The opinion
FAIRCHILD, Chief Judge
(dissenting).
I respectfully dissent.
The entire complaint, omitting formal parts, is as follows:
“Comes now Plaintiff and for cause of action on a Federal question would show:
(1) That on May 14, 1970 Defendant lawfully issued a duly requested Postal Prohibitory Order # 008586 under Public Law 90-206 US Code Sect. 4009(b) on behalf of a legal trade name owned by Plaintiff;
(2) That on or about April 5, 1971, based on claims by the recipient of the Order, Defendant determined that the materials upon which the Order was issued had been ‘solicited’ by the recipient of the materials and on this basis Defendant rescinded such Order;
(3) That the anti-pandering statutes show a conspicuous absence of the word ‘solicited’ as a means by which pornographic mailers could claim immunity from law enforcement;
(4) That the Order was unlawfully rescinded on the basis of ‘solicitation’;
THEREFORE, Plaintiff prays the Court to restore the Order retroactively to April 5, 1971.”
In my opinion the district court accurately identified the issue and correctly disposed of it, as follows:
“Plaintiff’s entire claim rests on the assertion that solicitation is not a ground for refusal to issue a prohibitory order under 39 U.S.C. § 4009 (now § 3008). The Court cannot agree with the plaintiff’s contention but instead follows the reasoning set out in Rowan v. Post Office Dept., 397 U.S. 728 , 90 S.Ct. 1484 , 25 L.Ed.2d 736 (1969):
Section 4009 was a response to public and congressional concern with use of mail facilities to distribute unsolicited advertisements that recipients found to be offensive because of their lewd and salacious character. Such mail was found to be pressed upon minors as well as adults who did not seek and did not want it . .A declared objective of Congress was to protect minors and the privacy of homes from such material and to place the judgment of what constitutes an offensive invasion of those interests in the hands of the addressee.
“To say that § 3008 applied to solicited mail as well as unsolicited mail would be going beyond the purpose intended by Congress and would also be an unreasonable interpretation. To solicit mail is an invitation to have it sent to you, and the receipt of it is not an' invasion of the privacy protected by 39 U.S.C. § 3008 .”
I find it difficult to suppose that Congress intended that one who asks that material be mailed to him can invoke the power of government to forbid future mail communication on the basis that he dislikes what he solicited and received.
Senate Report No. 801 of the Post Office and Civil Service Committee, accompanying the bill which became the Postal Revenue and Salary Act of 1967, said, with reference to this provision:
*147 “The Government should not restrict the right of free speech. At the same time, it should not act as the instrumentality by which unwanted and unsolicited mail matter is forced upon an unwilling citizen. The committee is convinced that no user of the mail has the right to force upon an unwilling recipient the type of mail matter covered by title III and that the U.S. post office is not required to act as the instrumentality by which a mail user, over the objection of the recipient, invades the home and mailbox of a citizen.” U.S. Code Congressional and Administrative News, 90th Congress, First Session, 1967, p. 2295.
The interpretation being followed by the Postmaster General in this case is a reasonable one, and he is the officer charged with the administration of the statute.
There is, of course, no requirement that the material received be obscene, unlawful, or otherwise improper by any objective test, only that the addressee wishes to object. This, it seems to me, is another reason for restrictive rather than expansive interpretation of the addressee’s right to invoke the power of government on the basis of a mailing which he himself requested.