Hon. Toм MURRAY, DIRECT MAIL ADVERTISING ASSOCIATION, INC., Chairman, Committee on Post Office and Civil Service, U.S. House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: This is with reference to the bill, H.R. 980, introduced on January 5 by Congressman Cunningham and referred to your committee. A bill of this general nature was reported out by your committee in the last session of the Congress and passed in the House. However, this year's bill, H.R. 980, seems to have changed and we would like the opportunity to present testimony on it before action is taken by your committee. Sincerely yours, JOHN JAY DALY, Washington Representative. Mr. DULSKI. We also have statements from Mr. Harry I. Maginnis, president, Associated Third Class Mail Users; Mr. Horace Manges, legal counsel, American Book Publishers Council, Inc.; Mr. Charles Ablard, Magazine Publishers Association; Mr. Robert F. DeLay, president, Direct Mail Advertising Association, Inc.; and Mr. Edwin Castagna, president, American Library Association. They have statements and, if there is no objection, would like to place them in the record. PREPARED STATEMENT OF HARRY J. MAGINNIS, PRESIDENT, ASSOCIATED THIRD CLASS MAIL USERS This association looks with favor on any legislation which has as its principal purpose the elimination from the U.S. mails of all pornographic material. Congressman Cunningham's bill, H.R. 980, seeks to attack this thorny problem in a novel way. The bill would permit the mail patron to inform the Postmaster General that he has received an “obscene, lewd, lascivious, indecent, filthy, or vile" piece of mail and request that his name be removed from the sender's mailing list. If the sender fails to comply with the request, the patron may file an affidavit with the Postmaster General noting the fact. The bill provides a safeguard in the form of a hearing for the offender before the Postmaster General. If that Cabinet officer determines that the mailing piece involved comes within the terms of H.R. 980, the matter would then be referred to the Attorney General for further action. Pornography has been the subject of congressional hearings over the years. The present bill is an improvement over the bill (H.R. 319) passed by the House in 1964 when the mail matter covered was referred to as that which is "morally offensive" to the recipient. This broad phrase would have included all kinds of literature, including campaign circulars and the like. The requirement of the present bill that the mail matter be "obscene, lewd, lascivious, indecent, filthy, or vile" confines complaints to mail matter already proscribed by existing statutes. Moreover, last year's bill did not provide for a hearing before the Postmaster General. In addition, not only the initial mailing but all other mailings received by a complainant must be judged under the definition contained in H.R. 980. This would preclude a complaint against a mailer who has sent vile material on one day, but who, on the next, having learned the evil of his ways, is selling something as uplifting as bibles or scholarly textbooks. While both the Postmaster General and the Attorney General contend that the legislation will not stand the test of court action, this association is not prepared to argue the constitutional merits of H.R. 980. As President of a trade association having 800 members located in all parts of the United States, I have had occasion to discuss this legislation with its author, Congressman Cunningham. He has assured me time and time again that it poses no dangers for the legitimate business mailer who is engaged in the sales of goods and services having no pornographic taint. While the fear always exists that there will be some mischiefmakers attempting to use the law to discredit perfectly legitimate direct mail advertising, Congressman Cunning ham has made it perfectly clear that proper salesmanship will have his defense at all times. Accordingly, I support the aims of H.R. 980 and will, as I have so often in the past, urge upon all the need to eliminate from the U.S. mails the lewd and the lascivious. NEW YORK, N.Y., March 29, 1965. Re H.R. 980. Hon. Toм MURRAY, Chairman, Committee on Post Office and Civil Service, DEAR MR. CHAIRMAN: As attorneys for American Book Publishers Council. Inc., of 58 West 40th Street, New York City, we write to express its opposition to H.R.980. The council is a membership corporation, of which most of the leading publishers of books of general circulation and university presses are members. It is estimated that the 186 members of the council publish and distribute over 90 percent of all general books. While the council is opposed to the dissemination of pornography, it is vitally concerned that any legislation which seeks to curb the publication and circulation of printed material should not violate constitutional provisions. The council is of the opinion that H.R. 980 is unconstitutional on the ground that it abridges freedom of speech and of the