P.O.D. Docket No. 2/239
October 05, 1966
In the Matter of the Complaint That post cards mailed by
FRED CHERRY,
Post Office Box 1017,
Brooklyn, New York
are nonmailable under 18 U. S. Code 1718 and 39 U. S. Code 4001.
P.O.D. Docket No. 2/239
October 5, 1966
Gerard N. Byrne Hearing Examiner
POST OFFICE DEPARTMENT,
DIVISION OF HEARING EXAMINERS,
WASHINGTON, D.C. 20260,
APPEARANCES:
Saul J. Mindel, Esq.
Office of the General Counsel
Post Office Department
Washington, D.C. for the Complainant
Fred Cherry, pro se
Post Office Box 1017
Brooklyn, New York Respondent
INITIAL DECISION OF HEARING EXAMINER
This action was initiated by the General Counsel of the Post Office Department pursuant to the provisions of Title 39, Section 4001 1/ of the United States Code, alleging that the Respondent had deposited in the United States mails post cards containing defamatory matter obviously intended to reflect injuriously upon the character or conduct of another contrary to the provisions of Section 1718, Title 18, United States Code. 2/ Attached to the complaint as Exhibit "A" was a copy of the message side of one of such post cards, asserted to be typical of all of the aforesaid cards. The complaint alleged that such cards are nonmailable pursuant to the statutes aforesaid. Exhibit "A" is reproduced and attached hereto as "Appendix 1".
The Respondent filed an answer stating substantially as follows:
a. Respondent admits mailing post cards identical in wording with Exhibit "A" (except the facehand printing on the bottom thereof which "varies from card to card and is absent on most cards") and generally denies all other allegations of the complaint.
b. The statements appearing on said cards are true.
c. The withholding of such cards by the Post Office Department is unlawful and discriminatory since the Department permits and accepts for delivery newspapers and magazines containing defamation and scurrility on their front and rear pages clearly visible to Post Office employees.
d. The withholding of such post cards does and will violate the rights of Respondent in that such action denies freedom of expression.
A short hearing was conducted in this case.
In support of the complaint counsel for Complainant filed Exhibit "A" which is identical to Exhibit "A" attached to the complaint, (Appendix 1 hereto) and Exhibits B-1, B-2, B-3, B-4, B-5 and B-6, all of which were admitted in evidence with the consent of Respondent Cherry (Tr. 3, 4). Exhibits B-5 and B-6 are, respectively, a copy of a letter from Respondent Cherry to the Chief Postal Inspector, Post Office Department, stating that he had heard that the mailing of post cards similar to the enclosure (Exhibit B-6, an excerpt from Exhibit "A" and Appendix 1 hereto) constituted a violation of 18 U. S. Code 1718, and requesting advice as to the truth of this statement. Exhibit B-4 is a photocopy of a letter addressed to Respondent Cherry by Saul J. Mindel, Esq., Assistant General Counsel of the Post Office Department, stating that it was the opinion of that Department that the mailing of a postal card containing such a message would constitute a violation of Section 1718, Title 18, U. S. Code. Exhibits B-2 and B-3, are photocopies of a letter and enclosure from Respondent Cherry to Mr. Mindel in response to the latter's letter (Exhibit B-4, supra) further stating that the writer (Cherry) is engaged in an act of civil disobedience in sending out further information (Exhibit B-3, identical with Exhibit "A" and Appendix 1 hereto), protesting (inter alia) alleged interception of his post cards by the Post Office, and further, stating that, in the writer's opinion, the statute is unconstitutional. Exhibit B-1 is a photocopy of a letter from Mr. Mindel in response thereto, citing a case ( McCrossen v. U. S. , 339 F.2d 810, C.A. 10, 1965) holding that the statute (18 U. S. C. 1718) is constitutional.
