Appellants Brief — Rowan v. United States Post Office Department

SUBJECT INDEX

Page

eReceret 0 TRRRGUUR pnceneetonniinpsatanitnctenanrnatnpeenemencinina 1

Statement of Grounds of Jurisdiction ...................... 1

Constitutional Amendments and Statutes .................. 2

First Amendment to the United States Constitu-

tion .... - 2

Fifth Amendment to the United States Constitu-

I -. chcinsiaicahetintnsniacihtahaseashenceailadtadiadadeapuimbthebidaiasiiinmiibabintaiddanietien 2

The Questions Presented by the Appeal .................. 5

RS 7

EY CE TAR, nceccceccstcannensisictrniiniannioneiatintinnins 10

DIR, « casicesicisciciinetcatichlahitaailleanasiiateineiiia 15

I.

Communications Via the Mails Is Protected Speech

and Press Within the First Amendment of the

Constitution of the United States and Therefore

Enjoys Preferred Status ........ 15

II.

The Prior Restraint, Prohibition and Censorship

of Speech in 39 U.S.C. 4009 Causes It to Be Re-

pugnant to the First Amendment of the Consti-

RARE ae 18

ITT.

The Statutory History, Including Committee Re-

ports and Statements of Committee Members

and Sponsors of Legislation, Support the Inter-

pretation That Is Ascribed to the Statute by

PRED cicsirsniccintisedianientiatittintitainndasiiiimdaiianan 24

ii.

IV. Page

Section 301 of Public Law 90-206 (39 U.S.C

Section 4009) Violates the Fifth Amendment

of the Constitution of the United States in That

It Denies Due Process of Law ............0000... 31

V.

39 U.S.C. Section 4009 Violates the Constitution

of the United States in That Said Statute Is

Vague, Ambiguous, Standardless and an Unlaw-

ful Delegation of Power on Its Face and As Ap-

plied to Appellants ................... -

VI.

The Procedures Provided for the Connection With

the Statute Cause the Statute to Violate the

First and Fifth Amendments and in Themselves

I Pa a ei ranmitihinnaisiiodcatnn 40

VII.

Commercial Activity in No Way Removes the

Protection and Guarantees Afforded by the

First Amendment ............................ 44

VII.

The Right of Privacy Is Not Involved .............. 46

IX.

The Uncontroverted Evidence Together With the

Concurrence as to Statutory Interpretation Does

Not Support the Decision and an Injunction

Should Have Issued 51

II sisi cscdsinaninennieginne 51

iii.

TABLE OF AUTHORITIES CITED

Cases Page

Arizona v. California, 373 U.S. 546 —................. 38, 39

Breard v. Alexandria, 341 U.S. 622 0000000000002... 48, 50

Carter v. Carter Coal Company, 298 U.S. 309 .......... 39

Commissioner v. Estate of Bosch, 387 U.S. 456 .... 25

Dombrowski v. Fister, 380 U.S. 479 ou. 51

Freedman v. Maryland, 380 U.S. 552 ........... 24, 44

Giacco v. Pennsylvania, 382 U.S. 399 .00000........ 38

Ginsburg v. United States, 383 U.S. 463 ................

iiisacasansncnalbailhiahntatiicliageitenhinbainkaneininanitenainennnd 40, 44, 45

Griswold v. State of Connecticut, 381 U.S. 479 .... 47

Hannigan v. Esquire, Inc., 327 U.S. 156 .................. 16

eee G. CCI, DO Ie FO anevensscssccstccsiterscianres 48

Lamont v. Postmaster General, 381 U.S. 301 ..17, 22, 50

Manuel Enterprises v. Day, 370 U.S. 478 .............. 16

Milwaukee Publishing Co. v. Burleson, 255 U.S.

nT . ~~

National Woodwork Manufacturers Assn. v. Labor

Board, 386 U.S. 610 25

Near v. Minnesota, 284 U.S. 697 . 24

Panama Refining Company v. Ryan, 293 U.S. 388

salsdhcacicbiiadiaittasaitihsnititsidisinapenaciliabhiisiasniatithad 38

Roth v. United States, 354 U.S. 476 00... 16

Schecter Poultry Corp. v. United States, 295 U.S.

ee sinistasniseharaieabid dlclanes caste canines 38, 39

Schwegmann Brothers, Calvert Distillers Corp., 341

SUN SII cieccabininseniocitinsenintnbibdanteveneiiani 24

Smith v. California, 361 U.S. 147 ans

iv.

: Page

speteer w. Ramiall, 357 US. S19 nec ecevensecataic 16

Stanley v. Georgia, 89 S. Ct. 1243 0.002222. 47

United States v. American Trucking Association,

310 U.S. 534 sesscsinneninasiegieinbaatnetaidiciie 25

United States v. Dickerson, 310 U.S. 554 .0. ou... 25

United States v. Oregon, 366 U.S. 643 -20. ow... 24

United States v. United Mine Workers, 330 U.S.

258 25

Valentine v. Chrestensen, 316 U.S. 52... 45

Walker v. Popenoe, 149 F. 2d 511 19, 31

Winters v. New York, 333 U.S. 507 .............. ~

Wright v. Vinton Branch Bank, 310 U.S. 440 .......... 25

Miscellaneous

Hearings Before the Committee on Post Office and

Civil Service, United States Senate, Ninetieth

sensitsiensennineriosecnndteinniatcatninnantassii 28

Hearings Before the Committee on Post Office and

Civil Service, United States Senate, Ninetieth

Congress, First Session, on H.R. 7977, pp. 517,

oR ER | Cee eee 30

Hearings Before the Committee on Post Office and

Civil Service, United States Senate, Ninetieth

Congress, First Session, on H.R. 7977, p. 545 .... 28

Hearings Before the Committee on Post Office and

Civil Service, United States Senate, Ninetieth

Congress, First Session, on H.R. 7977, pp. 566-

Page

Hearings Before the Committee on Post Office and

Civil Service, United States Senate, Ninetieth

Congress, First Session, on H.R. 7977, pp. 577-

BZ --.n-n0-n2nscnenennsecneneensnaceonaneesensnsvnesensnsneneeasnsesscacoseses 29

Hearings Before the Committee on Post Office and

Civil Service, United States Senate, Ninetieth

- Congress, First Session, on H.R. 7977, pp. 593-

SID anencennentsctnne - 43

Hearings Before the Committee on Post Office and

Civil Service, United States Senate, Ninetieth

Congress, First Session, on H.R. 7977, pp. 627-

629 ssecseeceseessscnsesensenenecsssnsenscenesensenssscessussenenes 29

Hearings Before the Committee on Post Office and

Civil Service, United States Senate, Ninetieth

Congress, First Session, on H.R. 7977, p. 631 .... 29

Report of the Committee on Post Office and Civil

Service Affairs, the House of Representatives, to-

gether with individual and minority views, the

First Session, 90th Congress, Report No. 722, pp.

FTE. saeninsadidbanababibigaiiniistaannielbniidtailibaibihiicanionen 27

Report of Committee on Post Office and Civil Serv-

ice Matters, First Session of the 90th Congress,

Senate Report No. 801, p. 39 ....... 27

The Congressional Record, 90th Congress, First Ses-

sion, H. 13265.6 (October 11, 1967) .............. 20

U.S. Code and Congressional and Administrative

News, 90th Congress, First Session, 1967 Legis-

lative History, pages 2294-95, Ninetieth Congress,

First Session on H.R. 7977, p. 525 .............-0-00-+ 26

Rules

Federal Rules of Civil Procedure, Rule 12(b) ...... uy =

Federal Rules of Civil Procedure, Rule 56 .............. 1, 6

vi.

Statutes

Page

Code of Federal Regulations, Title 39, Part 956

Public Law 90-206, Sec. 301 .......... 3, 5, 6, 7, 10, 17, 5}

Public Law 90-206, Title III, Sec. 301(a) ............ F

United States Code, Title 28, Sec. 1253 2000000... 1, 8

United States Code, Title 28, Sec. 2284 -00000..... 1

United States Code, Title 39, Sec. 4008 ........... 22

United States Code, Title 39, Sec. 4009(d) ........

cdicthsnitabainaenedaeiplainnimbtecaiehaleghinace tail 31, 41, 42

United States Constitution, Art. I, Sec. 8 -2000000... .

United States Constitution, First Amendment ....2, 5

8, 10, 13, 15, 17, 18, 19, 20, 21, 30, 43, 44, 45, 46

United States Constitution, Fifth Amendment ....2, 5

winsesnetipad 6, 8, 10, 14, 30, 31, 34, 35, 36, 43, 44, 49

IN THE

Supreme Court of the United States

October Term, 1969

No. 399

DANIEL RowANn, dba AMERICAN Book SERVICE, et al.,

Appellants,

US.

UniteD STATES Post OFFICE DEPARTMENT, et al.

APPELLANT’S OPENING BRIEF.

Reference to Reports.

The within case consisting of the opinions delivered

in the court are as yet unreported.

Statement of Grounds of Jurisdiction.

The jurisdiction of this court is invoked upon the

grounds that the case below involved the denial of a

granting of an interlocutory injunction by a three-

judge court and, further, a dismissal of the action be-

low pursuant to Rules 56 and 12(b) of the Fed-

eral Rules of Civil Procedure. Authorization for direct

appeal to this court is provided for in Title 28 U.S.C.

Section 1253. The three Judge court was convened pur-

suant to Title 28 U.S.C., Section 2284.

The ruling and judgment in the case below was April

30, 1969 and the date of entry of said decision and

judgment was April 30, 1969. Notice of Appeal was

-

filed within 60 days from the date of entry of saiq

judgment and particularly done on May 28, 1969. The

Notice of Appeal was filed in the United States District

Court for the Central District of California. No re.

hearing date was requested nor granted.

A jurisdictional statement on behalf of the appellants

herein was filed on the 28th day of July, 1969.

The within appeal was docketed in the Supreme

Court of the United States on July 28, 1969 designated

as No. 399 October term, 1969.

