Consumers Union of U.S. v. Walker | Cases | Westlaw

Consumers Union is a nonprofit membership corporation engaged in the business of testing and analyzing the quality of merchandise offered generally for sale, and distributing to its membership through periodical and other publications, information concerning the quality of such merchandise. Consumers Union issued a special report concerning contraceptive materials which was distributed to approximately 30,000 of its members; only, however, upon a certificate in writing, signed by each member who received a copy as follows: ‘I am married and use prophylactic materials on the advice of a physician. ‘ The Postmaster at New York, acting upon instructions from the Postmaster General, banned this report from the mails. Consumers Union sought relief in the District Court, alleging that the action of the Post Office Department was arbitrary and requesting a permanent prohibitory injunction. The District Court granted appellee's motion to dismiss appellant's complaint.

The statute, upon which the Postmaster relies, reads as follows: ‘Every obscene, lewd, or lascivious, and every filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character, and every article or thing designed, adapted, or intended for preventing conception or producing abortion, or for any.indecent or immoral use; and every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for preventing conception or producing abortion, or for any indecent or immoral purpose; and every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any king giving information, directly *34 **230 or indirectly, where, or how, or from whom, or by what means any of the hereinbefore-mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means conception may be prevented or abortion produced, whether sealed or unsealed; and every letter, packet, or package, or other mail matter containing any filthy, vile, or indecent thing, device, or substance, and every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for preventing conception or producing abortion, or for any indecent or immoral purpose; and every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing, is hereby declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.‘¹

Only by taking out of context and reading, literally, those words of the statute which, for convenience, have been italicized, can any basis be found for the Postmaster's contention. The fact that the italicized language is mixed, indiscriminately, with provisions concerning obscene, lewd, lascivious and filthy books, pamphlets, pictures, publications and other articles and things intended for indecent and immoral purposes, indicates that Congress, in adopting the statute, intended to legislate upon a subject far removed from the publication involved in the present case. Cases which uphold the power of Congress to bar from the mails obscene, lewd, lascivious² or fraudulent³ matter, or publications concerning lotteries,⁴ or which tend to encourage arson, murder, or assassination⁵ are clearly distinguishable.

The rule of law applicable in the present case was stated by the Supreme Court in United States v. Kirby,⁶ where, as here, it was insisted that a statute relating to the Post Office Department must be read and applied, literally, regardless of consequences: ‘Indeed, it may be doubted whether it is competent for Congress to exempt the employees of the United States from arrest on criminal process from the State courts, when the crimes charged against them are not merely mala prohibita, but are mala in se. But whether legislation of that character be constitutional or not, no intention to extend such exemption should be attributed to Congress unless clearly manifested by its language. All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter.‘⁷ (Italics supplied in part)In *35 **231 another case,⁸ also involving the Post Office Department, in which the unconstitutionality of an Act regulating the entry of mail was asserted, the Supreme Court said: ‘ * * * the elementary rule is that every reasonable intendment to avoid such a result must be indulged in.‘

A careful reading of the disputed pamphlet shows a style of treatment very similar to an article upon the same subject which appeared in the American Medical Journal,¹² and which, incidentally, passed through the mails apparently without question. The pamphlet was written in much more conservative manner than material concerning the same subject which has appeared during recent months in Fortune Magazine¹³ and in the Reader's Digest,¹⁴ each of which, also, was permitted to circulate without question. Apparently these publications were regarded as proper within the meaning of the statute. In the Government's brief, it is urged by way of excuse for no action having been taken against Fortune Magazine, the Reader's Digest, or the American Medical Journal, that this was probably the result of oversight and that no benefit can be claimed in favor of the pamphlet issued by appellant merely because the Postmaster General has neglected to proceed in other cases. This is not a persuasive argument. The other magazines are of wide circulation; two of them with great popular appeal. They would have been called to the attention of the Postmaster General much more quickly than would this little pamphlet issued to a select clientele by the Consumers Union. Whether intended or not, the result of the action taken in the present case constituted a clear discrimination against appellant's pamphlet in favor of the others.

Reversed.