MR. JUSTICE CLARKE delivered the opinion of the court.
After a hearing on September 22, 1917, by the Third Assistant Postmaster General, of the time and character of which the relator (plaintiff in error) had due notice and at which it was represented by its president, an order was entered, revoking the second-class mail privilege granted to it in 1911 as publisher of the Milwaukee Leader. So far as appears, all that the relator desired to say or offer was heard and received. This hearing was had and
The grounds upon which the relator relies, are, in substance, that, to the extent that the Espionage Act confers power upon the Postmaster General to make the order entered against it, that act is unconstitutional, because it does not afford relator a trial in a court of competent jurisdiction, that the order deprives relator of the right of free speech, is destructive of the rights of a free press, and deprives it of its property without due process of law.
That a hearing, such as was accorded the relator, on precisely such a question as is here involved, when fairly conducted, satisfies all of the requirements of due process of law, has been repeatedly decided. Smith v. Hitchcock, 226 U.S. 53, 60; Bates & Guild Co. v. Payne, 194 U.S. 106; Public Clearing House v. Coyne, 194 U.S. 497; Lewis Publishing Co. v. Morgan, 229 U.S. 288.
Since the petition in this case was filed, it has also become settled that the Espionage Act is a valid, constitutional
The first comprehensive law providing for the classification of mails was enacted on March 3, 1879 (c. 180, 20 Stat. 355). From that time to this, mail classification, frequently approved by this court, has dealt only with "mailable matter." In § 7 of that act, still in effect, "mailable matter" is divided into four classes, and, by § 10, the second class of such "mailable matter" is defined as including newspapers and periodicals. By § 1 of Title XII of the Act of June 15, 1917, supra, any newspaper violating any provision of the act is declared to be "non-mailable matter," which shall "not be conveyed in the mails or delivered from any post office or by any letter carrier."
The extremely low rate charged for second-class mail — to carry it, was said, in argument, to cost seven times the revenue which it yields — is justified as a part of "the historic policy of encouraging by low postal rates the dissemination of current intelligence." It is a frank extension of special favors to publishers because of the special contribution to the public welfare which Congress believes is derived from the newspaper and other periodical press. 229 U.S. 301, 304.
By now more than forty years of departmental practice, admission to the privilege of this second-class mail has been obtained for a publication only by a permit, issued by the Postmaster General after a hearing and upon a showing made, satisfactory to him, or his authorized assistants, that it contains and will continue to contain only mailable matter and that it will meet the various statutory and other requirements. Houghton v. Payne, 194 U.S. 88, 94.
That the power to suspend or revoke such second-class privilege was a necessary incident to the power to grant it has long been recognized by statute and by many decisions
For the purpose of preventing disloyalty and disunion among our people of many origins, and to the end that a united front should be presented to the enemy, the Espionage Act, one of the first of the National Defense laws enacted by Congress after the entry of the United States into the World War (approved June 15, 1917, 40 Stat. 217), provided severe punishment for any person who "when the United States is at war" shall wilfully make or convey false reports or false statements with intent to interfere with the operation and success of the military or naval forces of the country, or with the intent to promote the success of its enemies, or who shall cause, or attempt to cause, insubordination, disloyalty, mutiny or refusal of duty in such forces, or who shall wilfully obstruct the recruiting and enlistment service of the United States (§ 3). One entire title of this act (Title XII) is devoted to "Use of Mails," and in the exercise of its practically plenary power over the mails (Ex parte Jackson, 96 U.S. 727; Public Clearing House v. Coyne, 194 U.S. 497, 506, 507; Lewis Publishing Co. v. Morgan, 229 U.S. 288, 313), Congress therein provided that any newspaper published in violation of any of the provisions of the act should be "non-mailable" and should not be "conveyed in the mails or delivered from any post office or by any letter carrier."
