Amicus Curiae Brief — Frank v. Minnesota Newspaper Assn., Inc.

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No. 87-1956

SUPREME COURT OF THE UNITED STATES

October Term 1988

Anth M. Frank,

Postmaster General of the United States,

et al.

Appellants

Minnesota Newspaper Association, Inc.,

Appellee

On appeal from the

United States District Court,

b District of Minnesota

Brief Amicus Curiae -f the

American Civil Liberties Union and

Minnesota Civil Liberties Union

John P. Borger

Counsel of Record

Bruce Jones

FAEGRE & BENSON

2200 Norwest Center

90 S. Seventh Street

Minneapolis, Minnesota 55402

Telephone: 612/336-3000

Of Counsel:

Robert Hicks Steven R. Shapiro

Minnesota Civil American Civi

Liberties Union Liberties Union

1021 West Broadvwa 132 W. 43rd Street

Minneapolis, MN 55411 New York, NY 10036

(612) 522-3894 (212) 944-9800

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hte

Table of Authorities .......

Interest of Amici .....e.-s

Summary of Argument...

Argument . . >. . . > > . . . .

Be This appeal does not

present the court with a

case or controversy for

resolution. .....s.-s

II. Section 1302 has not been

and cannot reasonably be

interpreted as the

Government proposes. .

III. The trial court correctly

held the prize list

prohibition in Section 1302

unconstitutional on its

face. eoeseeeee

Conclusion

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uy es

Cases

Deakins v. Monaghan, 484

U.S. __, - 98 U.Ed.2d 529,

538-39 . . . . . . .

Meyer v. Grant, 108 S.Ct.

1886, 1893-94 . . . . . .

New Jersey State Lottery

Commission v. United States,

491 F.2d 990 (3d Cir. 1974);

vacated and remanded, 420

U.S. 371 (1975)... :

Posadas de Puerto Rico

Associates v. Tourism Co.,

478 U.S. 328 (1986) ....

Rockville Reminder, Inc, v.

United States Postal

Service, 480 F.2d 4,7 a

Cir. 1973) ;

ii.

PAGE

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PAGE

Secretary of State of

467 U.S. 947, 964-65, 81

L.Ed.2d 786, 104 S.Ct. 2839

(1966) « «ese eevee eee 31

United States v.

Munsingwear, Inc., 340 U.S.

Ss §- SS £_ eee 14

United States v. 12 200 Ft,

Rolls of Super 8 mm, Film

Gan wae meee Genes 6 ee eee 22

677 F. Supp. 1400, 1407, 1409. . 12

Statutes

Cl it G Ad t . .

C] . fj * p € 1988,

Pub. L. No. 100-625, 102

Stat . 3205 (1988) . . . . . . . . 3,

Indian Gaming Regulatory

Act, Pub. L. No. 100-497,

102 Stat. 2467 (1988) ...... ..

iii.

18 @.8-Ge §§ 1302 . . . . . . . . 3, 7,

Regulation

Domestic Mail Manual

CC & ) Fear a

39 C.F.R. §§ 111.1 et seq. ... 23

iv.

INTEREST OF THE AMICI?

The American Civil Liberties Union

(ACLU) is a nationwide, non-partisan

organization of more than 250,000

members, dedicated to preserving and

protecting the fundamental rights of

the people of the United States. The

Minnesota Civil Liberties Union (MCLU)

is one of its state affiliates, a

private, non-profit, non-partisan,

membership-supported organization

having approximately 4,000 members in

1 Letters from both parties consenting to the

participation of Amici in this appeal are set

forth in the brief Amicus Curiae of the

Minnesota Civil Liberties Union respecting

jurisdictional statements, previously filed with

this court.

the State of Minnesota. Its purpose is

the protection of the rights and

liberties preserved by the Minnesota

and United States constitutions,

including freedom of speech and of the

press.

SUMMARY OF ARGUMENT

As a threshold matter, the Court

should dismiss this appeal because it

does not present a case or

controversy. Recent congressional

legislation has legalized all the

speech at issue in this case, both

commercial and non-commercial.“

2 See Charity Games Advertising Clarification

Act of 1988, Pub. L. No. 100-625, 102 Stat. 3205

(1988); Indian Gaming Regulatory Act, Pub. L.

No. 100-497, 102 Stat. 2467 (1988).

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Moreover, the parties themselves do not

dispute the very question at issue in

this case, the prohibition in 18 U.S.C.