press as guaranteed by the first amendment of the Constitution of the United States. This bill does not concern itself with obscene mail matter. The mailing of obscene material is already proscribed and rendered criminal by section 1461 of title 18, United States Code. What is involved in H.R. 980 is mail matter which in the opinion of the addressee is obscene. In this connection we must bear in mind the admonition of the Supreme Court of the United States that any legislation which tends to inhibit the dissemination of nonobscene published material violates the first amendment and further, that until published material has been judicially declared to be obscene its suppression violates the first amendment. Thus, in Freedman v. State of Maryland, decided this very month, the Supreme Court said: "The teaching of our cases is that, because only a judicial determination in an adversary proceeding insures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint. (See Bantam Books, Inc. v. Sullivan, supra; A Quality of Books v. Kansas, 378 U.S. 205; Marcus v. Search Warrant, supra; Manual Enterprises, Inc. v. Day, 370 U.S. 478, 518–519.)" H.R. 980 is in complete violation of these principles. In the first place, the opinion of an addressee that mail matter received by him is obscene is based upon unknown standards which may not be the standards required by the decisions of the Supreme Court for such determination. Secondly, even though the opinion of the addressee is not a "judicial determination in an adversary proceeding," the Postmaster General, if requested by the addressee, must "notify the sender not to send additional such mail to him ***." Inherent here is the additional vice that there is an official ban upon the dissemination of printed material which has not yet even been seen by anyone-a form of prior restraint which the Supreme Court condemned as in violation of the first amendment as long ago as 1931 in Near v. Minnesota (283 U.S. 697). After the provision for the sending of such notice by the Postmaster General. H.R. 980 then provides that whenever the Postmaster General believes that the notice given by him has been violated, he shall serve upon the sender a complaint stating the reasons for his belief, and requesting that any response be filed in writing with the Postmaster General within 15 days. Thereafter, if the Postmaster General determines (with or without a hearing, if none is requested by the sender) that the notice has been violated, he is authorized to request the Attorney General to make application and the Attorney General is authorized to make application to a district court of the United States for an order directing compliance with the notice. Upon such application by the Attorney General, any such district court in which "any mail matter shall have been sent or received in violation of the notice" may issue an order commanding compliance with such notice. It is then provided that "Failure to observe such order may be punished by the court as contempt thereof." It is significant with respect to this entire procedure that, at no time, is there provision made for the determination by any court as to whether the mail matter involved is obscene. As we have pointed out, the sending of the notice by the Postmaster General is predicated solely upon the opinion of the recipient of the mail matter that such matter is obscene. The notice sent by the Postmaster General to the sender is that he, (i.e., the sender) is "not to send additional such mail". If, therefore, the original mail which the recipient concluded to be obscene was in fact not obscene by legal standards then, if the "additional such mail" is of the same character as the original mail, the sender will have violated the Postmaster's notice and become subject to the procedure hereinabove outlined, including contempt of court, without a judicial determination that he has sent obscene matter through the mail. We submit that the foregoing clearly demonstrates that H.R. 980 violates the constitutional guarantee of freedom of expression. Respectfully submitted, WEIL, GOTSHAL & MANGES, By HORACE S. MANGES. PREPARED STATEMENT OF ROBERT F. DELAY, PRESIDENT, DIRECT MAIL ADVERTISING ASSOCIATION My name is Robert F. DeLay. I am president of the Direct Mail Advertising Association, a trade association organized and incorporated in 1917. The more than 1,500 member-companies comprising our membership are located throughout the Nation. Our headquarters are in New York City. All of our member firms and people are engaged in direct mail advertising— as users, creators, producers, or suppliers. Our industry accounts for more than $29 billion in annual sales, according to estimates by the U.S. Department of Commerce. The Direct Mail Advertising Association is wholly in sympathy with this subcommittee's earnest attempts to halt the misuse of the mail for immoral purposes. We have repeatedly pointed this out, Mr. Chairman, but wish to make our position unmistakably