The Postmaster General avers that, upon the hearing which we have described, he found that, beginning within a week after the declaration of war against the German Government and continuing to the date of the revocation of the second-class privilege herein, the relator had published in its newspaper frequently, often daily, articles which contained false reports and false statements, published with intent to interfere with the success of the military operations of our Government, to promote the success of its enemies, and to obstruct its recruiting and enlistment service. For this cause, exercising the power which we have seen had been invested in the Postmaster General by statute for almost forty years, and which had frequently been exercised by his predecessors, the respondent revoked the second-class privilege which had been granted to the relator. A similar executive authority with respect to matters within their jurisdiction has been given to the heads of all the great departments of our Government and is constantly exercised by them.
This is neither a dangerous nor an arbitrary power, as was argued at the bar, for it is not only subject to review by the courts [the claim of the relator was heard and rejected by two courts before this re-examination of it in this court] but it is also subject to control by Congress and by the President of the United States. Under the Constitution, which we shall find it vehemently denouncing, the rights of the relator were, and are, amply protected by the opportunity thus given it to resort for relief to all three departments of the Government, if those rights
All this being settled law, there remains the question whether substantial evidence to support his order may be found in the facts stated in the Postmaster General's answer, which are admitted by the demurrer, for the law is, that the conclusion of the head of an executive department of the Government on such a question, when within his jurisdiction, will not be disturbed by the courts unless they are clearly of the opinion that it is wrong. Smith v. Hitchcock, 226 U.S. 53, 60; Houston v. St. Louis Independent Packing Co., 249 U.S. 479, 484, and cases cited.
In the answer of the Postmaster General there were quoted more than fifty excerpts from editorial articles which appeared in relator's newspaper at intervals between April 14 and September 13, 1917, — the first five months after our country entered the great war — upon consideration of which, with others not reproduced, he averred, his order was based.
Without going much into detail: It was declared in the quoted articles, that the war was unjustifiable and dishonorable on our part, a capitalistic war, which had been forced upon the people by a class, to serve its selfish ends. Our Government was denounced as a "plutocratic republic," a financial and political autocracy, and resident Russians were praised for defaming it. Other articles denounced the draft law as unconstitutional, arbitrary and oppressive, with the implied counsel that it should not be respected or obeyed, and it was represented that soldiers in France were becoming insane in such numbers that long trains of closed cars were being used to convey them away from the battle front. It was confidently asserted that the Constitution of the United States was purposely made difficult of amendment in order that we might not have real democracy in this country, the President was denounced
These publications were not designed to secure amendment or repeal of the laws denounced in them as arbitrary and oppressive, but to create hostility to, and to encourage violation of, them. Freedom of the press may protect criticism and agitation for modification or repeal of laws, but it does not extend to protection of him who counsels and encourages the violation of the law as it exists. The Constitution was adopted to preserve our Government, not to serve as a protecting screen for those who while claiming its privileges seek to destroy it.
Without further discussion of the articles, we cannot doubt that they conveyed to readers of them, false reports and false statements with intent to promote the success of the enemies of the United States, and that they constituted a willful attempt to cause disloyalty and refusal of duty in the military and naval forces and to obstruct the recruiting and enlistment service of the United States, in violation of the Espionage Law (Schenck v. United States, Frohwerk v. United States, and Debs v. United States, supra), and that therefore their publication brought the paper containing them within the express terms of Title XII of that law, declaring that such a publication shall be
While written more adroitly than the usual pro-German propaganda of that time, they nevertheless prove clearly that the publisher of these articles was deliberately and persistently doing all in its power to deter its readers from supporting the war in which our Government was engaged and to induce them to lend aid and comfort to its enemies. The order of the Postmaster General not only finds reasonable support in this record but is amply justified by it.
We shall notice further only the contention that if it should be found that the Postmaster General had authority to revoke the second-class privilege as to a single issue of the paper, nevertheless he did not have power to make such an order applicable to the indefinite future.