Probable jurisdiction was noted October 27, 1969,

Constitutional Amendments and Statutes.

First Amendment to the United States Constitution.

Congress shall make now law respecting an establish-

ment of regligion, or prohibiting the free exercise there-

of ; or abridging the freedom of speech, or of the press;

or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

Fifth Amendment to the United States Constitution.

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in ac-

tual service in time of War or public danger; nor shall

any person be subject for the same offense to be twice

put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, with-

out due process of law; nor shall private property be

taken for public use, without just compensation.

=

Advertisements In The Mails. Prohibition of Pander-

ing. Section 301 of Public Law 90-206 (codified as

39 U.S. Code, Section 4009).

(a) Whoever for himself, or by his agents or as-

signs, mails or causes to be mailed any pandering ad-

yertisement which offers for sale matter which the ad-

dressee in his sole discretion believes to be erotically

arousing or sexually provocative shall be subject to an

order of the Postmaster General to refrain from further

mailings of such materials to designated addresses

thereof.

(b) Upon receipt of notice from an addressee that

he has received such mail matter, determined by the ad-

dressee in his sole discretion to be of the character de-

scribed in subsection (a) of this section, the Postmas-

ter General shall issue an order, if requested by the ad-

dressee, to the sender thereof, directing the sender

and his agents or assigns to refrain from further mail-

ings to the named addressees.

(c) The order of the Postmaster General shall ex-

pressly prohibit the sender and his agents or assigns

from making any further mailings to the designated ad-

dressees, effective on the thirtieth calendar day after re-

ceipt of the order. The order of the Postmaster General

shall also direct the sender and his agents or assigns to

delete immediately the names of the designated ad-

dresses from all mailing lists owned or controlled by

the sender or his agents or assigns and, further, shall

prohibit the sender and his agents or assigns from the

sale, rental, exchange, or other transaction involving

mailing lists bearing the names of the designated ad-

dressees.

a

(d) Whenever the Postmaster General believes that

the sender or anyone acting on his behalf has violated

or is violating the order given under this section, he

shall serve upon the sender, by registered or certified

mail, a complaint stating the reasons for his belief

and request that any response thereto be filed in writing

with the Postmaster General within fifteen days after

the date of such service. If the Postmaster General,

after appropriate hearing if requested by the sender,

and without a hearing if such a hearing is not re

quested by the sender, and without a hearing if such a

hearing is not requested, thereafter determines that the

order given has been or is being violated, he is av-

thorized to request the Attorney General to make appli-

cation, and the Attorney General is authorized to make

application, to a district court of the United States for

an order directing compliance with such notice.

(e) Any district court of the United States within

the jurisdiction of which any mail matter shall have

been sent or received in violation of the order provided

for by this section shall have jurisdiction, upon appli-

cation by the Attorney General, to issue an order com-

manding compliance with such notice. Failure to ob-

serve such order may be punished by the court as con-

tempt thereof.

(f) Receipt of mail matter thirty days or more after

the effective date of the order provided for by this

section shall create a rebuttable presumption that such

mail was sent after such effective date.

(g) Upon request of any addressee, the order of the

Postmaster General shall include the names of any of

his minor children who have not attained their nine-

teenth birthday, and who reside with the addressee.

antics

(h) The provisions of subchapter II of chapter 5

(relating to administrative procedure) and chapter 7

(relating to judicial review) of part I of title 5, United

States Code, shall not apply to any provisions of this

section.

(i) For the purposes of this section—

(1) mail matter, directed to a specific address

covered in the order of the Postmaster General,

without designation of a specific addressee there-

on, shall be considered as addressed to the person

named in the Postmaster General’s order ; and

(2) the term “children” includes natural chil-

dren, stepchildren, adopted children, and children

who are wards of or in custody of the addressee or

who are living with such addressee in a regular

parent-child relationship.

Added Pub.L. 90-206, Title III, § 301(a), Dec. 16,

1967, 81 Stat. 645.

The Rules of Practice 39 C. F. R. 956 are set forth

in the appendix to this brief at page 30 through page 35.

The Questions Presented by the Appeal.

1. Is Section 301 of Public Law 90-206 (Title 39

U.S.C. 4009) unconstitutional ?

2. Does Section 301 of Public Law 90-206 (39

U.S.C. Section 4009) violate the First Amendment of

the Constitution of the United States as an abridgement

of appellants right of free speech and freedom of the

press ?

3. Does Section 301 of Public Law 90-206 (39

U.S.C. Section 4009) violate the Fifth Amendment of

_

the Constitution of the United States, in that it denies

appellants due process of law?

4. Does Section 301 of “ublic Law 90-206 (39

U.S.C. Section 4009) violate the Constitution of the

United States in that said statute is vague, ambiguous,

standardless, and as applied to appellants an unlawfy|

delegation of power?

5. Do the procedures available to appellants in con-

nection with hearings provided for pursuant to Section

301 of Public Law 90-206 (39 U.S.C. Section 4009)

violate the Fifth Amendment of the Constitution of the

United States in that it denies appellants due process

of law?

6. Are appellants entitled to injunctive relief enjoin-

ing the execution, implementation and administration of

Section 301 of Public Law 90-206 (39 U.S.C. Section

4009)?

7. Is the denial of injunctive relief to appellants

herein an abuse of discretion?

8. Are the Findings of Fact supported by the evi-

dence herein?

9. Are the Conclusiors of Law supported by the

facts?

10. Inherent in Numbers 8 and 9 herein is the ques-

tion whether the Appellants’ action herein was properly

dismissed pursuant to Rule 56 and 12(b) of the Federal

Rules of Procedure.

11. Are the rules of practice (39 C.F.R. 956) in

proceedings relative to violations under Title 39 U.S.C.

4009 unconstitutional in that they violate the Fifth

Amendment of the Constitution of the United States?

entices

Statement of the Case.

Appellants are publishers, advertisers, distributors, and

are in the business of mailing services as well as operat-

ing mail order houses.

Section 301 of Public Law 90-206 (39 U.S.C. §4009)

became effective as an act of Congress on the 15th

day of April, 1968. It was a rider to the postal rates and

salary statute. Appellants herein are directly and overtly

effected by this legislation, its administration, enforce-

ment and implementation. (A 17-38.)

Appellants herein received within six months of the

enactment of 301 Public Law 90-206 between 7,000 and

10,000 Prohibitory Orders (A 17-38.) Prohibitory Or-

ders are the first step embodied within that legislation.

A Prohibitory Order pursuant to this legislation is issued

by the Postmaster General to a mailer directing him

and his agents or assigns to refrain from further mail-

ings to a named addressee. A Prohibitory Order is is-

sued upon the request of an addressee.

The Prohibitory Order expressly prohibits the sender

and his agents or assigns from making any further mail-

ings to the addressee effective on the thirtieth calendar

day after receipt of the order. The order must also direct

the sender and his agents or assigns to delete immedi-

ately the names of the designated addressees from all

mailing lists owned or controlled by the sender or his

agents or assigns and, further. the Order must prohibit

the sender or his agents or assigns from the sale, rental.

exchange, or other transaction involving mailing lists

bearing the names of the designated addressees.

The fact that appellants had received collectively be-

tween 7,000 and 10,000 Prohibitory Orders was sub-

=

stantiated by Affidavits filed in support of an action

originated in the Court below. (A 17-38.) Said A ffida-

vits were uncontroverted throughout the matter in the

Court below. Plaintiffs and the government agreed vir.

tually on the meaning of the statutes. (A 45, 46, 47, 48

50, 51.) The Court below interpreted the statute dif-

ferently. (A 58-79.)

Appellants originated an action upon a complaint and

petition for declaratory relief to declare said public law

unconstitutional in that it is violative of the United

States Constitution and, namely, Article I, § 8, The

First Amendment and Fifth Amendment thereto. (A

3-11.) Appellants asserted also that the law was an un-

lawful delegation of power, was ambiguous and also

standardless, all in derogation of the Constitution of

the United States (A 3-11.) Appellants sought an in-

junction pursuant to 28 U.S.C. 1253. (A 3-40.)

The issuance of a Prohibitory Order Pursuant to said

statute is initiated by a recipient of mail, if in his sole

discretion, he believes that pandering advertisements

are erotically arousing or sexually provocative. Subse-

quent to the issuance of the Prohibitory Order, the Post-

master General, whenever he believes that such a sender

or anyone acting on his behalf, has violated or is violat-

ing the Prohibitory Order, must serve upon the sender

a complaint stating the reasons for his belief and re-

quest that any response thereto be filed in writing with

the Postmaster General within fifteen days after the

date of such service. Should such notification be joined

by a sender, then a hearing, if requested, shall be set

for the purposes of determining whether the Order giv-

en has been or is being violated.

—9—

The hearing that follows is conducted pursuant to

rules of procedure contained in 39 C.F.R. part 956

(A 30-35.)

The Rules of Procedure do not permit the subpoena

process, confrontation by complainant, nor is the pro-

cedure within the Administrative Procedure Act. (A 30-

35.) The statute particularly exempts procedures con-

tained therein from the Administrative Procedures Act.

The regional counsel for the area serves as the hearing

officer. (A 30-35.) The only evidence offered by the

Government is the request for a Prohibitory Order and

that, in fact, same has been directed to a party. Issues

in question as concerning the constitutionality of pro-

cedures or substance are beyond the scope of the hear-

ing officer. (A 24, 25.)

Once it is decided at such hearing that a party has

violated the Prohibitory Order or that a party’s agents

or assigns have done so, the regional counsel requests

of the Attorney General of the United States to give

consideration to making application to a District Court

of the United States for an order directing compliance

with the above captioned Prohibitory Order.

Violation of an order of the District Court of the

United States is punishable by contempt.

A three-judge court convened to hear the matter be-

low dismissed appellants’ complaint. (A 80.) It there-

fore concluded that Title 39 U.S.C., Section 4009 was

not unconstitutional.

—

Summary of Argument.