§ 1302 on the mailing of newspapers

containing “prize lists.” Indeed, the

Government's argument is premised on

the notion that Section 1302 should not

be read to apply to editorials, news

stories, or documentaries about

lotteries. Similarly, MNA‘'s brief to

the Court disavows any interest in the

application of the “prize list”

prohibition beyond the scope of news

and editorials. The appeal therefore

presents no live case or controversy

for the Court to resolve.

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The Court must also reject the

Government's proposed interpretation of

the “prize list” prohibition. The

language of the statute simply will not

sustain the Government's attempts to

narrow it to the Government's view of

permissible restrictions on commercial

speech. What is suggested is not

merely an interpretation of the

statute, but a complete rewriting, a

task better left to Congress.

Moreover, even if the Government's

proposed interpretation were tenable in

the abstract, the Government has not in

practice applied the statute with that

narrow view. The record in this case,

although sparse, clearly demonstrates

attempts by the Postal Service to

influence newspapers’ news and

editorial content pursuant to

Section 1302, in direct contradiction

to the Government's purported position

here. Accordingly, the trial court

correctly ruled that the “prize list”

prohibition on its face impermissibly

restricted non-commercial speech,

regardless of whether such restrictions

on commercial speech would have been

permissible.

In addition, the ACLU agrees with

appellees that the redefinition of the

commercial speech test proposed by the

Government is unsupported by this

Court's past decisions and, if

accepted, would seriously erode

important First Amendment freedoms. We

also agree with the position, advanced

by other amici, that the total ban

embodied in Section 1302 would not be

justified even if this were a

commercial speech case. To avoid

unnecessary repetition, those arguments

have not been repeated here.

I. This appeal does not present

the court with a case or

controversy for resolution.

The Court should dismiss this

appeal on the ground that the appeal no

longer presents a justiciable case or

controversy. Two separate factors

combine to make the mootness of this

=@-

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appeal clear. First, since the

District Court's decision from which

the appeal is taken, Congress has

passed two separate Acts that between

them remove all the prohibitions on

speech complained of in plaintiff's

Original Complaint. Those statutes,

the Charity Games Advertising

Clarification Act of 1988, Pub. L.

No. 100-625, 102 Stat. 3205 (1988), ont

the Indian Gaming Regulatory Act,

Pub. L. No. 100-497, 102 Stat. 2467

(1988), remove the prohibitions of 18

U.S.C. § 1302 on speech relating to

lotteries conducted by not-for-profit

Organizations and Indian tribes

respectively. Second, the MNA‘s

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complaint addresses only speech

concerning such non-profit and tribal

gaming. See Complaint at ¥ ¥ 6-10,

15-18.° All the prohibitions that

were at issue in this case have thus

been removed.

The Court thus has no justiciable

controversy before it. See New Jersey

State Lottery Commission v, United

States, 491 F.2d 219 (3d Cir. 1974),

vacated and remanded, 420 U.S. 371

3 Joint App. at 4-6.

4 The fact the removal of the prohibitions

will not actually take effect until May 7, 1990,

see Pub. L. 100-625, § 5, does not create a

justiciable controversy here. The Minnesota

Newspaper Association states in its brief that

it is willing to wait until the effective date

and will not contest the prohibitions in the

meantime. MNA Brief at 5.

(1975). Although the Government

correctly points out that Section 1302

continues to apply to speech concerning

private, for-profit lotteries, this

appeal does not present that case;

neither the Complaint nor the decision

of the court below raises or addresses

that issue. This case involves (and

has always involved) only speech

concerning non-profit and tribal

lotteries, and, as demonstrated by the

MNA‘s voluntary dismissal of its

cross-appeal concerning the prohibition

on the advertising of such lotteries,

Congress has resolved that issue.

Perhaps even more significantly,

however, the briefs of the respective

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parties demonstrate that the parties

themselves do not disagree about the

result that the Court should reach in

this matter. The Government concedes

here that:

. » »« Section 1302 should

not be read to apply to

other forms of commentary

about lotteries, such as

editorials, news stories,

or documentaries.

Brief of Federal Parties at 30.>

5 Notably, the Government took a considerably

different position in the court below. There

the Government argued

To the extent the

matter excluded from the

mails includes any list of

prizes awarded, and the

court construes this to

include lists contained in

(FOOTNOTE Continued On Next Page)

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Correspondingly, the MNA's brief

withdraws the MNA‘'s objection to the

prize list clause as it relates to

speech other than news stories and

editorials. MNA Brief at 5.