The second-class privilege ever since 1879 has been granted to a newspaper, as we have seen, only on application of its publisher for entry of it to that class. Upon such an application, a searching investigation of the character of the publication is made by the Postmaster General, under rules and regulations prescribed by him, which experience has proved necessary to prevent frauds upon the Government (United States Postal Laws and Regulations, 1913, §§ 411 to 435, inclusive; 229 U.S. 306), and two representative copies of the issue nearest to the date of the application are required to be filed. If the publication is found to be entitled to the second-class privilege, a permit to that effect is issued, which contains, as did the permit to the relator, the provision that "the authority herein given is revocable upon determination by the Department that the publication does not conform to the law." Such a permit, however, would be equally revocable without any such specific reservation. (31 Stat. 1107; Smith v. Hitchcock, 226 U.S. 53, 60).
This case arose during the World War; but it presents no legal question peculiar to war. It is important, because what we decide may determine in large measure whether in times of peace our press shall be free.
The denial to a newspaper of entry as second-class mail, or the revocation of an entry previously made, does not deny to the paper admission to the mail; nor does it deprive the publisher of any mail facility. It merely deprives him of the very low postal rates, called second class, and compels him to pay postage for the same service at the rate called third class, which was, until recently, from eight to fifteen times as high as the second-class rate.
Some years prior to 1917 The Milwaukee Leader, a daily newspaper published by the Milwaukee Social Democratic Publishing Company, made application to use the second-class mail, was declared entitled to do so, and thereafter used it continuously. It built up a large circulation, of which about 9,000 copies were distributed daily through the second-class mail. In September, 1917, its publisher was directed to show cause "why the authorization of admission . . . to the second class mail matter. . . should not be revoked upon the following ground:
"The publication is not `a newspaper or other periodical publication' within the meaning of the law governing mailable matter of the second class, it being in conflict with the provisions of the law embodied in section 481 1/2 Postal Laws and Regulations."
This determination and action were confirmed by the Postmaster General; and the postmaster at Milwaukee thereafter denied to the publication transmission at the rates provided by law for second-class mail. The order did not forbid to The Milwaukee Leader all use of the mails; nor did it limit in any way the use of the mail facilities; it merely revoked the so-called second-class mailing permit; and the effect of this was to impose a
The return filed herein by the Postmaster General alleges that this order "involved the exercise of judgment and discretion on his part" and is "not subject to be reviewed, set aside, or controlled by a court of law;" but he gives this justification for his action:
"By representations and complaints from sundry good and loyal citizens of the United States and from personal reading and consideration of the issues of the said relator's publication, from the date of the declaration of war down to the time of service of the citation upon it, and the hearing granted in pursuance thereof, it seemed to this respondent, in the exercise of his judgment and discretion and in obedience to the duty on him reposed as well by the general statutes as by the special provisions of said Espionage Law, that the provisions of the latter act were systematically and continually violated by the relator's publication"
It thus appears that the Postmaster General, in the exercise of a supposed discretion, refused to carry at second-class mail rates all future issues of The Milwaukee Leader, solely because he believed it had systematically violated the Espionage Act in the past. It further appears that this belief rested partly upon the contents of past issues of the paper filed with the return and partly upon "representations and complaints from sundry good and loyal citizens," whose statements are not incorporated in this record and which do not appear to have been called to the attention of the publisher of The Milwaukee Leader at the hearing or otherwise. It is this general refusal thereafter to accept the paper for transmission at the second-class mail rates which is challenged as being without warrant in law.
In discussing whether Congress conferred upon the Postmaster General the authority which he undertook to exercise
First. Power to exclude from the mails has never been conferred in terms upon the Postmaster General. Beginning with the Act of March 3, 1865, c. 89, § 16, 13 Stat. 507, relating to obscene matter and the Act of July 27, 1868, c. 246, § 13, 15 Stat. 196, concerning lotteries, Congress has from time to time forbidden the deposit in the mails of certain matter. In each instance, in addition to prescribing fine and imprisonment as a punishment for sending or attempting to send the prohibited matter through the mail, it declared that such matter should not be conveyed in the mail, nor delivered from any post office nor by any letter carrier.
