The great question raised in the early days with reference to the postal clause concerned the meaning to be given to the word “establish”—did it confer upon Congress the power to construct post offices and post roads, or only the power to designate from existing places and routes those that should serve as post offices and post roads? As late as 1855, Justice McLean stated that this power “has generally been considered as exhausted in the designation of roads on which the mails are to be transported,” and concluded that neither under the commerce power nor the power to establish post roads could Congress construct a bridge over a navigable water.1485 A decade earlier, however, the Court, without passing upon the validity of the original construction of the Cumberland Road, held that being “charged . . . with the transportation of the mails,” Congress could enter a valid compact with the State of Pennsylvania regarding the use and upkeep of the portion of the road lying in the state.1486 The debate on the question was terminated in 1876 by the decision in Kohl v. United States,1487 sustaining a proceeding by the United States to appropriate a parcel of land in Cincinnati as a site for a post office and courthouse.
Power To Protect the Mails
The postal powers of Congress embrace all measures necessary to insure the safe and speedy transit and prompt delivery of the mails.1488 And not only are the mails under the protection of the National Government, they are in contemplation of law its property. This principle was recognized by the Supreme Court in 1845 in holding that wagons carrying United States mail were not subject to a state toll tax imposed for use of the Cumberland Road pursuant to a compact with the United States.1489 Half a century later it was availed of as one of the grounds on which the national executive was conceded the right to enter the national courts and demand an injunction against the authors of any widespread disorder interfering with interstate commerce and the transmission of the mails.1490
Prompted by the efforts of Northern anti-slavery elements to disseminate their propaganda in the Southern states through the mails, President Jackson, in his annual message to Congress in 1835, suggested “the propriety of passing such a law as will prohibit, under severe penalties, the circulation in the Southern States, through the mail, of incendiary publications intended to instigate the slaves to insurrection.” In the Senate, John C. Calhoun resisted this recommendation, taking the position that it belonged to the States and not to Congress to determine what is and what is not calculated to disturb their security. He expressed the fear that if Congress might determine what papers were incendiary, and as such prohibit their circulation through the mail, it might also determine what were not incendiary and enforce their circulation.1491 On this point his reasoning would appear to be vindicated by such decisions as those denying the right of the states to prevent the importation of alcoholic beverages from other states.1492
Power To Prevent Harmful Use of the Postal Facilities
In 1872, Congress passed the first of a series of acts to exclude from the mails publications designed to defraud the public or corrupt its morals. In the pioneer case of Ex parte Jackson,1493 the Court sustained the exclusion of circulars relating to lotteries on the general ground that “the right to designate what shall be carried necessarily involves the right to determine what shall be excluded.”1494 The leading fraud order case, decided in 1904, held to the same effect.1495 Pointing out that it is “an indispensable adjunct to a civil government,” to supply postal facilities, the Court restated its premise that the “legislative body in thus establishing a postal service may annex such conditions . . . as it chooses.”1496
Later cases first qualified these sweeping assertions and then overturned them, holding government operation of the mails to be subject to constitutional limitations. In upholding requirements that publishers of newspapers and periodicals seeking second-class mailing privileges file complete information regarding ownership, indebtedness, and circulation and that all paid advertisements in the publications be marked as such, the Court emphasized that these provisions were reasonably designed to safeguard the second-class privilege from exploitation by mere advertising publications.1497 Chief Justice White warned that the Court by no means intended to imply that it endorsed the Government’s “broad contentions concerning . . . the classification of the mails, or by the way of condition . . . .”1498 Again, when the Court sustained an order of the Postmaster General excluding from the second-class privilege a newspaper he had found to have published material in contravention of the Espionage Act of 1917, the claim of absolute power in Congress to withhold the privilege was sedulously avoided.1499
A unanimous Court transformed these reservations into a holding in Lamont v. Postmaster General,1500 in which it struck down a statute authorizing the Post Office to detain mail it determined to be “communist political propaganda” and to forward it to the addressee only if he notified the Post Office he wanted to see it. Noting that Congress was not bound to operate a postal service, the Court observed that while it did, it was bound to observe constitutional guarantees.1501 The statute violated the First Amendment because it inhibited the right of persons to receive any information that they wished to receive.1502
On the other hand, a statute authorizing persons to place their names on a list in order to reject receipt of obscene or sexually suggestive materials is constitutional, because no sender has a right to foist his material on any unwilling receiver.1503 But, as in other areas, postal censorship systems must contain procedural guarantees sufficient to ensure prompt resolution of disputes about the character of allegedly objectionable material consistently with the First Amendment.1504
