The U.S. Court of Appeals for the Second Circuit struck a blow for free speech and freedom from governmental harassment when it ordered a new hearing for two New York groups threatened with prosecution for placing political fliers in private mailboxes.
I’ve been waiting for years for someone to have the temerity to challenge the Federal law that provides a $300 fine for anyone who “willfully deposits any mailable matter” without proper postage in a private mailbox. Why should it be a crime for Citizen A to deposit a letter in a mailbox which is the private property of Citizen B?
Under the existing law, if you want to deliver a letter or flier personally to your neighbors, you must stuff it in the crack of the door, lodge it between the door and the screen, hang it on the doorknob, or otherwise leave it in such a way as to subject your letter or flier to the exigencies of the weather, the wind, and passing dogs and cats. You are forbidden to put your letter in the box designed for the receipt of mail.
The mailbox, of course, does not belong to the government any more than the door, the screen, the steps, or the space between the door and the screen. Yet the government has decreed that only a federal mailman can deposit mail in any mailbox.
The two New York civic groups that challenged the law, the Council of Greenturgh Civic Associations and the Saw Mill Valley Civic Association, were dismissed out of hand by the federal district court, but on appeal they won their right to have their case tried.
Two main issues are involved in this case, and it is about time that they were argued and considered by some court. The law is an undeniable burden on our First Amendment right of free speech. The issue is, is the asserted interest of the Post Office substantial enough to outweigh the burden on free speech even though, as Judge Kaufman stated so well in his concurring opinion, “we must keep our thumb on the First Amendment side of the scales”?
Political speech is pursued more generally by the method of house-to-house canvassing than by use of the mails. The statute attempts to force those who want to make political or civic statements to use the mails rather than to exercise their right of house-to-house distribution. Should the government have the power to place restrictions on one form of free expression because it prefers another?
While the interference with free speech is the effect of the federal mailbox statute, the purpose involves a different issue. The law was designed to protect the monopoly position of the Post Office against other means of communication between citizens, whether commercial or voluntary. Judge Kaufman pointed out in his concurring opinion that “citizens are asked to surrender a fast-and-inexpensive means of communication as a method of compelling them to patronize a slower and more costly government monopoly.”
The law obviously is not designed to keep people from receiving mail they do not want. We all receive plenty of mail carried by the Post Office that we don’t care to read or even receive. We can efficiently cope with this problem by tossing the unwelcome pieces in the circular file, which is exactly the same thing we could do with any unwanted political or civic fliers.
The upset victory of Senator-elect Gordon Humphrey in New Hampshire, who used extensive television advertising, has the pundits predicting that future elections in that crucial presidential primary state will demand the heavy use of television as the prime means of political campaigning.
While television certainly has a place in political campaigning, door-to-door literature distribution should have just as important a place. Our laws should facilitate, not impede, the distribution of political messages at the neighborhood level. The high costs of television and the delays of the mails should not bar citizens from effective political communication.
