Constitutionality of Legislation Prohibiting the Mailing of Sexually Oriented Advertisements

Constitutionality of Legislation Prohibiting the
Mailing of Sexually Oriented Advertisements
A draft bill that would prohibit the mailing of photographic sexually oriented advertisements
w ithout the addressee’s prior w ritten consent, and that would create strict criminal liability in
any person who knowingly sends any sexually oriented advertisem ents to minors, regardless
o f w hether the advertisements are photographic or not, would likely be held unconstitutional
by the courts. The provisions in the draft bill are more extensive than necessary to support the
interests asserted by the governm ent, and thus would be held inconsistent with protections
accorded com m ercial speech under the First Amendment.
August 9, 1984
M em orandum O p in io n for th e A s s is t a n t A ttorney G eneral,
O f f ic e of L e g is l a t iv e and I n t e r g o v e r n m e n t a l A f f a ir s
This responds to your memorandum seeking the views of this Office regard­
ing the constitutionality of a draft bill, proposed by the Criminal Division, to
restrict the mailing of photographic sexually oriented advertisements, “The
Sexually Oriented Advertisements Amendments Act of 1984.” The bill would
amend § 3010 of title 39, the so-called Goldwater Amendment to the Postal
Reorganization Act of 1970, Pub. L. No. 91-375, 39 U.S.C. §§ 101 et seq., to
create a subcategory of sexually oriented advertisements — the general cat­
egory of sexually oriented advertisements is presently addressed by § 3010 —
known as photographic sexually oriented advertisements. The bill would pro­
hibit the mailing of such materials to any individual without his or her prior
written consent. Section 1735 of Title 18 would be amended to provide a fine of
“not more than $5,000 or imprison[ment of] not more than one year, or both” to
willful violators of this provision. In addition, the bill would create strict
criminal liability in any person who knowingly sends advertisements, photo­
graphic or otherwise, of a sexually oriented character to persons who are under
the age of 18. The penalty for violation of this provision under the proposed
amendments to 18 U.S.C. § 1735 would be a fine in an amount “not less than
$50,000, nor more than $100,000.” As amended, § 1735 would provide as an
affirmative defense to prosecution for mailing sexually oriented ads to minors
“that the minor solicited the mailing from the defendant, and that the defendant
believed and had substantial reason to believe that the minor was eighteen
years or older.”
We believe that this proposed draft bill raises serious constitutional concerns
when considered in light of recent decisions of the Supreme Court and lower
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courts dealing with the government’s authority to regulate sexually offensive
commercial speech. These concerns arise primarily out of the bill’s failure to
strike what we believe the courts would find to be a constitutionally acceptable
balance between the mailer’s “right to use the mails [which] is undoubtedly
protected by the First Amendment,” Bolger v. Youngs Drug Products Corp.,
463 U.S. 60, 76 (1983) (Rehnquist, J. concurring) (citing Blount v. Rizzi, 400
U.S. 410 (1971)), and the individual’s “right not to be assaulted by uninvited
and offensive sights and sounds” “in the privacy of the home,” Bolger, 463
U.S. at 77 (citing FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978)).
Although the courts have recognized that the government clearly may act
properly to protect people from unreasonable intrusions into their homes, we
are persuaded that the protections currently provided by 39 U.S.C. § 3010 to
unwilling recipients of unsolicited advertisements constitute the outer limits of
the courts’ willingness to uphold governmental prohibitions of commercial
speech via the mails, of an offensive, though not “obscene,”1 nature, absent a
more substantial government interest than has been articulated by the Criminal
Division.
Similarly, with regard to the draft bill’s provisions concerning minors,
although the courts have recognized, in certain circumstances, a “compelling”
governmental interest in ‘“ safeguarding the physical and psychological well­
being of . . . minor[s]’” from participating in the production of non-obscene
sexually offensive materials, New York v. Ferber, 458 U.S. 747, 757 (1982)
(upholding criminal statute prohibiting the knowing promotion of child por­
nography by distributing materials depicting such) (quoting Globe Newspaper
Co. v. Superior Court, 457 U.S. 596, 607 (1982)), the values protected by the
First Amendment are generally no less applicable to protected materials merely
because the government seeks to control the flow of information to minors. See
Erznoznik v. City o f Jacksonville, 422 U.S. 205, 212-13 (1975). See also
Bolger v. Youngs Drugs Products, Inc., 463 U.S. at 74 n.30 (Rehnquist, J.
concurring). Although we recognize that the government has a strong interest
in flatly prohibiting the mailing of sexually oriented advertisements, whether
photographic or not, to minors, we have serious reservations regarding the
ability of the draft bill’s proposed strict liability for such distribution to
withstand constitutional scrutiny in the courts. We believe that the courts,
applying existing Supreme Court precedent, would find that the restrictions
contained in the draft bill are more extensive than is necessary to support the
1 The prevailing guidelines for determ ining obscenity, w hich is not protected by the First Am endm ent, were
announced in M iller v. California , 413 U.S 15 (1973):
(a) w hether “the average person, applying contem porary com m unity standards" would find
that the work, taken as a whole, appeals to the p ru n en t interest; (b) w hether the w ork depicts or
describes, in a patently offensive way, sexual conduct specifically defined by the applicable state
law ; and (c) w hether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value.