I.

Section 301 of Public Law 90-206 (codified as 39

U.S.C. 4009) violates the Constitution of the United

States in that it is an abridgement of the First Amend.

ment thereto. The statute provides for a direct restraint

and censorship upon freedom of expression, speech and

press. It does this by vesting complete control of the

flow of mail in individuals who may exercise that power

upon a subjective determination all their own. Once an

individual determines, within his sole discretion, that

mail is erotically arousing or sexually provocative to

himself, he may obtain a Prohibitory Order directed

to the mailer which would cause that mailer to cease and

desist from any further mailing of any kind whatsoever

to this recipient. In addition, the mailer is further or-

dered by the Postmaster General to not mail to the recipi-

ent, any mail whatsoever, but also to cease and de-

sist from transacting, selling, renting or exchanging any

lists upon which the recipient’s name is contained. This

power vested in an individual, and supported and but-

tressed by federal governmental action, is a complete

restraint and censorship upon freedom of speech and

press. It has a chilling and inhibiting force upon free

speech and press.

II.

The same action and power constitutes a violation of

the Fifth Amendment of the Constitution in that it is

a denial of due process of law. The Order, if violated,

may be enforced ultimately by the District Court, and

punished by contempt. No procedural standards of a

wali dun

Constitutional calibre are provided for the administra-

tive proceedings that purportedly are available to a mail-

er. In addition, the Court below contends that when the

hearing procedure is called into effect, by the mailer,

the Postmaster General clearly must review the Second

mailing of the sender and measure it against the First

mailing which initiated the Prohibitory Order in order

to determine whether, in fact, a violation has occurred.

This view of the Court below is contrary to the legisla-

tive history, committee reports and testimony given be-

fore the Senate Committee reviewing this legislation.

Needless to say, if this were the situation then in faci

there are no standards by which such a determination

can be made, because in the first instance, the Prohibi-

tory Order was obtained predicated upon a subjective

view of a recipient. On the other hand, if the interpre-

tation is as contended by Appellant, and as is supported

by the plain meaning of the language together with the

legislative history, and all additional indicia, then it mere-

ly means that a violation occurs upon the subsequent

mailing of any type of material regardless of its sub-

stance or matter. Further, a violation would occur merely

in the transaction or dealing with the list upon which the

parties name may appear who had at some other time ob-

tained a Prohibitory Order against such a mailer. Ap-

pellants urge that there is a denial of due process, both

procedurally with regard to the hearing procedures, the

imposition of the restraint and censorship aspects of

the statute, as well as the manner by which the use of

property is being curtailed by way of Federal legisla-

tion.

_e

III.

Legislative history, the plain meaning of the statute,

the committee reports, the testimony of the Attorney

General of the United States, the General Counsel of

Post Office Department, and other interested persons

clearly indicate what the interpretation of the statute

should be. The interpretation of the statute is consist.

ent with that which Appellants argued in the Court be.

low. The Court below stressed that if, in fact, Appel-

lants were correct in their interpretation then, indeed,

the government was in “Hot water”. The Court

then attempted to “shrink the loosely woven fabric of

the statute down to Constitutional size.” Appellants

urge that a reading of all of the indicia upholds their

interpretation of the statute and hence the statute must

fall by its own language and weight.

IV.

Appellants argue that the statute is void because it

involves an unlawful delegation or standardless delega-

tion or is ambiguous. Further, Appellants urge that the

statute is void for vagueness. There is no question but

that if the power granted to the individual in subsections

(a), (b) and (c) of the statute were granted to the

Postmaster General, the delegation of power would run

rampant. The problem is that no legality is acquired

merely by granting this power to an individual, in the

first instance due to the fact that subsequent to the

Prohibitory Order the network of governmental ma-

chinery is put in motion that ultimately could lead

its way to a citation for contempt against the mailer.

One of the factors that makes this possible is the

broad and standardless delegation of power to the

individual to determine in his sole discretion that

which is erotically arousing or sexually provocative.

ww a ae Ss |! heme

=—\

Moreover, and even more fundamental to the defect, is

that all subsequent mailings thereafter are made illegal

and punishable through pressure by process or pain of

contempt, all of which is predicated upon some stand-

ardless statute declaring certain written expression il-

legal by operation by reaction. Further, the illegality

that occurs merely by virtue of dealing, renting, ex-

changing or transacting with lists has no guideline for

illegality.

V.

The Court below and the government have argued

and urged that commercial activity is ascribed a lower

rung on the First Amendment “ladder” than other

forms of speech. Indeed, there is an implication that,

in fact, by virtue of the commercial aspects of the mail

involved that it is not wrapped in the impervious paper

of the First Amendment. Appellants argue that which

has been repeated often which is namely freedom of ex-

pression, speech and press, does not lose its preferred

status because it may be done under the auspices of com-

mercialism. Appellants argue that in fact if this were the

case, an advertisement for the sale of a Bible is capable

of triggering off a violation of the statute, whereas,

the offering for free of erotically arousing and sexually

provocative material would fall beyond the purview

of this statute. Needless to say, this would all be to the

frustration of the purposes of Congress. Commercial

activity cannot erode or corrode First Amendment guar-

antees and rights.

VI.

Throughout the case below and during aspects of the

legislative history preceding this statute was the pur-

ported claim for the pitting of the First Amendment

rights of free speech and press against a purported

First Amendment right of privacy. The right of pri-

a

vacy is not in issue if the statute fails upon any of the

preceding grounds.

Indeed if the statute is null and void then the conflict

is manufactured. However assuming the analysis

reaches this distance it is clear that a zone of privacy

is not encroached upon nor is the matter so rooted in the

traditions and conscience of our people as to be ranked

as fundamental. In any event the right of free speech

and press coupled with the fifth amendment rights in.

volved must out-balance the right of privacy assuming

it to be more than an amorphous concept.

VII.

The statute removes the hearing procedure from the

Administrative Procedure Act. It further removes ju-

dicial review from the Administrative Procedure Act. It

represents a step backwords in the administration of

justice. In exempting same a statutory scheme has

been devised to seriously trammel the rights of mailers,

Vill.

Since the court below upheld the statute against the

challenge made below, It therefore also denied appellants

claim for an interlocutory injunction against the en-

forcement, implementation and administration of the

statute. The court adopted its opinion as the findings

of fact and conclusions of law. It dismissed the com-

plaint of the appellants (plaintiffs below). It is clear

that the uncontroverted affidavits of appellants demon-

strating irreparable harm and multiplicity of litigation

and the government’s concurrence in appellants’ interpre-

tation of the statute still gave rise to an adverse ruling

to appellants. This was only due to statutory construc-

tion. For all of the foregoing reasons the injunction

should have issued.

—_|

ARGUMENT.

3

Communication Via the Mails Is Protected Speech

and Press Within the First Amendment of the

Constitution of the United States and Therefore

Enjoys Preferred Status.

The opposable thumb, the primate vertabrae, and the

ability to communicate separates man from the entire

animal kingdom. An attempt by organized society to

alter the two former criteria would be unimaginable.

The attempt to circumscribe and proscribe the third dis-

tinguishing feature because it involves the emotions

and intelligence of man has been the basis for many

arguments before this court.

The freedom to communicate orally and by the written

word and, indeed, in every manner whatsoever is im-

perative to a free and sane society.

There are many avenues and arteries through which

the dissemination and distribution of written materials

flow. The postal system is certainly one of the more

important media in this complex society. This artery

becomes no more subject to sclerosis by control and cen-

sorship just because it is of governmental emanation

than any of the other avenues through which we seek

to communicate from human to human.

It is clear that the use of the mails for the dis-

semination and distribution of written materials is well

within the zealous protection and guarantee against

abridgement afforded by the First Amendment to the

United States Constitution.

It seems important to reemphasize this tenet. A pur-

pose is served, particularly if it serves to impede or

=

even slow down a rapid attempt to circumvent or cir.

cumscribe this basic truth of our law and sanity.

Justice Oliver Wendell Holmes stated in Milwaukee

Publishing Co. v. Burleson, 255 U.S. 407, 437 that

“The United States may give up the Post Office

when it sees fit, but while it carries it on, the yse

of the mails is almost a part of free speech as the

right to use our tongues...”

In the case of Speiser v. Randall, 357 U.S. 513, 518

the Court stated:

“. . . It has been said that Congress may not by

withdrawal of mailing privileges place limitations

upon the freedom of speech which, if directly at-

tempted, would be unconstitutional.”

For the purposes of emphasis, may it be noted that this

Court in the case of Manuel Enterprises v. Day, 370

U.S. 478, 504, through Jutice Brennan, taught,

“.. But at least it is arguably correct, and neces-

sary, if we are to avoid the sections probable Con-

stitutional infirmity (see Near v. Minnesota, 284

U.S. 697; Summerfield v. Sunshine Book Com-

pany, 95 U.S. Ap. C. 169, 221 F. 2d 42). If con

strued as a provision allowing the Postmaster Gen-

eral to exclude all matters sent by a person who

had previously sent violative matter (emphasis

added) such an exclusion by attaint could not be

justified by the hoary dogma’. . . that the use of

the mails is a privilege on which the government

may impose such conditions as it chooses, (for that)

has long since evaporated.” Roth v. United States,

354 U.S. 476, 504 (dissenting opinion) ; Hannigan

v. Esquire, Inc., 327 U.S. 156; Spetser v. Randall,

357 U.S. 513, 518).

_—

Freedom of speech and, press have been designated

as the cornerstone of our society. It is within our

judicial system that ihe marketplace of ideas has been

given a foundation. Since this right has been given

such preferred and critical status within our politico-

social framework, its reemphasis must precede any and

all argument in this matter.

This Court reaffirmed that the use of the mails is

within the First Amendment in the case of Lamont v.

Postmaster General, 381 U.S. 301. This Court stated

at page 306 thereof, the following:

“Here the Congress-expressly restrained by the

First Amendment from ‘abridging’ freedom of

speech and of press—is the actor. The Act sets

administrative officials astride the flow of mail to

inspect it, appraise it, write the addressee about it,

and await a response before dispatching the mail.

