[Anuj Desai, guest-blogging, June 18, 2008 at 12:03pm] Trackbacks
The Postal Monopoly and the First Amendment “Right to Receive” Ideas:

Today, I hope to explain the connection between the Post Office as a monopoly on long-distance communication and the constitutional principle known as the “right to receive” ideas. Before doing so, though, I just want to mention one thing in response to some comments. After my first post, several commenters began a discussion about the basic legitimacy of the Post Office. The comments tended to revolve around whether the Post Office remains necessary and, in particular, whether the postal monopoly is — or, for that matter, ever was — necessary.

This is a legitimate and extremely important policy question. I can say unequivocally, though, that I am not taking a position on it. Nor do I take a normative position on the related question of whether, even if a monopoly were necessary as an economic matter (i.e. if the postal network were what economists refer to as a “natural monopoly”), the government ought to run it. My points throughout are purely descriptive. In any event, I mention this today because this question is tangentially related to today’s discussion, which is about the impact the monopoly has had on the First Amendment.

Okay then, to my main point. In contrast to yesterday’s example (and tomorrow’s), where the constitutional principle was borrowed directly from the legislative enactment, the Court never directly constitutionalized the government’s monopoly over long-distance communication. What the Court did do, however, was just as interesting. It shaped an important First Amendment principle — the “right to receive” ideas — around the fact that the Post Office was the principal means of long distance communication.

My basic claim, then, is that the Court’s perception of the Post Office as a monopoly — not as a legal matter, but rather as a practical matter — enabled the Court to read into the Constitution a “right to receive” ideas. Since you can probably see that this post goes beyond the bottom of your screen, I doubt you need a warning, but … well, let’s just put it this way, this won’t be fun if you’re reading on your handheld.

Early Postal History — Legal and Practical Monopoly

So, let me turn now to the historical origins of the monopoly. It is of course well known that the post office has always had a legal monopoly over the delivery of “letters.” That monopoly is currently found in what are known as the “private express” statutes (Chapter 6 of Title 39 of the United States Code, and 18 U.S.C. §§ 1693-1697), and the definition of “letter” is further refined in postal regulations. I discuss the origins of the postal monopoly in detail in the first article (pp. 696-699), but for now, all you need to know is that (a) the American Post Office has had a monopoly over what the law now calls a “letter” ever since the Articles of Confederation; and (b) not everything is a “letter.”

For my present purposes, though, the Post Office’s practical monopoly, its ubiquity through the early portion of American history, is more important. Again, lots of details in the article (pp. 700-04), but here’s a summary:

Through the early part of the nineteenth century, the Post Office grew profoundly. And its growth paralleled the population growth of the country, not simply its economic growth. How exactly did this happen? In part because of a seemingly unrelated debate taking place during deliberation of the same 1792 Post Office Act I mentioned yesterday, a debate about whether Congress or the Executive should have the power to designate postal routes.

Eventually, Congress decided to retain the authority to designate postal routes when it passed the 1792 Act, a decision that led to an expansion of the post office throughout the country, including particularly the transappalachian West. By leaving the authority in Congress’s hands, the 1792 Act helped change the assumption, prevalent in Great Britain and continental Europe at the time, that each individual postal route had to be self-supporting. That assumption effectively had to be abandoned as the power to designate post offices and post roads became the first opportunity for the dispensing of what we would today call congressional pork. In essence, the structure of the House ensured that the postal network would expand on the basis of population rather than commercial need since a post road and post office was something tangible that every federal Representative could bring his constituents.

The postal statutes throughout the early years actually listed the location of the roads and post offices in great detail. For example, an 1800 statute was so specific that it mandated that a new postal route in North Carolina pass by the house of either John Anders or William H. Beaty. Has anyone ever heard of these people? I certainly haven’t. I don’t mean to cast aspersions, but my guess is that their primary importance lay in having a friend in Congress.

The legal monopoly was thus augmented by a seemingly unrelated policy choice, one that embedded the post office into the social fabric of virtually every American community. Together, these early policy choices set the Post Office on a course towards which, as Justice Holmes put it in 1922, “habit and law combine[d] to exclude every other” means of long-distance communication. Leach v. Carlile, 258 U.S. 138, 141 (1922) (Holmes, J., dissenting).

Constitutional Law - The “Right to Receive” Ideas

The language of the First Amendment prevents the government from “abridging the freedom of speech, or of the press.” On its face, then, it doesn’t say anything about those who listen to “speech” or those who read the products of “the press.” The “right to receive” ideas is the First Amendment principle that grants rights to listeners and/or readers, rather than just speakers and/or writers.

Since by this point you have all no doubt picked up on my constant refrain, it should come as no surprise when I tell you that the first time the Court held that there is a “right to receive” ideas was in a case involving the Post Office, the 1965 case Lamont v. Postmaster General. Lamont involved a First Amendment challenge to a law that required a postal patron who was sent “communist political propaganda” in the mail to return a postcard indicating his or her desire to receive the materials prior to receipt – in essence, to tell the post office, “I want these materials that you the government deem to be communist political propaganda.”

