Postal Regulations

Definition: Laws regulating the fees and conditions for delivery of mail

Significance: Because the mails have long been a key form of communicating printed materials they have been prime targets for censorship

Modern postal services owe their origins at least partially to the government urge to control the flow of information. In the sixteenth and seventeenth centuries, European governments gradually assumed control of postal delivery, both for the income to be derived from providing such service and out of a desire to have closer oversight of information flowing through their realms. Oversight of the mails has generally encouraged government officials to concern themselves with the contents of the materials transported by their postal services. The urge to censor and suppress mail traffic in particular items or ideas has sometimes proceeded from the perception that government was somehow complicitous with the originators of noxious items if it allowed its mails to be tainted with objectionable materials. Even without this sense of moral partnership as a source of censorial zeal, however, government officials have constantly been ready to use government monopoly of the mail to control traffic in particular items or ideas.

Nonmailable Matter Laws

In the United States, the chief source of power within the postal service to censor speech has lain in the variety of nonmailable-matter provisions that Congress has enacted over the past two centuries. Not all such laws were attempts to regulate the content of expression, however. The earliest nonmailable provision, enacted by Congress in 1797, was one preventing newspapers from depositing their papers in the mail for delivery before the ink on them had dried adequately. Other nonmailable provisions have concerned themselves with harmful objects of one sort or another. For example, a law enacted in 1872 banned articles such as explosives or poisons that might damage the postal service itself, and one passed in 1927 classified as nonmailable weapons that were capable of being concealed. Usually, however, when Congress has undertaken to declare specific materials unfit for the mails, it has targeted expression in one form or another. In 1865, for example, Congress declared obscene materials nonmailable—a provision that has remained intact, with minor revisions, since that time. Other nonmailable matters have included lottery tickets, which were banned in 1890; films or other graphic representations of prize fights, banned in 1912; writings advocating treason or forcible resistance to United States law, banned in 1917; and information relating to obtaining foreign divorces, banned in 1939.

The U.S. Post Office and Slavery

The first major attempt in the United States to use control of the mail as a form of censorship occurred under the shadow of the slavery controversy in the nineteenth century. In 1835 a newly formed antislavery society began a vigorous campaign of mailing abolitionist literature. Southern postal offices were inundated with abolitionist tracts, which many Southerners believed would land in the hands of slaves and lead to their violent revolt. The U.S. postmaster general, with the concurrence of President Andrew Jackson, informed postal officers that they need not deliver the tracts, except to those who had specifically subscribed to them. President Jackson suggested, in fact, that postmasters would do well to publish lists of any persons subscribing to the abolitionist papers and, by bringing them into disrepute, to discourage people from subscribing to such materials. Jackson also urged Congress to enact laws banning materials from the mail that were likely to incite slaves to riot. Although Congress ultimately declined to regulate the mails in the fashion sought by Jackson, several Southern states enacted laws in the 1830’s criminalizing the mailing of “incendiary” or “inflammatory” (that is, “antislavery”) writings.

Obscenity and the Mail

As early as 1865 Congress banned obscene books and publications from the mail, though without prescribing penalties for violations of the law. Not until a few years later, however, did the problem of obscenity in the mail gain prominence, thanks to the efforts of Anthony Comstock, who complained that men were being ruined by pornography. In association with a New York chapter of the YMCA Comstock engaged in his own private war against obscenity. In the early 1870’s he determined to take his private war public, and he persuaded Congress to pass a law in 1873 that added stiff penalties to the previously enacted obscenity provisions, and which included in its nonmailable provisions a new prohibition against mailing items used to prevent conception or to procure abortions. That same year Comstock obtained a commission for himself as an enforcement agent for the Post Office. In the years following, he was a vigorous proponent and enforcer of nonmailable matter laws.

Since 1865 the U.S. Post Office—and its successor, the Postal Service—has wielded the provision relating to nonmailable obscenity in its various incarnations to censor many books regarded as serious literature. Books deemed nonmailable by the Post Office have included such classic works as Aristophanes’ Lysistrata and Geoffrey Chaucer’s Canterbury Tales, as well as the works of modern authors including Victor Hugo, Honoré de Balzac, Oscar Wilde, Ernest Hemingway, Eugene O’Neill, D. H. Lawrence, John Steinbeck, William Faulkner, and F. Scott Fitzgerald. Curiously, books such as John O’Hara’s Appointment in Samarra and Hemingway’s For Whom the Bell Tolls could not traverse the mails, even though these books were displayed openly in bookstores around the country. As the decades of the twentieth century passed, however, the postmaster general’s power to suppress literary works because of their asserted obscenity crumbled before a federal judiciary increasingly hostile to these claims. For example, in 1959 a publisher finally released in the United States an unexpurgated version of D. H. Lawrence’s Lady Chatterley’s Lover. The postmaster general responded by seizing copies of the book and labeling obscene not only the book but advertising circulars put out by the book club. A federal district judge presented with the case disagreed with the postmaster general’s determination, and an appellate court sided with his order overturning the postmaster general’s ban. Eventually, the Supreme Court removed a great deal of the bite of the nonmailable obscenity provision through its evolving definition of obscenity. In 1973 the Court held, in Miller v. California, that obscenity included only those works that the average person—applying community standards—would regard as appealing on the whole to prurient interest; such works would depict sexual conduct in a patently offensive manner, and, on the whole, lack any serious literary, artistic, political, or scientific value.