Just as the licensing or taxing authorities in the

Lovell, Thomas, and Murdock cases sought to con-

trol the flow of ideas to the public, so here Federal

agencies regulate the flow of mail. We do not

have here, any more than we had in Hanmigan v.

Esquire, Inc., 327 U.S. 146, any question concern-

ing the extent to which Congress may classify the

mail and fix the charges for its carriage...”

Better histories and enunciations of this proposition

indeed have been made prior to this Brief. However,

it is against this framework and background that Ap-

pellant’s case is presented.

Appellant’s conduct and activity involve the use of

the United States mails. It is the use by Appellants

of this media that is brought in question by 301 Public

—

Law 90-206 (39 U.S.C. 4009). Appellants’ conduct and

use as it is prescribed and delimited by this statute jg

brought to this Court for its scrutiny and review within

the context of the protection, insulation and signifi.

cance of the First Amendment.

Appellants’ absolute right to freedom of expression

and communication as guaranteed by the First Amend-

ment of the Constitution of the United States is placed

in jeopardy by intrusion and partial annihilation due to

this statute. The power of government or an in.

dividual through government to prevent or deter anyone

from the free use of the mails flies in the face of the

First Amendment and since the statute brought before

this Court does this it is sufficient and adequate reason

to declare it unconstitutional.

II.

The Prior Restraint, Prohibition and Censorship of

Speech in 39 U.S.C. 4009 Causes It to Be Repug-

nant to the First Amendment of the Constitu-

tion.

Restraint and censorship permeate the entire text of

this law. In Section (a) of the statute, the initial re-

straint and censorship is deposited with an addressee.

The addressee may have a Prohibitory Order issued

against a mailer such as Appellants. No discretion and

no guideline are established for the issuing of the order

by the Postmaster General, once he receives such a re-

quest from an addressee. The Order issues without a

hearing. Only the sole discretion of the addressee that

the advertising is erotically arousing or sexually pro-

vocative puts the force in motion which dictates to the

Postmaster General that a prohibitory and injunctive

mandate be issued to a malier or sender such as Appel-

—_ |=

jants. Herein lies a direct restraint which, if granted

directly to the Postmaster General, would certainly fall

before the First Amendment of the Constitution of the

United States. Everyone is given the power to stand

astride the mail.

In the case of Walker v. Popenoe, 149 F. 2d 511

(1945) where a Court addressed itself to the powers

of the Postmaster General in dealing with purportedly

obscene material in the flow of the mail enunciated in

terms explicitly which emphasize the restraint and cen-

sorship power awarded to individuals under the afore-

said subsection in this matter. The Court in that case

stated as follows:

“In determining whether any publication is ob-

scene, the Postmaster General necessarily passes on

the question involving the fundamental liberties of

a citizen, which is * judicial and not an executive

function and must be exercised according to the

idea of due process implicit in the Fifth Amend-

ment... .”

The second aspect of restraint and censorship within

this statute occurs in the delegation of power embodied

in subsection (d). There the Postmaster General is em-

powered to decide whether a sender or anyone acting

on his behalf has violated or is violating the Prohibitory

Order mentioned in subsection (a) and if so to serve

upon the sender a complaint. The complaint is to state

the reasons for his belief.

The order upon which the complaint is predicated is

made appropriate under subsection (c) of the statute. It

provides all of the inhibitions and prohibitions that shall

be embodied in the order. An example of such an order

a,

upon which the decision set forth in Exhibit E attached

to the affidavit of Lee Jay Winkler (A 22, 28, 29) ig

noted herein.*

The confrontation with the language in subsection

(c) concerning the “making of any further mailings

to the designated addressees” raises one of the most

critical issues in this case. The ramifications are sey-

eral and are as follows:

One interpretation of that language is that a sender

who has been once prohibited from mailing can mail

no other material whatsoever to an addressee. Support

for this interpretation is manifestly clear. The govern-

ment urged in the Court below that in fact this was the

interpretation to be given to the statute at hand. (A 45-

51.) Indeed, it is in accord with the intention of the au-

thors of the Law and Amendment and other members

of the House of Representatives.”

If in fact this is the interpretation, then it is re-

spectfully submitted that the statute is patently fatal

in its construction. This would place a prohibition, re-

straint and chill on any type of communication via the

mail once a sender has been the subject of a Prohibi-

tory Order regardless of the content of the materials

which he would subsequently mail.

Appellants respectfully submit that in view of the

position taken by the author of the Bill, as well as

the government in the Court below, that no other inter-

pretation can be given to this statute and hence it must

be stricken as being in derrogation of the First Amend-

ment to the Constitution of the United States.

1Attached as Exhibit A hereto.

2The Congressional Record, 90th Congress, First Session, H.

13265, 6 (October 11, 1967).

anfitina

The Court below via their opinions interpret subsec-

tion (d) of the statute as meaning “similar materials”

rather than any mailings whatsoever. It is contended

therein that after the first mailing that all other mail-

ings an be measured by the objectionable material of

such first mailing. It is stated and reasoned that the

determination by the Postmaster General to issue a com-

plaint because of “such mailings” is done by measur-

ing a second mailing in terms of the first. The court

below urges additionally that this is of no import or

impact because no sanction is levied as a result of the

complaint issued under subsection (d).

Appellants urge that the power vested in the Post-

master General to determine wheiher mailings subse-

quent to the issuance of a Prohibitory Order are simi-

lar in nature or even such other mailings which initially

arose in the mind of someone other than the Postmaster

General. (and which is a prelude to further actions in

the United States District Court) is of such a chilling

inhibition upon a sender’s First Amendment rights that

it cannot be overlooked or minimized. At this point, fol-

lowing the issuance of the prohibitory order a sender or

disseminator must determine, discern, review, deter-

mine and screen what is “such other mail” or by

what standard the various postmasters throughout the

United States will make their determination, as they sit

astride the mail. Here the element of prior censorship,

self censorship and restraint is introduced and in-

trudes regardless of whether there be penalty immedi-

ately, directly, or in futuro so as to make the statute

unconstitutional in its abridgement of First Amend-

ment guarantees.

= Ss

Assuming for purposes of argument that the term

“pandering advertisement” has been adequately and un.

ambiguously defined in the statute, it is clear that jt

is not pandering advertisements per se that are within

the purview of this legislation, but rather pandering ad.

vertisements which a recipient in his sole discretion

deems erotically arousing or sexually provocative. The

coalition of factors must exist. The Postmaster issues

upon his belief what someone else believes, in his sole

discretion, to be an erotically arousing or sexually pro-

vocative pandering advertisement. That such a situation

can only create an inhibiting and chilling factor upon

persons using the mail seems to be abundantly clear.

As a somewhat collateral issue, it may be appropriate

to inquire rhetorically what the recipient’s rights

would be if he disagreed with the Postmaster General's

belief that the second mailing was similar to the first

mailing. It comes to mind that the recipient might then

have to do an affirmative act to re-obtain that mail or

other mail which he personally does not believe to be

erotically arousing or sexually provocative just as the

Appellant Lamont had to do under the former 39

U.S.C. 4008 previously declared unconstitutional in La

mont v. Postmaster General, 381 U.S. 301 (1965).

The restraint and chilling effect imposed at this

juncture is by the United States Post Office. It is gov-

ernmental action. The Post office, with its numerous

postmasters each administering the law by way of their

beliefs as to what is similar to previous mailings and

which have been personally determined as erotically

arousing and sexually provocative mail by a myriad of

recipients.

_—

In addition subsection(c) of the statute clearly indi-

cates that the initial Prohibitory Order must direct the

sender and his agents or assigns to delete immediately

the names of a requesting addressee from all mailing

lists owned or controlled by the sender or his agents or

assigns and, further, the Order must prohibit the send-

er or his agents or assigns from selling, renting, ex-

changing or transacting lists bearing the names of re-

questing addressees.

The requirement that the foregoing be contained in

the Order is without regard to the nature of the lists or

the purposes for which such other lists may be used.

The requirement does not discuss whether these lists

must involve similar material as that which gave rise

to the issuance of the Order.

The plain language of the statute would therefore

seem to give credence to the appellants and the first in-

terpretation of the statute. That interpretation was any

further matlings whatsoever are, in fact, prohibited. In

addition, it becomes clear that whatever interpretation is

adopted, these additional prohibitions concerning the lists

that are to be included within the initial Order serve as

a prior restraint and censorship upon senders. No re-

gard is given to the purpose or nature of mail arising

out of these other lists.

Further, Subsection (f) provides that receipt of mail

matter 30 days or more after the effective date of the

Order provided for by the section shall create a rebut-

table presumption that such mail was sent after such

effective date. No descriptive or modifying words con-

cerning “mail matter” are to be found in that section.

Rather, the broad term connotes and indicates that it is

anidbibon

mail matter of any kind whatsoever which is proscribed

by any of the preceding subsections.

Attention must also be drawn to the fact that inno.

cence or willfullness is not made a necessary ingredient

by this statute. Indeed, if one innocently makes a syb.

sequent mailing under either one of the interpretations

(that is “any mail whatsoever” or “similar mail”) he

has violated the Prohibitory Order. Keeping this well in

mind, a censorship imperative whether self or external

is created as to all outgoing mail by a sender. There is

no escape or protection by virtue of the fact that he

may be innocent in his conduct and that through no

fault of his own subsequent prohibited mail has been

sent. Once the act is done, the processes of the law are

put into effect and the undue burdens and hardships of

involving oneself in litigation become the price or pun-

ishment awaiting the sender. The law should therefore

be declared unconstitutional.

Near v. Minnesota, 284 U.S. 697;

Freedman v. Maryland, 380 U.S. 552.

III.

The Statutory History, Including Committee Re-

ports and Statements of Committee Members

and Sponsors of Legislation, Support the Inter-

pretation That Is Ascribed to the Statute by

Appellants.