Id at 24 (citations om itted). We understand that the term “sexually oriented advertisem ents," as defined in 39
U S.C. § 3010, is not intended by the drafters to include obscene m atenals within the m eaning o f Miller. For
the purposes o f the discussion in this memorandum, therefore, we will assume that there is a distinction
betw een obscene m aterials and “ sexually oriented advertisements.*'
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government’s asserted interest, in view of the adequacy of existing statutory
provisions and regulations by which minors may be protected, the substantial
burden which would be imposed upon mailers to determine the minority status
of potential addressees, and the broad “prior restraining” effect that such an
amendment would exert, in practice, on mailers with respect to material en­
titled to some protection under the First Amendment.
I. Existtinng Law
At present, 39 U.S.C. § 3010 permits any unwilling recipient of sexually
oriented advertisements
on his own behalf or on the behalf of any of his children who has
not attained the age of 19 years and who resides with him or is
under his care, custody, or supervision, [to] file with the Postal
Service a statement, in such form and manner as the Postal
Service may prescribe, that he desires to receive no sexually
oriented advertisements through the mails. The Postal Service
shall maintain and keep current, insofar as practicable, a list of
the names and addresses of such persons and shall make the list
(including portions thereof or changes therein) available to any
person, upon such reasonable terms and conditions as it may
prescribe, including the payment of such service charge as it
determines to be necessary to defray the cost of compiling and
maintaining the list and making it available as provided in this
sentence. No person shall mail or cause to be mailed any sexu­
ally oriented advertisement to any individual whose name and
address has been on the list for more than 30 days.
Id. § 3010(b).2 In addition, subsection (a) requires any person who mails
sexually oriented advertisements to “place on the envelope or cover thereof his
name and address as the sender thereof and such mark or notice as the Postal
Service may prescribe.” Postal Service regulations require, in part, that mailers
of such materials place the legend “Sexually Oriented Ad” clearly on the front
of the exterior envelope bearing such materials above the addressee’s name; or,
“if the contents of the mail piece are enclosed in a sealed envelope or cover,
inside the exterior envelope or cover, [the mailer may place] conspicuously the
words ‘Sexually Oriented Ad’” on that inside cover. U.S. Postal Service,
Domestic M ail M anual § 123.55(a) (incorporated by reference in 39 C.F.R.
§ 111.1 (1983)).
2 39 U .S .C . § 3010(d) defines “sexually oriented advertisem ent” as
any ad vertisem ent that depicts, in actual o r sim ulated form, o r explicitly describes, in a
p redom inantly sexual context, hum an genitalia, any act o f natural or unnatural sexual inter­
co u rse, any act o f sadism or m asochism , o r any o th er erotic subject directly related to the
foregoing. M aterial otherw ise w ithin the definition o f this subsection shall be deem ed not to
co n stitu te a sexually oriented advertisem ent if it constitutes only a sm all and insignificant part of
th e w hole o f a single catalog, book, periodical, o r o th er work the rem ainder o f which is not
p rim arily devoted to sexual matters.
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Section 3011 provides the civil enforcement mechanism for violations of
§ 3010 and regulations duly promulgated thereunder by the Postal Service.
Under this provision, the Postal Service may request the Attorney General to
file a civil action on its behalf, seeking injunctive relief,3 against any person
whom the Postal Service believes “is mailing or causing to be mailed any
sexually oriented advertisement in violation of [§ 3010].”
Criminal penalties for violations of 39 U.S.C. § 3010 are found at 18 U.S.C.
§§ 1735 and 1737. Section 1735 provides a fine of “not more than $5,000 or
imprison[ment of] not more than five years, or both, for the first offense and.. .
not more than $10,000 or imprisonment of] not more than ten years, or both,
for any second or subsequent” violation of 39 U.S.C. § 3010. Section 1737
provides the same penalties for “print[ing], reproducing], or manufacturing]
any sexually related mail matter, intending or knowing that such matter will be
deposited for mailing . . . in violation of [39 U.S.C. § 3010].”4
LI. The Constitutionality of the Proposed Amendments
A. The Requirement o f Prior Written Consent
As noted above, the draft bill seeks to prohibit the mailing of any photo­
graphic sexually oriented advertisement without the recipient’s prior written
consent5 The draft bill defines “photographic sexually oriented advertisement” as
any sexually oriented advertisement, as defined in [39 U.S.C.
§ 3010(d)] consisting in whole or in part of photographs, unless
the photographic material constitutes only a small and insignifi­
cant part of the whole advertisement.
The draft bill identifies a subcategory of sexually oriented advertisements
which the drafters have determined to be “most offensive and intrusive”
photographic materials and, regarding this subcategory of advertisements, the
3 Although § 3 0 1 1(a) provides for several kinds o f injunctive relief, a three-judge panel o f the U.S. District
Court for the Central D istrict o f C alifornia held that the only constitutionally acceptable injunctive relief
provided under § 3011(a) w as that enjoining the defendant from m ailing any sexually oriented advertise­
ments to persons whose nam es are on the Postal Service list. See United States v. Treatment, 408 F. Supp. 944(C.D. Cal. 1976). Notably, the court refused to construe the injunctive rem edies set out in § 3011(a)
constitutionally to enjoin m ailing ads to persons who have not acted affirm atively either to put their nam es on
the list or to request the advertising. See id. at 954.
