Rowan v. United States Post Office Department Page 2

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

Joseph Taback:

Upon making such a discretionary determination, the recipient may obtain a prohibitory order from the Post Office Department issued against the mailer, his assigns or his agents.

That order or the contents of the order are set forth in the statute.

Three things must be placed in the order, and we say must in the mandatory sense because the statute calls for shall, the Postmaster General shall and he shall order the mailer, “Do not mail anything further to such a complaining recipient.”

He shall direct the mailer to remove from any list in his possession or under his control or the under the control of his agents or assigns the name of such a complaining addressee.

And thirdly, this order shall direct the mailer, “Do not sell, transfer, exchange or rent any list containing the name of the complaining addressee.”

This order then is served upon the mailer.

The difficulty –-

Potter Stewart:

Before this is an accurate form in the back of the -- of your opening brief, right?

Joseph Taback:

Mr. Justice Stewart that is Exhibit A to the appellant's opening brief is an exact order and it is the order arising out of the case reference in the appendix of Lee Jay Winkler which appears at page 22 of the appendix and is in connection with the matters set forth there.

The first principal problem as same relates to the First Amendment, appellants contend that to repose within an addressee the discretionary power to say, “I do not want anything that you send to me, any mail,” appellants submit is a direct violation and in complete derogation of the First Amendment.

Warren E. Burger:

That's the case, isn't it right there, the while case?

Joseph Taback:

That is -- Mr. Chief Justice that is certainly one of the principal issues.

I think in conjunction therewith, we have a secondary aspect of the First Amendment and that is namely, the further mailing of any materials which in that aspect becomes a prior restraint, it not only as prohibition but it is an inhibition depending on which interpretation this Court might involve itself with or look at for the statutory construction.

Warren E. Burger:

Well, is it your view that the statute is broad enough so that if it could reach Sears Roebuck catlog or Montgomery word “catalog”.

Joseph Taback:

Mr. Chief Justice, it has reached the Sears Roebuck catlog, it has reached the Family Heritage bible, it has reached various organizations and I think that what is the subject of one of the -- on the amicus briefs here before this Court.

Warren E. Burger:

And you think a citizen has no right to say the Sears Roebuck or Montgomery Word, I don't want your catalog and don't send it to me?

Joseph Taback:

That certainly is one of the principal issues in this case and an answer to that Mr. Chief Justice, I believe there are several of facets.

I believe that the under First Amendment, the free expression through the mails is of more paramount right, the more fundamental right within the society.

So hence, if we must create polarity between what has been termed as the right of privacy which I believe you elude to, the answer of appellants is that the free speech is far more paramount and must override that aspect of the recipient saying, “I do not want or I have a right not to receive.”

In addition, we submit however and I think this is more fundamental, that assuming arguendo that a recipient does has have such a right, this statute goes too far, too fast and hence we are never met by the issue.

I submit that this is an issue created by the Government in saying that right of privacy has now being polarized with free speech, but I believe that there are too many pitfalls before we arrive at that point.

Warren E. Burger:

Do you place this on a higher claims or more preferred position than the right to address oral communications?

Joseph Taback:

I don't believe Mr. Chief Justice that there are any claims.

I don't believe that there is a latter within the First Amendment.

I believe that each mode of communication as this Court has said, in a sense spins upon its own peculiarly or on its own way and must be looked at.

I believe in this complex, urban society in which we reside, the mails are a very important vehicle.

So, I do not in anyway determine which is the higher form of communication.

I think communication is protected by the First Amendment per se.

Warren E. Burger:

Then it would follow that your clients could stand outside of the mailbox or on the premises and make a speech, and require the occupant to listen to it, there are no difference in the claims.

Joseph Taback:

This particular aspect again goes back to the annunciations that have been made previously that each mode of expression, each form of expression rather pivots upon its own.