The opinion of the court was delivered by: PRATT
JOHN H. PRATT, United States District Judge
This case presents the novel question of whether the statutory prohibition against mailing certain pandering advertisements, 39 U.S.C. § 3008, is constitutional where the "addressee" is a Member of Congress. Defendants wish to mail monthly issues of Hustler magazine to every United States Senator and Representative. Under 39 U.S.C. § 3008, an "addressee" who receives by mail a "pandering advertisement"
may direct the United States Postal Service to prohibit the sender from making "any further mailings" to the addressee. The Supreme Court unanimously upheld the constitutionality of this statute in Rowan v. United States Post Office Department, 397 U.S. 728, 25 L. Ed. 2d 736, 90 S. Ct. 1484 (1970).
Yet this opinion did not specifically consider the situation where, as here, the addressee is not a householder but a Member of Congress, and where the sender seeks to exercise not only his right to communicate but his right to petition the Government.
The facts of this case are not in dispute. On or about September 4, 1983, Larry Flynt, publisher and editor of Hustler magazine, mailed a copy of the then current issue of Hustler to each Member of the United States Congress. The magazines all contained advertising for subscriptions to Hustler. An accompanying letter, signed by Larry Flynt, further described the contents of Hustler as the latest news, sex reviews, political satire, pornography, and in-depth investigative articles. Complaint in Flynt v. USPS, Civil Action No. 84-1986, attached as Ex. A to Defendants' Motion for Summary Judgment, para. 10. The letter also stated that Larry Flynt would continue to send the monthly issue of Hustler so that Members would be "well informed on all social issues and trends." Id.
The beneficiaries of this mailing did not all appreciate Larry Flynt's munificence on their behalf. As of October 29, 1984, approximately two-hundred and sixty-four Members of Congress had complained to the Postal Service. Under 39 U.S.C. § 3008, an addressee receiving "any pandering advertisement which offers for sale matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative" may notify the Postal Service that he has received such mail matter and may request a prohibitory order. § 3008(a)-(b). The Postal Service then issues an order "directing the sender and his agents or assigns to refrain from further mailings to the named addressees." § 3008(b). In response to the Members' notices, the Postal Service issued approximately two-hundred and sixty-four prohibitory orders addressed to Hustler magazine; Larry Flynt, Publisher, Hustler magazine; F.S.C., Inc.; and Hustler Magazine, Inc. Each of these parties was an agent of the others. Stipulation, attached as Exhibit C to Defendants' Motion for Summary Judgment, para. 6.
More than thirty days after receipt of these prohibitory orders, Hustler Magazine, Inc. and F.S.C., Inc. mailed a second issue of Hustler to the Members of Congress named in the orders. Larry Flynt wrote these Members to explain that he would continue to send them Hustler "because I'm exercising my First Amendment rights to express my political and social views to public officials." Flynt Complaint para. 16. When over fifty Members again protested, the Postal Service issued complaints alleging that the prohibitory orders had been violated. See § 3008(d).
Larry Flynt, Hustler Magazine, Inc., and LFP, Inc., d/b/a Larry Flynt Publications, then filed suit in this court, Civil Action No. 83-3062, to obtain both a declaration that the prohibitory orders were invalid and an injunction against their enforcement. On February 2, 1984 we dismissed the action without prejudice for failure to exhaust administrative remedies. On April 30, 1984 a Postal Service hearing officer held that the prohibitory orders had been violated. The Postal Service affirmed this decision on May 22, 1984. Having thus exhausted their administrative remedies, on October 29, 1984 Larry Flynt and his co-plaintiffs refiled their action in this court, Civil Action No. 84-1986. In the meantime, they suspended the Hustler mailings to Congress on the advice of counsel.
On February 13, 1985, the Postal Service brought the present action against Hustler Magazine, Inc.; LFP, Inc.; Larry Flynt Publications; and Larry Flynt. The complaint requested a declaration that defendants had violated the prohibitory orders and an injunction enforcing the orders. Denying Mr. Flynt's motion to consolidate, we dismissed the action brought by Mr. Flynt and invited the plaintiffs in that case to raise their constitutional claims by way of defense in the action brought by the Postal Service.
Both parties have filed dispositive motions, and the case is now ripe for adjudication on the merits.
The key issue before us is whether the word "addressee," as it is used in 39 U.S.C. § 3008, may constitutionally include Members of Congress. Since a Member of Congress who receives mail addressed to him or her fits the customary definition of an "addressee," § 3008 as written clearly applies to the facts of this case. Defendants in fact defend only on the ground that the prohibitory orders violate the First Amendment of the Constitution. Yet, as the Supreme Court held in Rowan v. United States Post Office Department, 397 U.S. 728, 25 L. Ed. 2d 736, 90 S. Ct. 1484 (1970), § 3008 is constitutional on its face. The plaintiff places its chief reliance on Rowan, and at first glance, this decision would seem to expose as frivolous defendants' constitutional defense.
The Supreme Court's general endorsement of § 3008, however, does not necessarily prove the constitutionality of the statute as applied to the present case. In Rowan, the Court specifically balanced "the right of every person 'to be let alone'" against "the right of others to communicate." 397 U.S. at 736. After weighing these two rights, it upheld the statute on the ground that "a mailer's right to communicate must stop at the mailbox of an unreceptive addressee." 397 U.S. at 736-37. Yet in protecting the right of the addressee, the Court, faced with the facts before it, focused on only one type of addressee -- the householder.
A close reading of the opinion reveals the Supreme Court's repeated interpretation of "addressee" as "householder." The first sentence, for example, equates these two terms in summarizing the statute: "a person may require that a mailer remove his name from its mailing lists and stop all future mailings to the householder." 397 U.S. at 729 (emphasis added). The Court's mention of Congress' declared objective to protect "minors and the ...