Usps v. Council of Greenburgh Civic Assns., 453 U.S. 114 (1981)

JUSTICE MARSHALL, dissenting.

When the Framers of the Constitution granted Congress the authority "[t]o establish Post Offices and Post Roads," Art. I, § 8, cl. 7, they placed the powers of the Federal Government behind a national communication service. Protecting the economic viability and efficiency of that service remains a legitimate and important congressional objective. This case involves a statute defended on that ground, but I believe it is unnecessary for achieving that purpose and inconsistent with the underlying commitment to communication.

The challenged statute, 18 U.S.C. § 1725, prohibits anyone from knowingly placing unstamped "mailable matter" in any box approved by the United States Postal Service for receiving or depositing material carried by the Postal Service. Violators may be punished with fines of up to $300 for each offense. In this case, appellee civic associations claimed, and the District Court agreed, that this criminal statute unreasonably restricts their First Amendment right of free expression.

The Court today upholds the statute on the theory that its focus -- the letterbox situated on residential property -- is not a public forum to which the First Amendment guarantees access. I take exception to the result, the analysis, and the premise that private persons lose their prerogatives over the letterboxes they own and supply for mail service.

First, I disagree with the Court’s assumption that, if no public forum is involved, the only First Amendment challenges to be considered are whether the regulation is content-based, see ante at 132-133, and reasonable, ante at 131, n. 7. Even if the Postal Service were not a public forum, which, as I later suggest, I do not accept, the statute advanced in its aid is a law challenged as an abridgment of free expression. Appellees seek to carry their own circulars and to deposit them in letterboxes owned by private persons who use them to receive mail, and challenge the criminal statute forbidding this use of private letterboxes. The question, then, is whether this statute burdens any First Amendment rights enjoyed by appellees. If so, it must be determined whether this burden is justified by a significant governmental interest substantially advanced by the statute. See Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530, 540 (1980); Grayned v. City of Rockford, 408 U.S. 104, 115 (1972); Cameron v. Johnson, 390 U.S. 611, 616-617 (1968); Thornhill v. Alabama, 310 U.S. 88, 96, 104-105 (1940).

That appellee civic associations enjoy the First Amendment right of free expression cannot be doubted; both their purposes and their practices fall within the core of the First Amendment’s protections. We have long recognized the constitutional rights of groups which seek, as appellees do, to "communicate ideas, positions on local issues, and civic information to their constituents"{1} through written handouts, and thereby to promote the free discussion of governmental affairs so central to our democracy. See e.g., Martin v. City of Struthers, 319 U.S. 141, 146-147 (1943); Schneider v. State, 308 U.S. 147 (1939); Lovell v. Griffin, 303 U.S. 444 (1938). By traveling door to door to hand-deliver their messages to the homes of community members, appellees employ the method of written expression most accessible to those who are not powerful, established, or well financed. "Door to door distribution of circulars is essential to the poorly financed causes of little people." Martin v. City of Struthers, supra, at 146. See Schneider v. State, supra, at 164. Moreover, "[f]reedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way." Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943). And such freedoms depend on liberty to circulate; "`indeed, without circulation, the publication would be of little value.’" Talley v. California, 362 U.S. 60, 64 (1960), quoting Lovell v. Griffin, supra, at 452.

Countervailing public interests, such as protection against fraud and preservation of privacy, may warrant some limitation on door-to-door solicitation and canvassing. But we have consistently held that any such restrictions, to be valid, must be narrowly drawn "`in such a manner as not to intrude upon the rights of free speech.’" Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 616 (1976), quoting Thomas v. Collins, 323 U.S. 516, 540-541 (1945). Consequently, I cannot agree with the Court’s conclusion, ante at 132-133, that we need not ask whether the ban against placing such messages in letterboxes is a restriction on appellees’ free expression rights. Once appellees are at the doorstep, only § 1725 restricts them from placing their circulars in the box provided by the resident. The District Court determined after an evidentiary hearing that only by placing their circulars in the letterboxes may appellees be certain that their messages will be secure from wind, rain, or snow, and at the same time will alert the attention of the residents without notifying would-be burglars that no one has returned home to remove items from doorways or stoops. 490 F.Supp. 157, 160-163 (1980). The court concluded that the costs and delays of mail service put the mails out of appellees’ reach, and that other alternatives, such as placing their circulars in doorways, are "much less satisfactory." Id. at 160.{2} We have in the past similarly recognized the burden placed on First Amendment rights when the alternative channels of communication involve more cost, less autonomy, and reduced likelihood of reaching the intended audience. Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93 (1977).

