Petition for Writ of Certiorari — Cherry v. Postmaster General

"LIBRARY |) FILED

SUPREME COURT, Us & APR 4 1969

- ao JOHN F. DAVIS, @LER

SUPREME COURT OF THE

UNITED STATES

October Term 1967 | : = :

No. 1 293

FRED CHERRY, et al.,

Petitioners,

_ —against— —

_ THE POSTMASTER-GENERAL OF

THE UNITED STATES, et al.,

si Respondents.

PETITION FOR A WRIT >

OF CERTIORARI TO THE. |

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT ~—_

’

FREDCHERRY & JULIUS C. TORTORICE

Petitioner, pro se Petitioner, pro se

604 Miramar Ave. 74 Bulwer Place

Santurce, Puerto,Rico Brooklyn, New York

00907 . 11207

Opinions Below . -: ewes Ne ia ate ee

Supreme Court Jurisdiction .................. Seeene ae

Questions Presented..... eldcee vas adi oe ack 6 arene ever 2

Constitutional Provisions, Statuies, and ei ds

rir cciadsivetsdebdvigsseteudaces xen 3

Statement of the Case i dane

A. Ss iy AIR URN Se ae ee a eM Bn 3

B. Jurisdiction in the U.S. District Court......:.... 4

‘C. How the Questions Herein Presented Were Raised

SN I 6 iw cicc cehaereseereeverses 4

Reasons for Granting the Writ

EEE ANS AST TL AES OP IEE 6

The Statements on the Cards are Protected by the, ,

First Amendment ............20s0cec%eeeesee’ 7

18 U.S.C. 1718 Violates the First Amendment....... 11

18 U.S.C. 1718 Violates the Fifth Amendment ...... 13

39 U.S.C. 4001 Violates the First Amendment..... . 16

39 U.S.C. 4001 Violates the Fifth Amendment . --

Comednston. « -\»«'s ve + +t ee-2, pe er Perey 20

APPENDIX A

Constitutional Provisions, Statutes, and Administrative

Regulations Involved ................+. PPE EERE

| APPENDIX B

Initial Administrative Decision ....... Pewee seccccecces Ilha

| APPENDIX C

| PROCEEDINGS IN THE U.S. DISTRICT COURT,

Docket Entries eSccapevess ereeeeeverenes Piceterss Ome:

» SE Sb esses ec eee es eae ag cute oe beeen ee

(Final Administrative Decision and Order,

Appended as Exhibit to Complaint) ........... ee

8G suede cv cae eo ecb wee bese kee eeeeeeas 37a

Amended Complaint ........... Sh A rei Manca ND 38a

Docket Entries 2.2.2.6... ees, bees as 66d a4 63a

Statement of Points. ..... coveeeeese nee ey ee Bob alecn 64a.

RE iS. nese ot eee ceeees rreere 66a

\TABLE OF CITATIONS 5 .

‘ 7 Cases Se. |

po wree v. Secretary of State, 378 US. 500 Se roe

Bantam Books Inc. v. Sullivan, 372 U.S.58 ......... ion ee

Bolling v. Sharpe, 347 U.S..497 ... 0... .0.0.0.0....... 14°

Cherry v. Postmaster General, 272 F. Supp. 982 .. 2,12

Conley v. Gibson, 355 U.S. 41...................... 9,13

Curtis Publishing Co. v. Butts, 388 U.S.130............ 1]

Freedman v. Maryland, 380 CMa dots os wenden ‘eee BF

Hannegan v. Esquire, 327 U.S. 146 ........ sawatehaeus rei oe

. |. -Kent v. Dulles, 357 U.S.116..... with sieibiewiden dechereuwd 19

; Kissinger v. New York City Transit Authority, 274 F. Supp.

MUN E9650 5508.0 Hie ip FES o cdus'ne deanedck Las 12

Lamont v. Postmaster-General, 381 US. 301 fae eke dG 11,15

‘ii

L-—~ vee erat os 3

ge APPENDIX D

PROCEEDINGS IN THE COURT OF APPEAES

Lovell v. Griffin, 303 U.S. 444.00. 52 cc cece cee ces 14.

Manual Enterprises v. Day, 370 U.S. 478.........5....6017

McCrossen v. United States, 339 f.2d 810 .,..... Stockha

_McKnight v. United States, 78 F.2d 931 ..<<.... eH ee EUNT

Near v. Minnesota, 283 U.S. 697.20... ce eee eee Fee |

New York Times Co. v. . Sulfivan, 376 U.S. 254 .2 0.0.0... Ie

_ Public Clearing House v. Coyne, 194 U.S.497 .7...... or

: Soenabderv, Wack, 377:US. 163 656. hos ieee ce ees 14

Spéeiser v. Randall, 357 U.S.-513. .... 6... c cece ec eens 7 |

Stevens v. Summerfield, 151 F. ‘Supp. 343.6. rede eaves 17

Teitel Film Corp. v. Cusak, 19 L ed 2d 966 0 66:0 i liediee - EE

> Tésmintolio v. Chicago, 337°U.S. 1 o.c-6. soos co oececiocves’s dl

; United States v. ‘Anderson, 268 Fed. 696............... 15

United States v. Burnell,-75 Fed. 824 ............... eee

- United States.v. Higgins, 194.Fed. 539 ...0........... 13,15

_Wirta v. Alameda-Contra Costa Transit District, 434 ©

4 Ree Ae Pe orn pee ea eso 12

| Zemel v: Rusk, 381 U.S.1..... Spec ee cows badenes kes 19

aie CONSTITUTIONAL PROVISIONS, STATUTES,.

; . AND ADMINISTRATIVE REGULATIONS

» First Amendment to-United States Constitution ...... Passim

Fifth Amendment to United States Constitution...... Passim

~ § U.S. 1009 Ge UieV ins ews bbb 5 0 000 He bees frrcry 4

es BO 465050 ee A Bie en a oe Pr eee ae 14

Oe I o's a 6.600 40's 4 6 vee avd cbse esabeus 9

Mea 8908 ote da: views BE a Pete eae Ae Passim

er SEDO cece teccscccoceveciveceses i aces a

ee OEE 0455 6 0de0 0540 o ease sei veantencorees O.

a CE sR dca cece eceeucs ss Ckvhevdiatavnane 4

PE Sob du Nase o¥ cr ued cedens ds Veeexes Passim

39 CLPR. 124.48). foc csccccccce eeteaciae “aces 3 18 "

Pes SUNN osc n cine bicdwoussce ieee Seana aa “2

oe let f Sey. | ) oe aaah ceca ees ‘Seuewewe 3, 16,18.

39 C.F.R. 9$2.19......;: Per oe bey a keeveenres tess 3,18.

| at 8 Kk . EA ree PE ere er Pree ies '@

39 C-P.R. 953.2,.....666. FS SE eva Py peer rae ee “18

39 C.F.R. 953.3....... are feganesesetourheass’s reer, |

| MISCELLANEOUS es / |

- Annotation — Mailability — External Inscriptions ;

POPES aT ea ae eA pe 2

Annotation — Mailability — External Inscriptions

Lae Ee RS RS eee fs

Barron, Access to the Press — A New First Amendment ~

Right, 80 Harvard Law Review 1641 ..... b¥eRecdee ‘ae:

_~ . .Corpus Juris Secundum, Volume 37 ............ Nn ees 19.

Davis, Administrative Law Treatise, Volume 1........... 19

Deutsch, Freedom of the Press and of the Mails,

36 Michigan Law Review 703 ................... - 21

Emerson, Toward a General Theory of the First Amendment

72 Yale Law Journal 877....... Widedsstesekeses 20 |

BR BI PPE oven ccetedecusciccésvedecs ‘enecocee 1D .

fe

5 '

iv

2 na al tints mamas

.

