# Record and brief — Athena Products, Ltd. v. United States Postal Service > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1031%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1982 - **Citation:** 456 U.S. 915 ## Text WOE 81-1254 [spr om No. OGG 32 198) Supreme Court of the United [states Lk. Stevag CLEP | October Term—1981 ATHENA PRODUCTS, LTD.., Petitioner, vs. UNITED STATES POSTAL SERVICE, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Attorneys for Petitioner: Tom B. Benham, Counsel of Record Janie F. Duncan BENHAM & COHEN, P.C. Suite 210 6600 Powers Ferry Road, N.W. Atlanta, Georgia 30339 (404) 955-1118 Copy Center Law Printers, Atlanta, Ga. Phone 261-5273 I. Questions Presented The United States Postal Service brought this action against Petitioner corporation, pursuant to 39 U.S.C. §3005 and §3007, alleging that Petitioner had solicited monies through the mails by means of false representations in its advertising of fifteen designated products. Section 3005 prohibits solicitation of monies through the mails by means of false representations and authorizes detention of all mail sent to a person who violates this statute. Section 3007 authorizes a federal district court, upon a probable cause showing that §3005 is being violated, to issue a preliminary injunction detaining all of the alleged offender’s mail pending conclusion of §3005 administrative proceedings. The questions thereby arising are: (1) Whether 39 U.S.C. §3907 violates the First Amendment mandate that restraints of speech must be narrowly drawn and not in excess of that necessary for the Government to achieve its objective because: (a) it authorizes detention and examination of all of adefen- dant’s mail, pending conclusion of administrative pro- ceedings; (b) detention and examination of all mail occurs even if the challenged representations are removed from the adver- tising; (c) no time limits are provided for termination of detention of mail and completion of the administrative pro- ceedings; (d) detention and examination of mail may be imposed upon a showing @7 probable cause and without any showing of intent to deceive; (e) said restraints pose a serious threat of ruining a defen- dent’s business prior to any adjudication on the merits; (f) Congress had available to it the less restricive alternative of simply prohibiting a defendant from making the representations alleged to be false. (2) Whether said First Amendment mandate was likewise violated by the preliminary injunction issued against the Petitioner for a period of one hundred twenty days, subject - to extension, which fully implemented the §3007 restraints described above. (3) Whether said First Amendment mandate is violated by 39 U.S.C. §3005, which imposes identical restraints to §3007, except that (a) restraints are imposed after an administrative hearing on the merits; and (b) the restraints are permanently imposed. (4) Whether §3007 fails to provide adequate procedural safeguards as the restraints, described above, can be imposed for an indefinite period upon only a showing of probable cause. (5) Whether injunctions imposed pursuant to 39 U.S.C. §3005 and §3007 violate the principle that restraints of speech must significantly advance the Government’s objective in that said injunctions fail to prohibit the continuation of advertising alleged to be false, though the purpose of the injunctions is to protect the public from false representations. (6) Whether the Court of Appeals erred in holding that the First Amendment does not bar the Government from imposing excessive prior or subsequent restraints on commercial speech until such time as a defendant proves that its speech is truthful. TABLE OF CONTENTS RR 6 kd ccccccaccencsecisceseses co as acne susuckcasenbeucunesee bet Ns cc cdwavenessewsudedeseueess DE ccacucudasadasancanpscebacnseeseee Constitutional Provisions and Statues Involved .... ee oe ee esteebanebaenwenee Reasons Why Certiorari Should Be Granted ....... A. 39 U.S.C. §3005, §3007 and the preliminary injunction impose Draconian restraints which violate First and Fifth ED hn a6 on ccckdvccucsccscecss 1. Impact and constitutionality of §3007 and the preliminary injunction ............ (a) Restraints of speech must be EDs ccccesetebeudeeescas (b) Restraints of speech must advance the Government’s purpose ............ (c) Lackc procedural safegards.......... 