Blount v. Rizzi/Opinion of the Court

No. 55 (hereafter Mail Box) draws into question the constitutionality of 39 U.S.C. § 4006 (now 39 U.S.C. § 3006, Postal Reorganization Act, #fn-s-s-s 84 Stat. 747), under

39 U.S.C. § 4006 provides in pertinent part:

'Upon evidence satisfactory to the Postmaster General that a     person is obtaining or attempting to obtain remittances of      money or property of any kind through the mail for an obscene      *  *  * matter *  *  *, or is depositing or causing to be      deposited in the United States mail information as to where,      how, or from whom the same may be obtained, the Postmaster      General may-

'(1) direct postmasters at the office at which registered     letters or other letters or mail arrive, addressed to such a      person or to his representative, to return the registered      letters or other letters or mail to the sender marked      'Unlawful'; and

'(2) forbid the payment by a postmaster to such a person or     his representative of any money order or postal note drawn to      the order of either and provide for the return to the      remitters of the sums named in the money orders or postal      notes.'

Proceedings under § 4006 are conducted according to departmental regulations. A proceeding is begun by the General Counsel of the Post Office Department by written complaint and notice of hearing. 39 CFR §§ 952.5, 952.7, 952.8. The Judicial Officer of the Department holds a trial-type hearing at which a full record is transcribed. He renders an opinion which includes findings of fact and a statement of reasons. 39 CFR §§ 952.9-952.25. The decision is to 'be rendered with all due speed,' 39 CFR § 952.24(a), and there is an administrative appeal. 39 CFR § 952.25. No § 4006 order may issue against the defendant until completion of the administrative proceeding. If, however, the Postmaster General wishes to detain the defendant's incoming mail before the termination of the § 4006 proceedings, he may apply to the United States District Court for the district in which the defendant resides, under 39 U.S.C. § 4007, which in pertinent part provides:

'In preparation for or during the pendency of proceedings     under  (§ 4006) of this title, the United States district court in the district in which the defendant      receives his mail shall, upon application therefor by the      Postmaster General and upon a showing of probable cause to      believe the statute is being violated, enter a temporary      restraining order and preliminary injunction pursuant to rule      65 of the Federal Rules of Civil Procedure directing the      detention of the defendant's incoming mail by the postmaster      pending the conclusion of the statutory proceedings and any      appeal therefrom. The district court may provide in the order     that the detained mail be open to examination by the      defendant and such mail be delivered as is clearly not      connected with alleged unlawful activity. An action taken by     a court hereunder does not affect or determine any fact at      issue in the statutory proceedings.'

In Mail Box, the Postmaster General began administrative proceedings under § 4006 on November 1, 1968. The administrative hearing was concluded December 5, 1968. The Judicial Officer filed his decision December 31, 1968, finding that the specified magazines were obscene and, therefore, entered a § 4006 order-61 days after the complaint was filed. Mail Box filed a complaint in the United States District Court for the Central District of California seeking a declaratory judgment that § 4006 was unconstitutional and an injunction against enforcement of the administrative order. A three-judge court was convened and held that 39 U.S.C. § 4006 'is unconstitutional on its face, because it fails to meet the requirements of Freedman v. Maryland (1965) 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649.' 305 F.Supp. 634, 635 (1969). The court, therefore, vacated the administrative order, directed the delivery 'forthwith' of all mail addressed to Mail Box, and enjoined any proceedings to enforce § 4006.

In Book Bin, the Postmaster General applied to the District Court for the Northern District of Georgia for a § 4007 order pending the completion of § 4006 proceedings against Book Bin. Book Bin counterclaimed, asserted that both §§ 4006 and 4007 were unconstitutional and that their enforcement should be enjoined. A three-judge court was convened and held both sections unconstitutional. It agreed with the three-judge court in Mail Box that the procedures of § 4006 were fatally deficient under Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and also held that the finding under § 4007 merely of 'probable cause' to believe material was obscene was not a constitutionally sufficient standard to support a temporary mail detention order. 306 F.Supp. 1023 (1969).

We noted probable jurisdiction of the Government's appeals. 397 U.S. 959, 960, 90 S.Ct. 990, 991, 25 L.Ed.2d 252 (1970). We affirm the judgment in each case.

Our discussion appropriately begins with Mr. Justice Holmes' frequently quoted admonition that, 'The United Sttaes may give up the Post Office when it sees fit, but while it carries it on the ues of the mails is almost as much a part of free speech as the right to use our tongues * *  * .' United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437, 41 S.Ct. 352, 363, 65 L.Ed. 704 (1921) (dissenting opinion); see also Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965). Since § 4006 on its face, and § 4007 as applied, are procedures designed to deny use of the mails to commercial distributors of obscene literature, those procedures violate the First Amendment unless they include built-in safeguards against curtailment of constitutionally protected expression, for Government 'is not free to adopt whatever procedures it pleases for dealing with obscenity * *  * without regard to the possible consequences for constitutionally protected speech.' Marcus v. Search Warrant, 367 U.S. 717, 731, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127 (1961). Rather, the First Amendment requires that procedures be incorporated that 'ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. * *  * Our insistence that regulations of obscenity scrupulously embody the most rigorous procedural safeguards *  *  * is *  *  * but a special instance of the large principle that the freedoms of expression must be ringed about with adequate bulwarks. * *  * ' Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 637, 9 L.Ed.2d 584 (1963). Since we have recognized that 'the line between speech unconditionally guaranteed and speech which may legitimately be regulated * *  * is finely drawn. * *  * (t)he separation of legitimate from illegitimate speech calls for *  *  * sensitive tools *  *  * .' Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958).