I see no ground to disturb these factual determinations of the trier of fact. And, given these facts, the Postal Service bears a heavy burden to show that its interests are legitimate and substantially served by the restriction of appellees’ freedom of expression. See, e.g., Hynes v. Mayor and Council of the Borough of Oradell, supra, at 617-618; Konigsberg v. State Bar of California, 366 U.S. 36, 49-51 (1961); Marsh v. Alabama, 326 U.S. 501, 509 (1946). Although the majority does not rule that the trial court’s findings were clearly erroneous, as would be required to set them aside, the Court finds persuasive the interests asserted by the Postal Service in defense of the statute. Those interests -- "protect[ing] mail revenues while at the same time facilitating the secure and efficient delivery of the mails," ante at 129 -- are indeed both legitimate and important. But mere assertion of an important, legitimate interest does not satisfy the requirement that the challenged restriction specifically and precisely serve that end. See Hynes v. Mayor and Council of the Borough ofOradell, supra.See also Cox v. Louisiana, 379 U.S. 536, 557-558 (1965) (restriction must be applied uniformly and nondiscriminatorily) .

Here, the District Court concluded that the Postal Service

has not shown that failure to enforce the statute as to [appellees] would result in a substantial loss of revenue, or a significant reduction in the government’s ability to protect the mails by investigating and prosecuting mail theft, mail fraud, or unauthorized private mail delivery service.

490 F.Supp. at 163.{3} In light of this failure of proof, I cannot join the Court’s conclusion that the Federal Government may thus curtail appellees’ ability to inform community residents about local civic matters. That decision, I fear, threatens a departure from this Court’s belief that free expression, as "the matrix, the indispensable condition, of nearly every other form of freedom," Palko v. Connecticut, 302 U.S. 319, 327 (1937), must not yield unnecessarily before such governmental interests as economy or efficiency. Certainly, free expression should not have to yield here, where the intruding statute has seldom been enforced.{4} As the exceptions created by the Postal Service itself demonstrate,{5} the statute’s asserted purposes easily could be advanced by less intrusive alternatives, such as a nondiscriminatory permit requirement for depositing unstamped circulars in letterboxes.{6} Therefore, I would find 18 U.S.C. § 1725 constitutionally defective.

Even apart from the result in this case, I must differ with the Court’s use of the public forum concept to avoid application of the First Amendment. Rather than a threshold barrier that must be surmounted before reaching the terrain of the First Amendment, the concept of a public forum has more properly been used to open varied governmental locations to equal public access for free expression, subject to the constraints on time, place, or manner necessary to preserve the governmental function. E.g., Grayned v. City of Rockford, 408 U.S. at 115-117 (area around public school); Chicago Area Military Project v. Chicago, 508 F.2d 921 (CA7) (city airport), cert. denied, 421 U.S. 992 (1975); Albany Welfare Rights Organization v. Wyman, 493 F.2d 1319 (CA2) (welfare office waiting room), cert. denied sub nom. Lavine v. Albany Welfare Rights Organization, 419 U.S. 838 (1974);Wolin v. Port of New York Authority, 392 F.2d 83 (CA2) (port authority), cert. denied 393 U.S. 940 (1968); Reilly v. Noel, 384 F.Supp. 741 (RI 1974) (rotunda of courthouse). See generally Lehman v. City of Shaker Heights, 418 U.S. 298, 303 (1974); Stone, Fora Americana: Speech in Public Places, S.Ct.Rev. 233, 251-252 (1974). These decisions apply the public forum concept to secure the First Amendment’s commitment to expression unfettered by governmental designation of its proper scope, audience, or occasion.

I believe these precedents support my conclusion that appellees should prevail in their First Amendment claim. The traditional function of the mails led this Court to embrace Justice Holmes’ statement that

"[t]he United States may give up the Post Office when it sees fit, but while it carries it on, the use of the mails is as much a part of free speech as the right to use our tongues. . . ."