SUPREME COURT OF THE

UNITED STATES -

October Term 1967.

£

-

* : No. a# af ;

_ FRED CHERRY, et al.,

Petitioners,

—against—

- THE POSTMASTER-GENERAL OF

THE UNITED STATES, et al.,

Respondents. .

PETITION FORA WRIT | .

_ OF CERTIORARI TO THE p

UNITED STATES COURT OF APPEALS .

FOR THE FIRST CIRCUIT

* -

; = Cherry, Petitioner, pro se, and Julius C. Tortorice,

Petitioner, pro se, respectfully request:that a writ of certiorari

issue to review the judgment of the United States.Court of

Appeals for the First Circuit, entered in the above-entitled —

case_on February 6, 1968.

o- 1

=, 7

%

_ OPINIONS BELOW

The opinion of the United States District Court for the

District of Puerto Rico is reported at 272.F. Supp. 982. It is re-

produced in ‘Appendix C of this p ition, pages 53a-60a infra,

The Court of Appeals for the First Circuit did not render e

an opinion. Its,judgment is. reproduced in Appendix D of this

petition, page 66a Infra. ee |

=> _ JURISDICTION |

The judgment of the Court of Appeals for the First Circuit

was filed and entered on February 6, 1968: The jurisdiction of

_ this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

The Post-Office Department seized numerous post cards >.

mailed to numerous persons and organizations by one of the

Department held an administrdtive proceeding at which,the

sender’s post cards were found to be non-mailable and ordered

.to be destroyed. The sender thereupon brought suit to enjoin

destruction of the post cards and one to whom post cards were

mailed intervened (the receiver). The sender and. receiver also

demanded the calling of a three-judge court to pass on the

constitutionality of the statutes which provide for the seizure,

detention; and destruction of said post cards. The District Court

dismissed the complaint for failure to raise.a substantial federal

question and the Court of Appeals affirmed. ~~

The questions presented are:

1. Are the statements on the sender’s post cards, in general,

protected from suppression by the First Amendment to the

United States Constitution? |

2. Does 18 U.S.C. 1718, on its face or as applied, violate

either the sender’s or the receiver’s rights to freedom of speech

and press as guaranteed by the First Amendment to the United

States Constitution?. . .

3. Assuming that newspapers or magazines may be sent

‘through the mails without wrappers, with defamation and scur-

2 =

_ petitioners (the sender). After -a considerable period of time oo

-had elapsed from the time the seizures began, the Post-Office

.

seen ee

. >

. and press as guaranteed by the First Amendment to the United

. States Constitution?

_ of the United States; and the Postmasters of Brooklyn, New

*. by the Post-Office Department and after a considerable peri: 1d

_ infra) the Post-Office Department held an administrative pro-

*

\

rility exposed on their exterior surface; does 18 U.S.C. 1718, on

its face or as applied, violate either the sender’s or the receiver’s .

rights under the due process clause of the Fifth Amendment to

the United States Constitution? ‘~

4. Does 39 U.S.C. 4001, on its face or as applied, violate

either the sender’s or the reeeiver’s rights to freedom of speech

5. Does 39 U.S.C. 4001, on its face or as applied, violate

the sender’s rights under the due process clause of the Fifth |

Amendment to the United States Constitution?

p CONSTITUTIONAL PROVISIONS, STATUTES,

_ AND REGULATIONS INVOLVED

The statutes, etc., whose construction are herein involved _

are: |

The First Amendment to the United States Constitution:

The Fifth Amendment to the United States Constitution.

18 U.S.C. 1718,

390S.C.4001.-° |

39 C.F.R. 124.4(a), 39 C.F.R. 124.5(e), 39 C.F.R. 124.9(b),

39 C.F.R. 952.19 and’39 C.F.R. 953. ox Y

- These.statutes, etc., are set forth in Appendix “A”, infra.

STATEMENT OF THE CASE

The petitioners are; Fred Cherry, pro se, and Julius oh

Tortorice, pro se. The respondents are; the Postmaster-General

York; New York, New York; and San Juan, Puerto Rico. Numer-

ous post cards mailed hy Fred Cherry (the sender) were seized

of time had elapsed, (see Affidavit, Appendix C, pages 37a-33a,

ceeding at which the post cards which had been seized previous-

ly were found to be non-mailable, and ordered to be destroyed.

(see. Appendix B, pages 1 la-21a, infra, and Appendix 'C, pages.

30a-36a, infra). The sender thereupon brought suit to enjoin the

. 3 ‘.

destruction of the post cards and Julius C. Tortorice, Petitioner,

to whom one of the post cards was mailed intervened (the re-

ceiver). (see Motion to Intervene, Appendix C, page 52a, infra)

A sample of one of the post cards is exactly reproduced as an

exhibit to the complaint. It is herein reproduced ‘in Appendix

C, pages 35a-36a, infra. The petitioners also demanded the call-

- ing of a three-judge court to enjoin the enforcement of 18 U.S.C.

1718 and 39 U.S.C. 4001 for repugnance to the United States

Constitution. (Paragraphs 1, 3, and’4 of section of complaint

praying for relief, Appendix C, pages 28a+29a, infra). The

petitioners also demanded that the three-judge court render a

declaratory judgment that 18 U.S.C.-1718 and 39 U.S.C. 4001.

are unconstitutional. (paragraphs 5 and 6 of the section of the

complaint praying for relief, Appendix C, page 29a, infra). The

_ District Court eventually dismissed the complaint for failure to

raise a substantial federal question: (Memorandum of Decision,

Appendix C, pages 53a-60a, infra) and the Circuit Court of Ap-

peals affirmed without opinion. (Judgment of the Circuit Court,

Appendix D, page 66a, infra). , ae

Federal jurisdiction in the District Court was alleged in the

complaint, inter alia, upon 28 U.S.C: 1339, which: provides that:

“The district courts shall have original jurisdiction of any civil

action arising under any Act of Congress relating to the postal

service.” (see paragraph 1 of. complaint, Appendix C, pages 26a-

27a, infra) Jurisdiction was further alleged in paragraph 1 of the

complaint, inter alia, upon 28 U.S.C. 1356 and 5 U.S.C. 1009.

C

The questions herein presented for review were raised and

passed upon in the District Court and the Court of Appeals as

’ follows: ; on 2 :

_ 1. Question No. 1 was raised in the complaint by alleging

“therein that: “The information contained in these post cards is °

true; is of general political, religious, and sociological significance;

and is fair. comment upon the conduct of persons in respect of

public affairs.” (paragraph 6 of complaint, Appendix C, page

4 .

