The opinion of the court was delivered by: JUDD
This action for an injunction against enforcement of a federal statute presents the knotty problem of federal power to regulate pornography and nearpornography, and specifically the validity of requirements set forth in the socalled Goldwater amendment to the Postal Reorganization Act of 1970 (39 U.S.C. §§ 3010-11; 18 U.S.C. §§ 1735-37; Pub. L. 91-375), and regulations issued thereunder.
The statute imposes two major duties on mailers of "sexually oriented advertisements." The first is that they must purchase from the Postal Service a monthly list of persons who have informed the Service in writing that they do not want to receive sexually oriented advertisements, and then remove the names of these persons from their mailing lists. The second duty is that they must place on the envelope or cover of the advertisements a "mark or notice" to be prescribed by the Postal Service.
The action was begun by the filing of a complaint and a simultaneous application for a temporary restraining order and for the convening of a three-judge court. Such a court was convened on a finding by the district judge that the action raised substantial questions of the constitutionality of an act of Congress. 28 U.S.C. § 2282. The request for a temporary restraining order was denied.
Prior to the hearing before the three-judge court, both sides submitted voluminous affidavits and memoranda. At the hearing, it appeared that there were no substantial issues of material fact, and that no testimony was required, but that the issues of law would require thoughtful consideration. During the presentation of the case to the three-judge court, both parties made oral motions for summary judgment.
Subsequent to the hearing, the three-judge court, noting that there were substantial questions which would require consideration, issued a limited temporary injunction enjoining the enforcement of the statute and regulations (a) insofar as they required use of the Postal Service list by persons who mail sexually oriented advertisements only in response to specific requests therefor, and (b) insofar as they required that mailers who place the legend "Sexually Oriented Ad" on a sealed inner envelope or cover must also place such a legend on the outer envelope or cover.
The plaintiffs in this case cover a wide variety of participants in the distribution of sexually oriented materials. Plaintiff Pent-R-Books, Inc., is the publisher of "The Photographic Manual of Sexual Intercourse." Plaintiff Complete Offset Lithography, Inc. prints, reproduces and manufactures mail matter which may constitute sexually oriented advertisements. Plaintiffs Educational Books, Inc., Fact Research, Inc., MediData, Inc., Book Bargains, Inc., RAS Enterprises, Inc. and Unique Distributors, Inc., are publishers or distributors of books, magazines, pamphlets and motion picture films, for sale only to adults. Plaintiff Electronic Innovations, Inc. is planning to distribute and advertise films, phonograph records, cassettes, etc., for sale to adults. Plaintiff Fact Records, Inc. is planning the sale and advertisement of tourist guides as to sexual practices and activities in varying countries, for adults only.
Plaintiff R & R Computer Lists, Inc., is a broker of mailing lists, which prepares mailing lists and leases them for use by others for advertising purposes. Plaintiff RAS Enterprises, Inc., owns and maintains mailing lists and processes the mailing of advertisements and shipment of materials for the plaintiffs who are publishers or distributors. Plaintiff Ronald A. Stewart (who may be the RAS in RAS Enterprises, Inc.) is an individual who, according to the complaint, has been described in pending federal criminal actions as the alter ego of RAS Enterprises, Inc. and Pent-R-Books, Inc.
Plaintiff Moe Shapiro is an unaffiliated small dealer in sexually oriented material, who sends his advertisements only in response to written requests, elicited by advertisements in periodicals or newspapers. His gross profit from the activity is less than $10,000. One of his typical advertisements says:
Over 100 UNCENSORED PICTURES of Coital Positions in FREE BONUS BOOK! Send $1 cash or stamps . . . (deductible) for one ILLUSTRATED BROCHURE! Give Age; Sign name.
Advertisements by Pent-R-Books, Inc. are issued in large volume. Over a period of a year and a half, it has mailed advertisements of the Photographic Manual to approximately three million people on its own mailing list and five and one-half million people on mailing lists rented from others. As a result of these advertisements and of wide-spread bookstore sales, approximately 300,000 hard-cover copies of the Photographic Manual were sold at prices ranging from approximately $10.00 to $13.00 a copy, and approximately 100,000 paperback copies at about $3.00 a copy.
Between 100,000 and 150,000 prohibitory orders were sent to Pent-R-Books, Inc., by the Post Office Department, as a result of notices sent to the Department under 39 U.S.C. § 4009 (now § 3008). That statute provides that the Postal Service on request of any person "shall issue an order * * * directing the sender * * * to refrain from further mailings to the named addressees." In approximately 468 cases there were in fact second mailings to persons who were named in prohibitory orders, and administrative hearings have been held in the Post Office Department
on these cases. Affidavits by plaintiff indicate that computer errors may cause mailings to persons on the Postal Service list in approximately one-half of one percent of the cases. This discrepancy results from a number of circumstances difficult to control: differences in the spelling of the name on the mailer's list and on the Postal Service list, variances in addresses, and even dust accumulating on either party's tape. The mailing list of Pent-R-Books, Inc. is on tape, which is periodically "cleansed" by removing the names of persons who are listed in prohibitory orders.
Copies of the Postal Service list will be made available either by subscription to monthly computer tapes or by purchase of print-outs. The print-outs, price at 1/2 cent per page in the revised regulations, will presumably be used by small mailers, and the computer tape by large mailers whose own lists are already on tape. Subscribers to the Postal Service list are required to deposit $5,000 each per year, to be credited against a maximum of $10,000 a year, depending on how many subscribers there will be. This price is based on a Post Office estimate that there will be about 25 subscribers to share the cost. The Postal Service estimates that 1,000,000 names will be placed on the list in the first year, and at least 200,000 annually thereafter. The regulation provides for the total net cost of preparing and distributing the list to be prorated among the subscribers.
