United States Postal Service v. Council of Greenburgh Civic Associations

PETITIONER:United States Postal Service
RESPONDENT:Council of Greenburgh Civic Associations
LOCATION:Larry Flynt’s Hustler Club

DOCKET NO.: 80-608
DECIDED BY: Burger Court (1975-1981)
LOWER COURT:

CITATION: 453 US 114 (1981)
ARGUED: Apr 21, 1981
DECIDED: Jun 25, 1981

ADVOCATES:
Edwin S. Kneedler – on behalf of the Appellant
Jon H. Hammer – on behalf of the Appellees

Facts of the case

Question

Audio Transcription for Oral Argument – April 21, 1981 in United States Postal Service v. Council of Greenburgh Civic Associations

Warren E. Burger:

We will hear arguments first this morning in United States Postal Service v. Council of Greenburgh Civic Associations.

Mr. Kneedler, I think you may proceed whenever you’re ready.

Edwin S. Kneedler:

Thank you, Mr. Chief Justice, and may it please the Court:

This case is here on direct appeal from the United States District Court for the Southern District of New York.

That court held unconstitutional as applied to appellees an act of Congress governing the deposit of materials into letter boxes used by the Postal Service for the delivery of United States mail.

The statutory provision involved is Section 1725 of Title 18, United States Code.

That section prohibits the knowing and willful deposit of any mailable matter on which postage has not been paid into a letter box that has been established by the Postal Service or has been accepted or approved by the Postal Service for the receipt or delivery of mail along any mail route.

William H. Rehnquist:

And that’s true even though the box is privately owned?

Edwin S. Kneedler:

That is correct, Justice Rehnquist.

Potter Stewart:

The box is privately owned, isn’t it?

Edwin S. Kneedler:

Well, in general, the boxes are furnished by the mail customer but the Postal Service regulations require the furnishing of an appropriate receptacle for the receipt of mail as a condition to the delivery of mail–

Potter Stewart:

At the customer’s expense?

Edwin S. Kneedler:

–At the customer’s expense.

There are circumstances, I am informed by the Postal Service, in which the Postal Service itself will construct letter boxes.

This is a program of relatively recent origin.

It occurs particularly in new subdivisions where the builder has perhaps neglected to put in what are called cluster boxes, which are groups of boxes at the end of the block to serve all the houses up the block.

Potter Stewart:

And who pays for those?

Edwin S. Kneedler:

The Postal Service will pay for those letter boxes because there occasionally have been disputes as to whether the builder or the homeowners or whoever–

Thurgood Marshall:

And the Postal Service has the keys?

Edwin S. Kneedler:

–The Postal Service has the keys; that’s correct.

Thurgood Marshall:

And the owner does not have the keys?

Edwin S. Kneedler:

Excuse me?

Thurgood Marshall:

The owner does not have a key to the back of it.

He only has a key for the door.

Edwin S. Kneedler:

Right.

The owner would… the person to whom the mailbox pertains would only have a key to his own individual piece of the box.

William J. Brennan, Jr.:

And these cluster boxes have to be lockable, do they not?

Edwin S. Kneedler:

That’s correct.

William J. Brennan, Jr.:

There has to be a key on them?

It can’t be one that you just pull open?

Edwin S. Kneedler:

That’s right.

The cluster boxes… that’s correct.

William J. Brennan, Jr.:

Well, now, what about those that you can just pull open?

I’m thinking of rural delivery.

Edwin S. Kneedler:

Well–

William J. Brennan, Jr.:

They don’t have locks on them.

Edwin S. Kneedler:

–No, they don’t.

William J. Brennan, Jr.:

Everyone drops newspapers and everything else in them.

Edwin S. Kneedler:

Well, under the statute, other persons are not permitted to deposit other materials into those boxes.

William J. Brennan, Jr.:

Even in those?

Even though they’re not lockable?

Edwin S. Kneedler:

That’s correct.

Yes, this statute applies to boxes, whether they are locked or unlocked.

It applies–

William J. Brennan, Jr.:

Well, what are non lockable bins or troughs under that regulation?

Edwin S. Kneedler:

–Well, the non lockable bins and troughs are really a very narrow category of situations.

It occurs in apartment buildings where there is frequently a line of boxes, one for each individual apartment, where letters are received.

But if the carrier brings larger parcels that won’t fit into the box, then they are frequently deposited in a trough or occasionally on a table to be picked up by the customer, much as a letter carrier might leave a package on someone’s stoop if it was otherwise protected, or… Even though it won’t fit in the mailbox, it can still be delivered.

So that is not regarded as a receptacle or a letter box.

William J. Brennan, Jr.:

Therefore, I take it, a civic association that drops a leaflet on that trough or table doesn’t violate the statute?

Edwin S. Kneedler:

That’s correct.

And there was testimony in the record in this case, in fact, that several civic associations had left leaflets on the trough or on tables available for the furnishing of mail.

Warren E. Burger:

I believe that a person may go into almost any hardware store and buy a metal box which has imprinted on it in some way, usually by relief, U.S. Mail> [“].

Now, are those… I seem to recall, they have some indication that they are approved by the Postal Service?

Edwin S. Kneedler:

Right.

The Postal Service in its domestic mail manual which contains the regulations for these and a number of other functions of the Service, provides specifications for mailboxes, the size, et cetera, and also contains provisions for approval of certain models of letter boxes, although there are–

Thurgood Marshall:

But this statute doesn’t apply to those?

Edwin S. Kneedler:

–Excuse me?

Thurgood Marshall:

This statute doesn’t apply to those?

Edwin S. Kneedler:

Yes, it does.

Edwin S. Kneedler:

It applies to any mailbox which is either put up by the Postal Service or any letter box that is furnished by the individual postal customer to receive the mail.

Thurgood Marshall:

Even though it’s not locked?

Edwin S. Kneedler:

Even though it’s not locked.

That’s correct.

Thurgood Marshall:

Well, what’s the reason for that?

Edwin S. Kneedler:

Well, the reports on the statute when it was enacted in 1934… that’s when it was adopted… specify several reasons.

One was the protection of the mail revenue.

What was happening in the 1930s is that a number of business concerns were delivering their own bills or circulars, that type of thing, which they were authorized to do under the private express statutes.

Those statutes permit a person to carry his own mail to a home, and what happened is these companies were having their circulars and bills delivered to premises outside of the mails, but they were using the letter box that had been established or erected on mail routes for the receipt of the U.S. mail, and Congress determined that this practice of delivering things outside of the mail, yet using the mailbox, was depriving the Postal Service of revenue.

Thurgood Marshall:

Suppose you’ve got two doors side by side, one has a “mail box” on it like the Chief Justice was talking about, and the other has a mail slot.

What would the difference be?

Edwin S. Kneedler:

The statute does not extend to mail slots.

Thurgood Marshall:

Well, I’m asking, what would the difference be?