«

nen ed omental Tac

27a, infra). Also the sender specifically argued that his writings

were protected from suppression by the First Amendment in

that portion of his brief, filed in the District Court on 1/17/67,

which was reproduced on page 18 of the Appendix to petition- —

ers’ Appellate brief. This portion is also reproduced herein at

Appendix C, pages 39a-40a, infra. The District Court passed

upon this point in two ways. First, the District Court held that

the sender admits in his brief that the post cards dre, among

other thirigs, libelous and threatening. (Opinion, Appendix C,

pages 56a-57a, infra). (The petitioners will argue, infra, that the

sender made no such admission.) The District Court also held

that it does not seem that the speech sought to be protected is

|. Of general political, religious, and sociological significance, nor

RI rere genet ere rerigg earn Dk AE ARG ENERO NEL OY SELLE CFE Gh

does it seem to be a fair comment upon the conduct of persons

in réspect of public affairs. (Opinion, Appendix C, page 58a,

infra). The same point was then raised before the Court of Ap-

peals, in paragraph 2 of the statement of points. (Appendix D,

page 64a, infra). As mentioned previously, the Court of Appeals

did not render an opinion, =i

Question No. 2 was raised in paragraph 9(a) ofthe com-

plaint. (Appendix C, page 28a, infra) The District Court specifi-

cally ruled upon this point by holding that: “Plaintiff is not

foreclosed from. expressing himself. Simply, the manner in

which it is done is regulated by law in a very minor form. This

does not amount to an abridgement of the First Amendment

rights.” (Appendix C, page 58a, infra). This same point was __

then raised before the Court of Appeals in paragraphs 3a and 3b

of the statement of points. (Appendix D, page 64a, infra). As

mentioned previously, the Court of Appeals did not render an

opinion. e

Question No. 3 was raised in paragraph 9(b) of the com-

plaint. (Appendix C, page 28a, infra). This point was not even .

mentioned in the District Court’s Opinion. The same point was

then raised in paragraphs 4a and 4b of the statement of points

before the Court of Appeals. (Appendix D, page 65a infra). As

mentioned previously, the Court of Appeals did not render an

opinion. io ;

Question No. 4 was raised in the amended complaint, filed

5

on. 12/23/66. (Appendix C, pages 38a-39a, infra). The District

Court specifically ruled upon this point, in its Opinion, by hold-

ing that: “The Post Office Department held an administrative

_ hearing and it was after this hearing that the ruling came as to

the destruction of plaintiffs post cards. There has been no

showing by the plaintiff as to why this Court should hold that

his [sic] procedure is contrary to the due process.of law or any

"other constitutional or legal right. Plaintiff's rights are fully pro-

' tected and provided for in this procedure and there is no denial

of due process merely because the courts of law do not inter-

vene in the matter in the first instance. Public Clearing House

v. Coyne, 1904, 194 U.S. 497.” (Appendix C, pages 58a-59a,

infra). (The petitioners will argue, infra, that this neglects the

allegation that the post cards were seized and detained a con-

siderable period of time before the administrative hearing was

commenced.) The above-quoted excerpt from the District .

Court’s Opinion also passes-upon question No. 5. Question No.

5 was raised in paragraph 10 of the complaint (Appendix C, page

28a, infra). Question No. 4 was raised before the Court of Ap-

peals at paragraphs 5a and 5b of the statement of points.

Question No. 5 was raised before the Court of Appeals at

paragraphs 6a and 6b of the statement of points. (Appendix D,

page 65a, infra). As mentioned previously, the Court of Appeais

did not render an opinion. 89

REASONS FOR GRANTING THE WRIT —

‘INTRODUCTION

The main question in this case is whether the Federal

Government may censor truthful criticism of public figures

when said criticism appears on the exterior surface of mail,

merely because said criticism reflects injuriously on the character

or conduct of the person criticized. This question has never been

before this Court, although it has been decided numerous times

by lower courts. Most of the lower court decisions have upheld

'. the Federal Government’s power to so censor. Collections (by

6 ;

i

PO PE. PLD Ss

no means complete) of these cases may be found at 11 A.L.R.

3rd 1276 and 112 A.L.R. 1145. The annotator, at 11 A.L.R.

+ 3rd 1278, holds that: “Contentions that the statutes in question

should be found invalid as infringing freedom of speech as

guaranteed under the First Amendment ... have not found |

favor with the courts.” This widely-held notion that the use of |

the mails is not protected by the First Amendment “— to be

corrected by this Court.

QUEST ION No. 1

THE STATEMENTS ON THE SENDER’S CARDS ARE,

IN ERAL, PROTECTED FROM SUPPRESSION

- BYQHE FIRST AMENDMENT TO THE

. UNITED STATES CONSTITUTION

The Court of Appeals, in affirming the judgment of the

District Court, has sanctioned a judgment which was arrived at

in a manner which_so far departs from the accepted and usual

course of judicial proceedings as to call for an exercise of this

Court’s power of supervision. As part of its opinion, the District:

Court held that: “Plaintiff does not . . . deny that said post

cards are in fact libelous, defamatory, sucrilous and threaten-

ing. It-would seem from: his brief that, on the contrary, he can--

‘didly admits that this is the nature of his postcards.” (See Ap-

pendix B, pages 56a-57a, infra). This finding was vigorously

denied before the Court of Appeals on pages 13-15 of Petitioners’ .

brief before that Court as follows: (Please note that R.A. 17-19,

for example, refers to pages 17-19 of the record appendix to '

Petitioners’ Appellate brief.)

The District Court’further erred in halding that

plaintiff-appellant did not “deny that said postcards are in

fact libelous, defamatory, scurrilous and threatening. It _

would seem from his brief that, on the contrary, he cam |lid-

ly admits that this is the nature of his postcards.” (R.A.

32-33). As previously mentioned, plaintiff-appellant alleges,

in his complaint, that the statements on the post cards are

true, dre of general political, religious and sociological

significance and are fair comment on persons in respect of

public affairs. (R.A. 5). If this be so, then the statements

‘ cannot, as a matter of law, be libelous. Furthermore, the

.plaintiff-appellant did argue that the statements on the

_ post cards are not libelous. Plaintiff-appellant distinguished -

the case of McCrossen v. United States, 339 F.2d 810, from

the present case by noting that McCrossen’s statements

were libelous and threatening while plaintiff-appellant’s

statements are not (R.A. 17-19). Furthermore, in holding

that the plaintiff-appeHant candidly admits, in his brief,

that the post cards are libelous, the District Court has

made a finding without a scrap of evidence to support it.

For this reason the appellants have made available to this -

Court, as part of the record, all briefs submitted by both

sides. If the appellees care to point out the place where

either appellant made said admissions, or, indeed where.

- appellees even charged that the post cards were libelous,

they are at liberty to do so. The appellees have correctly

stated that the plaintiff-appellant sent the post cards in

question and intended that the stateinents thereon would

reflect injuriously upon the character or conduct of another

person (R.A. 10-11). The appellants have never admitted

anything even remotely resembling the admissions which

' the District Court charges them with having made. Similar-

ly, the District Court erred in holding that the post cards

are threatening. Why should plaintiff-appellant have taken

the trouble to formally deny that the post cards are

_ threatening when there had not been the slightest sugges-

tion made to that effect prior to the decision of the Dist-

fict Court? Furthermore, as mentioned previously, in .

arguing that the post cards in question differed from the

writings in the case of McCrossen v. United States, 339

F.2d 810, plaintiff did, in effect, deny that the post cards

in the present case are threatening. (R.A. 17-19). But rather

- than consider the question of accusations or denials in

reference to the alleged threatening character of the post .

cards, it is far more important to consider the actual .

question of whether or not the post cards are threatening.

_ This is easily decided since it is obvious, on their face,

NLP ALIN GSA ONY SRT IS NOS wn OP

that the post cards in question are not threatening. Final-

ly, the District Court held that: “As the United States At-. *

torney pointedly suggests, the matter printed on plaintiff's

post cards is, in fact otherwise mailable by law. It could

have been printed on a pice of paper, enclosed in an en-_

, velope and sent, through the mails. It still can” (R.A. 34).