clear once again. We respect the sanctity of the postal system and the morality of our Nation, especially of our youth. Moreover, from an economic standpoint, "dirty mail" reflects discredit on, and therefore diminishes the effectiveness of, output of businessmen and others who use the mails to promote ideas, products, and services that are legitimate and morally unassailable. We, therefore, admit to membership only companies which unreservedly subscribe to our highly ethical standards of practice, a copy of which is appended to this statement. We maintain the right to expel from membership those who mail pornographic or other morally offensive materials. We invite our members and the general public-via both advertising and publicity-to bring such materials to our attention. Our standards of practice committee meets regularly to consider such complaints. Nevertheless, we are compelled to agree with the Justice and Post Office Departments that enactment of H.R. 980 and H.R. 4241 is clearly unnecessary and may well be unconstitutional. It is already a felony, punishable by fine and imprisonment, to mail obscene, lewd, lascivious, indecent, filthy, or vile matter. Every citizen has a statutory right today to file a written request with his local post office to detain obscene, lewd, lascivious, or indecent matter addressed to him. So too, does every postal patron have a right to mark a piece of mail "refused" and to return it unopened to the mails. As the Postmaster General stated in his letter of March 24, 1965, enactment of the bills now under consideration would "disregard *** decisions of the Federal courts and lodge the determination as to what constitutes obscenity within the subjective opinion of each person involved." The only determination to be made by the Post Office Department is whether the notice given to the mailer "not to send additional such mail to the complainant or any child of his (except mail which he has solicited) has been or is being violated." The bills now being considered make no provision for either the Justice Department, or the district court of the United States to which the Department applies, to determine the merits of the complainant's interpretation that mail he has received is indeed "obscene, lewd, lascivious, indecent, filthy, or vile matter." NO DUE PROCESS If this legislation is enacted, the Government will be placed in the position of having to enforce a determination by one private citizen against another without due process of law, the very cornerstone of our political and economic system. Advocates of this legislation undoubtedly believe they have "zeroed in" on those who dirty up the mails. Instead their "refinements" have made their bills just as dangerous as they were 2 years or more ago, if not more so. Their original target was those who misused their bulk mailing privilege. This legislation would then have applied to a few hundred thousand bulk permitholders. Now it has been broadened to cover all classes of mail, and all users of the mail, whether in business or not. The risk is therefore greater than ever that such legislation will not achieve its intended purpose, and will conflict with the basic rights of many more citizens. ALMOST LIMITLESS INTERPRETATIONS We are appalled at the prospect that users of direct mail-commercial, industrial, and even private persons-will be forced to accommodate the almost limitless interpretations which individual postal recipients may place upon materials they receive in the mails. To some, even the commonplace undergarment sections of mail-order catalogs may be "obsecene." To others, illustrated historical accounts of ancient civilizations-including acknowledged "classics" could be assessed as "obscene." If this legislation is passed, it is conceivable that a parent concerned about his child's personal hygiene curriculum in school could be foreclosed from sending a series of frank explanatory letters to his neighbors. He might bring the subject up on the floor of a meeting, or use newspaper space or broadcast time. Yet, under this legislation, he could be effectively denied the right to use the mails for a perfectly legitimate purpose and could run the risk of a contempt-ofcourt citation for inadvertently failing to exclude a complaining neighbor's name from his mailing list. A public official might also run afoul of this legislation in taking a stand on, or merely presenting both sides of, a controversial issue like population planning. Even a cleric could be effectively "silenced"-at least in the mailsbecause his views did not coincide with those of dissident members of his congregation. On the other hand, one notorious publisher (who resigned from DMAA under threat of expulsion for failure to adhere to DMAA's standards of practice) routinely sends mailings to religious leaders. By doing so he can count on generating a barrage of criticism and publicity which he can in turn capitalize upon in his future advertising. The threat of