DETENTION OF MAIL FOR TEMPORARY PERIODS FRIDAY, JULY 31, 1959 HOUSE OF REPRESENTATIVES, COMMITTEE ON POST OFFICE AND CIVIL SERVICE, Washington, D.C. The subcommittee met, pursuant to call, at 10 a.m., in room 215, House Office Building, Hon. Kathryn E. Granahan (chairman of the subcommittee) presiding. Mrs. GRANAHAN. The committee will please come to order. This subcommittee, consisting of Representatives Scott, Shipley, Irwin, Oliver, Cunningham, Wallhauser, Mrs. St. George, with myself as chairman, was appointed to consider the provisions of H.R. 7416, introduced by our colleague from Nebraska, Mr. Cunningham; H.R. 7441, introduced by our colleague from New Jersey, Mr. Wallhauser; and H.R. 7379, introduced by myself, bills to amend the act of July 27, 1956, with respect to the detention of mail for temporary periods in the public interest, and for other purposes. At this point in the record we will insert a copy of the bill H.R. 7379. (The bill referred to follows:) [H.R. 7379, 86th Cong., 1st sess.} A BILL To amend the Act of July 27, 1956, with respect to the detention of mail for temporary periods in the public interest, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Act of July 27, 1956 (70 Stat. 699; Public Law 821, Eighty-fourth Congress; 39 U.S.C. 259b), is amended to read as follows: "(a) (1) When the Postmaster General determines during proceedings before him that in the administration of the Act of August 16, 1950 (39 U.S.C. 259a), such action is in the public interest, he may enter an interim order directing that mail addressed to any person be detained by the postmaster at the post office of delivery for twenty1 days from the effective date of the order. Notice of the order, advising the person of the detention and setting forth in specific detail the reasons therefore, together with a copy of this Act and such Act of August 16, 1950, shall be sent forthwith by registered or certified mail to the person at the post office at which such mail is to be detained. "(2) Any person against whom an interim order is issued may petition in the United States district court for the district in which the post office at which such mail is held or detained is situated for an injunction restraining the post master from enforcement of the order if the issuance of the order was arbitrary or capricious. "(3) Unless (A) the Postmaster General has been so restrained or (B) the Postmaster General files, within twenty days of the date of the interim order, a petition in the United States district court for the district in which the mail is detained is situated, and obtains an order directing that mail addressed to the 1 This is a technical error and will be corrected to read "forty-five." 1 person be detained for such further period as the court determines, an order for the detention of mail addressed to a person expires at the end of forty-five days after the issuance thereof. Notice of the filing of such a petition shall be given forthwith by the clerk of the court in which it is filed to the person, at the post office at which the mail is being detained, or otherwise as the clerk of the court determines to be appropriate, and the person shall have five days in which to appear and show cause why the order should not issue. (4) If, upon all the evidence before it, the court determines that the continued detention of the mail is in the public interest, it shall forthwith issue an order directing that mail addressed to that person be detained by the postmaster at the office of delivery until conclusion of the proceeding by the Postmaster General or until further order of the court. "(5) If, upon all the evidence before it, the court determines that the continued detention of the mail addressed is not in the public interest, it shall dismiss the petition and order all mail addressed to him detained in any post office to be released forthwith for delivery. "(6) (a) An appeal from the order of the court shall be allowed as in civil causes. An order of the Postmaster General or of the district court, under this section, may be dissolved by that court at any time for cause, including failure to conduct expeditiously the proceedings instituted against the person before the Postmaster General with respect to the Act of August 16, 1950 (39 U.S.C. 259a). When, under any order authorized by this Act and such Act of August 16, 1950, to be issued by the Postmaster General or the district court, a person's mail is detained by the postmaster at the office of delivery, that person may examine the mail and receive such mail as clearly is not connected with the alleged unlawful activity. "(b) Action by the Postmaster General in issuing the interim order provided for herein and petitioning for a continuance of an order under this section is not subject to the requirements of the Administrative Procedure Act (5 U.S.C. 1001 and the following). "(c) A person aggrieved by a final order of the Postmaster General may obtain a review of the order in the United States court of appeals for the circuit in which he resides or has his principal place of business, or in the United States Court of Appeals for the District of Columbia Circuit, by filing with the court, within thirty days after the entry of the order, a written petition praying that the order of the Postmaster General be modified or be set aside in whole or in part. He shall file a copy of the petition with the Postmaster General, and thereupon the Postmaster General shall certify and file in the court a transcript of the record upon which the order complained of was entered. The finding of the Postmaster General as to the facts shall be conclusive if supported by substantial evidence in the administrative record. "(d) The provisions of subsections (a) and (b) of this section shall not apply to mail addressed