Until recently, at least, this appears never to have been questioned and the Post Office Department has been authoritatively advised that the power of excluding matter from the mail was limited to such specific matter as upon examination was found to be unmailable and that the Postmaster General could not make an exclusion order operative upon future issues of a newspaper.
In 1890 Tolstoi's Kreutzer Sonata had been excluded from the mails as indecent. Certain newspapers began to publish the book in instalments and their position was referred to the Attorney General. He replied:
". . . I do not see that it necessarily follows that every instalment of the story thus published is obscene, because the story as a whole is declared to be so. It may be, indeed, that one or more chapters of this story are entirely unexceptionable in character. If so, the exclusion, as unmailable, of newspapers containing them might involve serious consequences to yourself." (19 Ops. Atty. Gen. 667, 668.)
Again, in 1908, President Roosevelt asked the Attorney General if the law permitted him to deny the mails to an anarchist newspaper published in the Italian language in which appeared articles advocating the murder of the police force of Paterson and the burning of the city. The Attorney General advised him that such an article constituted a seditious libel (it has since been made criminal by statute, Act of March 4, 1911, c. 241, § 2, 36 Stat. 1339), and that "the Postmaster General (would) be justified in excluding from the mails any issue of any periodical, otherwise entitled to the privileges of second-class mail
But the Attorney General was careful to point out that the law gave no authority to exclude issues of the paper which should contain no objectionable matter:
"It must be premised that the Postmaster General clearly has no power to close the mails to any class of persons, however reprehensible may be their practices or however detestable their reputation; if the question were whether the mails could be closed to all issues of a newspaper, otherwise entitled to admission, by reason of an article of this character in any particular issue, there could be no doubt that the question must be answered in the negative" p. 565.
If such power were possessed by the Postmaster General, he would, in view of the practical finality of his decisions, become the universal censor of publications. For a denial of the use of the mail would be for most of them tantamount to a denial of the right of circulation. Congress has not granted to the Postmaster General power to deny the right of sending matter by mail even to one who has been convicted by a jury and sentenced by a court for unlawful use of the mail and who has been found by the Postmaster General to have been habitually using the mail for frauds or lotteries and is likely to do so in the future. It has, in order to protect the public, directed postmasters to return to the sender mail addressed to one found by the Postmaster General to be engaged in a scheme to defraud or in a lottery enterprise.
The Postmaster General does not claim here the power to issue an order directly denying a newspaper all mail service for the future.
Second. The second-class mail rate is confined to newspapers and other periodicals, which possess the qualifications and comply with the conditions prescribed by Congress.
There is, also, presented in brief and argument, a much broader claim in support of the action of the Postmaster General. It is insisted that a citizen uses the mail at second-class rates not as of right — but by virtue of a privilege or permission, the granting of which rests in the discretion of the Postmaster General. Because the payment made for this governmental service is less than it costs, it is assumed that a properly qualified person has not the right to the service so long as it is offered; and may not complain if it is denied to him. The service is called the second-class privilege. The certificate evidencing such freedom is spoken of as a permit. But, in fact, the right to the lawful postal rates is a right independent of the discretion of the Postmaster General. The right and conditions of its existence are defined and rest wholly upon mandatory legislation of Congress. It is the duty of the Postmaster General to determine whether the conditions prescribed for any rate exist. This determination in the case of the second-class rate may involve more subjects of enquiry, some of them, perhaps, of greater difficulty, than in cases of other rates. But the function of the Postmaster General is the
Third. Such is the legislation of Congress. It clearly appears that there was no express grant of power to the Postmaster General to deny second-class mail rates to future issues of a newspaper because in his opinion it had systematically violated the Espionage Act in the past; and it seems equally clear that there is no basis for the contention
(a) The power to police the mails is an incident of the postal power. Congress may, of course, exclude from the mails matter which is dangerous or which carries on its face immoral expressions, threats or libels. It may go further and through its power of exclusion exercise, within limits, general police power over the material which it carries, even though its regulations are quite unrelated to the business of transporting mails. In re Rapier, 143 U.S. 110. Lewis Publishing Co. v. Morgan, 229 U.S. 288. As stated in Ex parte Jackson, 96 U.S. 727, 732: "The difficulty attending the subject arises, not from the want of power in Congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with rights reserved to the people, of far greater importance than the transportation of the mail." In other words, the postal power, like all its other powers, is subject to the limitations of the Bill of Rights. Burton v. United States, 202 U.S. 344, 371. Compare Adair v. United States, 208 U.S. 161. Congress may not through its postal police power put limitations upon the freedom of the press which if directly attempted would be unconstitutional.