If this be true, the post cards cannot, as a matter of f law,

be threatening. If they were, then they would violate 18

) hein 875-876. oie ease

| ‘The. portion of the t brief before the District Court, referred

to above, is reproduced herein in Appendix C, pages 39a-41a,

- infra. In addition, all of the btiefs before the lower courts have .

been made a part | of the record before this Court and therefore

the Respondents can still answer this argument by pointing out,

if they can, (1) Where, in any brief or other paper, the Petition-

/ets admit that the post cards are libelous or threatening; (2)

. Where, in any brief or other paper before the District Court, the

Respondents have even accused the post cards in question of

being either libelous or threatening. The Respondents, in their

Appellate brief, were unable to answer these questions. All they

could say was: “18 U.S.C. 875 and 876, cited by appellants

| (Brief, -p. 15), merely punish the use of initerstate commerce or

the mails for the purposes of extortion.” (See footnote at page

15 of Respondents’ Appellate brief.) The fact is that the District

Court has done more than merely make a finding without a

scrap of evidence to support it. Actually, what the District

Court has done, and the Court of Appeals -has sanctioned, was,

sua sponte, to manufacture evidence out of thin air in order to,

support its decision.

The Court of Appeals has also initial other departures

from the accepted and. usual course of judicial proceedings. It is

a standard principle that a complaint should not be dismissed ‘or

failure to state a claim unless it appears beyond doubt that the «

plaintiff can prove no set of facts in support of his claim which

would entitle him to relief. Conley v. Gibson; 355 U.S. 41,

45-46. In the case at bar however, the District Court, in dismiss-

ing the complaint, has assumed a set of facts which are the

exact opposite of some of the facts set forth in the cotispisint.

Thus, paragraph 6 of the complaint alleges that: “The informa-

tion contained in these post cards is true; is of general political,

religious, and sociological significance; and is fair comment upon |

. “the conduct of persons in respect of public affairs.” (Appendix

C, page 27a, infra). However, the Opinion of the District Court |

holds that: “To use plaintiff's own words, it does not seem a

that the speech sought to be protected in these circumstances

‘is of general political, religious or sociological significance’;

_ nor does it appear, in these same circumstances, to be ‘a fair

comment upon the conduct of persons in respect. of public

affairs’ ” . (Appendix C, page 58a, infra). And, as previously

- mentioned, the District Court manufactured evidence in order

to describe the post cards as being libelous. If the information -

on.the post cards “‘is true; is of general political, religious, and

sociological significance; and is fair comment upon the conduct

of persons in respect ‘of public affairs”; then it cannot, as a mat-

ter of law, be libelous. So that the District Court, once more, ~— |

assumed a fact as being the exact opposite of a fact tome in *

the complaint.

In addition, the ‘Request for Admission of Facts” con- -

_tained in Appendix C, pages 41a-48a, infra, indicates that the

information inscribed on the post cards is true; is of general

political, religious, and sociological significance; and is fair com-

ment upon the conduct of persons in respect of public affairs.

The request was never answered by the respondents because

the respondents moved, and the Court held, that the respon- ‘

dents need not answer this request during the pendency of the

respondents’ motion to dismiss the entire action. (See Appen-

dix C, page 49a, infra, and Docket Entry of 3/3/67, Appendix.

C, page 24a, infra.) ca

. With the underbrush cleared away, so to speak, we can

- now consider one of thie main questions of the case. If speech is

true; and is of general political, religious, and sociological sig-

nificance; and is fair comment on persons in respect of public

.affairs, it should, in general, be protected from suppression by

the First Amendment. The fact that the speech sought to be

protected includes strong criticism should not make any differ-

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| ‘ence. As this Court held in New York Times Co. v. Sullivan,

376 U.S. 254, 270: “‘Thus we consider this case against the

background of a profound national commitment to the principle

that debate on public issues should be uninhibited, robust, and

wide-open, and that it may well include vehement, caustic, and

sometimes unpleasantly sharp attacks on governmental and

public figures. See Terminiello v; Chicago, 337 U.S. 1, 4.” Also ~

- see Curtis Publishing Co. v. Butts, 388 U.S. 130. In the Butts. |

case, this Court held that even erroneous criticism could not be

suppressed. It would certainly be the height of tyranny to permit

' erroneous Criticism in one case and suppress truthful criticism.

in another. One of the principles involved here, namely:

“EQUAL JUSTICE UNDER LAW” (emphasis supplied) is so

important that it is carved into the pacade of the Supreme

Court Building itself.

QUESTION No. 2

18 U.S.C. 1718, ON ITS FACE AND AS APPLIED,

VIOLATES BOTH THE SENDER’S ANDTHE.

RECEIVER’S RIGHTS TO FREEDOM OF SPEECH

AND PRESS AS GUARANTEED BY THE FIRST

AMENDMENT TO THE UNITED STATES

CONSTITUTION

The next point is whether speech which, in general, is pro-

tected from suppression by the First Amendmient may be cen-

sored when it appears on post cards or envelopes. In Speiser v.

Randall, 357 U.S. 513, 518, this Court held that: “It hasbeen

said that Congress may not, by withdrawal of mailing privileges,

place limitations upon the freedom of speech which if directly

attempted would be unconstitutional.” In Lamont v.Postm: ster-

General, 381 U.S. 301, 305, this Court held that: ‘‘The Unit.:d

States may give up the Post Office when it sees fit, but while it

carries it on the right to use the mails is almost as much a part

of free speech as the right to use our tongues...” The same

principle which applies to mail in general should also apply to

post cards in particular. It is a well-known fact that commercial

1]

Bea rani ass arnt te ee eit: ae Nr cnty ee ae PO RN baad OMIA GH PLO oper niche niin! aie be 7 senate

advertisers use post cards. (the so-called ‘Sunk mail”). There- |

fore people who wish to disseminate political information and

opinion should also be allowed to use post cards. The principle

is; if commercial advertisers are permitted to use a certain <>,

medium, then governmental action ought not to abridge the

right of a political advertiser to use that same medium. See, for

example, Kissinger v. New York City Transit Authority, 274 F.

Supp. 438. Also see Wirta v. Alameda — Contra Costa Transit —

District, California Supreme Court, 12/21/67, 434 P.2d 982.

This argument can also be.considered as another facet of the |

principle of “EQUAL JUSTICE UNDER LAW”.

The Opinion of the District Court, as sanctioned by the

Court of Appeals and which appears at 272 F. Supp. 982, con-

flicts with the entire spirit and philosophy of the First Amend-

‘ment. It is true that freedom of speech is not absolute, but

suppression of speech is the exception, and not the rule. Speech

can be suppressed only for compelling reasons, such as riot

_ prevention, etc. The only reason for the suppression in the case

at bar, in the Opinion of the District Court; is that the sender '

has “bent into license” the freedoms of speech and press.

(Appendix C, page 57a, infra). Obviously this is a meaningless

- phrase. It can be said of any unpopular opinion that its propon-.-

ents have “‘bent/into license” the freedoms of speech and press.

Actually, the respondents, in theit Appellate brief, admit that.

the purpose of the laws and regulations in question, as applied

to the.present case, is to protect the reputation of named indi-

viduals. (See pages 6, 10, and 14 of respondents’ Appellate

brief.) In other words, the respondents have claimed that the

truth involving matters of general public concern should be

suppressed solely in order to protect the reputation of a public

’ figure. It should be noted that the person whose reputation the

Post Office Department is so anxious to protect—the Reverend

- Robert W. Wood—is himself publicly attacking the reputation

of Jesus Christ. This notion that the truth involving matters of

general public concern should be suppressed solely in order to

protect the reputation of public figures, is absolutely foreign |

_’ to the American way of life, and if permitted to stand will

arial lead to the destruction of all our cherished spetoges.

op

QUESTION No. 3

| ASSUMING THAT, NEWSPAPERS OR MAGAZINES

MAY BE SENT THROUGH THE MAILS, WITHOUT

WRAPPERS, WITH DEFAMATION AND SCURRILITY

EXPOSED ON THEIR EXTERIOR SURFACES; 18

U.S c. ‘1718, ON ITS FACE.AND AS APPLIED,

-VIOLATES BOTH‘THE SENDER’S AND THE

RECEIVER’S RIGHTS UNDER THE DUE PROCESS

CLAUSE OF THE FIFTH AMENDMENT TO La

UNITED STATES COMSTTEU TION.