You could put anything you want in the slot, but you couldn’t put anything in the… What is the reason for singling out the box as compared to the slot?

Edwin S. Kneedler:

Well, I think one practical difference is that there is really no receptacle, no equivalent of a mailbox when something is put through the slot.

It just goes into the home.

Thurgood Marshall:

The receptacle is the home.

Edwin S. Kneedler:

That’s right.

The receptacle is the whole home and I think the–

Potter Stewart:

The slot is just an aperture in the door, isn’t it?

Edwin S. Kneedler:

–Yes, exactly.

And there is a recognition, I think, of there being some alternative way of the homeowner getting other things through the mail.

Warren E. Burger:

Isn’t there another factor?

It happens that my mailbox is some distance from my house.

Our outgoing mail is placed in the box in the morning before the mailman arrives on the assumption, correctly, I think, that the mailman will take that mail and put it in the stream of outgoing mail.

You can’t do that with a mail slot.

Edwin S. Kneedler:

With a mail box or a slot?

Yes, you can–

Warren E. Burger:

You can’t do it if it’s inside the slot.

You’d have to have it protruding.

Edwin S. Kneedler:

–Right.

That would be protruding.

Otherwise, it can be placed in the letter box.

But the statute does only apply to the letter boxes.

This statute, as an–

John Paul Stevens:

Would not the revenue protection rationale apply equally to the door slots?

Edwin S. Kneedler:

–It could conceivably but this statute has to be considered against, for this purpose, the private express statutes which have… Traditionally the Postal Service has had a monopoly in the areas where it operates since the 1790s, but these private express statutes allow other persons, as I mentioned, to deliver their own mail, and the carrier can deliver, the private carrier can carry the mail and the mail slot provides a reasonable way for the delivery of the mail.

But this again–

Potter Stewart:

In any event, we don’t have an equal protection claim in this case, do we?

Edwin S. Kneedler:

–No, we don’t.

And there’s another factor I would like to mention, though, and that is that, as I mentioned, the domestic mail manual requires the customer to furnish a letter box as a condition to receiving the mail, and as a result of that acceptance of the letter box by the Postal Service, that letter box in effect becomes part of the postal delivery system.

For example, as a result of that acceptance both the sender and recipient of mail benefit from federal criminal statutes which bar a person from destroying a letter box that is on the outside of the house or by the curb and also from tampering with the mail that is inside such a letter box.

William J. Brennan, Jr.:

Now, there’s one other thing, Mr. Kneedler, I gather.

This statute is violated only when the deposit is of mailable matter?

Edwin S. Kneedler:

That’s correct.

William J. Brennan, Jr.:

Without having stamped it?

Edwin S. Kneedler:

Without–

William J. Brennan, Jr.:

Which I gather would not include pornographic material, for example?

That’s not mailable matter, is it?

Or explosives, or snakes.

Edwin S. Kneedler:

–Well, I would think on… perhaps on a literal reading of the statute.

I’m not aware that the statute has come up, or has been applied in that fashion.

William J. Brennan, Jr.:

Well, I know, but isn’t there a definition in the statute of what constitutes mailable matter?

Edwin S. Kneedler:

Right.

There is… and–

William J. Brennan, Jr.:

And it says pornography is not mailable matter.

Edwin S. Kneedler:

–That is correct.

William J. Brennan, Jr.:

So I gather you can drop that in without violating this statute at least.

Is that right?

Edwin S. Kneedler:

Yes, I would… well, I suppose that’s correct.

Edwin S. Kneedler:

As I say, I don’t know that the description’s been–

Warren E. Burger:

You might have to get a declaratory judgment from some court before you knew whether it was pornographic material or not.

Mr. Kneedler, in our place of residence in Fairfax County we have a curbside mailbox and the morning newspaper is, every day, stuck in the mailbox.

I take it that’s a technical violation of the statute?

Edwin S. Kneedler:

–Well, if it’s mailed it would not be.

I mean, some newspapers are mailed by second class postage, which is available for a publication.

John Paul Stevens:

Is the recipient of this illegal mail guilty of any offense?

Edwin S. Kneedler:

No.

It prohibits only the deposit.

But if it is placed in the letter box without the payment of the established postage, then that would be–

William H. Rehnquist:

If it’s simply brought by a carrier and stuck in the box?

Edwin S. Kneedler:

–You mean, by private carrier?

William H. Rehnquist:

Yes.

Edwin S. Kneedler:

Yes.

That would be a violation of the statute.

Byron R. White:

Even if the owner says to the carrier, please put it in the box, it’s raining, and he… the consent of the owner doesn’t make any difference to the violation?

Edwin S. Kneedler:

That’s correct.

There are alternatives.

For example, in the case of newspapers, there are two alternatives that come to mind.

One is a number of–

You can have another box.

Edwin S. Kneedler:

–That’s right.

A number of newspapers furnish a little tube they can–

Byron R. White:

That’s easy.

But what if you’d just as soon have one box?

Then that’s against the rules?

Edwin S. Kneedler:

–That is against the law.

The statute… it would also be possible in the case of a newspaper, for example, if it was inclement weather, to wrap the newspaper in a plastic bag which is frequently done.

Warren E. Burger:

Well, I suppose we could take judicial notice of the fact, since we see it as we drive down the roads, that the newspapers furnish a circular mail chute with the name of the newspaper on it.

Edwin S. Kneedler:

That’s correct.

William J. Brennan, Jr.:

Well, that’s not true everywhere, Mr. Kneedler.

If you’ve ever been on Nantucket Island you will discover that there’s only one box.

The newspaper and everything else goes into it.

Edwin S. Kneedler:

Right.

William J. Brennan, Jr.:

And it’s not locked.

And I gather that… are those depositors violating this statute?

Edwin S. Kneedler:

Yes.

William J. Brennan, Jr.:

Well, when I get up there this summer I’ll tell them.

What makes you think we’ll return?

Edwin S. Kneedler:

As I mentioned, the statute was enacted in 1934, but the Postmaster General had adopted regulations going back as far as 1907 to prohibit the deposit of mailable matter in postal boxes without the payment of postage.

One of the purposes that I mentioned of the statute has been to raise revenue but there are others.

Another purpose noted by Congress in 1934 when it enacted the statute was to prevent the accumulation of clutter in mailboxes.

And this concern is elaborated upon in a statement issued by the Postmaster General in that same year when he adopted a similar prohibition by regulation for city and village routes.

The Postmaster General stated that the Post Office Department… this statement, incidentally, is in the appendix to our brief.

The Postmaster General stated that the Post Office Department had been deluged with complaints by citizens that their private mailboxes were being filled with political advertisements, other advertisements, circulars, bills, and the Postmaster General noted that this clutter particularly in urban areas had caused some delay for the letter carriers, and because of difficulties of placing the mail–

Thurgood Marshall:

That wouldn’t be good today?