The Court unanimously invalidated the statute. [As a side note, Lamont -- a full 174 years after ratification of the First Amendment — was the first case in which the Court invalidated a federal statute under the Free Speech and Press Clauses of the First Amendment.] The Court reasoned that the statute violated the First Amendment “because it require[d] an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressees[’] First Amendment rights” (my emphasis). The details of the Court’s reasoning are not crucial, but what is important is that the Court nowhere explained why the “addressee,” the recipient of the mail, even has a First Amendment right. That task fell to Justice Brennan, who wrote a concurrence explicitly stating that “the right to receive publications is … a fundamental right,” the protection of which is “necessary to make the express guarantees [of the First Amendment] fully meaningful.”

So, what exactly does this very abstract principle mean? The crux of my claim is that the right to receive publications is effectively limited to the Post Office — that is, the Court’s understanding of the abstract “right to receive” principle was dependent on the institutional context of the case and, in particular, on the Post Office’s effective monopoly over long-distance communication. One way to see this is to see what happened when someone argued for this so-called “right to receive publications” in a very different institutional context, the public school library.

In a 1982 case, Board of Education, Island Trees Union Free School District v. Pico, the Court addressed a constitutional challenge by students to a local school board’s decision to remove several books from a school library. Because of the unusual break-down of the votes of the Justices, the case’s actual holding was very narrow, consisting of little more than a remand to reverse a grant of summary judgment in favor of the school board. But the principal opinion — by Justice Brennan — relies on Lamont, in essence concluding that the school board violated the students’ “right to receive” by removing the books. But it’s clear — and Brennan acknowledges this — that the “right to receive” can’t apply to library acquisition decisions (even though Brennan would have held that it applied to removal decisions): it would obviously wreak havoc on libraries if patrons could claim a constitutional “right to receive” a particular book.

The dissents in Pico (the library-book-removal case) illustrate how Lamont (the communist-propaganda-in-the-mail case) is dependent on unique characteristics of the Post Office. In one of the Pico dissents, Justice Rehnquist specifically criticizes Justice Brennan’s attempt to import the “right to receive” into the context of the school, and in doing so, he refers to Lamont as a case involving a “complete denial of access to the ideas sought” (my emphasis).

Now, this is no doubt an overstatement. For example, the law at issue in Lamont had huge exceptions, including for U.S. government officials, public libraries, and universities. Another exception was for first-class mail. If the “communist political propaganda” was sealed in an envelope, it could be sent without the need for the addressee to send the Post Office a postcard.

So literally, Justice Rehnquist was wrong. The law in Lamont did not involve a “complete denial of access.” Still, the basic point, I think, remains. And, in this, Justice Rehnquist was certainly correct. A restriction on postal distribution is very much like a “complete denial of access.”

The reason of course is that the American Post Office was like a “monopoly” in some abstract sense — that is, it is only where a conduit is a “monopoly” that an inability to receive materials through that conduit approximates a “complete denial of access.” But, it was not the Post Office’s legal monopoly, but rather its effective monopoly — its ubiquity in American life — that rendered the law restricting communist political propaganda the equivalent of a “complete denial of access.” It was thus this institutional feature of the Post Office that permitted the Court to hold that the First Amendment includes a “right to receive.”

But, of course, as I described earlier, that ubiquity was not natural. It was created by policy choices, in particular by the early policy choice to give Congress the power to designate postal routes.

If you’ve stayed with me until now, congratulations. Tomorrow I’ll talk about communications privacy, a principle that impacts virtually everyone. And, as was the case yesterday, the connection between the legislative choice and the eventual constitutional doctrine is much more straightforward and easier to see.

Sk (mail):
"It is of course well known that the post office has always had a legal monopoly over the delivery of "letters.""

When did this monopoly end? Anything I could send through the post office, I could send through Federal Express, UPS, Wells Fargo, etc. And that doesn't include technoligical changes (email)-merely institutional changes (i.e. practical competitors to the Post Office)?

6.18.2008 1:26pm
Gregory Conen (mail):
The monopoly is more or less limited to standard (as opposed to rush) delivery of letters (as opposed to parcels). While it is technically possible to send a letter by UPS, there is a minimum charge (which is mandated due to the law) which is far from competitive with the post office.
6.18.2008 2:42pm
EnriqueArmijo (mail):

Very interesting stuff. I wonder if you've given any thought to how Red Lion v. FCC fits into your thesis. Red Lion is the paradigmatic example of the Court relying on a listener-based theory of the First Amendment to justify a restriction on a speaker's rights. Justice White's remark that "it is the right of the viewers and the listeners, not the right of broadcasters, which is paramount" is about as clear a statement of the principle as you can get.

I've also been wondering about the applicability of your work to other content regulation regimes. As you probably know, the BBC in the UK was a direct outgrowth of the General Post Office and its authority over the mails. In that example, perhaps the unbroken line from legal postal monopoly to legal broadcast monopoly makes it easier to locate the postal monopoly as one source of the "right to receive."
6.18.2008 2:57pm
Jacob Berlove:
i think a much better disctinction between Lamont and Pico can be found in the fact that libraries inherently must engage in some form of content discrimination which is of course not true wit hpost offices. I need to go over Pico again, but if I recall correctly, that rationale was also used in dissent.
6.18.2008 3:11pm
J. Aldridge:
Lamont made absolutely no factual sense in terms of law. There was no restraint of the press by any law previously made and Congress was operating under a sphere committed to operate (mail service). Don't like the regulation then petition congress to change it.

But then this was 1965 (hint, hint, hint.)
6.18.2008 4:22pm
merewitz (mail):
FedX, UPS, DHL have the right to enter the market because the USPS waived the Priv Express Stats for "urgent communications."
6.19.2008 11:28am