2. Theconstitutionality of §3005............. B. The Court of Appeals ruling contravenes four principles established by this Court and is in conflict with the decisions of other federal courts of Appeals ...........eseeeee0s C. The Court of Appeals misinterpreted i ns cpu kee ueebeone D. Petitioner’s constitutional challenge raises specific issues in the realm of commercial speech which this Court has ED 6.6.0 cadet ecdvcovehasteestbecces Vill. XI. i U.S cake les teeseue been edocs ees 23 DT DeGdecuveccscetbecuverveseeusb ewes Al Opinion of the Fifth Circuit Court of Appeals REE ge Ce gr ne eee eee Peer Bl Opinion of the Federai District Court of the Nor- thern District of Georgia i Tre cou see ie de dade sues ouee ee es Cl Notice of Denial of Petition for Rehearing ES cebu ven iad cas een web buerweneeene ss D1 39 U.S.C. §3005 iv Ii. Authorities Page Bates v. State Bar of Arizona, err 8, 17, 19, 20, 22 Beneficial Corp. v. FTC, 542 F. 2d 611 (3rd Cir. 1976)..... 8,19 Blount v. Rizzi, 400 U.S. 410 (1971)... .............. 9, 14, 16 Carroll v. Pres. and Comm’r of Princess Anne, 393 UB. 576 GOED. «co ccvcocvececcsccesscesonntuannneul 8, 19 Central Hudson Gas and Electric Corp. v. Public Serv- ice Comm’n, 447 U.S. 557 (1980). . . .6, 8, 14, 15, 19, 20, 21, 22 Consolidated Edison v. Public Service Comm’n, 447 ES fo Pre 8, 19 Deberry v. City of LaGrange, 62 Ga. App. 74, 8 S.E. rn YL ee ee 13 Donaldson v. Read, 333 U.S. 178 (1948).............. 8, 16, 20 E.F. Drew v. FTC, 235 F. 2d 735 (2d Cir. 1956)........... 8, 20 Encyclopedia Brittanica v. FTC, 605 F. 2d 964 (7th < So Pre 8, 19 Ex Parte Jackson, 96 U.S. 727 (1877). ........-.eceeecees 13 First Nat’! Bank of Boston v. Bellotti, 435 U.S. 765 CEBU. c cc cccccccsccscoscesscsconsenenenuueneee 8, 12, 19 Freedman v. Maryland, 380 U.S. 51 (1965)............. 14, 15 Friedman v. Rogers, 440 U.S. 1 (1979}.............. 20, 21, 22 FTC v. Mary Carter Paint Co., 382 U.S. 46(1965)....... 10, 18 FTC v. Standard Education Society, SER UB. BEB GG oc vc cccccsccscesceeccensenenane 18 Fuentes v. Shevin, 407 U.S. 67 (1972)... ........... eee eeee 14 Fusari v. Steinberg, 419 U.S. 379 (1975)... 2.2... . cece eens 13 Gelb v. FTC, 144 F. 2d 580 (2d Cir. 1944)............ 10, 17, 18 Grove Press, Inc. v. City of Philadelphia, 418 F. 2d 82 of. S eepeyerrrey Peper ee 17 Hiett v. United States, 415 F. 2d 664 (Sth Cir. 1969)......... 16 Lamont v. Postmaster Gen’l, 381 U.S. 301 (1965)........... 19 Liggett Co. v. Baldridge, 278 U.S. 105 (1958). .............. 13 Lynch v. Blount, 330 F. Supp. 689(S.D. N.Y. 1971)...... 10, 15 Matthews v. Eldridge, 424 U.S. 319(1975).............0065 13 Memphis Light, Gas and Water Div. v. Croft, 436 = rr ene 13 Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974). ........ 13,14 Moore v. City of Cleveland 431 U.S. 494(1977)............. 12 Nat’! Comm’n on Egg Nutrition v. FTC, 570 F.2d 157 cide se ce enacuneeesaweenseersees 8, 10, 19 Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978)..... 20, 21 Pierce v. Society of Sisters, 268 U.S. §10(1925)............. 13 Pittsburgh Press Co. v. Human Relations Comm’n, cdnccckouéencoeceeseeseeed 8, 17, 19, 20 Public Clearing House v. Coyne, 194 U.S. 497 (1904)........ 16 Reilly v. Pinkus, 338 U.S. 269 (1949)... 00... ce eee eee 10 Ro eden v. Kentucky, 413 U.S. 496 (1973)... 2.2.00... cee ee 17 Schad v. Borough of Mt. Ephrain, _.. . * U.S. _ i een eeerecedbaneseseednune 12 Shelton v. Tucker, 364 U.S. 479 (1960)... .. 2.2.6... 6005. 8,19 Speiser v. Randall, 357 U.S. 513 (1959)... . 0... cece 17 Standard Oil Corp. of Cal. v. FTC, 577 F. 2d 653 (9th die et eee ekeehdeseetioceeee se 10, 17, 18 Thomas v. Collins, 323 U.S. 516(1945)... 2... 6 eee eee 19 TWA, Inc. v. FTC, 594 F. 2d 212 (9th Cir. 1979). ........... 21 United States v. Book Bin, 306 F. Supp. 1023 (N.D. SR aS RE er eee 9, 10 United States v. Outpost Dev. Corp., 369 F. Supp. 399 a inn en aun eeekgneoebescoesoecs 15 United States v. Van Leeuwen, 397 U.S. 249(1970).......... 13 Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976)... . 2.6.0.6 6c ee eee 15, 16, 20, 21 Warner Lambert Co. v. FTC, 562 F. 2d 749 ene ccekeee gene eeereseoeesoeeus 8,19 Constitutional Provisions: Constitution of the United States, PING. oc cc cccccccccces 2, 6, 8, 9, 13, 17, 19, 21, 22 Constitution of the United States, ee bed cc ecu geensoeeese cee s 2, 9, 13 Constitution of the United States, EES Ee ee 2 vi Page Statutes: BP CBG BER, Dic c ccccccccsccccccccccccscosccccess 11 SE MA. « cedechecesoneensecseeseeeubeuses 11 ee ee Se SPE c ccccccccccsccccoccsWescccscceces 6 Fics CS 0c cecccccczcncces 3, 4, 6, 7, 10, 11, 15, 16, 18 39 U.S.C. §3007........ 