AUBREY E. ROBINSON, Jr., District Judge:
This is a class action for an injunction restraining the Postmaster General
from applying the provisions of 18 U.S.C. §§ 957, 1461, 1717(a), 2387 (1964)
to the May 1967 issue of The Crusader newsletter.
Because plaintiffs requested an injunction restraining the enforcement of several acts of Congress, a three-judge court was convened pursuant to 28 U.S.C. §§ 2282 and 2284 (1964).
At the time this action was commenced, The Crusader was written and published by Robert Williams, a plaintiff in this action, and was distributed to this and other countries from Peking, China. Among the recipients of the issue in question were plaintiffs Conrad J. Lynn, Christopher Koch and City Lights Books, Inc., a San Francisco bookstore which distributes copies of The Crusader. These plaintiffs represent a class of persons who regularly receive The Crusader and who allegedly wish to continue receiving it and sending it through the mails.
Purportedly acting under the authority of 18 U.S.C. §§ 957, 1461, 1717(a) and 2387 but relying primarily on the provision in § 1461 which provides for the nonmailability of matter tending to incite arson, murder or assassination, the Postmaster General on August 29, 1967, ordered the May 1967 issue banned from the mails. This action was taken after government officials, including President Lyndon B. Johnson, and certain private citizens submitted copies of the issue to postal officials for review.
Since the ban on the issue as an item of foreign mail continues, and the issue may not lawfully be mailed into this country, the case is not moot and the propriety of the Postmaster General's determination of non-mailability is before this Court. Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 178, 89 S. Ct. 347, 21 L. Ed. 2d 325 (1969); Division 1287 of Amalgamated Ass'n of Street, Electric Railway and Motor Coach Employees of America v. Missouri, 374 U.S. 74, 83 S. Ct. 1657, 10 L. Ed. 2d 763 (1963); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S. Ct. 279, 55 L. Ed. 310 (1911).
The issue at the crux of this litigation is whether the Postmaster General may employ different, substantially abbreviated procedures, when dealing with foreign mail than those he must employ with domestic mail where nonmailability is concerned.
When domestic mail of doubtful mailability is brought to the attention of postal authorities, it is forwarded to the office of the General Counsel where the Assistant General Counsel makes an initial, tentative determination as to whether the matter transgresses a mailability law. If the Assistant General Counsel decides that the matter is nonmailable, a complaint is filed with the Docket Clerk of the Post Office Department. Once a complaint is filed, the Rules of Practice in Proceedings Relative to Mailability found in 39 C.F.R. § 953 (1969) and the provisions of the Administrative Procedure Act
apply. Door v. Donaldson, 90 U.S. App. D.C. 188, 195 F.2d 764 (1952). See Cutler, The Post Office Department and the Administrative Procedure Act, 47 Nw. U.L. Rev. 72 (1952); cf. Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S. Ct. 445, 94 L. Ed. 616 (1950).
The procedure established by 39 C.F.R. § 953 involves the forwarding of the complaint to the Docket Clerk of the Post Office Department who then serves the mailer with a copy of the complaint and sets the matter for hearing. A hearing examiner presides at the hearing, and the mailer has the right to introduce evidence and to be represented by counsel at all stages. At the conclusion of the hearing, each party may submit proposed findings of fact and conclusions of law. Following this submission, the hearing examiner enters an initial decision. Either party may appeal the decision to the Judicial Officer of the Post Office Department. If the Judicial Officer sustains the determination of nonmailability, the mailer may appeal for relief to an appropriate federal court. The Post Office Department may not, however, seek review of an unfavorable decision. If the Judicial Officer determines that the matter is non-mailable, it is detained by Post Office officials for a period of fifteen (15) days. During this period, the mailer may apply to withdraw the mail.
The Postmaster General may not resort to summary procedures to seize, detain, or impound domestic mail. Walker v. Popenoe, 80 U.S. App. D.C. 129, 149 F.2d 511, 513, 514 (Circuit Judge Arnold, concurring). Cf. Manual Enterprises v. Day, 370 U.S. 478, 518, 82 S. Ct. 1432, 8 L. Ed. 2d 639 (1962) (Brennan, J., concurring), Marcus v. Search Warrant, 367 U.S. 717, 731, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961).
