Rowan v. United States Post Office Department Page 15

Rowan v. United States Post Office Department general information

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

William D. Ruckelshaus:

And it says, no further mailings, whatsoever, not any similar mailings.

Hugo L. Black:

But it said such mail.

William O. Douglas:

What you mean to say that if the addressee includes that one thing that he received was pandering, he can have that stopped and it was therefore stopped everything coming from the same sender, even though it might not to be pandering on the second, or third, or tenth, or hundredth mailing?

William D. Ruckelshaus:

That's right, Mr. Justice Douglas because the alternative was to make the sender decide what was pandering, have that decision reviewed by the administrative branch and then again, reviewed by courts and the Congress saw that is getting his right back into the problem that existed before.

Byron R. White:

Mr. Ruckelshaus, you do concede don't you or do you that the Post Master has to decide before he issues an order that the material is an advertisement?

William D. Ruckelshaus:

Yes, I think he can decide that very easily.

Byron R. White:

Well, I know but you concede that he does have to decide that?

He has no authority to the order anybody not to mail based on a non-advertising material?

William D. Ruckelshaus:

No, I think the statute --

Byron R. White:

Well, I know but you said -- but here you have two words, pandering advertisement and you say that Post Master General cannot issue an order unless it's an advertisement and so he has to decide in his own mind whether it's an advertisement.

Now, where do you get the -- on what do you base your decision that or argument that while he can decide what's an advertisement, he has no authority to decide what's the pandering advertisement?

William D. Ruckelshaus:

Well, I think because of the obvious difficulties in deciding what is pandering and what isn't and the more objective standards that can be used in deciding, what is an advertisement?

Byron R. White:

You must base it then just on the legislative history rather than the words --

William D. Ruckelshaus:

Well, I've -- we have, I think discussed in our brief that there are some apparent difficulties with the language of the statute, but I think when you read Section (a) in conjunction with (b) and (c), it's clear that what the Congress intended and what the statute says is any further mailings.

Byron R. White:

Well, now let's assume that the Post Master General issues the order there are further mailings of the same kind or just any further mailing and he goes into Court for an order?

William D. Ruckelshaus:

Well, he is authorized to request the Attorney General who is authorized --

Byron R. White:

Alright, alright the Attorney General goes into court for an order and on that hearing, before an order to stop mailing, it's clearly proved (a) that it was an advertisement alright, but no man in his right mind would call this a pandering advertisement, let's assume it was Mr. Justice Brennan said a potato advertisement from Safeway.

Now, do you think the court is going to issue the order?

William D. Ruckelshaus:

I don't think the Court will ever have such case before it --

Byron R. White:

I know it --

William D. Ruckelshaus:

-- Mr. Justice White and if it does, I think that given this structures of the statute --

Byron R. White:

No, but you're going to have -- you would have a lot of cases where the sender would say, this is a pandering advertisement and does the court have to decide whether it's a pandering advertisement?

William D. Ruckelshaus:

It does not.

I don't think that this is exactly what Congress wanted to keep the courts from having to do was to make this determination again in this instance --

Byron R. White:

Well, take the potato advertisement, would the court issue the order?

William D. Ruckelshaus:

Assuming that the Attorney General brought such a case.

I think that the Court --

Byron R. White:

Well, if the Attorney General doesn't bring it, he's deciding in his mind then, that this is not a pandering advertisement?

William D. Ruckelshaus:

Well, it's says he's authorized to bring the case, it doesn't shall --

Byron R. White:

So there is some administrative discretion with that various --