to publishers of publications which have entry as second-class matter under the Act of March 3, 1879, as amended (20 Stat. 358; 39 U.S.C. 221 and the following), or to mail addressed to the agents of such publishers." Mrs. GRANAHAN. This legislation was recommended by the General Council of the Post Office Department at the hearings of our Postal Operations Subcommittee held in April 1959. I requested the Department to draw up language in line with the suggestions made by the General Counsel of the Post Office Department. We are now holding hearings on this proposed legislation. Any suggestions for improvement of the language will be welcome. The Post Office Department has reported favorably on H.R. 7379 and similar bills, with some technical amendments, and has urged that prompt action be taken on this legislation. The legislation which I introduced was developed to assist the Postmaster General in carrying out existing law which provides for the exclusion of obscene matter from the mail. In reporting on H.R. 7379 and similar bills, the Postmaster General has recommended that the bill be amended to assist him in also carrying out existing law which prohibits the use of the mail for fraudulent purposes. Basically, this legislation extends the time for impounding the mail from the present 20 days to 45 days in those cases where the mails are used to send obcene, lewd, and filthy matter. We are advised that the 20-day lifespan for an interim impounding order has proven unworkable in that the Post Office Department has found it impossible to complete administrative proceedings. The bill would in no way preclude the right of a person whose mail is detained to examine his mail and receive such mail as is clearly not connected with the alleged unlawful activity. The legislation would also substitute the standard of "public interest" for the presently existing standard "necessary to the effective enforcement of the section." Provision is also made for any mailer against whom an interim order is issued to petition to an appropriate U.S. district court for an injunction restraining the enforcement of the interim impounding order. The legislation also clarifies the right of appeal to the appropriate court of appeals from the district court's order with respect to an interim order and would emphasize the right of the district court to dissolve its own order or the order of the Postmaster General at any time for "cause." Provision is made for the court, upon a finding that a continuation of the interim order is not in the "public interest," to dismiss the motion to extend the order and authorize any detained mail to be delivered. There are some who raise the issue of "censorship" at every effort made to restrict the use of the U.S. mail for sending obscene matter. I would like to say that the legislation we have under consideration this morning is in no way a "censorship" bill. Censorship, as such, was not involved when the provision for impounding mail for 20 days was enacted into law. Neither is censorship involved in this measure which extends to 45 days the period for impounding mail when such action is deemed necessary by the Postmaster General in carrying out his responsibilities. As is the case with the enactment of many laws, actual experience has indicated that an adjustment is needed with respect to the length of time that mail may be impounded in order that both parties may have full opportunity to the exercise of their rights under the law. I would also like to say that, based on the mail that has been received in huge quantities by many of us, there is countrywide support for any effort which will serve to prevent the sending of obscene matter through the U.S. mail. Representatives of the American Bar Association were contacted with regard to this bill, inasmuch as they had testified favorably when legislation providing for a 20-day interim impounding provision was enacted by the 84th Congress. We were informed that, after careful consideration, the association had decided it should not present testimony on the pending legislation. Mr. Cunningham, do you wish to make a statement at this time? Mr. CUNNINGHAM. As the ranking minority member of the Postal Operations Subcommittee, it is a pleasure to join in sponsoring the legislation before us with our gracious chairman, Mrs. Granahan, and our colleague from New Jersey, Mr. Wallhauser. The legislation we are considering has the strong endorsement of the Post Office Department as necessary in order to carry out its duties under the original legislation in regard to impounding of mail. This extension of the impounding period from 20 to 45 days and the other changes made in the pending bills merely will make the original legislation more workable. The many persons and organizations in the country which have urged action by the Congress to combat the distribution of obscene material should support this subcommittee fully in action on this proposal. Mrs. GRANAHAN. Congressman Wallhauser has a statement which he would like to present at this point. Mr. WALLHAUSER. Thank you, Madam Chairman, for allowing me to make this statement on this very important subject to assist the Postmaster General and his Department in carrying out the provisions of the existing law by excluding obscene matter from the mails. I feel so strongly in favor of it that I introduced an identical bill to your bill, H.R. 7379, which is numbered H.R. 7441. In general, legislation would provide the Post Office Department with the minimum necessary time to go through the administrative procedure required to issue the unlawful order, and to make the standard less stringent for securing the unlawful order by changing the wording from "necessary" to "public interest" in the sentence in which it deals with the effective enforcement