The opinion of the court was delivered by: GURFEIN
This is an action by Fred Cherry (Cherry) and Alan Charmatz (Charmatz) to convene a three-judge-court pursuant to 28 U.S.C. §§ 2282 and 2284 to enjoin the Postmaster General from seizing, detaining, impounding, forfeiting, destroying, or otherwise impeding the delivery of certain post cards which will be more fully described below.
Plaintiffs also request a declaratory judgment that 18 U.S.C. § 1718 and 39 U.S.C. § 3001 are unconstitutional on their face and as applied because they violate the First Amendment in several respects.
The facts appear to be as follows. Cherry first entered into combat with the Postmaster General in 1966 when he attempted to disseminate through the mails post cards which admittedly defamed a certain clergyman as a homosexual. The Postmaster General declared these post cards to be non-mailable under 18 U.S.C. § 1718 and 39 U.S.C. § 3001. Cherry contested the actions by the Postmaster General in a lawsuit which sought to convene a three-judge-court to enjoin the enforcement of §§ 1718 and 3001 and to declare the sections unconstitutional. Plaintiff lost all the way to the Supreme Court. See Cherry v. Postmaster General, 272 F. Supp. 982 (D.P.R. 1967), aff'd without opinion by the First Circuit, cert. den., 391 U.S. 914, 88 S. Ct. 1809, 20 L. Ed. 2d 653 (1968).
After that loss plaintiff Cherry continued his assault on homosexuality via the medium of the post card by mailing and continuing to mail post cards which are entitled "Homosexual Child-Molesters to Become School Teachers." In or about July 1971 the Post Office returned one of the post cards. Cherry went to the Brooklyn General Post Office on July 23, 1971 and inquired about the reasons for the return of the post card. The Government contends that Cherry was told at that time that the reverse side of the post card contained the endorsement "Return Requested" which had become obsolete for first class post cards such as his. Cherry contends that he was told by Post Office officials that the post card was returned by error. Whichever story is true makes no difference in this decision. In any event, Cherry was dissatisfied with these explanations by three different postal officials.
Three days later Cherry went back to the Brooklyn General Post Office and presented one of these post cards for mailing. The matter was referred to Martin Shapiro, the Postmaster of the Brooklyn General Post Office. Shapiro, who apparently remembered Cherry's earlier conflict with the Post Office, was under the impression that a 1966 order required the Postmaster of each City to withhold post cards mailed by Cherry. Shapiro that same day sent a letter to the Judicial Officer of the United States Postal Service in Washington, D.C. in which he sought advice as to the mailability of Cherry's post card.
On July 28, 1971 the Judicial Officer wrote to Mr. Shapiro that he was wrong about the 1966 order which was limited only to the defamatory post cards which were the subject of Cherry's earlier action. He stated in the letter that Mr. Shapiro had no authority to withhold the post card at issue in the instant case.
On July 30, 1971 Mr. Shapiro received that letter from the Judicial Officer. Cherry's post card was released and mailed to the addressee. No post cards containing the material under the title "Homosexual Child-Molesters to Become School Teachers" subsequently mailed by Cherry have been detained or withheld by any Post Office.
Cherry and Charmatz then brought this lawsuit.
Cherry has supplied the Court with copies of other post cards he has mailed which he alleges to be "news and editorial comment on matters of general, political, religious and sociological significance." Among these Cherry specifically says that he intends to mail a certain post card which criticizes John V. Lindsay, the Mayor of New York City, as being too lenient on the issue of homosexuality in our society.
The Government, in addition, has made certain concessions with respect to all the post cards placed in issue by this lawsuit which are crucial and which will be adverted to in detail below.
The Supreme Court has "stressed that the three-judge-court legislation is not 'a measure of broad social policy to be construed with great liberality,' but is rather 'an enactment technical in the strict sense of the term and to be applied as such.'" Mitchell v. Donovan, 398 U.S. 427, 431, 90 S. Ct. 1763, 26 L. Ed. 2d 378 (1970).
In Cherry's first tiff with the Postmaster General, Chief Judge Cancio of the District of Puerto Rico noted that the following requirements were necessary to convene a three-judge-court: (1) jurisdiction lies in this Court; (2) there is a likelihood of success; and (3) there is a likelihood of irreparable damage. See Cherry v. Postmaster General, 272 F. Supp. 982 at 984; see also Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S. Ct. 1294, 8 L. Ed. 2d 794 (1962).
Cherry in this action does not meet any of the requirements to convene a three-judge-court pursuant to 28 U.S.C. §§ 2282 and 2284 since his application for injunctive relief has been rendered moot by the concessions of the Government.
The denial of a motion to convene a three-judge-court and to dismiss the complaint on the ground of mootness is an issue to be decided by the single District Judge to whom the application originally is made rather ...