4 In addition to the provisions o f §§ 3010 and 3011, unw illing recipients o f “offensive” advertisem ents may
avail them selves o f the protective m easures provided in 39 U.S.C. § 3008. Section 3008 prohibits “pandering
advertisem ent[s] which offer[] for sale m atter which the addressee in his sole discretion believes to be
erotically arousing or sexually provocative.” This provision authorizes the recipient, upon receipt o f such
matter, to request the Postal Service to issue an order to the sender directing the sender “to refrain from
further m ailings to the nam ed addressee” and “to delete im m ediately the nam es o f the designated addressees
from all mailing lists ow ned o r controlled by the se n d e r. . . [and to refrain] from the sale, rental, exchange o r
other transaction involving m ailing lists bearing the nam es o f the designated addressees.” This order is
enforceable through various adm inistrative and judicial procedures.
5 As the penalty provisions o f the d raft bill are prim arily matters fo r policy consideration, on which we
defer to the C rim inal D ivision, we will confine our com m ents to the substantive portions o f the draft bill and,
as you have requested, only to those aspects which raise constitutional issues.
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bill imposes an affirmative duty upon those who desire to receive such materi­
als to provide the mailer with their prior written consent.6 Thus, regarding this
subcategory of advertisements, the draft bill goes considerably beyond the
current requirement of § 3010 that the Postal Service maintain a list of persons
desiring not to receive sexually oriented advertisements, and that mailers not
send such materials to persons whose names have been on the list for more than
30 days. In effect, existing law requires unwilling recipients of unsolicited
sexually oriented advertisements to “opt out” of the category of potential
recipients of such materials; the draft bill would maintain this requirement, but
regarding the subcategory of photographic sexually oriented ads, willing re­
cipients would be required to “opt in” to the category of potential recipients.
The prevailing test for determining whether restrictions on commercial
speech in any particular context are consistent with the First Amendment
protections to which such speech is entitled was recently reiterated by the
Supreme Court in Bolger v. Youngs Drug Products Corp.:
“The protection available for particular commercial expression
turns on the nature both of the expression and of the governmen­
tal interests served by its regulation.” Central Hudson Gas &
Electric Corp. v. Public Service Com m ’n, 447 U.S. [557,] 563
[1980]. In Central Hudson we adopted a four-part analysis for
assessing the validity of restrictions on commercial speech.
First, we determine whether the expression is constitutionally
protected. For commercial speech to receive such protection, “it
at least must concern lawful activity and not be misleading.” Id.
at 566. Second, we ask whether the governmental interest is
substantial. If so, we must then determine whether the regula­
tion directly advances the government interest asserted, and
whether it is not more extensive than necessary to serve that
interest. Ibid.
463 U.S. at 68-69.
Applying this analysis to photographic sexually oriented advertisements, we
conclude first that such expressions are constitutionally protected. Unlike
obscene materials, which are not entitled to First Amendment protections, see
6 A lthough the determ ination that photographic sexually oriented advertisem ents are more “offensive" and
“ intru siv e1’ than o th er sexually oriented m aterials may, in som e circum stances, be an appropriate legislative
jud g m en t, w e believe that the factual bases outlined in the C rim inal Division m emorandum for such a
determ ination w ould, as a legal matter, b e insufficient for the courts to sustain such a distinction for purposes
o f F irst A m endm ent analysis. See Bolger v. Youngs Drug Products Corp., supra.H ow ever, even w ere “offensiveness” a perm issible factor upon which the suppression o f protected speech
could be based — a proposition recently invalidated in Bolger v. Youngs Drug Products Corp., 463 U.S. at7 1 -7 2 — a potentially m ore constitutionally defensible approach to dividing sexually oriented advertise­
m ents into m ore and less “offensive” categ o ries w ould be to differentiate betw een pictorial materials and
textual m aterials, rather than the approach taken in the draft bill. In attem pting to distinguish, within the
pictorial category, photographs, from graphics, cartoons, w oodcuts and other pictorial media, as the most
“offen siv e” and therefore the least p rotected category o f sexually oriented ads, the draft bill may very well be
constitu tio n ally infirm as both overinclusive and underinclusive.
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M iller v. California, 413 U.S. 15 (1973), sexually oriented advertisements
constitute protected speech, assuming that the particular ads are neither false
nor misleading, nor relate to unlawful activity.
The second prong of the Bolger test inquires into the substantiality of the
government’s interest in seeking to prohibit the mailing of photographic sexu­
ally oriented materials to all but those who have requested such materials in
writing. The government’s interest in prohibiting the mailings identified in the
draft bill are similar, we believe,7 to those advanced by the government, but
held insufficient to justify the prohibition on mailing unsolicited contraceptive
ads, in Bolger v. Youngs Drug Products Corp.6 In Bolger, the government
based its argument on its interest in (1) shielding recipients of mail from
materials that they are likely to find offensive; and (2) aiding parents’ efforts to
control the manner in which their children become informed about sensitive
subjects such as birth control. See 468 U.S. at 71.