The language in the statute is most determinative of

its interpretation.

Schwegmann Brothers, Calvert Distillers Corp.,

341 U.S. 384, 390-5;

United States v. Oregon, 366 U.S. 643, 648.

The Court will also look, and has looked at all indicia

in order to determine the legislative intent. United States

a

y. American Trucking Association, 310 U.S. 534, 542-

544; United States v. Dickerson, 310 U.S. 554, 562;

Commissioner v. Estate of Bosch, 387 U.S. 456, 563.

The importance of committee reports and statements

of committee members or sponsors of legislation cannot

be over emphasized as same as developed in the interpre-

tation of statutes before this court. That this is an-

other factor in the consideration of interpretation of

the statutes has long since been established. Wright v.

Vinton Branch Bank, 310 U.S. 440, 463-464; United

States v. United Mine Workers, 330 U.S. 258, 278-280;

National Woodwork Manufacturers Assn. v. Labor

Board, 386 U.S. 610, 639-640.

The statute here in question was designed, to pro-

scribe and prohibit any and all further mailing subse-

quent to an initial Prohibitory Order by the sender to

the complaining addressee. Further, it is clear that the

purpose and intent of this legislation was to place a pro-

hibition upon the rental, selling, and transferring of lists

containing the names of individuals who have obtained

Prohibitory Orders. It is clear from all of the afore-

mentioned indicia, that it is the individual citizen who is

intended to be made the sole judge of whether an ad-

vertisement he receives is a pandering advertisement

once he does this he unleashes the power of the federal

government to enforce his views.

In fact, the legislative history indicates that a former

House Committee Bill required the Postmaster Gen-

eral to decide what was or what was not pandering un-

der the definition contained in the Bill. It was on the

floor of the House, that another representative offered

an amendment which was adopted and ultimately em-

bodied in the present statute that provided that this

—26—

determination shall be made solely by the mail recipient.

According to the legislative history, this had the effeg

of taking the Postmaster General out of the role of

censor.®

All of this being the case, it clearly establishes that

the interpretation given to the statute by Appellants js

the correct interpretation and, therefore, for the fore-

going reasons, the statute must fail because of its con-

stitutional infirmities. The legislative history clearly

states

“. . . The Postmaster General is then required to

issue an order to the sender directing him to re-

frain from sending any further mailings of any

kind to such person.” (emphasis added).

The legislative history further points out that

“if a sender continues to send mail to a person in

violation of the order issued by the Postmaster

General, an order may be obtained from an appro-

priate federal District Court, upon application by

the Attorney General, for a court order command-

ing compliance with the provisions of this Title.

A failure to observe this court order may be pun-

ished by the court as contempt.”

There is no question but that from the legislative his-

tory it is discerned that mere subsequent mailing of suf-

ficient, regardless of content or desire or innocense or

willfulness, to constitute a violation of any order.‘

8US. .~ -_ Sane roe? Lest me ang emg News, a

Congress, First Session, 1 islative History, pages 2294-95.

Ninetieth Congress. First Session on H.R. 7977, page 525.

U.S. Code and Congressional and Administrative News,

ee Congress, First Session, 1967 Legislative History

2294-95.

— =

The report of the committee on Post Office and Civil

Service matters further emphasis the point when in

their report they state

«|. The mailer is prohibited not only from send-

ing advertisements to the proscribed name but from

sending any mail matter of any class or kind.”

The same report indicates that the word “assigns”

in subsection (c) of the statute means business suc-

cessors.°

Former Attorney General Ramsey Clark, on behalf of

the United States Department of Justice on May 29,

1967 directed a statement to the chairman of the Com-

mittee on Post Office and Civil Service Affairs of the

House of Representatives.* The United States Depart-

ment of Justice urged that this legislation not be passed

because in its opinion the law was unconstitutional as

appellants herein claim.

Quoting former Attorney General, Ramsey Clark, in

his opposition to the passage of the statute, appellants

note :

“.,. Any system of prior restraint of expression

comes to this Court bearing a heavy presumption

against its constitutionality. Bantam Books v.

Sullivan, 372 U.S. 58, 70 (1963).”

It was the absolute intention of the author of this

Bill to absolutely impede and restrain the transferring

5(Report of Committee on Post Office and Civil Service Mat-

ters, First Session of the 90th Congress, Senate, Report No.

801, at page 39.)

*(Report of the Committee on Post Office and Civil Service

Affairs, the House of Representatives, together with individual

and minority views, the First Session, 90th Congress, Report No.

722, pages 71-73.)

—

of lists of names or the trafficking with same regard.

less of intent or subsequent mail content. The Cop.

gressman first sponsoring this Bill makes that clear jp

his testimony."

The testimony of Timothy May, then General Coun.

sel for the United States Post Office, testified that the

addressee is not given the option of stopping a particular

kind of mail but that he can only have a mailer directed

to make no further mailings whatsoever.®

Further, Mr. May stated:

“. . As an addressee, I would be empowered to de-

termine that all ‘occupant’ mail, soap advertise.

ments, bills from creditors, income tax forms, even

a letter from my Congressman, were pandering ad-

vertisements, and could prohibit any further mail-

ings from such mailers on pain of contempt of

court.

“Needless to say, widespread use of these powers

could plunge the postal system into chaos, and most

certainly destroy the mail advertising industry. In

short, I believe Title III to be impractical and an

unnecessary means of dealing with the problem that

concerns us all.”

A statement of the Assistant Attorney General, Of-

fice of Legal Counsel, Dept. of Justice, is further sub-

mitted. It too calls the constitutionality of the proposed

act into question and indicates that it goes beyond the

7(Hearings Before the Committee on Post Office and Civil

Service, United States Senate, Ninetieth Congress, First Ses-

sion, on H.R. 7977, pages 513 through 525).

8(Hearings Before the Committee on Post Office and Civil

Service, United States Senate, Ninetieth Congress, First Ses-

sion, on H.R. 7977, page 545).

29.»

scope of constitutional guarantees. It further sub-

stantiates that there is no question that once a Pro-

hibitory Order is obtained no further mail may be dis-

seminated by a mailer.”

The American Book Publishers Council urged against

the passage of this Bill.”

The Magazine Publishers Association opposed the

passage Of the Bill and understood its interpretation

consistent with that which the Appellants have con-

tended from the very inception.” Joining the list of

the groups that opposed the passage of this Bill was

also the American Library Association.”

The Congressman who is responsible for the signif-

icant amendment to the original Bill testified before the

Senate Committee in part as follows:

“The absolute determination to state to the Post

Office Department, ‘I don’t like this material be-

cause it is in my view erotically arousing or sexual-

ly arousing.’ ”

The Chairman then asked,

“You don’t have to make any case whatsoever?”

The Congressman replied,

“None whatsoever. If he is hung up on cabbage,

he can prevent the weekly market circular from

9(Hearings Before the Committee on Post Office and Civil

Service, United States Senate, Ninetieth Congress, First Ses-

sion, on H.R. 7977, pages 566-577).

10(Hearings Before the Committee on Post Office and Civil

Service, United States Senate, Ninetieth Congress, First Ses-

sion, on H.R. 7977, pages 577-582).

(Hearings Before the Committee on Post Office and Civil

Service, United States Senate, Ninetieth Congress, First Ses-

sion, on H.R. 7977, pages 627-629).

(Hearings Before the Committee on Post Office and Civil

Service, United States Senate, Ninetieth Congress, First Ses-

sion, on H.R. 7977, page 631).

—

coming in his house if he is willing to say that

cabbage has caused him to become sexually

aroused.”

The Chairman then asked:

“This would reach, then, the prohibition of any

mailing list if he states that he does not wish this

to come into his house since he is the sole judge

on the prohibition of any type of literature that he

does not wish to come in?”

The Congressman replied: “Precisely.” The Con.

gressman went on further to say:

“Tf he (recipient) is willing to say that the auto-

mobile circular that comes to his house is ob-

jectionable because it is sexually arousing to him,

he can prevent receiving the advertisement of the

Buick. Maybe he is hung up on it. I don't

know, and I don’t care, is my point.”

Further, the testimony of this co-sponsor of the Bill

indicates the trafficking, dealing, selling, renting or ex-

changing of lists with names of persons who have

sought Prohibitory Orders was designed to be defeated

under the terms of this Bill.”

No other interpretation other than that which has

been contended by the Appellant as to the interpretation

and plain meaning of the statute would seem to be

warranted against this background and language of the

statute. It is submitted that because of this interpreta-

tion and because of what the statute intends to do, it

must fail, both as a violation of the First Amendment

and Fifth Amendment of the Constitution of the United

States.

18(Hearings Before the Committee on Post Office and Civil

Service, United States Senate, Ninetieth 7 om First Ses-

sion, on H.R. 7977, pages 517, 525-534; 530, 531).

~_

IV.

Section 301 of Public Law 90-206 (39 U.S.C. Section

4009) Violates the Fifth Amendment of the

Constitution of the United States in That It

Denies Due Process of Law.

The Statute here in question deposits rights to ad-

dressees, postmasters and courts. The rights, the grant-

ing of these rights and the exercise thereof are in viola-

tion of the Fifth Amendment of the Constitution. Both

on its face and as applied to appellants herein the statute

is in derogation of the Fifth Amendment.

Turning to the initial phase under the statute, it is

clear that an addressee has an absolute right to obtain

injunctive relief against a mailer without benefit of any

type of hearing. The Postmaster General has no discre-

tion as to the issuance of the initial Prohibitory Order

once he receives a request from an addressee. 39 U.S.

Code 4009(d) states “. . . The Postmaster General

shall issue an Order if requested by the addressee. . .”

(emphasis added). The statute in question grants to an

individual addressee that which it could not grant to the

Postmaster General. Walker v. Popenoe, 149 F. 2d 511

(1945) spoke to the issue. In that case, involving pur-

portedly obscene materials the Court enunciated as fol-

lows:

“In determining whether any publication is ob-

scene, the Postmaster General necessarily passes on

the question involving the fundamental liberties of

a citizen, which is a judicial and not an executive

function and must be exercised according to the

idea of due process implicit in the Fifth Amend-

ment.”