5 (FOOTNOTE Continued From Previous Page)

a news report or in an

editorial, defendants

submit that the

restrictions still survive

scrutiny under the First

Amendment since the

restriction is necessary to

serve compelling state

interests -- namely, the

three interests already

advanced to justify the

statutory scheme under the

Commercial Speech Doctrine

-- and is narrowly drawn to

achieve that end. [citation

omitted]

Defendants’ Memorandum of Law and

Response to the Memoranda Filed in

Support of Plaintiff's Motion for

Summary Judgment at 5.

Accordingly, both parties appear to be

in agreement with the holding of the

District Court:

Accordingly, this court

holds that section 1302

does not authorize the

exclusion from the mails

of newspapers containing

general news reports or

editorial comment

regarding lotteries.

677 F. Supp. 1400, 1409. In short,

despite the nominally adversarial

briefs submitted to the Court, both

parties apparently would reach the same

result on the actual issue presented

for review. Under these circumstances,

there is no controversy before the

Court, and the appeal should be

dismissed. See Deakins v. Monaghan,

484 U.S. .__, 98 L.Ed.2d 529, 538-39

-12-—

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(1988); United States v. Munsingwear,

Inc., 340 U.S. -36, 39-40 (1950).

II. Section 1302 has not been and

cannot reasonably be

interpreted as the Government

If the Court reaches the merits of

the controversy, amici respectfully

submit that the constitutionality of

Section 1302 must be resolved based on

the language of the statute and the

manner in which it has been applied,

rather than relying on the inventive

reinterpretation put forth by the

government for the first time in its

brief to this Court.

Specifically, the government now

argues -- contrary to the position it

took earlier in this litigation -- that

————

Section 1302 “should be construed to

apply only to prize lists that

constitute commercial speech.”

Appellants’ Brief at 22. Leaving aside

for a moment the novelty and

inappropriateness of the Government's

proposed new definition of commercial

speech, both the language of the

6 The difficulties with and the unprecedented

nature of the Government's proposed definition

of commercial speech is addressed in detail in

the brief of Appellee Minnesota Newspaper

Association. The Court has long and repeatedly

rejected the "financial interest” litmus test

for commercial speech urged by the Government

here. See, e.g., New York Times v. Sullivan,

376 U.S. 254, 266 (1964). In fact, the contrary

doctrine is so firmly established that one might

be tempted to treat the Government's «rgument as

a throwaway if it were not the sum and substance

of the Government's appeal. Amici are mystified

(FOOTNOTE Continued On Next Page)

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statute and the demonstrated practice

of the Post Office belie the

Government's purported narrow

construction.

A. The language of the statute

does not support the

Government's

interpretation,

Section 1302 reads in relevant

part:

. Whoever knowingiy

deposits in the mail or

sends or delivers by mail:

6 (FOOTNOTE Continued From Previous Page)

as to why the Government pushes this

issue, not raised in the district court,

so forcefully when the issue has no

bearing on the result in this case. -

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any newspaper. .

containing any list of

the prizes drawn or

awarded by means of any

such lottery, gift

enterprise or scheme,

whether said list

contains any part or all

of such prizes;

shall be fined not more

than $1,000 or imprisoned

not more than two years,

or both; and for «ay

subsequent offense shall

be imprisoned not more

than five years.

The Government urges that this

statute be interpreted to apply only to

~16-

newspapers publishing paid prize

lists’ or prize lists for lotteries

in which the newspaper has a financial

interest. Government's Brief at 29.

The Government relies on an extensive

history of the nineteenth century

lottery legislation, and claims to

glean from that century-old history the

conclusion that the legislation was not

intended to affect news and editorial

matter. The Government apparently

reasons that because Congress did not

7 The Government refers in its Brief to the

possibility that a newspaper would be “paid to

publish a list of lottery prizes or winning

lottery numbers.” Government Brief at 29. How

this differs from the advertising permitted

under the new Acts, see footnote 2 supra, the

Government does not indicate.

-17-

believe that the Anti-Lottery Act

violated the First Amendment, see

Government's Brief at 26, and because

the Government now apparently concedes

that restrictions on news and editorial

content would violate the First

Amendment, Government's Brief at 30,

Congress must not have intended to

prohibit news and editorials concerning

lotteries.

The government's exercise in

deductive reasoning is flawed and

unpersuasive. The fact that government

counsel has now concluded -- midway

through this litigation -- that news

and editorial content cannot

constitutionally be reached by

-~18-

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Section 1302 has no bearing on whether

Congress intended to include such

materials within its prohibition one

hundred years ago. After all, the

Government took the position in the

court below that news and editorial

content could be constitutionally

prohibited under Section 1302.°

Its

recent change in position does not and

cannot retroactively change the intent

of Congress.

