United States Ex Rel. Milwaukee Social Democratic Publishing Co. v. Burleson

255 U.S. 407, 41 S. Ct. 352, 65 L. Ed. 704, 1921 U.S. LEXIS 1772

• Court: Supreme Court of the United States
• Decided: March 21, 1921
• Docket: 155
• Status: Published

Opinions

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 apDears, all that the relator desired to say or offer was heard and received. This hearing was had and the order wa.s entered upon the charge that articles were appearing in relator’s paper so violating the provisions of the National Defense Law, approved June 15, 1917, which has come to be popularly known as the Espionage Act of Congress (c. 30, 40 Stat. 217), as to render it “non-mailable ” by the express terms of Title XII of that act. On appeal to the Postmaster General the order was approved. Thereupon the relator filed a petition in the Supreme Court of the District of Columbia, praying that a writ of mandamus issue, commanding the Postmaster General to annul his order and restore the paper to the second-class privilege. To a rule to show cause the Postmaster. General answered, and a demurrer to his answer being overruled and the relator not pleading further, the court discharged the rule and dismissed thé petition. The Court of Appeals of the District of' Columbia affirmed the judgment of the trial court, and the constitutional validity of laws of the United States being involved the. case was brought here by writ of error.

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. Coy e, 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 law. Schenck v. United States, 249 U. S. 47; Frohwerk v. United States, 249 U. S. 204; Debs v. United States, 249 U. S. 211; Abrams v. United States, 250 U. S. 616, 619.

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 iipon 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 of this court. (31 Stat. 1107; Smith v. Hitchcock, 226 U. S. 53, 57; Houghton v. Payne, 194 U. S. 88; Bates & Guild Co. v. Payne, 194 U. S. 106.) Under these statutes and decisions, if the newspaper of the relator had comb to. be so edited that it contained other than “mailable matter,” plainly it was the intention of Congress that it should no longer be carried as second-class mail and therefore the order to revoke the permit which had been granted to relator was proper and justified, — and that it had become so changed in character is the holding of the Postmaster General and of the two lower courts which we are reviewing.

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 Espión-; age 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 oyer 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.”

It was under the provisions of this war-time act, and under the specific injunction of § 396 of the Revised Statutes of the United States, declaring it to be the duty of the Postmaster General to “superintend generally the business of the [Post Office] department, and execute all laws relative to the postal service,” that the order in this case was entered.

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 grepb 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 should be invaded by any ruling of the Postmaster General.

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 cápitalistie 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 as an autocrat, and the war legislation as haying been passed by a “rubber stamp Congress.” In the guise of argument these articles sought tp convince the readers of them that soldiers could not legally be §ent outside the country and that our Government was waging a war of conquest when Germany was ready to make an honorable peace. The Food Control Law was denounced as ‘ Kaiserizing America.” It was declared that we were fighting for commercial supremacy and world domination only and that when the “financial kings” concluded that further fighting might endanger their loans to the Allies, they would move for peace, which would quickly come. Our “Allies” were repeatedly condemned and our enemies frequently praised.

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. Fréedom 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 #nd 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 clainiing 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 violar tion 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 “non-mailable” 'and “shall not be conveyed in the mails or delivered from any post office or by any letter carrier.”

: 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).

It is a reasonable presumption that the character of the publication as one entitled to the second-class privilege, when thus established, will continue to be substantially maintained, and therefore such a permit is made applicable to the indefinite future. For the same reason, and because it would nQt be practicable to examine each issue of a newspaper, the revocation of a permit must continue until' further order. Government is a practical institution, adapted to the practical conduct of public affairs. It would not be possible for the United States to maintain a reader in every newspaper office of the country to approve in advance each issue before it should be allowed to enter the mails, and when, for more than five months, a paper had contained, almost daily, articles which, under the express terms of the statute, rendered it “non-mailable,” it was reasonable to conclude that it would continue its disloyal publications and it was therefore clearly within the power given to the Postmaster General by Rev. Stats., § 396, to “execute all laws relative to the postal service,” to enter, as was done in this case, an order suspending the privilege until a proper application and showing should be made for its renewal. The order simply withdrew from the relator the second-class privilege, but did not exclude its paper from other classes, as it might have done, and there was nothing in it to prevent reinstatement at any time. It was open to the relator to mend its ways, to publish a paper conforming to the law, and then to apply anew for the second-class mailing privilege. This it did not do, but, for reasons not difficult to imagine, it preferred this futile litigation, undertaken upon the theory that a Government competent to wage war against its foreign enemies was powerless against its insidious foes at-home. Whatéver injury the relator suffered was the result of its own choice and the judgment of the Court of Appeals is

Affirmed.