MANual Enterprises, Inc. v. Day/Concurrence Brennan
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join, concurring in the reversal.
I agree that the judgment below must be reversed, though for a reason different from my Brother HARLAN'S. This is the first occasion on which the Court has given plenary review  to a Post Office Department order holding matter 'nonmailable' because obscene.
Petitioners, publishers of certain magazines, employ the mails in the distribution of about half of their claimed circulation of 25,000. On March 25, 1960, petitioners deposited 405 copies of their publications for transmission as second class mail from Alexandria, Virginia, to Chicago. However, the Alexandria postmaster, acting, apparently without notice to petitioners, on his belief that the magazines might be obscene and therefore 'nonmailable' under 18 U.S.C. § 1461, 18 U.S.C.A. § 1461, withheld delivery and forwarded samples to the General Counsel of the Post Office Department. On April 5 and 7 that official notified petitioners not only that the magazines were being withheld from delivery because of his opinion that they were nonmailable, but also that no formal hearing would be held since an insufficient monetary value was involved. Shortly thereafter, on April 11, 1960, petitioners requested a Post Office hearing, and also sought injunctive relief in the District Court for the District of Columbia against this stoppage of their mailing. On the same day the Post Office Judicial Officer reversed the General Counsel and ordered a hearing, and thereafter the District Court refused temporary relief. On April 21, after pleadings had been filed, the hearing was begun before the Judicial Officer. On April 25 petitioners' injunction suit was dismissed on the condition that they might seek further relief if final administrative action was not forthcoming by April 28. On April 28, one month and three days after the mailing, the Judicial Officer handed down his opinion holding the magazines obscene and nonmailable, thus opening petitioners' way into court.
On May 13, petitioners filed the complaint now before us, alleging that the magazines were not obscene, that respondent's action in withholding them from the mails was 'unlawful and inequitable * * * calculated * * * to censor and harass plaintiffs and * * * a prior restraint designed to deprive the plaintiffs of their rights under the First Amendment * * *,' and requesting temporary and permanent injunctive relief. Petitioners then moved for summary judgment, arguing, inter alia, that 'the Post Office Department held a time-consuming hearing, the product of which was an Order contrary to the established law of the United States * * *. This amounts to the most obnoxious and unconstitutional censorship. The principal effect of the administrative hearing * * * is to delay action of this Court. * * * Plaintiffs assert that the Post Office has conducted an ex parte administrative prior restraint treading upon an area of constitutional sensitivity apart from the substantive problems of determining whether or not the magazines are obscene. * * * Further, plaintiffs argue that the entire civil procedure followed by the Post Office based upon a criminal statute raises doubts of constitutionality.' Respondent, too, moved for summary judgment. His motion was granted and the complaint dismissed without opinion. The Court of Appeals affirmed, holding the magazines obscene.
In addition to the question whether the particular matter is obscene, the Post Office order raises insistent questions about the validity of the whole procedure which gave rise to it, vital to the orderly development of this body of law and its administration. We risk erosion of First Amendment liberties unless we train our vigilance upon the methods whereby obscenity is condemned no less than upon the standards whereby it is judged. Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; Kingsley Books, Inc., v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469; see also Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. Questions of procedural safeguards loom large in the wake of an order such as the one before us. Among them are: (a) whether Congress can close the mails to obscenity by any means other than prosecution of its sender; (b) whether Congress, if it can authorize exclusion of mail, can provide that obscenity be determined in the first instance in any forum except a court, and (c) whether, even if Congress could so authorize administrative censorship, it has in fact conferred upon postal authorities any power to exclude matter from the mails upon their determination of its obscene character. 
Lower courts and judges have been troubled by these questions,  but this Court has not had occasion to decide them. At least question (c) is before us now.  It surpasses in general significance even the important issue of the standards for judging this material's 'mailability.' Moreover, dealing with the case on this ground involves less constitutional difficulty than inheres in others. The conclusion that the Postmaster General is acting ultra vires because Congress has not granted the power which he here asserts, while greatly influenced by constitutional doubts, does not require a decision as to whether any establishment of administrative censorship could be constitutional. Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586; Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204. 
Mr. Justice Holmes has said: 'The United States may give up the postoffice when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues and it would take very strong language to convince me that Congress ever intended to give such a practically despotic power to any one man.' Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 437, 41 S.Ct. 352, 363, 65 L.Ed. 704 (dissenting opinion).
Whether Congress, by its enactment or amendment of 18 U.S.C. § 1461, 18 U.S.C.A. § 1461 (a part of the Criminal Code), has authorized the Postmaster General to censor obscenity, is our precise question. The Government relies upon no other provision to support the constitutionally questionable power of administrative censorship of this material. That power is inferred from the declaration that every item proscribed in § 1461 is 'nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.' Even granting that these words on their face permit a construction allowing the Post Office the power it asserts, their use in a criminal statute, their legislative history, and the contrast with the words and history of other provisions dealing with similar problems, raise the most serious doubt that so important and sensitive a power was granted by so perfunctory a provision. The area of obscenity is honeycombed with hazards for First Amendment guaranties, and the grave constitutional questions which would be raised by the grant of such a power should not be decided when the relevant materials are so ambiguous as to whether any such grant exists.