Page 513. “Appellants Order barring the pam-

phlet from the mails was issued without notice or

—j2—

hearing. The trial court held, and we agree, that the

Order was for that reason a denial of due prov.

ess. Our views on this point are expressed jn

Judge Arnold’s opinion in which, as in the present

opinion, we all concur. But if the judgment were af.

firmed solely on this ground, the merits would have

to be decided at a future hearing and at a future

law suit. To obviate that necessity, we are deciding

the merits now. The pamphlet is not covered by the

statute. Since a contrary finding could not be sup.

ported, it is immaterial that the trial court made

no finding. The result is that the judgment is af-

firmed on two distinct and independent grounds,

If both these grounds were absent, we should have

to consider whether Congress may constitutionally

confine discussion of sex as it could not confine

discussion of other subjects within the limits which

it conceives to be good for the community.”

At page 513, Justice Arnold stated the following:

“ . . The power to exclude a publication from the

mails without a hearing in practical effect permits

the Postmaster General to cause irreparable injury

to any publisher without the minimum safeguard

of an opportunity to present his case. (emphasis

added) There are, of course, other means of distri-

bution besides the mails, but they are not effective

ones in the case of ordinary publications. To deprive

a publisher of the use of the mails is like preventing

a seller of goods from using the principal highway

which connects him with his market. In making

the determination whether any publication is ob-

scene, the Postmaster General necessarily passes on

a question involving the fundamental liberty of the

eee

ndliiee

citizen. This is a judicial and not an executive func-

tion. It must be exercised according the ideas of

due process implicit in the Fifth Amendment. As

we said in the case of Pike v. Walker, 121 Fed(2d)

37, 39: ‘Whatever may have been the voluntary na-

ture of the postal system in the period of its estab-

lishment, it is now the main artery through which

the business, social and personal affairs of the

people are conducted and upon which depends a

greater degree than upon any other activity of gov-

ernment, the promotion of the general welfare.’ Not

only this, but the postal system has a monopoly

which the government enforces through penal stat-

utes forbidding the carrying of letters by other

means. It would be going a long way, therefore, to

say that in the management of the Post Office

the people have no definite rights reserved by the

First and Fifth Amendments of the Constitution,

and if they have, it would follow that in administer-

ing the laws established to protect the mail and the

regulations thereunder, the duty of the Postmaster

General would become to use the language of Justice

Brandeis in the Burleson case, supra, 255 U.S. 407,

that :

‘In making the determination he must, like a

Court or jury, form a judgment whether certain

conditions prescribed by Congress exist, uncon-

troverted facts or by applying the law. The func-

tion is strictly a judicial one, although exercised

in administering an executive office. And it is

not a function which either involves or permits

the exercise of discretionary power—which is to

say, that his authority is governed by Acts of

Congress which confer it and by the law of the

land.’ ”

=o

Appellants argue that the right to issue and obtain the

initial Prohibitory Order flies in the face of the Consti-

tution and that the foregoing case supports this proposj-

tion.

Passing from the initial stage of procuring the Pro.

hibitory Order, this statute vitiates Fifth Amendment

guarantees in its second phase. This occurs when the

Postmaster General rules upon the complaint he issued

either because there has been a second mailing or be-

cause he, of any kind whatsoever in his belief, de.

termined that such second mailing is similar to that

which was personally found to be erotically arousing or

sexually provocative to some other person.

The statute in granting this power places the Post-

master General astride the mails and undermines the

protection of the due process clause of the Fifth Amend-

ment of the Constitution of the United States.

Appellants respectfully submit that it is not sufficient

that the United States District Court will finally de-

termine whether any subsequent mailings are violative

of Orders authorized under the statute. On the one hand,

if the U.S. District Court’s review is limited to the

question of whether there has been a subsequent mail-

ing of any kind whatsoever, then indeed the court serves

as a rubber stamp for the complaint of the Postmaster

General which is defective for the reasons heretofore

stated. On the other hand, if the review by the U.S.

District Court is for the purposes of determining wheth-

er subsequent mailings by a sender are similar to the

mail which the addressee found within his sole discretion

to be erotically arousing or sexually provocative (aside

from the question of what process and standards are

employed in making this determination) a prohibition

_

and illegality are being sought to be pronounced upon the

materials which are not otherwise illegal Governmental

action of the most direct kind is here interjected.

Additionally, it is noted that subsection (h) provides

that Chapter 5 relating to administrative procedure and

chapter 7 relating to judicial review of subchapter 2,

part 1 of Title 5 of the United States Code, do not

apply to the provisions of this section. By direct ex-

cision of this statute from the Administrative Pro-

cedures Act and particularly by virtue of the exemption

of judicial review, serious question are raised not only

as to the function of the United States District Court

but also under the Fifth Amendment.

Appellants also urge that the attempt to ascribe a

definition to pandering advertisement is not enough to

resolve the function of the Postmaster General at the

issuing stage of the complaint or the functioning of

the U.S. District Court when a compliance order is

being sought. A clear reading of the statute under

the lower court’s view would require a coalition of a

pandering advertisement and the complete subjective

factors of the initial recipient to establish the measuring

standard. It is urged by the Appellants that, there can

never be a coalition of these factors under the circum-

stances in the law as interpreted below.

It is clear also from all of the foregoing that the

transacting, selling and transferring of lists are pro-

hibited by virtue of the language and intent of this

statute. This was the desired intent and it was achieved

by virtue of this law. The appellants submit that this

is a denial of property, and the handling of same and

is as much an act or mode of doing business as are the

goods of merchants doing business in a retail store.

aeiiiiven

Argument and discussion as same pertains to the

actual procedures and the enforcement of this statute

will be made in this Brief, infra. Notwithstanding the

forthcoming objections and argument, it is submitted

that the statute for the foregoing reasons is an absolute

abridgement of the rights guaranteed to individuals

under the Fifth Amendment of the Constitution of the

United States. Predicated upon this reason alone, the

statute should be declared unconstitutional.

V.

39 U.S.C. Section 4009 Violates the Constitution

of the United States in That Said Statute Is

Vague, Ambiguous, Standardless and an Unlaw-

ful Delegation of Power on Its Face and As

Applied to Appellants.

Appellants urge that the ambiguity between section

(a) and sections (b) and (c) of the statute can at best

only be described as creating an unworkable and uncon-

stitutional conflict within the statute itself. Based upon

this infirmity the statute must fail.

A clear reading of the statute points up the fact that

an addressee is vested with the sole discretion in de-

termining upon what basis the judicial function of the

issuance of a Prohibitory Order shall occur. There are

no guidelines or standards by which this unfettered ex-

ercise of discretion is to be limited. It does not call for

an objective determination or uniform determination,

but rather a subjective conclusion by each member of a

vast population.

Even more substantially and critically is that it can-

not be ascertained with constitutional certainty by what

standard the Postmaster General or even the United

States District Court functions subsequently.

-_™

The two interpretations previously discussed which

are namely, that (a) a subsequent mailing to a Pro-

hibitory Order is per se a violation, or (b) it is only

when similar material are mailed (1.e., similar to that

which gave rise to the initial Prohibitory Order) con-

stitute an unlawful delegation of power or a standard-

less delegation of power to the Postmaster General and

District Court of the United States. It cannot be as-

certained from a reading of the statute what the stand-

ards are by which the complaint and compliance order,

each in their turn, are to be issued.

Both opinions of the court below finds a standard

after the first mailing has occurred and urges that other

proposed mailings are to be measured by the objection-

able material of such first mailing. Absent the identi-

cal mailing piece in the second submission through the

mail, it is quickly questioned how the measurement

operates. Since the sole discretion of an individual

acting within the framework of himself in determining

that an item of mail is erotically arousing or sexually

provocative is necessary and the regulating authority

does not have benefit of his thoughts as they relate to

the subsequent mail, the measurement cannot be made

by any standard.

The delegation of this judicial function carries no

criteria or standard for the Postmaster General. The

lower court seeks to shrink the otherwise loosely woven

fabric of the statute to create a constitutional structure

from which the statute may be applied and enforced.

The statute is void for vagueness. Due to the stand-

ardless delegation of power, this deposit of power is un-

lawful. Due to the ambiguous language which require

tortuous judicial interpretation for salvage the statute

~~ =

is void. A statute imbued with all of these infirmities

which seeks to regulate communication and expression

cannot and should not survive in a society of law.

The infirmities within the statute are not cured be.

cause contempt for violation of an order cannot occur

until the order of the Postmaster General is reaffirmed

or pronounced by a United States District Court. The

fact that the statute can cause an individual to be

brought before the United States District Court after

he has been funneled through the purported administra-

tive procedure involved herein is an unconstitutional

burden. The fact that he once again appear before

the United States District Court for violation of the

District Court’s order is hardly a situation which js

cured by asserting that there is no danger of any penalty

until subsequent conduct contrary to the order of the

United States District Court has occurred. An ex-

pensive human price is being asked to be paid by a

statute which can “only be salvaged by meticulously

construing its provisions to shrink its loosely woven

fabric to constitutional size.”™*

It is patently clear that the law of the land declares

Congressional enactments which are vague or standard-

less, repugnant to the Constitution and have consistently

struck them down. Winters v. New York, 333 U.S.

507; Giacco v. Pennsylvania, 382 U.S. 399; Arizona v.

California, 373 U.S. 546, 625, 626; Schecter Poultry

Corp. v. United States, 295 U.S. 495; Panama Refining

Company v. Ryan, 293 U.S. 388. Indeed, the statute

herein purports to repose in the addressee or the Post-

master General all of the powers of the three branches

_ MAppendix p. 69 Circuit Judge Hufstedler concurring Opin-

ion.

=—

of this Federal government almost wholly unfettered.