How dangerous to liberty of the press would be the
"A possible abuse of power is no argument against its existence, but we may as well observe that a denial of the mails to a paper because of its ownership or the views held by its owners may well be illegal as having no relation to the thing carried in the mails unless the views are expressed in the paper; but if such views are expressed in the paper Congress can doubtless exclude them, just as Congress could now exclude all papers advocating lotteries, prohibition, anarchy, or a protective tariff if a majority of Congress thought such views against public policy." (Italics in the original.)
(b) The right which Congress has given to all properly circumstanced persons to distribute newspapers and periodicals through the mails is a substantial right. Hoover v. McChesney, 81 Fed. Rep. 472; Payne v. National Railway Publishing Co., 20 App. D.C. 581; 192 U.S. 602. It is of the same nature as, indeed, it is a part of, the right to carry on business which this court has been jealous to protect against what it has considered arbitrary deprivations. Adair v. United States, 208 U.S. 161; Coppage v. Kansas, 236 U.S. 1; Adams v. Tanner, 244 U.S. 590; Allgeyer v. Louisiana, 165 U.S. 578. A law by which certain publishers were unreasonably or arbitrarily denied the low rates would deprive them of liberty or property without due process of law; and it
The contention that, because the rates are non-compensatory, use of the second-class mail is not a right but a privilege which may be granted or withheld at the pleasure of Congress, rests upon an entire misconception, when applied to individual members of a class. The fact that it is largely gratuitous makes clearer its position as a right; for it is paid for by taxation.
(c) The order revoking the entry of The Milwaukee Leader to second-class mail was clearly a punitive, not a preventive measure; as all classes of mail except the second were, as the Postmaster General states, left open to it provided it had sufficient financial resources. Of
(d) The Sixth Amendment guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed and that he shall be confronted with the witnesses against him. It is only in the case of petty offences that the jury may be dispensed with. Schick v. United States, 195 U.S. 65, 68. What is in effect a very heavy fine has been imposed by the Postmaster General. It has been imposed because he finds that the publisher has committed the crime of violating the Espionage Act. And that finding is based in part upon "representations and complaints from sundry good and loyal citizens"
(e) The punishment inflicted is not only unusual in character; it is, so far as known, unprecedented in American legal history. Every fine imposed by a court is definite in amount.
The suggestion is made that if a new application for entry to second-class mail had been made the publishers might have been granted a certificate. It is no bar to proceedings to set aside an illegal sentence, that an application
In conclusion I say again — because it cannot be stressed too strongly — that the power here claimed is not a war power. There is no question of its necessity to protect the country from insidious domestic foes. To that end Congress conferred upon the Postmaster General the enormous power contained in the Espionage Act of entirely excluding from the mails any letter, picture or publication which contained matter violating the broad terms of that act. But it did not confer — and the Postmaster General concedes that it did not confer — the vague and absolute authority practically to deny circulation to any publication which in his opinion is likely to violate in the future any postal law. The grant of that power is construed into a postal rate statute passed forty years ago which has never before been suspected of containing such implications. I cannot believe that in establishing postal classifications in 1879 Congress intended to confer upon the Postmaster General authority to issue the order here complained of. If, under the Constitution, administrative officers may, as a mere incident of the peace time administration of their departments, be vested with the power to issue such orders as this, there is little of substance in our Bill of Rights and in every extension of governmental functions lurks a new danger to civil liberty.
