RESPONDENT: United States Post Office Department
LOCATION: 17th Judicial Circuit Green County Alabama Jury Commission
DOCKET NO.: 399
DECIDED BY: Burger Court (1969-1970)
CITATION: 397 US 728 (1970)
ARGUED: Jan 22, 1970
DECIDED: May 04, 1970
Facts of the case
Media for Rowan v. United States Post Office Department
Audio Transcription for Oral Argument - January 22, 1970 in Rowan v. United States Post Office Department
Warren E. Burger:
Number 399, Rowan doing Business as American Book Service against the United States.
Mr. Taback, you may proceed whenever you’re ready.
Mr. Chief Justice and may it please the Court.
The appeal here before this Court, is from a judgment of the three-judge court of the United States District Court with the Central District of California.
The jurisdiction of the Court is grounded upon Section 1253 of the Title 28 of United States Codes.
The appellants are in the mail order business.
They are distributors and disseminators of books, pamphlets, various matters and materials that traffic and conduct its way through the mail.
The law which is brought here on focus by this appeal is Section 301 of the Public Law 90206 or is codified 39 US Code 4009.
The action below was that for declaratory relief and seeking an injunction against the enforcement, implementation, and administration of the statute.
The result in the court below was a verdict of three to nothing, upholding the constitutionality of the statute and denying the relief sought.
Upon this appeal, it does seem that the issues are made much clear then they were even in the court below.
This is come to be because a statute which reportedly was not an ambiguous has now received the same interpretation by the Government as well as the appellants herein.
Well, interpretation is contrary to the construction inter -- and the interpretation given by the US District Court.
This is a new twist, if you will, a matter which is occurred at the time of this appeal.
What was the matter of dispute?
I say this is a matter which is now occurred at the time of appeal.
Part of that Mr. Justice Harlan, the Government and more particularly at the time of their motion to affirm, attempted to adopt the view and interpretation of the US District Court which incidentally was by way of two votes for one interpretation and other vote for another construction.
In the District Court, did the Government take the position as to the meaning and construction of the statute that it takes here or did invite the District Court to take the position of that Court took?
Mr. Justice Stewart, in answer to your question, the Government did take the view that they take here today, in the District Court.
However, upon examination by one of the three judges, the Government did become somewhat, took a dual role if you will, but I would have to answer that they did adopt the view which they adopt today in the District Court.
But during the presentation of the case the counsel perhaps saw which way the wind was blowing, can (Inaudible), did he?
I would believe that to be your first statement, Mr. Justice Stewart.
Warren E. Burger:
In fact do will you mean alternative positions or is that --
In answer to your question --
Warren E. Burger:
-- in answer to your question, Mr. Chief Justice, I feel that the Government took a very strongly position in their argument and therefore, I could not feel that it was an alternative position per se.
I think that would be my distinction.
They were quite positive in what this legislation meant.
They were quite conscious to the legislative history and the plain meaning of the statute.
The statute itself, involves the mailing of materials or advertising which maybe turned off by a recipient, if that recipient in his sole discretion determines that it is a erotically arousing or sexually provocative.