In striking down the prohibition on unsolicited mailings of contraceptive
advertisements as an unconstitutional restriction on commercial speech, the
Court dismissed the government’s interest in shielding recipients from unsolic­
ited offensive materials as “carr[ying] little weight.” Id. The Court reiterated its
conclusion in Carey v. Population Services International, 431 U.S. 678, 701
(1977), that offensiveness is
classically not a justification validating the suppression of ex­
pression protected by the First Amendment. At least where
obscenity is not involved, we have consistently held that the fa ct
that protected speech may be offensive to some does not justify
its suppression.
463 U.S. at 71 (emphasis added).
In response to the government’s argument that the statute was intended to
prohibit the mailing of such unwanted materials into the home, the Court cited
its recognition in Rowan v. Post Office Department, 397 U.S. 728 (1970), of
unwilling recipients’ rights, under the “pandering advertisements” law, 39
U.S.C. § 3008, see supra note 4, to give notice to a mailer that they wish no
further mailings which they believe to be “erotically arousing or sexually
provocative.” The Court then stated:
But we have never held that the government itself can shut off
the flow of mailings to protect those recipients who might
7 As best w e are able to determ ine from the C rim inal Division mem orandum accom panying the draft bill,
the governm ent's interests underlying this proposal are as follows: (1) to identify a sub-category o f “the most
offensive and intrusive” sexually oriented ads; and (2) to protect “ [t]he great majority o f A m erican people,
w ho may not even know that they can put their nam es on a Postal Service list to avoid receiving such m ail,”
from such offensive material.
8The statute at issue in Bolger was 39 U.S.C. § 3001(e)(2), w hich provided in pertinent part:
A ny unsolicited advertisem ent o f matter w hich is designed, adapted, o r intended for preventing
conception is nonm ailable m atter, shall not be carried or delivered by m ail, and shall be disposed
o f as the Postal Service directs unless the advertisem ent —
(A) is m ailed to a m anufacturer o f such matter, a dealer, therein, a licensed physician or
surgeon, or a nurse, pharm acist, druggist, hospital, or clinic.
165
potentially be offended. The First Amendment “does not permit
the government to prohibit speech as intrusive unless the ‘cap­
tive’ audience cannot avoid objectionable speech.” Consoli­
dated Edison Co. v. Public Service C omm’n , 447 U.S. [530,]
542 [(1980)]. Recipients of objectionable mailings, however,
may ‘“ effectively avoid further bombardment of their sensibili­
ties simply by averting their eyes.’” Ibid., quoting Cohen v.
California, 403 U.S. 15, 21 (1971). Consequently, the “short,
though regular, joumey from mail box to trash can . . . is an
acceptable burden, at least so far as the Constitution is con­
cerned.” Lamont v. Commissioner o f M otor Vehicles, 269 F.
Supp. 880, 883 (S.D.N.Y.), a ffd , 386 F.2d 449 (2d Cir. 1967),
cert, denied, 391 U.S. 915 (1968).
463 U.S at 72. Justice Rehnquist reiterated these views in his concurring
opinion in Bolger, id. at 78:
[T]he recipient of [unsolicited] advertising “may escape expo­
sure to objectionable material simply by transferring [it] from
envelope to wastebasket.” [Consolidated Edison Co. v. Public
Service Comm ’n, 447 U.S. 530,542 (1980)]. Therefore a mailed
advertisement is significantly less intrusive than the daytime
broadcast at issue in [FCC v.] Pacifica Foundation, 438 U.S.
726 (1978) . . . . Where the recipients can “ ‘effectively avoid
further bombardment o f their sensibilities simply by averting
their eyes,” ’ [Consolidated Edison , 447 U.S. at 542, quoting
Cohen v. California, 403 U.S. 15, 21 (1971)], a more substantial
government interest is necessary to justify restrictions on speech.
Thus, while we recognize that the government’s interest in shielding unwilling
recipients of “offensive” photographs of sexual objects or activities may be
stronger than that associated with the contraceptive advertisements at issue in
Bolger, the Bolger Court made clear that “offensiveness” is not a sufficient
justification for restricting protected speech. The mere fact that the legislature
may determine that one form or medium of protected speech is more offensive
than another form of such speech would not entitle that speech to any less
protection under the First Amendment. Moreover, we believe that as a general
matter, the courts will not distinguish between various media through which
protected speech is conveyed, for purposes of First Amendment analysis,
absent a compelling reason to do so (e.g., the broadcast media, which is
“uniquely persuasive” and “uniquely accessible to children, even those too
young to read,” FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978)). We
know of no compelling reason cognizable by the courts which would support
the Criminal Division’s proffered distinction between the advertisements in
Bolger as “pamphlets containing ‘truthful information relevant to important
social issues’” (citing 463 U.S. at 69) and the photographic sexually oriented
materials to which the bill is addressed.
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The second interest asserted by the government in Bolger, a variation of
which is also cited in the Criminal Division’s memorandum accompanying the
draft bill, was the government’s interest in aiding parents in controlling the
flow of information to their children regarding birth control. Although the
Court found that this interest met the requirement that the government’s
interest be “substantial” in order to restrict commercial speech, 463 U.S. at 73,
the Court held that prohibiting the unsolicited mailings of contraceptive adver­
tisements, “as a means of effectuating this interest . .. fail[ed] to withstand
scrutiny.” Id. The government’s interest in assisting parents to protect their
children from exposure to unsolicited photographic sexually oriented adver­
tisements is, we believe, similarly substantial.