The cost of processing mailing lists in order to comply with the Goldwater amendment was the subject of affidavits by computer experts for plaintiffs and defendants. The first Postal Service list of persons who asked to be kept free from sexually oriented advertisements contained about 6,800 names; the fourth monthly list, issued May 10, 1971, contains 155,266 names. The cost of cleansing a mailing list depends more on the size of the mailing list than on the number of names to be eliminated, since all the reels in the mailing list must be run through the computer to remove names on the Post Office list. Plaintiffs estimate the cost of cleansing their list at $26,000 a year (including a $10,000 fee to the Postal Service). Defendants' estimate is about $20,000 a year. The court finds that $25,000 a year is a fair estimate.
The original Postal Service regulations required that the words "Sexually Oriented Ad" be printed in large type on the outside of every envelope. That the use of this legend may have affected mailers adversely was evidenced by protests from individuals who wished to receive such advertisements discreetly and also by a substantial decline in sales. The secretary of Pent-R-Books, Inc. and RAS Enterprises, Inc., reports that many recipients of sexually oriented advertisements asked to be taken off the mailing lists when the legend required by the Postal Service regulation was used on the outer envelope. Typical comments include:
[It] is a source of embarrassment to get envelopes like this handed to you.
In the future, please send any advertisement in a "Plain Envelope." You do not have to warn me of the contents. I welcome it. I live with my mother and "Old-Maid" sister.
Had I had a P.O. Box number it would be different, but most everyone hands me my mail since I live in a roominghouse.
Do not send material if you mark your envelopes "sexually oriented ad," as my mail is handled by doormen and servants.
Mailings which were sent in envelopes containing the legend required by the Postal Service reflected a substantial drop in the number of favorable responses, with a serious loss of sales to the plaintiffs.
The operations manager of the computer house used by plaintiff RAS Enterprises, Inc. analyzed the 31,604 names on the second Postal Service list and found that 621 of them (or approximately 2%), had previously bought material from one or more of the plaintiffs.
The Legislative Findings and the Statute
The Congressional findings which support the Goldwater amendment are contained in Section 14 of Pub. L. 91-375, which reads:
INVASION OF PRIVACY BY MAILING OF SEXUALLY ORIENTED ADVERTISEMENTS
Sec. 14. (a) The Congress finds --
(1) that the United States mails are being used for the indiscriminate dissemination of advertising matter so designed and so presented as to exploit sexual sensationalism for commercial gain;
(2) that such matter is profoundly shocking and offensive to many persons who receive it, unsolicited, through the mails;
(3) that such use of the mails constitutes a serious threat to the dignity and sanctity of the American home and subjects many persons to an unconscionable and unwarranted intrusion upon their fundamental personal right to privacy;
(4) that such use of the mail reduces the ability of responsible parents to protect their minor children from exposure to material which they as parents believe to be harmful to the normal and healthy ethical, mental, and social development of their children; and
(5) that the traffic in such offensive advertisements is so large that individual citizens will be helpless to protect their privacy or their families without stronger and more effective Federal controls over the mailing of such matter.
(b) On the basis of such findings, the Congress determines that it is contrary to the public policy of the United States for the facilities and services of the United States Postal Service to be used for the distribution of such materials to persons who do not want their privacy invaded in this manner or to persons who wish to protect their minor children from exposure to such material.
The basic statutory provision is contained in 39 U.S.C. § 3010, which reads:
(a) Any person who mails or causes to be mailed any sexually oriented advertisement shall 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.
(b) Any person, 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, may 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 sexually oriented advertisement to any individual whose name and address has been on the list for more than 30 days.
(c) No person shall sell, lease, lend, exchange, or license the use of, or, except for the purpose expressly authorized by this section, use any mailing list compiled in whole or in part from the list maintained by the Postal Service pursuant to this section.
(d) "Sexually oriented advertisement" means any advertisement that depicts, in actual or simulated form, or explicitly describes, in a predominantly sexual context, human genitalia, any act of natural or unnatural sexual intercourse, any act of sadism or masochism, or any other erotic subject directly related to the foregoing. Material otherwise within the definition of this subsection shall be deemed not to constitute a sexually oriented advertisement if it constitutes only a small and insignificant part of the whole of a single catalog, book, periodical, or other work the remainder of which is not primarily devoted to sexual matters.
Provision for judicial enforcement of this statute is contained in 39 U.S.C. § 3011, which authorizes the Attorney General to commence a civil action in a district court for an injunction on request of the Postal Service. Such an injunction may be issued if the court finds a violation of Section 3010, and may include a direction to any postmaster to refuse to accept sexually oriented advertisements originating from the defendant in the action.
Criminal prosecution for violations of the Goldwater amendment is authorized in 18 U.S.C. §§ 1735 and 1737, which are also part of Pub. L. 91-375, and which read:
§ 1735. Sexually oriented advertisements
(1) willfully uses the mails for the mailing, carriage in the mails, or delivery of any sexually oriented advertisement in violation of section 3010 of title 39, or willfully violates any regulations of the Board of Governors issued under such section; or
(2) sells, leases, rents, lends, exchanges, or licenses the use of, or, except for the purpose expressly authorized by section 3010 of title 39, uses a mailing list maintained by the Board of Governors under such section;
shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first offense, and shall be fined not more than $10,000 or imprisoned not more than ten ...