You couldn’t use that as a reason for the delay today, could you?

Edwin S. Kneedler:

–Well, there may–

Thurgood Marshall:

The delay is just built in today, isn’t it?

Edwin S. Kneedler:

–Well, there are–

Thurgood Marshall:

Still, I mean, it wouldn’t matter, would it?

Edwin S. Kneedler:

–No, I’m talking about the delay in the letter carrier’s making his rounds.

There was testimony at trial in this case that if a letter carrier had to come up to a box and it’s filled with circulars and other items that have been deposited by others, the letter carrier could not simply deposit the incoming mail into the mailbox.

He would have to withdraw the other materials, sort through them, and see if perhaps some of them had been left by the postal customer to be taken away, and also sort through them to see whether there might be violations of the private express statute.

John Paul Stevens:

Is it fair to infer, Mr. Kneedler, that the clutter problem that gave rise to the statute maybe hasn’t been solved.

Does the record tell us whether there’s any less clutter after the statute was passed than before?

Are people obeying the statute, I suppose is what I’m asking?

Edwin S. Kneedler:

Well, Volume III of the record in this Court contains dozens of copies of letters sent out by the Postal Service just in the Northeast Region to people who had deposited materials in postal boxes without the payment of postage on them, and what the Postal Service will typically do rather than prosecuting someone is to demand the payment of postage on these materials.

There was testimony in the record that in the overwhelming number of cases the person who had deposited the materials will comply and pay the postage.

So that the record does establish a pattern of enforcement.

Edwin S. Kneedler:

That’s not to say that there are not some occasions in which the statute is perhaps violated, but there’s nothing in the record to suggest that it is being ignored in a wholesale fashion.

William J. Brennan, Jr.:

Are there many prosecutions–

Edwin S. Kneedler:

There have… I’m informed that there has just been one attempted prosecution, and as I understand it did not result in a judgment of conviction.

Thurgood Marshall:

–Doesn’t anybody move around at election time and see four and five things stuck in people’s mailboxes?

I mean, you’re losing a lot of money.

You could lock them up.

I mean, any election time you get four and five every day.

Edwin S. Kneedler:

Right.

And those circulars under the statute, if they’re to be deposited in the letter box, are to have the proper postage attached to them.

Also, the fact that there are no criminal prosecutions does not reflect a lack of enforcement effort by the Postal Service under this statute.

I should make that clear.

So the Postal Service has attempted to recover the postage from those persons who deposit the mail into the receptacle.

I should also point out–

John Paul Stevens:

Mr. Kneedler, I wasn’t familiar with that part that you called my attention to, about all the requests for paying postage on unmailable matter.

Does the record tell us how much in dollars the Government has collected in that manner?

Edwin S. Kneedler:

–No, it does not.

John Paul Stevens:

But is it in the millions of dollars?

Or is is a few hundred?

Edwin S. Kneedler:

No, it’s more than a few hundred.

As I recall, there’s a discussion of a thousand or several thousand in just one postal inspection area.

The difficulty with statistics, though, is that the responsibility for enforcing the prohibition at the first level rests with the postmaster of each post office, and it’s frequently done on an informal basis, even a telephone call to the person who deposited the material, and then that person may pay in several dollars, or if it’s just several pieces, it may be less than a dollar.

So that to my knowledge there was no collection of this information from all post offices around the country.

What evidence there was in the record concerned situations where the postmaster, individual postmaster had been unable to collect by this method and it was referred to the Postal Inspection Service for additional efforts to collect.

Warren E. Burger:

Is it a federal crime to steal a piece of mail after it’s once inside that box?

Edwin S. Kneedler:

Yes, when–

Warren E. Burger:

Whether it’s outgoing or incoming mail?

Edwin S. Kneedler:

–Yes, yes, it is.

Warren E. Burger:

What about theft of some of the junk that’s put in there?

Is that a federal crime?

Edwin S. Kneedler:

Well, that I think would not be because the statute, I believe, specifically refers to theft of the mail.

Edwin S. Kneedler:

I don’t believe these other materials would be regarded as the mail.

William H. Rehnquist:

What if the homeowner put up a regulation mailbox and then in the center of his yard put up a bushel basket and said, non mailable matter, and all the political circulars and civic meeting notices and so forth were supposed to go in there?

Would it be any violation of any federal statute to take something out of that bushel basket?

Edwin S. Kneedler:

No, it would not.

And in fact the alternative of furnishing a separate receptacle for the receipt of items other than the mail was one of the alternatives that was mentioned during the debates in 1932 on a predecessor bill to the one, the statute eventually enacted in 1934 that all the Congress has done is limit the use of the mailbox, which after all exists because of the Postal Service.

Congress has not sought in this statute in any way to regulate any other means of delivery by a person to another home or to a business.

William J. Brennan, Jr.:

Getting back, Mr. Kneedler, to your answer to the Chief Justice, I gather junk mail which is stamped, if stolen, that’s a crime, isn’t it?

I mean, it might be third class or whatever it may be, but if it’s revenue producing, it can be junk mail but as long as it’s been revenue producing, whatever the rate may be, its theft is a crime, isn’t it?

Edwin S. Kneedler:

I believe… it certainly is if it’s mailed.

My uncertainty is whether materials that are deposited with the postage into the letter box with a permanent postage–

William J. Brennan, Jr.:

I’m not speaking to that.

I’m speaking only to that which is stamped.

Edwin S. Kneedler:

–Right, right.

William J. Brennan, Jr.:

Lord knows all of us get a lot of stamped junk mail–

Edwin S. Kneedler:

Right, right.

Yes, that is a crime, too.

It is a crime.

William J. Brennan, Jr.:

–It’s going just as far as the first waste paper basket.

Edwin S. Kneedler:

Right.

It is a crime.

It is a crime to steal that.

Now, the appellees challenge this statute under the First Amendment, but… and the district court held the statute unconstitutional as applied to appellees.

What the district court did was balance what it perceived to be the Postal Service’s need to enforce this statute against these particular civic associations, against what it perceived to be the limitations on their First Amendment rights if the appellees were forced to comply with the statute.

In our view this ad hoc balancing approach fails to give sufficient deference to Congress’s judgment regarding the need for the statute in the generality of cases and it would also make vulnerable many statutes or regulations of general applicability adopted by the Postal Service or by Congress to regulate a mail delivery system of nationwide scope.

The district court apparently believed that it was required to balance the need for the statute against the asserted infringement–

John Paul Stevens:

Mr. Kneedler, may I ask you one procedural question now?

As I remember, when we first took the case it was from the court of appeals when it remanded for trial, is that right?

Or did we take it directly from the district court?

Edwin S. Kneedler:

–The district court dismissed the complaint for failure to state a claim.

That was appealed to the court of appeals which remanded to the district court saying it should not have been dismissed.