Exclusive Power as an Adjunct to Other Powers
The cases just reviewed involved attempts to close the mails to communication that were deemed to be harmful. A much broader power of exclusion was asserted in the Public Utility Holding Company Act of 1935.1505 To induce compliance with the regulatory requirements of that act, Congress denied the privilege of using the mails for any purpose to holding companies that failed to obey that law, irrespective of the character of the material to be carried. Viewing the matter realistically, the Supreme Court treated this provision as a penalty. Although it held this statute constitutional because the regulations whose infractions were thus penalized were themselves valid,1506 it declared that “Congress may not exercise its control over the mails to enforce a requirement which lies outside its constitutional province. . . .”1507
State Regulations Affecting the Mails
In determining the extent to which state laws may impinge upon persons or corporations whose services are used by Congress in executing its postal powers, the task of the Supreme Court has been to determine whether particular measures are consistent with the general policies indicated by Congress. Broadly speaking, the Court has approved regulations having a trivial or remote relation to the operation of the postal service, while disallowing those constituting a serious impediment to it. Thus, a state statute, which granted to one company an exclusive right to operate a telegraph business in the state, was found to be incompatible with a federal law, which, in granting to any telegraph company the right to construct its lines upon post roads, was interpreted as a prohibition of state monopolies in a field Congress was entitled to regulate in the exercise of its combined power over commerce and post roads.1508
An Illinois statute that, as construed by the state courts, required an interstate mail train to make a detour of seven miles in order to stop at a designated station, also was held to be an unconstitutional interference with the power of Congress under this clause.1509 But a Minnesota statute requiring intrastate trains to stop at county seats was found to be unobjectionable.1510
Local laws classifying postal workers with railroad employees for the purpose of determining a railroad’s liability for personal injuries,1511 or subjecting a union of railway mail clerks to a general law forbidding any “labor organization” to deny any person membership because of his race, color or creed,1512 have been held not to conflict with national legislation or policy in this field. Despite the interference pro tanto with the performance of a federal function, a state may arrest a postal employee charged with murder while he is engaged in carrying out his official duties,1513 but it cannot punish a person for operating a mail truck over its highways without procuring a driver’s license from state authorities.1514
- United States v. Railroad Bridge Co., 27 Fed. Cas. 686 (No. 16,114) (C.C.N.D. Ill. 1855).
- Searight v. Stokes, 44 U.S. (3 How.) 151, 166 (1845).
- 91 U.S. 367 (1876).
- Ex parte Jackson, 96 U.S. 727, 732 (1878). See United States Postal Serv. v. Council of Greenburgh Civic Assn’s, 453 U.S. 114 (1981), in which the Court sustained the constitutionality of a law making it unlawful for persons to use, without payment of a fee (postage), a letterbox which has been designated an “authorized depository” of the mail by the Postal Service.
- Searight v. Stokes, 44 U.S. (3 How.) 151, 169 (1845).
- In re Debs, 158 U.S. 564, 599 (1895).
- Cong. Globe, 24th Cong., 1st Sess., 3, 10, 298 (1835).
- Bowman v. Chicago & Nw. Ry., 125 U.S. 465 (1888); Leisy v. Hardin, 135 U.S. 100 (1890).
- 96 U.S. 727 (1878).
- 96 U.S. at 732.
- Public Clearing House v. Coyne, 194 U.S. 497 (1904), followed in Donaldson v. Read Magazine, 333 U.S. 178 (1948).
- 194 U.S. at 506.
- Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913).
- 229 U.S. at 316.
- United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 (1921). See also Hannegan v. Esquire, 327 U.S. 146 (1946), denying the Post Office the right to exclude Esquire Magazine from the mails on grounds of the poor taste and vulgarity of its contents.
- 381 U.S. 301 (1965).
- 381 U.S. at 305, quoting Justice Holmes in United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437 (1921) (dissenting opinion): “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. . . .” See also Blount v. Rizzi, 400 U.S. 410, 416 (1971) (quoting same language). But for a different perspective on the meaning and application of Holmes’ language, see United States Postal Service v. Council of Greenburgh Civic Assn’s, 453 U.S. 114, 127 n.5 (1981), although there too the Court observed that the postal power may not be used in a manner that abridges freedom of speech or press. Id. at 126. Notice, too, that first-class mail is protected against opening and inspection, except in accordance with the Fourth Amendment. Ex parte Jackson, 96 U.S. 727, 733 (1878); United States v. van Leeuwen, 397 U.S. 249 (1970). But see United States v. Ramsey, 431 U.S. 606 (1977) (border search).
- Lamont v. Postmaster General, 381 U.S. 301, 306–07 (1965). See also id. at 308 (concurring opinion). This was the first federal statute ever voided for being in conflict with the First Amendment.
- Rowan v. Post Office Dep’t, 397 U.S. 728 (1970).
- Blount v. Rizzi, 400 U.S. 410 (1971).
- 49 Stat. 803, 812, 813, 15 U.S.C. §§ 79d, 79e.
- Electric Bond & Share Co. v. SEC, 303 U.S. 419 (1938).
- 303 U.S. at 442.
- Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S. 1 (1878).
- Illinois Cent. R.R. v. Illinois, 163 U.S. 142 (1896).
- Gladson v. Minnesota, 166 U.S. 427 (1897).
- Price v. Pennsylvania R.R., 113 U.S. 218 (1895); Martin v. Pittsburgh & Lake Erie R.R., 203 U.S. 284 (1906).
- Railway Mail Ass’n v. Corsi, 326 U.S. 88 (1945).
- United States v. Kirby, 74 U.S. (7 Wall.) 482 (1869).
- Johnson v. Maryland, 254 U.S. 51 (1920).