The first part of this question is; are newspapers and maga-

zines sent through the mail, without wrappers, with scurrility

‘and defamation exposed on their exterior surfaces? The peti-

tioners claim that such is the state of facts. (See paragraph 9(b)

of complaint, Appendix C, page 28a, infra.) The District Court, °

in its Opinion, has not even mentioned this claim of discrimina- .

tion raised in the complaint. Since the Court of Appeals has not

rendered an opinion, the Court of Appeals has sanctioned this ~~

action of the District Court. As mentioned previously, a coni-

' plaint should not be dismissed for failure to state a claim unless

it appears beyond doubt that the plaintiff can prove no set of:

‘facts in support of His claim which would entitle him toirelief.

Conley v. Gibson, 355 U.S. 41, 45-46. As a matter of fact, the

Initial Decision of. the Hearing Examiner admits that the above-’

mentioned discrimination exists.1n Appendix B, page 12a-13a,

infra, the Initial Decision contains the following: “The Respon-

dent filed an answer stating substantially as follows: ‘. . . (c)

The withholding of such cards by the Post Office Department

is unlawful and discriminatory since the Department permits

and accepts for delivery newspapers and magazines. containing

defamation and scurrility on their front and rear pages clearly

visible to Post Office employees.” In commenting on this iten ,

the Initial Decision, in Appendix B, page 16a-17a, infra, states:

“The case of U.S. v. Higgins, 194 Fed: Rep. 539 (D.C. W.D. Ky.

1920) [sic, should be 1912] , cited by Respondent is not ger-

mane to the issue here for the reason that the court held that

the statute applied only to envelope wrappers and outside :

13,

.

covers of mailed newspapers and not to the papers themselves.

Postal cards and post cards were not involved. This case was

subsequently criticized by another court.” In the Higgins case,

supra, a newspaper was sent through the mail without a wrap-

per. The court found that the material exposed on the outside

surface of the newspaper was scurrilous and defamatory and

that: “‘it was calculated by its manner and style of display, and

indeed was obviously intended to reflect upon the character and

conduct of [another].” Nevertheless, the newspaper involved

was found not to have violated the law. es 5

Assuming that newspapers and magazines similar to the

- hewspaper in the Higgins case, supra, are presently permitted to

be sent through the mail, it would constitute a violation of the

Fifth Amendment to suppress the distribution by mail of the

sender’s post cards. As this Court has held in Lovell v. Griffin, .

303 U.S. 444, 452: “The liberty of the press is not confined to

newspapers and periodicals. It necessarily embraces pamphlets

and leaflets .. . The press in its historic connotation ‘comprehends

every sort of publication which affords a vehicle of information

and opinion.” As far as disgrimination in generai is concerned,

this Court has held, in Schneider v. Rusk, 377 U.S. 163, 168:

“while the Fifth Amendment contains no equal protection

clausé, it does forbid discrimination that is ‘so unjustifiable as -

to be violative of due process.” Bolling v. Sharpe,,347 U.S. 497,

499.” In the Schneider case, supra, this Court found that 8 °.

U.S.C. 1484 created “indeed a second-class citizenship.” (377

_ US. at 169). Similarly, 18 U.S.C. 1718 creates a second-class

freedom of the press, and is so unjustifiable that neither the

District Court nor the Court of Appeals even tried to justify

- this discrimination: As a matter of fact, even the Respondents,

in their Appellate brief, admit, in effect, that this discrimination

. 1s unjustifiable. The Respondents attempt to get around this

point by arguing, on page 17 of their Appellate brief, that: “We

note, first, that as the Post Office Department interprets 18

U.S.C. 1718, newspapers which contain exposed defamatory .

matter, like defamatory postal cards are nonmailable. There is

thus absolutely no basis for appellants’ statement (Appellants’

Brief, p. 24). that: ‘It isa common everyday practice for news-

papers to be sent through the mails, without wrappers, with

scurrility and defamation exposed on their exterior surfaces” __

[footnote] (United States v. Higgins, 194 Fed. 539 (D.C.W.D. .

Ky.), held that the exposed portion of an unwrapped news-

paper, although containing defamatory mattet, does not fall

within 18 U.S.C. 1718 because the newspaper itself does not

constitute ‘the envelope or outside cover or wrapper’. The.Hig- ©

gins decision is contrary to United States v. Burnell, 75 Fed.

824 (D.C.S.D. lowa); was criticized in United States v. Ander-

son, 268 Fed. 696 (D.C.D. Mont.), and ‘is not followed by the

“Post Office Department.)”

The respondents may argue, as they have argued“previous- °

ly, that the Post Office Department has the power to censor the

truth involving matters of general public concern appearing on

the outside surface of newspapers and magazines, but they have

not argued, nor can they argue, that they have actually exercised |

this power in modern times. If their claim were really valid,

.then the least they ought to do now is to cite a few cases in

which magazines or newspapers were denied imailing privileges

for the “crime” of revealing the truth involving mattets of

general concern, merely because said truth reflected injuriously

upon the character or conduct of public figures. The petitioners

have insisted, and continue to insist, that they can prove that

magazines and newspapers are presently being sent through the -

‘mails, without wrappers, with scurrility and defamation exposed.

on their exterior surfaces. The fact is that in the caseof Lamont

v. Postmaster-General, 381 U.S. 301, the Communist Party of

China won the right to send magazines containing defamatory

attacks on public figures by unsealed mail. It should be noted

that the Communist Party. of China previously enjoyed the right

to send magazines containing defamatory attacks on public

figures by sealed mail. When it is also considered that the de :i-

sion of United States v. Higgins, supra, 194 Fed. 559, permits

these same magazines to be-sent through the mails without a

wrapper, we see that the‘Communist Party of China enjoysa _ a

greater degree of freedom of the press in our own nation thanan .

American citizen. Surely, the principle of “EQUAL JUSTICE

UNDER LAW” demands that an American citizen enjoy at

15

"i

LIMO: Ba EOE INR OS,

least the same, amount of freedom of the press in‘his own

country as is presently enjoyed by the Communist Party of

China. a 3 |

There is one more aspect of this claim of discrimination.

“As the respondents themselves point out, in a footnote at page

17 of their Appellate brief: “39 C.F.R. 124.9(b) provides that

when the local postmaster is in doubt as to the mailability of

matter under specified laws, including 18 U.S.C. 1718, he shall

‘withhold it from dispatch or delivery, and shall send a sample

or a complete statement-of the facts to the Mailability Division,

Office of the General Counsel, for instructions. Newspaper

containing doubtful matter should be promptly reported to the

Mailability Division, Office of the General Counsel, but they

should not be withheld from dispatch without specific instruc-

tions.’ ”” (See Appendix A, pages 3a-4a, infra. )

Now, let us consider a hypothetical example. A newspaper

is sent through the mail. The local Postmaster observes defama-

tory material on its exterior surface. He writes to Washington,

D.C. for instructions, While awaiting instructions, the newspaper

‘ gets delivered, and by the time instructions are received, it is too

_late to do anything except to arrest the publisher as a criminal,

"and give him a trial by jury. Thus the-publisher of a nefwspaper

is not subjected to prior restraint, while the sender of a post

card is subjected to prior restraint. Thus not only are the peti-

tioners subjected to prior restraint, but discriminatory prior

- Festraint at that. This brings the argument to its next point.