John Paul Stevens:

And wasn’t your appeal from that order?

Edwin S. Kneedler:

Yes, from the district court’s order after the–

John Paul Stevens:

From the district court’s order after?

Edwin S. Kneedler:

–From the district court’s, after the court of appeals remanded with instructions to reinstate the complaint.

John Paul Stevens:

I was under the impression we had taken the case from the court of appeals’ remand order but that’s incorrect?

Edwin S. Kneedler:

No, it was remanded to the district court.

John Paul Stevens:

I know it was remanded, but I–

Edwin S. Kneedler:

Yes, and there was a trial.

So this case, this appeal is directly from the district court.

Now, the district court apparently believed that some balancing was appropriate here because the statute infringed on appellees’ First Amendment rights.

This assertive infringement could have two aspects.

One, that the statute somehow inhibits other alternative means other than deposit of something in the mailbox, for communicating.

Or it could be a contention that charging postage for the use of the mailbox itself violates the First Amendment.

The district court seems to have believed that because there was testimony for appellees that these other methods of delivery were unsatisfactory, that the statute somehow inhibited or infringed on the appellees’ right to deliver materials.

William H. Rehnquist:

–Do you think the district court held that the appellees had a right to have the Post Office Department carry their circulars free of postage?

Edwin S. Kneedler:

No, it did not, but it did hold that appellees have a right of access to a part of the postal system, not the entire part, not the delivery part, but to the letter box, which is the terminus or the end of the delivery process.

And as to that, the district court clearly held that these appellees have a right of access to that without paying the established postage.

William H. Rehnquist:

And the Post office will carry any of appellees’ circulars if they just pay some postage on it?

Edwin S. Kneedler:

Yes, it will.

Now–

Byron R. White:

Well, there’s no general prohibition against anybody but a mailman putting anything in the box?

I take it this statute wouldn’t be violated if somebody put a stamp on it and delivered it himself?

Edwin S. Kneedler:

–That’s correct.

Byron R. White:

Because, just because he doesn’t trust the Postal Service to get it there.

Edwin S. Kneedler:

That’s right.

Or, one of the justifications appellees advanced below for using, for depositing items in letter boxes free of charge was that if they used the mail the process would be too slow and they couldn’t inform residents of the need to attend meetings that were coming up very quickly.

And that rationale–

Byron R. White:

All they have to do is put a stamp on it?

Edwin S. Kneedler:

–That’s right.

And they could deliver it as quickly as they wanted.

Edwin S. Kneedler:

So that certainly is no reason why the statute violates the First Amendment.

Byron R. White:

But it does sort of undercut the notion that one of the reasons for this statute is that it clutters up the mailbox.

You can clutter it up as much as you want if you put a stamp on it?

Edwin S. Kneedler:

No, Mr. Justice White, I don’t believe it does undercut that rationale, because one of the concerns is that it will increase the cost to the Postal Service if the letter carrier has to go to the box and sort through materials.

But if the person who deposits something in the letter box pays postage on it, then the Postal Service is being reimbursed to the extent of the postage for the additional effort of the letter carrier going through the box.

Byron R. White:

But still part of your argument is that he has to sort it out, sort out this stuff that is dropped in.

He has to sort that out from the outgoing mail?

Edwin S. Kneedler:

That’s correct, but–

Byron R. White:

That part of it is not… he’d still have to sort out the mail?

Edwin S. Kneedler:

–He still has to do it but the basis of that argument was that this would increase the cost of the mail delivery system.

But to the extent someone puts postage on the letter, then the Government is being reimbursed for that extra effort.

I did want to make one point, though, regarding the asserted infringement on First Amendment rights.

And that is that the other alternatives that are available to appellees, such as placing circulars on doorknobs, or behind a screen door, or knocking on the door and handing a circular directly to the customer or to the resident, these other alternatives exist whether or not the resident erects a mailbox.

And therefore the erection of the mailbox and the Postal Service’s approval or acceptance of that mailbox for delivery of mail has absolutely no effect on all the other alternatives that are open to an individual for the delivery of messages.

So the erection of a mailbox cannot be said in any respect to infringe upon the appellees’ First Amendment rights.

So the claim would have to be reduced to the assertion that appellees have a right of access to the mailbox itself irrespective of how available other alternatives may be to them.

It’s a claim that they have a right of access to the mailbox itself, and this Court has never held that Congress cannot establish reasonable postage fees for the use of facilities related to the mail.

The Postal Service has existed as long as the First Amendment in this country and has charged postage for the use of the mails, and it is too late in the day in our view to suggest that significant First Amendment questions are raised when Congress establishes a rate classification system for the use of postal facilities that is nondiscriminatory, as this one is, and is reasonable.

I would like to reserve the balance of my time.

Warren E. Burger:

Mr. Hammer.

Jon H. Hammer:

Mr. Chief Justice, and may it please the Court:

We believe that there are significant First Amendment issues presented by this case:

Warren E. Burger:

Do you think you have a First Amendment right to… does anyone have a First Amendment right to walk into a private property and open the door and put something behind the screen door?

Jon H. Hammer:

–We don’t believe, Mr. Chief Justice, that the rights that we seek to assert permit us to invade anybody’s sacred rights of privacy.

I believe that the decision of this Court in Rowan indicates that the homeowner may make that decision.

There are local law devices such as no trespassing signs and things of that nature whereby the homeowner can preclude any type of distribution.

Warren E. Burger:

Must the homeowner put a no trespassing sign up in order to preserve his right to privacy?

Jon H. Hammer:

I think, with respect to the mailbox, the answer is yes, [= Mr.] Chief Justice.

William H. Rehnquist:

Under Village of Schaumberg, I would think, even under circulars, he would have to, wouldn’t he?

Jon H. Hammer:

That’s correct.

Jon H. Hammer:

I believe that’s correct, Mr. Justice Rehnquist.

Byron R. White:

Or under most state trespass laws.

Jon H. Hammer:

That’s correct, Mr. Justice White.

Byron R. White:

And Hynes v. Oradell.

Jon H. Hammer:

Yes.

I believe, however, Mr. Chief Justice, that this case can be decided on nonconstitutional issues if the Court sees fit.

And I would like to allude to that briefly.

My adversary indicated in referring to 1725, the various provisions of the statute; but he did not refer to the fact that it requires an intent to avoid the payment of the postage, an intent, a criminal statute requiring intent.

The companion section of this chapter, 18 USC 1696, provides an exemption to the private express statute which permits an uncompensated individual to deliver mail–

Byron R. White:

Where is that in the appendix?

Jon H. Hammer:

–The statute is 18 USC, Section 1696.

I believe it’s quoted in the brief of the amici, of the Civil Liberties Union, at page 21, Mr. Justice Rehnquist.

Byron R. White:

What color?

Jon H. Hammer:

That’s green.