In addition to meeting the “substantial governmental interest” prong of the
Bolger test for restricting commercial speech, the draft bill, in order to with­
stand constitutional scrutiny, also must be shown to directly advance the
government’s interest and to be no more extensive than necessary to serve that
interest. Although the draft bill appears to meet the third requirement under the
Bolger test of directly advancing this government interest, we must conclude
that it fails the fourth requirement of the Bolger test, i.e., that it not be more
extensive than necessary to serve that interest.
As noted above, although the Bolger court recognized the “substantiality” of
the government’s interest in protecting children from exposure to such materi­
als, it dismissed the government’s means of effecting this interest as “fail[ing]
to withstand constitutional scrutiny.” Id. at 73’. In support of its conclusion, the
Court noted that, in view of existing alternative means available for shielding
children and other unwilling recipients from such materials, the regulation
“provided only the most limited incremental support for the interest asserted.”
Id.9 The Court’s opinion, as well as Justice Rehnquist’s concurring opinion,
identified several means by which unwilling recipients could avoid the objec­
tionable mailings. Each of these means may be utilized by parents seeking to
protect their children from mailings containing the photographic sexually
oriented advertisements sought to be restricted by the draft bill.
First, an individual who does not desire to receive commercial mailings
which he, “in his sole discretion believes to be erotically arousing or sexually
provocative” pursuant to 39 U.S.C. § 3008, may request the Postal Service, on
his own behalf or that of his minor children under 19 years of age who reside
with him, to issue an order to the mailer to refrain from further mailings to his
address, and to delete his name “from all mailing lists owned or controlled by
the sender .. . . ” The restrictions contained in § 3008 were upheld by the
Supreme Court in Rowan v. Post Office Department, 397 U.S. 728 (1970), as
consistent with the First Amendment. The Court stated: “Weighing the highly
9 The Court also noted that the regulation was “defective because it denies to parents truthful inform ation
bearing on their ability to discuss birth control and to m ake informed decisions in this area.” Id. a t 74. The
C ourt concluded that “the restriction o f "the free flow o f truthful inform ation’ constitutes a ‘basic’ constitu­
tional defect regardless o f the strength o f the governm ent's interest.” Id. at 75 (quoting Linmark Associates,
Inc. v. Willingboro , 431 U.S. 85, 9 5 -9 6 (1977)).
167
important right to communicate . .. against the very basic right to be free from
sights, sounds, and tangible matter we do not want, it seems to us that a mailer’s
right to communicate must stop at the mailbox of an unreceptive addressee.”
Id. at 737.
The second means by which a parent may insulate himself and his children
from offensive mailings is by exercising his right under § 3010 to notify the
Postal Service to add his family members’ names to the list which the Postal
Service is required to maintain o f individuals who desire to receive no sexually
oriented advertisements through the mails. Section 3010 prohibits mailers of
such materials from sending mail to individuals whose names are on the list,
under threat of civil and criminal penalties. Under the procedures outlined in
both §§ 3008 and 3010, “individuals are able to avoid the information in advertise­
ments after one exposure.” Bolger, 463 U.S. at 78 (Rehnquist, J. concurring).
The third and fourth mechanisms available to parents to protect the sensibili­
ties of themselves and their children from offensive material, should they not
utilize the protective measures outlined in §§ 3008 and 3010, require the parent
to recognize the nature of the material, either prior to opening or after, and take
the ‘“ short, though regular, journey from mailbox to trash can . . . . ”’ Bolger,
463 U.S. at 72 (quoting Lamont v. Commissioner o f Motor Vehicles, 269 F.
Supp. 880, 883 (S.D.N.Y.), a f f d , 386 F.2d 449 (2d Cir. 1967), cert, denied,
391 U.S. 915 (1968)). Because the recipients of such advertisements ‘“ may
escape exposure to objectionable material simply by transferring [it] from
envelope to wastebasket,’” Justice Rehnquist concluded in his concurring
opinion that mailed advertisements are “significantly less intrusive than the
daytime broadcast at issue in [FCC v.] Pacifica [Foundation, 438 U.S. 726(1978)].” 463 U.S. at 78 (quoting Consolidated Edison Co. v. Public Service
C om m ’n, 447 U.S. 530, 542 (1980)).
As noted above, Postal Service regulations require mailers of sexually
oriented advertisements to mark clearly either the outer envelope or the exte­
rior of an inner sealed envelope with the legend, “Sexually Oriented Ad,” so
that recipients may be put on notice that the mail’s contents may be offensive,
prior to opening. The fact that an over-zealous mail opener fails to heed the
notice describing the mail’s content, and subsequently is offended, is insuffi­
cient to burden the mailer’s right to send his message through the mails. In
short, “[w]here the recipients can ‘effectively avoid further bombardment of
their sensibilities simply by averting their eyes’ . . . a more substantial govern­
ment interest is necessary to justify restrictions on speech.” 463 U.S. at 78(Rehnquist, J., concunring) (quoting Cohen v. California, 403 U.S. 15, 21 (1971)).
