there is a real damage here from mistakes in classification.

It’s very easy for such mistakes to be made under the definition given on the Foreign Agents Registration Act, you have delay and that is a damage.

Thank you very much.

Arthur J. Goldberg:

(Inaudible)

Marshall Warren Krause:

Yes, I’m glad you mentioned that.

My client is an applicant for American citizenship.

He hasn’t applied yet, he’s not eligible to apply.

He hasn’t lived here long enough.

But he’s in an especially sensitive position, he testified to that effect that he was concerned that if the naturalization service found that he received “communist political propaganda”, they might use this to make further investigations to use it against him.

And we’ve cited a case in our brief, the Gunovich case where American citizenship was denied to a man for one reason only, that is that he read a Yugoslav Communist publication.

This was denied by the trial court and by three judges on appeal and the Supreme Court of California reversed and said, “You can’t deny just on this one thing that he read a publication.”

But the fear is well-founded that this would be used against him.

Thank you.

Earl Warren:

Mr. Boudin.

Leonard B. Boudin:

May it please the Court.

Aside from two brief corrections of the Solicitor General mainly at page — in our brief we cite a whole history of divulgence of names to the House Committee of American Activities, which I think Solicitor General will agree as the fact answer, he looks at it.

And the fact that cards as now used do not appear to one be subscribed by the addressee that his name will not be kept on the list though it’s the fact which I indicated before would not be conclusive even if they did indicate it because the fear would still be there.

The fact is that this present statute discourages the picnic if I can use that analogy.

If the picnic is to discuss a particular political philosophy and doesn’t discourage other picnics, no court would hold that a state can discourage picnics on that basis.

Secondly, the fact that it is a minor abridgement of speech as it suggested with which we disagree, there’s no reason under this Court’s decision for not applying the rule that there must be a paramount interest for even a minor abridgment of speech.

I don’t recall the cases but it’s been said very frequently.

The definition of the vagueness of the definition is indicated by the admissions in the 1963 hearing of the postal authorities who have only the statutory definition before them, the rules and regulations of the Customs Department would simply incorporate that statute and they say, “We wish we had a definition for “communist political propaganda”.

But far more important than any of these details or within the mechanical things of course and so forth, although I agree with everything that was said by my colleague here with respect to the discouragement which is proven both by people saying they don’t want it and by people not answering.

And I agree also that there’s a radical difference between the injury to the person who simply has to send in a notice saying he doesn’t want “communist pro — political propaganda” and the man who affirmatively takes this position in request to get it.

Oh, I think this case should be decided on a broad philosophic and I do not agree with my learned friend here that policy and philosophy are not controlling in the case involving the First Amendment.

And the answer for me is found in three phrases.

The first is Mr. Justice Harlan’s statement in his Roth dissent which I take is the view of the Court for that — which of course an obscenity case when he said, “The Federal Government has no business whether under the postal or commerce power to bar of the sale of books because they mislead to any kind of thoughts.”

And if you change the word bar to discourage I’m sure the principle is still applicable.

And the second is what Mr. Jackson’s — Justice Jackson said concurring in Thomas against Collins when he spoke to the fact that every man must be his own watchman for truth and that the Government cannot step in to separate the true from false.

And finally of course where we always turn to and what is so applicable in this, alleged minor interference with a particular political or economic or social point of view would the tacit encouragement of all other points of view.

Although we denied foreign assistance to France next year, the Gaul’s literature will also come under the statute as “communist political propaganda” even though no one regards him as the communist, the statute would apply.

And Lamont would not commend if it said anything about our current policy.

I end with what Mr. Justice Holmes said if I may Mr. Chief Justice, in the Abram’s case, and these are not words, and this is not just mere philosophy.

Leonard B. Boudin:

He said, “While that experiment, talking about our democratic system in the First Amendment, is part of our system and I think that we should be eternally vigilant against attempts to check, to check the expression of opinions that we loathe and believe to be fraught with death, it’s hardly true of this literature that way; unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

No one here suggests that the country’s salvation depends upon the statute.”

And the purpose of the statute if I may conclude was stated so well by Senator Johnson, the late Senator Johnson, the chairman of the committee which ultimately put through his compromised bill.

When he didn’t say it’s to save money and he didn’t say it’s to save sensibility but he said and we have quoted in our brief, “is to blot out”.

Think of those words in the American system, a blot out, the delivery of “communist political propaganda” through United States mails.

And that included in one day under the pre-statutory program, the London Economist and it included a article on chest for the Soviet Union and who knows what will come next.

I thank Your Honors.

What page is that on in your brief?

Leonard B. Boudin:

It’s on —