QUESTION No. 4 ©

39 U.S.C. 4001, ON ITS FACE AND AS APPLIED,

- VIOLATES BOTH THE SENDER’S AND THE

_ RECEIVER’S RIGHTS TO FREEDOM OF SPEECH -

AND PRESS AS GUARANTEED BY THE FIRST

AMENDMENT TO THE UNITED STATES

CONSTITUTION, -

This question refers to prior restraint and administrative .

censorship. This Court, in Bantam Books Inc. v. Sullivan, 372

U.S. 58, 70, held that: “Any system of prior restraint of expres-

sion comes to this Court bearing a heavy presumption against

16 ,

its constitutional validity.” In a concurring opinion in Manual

Enterprises v. Day, 370 U.S. 478, 497-499 (particularly footnote

No. 4 at page 498), Justice Brennan clearly anid specifically -

held that a claim that administrative censorship by the Post

Office Department violates the constitution, is a claim for a

three-judge court. In Freedman v. Maryland, 380 U.S. 51, 61-62,

Justice. Douglas and Black, in a footnote to a concurring opinion, *

~ held that: “The Court today holds that a system ‘of movie cen-

sorship must contain at least three procedural safeguards if it is

not to run afoul of the First Amendment. (1) the censor must

have the burden of instituting judicial proceedings; (2) any

restraint prior to judicial review can be imposed only briefly in

order to preserve the status quo; and (3) a prompt judicial

determination of obscenity must be assured.” Also see Teitel

Film Corp. v. Cusak, 19 L ed 2d 966, 968-969.

If this Court declines to pass upon the first three questions

presented herein, it would, in effect, permit the continuation of

discriminatory political censorship. However, there remains this

question and the following question which should still be

passed upon. In Manual Enterprises v. Day, 370 U.S. 478, 497,

Justice Brennan, in a concurring opinion, held that: “We risk

_ erosion of First Amendment liberties unless we train our vigil-

ance upon the methods whereby obscenity is condemned no

less than upon the standards whereby it is judged.” It may also

be said that we risk erosion of First Amendment liberties

(whatever is left of them) unless we train our vigilance upon the

methods whereby political criticism is condemned no less than

‘upon the standards whereby it is judged. 18 U.S.C. 1718 permits

a very mild form of political criticism to be exposed ‘on enve-

lopes and post cards. Cf. McKnight v. United States, 78 F.24931.

But when political criticism exposed upon post cards and

envelopes becomes Slightly more robust, uninhibited, or wide- —

. open, it may then be suppressed at an administrative proceed-

ing. Cf. Stevens v. Summerfield, 151 F. Supp. 343; Atfd. 257

F.2d 205. The line between mild political criticism and robust

political criticism should be determined, in the first instance, by

_acourt of law, and not by an administrative proceeding: For

one thing, an administrative proceeding béfore the Post Office

17 |

Department does not even provide for subpoenas. (39 C.F.R.

952.19, Appendix A, page 4a, infra). For another thing, there

is no time limit on how long post cards or letters may be de-

tained before an administrative hearing is commenced. (See

paragraph 4c of Affidavit, Appendix C, page 38a, infra.)

Consider the specific example of the post cagd filed with

the District Court at a hearing on 12/23/66 an eproduced in

Appendix C, page 50a, infra. This post card ha3.not yet been

found to be nonmailable. (Any statement by the receiver as to

its mailability is not binding on the sender, since there is no

attorney-client relationship between the sender and the re-

. ceiver.) This card denounces a certain congressman. If the _

sender tries to mail copies of this card during a congressional

election campaign, the Post-Office Department can seize the

cards and delay its administrative proceeding until after the

election, Worse yet, the Post-Office Department may seize,

- detain, and destroy the cards without any notice or hearing

whatsoever. This can bé done as provided by 39 C.F.R. 953.2,

which provides that: “The rules [rules of practice in proceed-

ings relative to mailability] shall be applicable only to cases

where the matter offered for mailing shall be of substantial

value or quantity. The initial determination of this question

by the General Counsel may be appealed tothe Judicial Of-

ficer.” (See Appendix A, page Sa, infra). .

On the other hand, even if this Court finds 18 U.S.C. |

1718 to be unconstitutional, the Post-Office Department would |

still retain the power to censor the very same post cards by

merely accusing them of being obscene. Cf. 39 C.F -R. 124.4(a),

124.9(b), and 953.3, Appendix A, infra, Therefore, regardless

' of whether or not 18 U.S.C. 1718 is found to be unconstitution-

al, 39 U.S.C. 4001 must be declared to be unconstitutional.

QUESTION No. 5

39 U.S.C. 4001, ON ITS FACE AND AS APPLIED,

VIOLATES THE SENDER’S RIGHTS UNDER THE

DUE PROCESS CLAUSE OF THE FIFTH AMEND-. |

MENT TO THE UNITED STATES CONSTITUTION. |

The final question to be considered is: What disposition is

18

~

—— —

OPAL PL US INE ERLE 4

to be made of items declared to be nonmailable‘at an adminis-

trative proceeding? May the Post-Office Department, without a

judicial determination, order their forfeiture and destruction, or

must they be returned to the sender? It must be noted that the

Postmaster-General has the ovtion of either returning the cards

to the sender, or ordering their forfeiture and destruction. |

Volume | of Davis, snare. Law Treatise, page 252,

points out that, in exercising thiSWiscretionary power: “It is

undeniable that [political] pressures substantially affect the .

ultimate conclusion.” And, as for the general question of for-

feitures without judicial determination, 37 Corpus Juris Secun-

dum 11, states: “‘Regardless whether it is a common-law or

judicial forfeiture or a legislative or statutory forfeiture, a judi-

cial determination of the forfeiture by a court of competent

_ jurisdiction is necessary to its validity.” .

There is another aspect of this question to be considered.

The Post-Office Department has consistently refused to inform

the sender of the post cards as to the number of his post cards

seized and as to when the seizures took place. (See Paragraphs

. 4b and 4c of Affidavit, Appendix C, pages 37a-38a, infra.) The

sender has the right to know this information. If the Post-Office

Department is permitted to‘destroy the post cards in question,

then they will have succeeded in permanently depriving the

sender of this information. This Court has held that there

exists a general right to information. In Zemel v. Rusk, 381

U.S. 1, 16, (footnote No. 17), this Court held that: “Indeed, it

was precisely this sort of consideration which led us to hold in

Kent v. Dulles, supra, 357 U.S. at 126-127, that the right to

travel is protected by the Fifth Amendment. See also Aptheker

v. Secretary of State, supra, 378 U. s. at 520 (Douglas, J Led

concurring).”

If there exists a general right to intasinatiaen. then sur nly

a person is entitled to know what the government is doing to

him. If a person cannot even determine the particulars of a

governmental action directly affecting him, then the situation is

Similar to the situation described in Franz Kafka’ s novel: The

Trial. .

19

ONCLUSION:

There are some. opinions which, for various reasons, are

banned completely fromthe usual means of entry into the |

marketplace of ideas. For example, the sender claims to have

‘experienced great difficulties in attempting to disseminate his

information and opinion. (See Appendix C, page 51a, infra.)

As Thomas I. Emerson stated in his article, Toward a General

Theory of the First Amendment, in 72 Yale Law Journal

877, 953: |

- Development of the mass media of communication in

this ‘country raises the most pressing current questions as

to the scope of government measures necessary or advis-

able for maintaining an effective system of free expression.