Regarding children’s access to the mail, the Bolger Court, noting that it is
“reasonably to] assume that parents already exercise substantial control over
the disposition of mail once it enters their mailboxes,” stated that to the extent
that parents lose such control but nevertheless desire to protect their children
from exposure to such mailings, protection could be achieved by “purging all
mailboxes of unsolicited material that is entirely suitable for adults.” 463 U.S
at 73. The Court stated:
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We have previously made clear that a restriction of this scope is
more extensive than the Constitution permits, for the govern­
ment may not “reduce the adult population . . . to reading only
what is fit for children.” Butler v. Michigan, 352 U.S. 380, 383
(1957). The level of discourse reaching a mailbox simply cannot
be limited to that which would be suitable for a sandbox.
Id. at 73-74. See also 463 U.S. at 79 (Rehnquist, J., concurring) (noting that the
regulation at issue in Bolger is “broader than is necessary because it completely
bans from the mail unsolicited materials that are suitable for adults”). Indeed,
Justice Rehnquist found the “[n]arrower restrictions, such as the provisions of
39 U.S.C. § 3008 . . . to be fully [capable of] serv[ing] the Government’s
interests.” Id .10
For these reasons, we believe that the draft bill’s prohibition on mailing
photographic sexually oriented materials except to those persons who have
consented in writing to receiving such materials, while implicating a substan­
tial government interest, falls far short of the constitutional requirement that
the regulation be no more extensive than necessary to serve that interest.11
Our conclusion is strongly supported by the Supreme Court’s decision in
Lamont v. Postmaster General, 381 U.S. 301 (1965), striking down an act
requiring the Postmaster General to detain and deliver only upon the addressee’s
request unsealed foreign mailings of “communist political propaganda” as an
unconstitutional limitation of an addressee’s rights under the First Amend­
ment. The Court stated that to require “the addressee[,] in order to receive his
mail[,] to request in writing that it be delivered . . . amounts in our judgment to
an unconstitutional abridgment of the addressee’s First Amendment rights. The
addressee carries an affirmative obligation which we do not think the Govern­
ment may impose upon him.” Id. at 307.12
10 The C rim inal Division has argued that, unlike the contraceptive m aterials in Bolger, the subcategory of
photographic sexually oriented advertisem ents is “ uniquely pervasive” or “ uniquely accessible to children,
even those too young to read,” as was the offensive m id-afternoon broadcast in FCC v. Pacifica , 438 U.S.
726, 748 (1978) (emphasis added). H ow ever, we believe that the force o f such an argum ent is severely
underm ined by the C ourt’s recognition in Bolger, w ithout regard to the content o f the mails, that “ [t]he
receipt o f mail is far less intrusive and uncontrollable [than the broadcast media;] . . the special interest of
the federal governm ent in regulation o f the broadcast m edia does not readily translate into a justification for
regulation o f other m eans o f com m unication ” 463 U.S at 74 Justice Rehnquist, in his concurring opinion,
sim ilarly rejected the proffered analogy betw een the broadcast media and the mails Id. at 78-79.
11 The argum ent that the burden imposed by the restriction could be mitigated by the m ailer conducting a
“pre-m ailing" to determ ine which potential addressees would be w illing recipients of the m aterials, was
soundly rejected by Justice Rehnquist in his concurring opinion in Bolger:
[The pre-m ailing argument] fall[s] w ide o f the mark. A prohibition on the use o f the mails is a
significant restnction o f First A m endm ent n ghts. W e have noted that “[t]he U nited States may
give up the Post O ffice when it sees fit, but while it c am es it on the use o f the m ails is almost as
much a part o f free speech as the right to use our tongues . . . ” Blount v. Rizzi, 400 U.S 410.
And First Amendment freedom s w ould be o f little value if speakers had to obtain perm ission of
their audiences before advancing particular view points.
463 U.S. at 7 9 -8 0 (citations om itted).
*2See also 381 U.S at 309 (Brennan, J. concurring) (citations om itted):
(T]he Governm ent argues that, since an addressee taking the trouble to return the card can
Continued
169
Consistent with the Supreme Court’s decision in Lamont is an opinion by a
three-judge court in California, United States v. Treatment , 408 F. Supp. 944(C.D. Cal. 1976), holding that enjoining a mailer from sending sexually ori­
ented advertisements to anyone who has not affirmatively requested the mate­
rial as a remedy under 39 U.S.C. § 3011 would be unconstitutional. In reaching
this conclusion, the court observed that the mailer’s right to communicate and
the addressee’s right to receive the mailing “are of such importance that the
government has a very great burden to show a compelling interest for their
curtailment.” 408 F. Supp. 954. The court stated:
The mailer’s “right to communicate” as recognized in Rowan [v.
Post Office Department, 397 U.S. 728 (1970)], is not overcome
in this context because the addressees have not asserted a
countervailing right of privacy. As to an addressee’s right to
receive a mailing, we do not think it can constitutionally be
conditioned upon the requirement that the addressee request the
material in advance. We believe this follows from Lamont [v.
Postmaster General, 381 U.S. 301 (1965)] . . . .
