First Amendment, Privacy and Mailers

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It is rare to have a discussion of privacy for more than a few minutes without someone raising the First Amendment to the U.S. Constitution. Some like to portray the First Amendment and privacy as inconsistent and incompatible. Others, including many privacy and Internet advocates, have no difficulties being strong supporters of both free speech and privacy. Nevertheless, conflicts can and do arise.


A little-known Supreme Court decision from 1970 has a lot to say about privacy and free speech in the postal context. The decision also has direct implications for telemarketing and spam. With challenges to state do-not-call legislation in the courts, it is worthwhile to review the case.


A 1967 law, 39 U.S.C. 3008, gave each individual the right to force a mailer to remove his name from its mailing lists and stop all future mailings. The law, as recodified in the 1970 Postal Reorganization Act, has the interesting title of "Invasion of Privacy by Mailing of Sexually Oriented Advertisements."


The law's main purpose was to allow individuals who receive sexually oriented ads in the mail to get their names off the mailing lists. The procedure is simple. The individual notifies the U.S. Postal Service's postmaster general that he has received an objectionable mailing. The PMG then orders the mailer to stop sending mail to the individual. The law also requires the mailer to delete the name of the designated addressee from all mailing lists owned or controlled by the sender and further prohibits the sale, rental, exchange or other transactions involving mailing lists including that name and address.


In effect, the law provides a general do-not-mail procedure that covers both mail and mailing lists. As the Supreme Court described the law, it "was intended to allow the addressee complete and unfettered discretion in electing whether or not he desired to receive further material from a particular sender."


What an incredibly powerful statute. Is it really consistent with the First Amendment? That was what the Supreme Court decided in Rowan v. U.S. Postal Office Dept., 397 U.S. 728. The answer was that the law did not violate the First Amendment. The court said unequivocally that the "mailer's right to communicate must stop at the mailbox of an unreceptive addressee."


How can this law be constitutional? Won't it require the USPS to make decisions about what is a sexually oriented advertisement? After all, content-based speech restrictions are highly suspect under the First Amendment.


Congress found a clever solution. It gave the addressee the exclusive and unreviewable authority to decide what was objectionable. Even if a mailing did not have any sexual material at all, the addressee could still have future mailings stopped. Chief Justice Warren Burger wrote that anyone "may prohibit the mailing of a dry goods catalog because he objects to the contents or indeed the text of the language touting the merchandise." Burger called this a sweeping power that protects privacy and avoids possible constitutional questions that might have arisen otherwise.


The opinion contains some sharply negative language about the mailing industry as well. Burger wrote: "today's merchandising methods, the plethora of mass mailings subsidized by low postal rates, and the growth of the sale of large mailing lists as an industry in itself have changed the mailman from a carrier of primarily private communications, as he was in a more leisurely day, and have made him an adjunct of the mass mailer who sends unsolicited and often unwanted mail into every home. It places no strain on the doctrine of judicial notice to observe that whether measured by pieces or pounds, Everyman's mail today is made up overwhelmingly of material he did not seek from persons he does not know. And all too often it is matter he finds offensive." Strong words, especially for 1970.


I have always been amazed that the privacy community has not made more use of the statute to throw a monkey wrench into the mailing list business. After receiving any mail from any source, an individual can prohibit the mailer from sending additional mail and can force the mailer to remove the name from all of its mailing lists. The statute has the power to do to the mailing industry what state do-not-call statutes are doing to the telemarketing business.


It seems that the decision in this case halts at least one aspect of First Amendment and privacy clashes. Anyone's First Amendment right to speak stops at the mailbox of an unwilling recipient. The reasoning should also fully apply to telemarketing and to spam.


Legislation can go pretty far once the recipient says "no." As the court said: "We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even 'good' ideas on an unwilling recipient."


Plenty of battles can be fought along the front between privacy and free speech. The Rowan case puts one of those battles to rest. No one has a right to mail to an unwilling recipient. The lawsuits challenging do-not-call laws on First Amendment grounds are doomed to fail as long as Rowan, which was decided unanimously, remains good law.


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