The origin of § 1461 is briefly told.  It was the tag end of a bill drawn in 1865 to meet Post Office requests for various administrative changes. Its first version read:
'That no obscene book, pamphlet, picture, print, or other publication of a vulgar and indecent character, shall be admitted into the mails of the United States; but all such obscene publications deposited in or received at any post office, or discovered in the mails, shall be seized and destroyed, or otherwise disposed of, as the Postmaster General shall direct. And any person or persons who shall deposit or cause to be deposited in any post office or branch post office of the United States, for mailing or for delivery, an obscene book, pamphlet, picture, print, or other publication, knowing the same to be of a vulgar and indecent character, shall be deemed guilty of a misdemeanor, and, being duly convicted thereof, shall, for every such offense, be fined not more than $500, or imprisoned not more than one year, or both, according to the circumstances and aggravations of the offense.'
In offering this proposal, Chairman Collamer of the Senate Post Office Committee took pains to point out that it 'may be liable to some objection. * * * I am not perhaps entirely satisfied with it,' and Senator Reverdy Johnson, concerned about postmasters breaking seals, immediately took up Chairman Collamer's suggestion that only the penal provision be adopted. Chairman Collamer, agreeing that the nonpenal clause 'might be made a precedent for undertaking to give (a postmaster) a sort of censorship over the mails,' said he would be as happy if it were dropped. Senator Johnson then moved to strike it: '(I)t would be establishing a very bad precedent to give authority to postmasters to take anything out of the mail.' He acknowledged that much material is sent uncovered, but thought the penal provision sufficient to meet the evil. However, Senator Sherman observed:
'I would much prefer, if the Senator would be satisfied, with simply striking out the second clause of the first (sentence). I think the prohibition against publications of this character going into the mails ought to stand. We are well aware that many of these publications are sent all over the country from the city of New York with the names of the parties sending them on the backs, so that the postmasters without opening the mail matter may know that it is offensive matter, indecent and improper to be carried in the public mails. I think, therefore, the legislative prohibition against carrying such matter when it is known to the postmasters should be left. Probably the second clause allowing him to open mail matter should be struck out * * *.'
Senator Johnson acquiesced and the bill was then passed, reading:
'That no obscene book, pamphlet, picture, print, or other publication of a vulgar and indecent character, shall be admitted into the mails of the United States; any person or persons * * *.' Cong.Globe, 38th Cong., 2d Sess. 660-661 (1865); 13 Stat. 507.
There are two possible constructions of § 1461 on the basis of this brief Senate discussion. One possibility is that short of breaking seals,  the postmasters could remove matter which they thought from its face or the name of its sender to be obscene. The second construction is that postmasters could remove matter but only to turn it over to the appropriate authorities as the proposed subject of a criminal prosecution-and also of course after that material had been determined, in a criminal trial of its sender, to be obscene. Support for this second construction is found not only in the brief 1865 Senate consideration itself but also in an 1888 statute amending § 1461, and enacting a section banning material with obscene matter on its face and-unlike § 1461 explicitly providing that it 'shall be withdrawn from the mails under such regulations as the Postmaster-General shall prescribe.' 
The 1865 Senate discussion is not unambiguous, but I cannot suppose that Senator Johnson-who had already noted his awareness that much obscene material was discoverable without breaking seals, and even so, his determined opposition to its being stopped would have accepted Senator Sherman's suggestion had he understood it to mean more than that the Post Office could stop obviously questionable matter for the purpose of transmitting it to prosecuting authorities, could stop matter already held obscene if it were sent again, and could investigate matter sent by persons previously convicted and, if the matter were found violative, could present it to the prosecuting authorities. I believe this is the correct construction of the 1865 enactment. But at least it is arguably correct, and necessary if we are to avoid the section's probable constitutional infirmity  (see Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; Summerfield v. Sunshine Book Co., 95 U.S.App.D.C. 169, 221 F.2d 42) if construed as a provision allowing the Postmaster General to exclude all matter sent by a person who had previously sent violative matter. 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, 77 S.Ct. 1304, 1319, 1 L.Ed.2d 1498 (dissenting opinion); Hannegan v. Esquire, Inc., 327 U.S., at 156, 66 S.Ct. at 461, 90 L.Ed. 586; Speiser v. Randall, 357 U.S. 513, 518, 78 S.Ct. 1332, 1338, 2 L.Ed.2d 1460.
Subsequent developments concerning the removal of matter from the mails reveal a nearly contemporaneous strong distaste for and awareness of constitutional doubts about nonjudicial censorship, such as reflects meaningfully on the ambiguity surrounding § 1461's enactment. That ambiguity has persisted throughout § 1461's history of amendment, reconsideration, and codification. In the concurrent history of Congress' handling of related problems, there has been in each instance either a clear grant of power to the Postmaster General or, for matters as inextricably intertwined with the First Amendment as obscenity, a provision for judicial rather than administrative process. Nothing is found to suggest that one should resolve the ambiguity in 1865 to find a grant of the power of administrative censorship. Compare Lewis Publishing Co. v. Morgan, 229 U.S. 288, 311, 33 S.Ct. 867, 873, 57 L.Ed. 1190.