It is suggested that the statutory authorization of injunction
against mailing to persons who have taken no affirmative action
of their own should be validated on an agency theory. This
theory is that the government may assert, as their agent, the right
of privacy of those persons who have not affirmatively asked for
the material. The asserted agency arises from the government’s
belief that sexually oriented material would be offensive to all
recipients except those who have specifically asked for it and
the government is merely asserting their right not to receive it.
We reject the suggestion. As we read the decisions of the Su­
preme Court in the First Amendment area, the government has
no right to substitute its judgm ent fo r the judgm ent o f the indi­
vidual in deciding what materials he shall receive through the
mails. Such censorship cannot be exercised for the individual as
purported agent, as parens patriae or otherwise . . . . And when
the government can prohibit the people from receiving material
through the mail which the government thinks should not be
sent, and which the recipients have not asked to be protected
from, the entire concept of free speech and free communication
is dealt a devastating blow.
12 (. . . continued)
receive the publication nam ed in it, o n ly inconvenience and not an abridgm ent is involved. But
in h ib itio n as well as prohibition a g ain st the exercise o f precious First A mendment rights is a
p o w er d enied to g o v e rn m e n t. . . . M oreover, the addressee’s failure to return this form results in
n o ndelivery not only o f the particular publication but also o f all sim ilar publications o r material.
T hus, although the addressee may be content not to receive the particular publication, and hence
does not retu rn the card, th e consequence is a denial o f access to like publications which he may
d esire to receive. In any event, we c an n o t sustain an intrusion on First Amendm ent rights on the
g round that the intrusion is only a m in o r one.
170
Id. (emphasis added). The court concluded that such an affirmative require­
ment, similar to that contained in the draft bill, goes beyond what is necessary
to afford a person whose name is not on the Postal Service list an opportunity to
protect himself and his family from being forced to view offensive material
when it reaches his mailbox. The court noted that Postal Service regulations
promulgated pursuant to § 3010 require sexually oriented advertisements to be
conspicuously so labeled, so that the person “who does not wish to see the
material is forewarned and may chuck it in the wastebasket unopened,” id. at
955, and that “once having received a single piece of sexually oriented adver­
tising, he may have his name placed on the Postal Service list and be protected
forever from receiving such material from the original or any other mailer.” Id.
B. Strict Liability fo r Mailing Sexually Oriented Ads to Minors
The draft bill also would impose a strict criminal liability upon those who
mail any sexually oriented advertisements, whether or not of a photographic
nature, to persons under the age of 18. An affirmative defense is provided if the
minor solicited the mailing from the defendant and the defendant had substan­
tial reason to believe that the minor was 18 years of age or older. The commen­
tary accompanying the draft bill asserts an “undeniable government interest” in
preventing the mailing of such matter directly to children.
As we noted above, the government interest in safeguarding the physical and
psychological well-being of minors has been recognized by the courts as
substantial. See generally Bolger v. Youngs Drug Products Corp., supra.However, the decisions cited by the Criminal Division as support for the
absolute prohibition on mailing to minors are inapposite. In Ferber v. United
States, 458 U.S. 747 (1982), the Court upheld a criminal statute prohibiting the
knowing promotion and distribution of child pornography, expressing a con­
cern for the damage sustained by children who are used as subjects of porno­
graphic materials to their physiological, emotional and mental health. The
Ferber Court viewed the restrictions on the dissemination of materials depict­
ing child pornography as a means of facilitating the enforcement of existing
laws prohibiting the employment of children for pornographic purposes, and
justified by the need to eradicate child pornography, illegal conduct in the State
of New York. The case did not involve a restriction on mailing or distribution
to minors alone. The Criminal Division’s reliance upon FCC v. Pacifica
Foundation, 438 U.S. 726, 748 (1978), is similarly misguided. The Pacifica
Court upheld the Commission’s determination that a monologue broadcast in mid-
afternoon was “indecent” and therefore prohibited by the Communications Act,
because of the “uniquely pervasive presence [of the broadcast media] in the lives of
all Americans” and its unique accessibility to children. However, the Bolger Court
dismissed the holding of Pacifica as inapplicable to unsolicited mailings, holding
that “[t]he receipt of mail is far less intrusive and uncontrollable.” 463 U.S. at 74.13
13 The C ourt stated:
O ur decisions have recognized that the special interest o f the federal governm ent in regulation of
Continued
171
See also id. at 78 (Rehnquist, J., concurring) (noting that mailed advertisements
are “less intrusive than the daytime broadcast at issue in Pacifica, . . . [and,
therefore,] a more substantial government interest is necessary to justify re­
strictions on speech”).
Thus, recognizing that the government’s interest in shielding minors from
exposure to sexually oriented ads is a substantial one, we must determine,
applying the Bolger test, whether the absolute restriction on the mailing of such
materials to minors directly advances the government interest and whether it is
not more extensive than necessary to serve that interest. See 463 U.S. at 69.