And I believe that that section provides that in effect a noncompensated volunteer may deliver postage, may deliver matter.

If that is the case, anybody distributing material under 1725–

William J. Brennan, Jr.:

May I ask, Mr. Hammer, that starts out with “This Chapter”.

Is that the chapter that includes 1725?

Jon H. Hammer:

–Yes, it is.

It is, Mr. Justice Brennan.

It’s the same chapter.

And our argument is that if there is no need to require the payment of postage for a noncompensated individual, how can he possibly under 1725 have the intent to avoid the payment of postage if no postage is required?

I believe that the record is clear that the civic individuals in this case, and all those such as the amici and the representative civic groups throughout the United States, and we believe that we are representative of them, are volunteers acting without compensation.

So I submit that 1725–

William J. Brennan, Jr.:

Does that affirmatively appear in this record that those who made this distribution–

Jon H. Hammer:

–Are volunteers without?

William J. Brennan, Jr.:

–Are volunteers without compensation?

Jon H. Hammer:

Yes, Mr. Justice.

William J. Brennan, Jr.:

Where?

Jon H. Hammer:

I believe that is in the Appendix.

Jon H. Hammer:

I’m not certain, Mr. Justice Rehnquist, that I can cite you to the direct page, but I believe that the testimony of numerous civic experts indicated that none of these individuals were ever paid, and that is the normal procedure for civic associations in terms of their modus operandi.

William H. Rehnquist:

Well, you can talk about the normal procedure for the Sawmill Valley Civic Association, presumably, but do you think you can speak uniformly of the civic associations for 50 states?

Jon H. Hammer:

Well, Mr. Justice, I believe that what we have tried to do in this action, even though we could not bring a class action for logistical purposes… the problems were too great, that the testimony of the civic representatives who testified in this case were not simply from Sawmill Valley or from Greenburgh.

They were from other areas, Connecticut, New Jersey, White Plains, Queens–

William H. Rehnquist:

All over the country.

Jon H. Hammer:

–Yes.

And in addition, Mr. Justice Rehnquist, on the prior court of appeals proceeding, which was remanded back, Mr. Justice Stevens, as you point out, there were affidavits submitted in that case from civic representatives in New Hampshire and in Colorado who testified, this is the common procedure, the way it is pursued throughout the United States.

So I believe, even though we have not obtained testimony from civic representatives from 50 states, we have obtained testimony from representative groups of civic associations.

Byron R. White:

What do you mean, paid for?

They weren’t paid for delivering, then?

Jon H. Hammer:

They do it as a voluntary service to–

Byron R. White:

Who does?

Jon H. Hammer:

–The members of the civic associations, Mr. Justice.

Byron R. White:

Well, what if the executive secretary, the paid executive secretary of one of them did it?

Jon H. Hammer:

Well, then, Mr. Justice, the provisions of Section–

Byron R. White:

Well, he’s just on a salary.

This just happens to be part of his job.

Jon H. Hammer:

–That… it is possible that there could be, in an affluent area, there might be such a paid executive, although we–

Byron R. White:

An awful lot of civic associations have rather large staffs.

Well, Sawmill Valley isn’t exactly a poor area, is it?

Jon H. Hammer:

–It’s a middle class area, Mr. Justice, and I might state that it has an average treasury that runs approximately 150.

Its family dues are about $2 to $5 per year.

Thurgood Marshall:

Is that in the record?

Jon H. Hammer:

Yes, it is, Mr. Justice.

William H. Rehnquist:

The borough or township of Sawmill Valley is not below the poverty line?

Jon H. Hammer:

Mr. Justice, in the town of Greenburgh, which is within, the Sawmill Valley is included within, there are upper income areas, there are middle income areas, and there are lower income areas.

Indeed, in my own civic association, there is a public housing project of people who are required to be of low income.

Those people pay no dues to out civic association because they cannot afford to pay any dues, even $2 to $5 a year.

William J. Brennan, Jr.:

Mr. Hammer, who is E Payson Clark, Jr.?

Jon H. Hammer:

E Payson Clark, Jr., Mr. Justice, is sitting here at the counsel table.

Jon H. Hammer:

He is an attorney.

He was a civic representative in the town of Greenburgh–

William J. Brennan, Jr.:

Well, the reason I ask, I notice at page 38 of the transcript, there’s his testimony.

“Now, Mr. Clark, can you tell us in terms of these hand distributions, who makes them? “

“The people who make them, can you tell us? “

The answer:

“The people who are active in the affairs of the civic association, of which I am only one representative, go from door to door and insert these civic community notices in the private mailboxes of the homeowners. “

Next question:

“To your knowledge, are any of these people ever paid? “

Answer:

“No adult, to my knowledge, has ever asked for or received any compensation for this activity, but youngsters in the community, by their parents, and sometimes possibly from the civic association, would be given 50 cents or a dollar or so, a little family stipend, for going down one side of the street while the parent is working the other side of the street. “

Is that the testimony you’re talking about?

Jon H. Hammer:

–Well, thank you, Mr. Justice for–

William J. Brennan, Jr.:

Well, I know the youngsters get paid though, don’t they?

Jon H. Hammer:

–That’s true, they might.

Sometimes, it’s a family necessity, Mr. Justice, to make this payment.

William J. Brennan, Jr.:

Is that the only testimony we have?

Is it–

Jon H. Hammer:

No, Mr. Justice Brennan, there are testimony from other civic representatives, not all of which is included in the Joint Appendix, but all of which is obviously included in the trial transcript, from other civic associations, in other areas, that people never receive any compensation of any material nature other than these de minimis payments, Mr. Justice.

Byron R. White:

–Has this argument ever been surfaced in this case before?

Jon H. Hammer:

The question about payment?

Or this particular?

Potter Stewart:

The statutory issue.

Was it presented to the district court or the court of appeals?

Jon H. Hammer:

No, it was not.

It was obvious that it was not presented to the court of appeals, because that came up on the court’s motion, granting of the motion to dismiss the complaint.

Thurgood Marshall:

What relation does that have to the First Amendment?

Jon H. Hammer:

That statute?

Thurgood Marshall:

No.

That people get paid.

Jon H. Hammer:

It doesn’t have any, Mr. Justice Marshall.

Thurgood Marshall:

I don’t think so.

Jon H. Hammer:

It’s just that I was attempting to give the Court a possible basis for determining this case on nonconstitutional grounds.

William H. Rehnquist:

Well, are you saying that someone who is not paid for violating a statute doesn’t violate it?

Jon H. Hammer:

Because the private express statute exemptions state that a person may deliver if he receives no compensation.

And if he receives no compensation, and if he may thereby deliver, how under the section which is before the Court may he have an intent to avoid the postage?

William J. Brennan, Jr.:

Well, I suggest one thing, Mr. Hammer.

What this statute says, the chapter shall not prohibit the conveyance or transmission of letters or packets by private hands without compensation.