When foreign mail of questionable mailability is brought to the attention of postal officials, a different procedure is followed. The mailability of foreign mail thought to violate the statutes at issue in this case is determined exclusively within the General Counsel's Office of the Post Office Department. The procedure which is followed consists of a memorandum opinion of mailability from the Assistant General Counsel of the Mailability Division to the General Counsel. The opinion cites the statutory and decisional law which the Assistant General Counsel feels controls the case. If that memorandum declares an item nonmailable, then postal officials may seize any copies of that item directed to domestic recipients from abroad.
Neither the senders nor the recipients participate in the process leading to the determination of mailability. Neither is informed that the Government suspects that the contents of the mail might violate certain penal statutes; neither is afforded an opportunity to be heard on the question of mailability. The Department's procedures include no regular provisions for administrative or judicial review of its decisions as they pertain to foreign mail.
In the memorandum opinion which determined the nonmailability of the May 1967 Crusader, among the reasons advanced in support of that determination were that
The subject publication advocates violence by Negroes in our cities and encourages Negroes, if they must serve in Vietnam, to sabotage operations in the field and among other things to murder their white fellow soldiers. * * * The advocacy of the publication in question, The Crusader, goes far beyond any appellation of propaganda or innuendo. * * * It is plainly stated that Negroes serving in Vietnam should murder their fellow white soldiers and sabotage the war machinery. It is thus clear that the publication is boldly advocating insubordination, disloyalty, refusal of duty, mutiny in violation of 18 U.S.C. § 2388(a) and is thus nonmailable under 18 U.S.C. § 1717(a).
The May 1967 issue has not been proceeded against as an item of domestic mail. No other issue of The Crusader has been declared nonmailable either as foreign or domestic mail.
The Postmaster General contends that the abbreviated procedure which he applied to the May 1967 Crusader is justified because a foreign sender has no rights under international law to compel delivery of his mail in the United States. According to the Postmaster General's theory, any rights of a foreign sender must flow from either an international agreement or from United States laws or regulations.
He contends that the carriage of foreign mail is governed by agreement among the contracting parties; and that the carriage of the May 1967 Crusader is regulated by the provisions of the Universal Postal Union Convention.
Article 28, Section 1(d), of the Convention states that among the articles which may be prohibited in international mail are "articles whose import or circulation is prohibited in the country of destination." Section 2 of Article 28 provides that "[articles] containing the items mentioned in § 1 which have been erroneously accepted for mailing are handled in accordance with the legislation of the country of Administration which detects their presence." The Postmaster General notes that the convention contains no provision for a mailability hearing for any class of mail. And, in addition, he notes that hearings are not required by the Administrative Procedure Act or by any domestic statute governing the transit of foreign mail.
Finally, he contends that no useful purpose would be served by requiring a hearing at this stage in the proceedings because the May 1967 Crusader has already been conveyed in the mails and the mailer need not respond to any administrative citations.
For the reasons which subsequently appear, we hold that the Fifth Amendment's due process clause requires that the same standards which the Postmaster General applies to domestic mail be applied to foreign mail between American citizens and that because of the Postmaster General's failure to apply those standards, his determination of the nonmailability of the May 1967 Crusader was improper. The determination as to mailability, in the first instance, is for the Postmaster General. In making that determination, however, he must employ procedures which are consistent with this Court's holding and until a proper determination of non-mailability is made, the May 1967 Crusader may be conveyed in the mails.
Any assumption of authority by the Postmaster General to intercept or to impound the mail which is not grounded on clear statutory authority is suspect. Justice Douglas stated that
The power of the Post Office Department to exclude material from the mails and to intercept mail addressed to a person or a business is a power that touches basic freedoms. It might even have the effect of a prior restraint on communications in violation of the First Amendment, or the infliction of punishment without due process of law which the Fifth and Sixth Amendments guarantee. * * * I mention the constitutional implications of the problem only to emphasize that the power to impound mail should not be lightly implied.