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 vii IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1981 NO. ATHENA PRODUCTS, LTD., Petitioner v. UNITED STATES POSTAL SERVICE PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Petitioner, Athena Products, Ltd., prays that a writ of certiorari issue to review the opinion and judgment of the Fifth Circuit Court of Appeals rendered in these proceedings on August 27, 1981. Ill. Opinions '~volved The opinion of the Court of Appeals, which is reported at 654 F.2d 362, appears in Appendix A, infra, p. A-1. The opinion of the District Court is unreported and appears at Appendix B, in- tra, p. B-1. The Court of Appeals affirmed the judgment of the District Court. A petition for rehearing to the Couit of Appeals was denied without opinion. A copy of the notice of denial ap- pears in Appendix C, infra, p. C-1. IV. Jurisdiction The judgment of the Court of Appeals was rendered on August 27, 1981. On September 9, 1981, the time for filing the petition for rehearing was extended through September 14, 1981. On this latter date a petition for rehearing was filed. On October 8, 1981, said petition was denied. This petition for cer- tiorari was filed less than ninety days from the latter date. The jurisdiction of this Court is invoked under 28 U.S.C. §1254(1). V. Constitutional Provisions and Statutes Involved A. The Constitution of the United States, Amendment One, ‘**Congress shall make no law. .abridging the freedom of speech...” B. The Constitution of the United States, Amendment Four, **The right of the people to be secure in their persons, houses, papers and effects against unreasonable sear- ches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” C. The Constitution of the United States, Amendment Five, **No person shall. ..be deprived of life, liberty or pro- perty, without due process of law...”’ D. 39 U.S.C. §3005, See Appendix D. E. 39 U.S.C. §3007, (a) In preparation for or during the pendency of pro- ceedings under sections 3005 and 3006 of this title, the United States district court in the district in which the defendant receives his mail shall, upon application therefor by the Postal Service and upon a showing of probable cause to believe either section is being violated, enter a temporary restraining order and preliminary in- junction pursuant to rule 65 of the Federal Rules of Civil Procedure directing the detention of the defendant’s in- coming 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 de- tained mail be open to examination by the defendant and such mail be delivered as is clearly not connected with the alleged unlawful activity. An action taken by a court hereunder does not affect or determine any fact at issue in the statutory proceedings. (b) This section does not aply to mail addressed to publishers of newspapers and other periodical publica- tions entitled to a periodical publication rate or to mail address to the agents of those publishers.” VI. Statement of Facts Petitioner, Athena Products, Ltd. (hereinafter ‘‘Athena’’) sells nutritional supplements and other related products through the mail. It also publishes Soma, a bi-monthly magazine which provides information on health and nutrition. The magazine has approximately 50,000 paid subscribers. Athena sells its products almost exclusively through advertisements in Soma magazine. Athena has been in business since 1977, and at the time of this ac- tion employed forty people. The evidence is undisputed that the United States Postal Serv- ice (hereinafter ‘‘USPS’’) has examined each issue of Soma since 1977. The contents of the advertisements in Soma which are in- volved in this suit have been observed by the USPS for years without comment or criticism. It is also undisputed that Athena had previously requested the USPS to notify it of any disatisfac- tion with any advertising so that the harsh consequences of §3005 and §3007 would not occur. The USPS will not provide any advisory opinions prior to publication as to whether or rot an advertisement violates 39 U.S.C. §3005. On February 27, 1981, the USPS filed fifteen administrative complaints against Athena pursuant to 39 U.S.C. §3005. At the same time it filed a complaint in District Court pursuant to 39 U.S.C. §3007, seeking a temporary restraining order and preliminary injunction (pending the completion of the §3005 administrative proceeding) to detain Athena’s mail. Section 3005 prohibits the solicitation of monies or remittances through the mail by means of false representations and authorizes detention of all mail sent to a person who violates the statute, subject to the latter’s right to survey the mail before the postmaster returns the mail to the sender. Section 3007 authorizes a federal district court, upon a showing of probable cause that §3005 is being violated, to issue a temporary restraining order and preliminary injunction detaining all mail of the alleged offender pending con- clusion of the §3005 administrative proceeding. The Court may allow the alleged offender to remove mail unrelated to the allegedly unlawful activity. Athena was given one and one-half hours notice of a tem- porary restraining order hearing on Friday, February 27, 1981, at 3:00 P.M. The case was then set down for a preliminary injunc- tion hearing on March 12, 198i, thirteen days after the date of the filing of the complaint, which thirteen-day period included only eight weekdays. Athena moved for a continuance in order to have additional time to prepare in light of the fact that the evidence showed the USPS had