of the section. It also clarifies the right of appeal to the appropriate court of appeals from the district court's order with respect to an interim order. The interim impounding order should be made valid for 45 days, because the Department, under the present 20-day requirement, is unable to complete an administrative proceeding in many cases. The changing of "necessity" to "public interest" would justify the issuing of an interim impounding order because, to take an example, the delay of remittances to the purveyor during the pendency of the administrative proceeding is against the public interest. Under the present statute the purveyor has no statutory right of appeal, which requires him to petition the district court for a permanent injunction against enforcement of the "unlawful order," and the district court judge oftentimes makes his determination as to whether the matter is obscene, whereas, the suggested amendment would determine whether there was substantial evidence in the record to support the Department's decision. Hearings before the subcommittee have clearly demonstrated the need for assistance which is provided for by this legislation. We have listened to testimony from experts in the realm of law enforcement, leaders of religious groups, civic leaders, and citizens who have stressed the fact that there is an extremely acute problem before the American people in the dissemination of pornographic material which has become widespread. While we recognize and have stressed the fact that only part of it goes through the mails, it is our duty to attempt to strengthen the law in this regard. The good citizens of these United States will have to effectively take care of the problem caused by the allowance of this material to be displayed on newsstands and distributed by other methods, rather than the mails. Therefore, I am very pleased to join with you in urging the subcommittee to vote favorably on the legislation before us. Mrs. GRANAHAN. Mr. Rees, ranking minority member of the full committee, has submitted a statement which will be inserted in the record at this point. (The statement follows:) STATEMENT OF HON. EDWARD H. REES, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF KANSAS Madam Chairman and members of the subcommittee, I am pleased to submit this statement in support of passage of H.R. 7379 and related bills which will assist the Postmaster General in carrying out existing law which provides for the exclusion of obscene matter from the mail. I have devoted a large part of my time and attention to the problem of illegal use of the mails during my entire tenure as either chairman or ranking minority member of the House Post Office and Civil Service Committee since it was created in 1947. Based on my personal studies in the 80th Congress, I introduced legislation in the 81st Congress to close gaps in the law which require the Postmaster General to exclude obscenity and pornography from the mails. As the ranking minority member of the Select Committee on Current Pornographic Materials in the 82d Congress, I took a very active part in the develoment of evidence showing that the selling of vile literature, pictures, and other unfit materials is big business. I also sponsored legislation which became law in the 84th Congress, authorizing the Postmaster General to impound incoming mail or a person found to be sending this material through the mails. It is this law (Public Law 821 of the 84th Cong.) which is now under consideration for amendment by this subcommittee. At the time this legislation was passed by the Congress, consideration was given to authorize a period of impounding up to 60 days. It was decided that it would be desirable to make provision for a 20-day period of impounding and see how it would work in actual application. It is now apparent after several years of experience that the 20-day provision is insufficient to allow the Postmaster General to carry out the intent of the law. It is my belief that the period for impounding should have been 45 days or more to begin with. I strongly support this amendment which will serve to provide an adequate period of time for the Postmaster General to complete the administrative proceeding. I am in full agreement with the other changes being offered in this legislation. There is a need, I believe, to use the standard of "public interest" so as to facilitate the carrying out of this type of restriction against the purveyors of filth and smut who use the mails to enrich themselves in this dirty business. We enact laws to protect our forests and wildlife, our minerals and other natural resources. We enact laws to dam up and control our great rivers and watersheds for the common welfare. We regulate interstate commerce and many other activities, all in the public interest. Our young people are our greatest natural resource. Should we not give them all the protection from sordid moral influences that is in our power? I wish to commend your Postal Operations Subcommittee for the fine work it has done in this session of Congress to alert the public to the serious problem that confronts our Nation. There is a need, in my opinion, to continue this allout effort which will keep these purveyors of filth on the run. It is my hope that this bill, with whatever technical amendments might be necessary, will be reported favorably by your subcommittee so that the full committee may present it to the House for action by that body before Congress adjourns this session. Mrs. GRANAHAN. Our first witness will be the Honorable John Dowdy, who with our colleague, the Honorable Edward H. Rees, were joint sponsors of the legislation which became Public Law 821 of the 84th Congress, which this legislation will amend. Congressman Dowdy, we shall be glad to hear from you at this time. |