The problem has been clear for some time. More and more

control over communication is being centralized in the

hands of a small group which owns and operates the mass

- media. As a result the communication reaching most mem-

bers of the community conforms to a single pattern; other

views are rarely or never heard. Instead of a system of open

communication, in which all the facts and a diversity of

opinion are available in the market place of ideas, our

system approaches a closed one in which only a single point

of view with minor variations can find an outlet.

Similarly, Jerome A. Barron, in his article, Access to the

Press—A New First Amendment Right, 80 Harvard Law Review

1641, 1648, states: “‘A realistic view of the first amendment re-

quires recognition that a right of expression is somewhat thin if

it can be exercised only at the sufferance of the managers of

mass communications.” This, of course, is the reason that the

sender uses post cards to disseminate his views. The managers of

‘mass communications are reluctant to disseminate the material

on the post cards in question, or equally outspoken material,

either by paid advertisement or otherwise, for fear of “rocking

the boat.” This leaves the use of post cards, in this and similar

circumstances, as the only effective means of long-distance mass

. communication. The sender considers that post cards differ |

from letters in as great a degree as radio broadcasting differs

20

ee tae gt ee ee ee ee ee Pe ce ee Se ees

-

from telephonic communication. Radio broadcasting is obvious-

. ly more suited to mass communication than is the telephone.

}As Eberhard P. Deutsch wrote, in a slightly different context,

' in, Freedom of the Press and of the Mails, 36 Michigan Law Re-

view 703, 732, (1938): “‘ . the suggestion made . . that other

. avenues of circulation remain open to publishers, attains all the

‘pitiful significance of the statement attributed to Marie Antoin-

ette, who, when told that the people had no bread to eat, sug-

gested ‘Let them eat cake!’ ” Finally, on page 749 of this same .

article, Deutsch states that: ““On the assumption, therefore, that

‘liberty of publishing includes liberty of circulating, and that this

_ liberty is infringed by an abridgement of the right to use the

mails, the principle of Near v. Minnesota [2383 U.S. 697] must

be held to be at least equally applicable to the act of Congress

allowing mail to‘be banned which carries defamatory matter in

its envelope or wrapper.” This article was cited with approval

by this Court at least twice—once in Hannegan v. Esquire, 327

U.S. 146, 156; and again in Manual Enterprises vy. Day, 370

U.S. 478, 500.

%

Respectfully submitted,

FRED CHERRY & JULIUS C. TORTORICE

petitioner, pro se: petitioner, pro se

"tee, Me

ae Ae ' ,

i $

7 « ‘

ry

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? ‘ ;

21

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED

The First Amendment to the United States Constitution pro- -

vides in pertinent part as follows:

' “Congress shall make no law . . - abridging the freedom of

speech or of the press...”

Fhe Fifth Amendment to the United States Constitution pro-

vides in pertinent part as follows:

“No person shall . . . be deprived of . _ . liberty, or subperty,

without due process of law.” ;

Title 18 U.S.C. No. 1718

All matter otherwise mailable by law, upon the envelope or

_ Outside cover or wrapper of which, or any postal card upon which

is written or printed or otherwise impressed or apparent any

delineation, epithet, term, or language of libelous, scurrilous,

defamatory, or threatening character, or calculated by the terms

or manner or style of display and obviously intended to reflect -

injuriously upon the character or conduct of another, is non-

mailable matter, and shall not be conveyed i in the mails nor

delivered from any post: office nor by any letter carrier, and

- Shall be withdrawn from the mails under such regulations as the

Postmaster General. shall prescribe.

Whoever knowingly denice for mailing or delivery, anything

declared by this section to be nonmailable matter, or knowingly

takes the same from the mails for the purpose of rculating or

disposing of or aiding in the circulation or disposition of the

same, shall be fined not more than $1,000 or imprisoned not

more than one year, or both. June 25, 1948, c. 645, 62 Sta’. 782.

Title 39 U.S.C. No. 4001

(a) Matter, the deposit of which in the mails is punishable

under sections 1302, 1341, 1342, 1461, 1463, 1714, 1715, 1716,

-” 1717, or 1718 of title 18, is nonmailable.

la

(b) Except as provided in section 4002 of this title, nonmail-

able matter which reaches the office of delivery, or which may _

be seized or detained for violation of law, shall be disposed of as —

the Postmaster General directs. Pub. L. 86-682, Sept. 2, 1960,

74 Stat. 654.’ ; ;

Sections 124.4 (a), 124.5 (e), 124.9 (b), 952.19 and 953 of )

Title 39 of the Code vi) Federal , searens are set forth below, —

as indicated. '

(Please note that Sect ion 953 has been recently recodified. It |

__ was formerly numbered as Section 203, and is so referred to in —

the administrative proceedings and i in the proceedings before the |

District Court.) |

Title 39—Chapter |

PART 124—NONMAILABLE MATTER |

Sec. |

ae 124.1 Introduction. |

° 124.2 Harmful matter. :

; | 124.3 Intoxicating liquors.

124.4 Obscene and indecent matter.

124.5 . Lotteries, frauds, and libelous matter. - |

' 124.6 Disloyalty and threats to the Presi-

' - dent. , .

124.7 Copyright violations.

124.8 Certain foreign communications.

124.9. Opinions on mailability.

‘AuTHorITY: The provisions of this Part 124

issued under R.S. 161, as amended, sec. 1, 62

Stat. 740, 741, 761-763, 768, 769, 781, 782, 64

Stat. 451; 5 U.S.C. 22, 17 U.S.C. 101, 18 U.S.C.

871, 876, 877, 1262, 1302, 1305, 1341, 1342,

1461, 1463, 1714-1718, 39 U.S.C. 501, 4000-

4007, 4057, 4353.

Source: The provisions of this Part 124 ap-

pear at 26 F.R. 11524, Dec. 6, 1961, unless

otherwise noted. Redesignated at 31 FR.

16350. Dec. 8, 1966.

ee . 2a”

§ 124.4 Obscene and indecent matter.

_ (a) Lewd or filthy matter. Obscene,

- lewd, lascivious,-or filthy publications or

writings, or mail containing information

concerning where, iiow, or from whom

such may be obtained, and: matter which

is otherwise mailable. but which has on

its wrapper or envelope any indecent,

lewd, lascivious, or obscene writing’ or

printing. Any mail containing any

— vile, or indecent thing.

: 3 124.5 Lotteries, ‘totale and libelous

matter.

(e) Libelous matter. Any matter

' -otherwise mailable which has on its out-

side wrapper or envelope, or any postal

ecard or post card carrying on it: |

.(1). Any libelous, scurrilous, defam-

atory, or threatening language, whether

written or printed, or which by its man-

ner or style of display is obviously in-

tended to reflect injuriously on the char-

acter or conduct of another; or

(2) Any language asking for payment

of a bill, which by its manner or style of

display is defamatory and reflects in-

parte tae on the character of addressee.

§ 124.9 Opinions on mailability.