It doesn’t say, shall not prohibit the deposit in mailboxes.

Jon H. Hammer:

Well, I understand that, Mr. Justice Brennan, but it would seem, as a matter of logic and common sense, that if it says, you may transport or convey, that would imply that you would have to convey it to the place where the homeowner may be likely to receive it, and the entire frame of testimony in this case was such that the only logical appropriate traditional historical place where homeowners could expect to receive these public interest civic distributions–

William J. Brennan, Jr.:

I gather you agree you’d have a stronger argument if the word, “nor deposit in mailboxes”–

Jon H. Hammer:

–That’s true.

It would be much stronger in that case, Mr. Justice.

Byron R. White:

–What about if the utility company, the utility company hires a special messenger to deliver its bills, it would not violate the statute either under your view of–

Jon H. Hammer:

Well, he would be compensated, Mr. Justice–

Byron R. White:

–Well, the statute says,

“or by special messenger employed for the particular occasion. “

That’s your very same statute that you’re relying on.

Jon H. Hammer:

–Yes, Mr. Justice, but I would have to read that as meaning–

Byron R. White:

I think you would.

You would have to read it some way.

Like read it out.

Jon H. Hammer:

–Well, I would have to assume that the statutory intendment was to provide that this special messenger was to be compensated.

And I think there would be a violation of the statute in that case.

Byron R. White:

Well, that isn’t what this statute says.

Jon H. Hammer:

Well, this statute is somewhat ambiguous.

I think 1725 is somewhat ambiguous.

I think the questions with respect to slots created ambiguity, both at the course of trial where one government witness testified it was covered by the statute and one testified it was not.

The Post Office issued post trial regulations deleting the problem of the slot.

Warren E. Burger:

Mr. Hammer, if the Federal Express or United Parcel Service delivering some piece of material… I suppose we can’t use the word “mail”… put it in one of these boxes, they’d be violating the statute, wouldn’t they?

Jon H. Hammer:

That’s correct, Mr. Chief Justice.

Warren E. Burger:

Well, aren’t they direct competitors?

Haven’t they taken hundreds of millions of dollars worth of business away from the Post Office?

Jon H. Hammer:

Mr. Chief Justice, I would state this.

I think the answer is probably yes, but I think that it’s clear from the–

Warren E. Burger:

Probably?

Well, if you rely on the Wall Street Journal on the revenues of Federal Express and United Parcel Service, there can’t be any question about it, can there?

Jon H. Hammer:

–No, I think you’re correct, Mr. Chief Justice, but I would state this, that we are dealing here not with commercial distributions but with the core First Amendment distributions of political, civic, and community minded information.

The type of information upon which–

Warren E. Burger:

But your posture would be the same, I should think, on the First Amendment, if you wanted to be sure to get delivery and couldn’t depend on the mail, the Postal Service, that you engaged United Parcel Service or Federal Express to make your deliveries for you.

Jon H. Hammer:

–In terms of reliability of delivery, yes.

That’s correct, Mr. Chief Justice, but what… I think–

Warren E. Burger:

And that’s taking business away from the Postal Service and using one of their facilities, is it not?

Jon H. Hammer:

–That’s correct.

And I would have two answers to that, Mr. Chief Justice.

One is a statutory construction point.

I think that the provisions of this statute which refer to circulars, statements of account, and sale bills, and the legislative history confirms this, indicate that this statute was intended in 1934 to cover only commercial material, not noncommercial material.

I think the plain language of the statute indicates that.

And this Court could determine this issue without regard to the questions of commercial distributions.

That’s one answer, Mr. Chief Justice.

The second answer is that I think that this Court in the cases last term, the Consolidated Edison case and the Central Hudson case, indicate that even though commercial distributions do have a First Amendment right and I believe that the trend of the decisions in this Court confirms that, there is still a greater degree of protection necessarily afforded to noncommercial distributions: the political, civic, and public interest material which we seek to distribute, which the amici seek to distribute, and which all the representative civic groups throughout the United States seek to distribute.

I believe that the compelling government interest, if any, which the Post Office seeks to assert here, is not well taken.

They assert a loss of revenue, and I think there are several answers to that.

If a person can deposit, or distribute as a volunteer under 1696, regardless of how ambiguous that statute may be, then there cannot be any concern for loss of revenue.

In the second case, and in answer to your question, Mr. Justice Stevens, I believe that there has been wholesale violation of this statute for many years.

We don’t claim any invidious discriminatory nonenforcement, but the trial judge took judicial notice of the fact that this statute appears to be more honored in the breach than in the enforcement since its enactment in 1934.

And if that be the case, then I think there is very little possibility of any revenue or adverse revenue–

Thurgood Marshall:

What was the basis for that judicial notice?

Or, I should say, what if any?

Jon H. Hammer:

–Well, I wouldn’t want to read into the minds of the trial court, Mr. Justice, but I would–

Thurgood Marshall:

I mean, what did he say?

Did he give any basis for it?

Jon H. Hammer:

–Well, only in view of the fact that–

Thurgood Marshall:

Or did it come out of the clear blue?

Jon H. Hammer:

–Well, I think Judge Conner gave it serious thought but he also based it on the testimony in the case, because he commented that people testified before him that for a period of many years they had been violating this statute, knowingly and out of necessity.

In fact, the appellee Council of Greenburgh Civic Associations knowingly violated this statute in order to distribute public interest material on a referendum.

William H. Rehnquist:

You say, “of necessity”.

What do you mean by that?

Jon H. Hammer:

Well, of necessity, Mr. Justice Rehnquist, I think turns on the question of dollars and cents.

I think that if we are to enforce this statute, and if this Court sees fit to enforce this statute, the practical First Amendment for the great mass of the citizenry who seek to become involved in their community, who seek to exercise their rights as citizens, to become involved in the civic and political process, which I think are commingled as one, would be denied.

William H. Rehnquist:

Well, then, would you say that a person could take an unstamped letter to the Post Office and say, I have had kind of a bad year this year, I can’t afford a stamp, but the First Amendment requires you to deliver it for me?

Jon H. Hammer:

No, Mr. Justice, I would not make that point and I would not submit that that is our point.

Harry A. Blackmun:

Because it doesn’t follow inevitably.

Jon H. Hammer:

We do not ask to utilize the postal facilities.

Harry A. Blackmun:

Yes, but you are saying that financial status of your association is a factor to be determined relative to access to mailboxes.

Jon H. Hammer:

Not… I state that financial considerations are a crucial consideration, Mr. Justice Blackmun, in terms of considering whether this Court shall deprive individual citizens and civic groups of their only practical historical means of distribution.

Harry A. Blackmun:

Well, therefore, if I am an indigent and cannot afford to buy a stamp, the mail should be carried free for me.