MR. JUSTICE HOLMES, dissenting.
I have had the advantage of reading the judgment of my brother Brandeis in this case and I agree in substance with his view. At first it seemed to me that if a publisher should announce in terms that he proposed to print treason and should demand a second-class rate it must be that the Postmaster General would have authority
Of course the Postmaster may deny or revoke the second-class rate to a publication that does not comply with the conditions attached to it by statute, but as my brother Brandeis has pointed out, the conditions attached to the second-class rate by the statute cannot be made to justify the Postmaster's action except by a quibble. On the other hand the regulation of the right to use the mails by the Espionage Act has no peculiarities as a war measure but is similar to that in earlier cases, such as obscene documents. Papers that violate the act are declared non-mailable and the use of the mails for the transmission of them is made criminal. But the only power given to the Postmaster is to refrain from forwarding the papers when received and to return them to the senders. Act of June 15, 1917, c. 30, Title XII, 40 Stat. 217, 230. Act of May 16, 1918, c. 75, 40 Stat. 553, 554. He could not issue a general order that a certain newspaper should not be carried because he thought it likely or certain that it would contain treasonable or obscene talk. The United States may give up the Post Office 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. There is no pretence that it has done so. Therefore I do not consider the limits of its constitutional power.
To refuse the second-class rate to a newspaper is to make its circulation impossible and has all the effect of
By § 2 of the Act of May 16, 1918, c. 75, 40 Stat. 554 — enacted after this case had gone to judgment in the trial court — authority was conferred upon the Postmaster General to stop, in like manner, delivery of mail to a person whom he finds "upon evidence satisfactory to him" to be using the mails in violation of the Espionage Act.
"I will state generally with regard to the action of the Department that no newspaper or periodical has been denied the privilege of the mails as such. Particular issues of certain publications have been found to contain matter which would interfere with the operation or success of the military or naval forces . . . etc., etc. . . . and therefore nonmailable under the act in question." Cong. Rec. Aug. 22, 1917, pp. 6851-6857. See also a letter to Mr. Moon, Chairman of the House Committee on Post Offices and Post Roads, House Report No. 109, 65th Cong., 1st sess.
First. It must regularly be issued at stated intervals, as frequently as four times a year, and bear a date of issue, and be numbered consecutively.
Second. It must be issued from a known office of publication.
Third. It must be formed of printed paper sheets, without board, cloth, leather, or other substantial binding, such as distinguish printed books for preservation from periodical publications.
Fourth. It must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers; Provided, however, That nothing herein contained shall be so construed as to admit to the second class rate regular publications designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates."
Act of August 24, 1912, c. 389, § 1, 37 Stat. 550, applying to publications of benevolent, professional, etc., societies, educational institutions, state boards, trade unions, etc.
Act of August 24, 1912, c. 389, § 2, 37 Stat. 553, requiring a sworn statement of the names of editors, owners, stockholders, bondholders, etc., and that all paid matter be plainly marked "advertisement." Lewis Publishing Co. v. Morgan, 229 U.S. 288.
"For many (?) years this Department has held publications not to be `regularly issued' in contemplation of law when any issue contained non-mailable matter; and when the second-class privilege has been withdrawn under such circumstances, the formal notice of withdrawal has contained the statement that the second-class privilege has been revoked on both the grounds stated."
In his report for the year ending June 30, 1918, the Postmaster General says, p. 46:
"In the administration of the law governing second-class matter it was again found necessary to revoke the second-class mail privilege of some publications for the reason that their contents consisted more or less of matter which was non-mailable under the Espionage and other laws, and which, therefore, removed them from the class of publications entitled to that privilege."
The statement is repeated in the Postmaster General's report for the year ending June 30, 1919, p. 25.
That a Government furnishing public service must be judged by ordinary standards of public callings, see Chafee on Freedom of Speech, p. 109, citing H.J. Laski in 31 Harvard Law Review, 186, and Laski's Authority in the Modern State, p. 378.