(b) Postmasters and other employees -

at post offices shall not. give opinions to

the public concerning the mailability

of matter under §§ 124.4, 124.5, 124.6,

3a

)

124.7, 124.8 and $§ 125.5, 125.6 of this .

chapter. n doubt as to the mail-

ability of any such matter, the postmas-

ter shall withhold it from dispatch or

delivery, and shall send a sample or a

. complete statement. of the facts to the

-Mailability Division, Office of the General

_ Counsel, for’ instructions. Newspaper

containing doubtful matter should be

promptly reported to the Mailability Di-

‘vision, Office of the General Counsel, but __

they should not be ‘withheld from dis-

patch without specific instructions. |

§ 952.19 Subpoenas. / ;

The Post. Office Department is nok au-

‘thorized by-law to issue subpoenas re-.

quiring the attendance or — of -

witnesses. “%

PART 953—RULES OF “PRACTICE IN

PROCEEDINGS RELATIVE TO. —

ABILITY —

953.1 ' Authority for yates. ar

953.2 Limitation. ;

9533 Initiation. 7

953.4 Complaint. |

953.55 Notice of hearing; servies.

_ 958.6 Compromise and ‘informal ee

tions.

953.7. Answer.

963.8 .Default.

. 958.9

Hearing.

953.10 Change of eines of hearing.

953.11 Presiding officers.

953.12 Proposed findings of fact.

. 4a

953.13 Initial decision.

953.14 Appeal.

953.15 Departmental decision.

' 953.16 Expedition.

953.17 Disposition.

_. AvurTnHokrrry: The provisions of this Part 953

issued under 5 U.S.C. 301, 39 U.S.C. 501.

' Source: The provisions of this Part 953

appear at 26 F.R. 12777, Dec. 30, 1961, unless

otherwise noted. . Redesignated at 31 FR.

16270, Dec. 20, 1966. ,

§ 953.1 Authority for rules.

These rules of practice are issued by

the Jutiicia] Officer of the Post Office

Department pursuant to authority

delegated by the Postmaster General.

§ 953.2 Limitation.

The rules shall be applicablé aii to

cases where the matter offered for mail-

ing shall be of. substantial value or.

quantity. The initial determination of

this question by the General Counsel may

-be appealed to the Judicial Officer. 3

§ 953. 3 Initiation.

Upon receipt of mail matter of doubt-

ful mailability under the provisions of

18 U.S.C. 1302, 1461, 1463, 1717 or 1718

(see also 39 U.S.C. 4001) submitted by

@ postmaster pursuant to § 124.9(b) of

this chapter (§ 124.92 of the Postal Man-

- ual), the General Counsel shall: (a) File

a complaint’ with the Docket Clerk of

the Post Office Department or (b) in-

struct the postmaster to accept such

matter for mailing. —

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$953.4 Complaint. _ |

The complaint shall: (a) State statu-

tory and/or regulatory authority for

withholding the matter from the mails;

(b) specify the character or content of

the matter which the Complainant be-

lieves to be nonmailable; and ¢e) request

the issuance of a notice of hearing by

the Docket Clerk. se)

§ 953.5 Notice of hearing; service.

Upon receipt of the complaint the.

Docket Clerk shall issue a notice setting

~ the time and place for the hearing. The. .

date set for the hearing shall be within

ten days of the date of the filing of

the: complaint. The notice, together

with copies of the complaint and these

rules, shall be sent promptly to the post-

master at the place of mailing to be

served upon the mailer or his agent.

A receipt therefor shall be obtained and

forwarded immediately to the Docket

Clerk. If personal service cannot be

-Mmade, the notice of hearing shall be de-

posited in the mails for delivery in the

regular course which shall constitute

valid service. A report of such delivery

-Shall be promptly forwarded to the

‘Docket Clerk.

§ 953.6 Compromise and informal dis-

positions.

The mailer may request a conference .

‘with the Coniplainant to consider infor-

mal disposition of any question of mail-

ability or apply to the Complainant for

the withdrawal of the matter from. the

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y

mails. When such a request is received, -

the scheduled hearing date will.be post- .

poned for such period of time as may.

be necessary but in no event longer than

five days unless svecifically requested

by the mailer. If no agreement is

reached, the proceeding shall promptly

be rescheduled for hearing. :

§ 953.7 Answer *

The mailer may file an answer to the

complaint and appear in person or by

counsel at the hearing. .The answer

shall contain a reply to each: allegation

in the complaint and shall be filed in

triplicate with the Docket Clerk in Room

3350, Post Office Department, Washing-'

ton, D.C. 20260, at least three days prior

to the date set for the hearing. Each

allegation not answered shall be Gcoemed

admitted.

§ 953.8 Default. ©

If no answer to the complaint is filed,

the mailer shall be ‘deemed in default

and the Judicial Officer shall instruct

the postmaster of the disposition to be

made of the matter in-accordance with

§ 953.17. If the mailer files an answer

- but fails to appear at the hearing, the

Hearing Examiner ‘shall receive the evi-

. dence of the Complainant and render .

; an initial decision pursuant to + 953. 13.

§ 953.9 Hearing.

Unless otherwise ordered = thé pre-

siding officer, the hearing shall be held

in Room. 5241, Post Office Department,

12th and Pennsylvania Avenue’ NW.,

Ta

Washington, D.C. 20260, on the date set

- in the notice. -

- § 953.10 Change of place of hearing.

Not later than the date fixed for the

filing of the answer, a party may file a

request that a hearing be held to receive

evidence in his behalf at a place other

than that designated for hearing in the

notice. He shall support his request with

a statement outlining: (a) The evidence _

' to be offered in such place; (b) the

- Names and addresses of the witnesses

who will testify; (c). the reasons why

such evidence cannot .be produced at

Washington, D.C. «The presiding officer

shall give consideration to the conven-

- lence and necessity of the parties and the

relevancy of the evidence to be offered.

4 953. 1l . Presiding officers. _

The presiding officer at any no

shall be a Hearing Examiner qualified. .

pursuant to the Administrative Proce-

dure Act (5 U.S.C. 1010) or the Judicial

Officer (74 Stat. 554, Public Law 86-676).

The Chief Hearing Examiner shall as-

sign cases to Hearing Examiners upon |

rotation- so far as’ practicable.. The

Judicial Officer may, for good cause

shown, preside at the reception of evi-

dence in proceedings where expedited

hearings are requested by either party.

§ 953.12 Proposed findings of fact. .

Unless otherwise ordered, proposed

findings of fact and conclusions of law

shall be submitted orally or in writing

_ at the conclusion of the SeneayS:

- Ba

by

§ 953.13 Initial decision.

- Unless given orally at the conclusion:

of the hearing, the Hearing Examiner

shall render an initial decision as expedi-

tiously as practicable following the con-

clusion of the hearing, and the receipt

of the proposed findings, if any.- The

initial decision shall become the depart-

‘mental decision if an appeal is not per-.

fected.

§ 953.14 Appeal.

_ Either party may file exceptions in a

brief on appeal to the Judicial Officer

within five days after receipt of the ini-

tial decision -unless additional time is

granted. A reply brief may be filed

within five days after the receipt of the

appeal brief by the opposing party. _—

§ 953.15 Departmental decision.

The Judicial Officer shall render a De-

' partmental decision or refer the matter

to the Postmaster General for decision.

The decision shall be served upon the

parties and the postmaster.

§ 953.16 - Expedition.

For the purposes of further expedition

the parties may, with the concurrence of

the Judicial Officer, agree to waive any |

of these procedures. When the Judicial

Officer presides at the hearing, he shall

render a tentative or final decision after

the conclusion of the hearing. Excep-

tions may be filed. to a tentative decision.

in accordance with § 953.14.

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§ 953.17 Disposition.

-. Matter found to be nonmailable shall

_ be held at the post office where detained

for a period of fifteen days from the date

of the Departmental decision, unless ex-

tended by the Judicial Officer. During |

that time the mailer may make applica- —

tion for the withdrawal of the matter.

The Judicial Officer shall order the mat-

ter returned to the mailer or otherwise

disposed of in accordance with 39 U.S.C.

4001(b). | |

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