More significantly, however, the

Government does not address the plain

language of the statute. By its

express terms, the statute prohibits

8 See footnote 5 supra.

-19-

the mailing of “newspapers ..

containing any list of prizes.”

(emphasis added) It does not merely

prohibit the mailing of newspapers

containing paid prize lists or of

containing prize lists of lotteries in

which the newspaper has a financial

stake, nor can such a limitation be

reasonably inferred. Thus, the

Government is not asking for a simple

“interpretation,” as its citations

suggest; > the Government is asking

9 Wor example, the primary case on which the

Government relies, United States v. 12 200 Ft.

Rolls of Super § mm. Film, 413 U.S. 123 (1973),

is completely inapposite. As the Government

itself notes, that case involves the

(FOOTNOTE Continued On Next Page)

-20-

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the Court to rewrite the statute to

include limitations that contradict the

plain language of the statute as

enacted. The court should reject the

Government's attempt at statutory

reconstruction and leave such matters

to the deliberative process of

Congress. /°

9 (FOOTNOTE Continued From Previous Page)

interpretation of a word in a federal

statute so that the definition is consistent

with prior Supreme Court case law. Here,

the Government is not asking the court to

define an ambiguous term, but to infer

limitations on a statute that contradict the

statute's plain language.

10 Interestingly, the Government has no

difficulty applying the literal language of the

(FOOTNOTE Continued On Next Page)

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B. Government practice does not

support the Government's

purported interpretation.

The Government's actual practice in

applying the “prize list” prohibition

in Section 1302 also contradicts the

statutory interpretation now urged to

this Court. As demonstrated by its own

regulations and the facts in this case,

the Government has routinely and

10 (FOOTNOTE Continued From Previous Page)

statute in a manner contrary to the legislative

history when the application suits the

Government's purpose. Although acknowledging

that the prize lsit prohibition historically

addressed only lists of future prizes, the

Government notes that the statutory language is

not so restricted. The Government then urges

that other policy reasons require the

unrestricted reading of the statute, despite the

historical inconsistency. See Government Brief

at 23, n. 26.

-22-

systematically applied Section 1302 to

newspapers’ news and editorial content.

The most prominent example of the

Government's broad day-to-day

interpretation of the statute may be

found in the U.S. Postal Service's

Domestic Mail Manual, incorporated into

the Code of Federal Regulations by

39 C.F.R. §§ 111.1 et seg. Courts have

long recognized that statutes may not

give those charged with applying them

complete guidance, and that various

agencies may therefore establish more

detailed rules interpreting those

statutes for day-to-day use. See,

e.g., Rockville Reminder, Inc, v.

United States Postal Service, 480 F.2d

-23<

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4, 7 (2d Cir. 1973). Yet despite the

opportunity to clarify the statutory zi

prohibition on prize lists and to

restrict it to noneditorial material,

the Domestic Mail Manual uses the same

broad language as its statutory parent:

The following matter

is unlawful mail matter:

qd. Any newspaper,

circular, pamphlet, or

publication of any kind

containing ... any list

of prizes awarded in [a

lottery or similar

enterprise].

Domestic Mail Manual § 123.422(d). The

narrow construction of Section 1302

urged to this Court thus differs

considerably from the daily direction

given to postal workers.

-24-

The record in the present case also

demonstrates that the broad language of

the Domestic Mail Manual has real life

consequences. Paragraph 16 of

Plaintiff's Complaint states, and the

Government did not dispute for summary

11 that

judgment purposes,

{[b]ecause the language

of the statutes is vague

and unclear and because

the interpretation and

application by the USPS

have been inconsistent,

arbitrary, and confusing,

the MNA and its members

have no clear idea as to

what may be lawfully

published and have found

1l See Defendant's Memorandum of Law and

Response to the Memoranda Filed in Support of

Plaintiff's Summary Judgment Motion at 2

("defendants are willing to assume that the

material facts underlying this action are true.”

(footnote omitted).

-23$-

it necessary to avoid

publishing not just

advertising but nearly

subjected to the

sanctions and penalties

described above.

Joint App. at 6. (emphasis added).

The USPS practice of going after

news and editorial matter as well as

advert.sing is also documented by the

affidavits plaintiff submitted in

support of its Motion for Summary

Judgment. According to those

affidavits, the U.S. Postal Service

applies Section 1302 and the

regulations in an unpredictable and

inconsistent manner, inhibiting

publication not only of advertising but

-26<

of news stories, feature stories,

editorials, pictures, and community

calendar items about lotteries. /?