In 1868, in considering a provision making it unlawful to deposit letters or circulars concerning lotteries, House Conferees struck a Senate proposal which would have authorized postmasters to remove from the mail and deposit in dead letter offices any letters or circulars thought to concern lotteries. House Postal Committee Chairman Farnsworth explained 'We thought that was a dangerous power to confer upon postmasters, and therefore we have stricken it out. That section provides that it shall be unlawful to deposit in the mails * * * which we thought would be a wise provision. But we thought it would not be wise to give postmasters this extraordinary power to be exercised upon a mere suspicion.' Cong.Globe, 40th Cong., 2d Sess. 4412 (1868). Opinions of the Attorney General advising as to the postmasters' authority under this lottery provision emphasized the necessity for explicit legislative authorization to warrant removal of material from the mails. Those opinions cited examples of provisions containing such express authorization but, significantly, did not include § 1461-an important omission in the light of the observation of the Attorney General that aside from the examples he gave '(i)f there are other provisions permitting a detention of letters by a postmaster, they have escaped my attention. It is believed that, at least, there are no others affecting the subject of the present inquiry.' Furthermore, in describing the authorizations he did find, the Attorney General said: 'It will be seen that none of these authorize what can properly be called a 'seizure' of any suspected letters by a postmaster, because, probably, he is not deemed the proper functionary to bring to trial and punishment those violating the postal laws.' 
In 1872, § 1461 was amended as part of a codification of postal legislation. The amendment added a proscription against the mailing of 'any letter upon the envelope of which, or postal card upon which scurrilous epithets may have been written or printed, or disloyal devices printed or engraved * * *.' 17 Stat. 302.  The section was further revised when the Comstock Law was enacted in 1873. 17 Stat. 598. That statute established penalties for dealing in or in any way publishing obscenity or any article of an immoral nature in areas under federal jurisdiction, expanded the list of items not to be mailed to include matter intended to aid the procuring of abortion, and banned the importation of all such items. When the bill came to the floor, Senator Casserly objected to the provision allowing customs officers to seize prohibited items: 'I do not know whether it can be left to officers of the custom-house to determine with safety what kind of literature or what sort of matter is to be admitted.' Cong.Globe, 42d Cong., 3d Sess. 1436 (1873). The bill was accordingly changed to authorize customs officers simply to detain the items, and then proceed in a federal court to condemn them, if the federal judge were satisfied that they must be condemned. Id., at 1525. There is no suggestion that customs officers were thought to be less trustworthy than postal officers;  this insistence upon judicial proceedings shows plainly the congressional aversion to administrative censorship.
The Comstock bill received but scant and hasty consideration.  As passed, its language was susceptible of a reading which would fail to penalize the mailing of obscene or indecent literature, and reach only actual abortifacients. Closing this inadvertent gap was the sole purpose  of an 1876 amendment, 19 Stat. 90, which made several language changes; among them, the substitution of the words of which the Government makes so much-'declared to be non-mailable matter, (which) shall not be conveyed in the mails, nor delivered from any post-office nor by any letter-carrier'-for the more cursory '(which) shall (not) be carried in the mail.' Moreover, the 1876 discussion evinces the understanding that the only obscene materials removable by the Post Office were those which were to be submitted as, or which already had been, the subject of a criminal prosecution. The manager of the amendment assured the House: 'Nor, sir, does this bill give any right to any postmaster to open or to interfere with anybody's mail. It is like anything else, before you can convict, you must offer and make proof.' During the debate a different speaker said: 'Whenever a jury in any locality in the country shall find that a paper contains matter which may be devoted to a purpose which they deem immoral not only indecent, but immoral-the jury may convict the man who sends the paper or the man who receives it by mail, and the postmaster is authorized to exclude that newspaper from the mail.' A third speaker, in urging that the word 'scurrilous' be removed, warned: 'I do not object to the purification of the mails, but I would like the committee when they reconsider this bill not to go too far in giving postmasters discretion.' Another Congressman feared that the severity of the penalties would make the law a dead letter, because judges and juries would be unwilling to convict. Thus the tenor of the entire debate reflected the premise that § 1461 had only a criminal application. No one suggested that it also authorized administrative censorship. 4 Cong.Rec. 695-696.  And see 8 Cong.Rec. 697 (1879).
Especially significant in pointing up the purely penal application of § 1461 are the legislative events of 1888. An amendment of but a few months' duration changed the law on such postal crimes as counterfeiting money orders. It included a provision penalizing the mailing of any matter upon the envelope or outside cover of which was indecent, scurrilous, threatening, etc., language.  The provision was promptly amended in the same session because 'there was a suspicion that an implied power was given to postmasters to open letters. Of course there was no such intention, and this (new) bill eliminates that objectionable feature * * *.' 19 Cong.Rec. 8189. 