Lamont v. Postmaster General, 381 U.S. 301, 305 (1965), quoting United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437 (1921) (Holmes, J., dissenting). Given its pervasive and traditional use as purveyor of written communication, the Postal Service, I believe, may properly be viewed as a public forum. The Court relies on easily distinguishable cases in reaching the contrary conclusion. For the Postal Service’s very purpose is to facilitate communication, which surely differentiates it from the military bases, jails, and mass transportation discussed in cases relied on by the Court, ante at 129-130.{7} Cf. Tinker v. Des Moines Independent SchoolDist., 393 U.S. 503, 512 (1969). Drawing from the exceptional cases, where speech has been limited for special reasons, does not strike me as commendable analysis.

The inquiry in our public forum cases has instead asked whether "the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Grayned v. City of Rockford, 408 U.S. at 116. Compare Grayned v. City of Rockford (restriction on speech permissible near school while in session) with Tinker v. Des Moines Independent School Dist., supra, (symbolic speech protected even during school hours); Cameron v. Johnson, 390 U.S. 611 (1968) (restriction on picketing permitted where limited to entrance of courthouse), with Brown v. Louisiana, 383 U.S. 131 (1966) (silent protest in library protected); Adderley v. Florida, 385 U.S. 39 (1966) (protest near jailyard inconsistent with jail purposes), with Edwards v. South Carolina, 372 U.S. 229 (1963) (protest permitted on state capitol grounds). Assuming for the moment that the letterboxes, as "authorized depositories," are under governmental control, and thus part of the governmental enterprise, their purpose is hardly incompatible with appellees’ use. For the letterboxes are intended to receive written communication directed to the residents, and to protect such materials from the weather or the intruding eyes of would-be burglars.

Reluctance to treat the letterboxes as public forums might stem not from the Postal Service’s approval of their form, but instead from the fact that their ownership and use remain in the hands of private individuals.{8} Even that hesitation, I should think, would be misguided, for those owners necessarily retain the right to receive information as a counterpart of the right of speakers to speak. Kleindienst v. Mandel, 408 U.S. 753, 762-765 (1972); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389-390 (1969); Lamont v. Postmaster General, supra, at 307; Martin v. City of Struthers, 319 U.S. at 143. Cf. Procunier v. Martinez, 416 U.S. 396, 408 (1974) (communication by letter depends on receipt by addressee). On that basis alone, I would doubt the validity of 18 U.S.C. § 1725, for it deprives residents of the information which civic groups or individuals may wish to deliver to these private receptacles.{9}

I remain troubled by the Court’s effort to transform the letterboxes entirely into components of the governmental enterprise despite their private ownership. Under the Court’s reasoning, the Postal Service could decline to deliver mail unless the recipients agreed to open their doors to the letter carrier -- and then the doorway, or even the room inside could fall within Postal Service control.{10} Instead of starting with the scope of governmental control, I would adhere to our usual analysis which looks to whether the exercise of a First Amendment right is burdened by the challenged governmental action, and then upholds that action only where it is necessary to advance a substantial and legitimate governmental interest. In my view, the statute criminalizing the placement of hand-delivered civic association notices in letterboxes fail this test. The brute force of the criminal sanction and other powers of the Government, I believe, may be deployed to restrict free expression only with greater justification. I dissent.

1. Although the Government also advances the privacy interests of the mailbox owner, those interests would, of course, be protected by allowing the individual owner to make the choice whether he wanted to receive unstamped mail.

2. The Government, see Brief for Appellant 4, n. 4, cites legislative history indicating that the "principal motivation for the statute" was the protection of postal revenues and prevention of overstuffing of mailboxes. The Government later notes that,

[a]lthough Congress’ primary purpose in enacting Section 1725 was the protection of mail revenues, the statute also plays a role in the investigation of mail theft.

Id. at 7. Because this justification, unlike the other two, was formulated after the statute was enacted, it is not entitled to the same weight as the purposes that actually motivated Congress.

3. The District Court held that

enforcement of § 1725 against civic associations does not appear so necessary or contributive to enforcement of the anti-theft, anti-fraud or Private Express statutes that this interest outweighs the plaintiffs’ substantial interest in expedient and economical communication with their constituents.

490 F.Supp. at 163.

4. To the extent that the efficiency of the Postal Service would be impeded by the effort required for mail carriers to sort through papers for outgoing mail, the solution is again in the hands of the individual owner of the mailbox. If he wants to use this method of sending letters and wants also to receive unstamped communications, he runs the risk that his outgoing mail will not be seen by the mail carrier.