The words of Justice Cardozo in his concurring opinion

in Schecter Poultry Corp. v. United States, 295 U.S.

495, reverberate the hollow shell of this statute wherein

he described the NRA Code as “a delegation running

: ”

riot.

Justice Harlan, in the case of Arizona v. California,

373 U.S. 546, 626, stated:

«|. The principal that authority granted by the

legislature must be limited by adequate standards

serves two primary functions vital to preserving the

separation of powers required by the Constitution.

First, it inures that the fundamental policy de-

cisions in our society will be made not by an ap-

pointed official, but by the body immediately re-

sponsible to the people. Second, it prevents ju-

dicial review from becoming merely an exercise at

large by providing the Courts with some measure

against which to judge the official action that

has been challenged.”

The case of Carter v. Carter Coal Company, 298 U.S.

309, 311, reiterates the sentiment and law applicable to

this situation:

“The power conferred upon the majority is, in

effect, the power to regulate the affairs of an un-

willing minority. This is legislative delegation in

its most obnoxious form; for it is not even dele-

gation to an official or an official body, presump-

tively disinterested, but to private persons whose

interests may be and often are adverse to the in-

terests of others in the same business. The record

shows that the conditions of competition differ

among the various localities . . .”

_ =

“. . And a statute which attempts to confer

such power undertakes an intolerable and uncop.

stitutional interference with personal liberty in prj.

vate property. The delegation is so clearly arhj-

trary, and so clearly a denial of rights safeguarded

by the due process clause of the Fifth Amendment,

that it is unnecessary to do more than refer to a

decision of this Court which forecloses the question,

A.L.A. Schecter Poultry Corp v. United States,

295 U.S., page 537... .”

The proposition cannot be stated more eloquently by

this writer.

Solace and superficial strength is attempted to be

garnered from the case of Ginsburg v. United States,

383 U.S. 463 on the baseless grounds that pandering

advertisements were defined and hence a standard

created. This is not true. Indeed one is impressed by

the review for standards in making a determination as

is evidenced in the Ginsburg case. The admonitions con-

cerning pandering statutes and their definiteness was

made known in that case.

VI.

The Procedures Provided for in Connection With

the Statute Cause the Statute to Violate the

First and Fifth Amendments and in Themselves

Are so Violative.

Attached to the affidavit of Lee J. Winkler as an ex-

hibit thereto and marked Exhibit “F” (A 30-35) are

the rules of practice and proceedings relative to viola-

tions under 39 U.S. Code 4009. Rules are found at 39

C.F.R. part 956. These rules are made applicable to ad-

ministrative hearings requested pursuant to 39 US.

a

Code 4009(d). At the time of the argument in the

court below, several of the appellants herein, including

Lee J. Winkler, dba Quality Products, had been involved

in hearings pursuant to the aforesaid section.

As brought to the attention of the court below both

in writing and orally, appellants involved in those hear-

ings are subjected to the following :

1. There is no right to subpena witnesses or com-

plainants ;

2. The regional counsel of the Post Office Depart-

ment is the hearing officer ;

3. The taking of depositions are circumscribed and

can only be had upon permission of the hearing officer ;

4. The party seeking to take a deposition is to pay

all fees required to be paid to a witness and the deposi-

tion officer (which cannot be ascertained from the read-

ing of any document) ;

5. The proceeding is not adversary in nature;

6. A finding and determination under these rules is

capable of being supported entirely by hearsay, and the

right to cross-examination is made meaningless under

the procedures ;

7. There is no definite time limitation as to when

a matter must be brought to hearing, but rather vague

reference to “whenever practicable, the hearing date will

be within 30 days from date of the notice of hearing

served on the mailer ;”

8. No provision for findings of fact or conclusions

of law are made necessary.

Several conclusions can be drawn from a reading of

these procedures. The first of such conclusions is that

a

the statutory scheme embodied in 39 U.S.C. 4009 was

enacted to clearly eradicate and eliminate materials and

mailers which some people find offensive because

they may deal with sex or they may believe they deal

with sex. The law in its language as has been urged,

supra, and in its legislative history and intent, makes

this clear. In addition the exemption of the hearing pro-

cedure and the law itself from the administrative pro-

cedure act and to the procedures concerning judicial re-

view relative to administrative proceedings, is an aid to

that statutory scheme of complete censorship, restraint

and attempt at ultimate control of certain facets or

types of communication.

Winkler was involved in a hearing growing out of 39

U.S.C. 4009(d). A decision emanating from that

hearing is attached to his affidavit and marked Exhibit

“E”, (A28-29.) At that hearing originally all of the

objections as set forth hereinabove were raised. All of

the objections were overruled. Indeed, there was no

question in the hearing officer’s mind that all that was

necessary to establish a violation of the order was merely

to show a subsequent mailing of any type of material.

It was even brought to the attention of the hearing

officer that two different mailing lists were involved,

but it was quickly pointed out by the hearing officer

that the statute covered the rental of lists and transact-

ing therewith.

The American Bar Association, upon the recommen-

dation of the Postal Matters Committee, the Admin-

istrative Law Section, the Board of Governors and the

American Bar Association House of Delegates ap-

proved the resolution which in word, substance and ef-

fect requested the non-passage of this law or an iden-

oo

tical law, because of its abridgement of First Amend-

ment and Fifth Amendment rights.”*

Quoting from a part of that testimony,

“.. The American Bar Association regards this

exception to usual APA requirements as an unfor-

tunate setback or retrogression in the progressive

evolution of administrative law. The Attorney

General heretofore has shared this view, and we

understand that he continues to do so. The courts

have held that APA guarantees are applicable to

POD administragive obscenity proceedings. Door

v. Donaldson, 90 App. DC 188, 195 Fed.2d, 764,

(1952); Walker v. Popenoe, 80 App. DC 129

(1945). Absent an express statutory exclusion, I

have no doubt the courts would continue to hold the

APA applicable to POD administrative obscenity

proceedings as to other POD proceedings required

by statute. The American Bar Association opposes

the enactment of legislation which would deny a

litigant Administrative Procedure Act protections,

however worthy the cause which might lead to

such denial.”

The hearings granted herein are technical and

not substantive. When dealing with one’s right to

free speech and to the free distribution of ideas

and material, such abridgement or intrusions

should not occur except by substantive determina-

tion pursuant to law permitting due process.”

Parenthetically it is interesting to note that the re-

mainder of the testimony mentioned herein clearly re-

15(Hearings Before the Committee on Post Office and Civil

Service, United States Senate, Ninetieth Congress, First Ses-

sion, on H.R. 7977, pages 593-599).

=

peats the interpretation of the statute before the Sep.

ate Committee which was argued by the appellants in

this matter in the lower court.

In the case of Freedman v. State of Maryland, 39

U.S. 52 (1965) this court in reviewing a censorship

statute stressed the necessity for procedural safeguards

within a statutory scheme seeking to impose restraint

or censorship on expression. As stated there and appli-

cable here, had Congress intended to do same “a model

is not lacking.”

The statute with its appurtenant procedures are in-

sidious to First and Fifth Amendment rights guar-

anteed by the Constitution of the United States and the

statute should be stricken.

VII.

Commercial Activity in No Way Removes the Pro-

tection and Guarantees Afforded by the First

Amendment.

The opinion below urged that commercial advertis-

ing or commercial activity is not afforded the same

protection within the First Amendment of the Constitu-

tion as other items of expression, speech or press.

Ginsburg v. United States, 383 U.S. 463, 474, re-

cited,

“.. No weight is ascribed to the fact that peti-

tioners have profited from the sale of publications

which we have assumed but do not hold cannot

themselves be adjudged obscene in the abstract; the

sanctioned consideration of this fact might indeed

induce self censorship, and offend the frequently

stated principle that commercial activity, in itself,

is no justification for narrowing the protection of

—

expression secured by the First Amendment. (See

New York Times v. Sullivan, 376 U.S. 254, 265-

266; Smith v. California, 361 U.S. 147, 150)... .”

In Smith v. California, 361 U.S. 147, 150, the Court

in speaking of free publication and dissemination of

books and other forms of the printed word, said

“.. It is of course no matter that dissemination

takes place under commercial auspices. See Joseph

Burstyn, Inc. v. Wilson, 343 U.S. 195; Grosjean v.

American Press Co., 297 U.S. 233. Certainly a re-

tail book seller plays a most significant role in the

process of the distribution of books.”

It is submitted that Valentine v. Chrestensen, 316

U.S. 52, is peculiar unto itself, and has no application

to the situation at hand. Indeed, not a single authority

is embodied within that case and further, the facts are

unique within the framework of that case and readily

distinguishable from the matter at hand.

Comfort is sought to be gained from Ginsburg v.

United States, supra, wherein one of the notes thereto

states,

“material sold solely to produce sexual arousal, like

commercial advertising, does not escape regulation

because it has been dressed up as speech. . . .””*

It is almost unnecessary to state the view taken in

Ginsburg v. United States and what, in fact, was held

and meant. If speech and expression falls outside of

the First Amendment to the Constitution as the major-

ity of this court holds with regard to certain forms of

speech, then it is not protected with the force and ef-

Ginsburg v. United States, 383 U.S. 463, 475, n. 17.

— =

fect of the Constitution, but if the speech is not yp.

lawful, such as the expressions and materials jp.

volved in this case, then the full comfort and protec.

tion of the First Amendment is afforded to it whether

it seeks to convert or sell the receipient.

Holding contrary to the foregoing would indeed frys.

trate the purpose of Congress. It would mean that the

offering to give away materials which are sexually

provocative or erotically arousing fall outside the pur.

view of this statute and the offering to sell, for ex.

ample, Theodore Dreiser’s, American Tragedy, is with-

in the condemnation of this statute. It is respectfully

submitted that this is far too tenuous a distinction upon

which to tamper with the freedom of expression, speech

and press. The statute cannot be given continuous life

predicated on the alleged unconstitutionality of commer-

cialism.

VIII.

The Right of Privacy Is Not Involved.