The Respondent Cherry admitted that he knew that violation of Section 1718, Title 18, U. S. Code was a criminal offense, and that the truth of accusations made in violation of that statute is immaterial (Tr. 7). He stated that he was attacking the constitutionality of the statute (Tr. 6), that he is engaged in mailing matter of political significance in opposition to activity of the organized Homosexual Movement of America and hence protected under the First Amendment (to the U. S. Constitution) (Tr. 8), that the Postal Regulation set out in Title 39, CFR Chapter 1, part 4, section 14.9 is discriminatory on its face in that post cards of doubtful matter are to be withheld from dispatch, whereas newspapers are to be reported but not withheld (Tr. 8) and finally that the exterior surface of mailed matter is a lawful place for the publication of scurrilous and defamatory matter when it happens to be a newspaper, citing U. S. v. Higgins , 194 Fed. Rep. 541 (Tr. 9).
The Respondent then submitted a lengthy brief with some 18 exhibits purporting to prove the truth of his statements which was received in evidence over the objection of counsel for Complainant. Subsequently, both sides submitted proposed findings of fact and conclusions of law with briefs in support thereof.
At this point the undersigned Hearing Examiner desires to state that the Respondent, although not a lawyer has obtained a number of legal citations with which he has constructed a very ingenious argument. It is a temptation to discuss in detail these cases and the points made by Respondent, but it has always been the opinion of this Examiner that such discussions and conclusions therefrom, unless directly connected with the lawful issues of the case, result in much obiter which can only confuse and obscure any subsequent cases of similar issues. Suffice it to say, therefore, that this Respondent, obviously a crusader against homosexuality, has presented a very informative and interesting discussion. Unfortunately for Respondent, however, the issues are presented by the complaint, the answer, the exhibits, the statutes, the pertinent regulations, and court decisions, which rule out the voluminous exhibits submitted to establish the truth of Respondent's assertions.
The defenses raised by Respondent, paragraphs a., b., c. and d. above, and set out in similar words in Respondent's answer will be considered in inverse order, beginning with paragraph "d," supra. That paragraph states in effect that the withholding of Respondent's postal or post cards is unconstitutional under the First Amendment. Respondent in his statements at the hearing also included the Fifth Amendment. Whether the regulation authorizing such withholding (39 CFR 14.9, Postal Manual Section 124.9) is unconstitutional is not a matter for determination by this Hearing Examiner or the Post Office Department. Such a determination is one that can be made only by a court of competent jurisdiction.
Engineers Public Service Co. v. S.E.C. , 138 F.2d 936, (C.A.D.C. 1943).
And, as a matter of fact, the constitutionality of the mailability statute, 18 U.S.C. 1718, has been sustained as a matter within the regulatory power of Congress rather than in the light of any First Amendment limitation.
McCrossen v. U. S. , 339 F.2d 810, (C.A. 10, 1965). The same may properly be said of the Fifth Amendment to the Constitution.
And the Postal Regulation 3/ is not discriminatory as favoring newspapers; it merely reserves to the Department rather than to the local Postmaster the determination of mailability of newspapers. When it is considered that post cards are, in effect, "one-shot" statements, which, if permitted to be delivered, would accomplish their purpose, the reason for immediate detention becomes apparent. A newspaper, on the other hand, is a continuing periodical with responsibilities to the Post Office Department and to its subscribers and advertisers, so that a reasonable and justifiable difference exists between the issues of a newspaper and a deposit of post cards. Nevertheless, it will be noted that newspapers will be withheld from the mails by the Postmaster upon receipt of instructions to do so.
The case of U. S. v. Higgins , 194 Fed. Rep. 539 (D.C.W.D. Ky. 1920) cited by Respondent is not germane to the issue here for the reason that the court held that the statute applied only to envelope wrappers and outside covers of mailed newspapers and not to the papers themselves. Postal cards and post cards were not involved. This case was subsequently criticized by another court.
The quotation from Speiser v. Randall , 357 U. S. 513, 518 is similarly not germane since the constitutionality of a State law was involved there, and the statute was invalidated on the ground that it placed the burden of proof on the applicant for tax relief to show that he was not of a particular class. The court held that the burden of proof should be on the State. There is no showing here that the language used in the instant case could not be prohibited directly by law. Further, the Respondent herein cannot complain of any discrimination for the reason that his post cards or postal cards were ordered withheld from the mails only after he voluntarily submitted a sample to the Post Office Department for comment. Thus, his cards received exactly the same treatment as is provided for newspapers by the regulation. (Exhibits B-1, B-2, B-3, B-4, B-5 and B-6).
