May the federal government prohibit use of words such as “Social Security,” “Medicaid” and other public policy terms on carrier envelopes by advertisers and nonprofits so that government letters are opened instead?
The 4th U.S. Circuit Court of Appeals said “yes” in a decision last month and upheld a $500,000 fine against a nonprofit for using the words “Social Security” on an envelope. Direct mailers should be worried and angry not only because words are part of our stock in trade, but words about public policy matters and government programs especially should be protected by the First Amendment.
The case, “United Seniors Association v. Social Security Administration,” sadly breaks new First Amendment ground against direct mailers. Mailers who read the decision (pacer.ca4.uscourts.gov/opinion.pdf/041804.P.pdf) may even sense hostility toward, if not a glaring lack of understanding of, the direct mail profession beginning with the statute itself all the way through the SSA’s administrative law hearing described in the decision.
In the 1980s and with dubious justifications written into the legislative history for those of us who saw what happened, Congress added a provision to the Social Security laws that prohibited using 19 non-offensive words or phrases under broad, vague and discretionary standards. The statute prohibits and fines for words such as “Social Security,” “Medicaid” “Death Benefits Update” and other public policy terms in ads, solicitations, books, pamphlets or other “communications” if government officials (not citizens themselves) believe the communication could be perceived as approved, endorsed or authorized by the Social Security Administration.
Truth is no defense. The seniors association’s envelope was marked as a “Social Security Alert.” Its contents gave news and information about Social Security benefits and legislation with a petition to members of Congress for recipients to sign. The envelope was clearly marked as being from the association, with its Virginia P.O. box return address, so the carrier did not mislead that it was from or endorsed by the Social Security Administration. The envelope used common mail techniques to pique recipients’ interest.
Once the envelope was opened, it was unmistakable that the contents were from the association, since that was clearly marked from the opening heading to the reply device.
The court cited and relied on testimony from one postal inspector in the administrative law hearing conducted by the SSA itself. The inspector referenced several common direct mail techniques on the envelope stressing the urgency of the matters within the package, and the tracking numbers used so frequently on direct mail letters these days. The inspector said these techniques served “no legitimate postal function.”
No citizen or Social Security beneficiary testified that the envelope was misleading. The decision relied entirely on opinions of one government official and one law professor employed by an adversarial seniors nonprofit. Since the court was reviewing the constitutionality of an SSA law, not a postal law, mailers should be concerned that the court relied on such irrelevant “opinion” evidence.
The court failed to recognize what mailers do. Tracking numbers serve vital purposes, and mail techniques result in billions of dollars in revenue to the U.S. Postal Service from mailers using those or similar techniques.
What government interest is served? Court-created First Amendment standards have evolved to let government restrict constitutional rights under certain circumstances. Speech such as obscenity and fraud are examples. Commercial speech has been given less First Amendment protection by courts. But political speech, the press and other First Amendment activity such as petitioning the government historically have received the highest protection.
The SSA statute restricts use of words that clearly have public policy meaning, such as Social Security, Medicare and Medicaid. Those are programs created by laws of Congress. One would think that the government interest in prohibiting, penalizing or regulating use of such words must be very clear, very strong and designed to prevent very bad harm.
The court’s decision breaks new constitutional grounds, however, in upholding the statute. The court cited favorably the legislative history of the bill creating these prohibitions to “preserve the lines of communication between the SSA and its recipients” under the pretext that other mailers may “increase [the] likelihood that true Government mailings will be destroyed [by recipients] without being opened.”
The court upheld what is essentially a prophylactic and broad monopoly on certain words under discretionary standards determined by government officials themselves. This is a new and dangerous First Amendment standard even beyond direct mailers.
The court upheld a fine on the use of words on carrier envelopes that were honest and harmed no one. The court somehow found a heretofore-unknown cause of action against “inducing” citizens to open envelopes.
Why direct mailers should be worried. This ruling is bad precedent for direct mailers. Congress and state legislatures now may cite it as constitutional justification to write more laws restricting use of public policy and other words such as “Internal Revenue Service” or even “Congress” itself simply on the grounds that they want to “preserve lines of communication” with citizens (voters).
Congress sometimes crafts comforting language in legislative histories to disguise even the worst laws. The legislative history cited by the court hid that this law was written in response to direct mail critics of controversial Social Security legislation because direct mail was affecting public policy.
This decision, as applied to a carrier envelope, makes a legal cause of action out of words and common direct mail techniques. Direct mailers should see how harmful this case is and may want to explain that to the three judges who issued the decision.
