my political and social views to public officials." Through their mailings to Congress, therefore, defendants seek to exercise their right under the First Amendment to the Constitution "to petition Government for redress of grievances."
The right to petition the Government is part of our heritage from earliest times and represents a cornerstone of our national liberty. It is a right long-recognized as implicit in "the very idea of a government, republican in form." United States v. Cruikshank, 92 U.S. 542, 552, 23 L. Ed. 588 (1875). As the Supreme Court noted in McDonald v. Smith, 472 U.S. 479, 53 U.S.L.W. 4789, 86 L. Ed. 2d 384, 105 S. Ct. 2787 (1985), the historical roots of the petition clause long antedate the Constitution. 53 U.S.L.W. at 4790. The English Bill of Rights of 1689, enacted after the Glorious Revolution of 1688, guaranteed "the right of the subjects to petition the King." 1 Wm. & Mary, Sess. 2, ch. 2. The early colonists in Massachusetts included a petition clause in the Massachusetts Body of Liberties of 1641, "the first detailed American Charter of Liberties." See 1 B. Schwartz, A Documentary History of the Bill of Rights 69, 73 (1971). During the Revolutionary period, the right to petition was again raised as an essential ingredient of self-government in both the Stamp Act Congress' Declaration of Rights and Grievances of 1765 and the Declarations and Resolves of the First Continental Congress of 1774. See 1 Schwartz at 198, 217. Now guaranteed by the First Amendment, the right to petition "is cut from the same cloth as the other guarantees of that Amendment, and is an assurance of a particular freedom of expression." McDonald, 53 U.S.L.W. at 4790; see Thomas v. Collins, 323 U.S. 516, 530, 89 L. Ed. 430, 65 S. Ct. 315 (1945) (right to petition inseparable from other First Amendment rights). Accordingly, courts have protected this right when its existence has arisen in varied contexts, from prisons, Cruz v. Beto, 405 U.S. 319, 321, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972), to state capitols, Edwards v. South Carolina, 372 U.S. 229, 235, 9 L. Ed. 2d 697, 83 S. Ct. 680 (1963). And they have protected this right in varied forms, from peaceful boycotts of private businesses, NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907-11, 73 L. Ed. 2d 1215, 102 S. Ct. 3409 (1982), to appeals to one or all three branches of the Government, California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 30 L. Ed. 2d 642, 92 S. Ct. 609 (1972).
While the right to petition Government is "among the most precious of the liberties safeguarded by the Bill of Rights," United Mine Workers of America v. Illinois State Bar Association, 389 U.S. 217, 222, 19 L. Ed. 2d 426, 88 S. Ct. 353 (1967), we recognize that this right, like many rights, is not absolute but can be subject to reasonable limitations. Where the right to petition conflicts with other legitimate interests, for example, the Constitution permits some restraint. A Quaker Action Group v. Morton, 170 U.S. App. D.C. 124, 516 F.2d 717, 725 (D.C. Cir. 1975) (permits in Lafayette Park); cf. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984) (prohibition on camping in Lafayette Park). Furthermore, the right to petition Government does not guarantee the right to participate in Government. Minnesota Board for Community Colleges v. Knight, 465 U.S. 271, 104 S. Ct. 1058, 1065-66, 79 L. Ed. 2d 299 (1984) (upholding statute prohibiting direct teacher involvement in academic governance); Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 445, 60 L. Ed. 372, 36 S. Ct. 141 (1915) (upholding increase in property valuation despite lack of public participation: "There must be a limit to individual argument in such matters if government is to go on").
Pursuant to § 3008 the plaintiff would ban "all further mailings" by defendants to Members of Congress. Yet the facts of the present case do not justify such a severe restraint. Already defendants confront other restrictions on their ability to petition Congress through the mail. They cannot, for example, send matter that exceeds the size and weight limits prescribed for a particular class of mail. 39 U.S.C. § 3001(c)(1)(A). Nor can they send a bomb or other dangerous material to Members of Congress. 39 U.S.C. § 3001(a); 18 U.S.C. § 1716(a). In anything they mail, they are subject to the laws of defamation for statements which are libelous. McDonald, 472 U.S. 479, 53 U.S.L.W. 4789, 86 L. Ed. 2d 384, 105 S. Ct. 2787.