Although we acknowledge that the strict liability provision for mailings to
minors directly advances the government’s interest in shielding minors from
such materials, we strongly believe that a court passing upon the constitutional­
ity of the restriction would find it far more extensive than necessary to serve the
government’s interest. First, the existing provisions for protecting unwilling
recipients from such mailings found at 39 U.S.C. §§ 3008 and 3010, when
combined with appropriate parental supervision of children and of the mailbox,
are sufficient, we believe, for the reasons stated in Bolger, to serve the
government’s asserted interest. See Bolger v. Youngs Drug Products Corp.,
463 U.S. at 79 (Rehnquist, I., concurring). As discussed above, these statutes
provide the minor addressee and his or her parents with a variety of measures
by which they may effectively avoid exposure to objectionable materials, e.g.,
placing the minor’s name on the Postal Service list to preclude receipt of such
materials, or, upon receipt, observing the warnings which Postal Service regu­
lations require to be placed on such materials.
Moreover, much of the material that is embraced by this amendment, the
general category of sexually oriented ads described in § 3010(d), may very
well be materials similar to the ads at issue in Bolger, or other sexually oriented
materials that are equally prevalent among youths in our society today. Regard­
ing such materials, the Bolger court observed that “parents must already cope
with the multitude of external stimuli that color their children’s perception of
sensitive subjects,” and found that an outright prohibition on such materials
achieved only a “marginal degree of protection.” 463 U.S. at 73.14 In such
circumstances, the Court held, an outright restriction is “more extensive than
the Constitution permits.” Id.Although the Bolger opinion did not address an outright restriction on
unsolicited mailings which is limited to minors, we believe that because of the
13 (— continued)
the b ro ad cast m edia does not readily translate into a ju stification for regulation o f other m eans o f
com m unication. See Consolidated Edison Co. v. Public Service Comm’n 447 U.S. at 542-543;
FCC v. Pacifica Foundation , 438 U .S . at 748 (broadcasting has received the most lim ited First
A m endm ent protection).
Id. (footnote om itted).
14 T he C ourt explained:
U nder [to d ay ’s] circumstances, a b a n on unsolicited advertisem ents serves only to assist those
parents w ho desire to keep their ch ild ren from confronting such mailings, who are otherw ise
unable to d o so, and whose children have rem ained relatively free from such stimuli.
463 U .S. at 73.
172
near impossibility of mailers being able to determine the ages of potential
recipients — without conducting a verifiable “pre-mailing” survey of the
addressees — the practical effect of the restriction’s limitation to minors is
virtually nonexistent. In other words, the mailer, in order to avoid the strict
liability imposed by the statute, must: (1) send his ads only to those who
affirmatively request them and attest to being at least 18 years of age, and
whom the mailer has substantial reason to believe are 18 years of age or older;
(2) conduct a “pre-mailing” survey to determine the ages of potential recipi­
ents; or (3) continue to conduct mailings as he has in the past, but at the risk that
some addressees might be minors. We believe that the practical effect of this
amendment would be to impose such a substantial burden on mailers as to raise
serious constitutional difficulties.
The burden imposed by such legislation, to ascertain the ages (or at least the
majority or minority status) of all addressees, would, in our opinion preclude
the use of the mails by forcing all but the most determined and enterprising
mailers out of business. Because this amendment includes all sexually oriented
advertisement materials, whether photographic or not, the draft bill would
force the mailers of such materials, presently prohibited by § 3010(d) from
sending their material only to those on the Postal Service list, to send their
materials at the risk that any potential addressee may be under 18. As noted
above, the practical effect of this amendment would be to require the prudent
mailer to send his sexually oriented advertisements, whether photographic or
not, only to those persons who have affirmatively requested his materials and
only those whom he reasonably believes to be at least 18 years of age, or, to
conduct a pre-mailing survey. This restriction, as applied to the subcategory of
“the most offensive” and intrusive ads — photographic sexually oriented ads
— fails, as we indicated in Part II.A above, to properly balance the advertiser’s
right to communicate through the mails, the addressee’s right to receive his or
her mail, and the individual’s right to privacy in his home. A fortiori, this
conclusion would apply to the general category of sexually oriented ads.
Regarding pre-mailing surveys, as noted above, Justice Rehnquist, in his
concurring opinion in Bolger, found such a requirement to be a “prohibition on
the use of the mails [and therefore] a significant restriction of First Amendment
rights.” 463 U.S. at 79-80. Thus, we believe the courts would find such a
burden on the mailers to be constitutionality unacceptable.
Conclusion
Although we recognize that the government has a strong interest in protect­
ing recipients of unsolicited sexually oriented advertisements of any kind from
being unwillingly subjected to materials which they may find offensive, such
an interest has been held not to be substantial, for purposes of restricting
commercial speech. Moreover, notwithstanding that the courts have found the
government’s interest in protecting parents’ ability to control their children’s
exposure to potentially offensive, or otherwise sensitive, materials to be sub­
173
stantial, we conclude, applying the principles set forth in Bolger, that, in view
of the adequacy of existing statutory and regulatory provisions designed to
foster that interest, and the “prior restraining” effect that the absolute prohibi­
tion on mailing to minors would have on the mailers’ constitutional right to
communicate through the mails, the strict liability provisions of the draft bill
would be unable to withstand constitutional scrutiny. In short, it is our conclu­
sion that the statutory prohibitions envisioned by both provisions of the draft
bill would be found by courts to be more extensive than necessary to support
the interests asserted by the government, and therefore inconsistent with the
protections accorded to commercial speech under the First Amendment.
Ralph W . T arr
Deputy Assistant Attorney General
Office o f Legal Counsel
174