In his paragraph numbered 2 in his answer (para. b. supra) Respondent defended on the ground that the statements on the post cards are true. It is sufficient to say that, so far as this statute is concerned, the truth is immaterial and constitutes no defense. Warren v. U. S. , 183 Fed. Rep. 718, (C.A. 8, 1910).
For the reasons aforesaid the following findings of fact are made:
1. That Respondent, Fred Cherry, did place in the United States mails postal cards or post cards in form and substance as that annexed to the complaint herein as Exhibit "A", Appendix No. 1 hereto.
2. That said cards alleged that the person named thereon, one Reverend Robert W. Wood, Pastor of the Zion United Church of Christ, Newark, New Jersey:
a. Is "one of the foremost leaders of the organized homosexual movement of America";
b. Has written a book insinuating that Jesus Christ was a homosexual;
c. As a member of the "organized homosexual movement of America," has as his ultimate aim "to bring about a PERVERT WORLD";
d. As a member of the said alleged "movement", he is engaged in a program "to bring about a PERVERT WORLD" which consists of the following four steps:
"(1) Legalize and encourage homosexuality between consenting adults;
"(2) Outlaw prostitution so that large numbers of young men will be compelled to resort to homosexuality. ***
"(3) Legalize and encourage 'Greek Love'. ***
"(4) Outlaw all normal sexual expressions between men and women. Children are to be conceived solely by artificial insemination ***."
3. That Rev. Robert W. Wood is, or was at the time of mailing, a real person (Tr. 5).
And it is concluded as a matter of law:
a. That the terms of the aforesaid cards are obviously intended to reflect injuriously upon the character or conduct of another.
b. That the said cards are nonmailable under the provisions of 18 U. S. Code 1718, and 39 U. S. Code 4001.
Findings of fact and conclusions of law submitted by the parties are adopted to the extent herein set forth. Otherwise they are rejected as irrelevant, not supported by credible evidence or not necessary to a proper disposition of the issues.
It is recommended that the Judicial Officer issue an order in accordance with 39 CFR 203.17, Rules of Practice in Proceedings Relative to Mailability, for the disposition of the postal cards or post cards herein found to be nonmailable.
/s/
(a) Matter, the deposit of which in the mails is punishable under sections 1302, 1341, 1342, 1461, 1463, 1714, 1715, 1716, 1717, or 1718 of title 18, is nonmailable.
(b) Except as provided in section 4002 of this title, nonmailable matter which reaches the office of delivery, or which may be seized or detained for violation of law, shall be disposed of as the Postmaster General directs.
2/ § 1718. Libelous matter on wrappers or envelopes
All matter otherwise mailable by law, upon the envelope or outside cover or wrapper of which, or any postal card upon which is written or printed or otherwise impressed or apparent any delineation, epithet, term, or language of libelous, scurrilous, defamatory, or threatening character, or calculated by the terms or manner or style of display and obviously intended to reflect injuriously upon the character or conduct of another, is nonmailable matter, and shall not be conveyed in the mails nor delivered from any post office nor by any letter carrier, and shall be withdrawn from the mails under such regulations as the Postmaster General shall prescribe.
Whoever knowingly deposits for mailing or delivery, anything declared by this section to be nonmailable matter, or knowingly takes the same from the mails for the purpose of circulating or disposing of or aiding in the circulation or disposition of the same, shall be fined not more than $1,000 or imprisoned not more than one year, or both. June 25, 1948, c. 645, 62 Stat. 782.
3/ 124.92 Postmasters and other employees at post offices shall not give opinions to the public concerning the mailability of matter under 124.4, 124.5, 124.6, 124.7, 124.8, 125.5, and 125.6. When in doubt as to the mailability of any such matter, the postmaster shall withhold it from dispatch or delivery and shall send a sample or a complete statement of the facts to the Mailability Division, Office of the General Counsel, for instructions. Newspapers containing doubtful matter should be promptly reported to the Mailability Division, Office of the General Counsel, but they should not be withhold from dispatch without specific instructions.