The procedure established by § 4006 and the implementing regulations omit those 'sensitive tools' essential to satisfy the requirements of the First Amendment. The three-judge courts correctly held in these cases that our decision in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734 (1965) compels this conclusion. We there considered the constitutionality of a motion picture censorship procedure administered by a State Board of Censors. We held that to avoid constitutional infirmity a scheme of administrative censorship must: place the burdens of initiating judicial review and of proving that the material is unprotected expression on the censor; require 'prompt judicial review'-a final judicial determination on the merits within a specified, brief period-to prevent the administrative decision of the censor from achieving an effect of finality; and limit to preservation of the status quo for the shortest, fixed period compatible with sound judicial resolution, any restraint imposed in advance of the final judicial determination. 380 U.S., at 58-60, 85 S.Ct., at a 738 740.

These safeguards are lacking in the administrative censorship scheme created by §§ 4006, 4007, and the regulations.

The scheme has no statutory provision requiring governmentally initiated judicial participation in the procedure which bars the magazines from the mails, or even any provision assuring prompt judicial review. The scheme does differ from the Maryland scheme involved in Freedman in that under the Maryland scheme the motion picture could not be exhibited pending conclusion of the administrative hearing, whereas under § 4006 the order to return mail or to refuse to pay money orders is not imposed until there has been an administrative determination that the magazines are obscene. This, however, does not redress the fatal flaw of the procedure in failing to require that the Postmaster General seek to obtain a prompt judicial determination of the obscenity of the material; rather, once the administrative proceedings disapprove the magazines the distributor 'must assume the burden of instituting judicial proceedings and of persuading the courts that the * *  * (magazines are) protected expression.' 380 U.S., at 59-60, 85 S.Ct., at 739. The First Amendment demands that the Government must assume this burden. 'The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.' 380 U.S., at 58, 85 S.Ct. at 739.

Moreover, once a § 4006 administrative order has been entered against the distributor, there being no provision for judicial review, the Postmaster may stamp as 'Unlawful' and immediately return to the sender orders for purchase of the magazines addressed to the distributor, and prohibit the payment of postal money orders to him. Such a scheme 'presents peculiar dangers to constitutionally protected speech. * *  * Because the censor's business is to censor, there inheres the danger that he may well be less responsive than a court-part of an independent branch of government-to the constitutionally protected interests in free expression. And if it is made unduly onerous, by reason of delay or otherwise, to seek judicial review, the censor's determination may in practice be final.' 380 U.S., at 57 58, 85 S.Ct., at 738. Appellants suggest that we avoid the constitutional question raised by the failure of § 4006 to provide that the Government seek a prompt judicial determination by construing that section to deny the administrative order any effect whatever, if judicial review is sought by the distributor, until the completion of that review. Apart from the fact that this suggestion neither requires that the appellants initiate judicial proceedings, nor provides for a prompt judicial determination, it is for Congress, not this Court, to rewrite the statute.

The authority of the Postmaster General under § 4007 to apply to a district court for an order directing the detention of the distributor's incoming mail pending the conclusion of the § 4006 administrative proceedings and any appeal therefrom plainly does not remedy the defects in § 4006. That section does not provide a prompt proceeding for a judicial adjudication of the challenged obscenity of the magazine. First, it is entirely discretionary with the Attorney General whether to institute a § 4007 action and, therefore, the section does not satisfy the requirement that the appellants assume the burden of seeking a judicial determination of the alleged obscenity of the magazines. Second, the district court is required to grant the relief sought by the Postmaster General upon a showing merely of 'probable cause' to believe § 4006 is being violated. We agree with the three-judge court in Book Bin that to satisfy the demand of the First Amendment 'it is vital that prompt judicial review on the issue of obscenity-rather than merely probable cause-be assured on the Government's initiative before the severe restrictions in §§ 4006, 4007, are invoked.' 306 F.Supp., at 1028. Indeed, the statute expressly provides that, 'An action taken by a court hereunder does not affect or determine any fact at issue in the statutory proceedings.'

Moreover, § 4007 does not in any event itself meet the requisites of the First Amendment. Any order issued by the district court remains in effect 'pending the conclusion of the statutory proceedings and any appeal therefrom.' Thus, the statute not only fails to provide that the district court should make a final judicial determination of the question of obscenity, expressly giving that authority to the Judicial Officer, but it fails to provide that '(a)ny restraint imposed in advance of a final judicial determination on the merits must * *  * be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution.' 380 U.S., at 59, 85 S.Ct., at 739.

The appellees here not only were not afforded 'prompt judicial review' but they 'can only get full judicial review on the question of obscenity-by which the Postmaster would be actually bound-after lengthy administrative proceedings, and then only by (their) own initiative. During the interim, the prolonged threat of an adverse administrat(ive) decision in § 4006 or the reality of a sweeping § 4007 order, will have a severe restriction on the exercise of (appellees') First Amendment rights-all without a final judicial determination of obscenity.' 306 F.Supp., at 1028.

The judgments of the three-judge courts in Nos. 55 and 58 are affirmed.

Affirmed.