Defendants face more serious limitations on their ability to present their petitions. Defendants do not enjoy unlimited access to Members' offices: the staff can always exclude them. As with most citizens, their ability to participate in Congressional hearings is circumscribed. See Minnesota Board for Community Colleges, 465 U.S. 271, 104 S. Ct. 1058, 79 L. Ed. 2d 299. They likely cannot parade outside Members' windows with a bullhorn or set up displays in the halls of the office buildings. In short, mail -- and its modern extension, the telephone -- offers perhaps the only way defendants can convey their petitions to Congress. As a result, a prohibitory order under § 3008 would effectively deny defendants' right to petition Congress at all.
Weighing the defendants' constitutional right to petition Congress against the limited right of Members of Congress to be let alone in their offices, we conclude that § 3008 is not a valid basis to prohibit all further mailings to Congress. In balancing these interests we are aware that by curtailing defendants' right to communicate through the mails, § 3008 operates as a prior restraint on defendants' expression of their views to Congress. Any such prior restraint on expression carries a heavy presumption against its constitutional validity. Organization for a Better Austin, 402 U.S. at 419; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 9 L. Ed. 2d 584, 83 S. Ct. 631 (1963). Plaintiff's only justification for the prohibitory orders is that they screen the addressees from offensive mail. This is not enough. As a citizen Larry Flynt may wish to petition Congress on matters quite unrelated to the sexual theme of Hustler magazine. By commanding the Postal Service to prohibit "all further mailings" and thus preventing all petitions to Congress, § 3008 sweeps too broadly.
Even if we put aside the issue of the right to petition and view the prohibitory orders as merely restrictions on speech, a prohibition on "all further mailings" to Congress cannot stand. We recognize that the First Amendment "does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired." Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 647, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981); Adderley v. Florida, 385 U.S. 39, 47-48, 17 L. Ed. 2d 149, 87 S. Ct. 242 (1966). Government may properly limit speech through reasonable time, place and manner restrictions. Clark v. Community for Creative Non-Violence, 104 S. Ct. at 3069; City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S. Ct. 2118, 2130, 80 L. Ed. 2d 772 (1984) (ordinance prohibiting posting signs on public property); Grayned v. City of Rockford, 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972) (antinoise ordinance). To be valid, however, such a restriction must satisfy three criteria: (1) it must be content-neutral; (2) it must serve a significant government interest, and (3) it must leave open ample alternative channels for communication of the information. Heffron, 452 U.S. at 648; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976).
The prohibitory orders required under § 3008 fail all three tests. First, while they would ban all mail by defendants to Congress, the restrictions are rooted in content discrimination. They condemn defendants precisely for the message defendants convey. They are not content-neutral; they are content-oriented. Second, the restrictions serve no governmental interest. Prohibitory orders benefit Members of Congress in their individual capacity, their understandable dislike for Hustler magazine. Their personal predilections are not sufficient justification. There is no evidence that the orders are necessary to prevent either disruption to mail handling or other threats to Members in carrying out their official functions. Third, as we have discussed, interdiction of all mail to Congress does not leave open ample alternative channels of communication, since mail is virtually the only medium defendants can at least somewhat freely use to communicate with Congress.
Although plaintiff apparently recognizes the constitutional infirmity of a ban on all mailings to Congress, see Pl. Reply at 4-5, its attempts to narrow the prohibitory orders also fail the test of constitutionality. In its Complaint, the Postal Service requests an order enjoining defendants from mailing to the Members named in the prohibitory orders "Hustler Magazine, or any other pandering advertisement offering for sale matter believed by any [of the named Members] to be erotically arousing or sexually provocative." In failing to define precisely the contours of the prohibition, the order plaintiff requests would be unconstitutionally vague. See United States v. Cardiff, 344 U.S. 174, 97 L. Ed. 200, 73 S. Ct. 189 (1952) (inspection provision in Federal Food, Drug, and Cosmetic Act too vague to enforce). Defendants would not know which of their mailings might strike a particular Member as "erotically arousing or sexually provocative." Rather than incur a "substantial risk of miscalculation," Rowan, 397 U.S. 728, 740, which here would lead to a charge and conviction for criminal contempt, § 3008(e), defendants might choose to send nothing at all to Congress. In other words, the subjective standard of plaintiff's proposed injunction against "any other pandering advertisement" would discourage defendants from mailing any petition. The Constitution does not sanction such a chilling effect on the exercise of a fundamental constitutional right. See Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637, 63 L. Ed. 2d 73, 100 S. Ct. 826 (1980); First National Bank of Boston v. Bellotti, 435 U.S. 765, 786, 55 L. Ed. 2d 707, 98 S. Ct. 1407 (1978); New York Times v. Sullivan, 376 U.S. at 271-72 ("breathing space"); Baggett v. Bullitt, 377 U.S. 360, 372, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964).