contempt-of-court citations means nothing to unscrupulous operators like this. They thrive on being in the eye of controversial hurricanes they have stirred up themselves. Indeed, enactment of the constitutionally fragile legislation now under consideration might only serve their ends. Overturning of the current legislation in the courts might only impede the pace of wholly legal efforts to curb the flow of obscene materials in the mails. OBSCENITY PROSECUTION SUCCESSES We further believe this legislation is unnecessary, Mr. Chairman, in the light of successes scored by the Post Office Department in prosecuting, under current statutes, those who mail obscene matter. The following figures dramatize this point: BALANCING OF CONFLICTING INTERESTS As the present Attorney General wrote to this committee on June 3, 1964: "The question arises whether, and to what extent, the interest of society in protecting the privacy of the home warrants restrictions on the dissemination of the written word ***. "Neither the right to privacy nor the right to disseminate information is absolute and *** the constitutionality of legislation affecting them will depend on a balancing of conflicting interests in the particular circumstances presented * "In each case (cited) the court looked to the practical effect of the ordinance, the alternative means available for protecting the interests of each party affected, and the extent to which the ordinance restricted noncommercial activities. "The testimony before the House Committee on Post Office and Civil Service as to the way in which large mailings are carried out indicates that the practical effect of an order, or a number of orders, issued under the bill, may be not only to prohibit mailings to the objecting addressee but to impede the dissemination of written matter to others who have not objected." [Emphasis supplied.] The Direct Mail Advertising Association feels these points are no less valid today. We would, therefore, like to remind the subcommittee that the American economy could never have reached its current dimensions if all sales required the potential buyer to solicit information about products he might want or need. Charles Kettering once observed: "It's much harder to improve selling techniques than production techniques *** and the reason is, people change from morning to afternoon, but pieces of metal don't." He was talking, of course, about attitudes, interests, motivations, etc. So when you realize that people not only move around physically but also change from prospects to nonprospects and back again, you'll understand why eternal vigilance is the price of a good mailing list. And because people change from morning to afternoon in their likes and dislikes, their wants and their needs, you'll understand why it is so important for businessmen to be able to reach them often, at times that are most propitious, and by methods they can afford. The very cost of list compilation and maintenance makes it economically infeasible for most companies to maintain mailing lists of their own, except lists of customers and key prospects; e.g., persons called on by their salesmen, those who have asked for literature, et al. That is why they rent from, and exchange names with, other companies with similar but noncompetitive merchandise or services. An advertiser may rent millions of names drawn from scores of different lists. Many such lists contain duplicated names, for an individual may subscribe several different publications in the same general interest area, or buy a variety of similar items by mail from different sources. (Actually, the more often the individual appears on such lists, the more certain the advertiser can be that a related product or service will also be of interest to him.) It is costly to mail multiple offers to the same addressee. But it would be many times more costly to search each and every list for duplicated names, and prohibitively expensive to take all the steps necessary to insure absolute exclusion of those who object to the advertiser's product or service, or viewpoint. Screening the use of lists and maintaining them in tiptop shape is a tedious, time-consuming, and costly job. But if, on top of all the so-called normal changes which are expected, mailers are required to deduce just what it is that a prospect or customer will consider morally objectionable, an almost impossible dimension will have been added to a sometimes unfathomable equation. CONCLUSION As we see it, despite some changes in wording, the legislation before you is not essentially different from what it was 20 months ago, when we said: "These bills*** would create untold administrative headaches because of their complexity. They would also produce a series of judicial nightmares because they impinge upon basic freedoms guaranteed by our Constitution. They would surely sap the strentgh of an important medium of advertising and sales promotion-one which has contributed so vitally and measurably to our |