been preparing its case for at least ten months without notice to Athena of the pendency of the proceeding and in light of the fact that the suit involved fifteen products and hundreds of pages of pleadings. The continuance was not granted. At the request of the USPS, the Court ordered that Athena submit affidavits of any expert witness which it might use in the case within nine days of February 27, 1981, and five affidavits of this nature were filed within the specified time period. The af- lidavits were from three medical doctors, one doctor of osteopathy, one Ph.D. in biochemistry, and one writer in the field of health and nutrition. The affidavits attested to the truth of Athena’s advertising claims. In addition to the expert testimony substantiating its claims, Athena presented hundreds of letters received from customers attesting to satisfaction with the fifteen products that were the subject matter of the complaint. The evidence further showed that products sold by Athena are commonly found in drug and health food stores and are available over-the-counter without prescription. The Court concluded that there was no real ques- tion by the USPS as to the safety of Athena’s products. Athena provides all customers with an unconditional money-back re- fund at any time that it is requested. The USPS’s evidence was based solely upon the testimony of three alleged expert witnesses. There was no evidence presented by the USPS of any customer dissatisfaction with either Athena’s products or service. On April 2, 1981, the District Court issued a preliminary in- junction directing the USPS to detain all of Athena’s mail at certain specified addresses, including its street address, pending conclusion of the administrative proceeding but not in excess of one hundred twenty days, subject to Athena’s right to examine and remove mail not related to the fifteen products which com- prised the subject matter of the complaint. The order further directed that all future advertising for the fifteen products must solicit orders to the addresses where the mail was being detained by the USPS, so that all future orders from any advertising for the fifteen products would be detained. The injunction, in ef- fect, restrained Athena from all advertising of the fifteen pro- ducts even if it removed ‘he challenged representations from its advertising. The District Court order also prevented Athena from receiving orders for any other products sold by Athena if such an order contained a request for one of the fifteen pro- ducts. The preliminary injunction had the following effects upon Athena: (1) Athena was put out of business for one hundred twenty days as the products involved in this lawsuit constitute ninety percent of the company’s sales. (2) Athena was prohibited from advertising in an un- disputedly truthful manner for one hundred twenty days as all advertising had to solicit remittances for the fif- teen products to addresses where the mail would be de- tained and unanswered. (3) Athena had no opportunity to communicate with those customers whose mail was detained. (4) Athena was prevented from receiving any reorders for products, even though they resulted from (a) a satisfied customer who wished to continue receiving the product, or (b) a customer who placed an order as a result of a non-offending advertisement. (5) Athena was prevented from receiving orders for pro- ducts not related to the lawsuit if the commonly used order blank contained an order for one of the fifteen products. (6) All mail addressed to Athena was subject to examina- tion by USPS employees. (7) An affirmative obligation was placed upon Athena to convince USPS employees that Athena was entitled to mail not related to the fifteen products. Petitioner appealed the ruling and on April 10, 1981, an ex- pedited appeal was granted. The Court of Appeals had jurisdic- tion pursuant to 28 U.S.C. §1292(1). Petitioner’s chief argument on appeal was that §3005, §3007, and the preliminary injunction violated the First Amendment mandate that restraints of speech must be narrowly drawn and not in excess of that necessary to achieve the Government’s ob- jective. The Court of Appeals summarily disposed of this issue by stating, **In Central Hudson Gas, the court stated that whether a governmental regulation is more extensive than necessary only becomes relevant once it has been determined that speech is not misleading.’’ See p. 368. Second, Athena argued that the statutes and the injunction violated the First Amendment mandate that restraints of speech must significantly advance the Government’s purpose. The Court of Appeals did not address this issue. Third, Athena challenged the constitutionality of the District Court order which, in effect, prohibited Athena from advertis- ing in a manner that was undisputedly truthful. The Court of Appeals recognized the effect of the District Court order by stating, **While no direct prohibition on speech is involved, Athena is obvicusly deterred from advertising products for which it cannot fill orders.’’ See p.g 365. The Court of Appeals did not address this issue further. Fourth, Athena argued that §3007 did not provide adequate procedural safeguards. The Court of Appeals rejected this con- tention on two grounds. First, the Court found that the one hundred twenty day limitation assured Athena of a ‘‘speedy’”’ resolution on the merits. In fact, however, the injunction was continued by the District Court when a decision had not been received in one hundred twenty days. Second, the Court found that, ‘*Despite the fact that the court assessed the evidence against a standard of probable cause, the hearing afforded in this case minimized the risk of an erroneous depriva- tion***.”’ p. 368. It should be further noted that in Footnote 7 of the Court of Appeals’ decision, the Court stated, ‘*Precisely what constitutes a showing of probable cause under §3007 is unclear.”’ p.368. A motion for rehearing was filed by Athena, as well as a mo- tion for rehearing en banc. Both motions were denied. VII. Reasons Why Certiorari Should Be Granted A. 39 U.S.C. §3005, §3007, and the Preliminary Injunction Im- pose Draconian Restraints Which Violate First and Fifth Amendment Rights. Certiorari should be granted to consider the constitu- tionality of the 39 U.S.C. §3005, §3007, and the preliminary injunction issued in the case at bar, as these statutes and the injunction impose Draconian restraints which infringe upon First and Fourth Amendment rights, as well as unnecessarily threaten the ruin of a business. This occurs regardless of the alleged offender’s good faith or lack of intent to deceive, and despite the vagueness of the legal concept of ‘‘deception.”’ Under §3007, these sanctions are imposed merely upon a showing of probable cause, which, according to the decision of the Court of Appeals, is an unclear standard. 1. IMPACT OF AND CONSTITUTIONALITY OF §3007 AND THE PRELIMINARY INJUNCTION. a. Restraints of speech must be narrowly drawn. This Court has repeatedly held that restraints of speech must be narrowly drawn, not in excess of that necessary for the Government to achieve its objec- tive, and cannot be sustained if the Government ob- jective can be achieved by less restrictive means. Shelton v. Tucker, 364 U.S. 479 (1960); Carroll v. Pres. and Comm’r of Princess Ann, 393 U.S. 175 (1968). This fundamental principle has been applied to commercial speech, Central Hudson Gas and Elec- tric Corp.,, 447 U.S. 557, 565 (1980); Consolidated Edison v. Public Service Comm’n, 447 U.S. 530, 541(1980); First Nat’! Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978); Bates v. State Bar of Arizona, 433 U.S. 359, 375 (1977); though the speech was without First Amendment protection by reason that it promoted an illegal activity, Pittsburgh Press Co. v. Pittsburgh Human Relations Comin., 413 U.S. 376, 390 (1973), or constituted false and misleading advertising, Warner-Lamben Co. v. FTC, 562 F.2d 749 (D.C. Cir. 1977); Beneficial Corp. v. FTC, 442 F.2d 611 (3d Cir. 1976); Nat’) Comm’n on Ege Nutri- tion v. FTC, 570 F.2d 157 (7th Cir. 1977); En- cyclopedia Brittanica v. FTC, 605 F.2d 964 (7th Cir. 1979). See also Donaldson v. Read, 333 U.S. 178, 183 (1948); E.F. Drew v. FTC, 235 F.2d 735, 747 (2d Cir. 1956). ' In Bates, supra, this Court held that the state in- volved could have achieved its objective of protecting the public from any potential deception, which might result from advertising by attorneys, by means less drastic than barring all advertising. In Pittsburgh Press, supra, this Court sustained an order of a municipal agency prohibiting a newspaper from publishing job advertisements in sex-designated col- umns. Though Pittsburgh was decided before this Court expressly extended First Amendment protec- tion to commercial speech, and the speech restrained promoted an illegal activity, i.e., sex discrimination in employment; nevertheless, in sustaining the order this Court noted, ‘‘The order is clear and sweeps no more broadly than necessary.’’ 