But even more significantly, the new enactment transferred to a new section, § 1463, 25 Stat. 496, the ban of § 1461 which, in the 1876 version (19 Stat. 90), had reached 'every letter upon the envelope of which, or postal card upon which, indecent, lewd, obscene, or lascivious delineations, epithets, terms, or language may be written or printed'; and § 1463, instead of merely declaring that the listed matter was nonmailable and was not to be conveyed or delivered, provided that those items 'shall be withdrawn from the mails under such regulations as the Postmaster-General shall prescribe. * * *' It is strange, I think, that § 1461-amended at the same time as § 1463 was enacted-was not amended also to include an explicit provision for withdrawal from the mails, if authority for withdrawal had been Congress' intention. But Congress did not contemplate any general administrative censorship or obscenity. The House discussion expressed the agreement that besides the power to punish, there should be no more than the most limited Post Office power to stop mail-and § 1463 states that limitation; and the Senate debate, focusing almost entirely upon how severe the penalties should be, reinforced the restrictions upon the postmasters and underlined that § 1461 is exclusively penal. See 19 Cong.Rec. 7660-7662, 8189.
The last congressional dealing with § 1461 which is pertinent to our inquiry occurred in 1909, when again that section was amended, this time to bar more abortifacients and 'every letter, packet, or package, or other mail matter containing any filthy, vile, or indecent thing.'  Though committee reports are unenlightening, the House discussion makes plain that the changes were intended to reverse the limitations stated in Swearingen v. United States, 161 U.S. 446, 16 S.Ct. 562, 40 L.Ed. 765, that the statute applied only to 'that form of immorality which has relation to sexual impurity,' and that its words had 'the same meaning as is given them at common law in prosecutions for obscene libel.' 161 U.S., at 451, 16 S.Ct. at 563; 42 Cong.Rec. 995-999, 43 Cong.Rec. 283-284.  The two brief House discussions suggest that there were members who did believe that the Post Office had some power to remove obscene mail, even apart from presenting it for criminal prosecution; it was analogized to fraudulent matter. But nothing characterizes the discussion so much as its ambiguity, and its concern lest the Post Office acquire powers whose exercise would amount to censorship. See 42 Cong.Rec. 995-998. And see 101 Cong.Rec. 3804, 7798, 8241-8242 (1955).
Section 1463 is not the only statute which goes further than § 1461 towards authorizing Post Office censorship. Five other criminal statutes prohibiting the introduction of various matter into the mails either contain within themselves or have direct counterparts in the postal laws which contain explicit authorizations to the Postmaster General to remove or return such matter.  In sharp contrast, § 1461-itself silent as to sanctions except for the provision of criminal penalties-has no counterpart in the postal laws. It is mentioned once in the recodification of 1960-in § 4001(a), a section collecting the various provisions designating matter as nonmailable and which, the Committee Report indicates and the floor discussion and reviser's note assure, was not intended to change existing law -ambiguous throughout.
The removal of obscene material has not been the Post Office's only weapon against it. In 1950, § 4006 was enacted granting special powers over the mail of any person found, to the Postmaster General's satisfaction, to be using the mails to obtain money for or to be providing information about any obscene or vile article or thing: Postmasters could mark mail sent to that person 'unlawful' and return it to its sender; and they could forbid payment to that person of any money orders or postal notes, and return the funds to the senders.  The clarity of the grant of these powers is no less noteworthy than their subsequent history. In 1956 the Postmaster General sought  and obtained the power to enter an order, pending the administrative proceeding to determine whether § 4006 should be invoked, under which all mail addressed to the respondent could be impounded. The order was to expire at the end of 20 days unless the Postmaster General sought, in a Federal District Court, an order continuing the impounding. The 20-day order by the Postmaster General, and its extension by a court, were to issue only if 'necessary to the effective enforcement of (§ 4006).'  In 1959, extensive hearings were held in the House on the Post Office's request that the 20-day period be extended to 45 days, and that the standard of necessity be changed to 'public interest.'  Instead, what was enacted in 1960 stripped the Postmaster General of his power to issue an interim order for any period, and directed him to seek a temporary restraining order in a Federal District Court. 
Congress gave full consideration to censorship of obscene material when it dealt with the Tariff Act of 1930. Prior to that year, the customs laws provided for the exclusion from the United States of obscene written matter, but required resort in the first instance to a Federal District Court for a determination of the matter's obscenity.  In the course of their work on the bill, the House Ways and Means Committee added language to exclude seditious as well as obscene material, and also replaced the judicial procedure with the generally applicable procedures for seizure by the customs officers, entailing judicial review only at the instance of a would-be importer. See H.R.Rep. No. 7, 71st Cong., 1st Sess., at 160, 185, 190, 244-245. It was in this form that the bill passed the House, and was reported by the Senate Committee, see S.Rep. No. 37, 71st Cong., 1st Sess. 60; 71 Cong.Rec. 4458 (remarks of Senator Smoot), but on the Senate floor it ran into strong expressions against customs censorship: fears about administrative determinations were enhanced by felt difficulties in applying the statute's proscriptions to particular material. Judicial review was thought insufficient, for that would leave the initiative for resort to the courts with the person subjected to the censorship: expense, inconvenience, and public embarrassment would, it was believed, result in unreviewed administrative exclusion. See generally 71 Cong.Rec. 4432-4439; 4445-4471. In support of the idea that the initial decision should be made by a court rather than a customs inspector, 72 Cong.Rec. 5417-5423, Senator Walsh of Montana said:
'Everybody of right mind wants to prevent the circulation of such books as the Senator from Utah has in mind. That is not the point at all. Those immoral and obscene and indecent publications are printed in this country, as well as abroad * * *. How do we reach the situation? We make it a crime to circulate those books in this country, and we punish that offense the same as we punish every other offense, by proper prosecution. Likewise, we prohibit the circulation of material of that kind in the mails, and if anybody circulates it in the mails he becomes liable to indictment and prosecution. That is the way we endeavor to deal with that thing.' 72 Cong.Rec. 5419. See also id., at 5425, 5430. But compare the remarks of Senators Copeland, Cutting, and Fletcher, 71 Cong.Rec., at 4435, 4450.