Nor would simply enjoining defendants from mailing only Hustler to Members of Congress salvage the constitutionality of § 3008 as applied to the facts of this case. On a practical level, such an injunction would limit defendants' freedom in petitioning Congress through the mailing of Hustler without offering Congress much protection in return. Although prevented from mailing Hustler, defendants would still be able to send Members of Congress other magazines the Members might find equally offensive. Similarly, in lieu of Hustler itself defendants could simply mail packages containing loose photographs, articles and advertisements. Such easy evasion of the intended aim of the injunction would make any such order by this court a Pyrrhic victory for plaintiff.
Moreover, even with regard to an order confined to Hustler, the interests of Members of Congress still cannot outweigh defendants' First Amendment rights not only to communicate and express their views but also to petition Members of Congress. As we have discussed above, the right to be let alone provides a Member of Congress only limited refuge in the office. Furthermore, receiving Hustler once each month would not unduly burden a Member of Congress. Members are not forced to read the magazine or other of the mail they receive in volume. We cannot imagine that Congressional offices all lack wastebaskets. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S. Ct. 2875, 2883, 77 L. Ed. 2d 469 (1983) ("the 'short, though regular, journey from mail box to trash can . . . is an acceptable burden at least so far as the Constitution is concerned'") (quoting Lamont v. Commissioner of Motor Vehicles, 269 F. Supp. 880, 883 (S.D.N.Y. 1967), aff'd, 386 F.2d 449 (2d Cir. 1967), cert. denied, 391 U.S. 915, 20 L. Ed. 2d 654, 88 S. Ct. 1811 (1968)).
On the other side of the balance, defendants' rights to communicate and to petition lose none of their vitality simply because of the content of their focus.
An order prohibiting defendants from mailing Hustler magazine would nonetheless allow defendants to send any other material. The only distinction between Hustler and permissible mail matter is that certain Members of Congress find Hustler offensive. This is a distinction based on content. Yet "the Government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 95, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972) (striking down ordinance prohibiting non-labor picketing near school). See also Cox v. Louisiana, 379 U.S. 536, 557, 580-81, 13 L. Ed. 2d 471, 85 S. Ct. 453 (1965) (opinion of Black, J.); NAACP v. Button, 371 U.S. 415, 444-45, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963); Terminiello v. Chicago, 337 U.S. 1, 4, 93 L. Ed. 1131, 69 S. Ct. 894 (1949). We can discriminate among types of petitions defendants may wish to present only if the distinction is "tailored to serve a substantial governmental interest." Mosley, 408 U.S. at 99. Plaintiff has shown no substantial governmental interest to justify a ban on Hustler. Shielding individual Senators and Representatives from potential injury to their tastes and aesthetic sensibilities is not enough to support the content-based restriction requested here.
While Members of Congress may not share the views embodied in Hustler, the right to present unwelcome petitions is entitled to no less protection than the right to petition for causes long espoused by the majority. The First Amendment protects controversial as well as conventional dialogue. Whitehill v. Elkins, 389 U.S. 54, 57, 19 L. Ed. 2d 228, 88 S. Ct. 184 (1967); see Organization for a Better Austin, 402 U.S. at 419 ("so long as the means are peaceful, the communication need not meet standards of acceptability"). Unlike solicitations sent to the home, mailings to Congress may contribute, for better or worse, to public dialogue and discussion. An order prohibiting even just the mailing of Hustler to Congress would deny our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . ." New York Times v. Sullivan, 376 U.S. at 270. The expression of diverse views, including those presented in Hustler magazine, furthers vigorous public debate. Balanced against the defendant's First Amendment rights, previously discussed, the asserted right of Members of Congress to be let alone lacks the weight to sustain the constitutionality of § 3008.
Accordingly, we hold that as applied to "addressees" who are Members of Congress, 39 U.S.C. § 3008 is unconstitutional.
We will therefore grant defendants' motion for summary judgment and dismiss plaintiff's complaint for injunctive relief. An order consistent with the foregoing has been entered this day.