Jon H. Hammer:

That indigent individual can do as our civic appellees can do, he can… as we submit they should be able to do… he can take that distribution and deposit it in the recipient’s mailbox if it is a public interest civic or political distribution.

Harry A. Blackmun:

Even though his recipient lives in Chicago, which is west of the Hudson?

I noticed in your list of interested associations, only one was west of the Hudson.

Jon H. Hammer:

Well, Mr. Justice, we were somewhat encumbered with the question of economics and logistics in proceeding to trial, but as I mentioned previously, there were affidavits on the previous summary judgment proceedings from a civic representative from the vicinity or Denver, Colorado.

So we did–

Byron R. White:

That’s the only one, that I mentioned.

Jon H. Hammer:

–That was… yes.

That’s correct, Mr. Justice Blackmun.

William J. Brennan, Jr.:

Mr. Hammer, you suggested earlier that as a matter of legislative history, I thought you said, could be limited as a matter of interpretation and construction.

The words, statements of accounts, I guess that’s just the ordinary bills I get, isn’t it?

Jon H. Hammer:

Yes, sir.

William J. Brennan, Jr.:

Circulars.

That’s rather broad, isn’t it?

Jon H. Hammer:

Well–

William J. Brennan, Jr.:

Are you suggesting circulars ought to be limited to commercial advertisements and that sort of thing, is that it?

Jon H. Hammer:

–I think the answer to that, Mr. Justice Brennan, is, yes.

I think if we proceed on the normal statutory construction principles, in this case the principle of noscitur a sociis, that language is known by the company it keeps.

I believe that it clearly indicates that statements of account–

William J. Brennan, Jr.:

Well, of course, this is, deposit any mailable matter, and then such as… in other words, for example.

Isn’t that right?

Jon H. Hammer:

–Well, that gets into the gist of generis concept, which I think leads to the same conclusion, Mr. Justice Brennan, that it should be commercial only.

Indeed, the legislative history which is before this Court indicates that the reason this statute was enacted was because utility companies in the 1930s were using this as a device to distribute their bills.

I don’t believe that there is any record of any civic violations, and I believe that there is an exhibit in the Appendix which shows that there has never been any record of a civic association violation of this statute until the enforcement threats which precipitated this litigation.

William J. Brennan, Jr.:

How about election circulars?

Candidates?

Has the statute been enforced against them?

Jon H. Hammer:

I believe that it has in a happenstantial fashion, Mr. Justice White.

In other words, there have been evidences–

Byron R. White:

Well, your construction, in any event… if you win this case, there will be a good many other people besides civic associations that would benefit?

Jon H. Hammer:

–I would believe that all noncommercial public interest and civic oriented material, which would include certainly political candidates, because we–

William H. Rehnquist:

How about commercial?

After Virginia Board of Pharmacy, aren’t they entitled to First Amendment rights?

Jon H. Hammer:

–Under Virginia Board?

Yes, they are, Mr. Justice Rehnquist, but I believe that under the Central Hudson case there is still an indication by this Court, and in the opinion, I believe, by Mr. Justice Powell, that the commercial First Amendment rights are still of a lower priority, and entitled to a lesser degree of constitutional protection than these rights which we are now arguing before this Court.

I believe that commercial entities have the financial wherewithal and the financial desire to find alternative means of distribution.

We have none–

William H. Rehnquist:

The statute certainly doesn’t speak in terms of who can afford it and who can’t.

Jon H. Hammer:

–No, it does not, but but I believe that in construing a statute under the First Amendment, Mr. Justice Rehnquist, we have to look… and we don’t maintain that the statute is facially invalid… the statute, the Government argues, is content neutral.

And that is a label that they seek to attribute to it.

But I submit that the statute should be construed in terms of its practical application, the practical realities of how it is applied.

The particular environment to which I believe this Court referred in Tinker v. Des Moines School District, that I think is the threshold question which this Court has to answer.

Warren E. Burger:

Let me take you back a moment.

You made a statement, something to the effect that if you can’t put it in the mailbox you are denied access to delivery.

Warren E. Burger:

Now, what do you mean by that?

Jon H. Hammer:

We are denied, Mr. Chief Justice–

Warren E. Burger:

Why can’t you put it behind the screen door, put it on the porch, put it in a dozen other places?

Jon H. Hammer:

–Mr. Chief Justice, throughout the course of the trial and as a result of the remand from the U.S. Court of Appeals for the 2nd Circuit, which asked the trial court to go into these questions, a great deal of the testimony, perhaps almost 90 percent of it, from the civic association side, was taken up with exploring these alternative devices, and civic experts from a great variety of areas, admittedly not west of the Hudson except in one case, showed that these other methods were not practicably feasible.

Warren E. Burger:

If the Twelve Apostles said black was white, no court has to believe it.

These experts don’t know any more about it than anyone else in the world.

Jon H. Hammer:

Well, except–

Warren E. Burger:

There are hot unlimited, but a dozen other places to make this delivery.

Jon H. Hammer:

–Two answers, I might submit, Mr. Chief Justice.

In the first case, these civic experts were individuals who had spent a great part of their adult lives on weekends and on various times in the community distributing materials and considering alternatives.

They found these other alternatives–

Thurgood Marshall:

Do you know of any other expert that only works on weekends?

Jon H. Hammer:

–Well, I believe probably judicial experts are forced to work on weekends.

Thurgood Marshall:

I said, only on weekends?

Jon H. Hammer:

Well–

Thurgood Marshall:

You said these people got their expertise on weekends.

Jon H. Hammer:

–Well, I meant, Mr. Justice, that the distributions of this type of material is generally done on weekends because–

Thurgood Marshall:

Aren’t you really asking for an exception to the statute?

Jon H. Hammer:

–No, no, Mr. Justice, except–

Thurgood Marshall:

Well, what do you call it?

Jon H. Hammer:

–We state that noncommercial distributions are not covered by the statute.

That’s–

Thurgood Marshall:

If that had been written into the statute, it would be all right?

Jon H. Hammer:

–I believe it is there, Your Honor.

Potter Stewart:

Neither that statutory issue nor the one that was mentioned at the start of your argument was considered at all, either by the district court or the court of appeals?

Jon H. Hammer:

The statutory construction issue, in terms of commercial noncommercial, was alluded to by the court of appeals in its decision on remand.

The district judge did not consider it after the trial.

Potter Stewart:

And the only issue, the only question mentioned in the jurisdictional statement is the constitutional question, and that was the only question actually decided by the district court, wasn’t it?

Jon H. Hammer:

That’s correct, Mr. Justice Stewart.

Potter Stewart:

So, even if we thought there were a possibility of merit in either this question of statutory construction or in your earlier statutory issue, perhaps the appropriate thing for us to do would be, if we disagree with you on the constitutional question, to remand the case so that those statutory questions can be considered by the district court.

Potter Stewart:

Is that correct?

