Hannegan, Postmaster General v. Esquire, Inc.
Decided on Feb. 4, 1946; 327 US 146


I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: Freedom of expression

B. Legal Question Presented:

Does the Postmaster General have the power to decide what publications are mailable based on the content of the publication?

II. CASE SUMMARY:

A. Background:

"Respondent is the publisher of Esquire Magazine, a monthly periodical which was granted a second-class permit in 1933. In 1943, pursuant to the Act of March 3, 1901... a citation was issued to respondent by the then Postmaster General (for whom the present Postmaster General has now been substituted as petitioner) to show cause why that permit should not be suspended or revoked. A hearing was held before a board designated by the then Postmaster General. The board recommended that the permit not be revoked. Petitioner's predecessor took a different view... He revoked its second-class permit because he found that it did not comply with the Fourth condition... [i.e that the publication was] 'morally improper and not for the public welfare and the public good.'

Respondent thereupon sued in the District Court for the District of Columbia to enjoin the revocation order... The District Court denied the injunction and dismissed the complaint. The Court of Appeals reversed. "

On certiorari the US Supreme Court affirmed the judgment of the Court of Appeals.

B. Counsel of Record:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Unavailable Unavailable
C. The Arguments:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
The revocation order was beyond the Postmaster General's authority. Postmaster General has the discretion to determine whether periodicals qualify for second-class privilege based on all conditions of 39 USCA § 226
III. AMICI CURIAE:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Mr. Bruce Bromley, of New York City, for respondent. Mr. Marvin C. Taylor, of Washington, DC, for petitioner.
IV. THE SUPREME COURT'S DECISION:

"Congress could constitutionally make it a crime to send fraudulent or obscene material through the mails. But grave constitutional questions are immediately raised once it is said that the use of the mails is a privilege which may be extended or withheld on any grounds whatsoever... Under that view the second-class rate could be granted on condition that certain economic or political ideas not be disseminated. The provisions of the Fourth condition would have to be far more explicit for us to assume that Congress made such a radical departure from our traditions and undertook to clothe the Postmaster General with the power to supervise the tastes of the reading public of the country...

Congress has left the Postmaster General with no power to prescribe standards for the literature or the art which a mailable periodical disseminates... [T]he power to determine whether a periodical (which is mailable) contains information of a public character, literature or art does not include the further power to determine whether the contents meet some standard of the public good or welfare."

The US Supreme Court affirmed the judgment of the Court of Appeals.

Justice Vote: 8 Pro vs. 0 Con
(Unanimous Decision for Respondent/Appellee)


  • Douglas, W. Pro (Wrote majority opinion)
  • Frankfurter, F. Pro (Joined majority opinion)
  • Burton, H. Pro (Joined majority opinion)
  • Black, H. Pro (Joined majority opinion)
  • Stone, H. Pro (Joined majority opinion)
  • Murphy, F. Pro (Joined majority opinion)
  • Reed, s. Pro (Joined majority opinion)
  • Rutledge, W. Pro (Joined majority opinion)
  • Jackson, R. Took no part in the decision
V. A WIN OR LOSS FOR THE ACLU?

The ACLU, as amicus curiae, urged affirmance of the judgment of the Court of Appeals; the Supreme Court affirmed in a 8-0 vote, giving the ACLU an apparent win.