He then offered an amendment to impose criminal sanctions for importing proscribed matter, and to require the matter's detention by the customs for transmittal to the appropriate authorities to commence judicial forfeiture proceedings. Id., at 5421. However, there were misgivings about the criminal sanction; it was thought by some to jeopardize borderline activity too seriously. Id., at 5423-5431. The Senate passed a provision corresponding to Senator Walsh's amendment, but without a criminal sanction, 72 Cong.Rec. 5501-5520, and this was enacted into law. Thus the House Committee's attempt to revert from judicial to administrative determinations in the initial phase of customs censorship was emphatically rebuffed.
It is clear that the Post Office has long practiced administrative censorship of allegedly obscene mailings generally. However, the formal regulations prescribing a procedure are new.  The practice was described in 1952 by the Solicitor of the Department when testifying before a congressional committee:
'(W)e have an informal procedure, which, so far, hasn't been considered or tested out in the court, so we have gotten by with it so far. That is where a postmaster finds obscene matter at the point of entry of the mail into the post office, and if he is in doubt as to whether it is good or bad he will send it to the Solicitor's office for a ruling. * * *'
'If we had to hold hearings on all of those, if any court should ever decide that those hearings also come under the Administrative Procedure Act, we are just hopelessly sunk, that is all; we are just lost.
'They may, but they have never taken us into court on it. We just hope that we get by with it as long as we can.' 
'(S)ometimes you can get five people together, and you can give them five pieces of mail, and ask them to mark them, and you will get five different results, because in some cases it is just one of those things that depends on your own personal ideas and your own bringing up; it depends upon how strongly you feel about things, and there are some types of that material that you just can't get two people to agree on no matter how reasonably and how objectively they look upon it. It is just an honest difference of opinion. We experience it all the time, so we have our conferences, and we decide what is going to be the best thing to do. * * *
'We have no trouble with prosecutions on things that are definitely obscene, but it is this material that is this way and that way that is very, very difficult to prosecute.' Hearings before the Select Committee on Current Pornographic Materials, House of Representatives, on Investigation of Literature Allegedly Containing Objectionable Material, 82d Cong., 2d Sess., 281, 282 (1952).
It also is clear that this was not the first or last occasion on which Post Office practice has been brought to the attention of a congressional committee.  But the report of the 1952 Select Committee, which listed § 1461 as a criminal statute, certainly did not dispel the continuing ambiguity surrounding that section. And the report said:
'There are other means of handling this problem than by the ban of the censor, means which can be applied without danger of infringing on the freedom of the press * * *.' 
But, in any event, testimony before committees, committee reports, and administrative usurpation, do not, either singly or collectively, suffice to establish authorization.
We have sustained the criminal sanctions of § 1461 against a challenge of unconstitutionality under the First Amendment. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. We have emphasized, however, that the necessity for safeguarding First Amendment protections for nonobscene materials means that Government 'is not free to adopt whatever procedures it pleases for dealing with obscenity * * * without regard to the possible consequences for constitutionally protected speech.' Marcus v. Search Warrant, 367 U.S. 717, 731, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127. I imply no doubt that Congress could constitutionally authorize a noncriminal process in the nature of a judicial proceeding under closely defined procedural safeguards. But the suggestion that Congress may constitutionally authorize any process other than a fully judicial one immediately raises the gravest doubts. However, it is enough to dispose of this case that Congress has not, in § 1461, authorized the Postmaster General to employ any process of his own to close the mails to matter which, in his view, falls within the ban of that section. 'The provisions * * * would have to be far more explicit for us to assume that Congress made such a radical departure from our traditions and undertook to clothe the Postmaster General with the power to supervise the tastes of the reading public of the country.' Hannegan v. Esquire, Inc., 327 U.S., at 156, 66 S.Ct. at 461, 90 L.Ed. 586. I, therefore, concur in the judgment of reversal.
Mr. Justice CLARK (dissenting).
^2 There would also be the question, if (a), (b) and (c) were answered affirmatively, of the validity of the particular procedures that the Post Office has employed.