413 U.S. at 390. Petitioner submits that §3007 and the preliminary injunction, which fully implements the statute, sweep ‘‘more broadly than necessary’’ and thereby un- necessarily invade First and Fourth Amendment rights and threaten the ruin of a business. First , §3007 authorizes detention of all of a defen- dent’s mail. Thus, communications clearly protected by the First Amendment, e.g., letters from a defen- dant’s attorney, as well as those connected with the allegedly false speech, are examined and detained. Though a defendant ‘‘may’’ be authorized to inspect and remove mail unrelated to the allegedly illegal ac- tivity, this imposes an onerous burden since a §3007 order may last over a year, and the needs of a business may require checking the mail on a daily basis or more often. The burden becomes even more onerous if a dispute arises as to whether a com- munication is connected to the allegedly false speech, and a defendant must then ‘‘demonstrate its noncon- nection’’ to the satisfaction of the local postmaster. United States v. Book Bin, 306 F.Supp. 1023 (N.D. Ga. 1969), aff’d Blount v. Rizzi, 400 U.S. 410(1971). Further, a defendant is not necessarily allowed the right to examine its mail, as the statute does not re- quire the District Court to allow such examination. Second, §3007 permits or, 25 in the case at bar, has been interpreted to permit, he holding of all mail related to the product, which is the subject of alleged- ly false advertising, pending completion of ad- ministrative proceedings. Thus, even if a defendant eliminates allegedly false representations from its advertising, mail related to that product will never- theless be detained. A defendant is not going to adver- tise a product if it cannot receive orders for it. Hence, a §3007 ader suppresses totally truthful advertising, as well as allegedly false advertising. Third, a §3007 order remains in force pending con- clusion of §3005 proceedings. However, no time limits are provided within which such proceedings must be completed. See, e.g., United States v. Book Bin, supra. \n fact, the evidence in the within case showed that administrative proceedings have lasted more than eighteen months. Thus, a §3007 order may be imposed for an inordinate length of time. Fourth, the line between truthful and false speech is not always clear. Whether or not advertising is deceptive is an issue upon which courts, regulatory agencies and businesses frequently disagree. See, e.g., FTC v. Mary Carter Paint Co., 382 U.S. 46 (1965); Gelb v. FTC, 144 F.2d 580 (2d Cir. 1944); Nat’l Comm’n on Egg Nutrition v. FTC, 570 F.2d 157 (7th Cir. 1977); Standard Oil Corp. of Cel. v. FTC, 577 F.2d 653 (9th Cir. 1978). Originally §3005 and §3007 applied only to actual fraud, Reilly v. Pinkus, 338 U.S. 269 (1949), which helps explain the harshness of the scheme. Now the Government does not have to prove an intent to deceive to obtain a §3007 order. Lynch v. Blount, 330 F.Supp. 689 (S.D. N.Y. 1971), aff’d 404 U.S. 1007 (1972). Thus, an order may issue though the representation challenged was made in good faith. Moreover, since a §3007 order detains and interferes with all of a defendent’s mail, §3007 poses a substantial and recognized threat of ruining a defendant’s business, Reilly v. Pinkus, supra, particularly if that business is small and dependent on mail orders. Thus, an order may issue under §3007 which results in the ru'n of a business although the representations were the result of mistake, ignorance, or simply because a business took a position as to the falsity of a representation contrary to that of the employees of a government agency. Fifth, a businessman may not risk publishing an advertisement which he believes to be truthful for fear that the Government has taken or will take a 10 contrary position, particularly if it involves a con- troversial issue. Thus, a business is not only deprived of advertising, which may be profitable to it and the public, but the Government may decide, even by in- nuendo, what a businessman may Or may not say even if the Government’s position is wrong. Sixth, if a defendant is put out of business, he will have little interest in advertising as to a particular subject even if he still retains the financial ability to do so. Seventh, since a §3007 order issues upon a mere probable cause showing, a business may be ruined even if the defendant subsequently succeeds on the merits. Eighth, mail sent by consumers is detained for a year or more, along with the money paid for the pro- duct, without any explanation to the consumer. The defendant has no way of notifying such consumer, who may feel that his funds have been misap- propriated. Ninth, the action of the USPS creates a violation of 16 C.F.R. §4351, which requires notice of any shipping date delay after thirty days. The excessiveness of §3007 is emphasized by the fact that Congress had available to it the less restric- tive alternative of simply prohibiting a defendant from making the representations alleged to be false. For example, like §3005, the Federal Trade Commis- sion Act, 15 U.S.C. §41, ef seq., is designed to pro- tect the public from false and misleading representa- tions. Under the Act the court may issue a preliminary injunction pending conclusion of ad- ministrative proceedings, 15 U.S.C. §53(a), (b). However, the court is limited to enjoining only the particular advertisement or representation alleged to be false. (b) Restraints on speech must advance the Government’s purpose. Petitioner further submits that §3007 and the preliminary injunction are also unconstitutional for (c) failure to substantially further the Government’s ob- jective. This Court holds that, **fWjhen the government intrudes on one of the liberties protected by the Due Process Clause of the Fourteenth Amendment ‘this Court must ex- amine carefully the importance of the govern- mental interest advanced and the extent to which they are served by the challenged regulation.’ ”’ Schad v. Mt. Ephraim, EUS. 101 S.Ct. 2176, 2184 (1981); Moore v. City of East Cleveland, 431 U.S. 494 (1977). In Bellotti, supra, this Court struck down a statute restraining commercial speech on the grounds that the statute was both underinclusive and overinclusive. Petitioner submits that the statute and the preliminary injunction are similarly defective. On the one hand they unnecessarily suppress wholly truthful speech, permit interference with all of a defendant’s mail, permit preliminary and final detention of mail unrelated to the allegedly unlawful activity, and threaten the ruin of a business. On the other hand they do not prevent a defendant from continuing to make representations alleged to be or found to be false. Thus, if a defendant retains the ability to change his operation or has little invest- ment in it to begin with, i.e., a fly-by-night opera- tion, such defendant could continue making the representations and distribute them through the mails. In fact, the public would be better served by the less drastic alternative of preventing a defendant from making the representations alleged to be false. Lack of procedural safeguards. Petitioner submits that §3007 is unconstitutional for failure to contain adequate procedural safeguards. In determining whether procedural safeguards attendant to a preliminary deprivation suffice under the Due Process Clause, this Court has considered the private interests affected, the risk of erroneous deprivation, the probable value of the substituted safeguards, and the Government’s in- 12 terests, including increased administrative burdens if a substituted procedure was utilized. Matthews v. Eldridge, 424 U.S. 319 (1975). In addition, this Court has considered relevant the length of time of the deprivation, Matthews, supra; Fusari v. Steinberg, 419 U.S. 379 (1975); the presence or absence of subsequent legal remedies, Memphis Light, Gas and Water Div. v. Croft, 436 U.S. 1 (1978); whether the ‘‘temporary”’ deprivation is, in fact, ‘‘uniquely final,’’ Memphis Light, supra; whether a party can receive recompense in the case of wrongful deprivation, Matthews, supra, and whether the issues involve complex questions of evidence or evidence which can be simply documented, Matthews, supra; Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974). In the case at bar, not only are First Amendment interests affected, but Fourth Amendment interests as well. This Court has held since Ex Parte Jackson, 96 U.S. 727 (1877), that examination of the mail by the Government is subject to the warrant require- ment of the Fourth Amendment, United States v. Van Leeuwen, 397 U.S. 249 (1970). Enforcement of §3007 orders inherently involves examination of the contents of mail of the alleged offender in order to separate mail subject to detention from that which may be received. Also affected is the right to carry on a business and solicit customers. This property interest has long been recognized as protected by the Due Process Clause, Pierce v. Society of Sisters, 268 U.S. 510 (1925); Liggett Co. v. Baldridge, 278 U.S. 105 (1928); Deberry v. City of LaGrange, 62 Ga.App. 74, 8 S.E.2d 146 (1940). The restraint imposed under §3007 may last a year or more. The Postal Service is not required to post bond, and it is unlikely a defendant could maintain suit in case of wrongful deprivation. Thus, not only is a defendant’s loss uniquely final as to First’ and Fourth Amendment rights, but also as to the loss of profits and customers as well. Finally, the issues in- 13 volved in §3007 proceedings rarely involve evidence which can be simply documented. At the one end of the Due Process Clause are the minimal due process requirements applied in cases of temporary deprivation of property rights—notice, hearing and showing of probable cause, Mitchell, supra, at 609. This is the standard which Congress has adopted in §3007 proceedings. At the other end of the spectrum is the traditional doctrine of prior restraint as set forth in Freedman v. Maryland, 380 U.S. 51 (1965). This Court has stated on several occasions, without deciding, thai the traditional doctrine of prior restraints may be in- applicable to commercial speech, Central Hudson Gas, supra, p.571, n.13. Petitioner submits that whatever this Court decides on this issue, the safeguards provided by §3007 are insufficient in view of the factors stated above. The Court of Appeals, nevertheless, sustained §3007 on the basis that the order in the case at bar assured a speedy resolution on the merits of the case. Petitioner disagrees with this conclusion. Secondly, the Court of Appeals found, ‘‘despite the fact the court assessed the evidence against a standard of probable cause, the hearing afforded in this case minimized the risk of an erroneous deprivation***.”’ The Court of Appeals, however, ignored what this Court said in Fuentes v. Shevin, 407 U.S. 67, 87 (1972), ** *To one who protests against a taking of his property without due process of law, it is no answer to say that in his particular case due pro- cess of law would have lead to the same result because he had no adequate defense upon the merits.’ ”’ The Petitioner further notes that in Blount v. Rizzi, supra, this Court held 39 U.S.C. §3007, as ap- plied in conjunction with §3006 proceedings (formerly §4007 and §4006), unconstitutional for failure to contain those procedural safeguards, ap- 14 plicable to prior restraints of obscenity, as set forth in Freedman v. Maryland, supra. Section 3006 is identical to §3005 except the former applies to obscenity and the latter to false representations. Since Blount, lower court decisions have sustained §3005 and §3007, in conjunction with §3005 pro- ceedings, on the basis that the Freedman safeguards are inapplicable to false advertising. Lynch v. Blount, supra; United States v. Outpost Dev. Corp., 369 F.Supp. 399 (C.D. Cal. 1973). It is noted that the Fifth Circuit, in the case at bar, purports to join this line of cases despite the fact that Petitioner did not argue that the Freedman safeguards applied to commercial advertising. Furthermore, the issue decided in Lynch has been resurrected by subsequent decisions of this Court. Thus, as previously noted, in Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), and Central Hudson Gas and Electric Corp. v. Public Service Comm’n, supra, this Court held that the traditional doctrine of prior restraints may be inapplicable to commercial speech. 2. THE CONSTITUTIONALITY OF §3005. For the same reasons set forth as to §3007, Petitioner submits that §3005 is likewise unconstitutional for reasons of excessiveness and failure to significantly ad- vance the Government’s interests. There are only two differences between a §3005 and §3007 order. First, the former issues upon a probable cause showing; whereas, the iatter issues after administrative hearings on the merits. Second, a §3007 order lasts until completion of §3005 proceedings. A §3005 order is permanent. Hence, a defendant is forever restrained from receiving orders for a product which has been the subject of false advertis- ing, and is permanently subject to interference with its mail for as long as it uses the addresses designated in a §3005 order. In addition it should be noted that a §3005 order issues without notice of any statutory right of appeal. The 15 result is that all mail which may have been previously held under §3007 is returned to sender before the affected company is afforded the opportunity to take any action for injunctive relief in the District Court. Petitioner further notes that in Donaldson v. Read, 333 U.S. 178 (1948), this Court sustained the constitu- tionality of 39 U.S.C. §3005; however, it does not appear that the issues now raised by Petitioner were addressed in that case. Furthermore, the basis for that decision was the privilege doctrine, i.e., ‘‘the use of the mail is a privilege which ‘Congress * * * may annex such condi- tions * * * as it chooses.’ Public Clearing House v. Coyne, 194 U.S. 497 (1904).”” Hiett v. United States, 415 F.2d 664, 666 (Sth Cir. 1969). As the Court in Hieti recognized, this Court has since ‘‘given the privilege doc- trine the burial it merits.’’ /d. at 668. Thus, inBlount vy. Rizzi, supra, this Court said, . ** *The United States may give up the post office when it sees fit, but while it carries it on, the use of the mails is almost as much a part of free speech as the right to use our tongues * * *.” ”’ In addition, Donaldson was decided before this Court’s decision, in Virginia, supra, extending First Amendment protection to commercial speech, and the order sustained in Donaldson was directed to a scheme or device, i.e., a puzzle contest, rather than a commercial message. Despite these factors, the $3005 order in Donaldson narrowly escaped unconstitutionality only because it was voluntarily revised and narrowed by the Postal Service to detain only that mail specifically related to the contest found to be fraudulent. Not only is such narrowness not present in the case at bar, but the Court of Appeals has deemed it unnecessary. B. the Court of Appeals Ruling Contravenes Four Constitu- tional Principles Established by this Court and is in Conflict With the Decisions of Other Federal Circuit Courts of Ap- peals. Second, certiorari should be granted for reason