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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 225

## Text

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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
v.
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

6

13

28
36

a = =e ~
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

14

33

33

25

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riave ray

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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,
19

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

ay

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

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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

=@-

7 —_

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

=~ =

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
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————

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

6

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-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1413%3A13. Public record. Not legal advice.