^3 See, e.g., Grove Press, Inc., v. Christenberry, D.C., 175 F.Supp. 488, 495, and 2 Cir., 276 F.2d 433, 435; Sunshine Book Co. v. Summerfield, 101 U.S.App.D.C. 358, 364-367, 249 F.2d 114, 120 123 (dissenting opinion), reversed, see supra, n. 1. And cf. Roth v. Goldman, 2 Cir., 172 F.2d 788, 794-795 (concurring opinion). Compare Stanard v. Olesen, 74 S.Ct. 768 (opinion of Mr. Justice Douglas), Olesen v. Stanard, 227 F.2d 785; Summerfield v. Sunshine Book Co., 95 U.S.App.D.C. 169, 221 F.2d 42.
^4 The Government argues that petitioners 'complain generally of 'an unconstitutional prior restraint,' * * * without specifying (where) the asserted vice lies * * *.' Insofar as petitioners challenge the constitutionality of § 1461 if read to impose civil restraints, their suit would be within the requirements for convening a three-judge court under 28 U.S.C. § 2282, 28 U.S.C.A. § 2282, and therefore that claim is not here. But insofar as their attack is grounded upon a claim that § 1461 is not to be construed as granting censorial power to the Post Office, § 2282 does not apply.
^5 My Brother HARLAN states that no question is raised as to the Post Office Department's general authority under 18 U.S.C. § 1461, 18 U.S.C.A. § 1461 to withhold obscene matter from the mails. The Government asserts only that at the administrative level the petitioners made no objection to the procedure. The Government does not suggest that the challenge to the Post Office's power to act at all had to be made before the administrative body. That challenge presents a jurisdictional question and is open to the petitioners even if not initially asserted in the agency proceeding. See United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 38, 73 S.Ct. 67, 69, 97 L.Ed. 54. And although perhaps not artfully, the petitioners did challenge the authority of the Post Office in the District Court. In their motion for summary judgment petitioners stated: '(P)laintiffs argue that the entire civil procedure followed by the Post Office based upon a criminal statute raises doubts of constitutionality. The fragile foundation on which the Post Office action rests must be kept in mind, both in dealing with the substantive obscenity question involved and in determining the proper scope of judicial review * * *. There is lacking here the kind of specific legislative direction to the administrative agency that in certain circumstances justifies judicial deference to administrative determinations.' The Court of Appeals did not discuss the issue, perhaps because it had held in Sunshine Book Co. v. Summerfield, supra, n. 3, that the questioned authority exists; the Government does not suggest that petitioners failed to make their argument there. And in this Court, petitioners continue their attack and the Government, without reservation, fully defends against it.
^6 There is no need to consider here the history before 1865, which was highlighted by the rejection by Congress in 1836, largely on constitutional grounds, of President Jackson's request for legislation to suppress mail distribution of 'incendiary' abolitionist literature. See Rogers, The Postal Power of Congress (1916); Deutsch, Freedom of the Press and of the Mails, 36 Mich.L.Rev. 703 (1938). The 1865 Senate debates referred to such action as the kind for which power should be withheld. Cong. Globe, 38th Cong., 2d Sess. 661 (1865). The Post Office occasionally seized allegedly treasonable newspapers despite its lack of authority. See H.R.Rep. No. 51, 37th Cong., 3d Sess., pp. 3, 10 (1863).
The only noncriminal procedure authorized against obscene material before 1865 was a judicial proceeding for imported material's forfeiture. 5 Stat. 566; see United States v. Three Cases of Toys, 28 F.Cas. page 112, No. 16499; Anonymous, 1 Fed.Cas. page 1024, No. 470. For a comprehensive discussion of the history and practice of censorship in the Post Office and Bureau of Customs, see Paul and Schwartz, Federal Censorship: Obscenity in the Mail (1961), and Paul, The Post Office and Non-Mailability of Obscenity: An Historical Note, 8 U.C.L.A.L.Rev. 44 (1961).
^7 Congress in 1865 was undoubtedly against any power in the Post Office to break seals (see Cong.Globe, 38th Cong., 2d Sess. 660-661), and 23 years later made this explicit as to first class mail. 25 Stat. 496-497. But even that was a prohibition 'out of abundant caution' and was not intended to imply any power to open mail of other classes. See 19 Cong.Rec. 8189 (1888).
^10 16 Op.Atty.Gen. 5, 6 (1878); 12 id., 538 (1868); and see 12 id., 399, 401 (1868).
^11 There was also a provision that any material 'which may be seized or detained for violation of law shall be returned to the owner or sender of the same, or otherwise disposed of as the Postmaster-General may direct,' 17 Stat. 323, but that only states what may be done with material which may be seized or detained, and our question is whether obscene material-except in the narrow circumstances already described-may be seized or detained at all. Compare 370 U.S., pp. 511-512, 82 S.Ct., pp. 1449-1450.
^12 But see Casserly's second statement, id., at 1436, which was a misunderstanding of the bill.
^13 See Paul, supra, n. 6, at 51-57.