Fraud and the Mail

Beginning in 1872 Congress declared nonmailable various written materials intended to carry out fraudulent enterprises. By this original law, the postmaster general was authorized to issue a fraud order to a local postmaster forbidding payments on money orders drawn to firms engaged in fraud and to command the postmaster to return registered letters addressed to these firms to their original post offices with the word “Fraudulent” stamped on them. Over the years following this original provision, the Post Office Department retained significant power to frustrate the attempts of various schemers to further their fraudulent activities through the mail. Perhaps the most famous of these schemes to reach the U.S. Supreme Court was the one at issue in Donaldson v. Read Magazine, Inc., decided in 1948. Read Magazine ran a series of puzzle contests during the 1940’s that the postmaster general determined were actually elaborate schemes to separate puzzle enthusiasts from their money. Contestants were called upon to solve a series of puzzles, with an entry fee of a few dollars for each series. Since the puzzles were easily solved, contestants found themselves constantly advancing forward to a new round of puzzles and a new entry fee. The contest’s final device for separating winners from the remaining contestants was to require submission of essays and award prizes to the authors of the best essays. When the postmaster general issued a fraud order against the magazine, the magazine brought suit claiming that this action violated numerous constitutional provisions, including the First Amendment’s guarantee of free speech. The Supreme Court disagreed, however, finding that the postmaster general’s determination of fraud was amply supported by the evidence, and concluding that protections against fraudulent uses of the mails were too deeply planted in the country’s history to be uprooted by Read Magazine’s attempt to cloak itself in the sheltering folds of the First Amendment.

Postal Rates and Censorship

In 1874 Congress expanded the Post Office Department’s power to regulate expression by authorizing it to grant lower, second-class mailing rates to certain newspapers and magazines that were devoted to literature, science, or the arts, or that were otherwise designed to advance “dissemination of information of a public character.” Postmasters routinely used this power during the closing years of the nineteenth century and the first half of the twentieth century to reward or punish particular publications. During World War I, second-class rates were denied to several socialist papers, and a number of periodicals deemed by the postmaster general objectionable earned a similar treatment during World War II.

The use of the second-class mailing privilege to censor speech had its most famous illustration in a case involving Esquire magazine. Esquire had originally gained second-class mailing privileges in 1933, but the postmaster general challenged this privilege in the mid-1940’s, alleging that Esquire was devoted neither to literature, nor science, nor the arts, and was not otherwise designed to advance “dissemination of information of a public character”; instead it was regularly filled with “smoking room” humor—that is, humor about sex. When its second-class rate was revoked in 1944, Esquire brought suit in a federal district court and eventually found an audience for its grievance with the U.S. Supreme Court. In Hannegan v. Esquire (1946), a unanimous Court found that the postmaster general had essentially censored Esquire not on the basis of whether it was about literature or art or some other information of public character, but simply because he had determined the periodical to be “bad.” The American system of government, said the Court, was intended to oversee the widest variety of tastes and opinions, and—so long as material was not actually obscene—the postmaster general had no authority to enforce his own tastes upon the American people.

Bibliography

Dorothy Ganfield Fowler’s Unmailable: Congress and the Post Office (Athens: University of Georgia Press, 1977) offers an excellent historical account of the development of nonmailable matter laws in the United States. For a similar, though older account, which focuses on mail censorship from the late nineteenth century through the first half of the twentieth century, see Federal Censorship: Obscenity in the Mail by James C. N. Paul and Murray L. Schwartz (New York: Free Press of Glencoe, 1961). Wayne E. Fuller’s The American Mail: Enlarger of the Common Life (Chicago: University of Chicago Press, 1972) and Gerald Cullinan’s The Post Office Department (New York: Praeger, 1968) are historical surveys of the U.S. Post Office that include some discussion of censorship matters. Confederate Postal History, edited by Francis J. Crown, Jr. (Lawrence, Mass.: Quarterman Publication, 1976), is an older work that includes a brief but interesting chapter on Confederate censorship of southbound mail during the Civil War. Governing Global Networks: International Regimes for Transportation and Communications, by Mark W. Zacher with Brent A. Sutton (Cambridge, England: Cambridge University Press, 1996), contains a helpful chapter on modern international postal arrangements.