The Council of Greenburgh Civic Associations and the Saw Mill Valley Civic Association v. The United States Postal Service

J. JOSEPH SMITH, Circuit Judge:

Two “non-partisan civic organizations,” threatened with prosecution under 18 U.S.C. § 1725¹ for depositing unstamped notices and pamphlets in approved letter boxes of private homes, sought declaratory and injunctive relief on first amendment grounds in the United States District Court for the Southern District of New York, and moved with supporting affidavits for summary judgment. The court, William C. Conner, Judge, dismissed the complaint on a cross-motion under Fed.R.Civ.P. 12(b). We find error in the dismissal at this stage of the case, reverse the order of dismissal and remand for further proceedings.

The motion to dismiss under Rule -12(b) was based on a claimed failure to “state a cause of action,” í. e., a failure to state a claim on which relief can be granted. We think, however, that enough is alleged in the complaint to raise the issue of infringement of freedom of communication.

Plaintiffs have alleged that the only practicable method of delivery of their messages to their constituents is hand delivery to the privately-owned mail receptacles of the constituents, and that the enforcement of § 1725 against them deprives them of constitutional rights — including the rights of free speech and free press. The costs and time delays of using the regular mails are claimed to be in practice insurmountable barriers to effective communication by ordinary mail by these plaintiffs. We think these allegations sufficient to survive a Rule 12(b) motion to dismiss.

“A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972), citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); see also, Build of Buffalo, Inc. v. Sedita, 441 F.2d 284 (2d Cir. 1971).

The allegations, though general, are sufficient under this standard. If they were thought deficient in any way, permission to amend should have been granted. The parties are entitled to an opportunity to submit proof as to the extent of the handicap² to communication caused by enforcement of the statute in the area involved, on the one hand, and the need for the restriction for protection of the mails, on the other.³ This is a sensitive first amendment area. Careful balancing of the need for the statute against the statute’s constriction of first amendment rights is called for. See Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Wolin v. Port of New York Authority, 392 F.2d 83 (2d Cir. 1968). Full development of the facts is essential for the court to strike this balance.

We express no opinion, on this record, on the merits of the claim.

Reversed and remanded.

1 . 18 U.S.C. § 1725 provides that:

Whoever knowingly and willfully deposits any mailable matter such as statements of accounts, circulars, sale bills, or other like matter, on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter on any mail route with intent to avoid payment of lawful postage thereon, shall for each such offense be fined not more than $300.00.

2 . Whether the cost and delay occasioned by use of the mails are serious burdens, and whether the burdens can be avoided by alternate means, such as the use of door knobs, door handles, under door delivery, etc. Compare, Rockville Reminder, Inc. v. United States Postal Service, 480 F.2d 4, 7-8 (2d Cir. 1973).

3 . The problems caused by mail box clutter, security considerations, protection of mail revenues, etc.

2 . In assessing the constitutionality of such measures, “[t]he crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.” Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972).