^14 The bill's manager in the House said: '(T)he proposed bill in no wise changes the law as it now is except to provide a penalty for the circulation of obscene literature. By an oversight in drafting the original section the penalty applies only to the disposition of articles circulated or sold for the purpose of procuring abortion or preventing conception. Already this obscene class of matter spoken of in the other portion of the section is prohibited from passing through the mails, but no penalty is provided. * * * (I)t in no way changes the section as it now is. It makes nothing non-mailable that is not now non-mailable. It merely provides a penalty * * *.' 4 Cong.Rec. 695 (1876).
'Section (1461) is perfected by the bill so as to provide a complete penalty for the mailing of all kinds of matter therein prohibited to pass through the mails.' 4 Cong.Rec. 3656. The Senate did not discuss this change. See 4 Cong.Rec. 4261-4264.
^15 Discussion in the Senate included the first reference to the problem of standards of obscenity-it was hardly such as to afford guidelines for administrative action:
'Mr. MORTON. Mr. President, in prohibiting the transmission of any matter through the mails there ought to be great care used and it ought to be particularly described and defined. All of that which is described in the beginning of the first section of this bill is eminently proper to prohibit from being transmitted through the mails; but there is a part of that section that I think is vague and susceptible of abuse. It prohibits the transmission through the mail of 'every article or thing intended or adapted for any indecent or immoral use.' What is an 'immoral use?' That question may be subject to very different opinions. The word 'obscene' is well defined; we can understand what that means; but when you prohibit everything that is for an immoral use, there would be wide differences of opinion on that point.
'Mr. CONKLING. The same words are in the law now.
'Mr. MORTON. That may be. I remember a time when certain newspapers and pamphlets were prohibited from going through the mails in certain States, because they were held to be of an immoral and seditious character-of 'an incendiary character,' as my friend from Ohio (Mr. SHERMAN) suggests. Public opinion has changed upon that point. But when we come to prohibit the transmission of any matter through the mails, we ought to understand pretty well what it is. There are many things that a portion of our people would consider immoral that other portions would consider entirely moral. Some people might consider a pack of card highly immoral; others might think they were entirely proper. Many other things might be enumerated.' 4 Cong.Rec. 4263.
^16 'And all matter otherwise mailable by law upon the envelope or outside cover or wrapper of which, or postal card, upon which indecent, lewd, lascivious, obscene, libelous, scurrilous, or threatening delineations, epithets, terms, or language, or reflecting injuriously upon the character or conduct of another, may be written or printed, are hereby declared to be non-mailable matter, and shall not be conveyed in the mails, nor delivered from any post-office nor by any letter-carrier; and any person who shall knowingly deposit * * *.' 25 Stat. 188.
The proscription of scurrilous epithets had been part of § 1461 as amended in 1873, 17 Stat. 599, but it was removed in 1876 when the word's breadth and vagueness were objected to. Its reenactment was largely aimed at a 'blackmailing' process for the collection of debts. 19 Cong.Rec. 2206, 6734, 7662 (1888).
^17 But see also id., at 6733-6734.
^18 35 Stat. 1129.
^20 (1) 18 U.S.C. § 1718, 18 U.S.C.A. § 1718, the criminal provision against mailing of matter libelous on its face, explicitly empowers the Postmaster General to make regulations governing its withdrawal from the mails; (2) 18 U.S.C. §§ 1341 and 1302, 18 U.S.C.A. §§ 1341, 1302, the criminal mail fraud and lottery provisions, have a matching section in the postal laws empowering the Postmaster General, upon evidence satisfactory to him, to mark mail 'fraudulent' or 'lottery mail' and to return it to its sender, 39 U.S.C. (Supp. II) § 4005, 39 U.S.C.A. § 4005; (3) 18 U.S.C. § 1342, 18 U.S.C.A. § 1342, making it a crime to conduct a fraudulent scheme by using a false name or address, also has a counterpart civil section empowering the Postmaster General, upon evidence satisfactory to him, to require proof of identity or to send such mail to the dead letter office, 39 U.S.C. (Supp. II) § 4003, 39 U.S.C.A. § 4003; (4) 18 U.S.C. §§ 1715 and 1716, 18 U.S.C.A. §§ 1715, 1716, making criminal the mailing of firearms and injurious articles, explicitly state that the Postmaster General may make regulations governing their transmission; (5) 18 U.S.C. § 1717, 18 U.S.C.A. § 1717, making criminal the mailing of matter advocating treason, explicitly authorized employees of the dead letter office to open such mail. See 74 Stat. 708. And see 7 U.S.C. § 150cc, 7 U.S.C.A. § 150cc and 33 Stat. 1270 (plant pests), 7 U.S.C.A. § 141 et seq. 38 Stat. 1113 (plants and plant products), 7 U.S.C.A. § 166, 22 U.S.C. § 618, 22 U.S.C.A. § 618 (foreign agents' propaganda advocating violent disorder in any other American republic); compare 7 U.S.C. § 1575, 7 U.S.C.A. § 1575 (false advertising of seed); 15 U.S.C. §§ 77q, 15 U.S.C.A. §§ 77q (fraudulent matter regarding securities), 80a-20 (solicitation of proxies), 80a-24 (sales literature regarding securities), 80b 3, 80b-5 and 80b-6 (investment advisers' materials); 50 U.S.C. § 789, 50 U.S.C.A. § 789 (publications of registered Communist organizations).
