In the Matter of the Complaint Against

PARKER PUBLISHING CO. at
West Nyack, New York 10994

P.O.D. Docket No. 3/80;

APPEARANCES:
George C. Davis, Esq.
H. Richard Hefner, Esq.
Thomas A. Ziebarth, Esq.
Law Department
United States Postal Service
Washington, D.C. 20260 for Complainant

Joseph F. Kelly, Jr., Esq.
John R. Schoemer, Jr., Esq.
John M. Callagy, Esq. Townley,
Updike, Carter & Rodgers
220 East 42nd Street
New York, New York 10017 for Respondent

POSTAL SERVICE DECISION

This proceeding is based on a complaint filed by the General Counsel charging the Respondent with conducting a scheme or device for obtaining money or property through the mail by means of false representations within the meaning of 39 U.S. Code 4005, now 3005.

In brief, the complaint charges Respondent with having made false representations in advertising matter concerning the therapeutic value of the principle and method of foot reflexology as set forth in a book published by Respondent entitled "Helping Yourself With Foot Reflexology." Respondent filed an answer in which it denied having made any false representations in its advertising matter and in which it pleaded as affirmative defenses that (a) the advertising challenged by the complaint accurately represents the contents of the publication in purports to advertise and (b) prohibiting the dissemination of such advertising would be an unlawful restraint on the rights and privileges of Respondent, and of the author of the publication, under the First Amendment of the Constitution. Following hearing and briefing on the issues, the Hearing Examiner issued an Initial Decision in which he upheld the essential allegations of the complaint and recommended the issuance of a false representation order. From this decision, Respondent has appealed.

Respondent has taken a number of exceptions to the findings and conclusions in the Initial Decision. Except as noted below, these exceptions are clearly without merit.

Certain of the Respondent's exceptions raise the question of whether the First Amendment guarantees ^1/ preclude issuance of a false representation order in the circumstances of this case. Complainant contends that it is not seeking to deny the Respondent and the author the right to sell the book, but only to deny it the right to receive remittances through the mails induced by false representations in advertisements of the book.

Complainant's argument may be summarized as follows:

1. The advertising does not merely describe the contents of the book, but independently represents that an article (the book) offered for sale will enable the purchaser to obtain cures or relief from a wide variety of ills.

2. The representations are false because foot reflexology will not achieve the results represented.

3. The advertising, therefore, is part of a scheme or device for obtaining money through the mails by means of false representations.

Respondent essentially contends that inasmuch as the advertising accurately portrays the contents of the book, Respondent cannot be charged with false representations because the First Amendment precludes the Postal Service from inquiring into the validity of the ideas expressed in the book.

It is my conclusion that although the present case comes within the literal language of 39 U.S.C. 3005, the Postal Service should not issue an order under that section on the present record. ^2/ In a prior proceeding (Parker Publishing Co., Inc., P.O.D. Docket No. 3/41) relating to advertising concerning a different book, an order under 39 U.S.C. 3005 was issued on the determination that, assuming the truth of what was said in the book, the advertising representations about the contents of the book were false. Here, however, to uphold the Initial Decision it would be necessary to find the contents of the book are false. While there may be justification for making such a determination in other circumstances, it would not be appropriate to do so here. Under the present state of the law, it is possible such an order would be regarded as abridging the freedom of the press with respect to the book in question. While, as the Initial Decision demonstrates, a contrary view could also be reasonably held, the undersigned believes the appropriate course of action for the Postal Service to follow is to dismiss the complaint.

Order

For the reasons set forth above, the complaint in this proceeding is dismissed.

12/14/71

Wenchel, Adam G.

___________________

1/ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (Underscoring supplied)

2/ Although the Hearing Examiner and the Judicial Officer are not authorized to "determine the constitutionality of statutes" (39 C.F.R. 222.11(c) and (d)(3); 36 F.R. 12409), neither can ignore constitutional principles involved in competing constructions or alternate applications of a statute.