Jon H. Hammer:

That may well be, Mr. Justice Stewart, but I would certainly hope that this court would be able to provide the district court with some guidance, perhaps as to the construction of the statute.

I would also like to–

John Paul Stevens:

May I ask, on the construction point of 1696, I notice the next sentence of the statute after the one quoted in the amicus brief says that whenever more than 25 such letters or packets are conveyed or transmitted by such special messenger, the requirements of Section 500, Title 39, should be met.

Were they more than 25 letters typically delivered by these young people?

Jon H. Hammer:

–In some cases there might be.

In many cases a young person might, or with a parent might cover ten or twelve homes on a particular block or a particular street.

A particular civic association–

John Paul Stevens:

The exemption… but then the exemption would not necessarily… I don’t know what Title 39, Section 500, is, do you know what?

Jon H. Hammer:

–I do not, Mr. Justice Stevens.

John Paul Stevens:

So this is really a pretty new argument, then, isn’t it?

Jon H. Hammer:

Yes, it is, and I–

William H. Rehnquist:

This was a civil action, was it not?

Jon H. Hammer:

–Yes, it was, Mr. Justice–

William H. Rehnquist:

Brought by your clients?

Jon H. Hammer:

–Yes.

Potter Stewart:

For declaratory judgment?

Jon H. Hammer:

For declaratory judgment.

William H. Rehnquist:

You didn’t raise the statutory argument in your lower court argument?

Jon H. Hammer:

We raised the statutory construction argument, commercial as opposed to noncommercial.

William H. Rehnquist:

But not the statutory argument you’ve raised here?

Jon H. Hammer:

No, Mr. Justice Rehnquist, not that one.

I would like to respond to the Chief Justice’s comments before I conclude, about the civic experts.

The trial judge specifically made findings of fact with respect to these alternative means of delivery, and he found they were not viable methods of delivery.

I believe that under Rule 52 of the Federal Rules of Civil Procedure that we should accept these findings of fact by the trial court, and I believe that much of our brief was devoted to that discussion.

Warren E. Burger:

You submit they’re clearly erroneous, isn’t that it?

Jon H. Hammer:

That’s correct, Mr. Chief Justice.

I think that the record clearly indicates that they are not only not clearly erroneous, they are clearly supported by every piece of evidence that was submitted.

Because the Post Office submitted no evidence to the contrary.

William H. Rehnquist:

Well, do you try a statute the way you litigate ordinary individuals?

William H. Rehnquist:

Isn’t there a presumption of validity in favor of every federal statute that Congress chooses to enact?

Jon H. Hammer:

Not when a statute has been the subject of wholesale violation for a period of 40 years or 45 years since its enactment, Mr. Justice Rehnquist.

William H. Rehnquist:

What’s your authority for that?

Jon H. Hammer:

The authority for that is the testimony of the–

William H. Rehnquist:

I mean a case authority from this Court.

That the ordinary presumption is inapplicable.

Jon H. Hammer:

–There’s… I don’t believe there’s anything in our brief to cover that.

It was a factual point that was brought out–

William H. Rehnquist:

Well, I was asking for a case.

Jon H. Hammer:

–I don’t have one at my fingertips, Mr. Justice Rehnquist.

Warren E. Burger:

What you’re suggesting is that if a statute isn’t enforced some kind of a special doctrine of laches runs against the Government.

Jon H. Hammer:

I concede there is no doctrine of laches against the United States of America or even against the United States Postal Service.

But I would submit also that we have to look at this case in its cumulative effect.

The cumulative effect of this case is to deny distributions under the First Amendment, the core distributions under the First Amendment.

The participatory democracy which is essential if the average citizen is to have any say and any responsibility in the operations of his governments, and I submit that if this method is denied, the facts demonstrate that there are no alternatives, that there are no effective alternatives except the alternatives which are available by reason of the dollar, and I submit that is not feasible.

I see my time is concluded.

Thank you.

Potter Stewart:

This was not just a preliminary injunction that was entered by the district court?

Jon H. Hammer:

No, Mr. Justice Stewart, it was a permanent injunction that was entered.

There was no preliminary injunction.

Potter Stewart:

And a finding on the merits that the statute was unconstitutional as applied to your client?

Jon H. Hammer:

That’s correct; that’s correct.

Warren E. Burger:

Do you have anything further, Mr. Kneedler?

Edwin S. Kneedler:

Yes, thank you, Mr. Chief Justice.

I’d like to make several points.

One, earlier when I was questioned about the criminal statutes prohibiting the taking of materials out of a letter box, I looked back at 18 United States Code 1702 and 1708, which both refer to the taking of a letter from an authorized receptacle without regard to whether that letter was sent through the mail.

So, according to the terms of these statutes, it would appear that even appellees’ materials once placed in a letter box would then, if they had placed postage on them, would then be protected by these federal statutes, and so they would in effect–

Potter Stewart:

Is the word “letter” defined as something with postage on it?

An envelope with a stamp on it?

Edwin S. Kneedler:

–These criminal statutes do not contain… they just refer to… well, “letter” is among several.

Edwin S. Kneedler:

They prefer to “parcel” and other–

Potter Stewart:

They don’t differentiate between something that was carried in first class mail and something carried third or fourth.

Edwin S. Kneedler:

–It just says,

“letter, postal card, or package. “

without qualification.

But also, with respect to the argument based on the private express statutes, 18 United States Code 1694 and 1696, I think it’s important to keep in mind that Section 1725, which was involved here, was enacted against the background of private utility companies who were relying on the private express statutes to carry or transmit their own materials outside of the mail.

And yet Congress enacted this statute to prohibit those companies from using a facility of the mail, in this case, the letter box, to effectuate the delivery of the materials they had carried.

So, as a matter of statutory construction, there’s, I think, simply no room for the argument that letters that are delivered to a home under the private express statutes are somehow exempt from the prohibition of 1725.

That would be directly contrary–

Potter Stewart:

Well, that question hasn’t been briefed and is brought up here for the first time in oral argument.

It was never considered by the district court or the court of appeals.

Edwin S. Kneedler:

–Mr. Justice Stewart, that was Footnote 4 on page 31a of our jurisdictional statement, and there the district court did reject those arguments.

Now, this was in the district court’s first opinion before the case was appealed to the court of appeals.

One last point I would like to make is that our argument regarding the validity of the statute does not depend on factual showings in the district court regarding the adequacy of alternatives.

In fact, we believe the district court properly dismissed the complaint the first time around.

And that is because the effectiveness of the alternative means of delivery that appellees have is totally unaffected by the presence or absence of a mailbox.

Congress is not obligated by the First Amendment to provide a postal service or mailboxes and in the absence, if Congress declined to do so, there could be no First Amendment argument that Congress was somehow required to furnish postal boxes for the delivery of mail.

And since the mere placement of a postal box on a residence does not change the effectiveness of the available alternatives.

I see my time has expired.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.