In the court below and within sone of the events

going to make up the total Congressional history of this

statute was a concept that a polarity had been created

between the First Amendment guarantee of free speech

and a purported First Amendment right known as pri-

vacy. A pitting of right against right was created in

these various events. The contrived confrontation of al-

leged constitutional imperatives was thus made into the

proverbial irresistable force coming into contact with

the immovable object.

Argument and discussion has centered around which

right is the greater. One judge in the court below argued

that indeed there was only an amorphous right such as

_

the right of privacy contained within the First Amend-

ment.

Appellants submit that a determination of the issues

involved herein do not require a determination of wheth-

er there is such a right of privacy embodied within the

First Amendment. Also that no determination is neces-

sary if, indeed, it does exist, as to which of the rights

is greater or which must give way. Appellants contend

that the statute is fatally defective for all of the hereto-

fore given reasons. Hence it would follow that the de-

termination concerning right of privacy does not come

into play, at least on this day.

If the statute is defective for any of the foregoing

reasons, then and in that event, it would fall regardless

of whether the right of privacy is a protectible interest

within the First Amendment of the Constitution or any

other portion of the Constitution.

Assuming for purposes of argument, however, that

in some way the analysis reaches the concepts of free

speech and right of privacy, appellants reason as fol-

lows:

That the right of privacy is an amorphous concept,

if not an anomalous concept, within the Constitution

of the United States.

The right of freedom of speech and press includes

not only the right to utter or to print, but the right

to distribute, the right to receive and the right to read.

Griswold v. State of Connecticut, 381 U.S. 479. Stanley

v. Georgia, 89 Supreme Court 1243 (1969).

“It is now well established that the Constitution

protects the right to receive information and ideas.

‘This freedom [of speech and press] . . . neces-

—

sarily protects the right to receive .. .!” “. . . This

right to receive information and ideas, regard.

less of their social worth . . ., is fundamental to

our free society.”

Both of these cases cite the well known line of cages

involved in the very area in which Appellants fing

themselves.

Free speech and press, indeed, all forms of expression,

would virtually become worthless unless there were some-

one with whom to communicate. This is the matrix of

a civilized and ordered society.

The statement or concept that the right of Privacy

can subvert and thwart these constitutional imperatives

is an enigma to our philosophy.

It does seem that if the view is adopted that, in fact,

right of privacy is not embodied in the Constitution,

then the discussion would be at an end. On the other

hand, if the view is adopted that specific guarantees in

the Bill of Rights have penumbras, formed by emana-

tions from those guarantees that help give them life

and substance and that various guarantees create zones

of privacy, it is submitted that that which is being done

by Appellants does not vitiate the penumbra or invade

a zone of privacy created.

The recipients are not captives. They are not exposed

to the blaring of sound trucks and horns which permeate

the walls of their homes. They are not confronted by the

foot in the door salesman who will not take no for an

answer or subjected to face-to-face confrontation with

persons who have devious intentions and who disguise

themselves as door-to-door sales people. (Cf.) (Breardv.

Alexandria, 341 U.S. 622; Kovacs v. Cooper, 336 US.

77.)

_— =

The recipients are in no other position than they

are with their radios and televisions in this modern and

complex society. The rays that are in the cathode tubes

in each person’s home and may explode with offensive-

ness or erotically arousing or sexually provocative fare

when the television set is turned on, exploits privacy

of the home more so than the envelope deposited in the

mailbox. Shall a tenuous distinction be drawn between a

fact that a mailbox may be outside of the home and the

television within the home and, hence, the latter is closer

to the center of the zone of privacy and, therefore

thrusts forth a greater threat to one’s privacy.

The statute here in question does not seek to shield

or guard minors from materials which are otherwise un-

lawful. Indeed, let the Congress of the United States

make this material unlawful if it can meet the Constitu-

tional measures, and let it set forth to protect the per-

sons they deem protectible and then let the statute at-

tempt to pass the Constitutional muster.

Yet, further, if it is adopted that there is a specific

and fundamental guarantee of right of privacy under

the First Amendment or Fifth Amendment via the the-

sis that this concept is “so rooted in the traditions and

conscience of our people as to be ranked as fundamental”

then it is submitted that the irresistable force has indeed

met the immovable object. If this be the situation, Ap-

pellants submit that in the balancing of the interests

under the circumstances here at hand and particularly

involving an envelope with a notification of what is

ott

involved,” that the right of privacy must yield to th

right of free speech and press.

In the case of Lamont v. Commissioner of Motor

Vehicles, 269 F. Supp. 880, the proposition was stated

more eloquently than this writer is capable of doing.

The court said:

“ . . The mailbox, however noxious its advertising

contents, often seem to judges as well as other

people, is hardly the kind of enclave that requires

constitutional defense to protect ‘the privacies of

life’. The short, the regular journey from mailbox

to trash can—the contents of which the state chooses

to pay the freight when it facilitates the distriby-

tion of trash—is an acceptable burden, at least so

far as the Constitution is concerned. The bells at

the door and on the telephone, through their ring,

is more imperious nuisance than the mailman’s

tidings, accomplish more peripheral assaults than

the blare of an inescapable radio.”

It should be noted that in the case of Breard v.

Alexandria, 341 U.S. 622, undoubtedly to be cited as

support for the opposition, the court in upholding a non-

solicitation ordinance pointed out:

“. . The usual methods of solicitation—*radio,

periodicals, mail, local agencies—are open.” (Em-

phasis added).

For these reasons Appellants seek to lay to rest in

this specific instance the objection as allegedly supported

by the concept of the right of privacy.

1TAppendix 28 Exhibit D.

- =

IX.

The Uncontroverted Evidence Together With the

Concurrence as to Statutory Interpretation Does

Not Support the Decision and an Injunction

Should Have Issued.

The legislative history, the government’s concurrence

in the appellants’ view of the statutory purpose, the in-

tent and the plain meaning of the statute does not

support the findings of fact and conclusions of law.

The affidavits of the several appellants all of which

were uncontroverted stand only in opposition to the

findings of fact.

Further the multiplicity of litigation and the irrep-

arable harm wrought by this statute gave rise to the

need for the injunction sought.

Here as in Dombrowski v. Fister, 380 U.S. 479 in-

junction is appropriate. The statute has a chilling ef-

fect and threatens litigation and prosecution. The denial

thereof and dismissal below is not supported in fact

or law.

Conclusion.

It is respectfully submitted that the argument of Ap-

pellants should be sustained. Appellants urge that Sec-

tion 301 of Public Law 90-206 (39 U.S.C. § 4009)

should be declared null and void because it is uncon-

stitutional for each and all for reasons contained here-

in. Appellants request that the judgment of the Court

below be reversed.

JosErH TABACK,

GoLp, HERSCHER & TABACK,

Attorneys for Appellants.

ssoJppy

Ty “weysutuitg f Sh WW.LSOd])

TIWUANAD AALSWALSOd 7 UAGUO Ad

WAISVW1LSOd Y pywe ‘QAOQGR PouoNUsw sored sy) JO SOWeU 94} Bu1se9q

pf BUIAJOAU! UON}DESURI) J9YIO JO ‘9dUBYOXE ‘[eIUI ‘aes oY) Woy UlEISge Ajayerpowut OF (¢)

‘sudisse JO syusde Ino

40 nok Aq popjonuos 40 poumo syst] Burprews [ye Woy saied powreu-aaoge 24) 9j2[2p Ajayerpowius! O | (Z)

(apo) dIZ) (aig) (4119)

LS6SE eueqeTy *zeog

(12041$ )

anusay UTWeW ZOL ‘SSauadadv

:J9PsO sty} JO yd1ad01 sNoA Jaye Aep Jepuajeo

WIDE 24) UO IANIDAJJO ‘fedo] pue ‘JapjoYyXog anos [eins ‘uoned jeysod ‘Japjoyxog “juapises ‘sopjoyssnoy

uedns00 ‘0} poy] JOU Inq ‘se YONs ‘UOHeUTIsap sessoippe JO UONELIBA Aue Aq ssosppe poyesipul 94} J0j

Popusju! JO ‘ssoIppe Poyeoipul oY) 1 sored Suimosjoy ay) 0} sBurprew soyny Aue wody UleIjos OL (1)

:posapso

Aqaiay ose ‘sudisse pue syudde snof ‘nok ‘ Wa . 966 WA‘ ‘6€ WIL ‘TesouaH

sayseunsog ay) Aq ow 0} poyedajap Aysoyyne oy} pue 93Nje}S PI}!d 94) OF quensind ‘AyYO4aAUYaH_LL ‘MON

YpraK BMOPNSOX EO RPPHFOKKID SHOE PMB] WY 0} sBurrew Joyyny Aue Buryew wos uleljas 0} ‘sudisse JO sjudde

inok pue nok BurjsoJIp ‘JooJay Spis 9SJ9AI1 BY) UO posurid si mez yotym jo Adoo & ‘600% ‘2POD SN “6E

IPL JO suorsiaosd oy) 0} yUeNsInd Jopso Ue JO BDUBNSS! 94) poisonbas sey sessoippe pies ‘SYaYaHM

pur ‘s9y7ew SAlqedoaod Ajyenxas Jo Bursnose AjjeojOJ2 aes

40} BulsajjO UaWasIeApe BuLJopued & aq 0} JUDWASIPZApe inok pourwsajep sey sessosppe pies ‘SVHUAHM

pue

(ssasppy )

Lsese eueqety *zeog

(aassasppy fo auvy )

utTweW *FT “sor

0} pojiew oq 0} posned

JO pajiew nok yoiym sayew Bulsiaape Bururezuos gooid Buijrews e poysiusny oom OM “SWOAAHM

te ON 0Sc06 Vo ~surouyNeH

GhOT XO Od

waAGdUO AYOLIGIHOUd SOF 4900

sjzonpoug ATTeNd

LNIWLYVdIG ID14IO LSOd

VoINaWV 4O SILVLS G3LINN

‘V LICAIHXd