See American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 109, 23 S.Ct. 33, 39, 47 L.Ed. 90.
^21 H.R.Rep.No.36, 86th Cong., 1st Sess. A44 (1959); 105 Cong.Rec. 3157 (1959) and 106 Cong.Rec. 15,667 (1960); and see supra, n. 11.
^23 It appears that between 1950 and 1956, the Postmaster General asserted, and some courts agreed, that he already had the power. See Stanard v. Olesen, supra, n. 3, 74 S.Ct. at 771.
^24 70 Stat. 699.
^25 Hearings before House Subcommittee on Postal Operations of the Committee on Post Office and Civil Service on Obscene Matter Sent through the Mail, 86th Cong., 1st Sess. (1959).
^26 74 Stat. 553. The codification of the postal laws, later in 1960, repealed 70 Stat. 699 (see 74 Stat. 708, 729) and not 74 Stat. 553, but the new § 4007 (74 Stat. 655) repeats the words of 70 Stat. 699. We need not now decide which is the governing provision.
The Senate Report in 1956 had said this:
'The committee recognizes that even in its present form the bill gives the Postmaster General extraordinary and summary powers to impose a substantial penalty by impounding a person's mail for up to 20 days in advance of any hearing or any review by the courts. Such power is directly contrary to the letter and spirit of normal due process, as exemplified by the Administrative Procedure Act, which requires a hearing before any penalty may be imposed. The Post Office Department has made its case for this legislation on the grounds that a temporary and summary procedure is required to deal with fly-by-night operators using the mails to defraud or to peddle pornography, who may go out of business-or change the name of their business or their business address- before normal legal procedures can be brought into operation. The Post Office Department has not recommended, nor does this committee approve, the use of the temporary impounding procedure under this bill as a substitute for the normal practice of an advance hearing or the bringing of an indictment for violation of the criminal code in all cases involving legitimate and well-established business operations. The committee would not approve the use of the extraordinary summary procedure under the bill against legitimate publishers of newspapers, magazines, or books in cases in which a Postmaster General might take objection to an article, an issue, or a volume.' S.Rep.No.2234, 84th Cong., 2d Sess. 2-3, U.S.Code Cong. and Adm.News 1956, p. 3598.
^27 Section 305 of the Tariff Act of 1922, 42 Stat. 937, banned obscene and immoral matter, but subsection (c) provided:
'That any district judge * * * within the proper district * * * (may issue upon probable cause, conformably to the Constitution), a warrant directed to (a marshal or customs officer), directing him to * * * seize * * * any article or thing mentioned in (§ 305), and to make due and immediate return thereof, to the end that the same may be condemned and destroyed by proceedings, which shall be conducted in the same manner as other proceedings in the case of municipal seizure, and with the same right of appeal or writ of error.' And see supra, n. 6; supra, 370 U.S., pp. 505-506, 82 S.Ct., p. 1446.
^28 These date from 1957. See 39 CFR §§ 14.4, 203 (1962).
^29 See Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616; Riss & Co., v. United States, 341 U.S. 907, 71 S.Ct. 620, 95 L.Ed. 1345; Cates v. Haderlein, 342 U.S. 804, 72 S.Ct. 47, 96 L.Ed. 609; Walker v. Popenoe, 80 U.S.App.D.C. 129, 149 F.2d 511; Door v. Donaldson, 90 U.S.App.D.C. 188, 195 F.2d 764. And see, supra, n. 23.
^30 See, e.g., Hearings before House Subcommittee No. 8 of the Committee on the Post Office and Post Roads on H.R. 5370, 74th Cong., 1st Sess. (1935); and Hearings, supra, n. 25; S.Rep.No.2179, 81st Cong., 2d Sess. (1950); S.Rep.No.113, 84th Cong., 1st Sess. (1955); Attorney General's Committee on Administrative Procedure, Post Office Department (1940); 19 Op.Atty.Gen. 667 (1890) (upholding exclusion from the mails of allegedly obscene portions of Tolstoi's 'Kreutzer Sonata'); 4 Op.Asst.Atty.Gen., Post-Office Dept. 741 (1908) (holding that § 1461 is a civil as well as a criminal provision, and that the Post Office 'in passing upon the mailability of matter under this statute * * * is not confined to the strict construction of the terms of the enactment which must be followed by a court in determining whether in a criminal case its provisions have been violated'). And see the sharp-and constitutionally colored opposition to and rejection of a 1915 proposal that would have authorized the Postmaster General to close the mails to material sent by a person he had determined to be engaged in publishing obscene matter. Hearings before House Committee on the Post Office and Post Roads on Exclusion of Certain Publications from the Mails, 63d Cong., 3d Sess. (1915); United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 424, 41 S.Ct. 352, 358, 65 L.Ed. 704 (Brandeis, J., dissenting).
^31 H.R.Rep.No.2510, 82d Cong., 2d Sess. 5, 32.