The Constitution of the United States of America: Analysis and Interpretation: Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952
History
The Constitution of the United States of America: Analysis and Interpretation: Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952
Constitutional law -- United States; Constitutions -- United States
Some thirty years later Congress passed the first of a series of acts to
exclude from the mails publications designed to defraud the public or
corrupt its morals. In the pioneer case of Ex parte Jackson,[1140] the
Court sustained the exclusion of circulars relating to lotteries on the
general ground that "the right to designate what shall be carried
necessarily involves the right to determine what shall be
excluded."[1141] The leading fraud order case, decided in 1904, holds to
the same effect.[1142] Pointing out that it is "an indispensable adjunct
to a civil government," to supply postal facilities, the Court restated
its premise that the "legislative body in thus establishing a postal
service, may annex such conditions to it as it chooses."[1143] Later
cases appear to have qualified these sweeping declarations. In upholding
requirements that publishers of newspapers and periodicals seeking
second-class mailing privileges file complete information regarding
ownership, indebtedness and circulation and that all paid advertisements
in such publications be marked as such, the Court emphasized that these
provisions were reasonably designed to safeguard the second-class
privilege from exploitation by mere advertising publications. Chief
Justice White warned that the Court by no means intended to imply that
it endorsed the government's "broad contentions concerning the existence
of arbitrary power through the classification of the mails, or by way of
condition * * *"[1144] Again, in Milwaukee Social Democratic Publishing
Co. _v._ Burleson,[1145] where the Court sustained an order of the
Postmaster General excluding from the second-class privilege a newspaper
which he found to have systematically published matter banned by the
Espionage Act of 1917, the claim of absolute power in Congress to
withhold this privilege was sedulously avoided. More recently, when
reversing an order denying the second-class privilege to a mailable
publication because of the poor taste and vulgarity of its contents, on
the ground that the Postmaster General exceeding his statutory
authority, Justice Douglas assumed, in the opinion of the Court, "that
Congress has a broad power of classification and need not open
second-class mail to publications of all types."[1146]
THE EXCLUSION POWER AS AN ADJUNCT TO OTHER POWERS
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