The Government, on the other hand, has

submitted no material whatever

suggesting that its actual practices

are in any way consistent with the

interpretation that it now urges on

this Court. Given this chasm between

what the Government preaches and what

it practices, this Court

should reject the Government's proposed

interpretation and affirm the decision

of the trial court.

12 See Affidavit of Linda I. Falkman, Joint

App. at 14-16 (especially paragraphs 8, 9);

Affidavit of Mark R. Anfinson, Joint App. at

17-20 .

o279<

III. The trial court correctly held

the prize list prohibition in

Section 1302 unconstitutional

on its face,

Contrary to the Government's

characterization, the district court

correctly interpreted the precedent

concerning commercial and noncommercial

speech and properly declared the prize

list prohibition unconstitutional. The

trial court looked at the plain

language of the statute and the actual

practices of the Government, both

discussed above, and concluded that the

statute applied to both commercial and

noncommercial speech. The court then

looked for a compelling Government

reason for the restrictions on the

noncommercial speech and found none.

-~28-

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The court therefore concluded that,

regardless of whether the restriction

on commercial speech was

constitutionally permissible, the

restrictions on noncommercial speech

without a compelling Government

interest rendered the prohibition

facially unconstitutional. ??

Contrary to the Government's assertion,

the District Court did not conclude:

that commercial speech

and ad ertising are

coterminous and that a

law regulating something

13 That a statute may have constitutional

applications does not, of course, prevent it

from being facially unconstitutional if it is

“substantially overbroad.” See, e.g., Secretary

of State of Maryland v, J,H. Munson Co., 467

U.S. 947, 964-65, 81 L.Ed.2d 786, 104 S.Ct. 2839

(1984).

o29-

other than advertising

cannot be regarded as a

regulation of commercial

speech.

Government Brief at 29. On the

contrary, the District Court

specifically noted: “It is the context

of the prize list, in advertisement or

news reports,-that determines the level

of protection.” 677 F.Supp at 1407.

It is also critical to note that

the District Court's decision did not

rely on drawing a fine-line definition

of commercial speech, as the Government

urges this Court to do, nor does

resolution of this case require such

draftsmanship. Instead of looking for

the line beyond which prize lists would

lose their character as noncommercial

-30-

speech, the District Court simply

concluded that, wherever that line is,

the news reports and editorial content

restricted by the statute, the postal

regulations, and the practice of the

Post Office fall on the noncommercial

side of it. Because the statute

imposed impermissible restrictions on

noncommercial speech, regardless of

where the commercial-noncommercial line

is drawn, the court held the statute

facially unconstitutional. 4

14 The government's reliance on the

greater/lesser rationale of Posadas de Puerto

Rico Associates v. Tourism Co., 478 U.S. 328

(1986), fails once it is acknowledged that

Section 1302 reaches non-commercial speech. See

Meyer v. Grant, 108 S.Ct. 1886, 1893-94 (1988).

Sia

It is of course this aspect of the

lower court’s decision that prompts the

Government’s current attempts to revise

history and backpedal on its

interpretation of Section 1302. The

record before the District Court was

sufficient, however, to demonstrate to

the trial court that the practice and

policy of the Government was consistent

with the plain language of Section 1302

and in fact restricted news coverage of

lotteries. By ignoring the undisputed

record before the trial court, the

Government asks this Court to render a

decision that could make sense only in

the imagined world created between the

covers of the Government's brief. The

-~32-

Government also asks this Court to

unnecessarily re-define commercial

speech in terms that have no basis in

precedent and will have no effect on

the result of this case. The Court

should reject the Government's broad

invitation, resolve the case at hand,

and affirm the District Court's

decision.

-33-

CONCLUSION

The judgment of the District Court

invalidating the prize list clause in

18 U.S.C. Section 1302 should be

affirmed.

Respectfully submitted,

Dated ,» 1989.

& BENSON

F Cn

P. Borger

Counsel of Record

ruce Jones

& BENSON

00 Norwest Tower

0 S. Seventh Street

inneapolis, MN 55402

(612) 336-3000

Attorneys for Amicus

Curiae

Minnesota Civil Liberties

Union, Amicus Curiae

-~34-

6762D/6776D

Of Counsel:

Robert Hicks

Minnesota Civil Liberties

Union

1021 West Broadway

Minneapolis, MN 55411

(612) 522-3894

Steven R. Shapiro

American Civil Liberties

Union -

132 W. 43rd Street

New York, NY 10036

(212) 944-9800

-35-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.