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March 29, 1978


The opinion of the court was delivered by: CONNER



 This action, brought by two Westchester County community organizations, challenges the constitutionality of Section 1725 of Title 18, United States Code, and regulations issued thereunder as applied to plaintiffs and "all other similarly situated," *fn1" on First Amendment grounds. Section 1725 prohibits deposit of "any mailable matter" in letter boxes without postage. The plaintiff organizations admit that they have violated § 1725 by hand-delivering non-postaged newsletters, brochures and notices regarding various community activities and placing them in the mailboxes of their constituents. In June 1976, plaintiff Saw Mill Civic Association was advised by the Westchester Postmaster that this practice was unlawful, and that further violations would be prosecuted. In response to an inquiry from plaintiffs' counsel, the Postal Service's Office of General Counsel ruled that the Postmaster had properly applied the statute.

 Plaintiffs seek declaratory and injunctive relief, claiming that the enforcement of § 1725 against their distribution of non-commercial literature, which is designed to inform and educate the public, has a "pervasive chilling effect" on the exercise of their First Amendment rights and the rights of those who receive the information they distribute. Plaintiffs maintain that in view of the cost of mailing and delays inherent in the use of the Postal Service, hand delivery of non-postaged material is the only practical and economically feasible means by which they can communicate with the public, and that the continued enforcement of the statute will operate as a prior restraint on speech by effectively preventing distribution of such literature.

 Presently before the Court are plaintiffs' motion for summary judgment and defendant's motion to dismiss for failure to state a claim upon which relief may be granted.

 The statute in question provides:

" Postage unpaid on deposited mail matter
"Whoever knowingly and willfully deposits any mailable matter such as statements of accounts, circulars, sale bills, or other like matter, on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter on any mail route with intent to avoid payment of lawful postage thereon, shall for each such offense be fined not more than $300."
18 U.S.C.A. § 1725 (Pocket Part 1977) *fn2"

 Plaintiffs contend that the statute does not apply to non-commercial matter. They argue that terms such as "statements of account," and "sale bills," clearly refer to commercial matter, and the legislative history reveals an exclusive concern with

"[business] concerns, particularly utility companies, [that] have within the last few years adopted the practice of having their circulars, statements of account, etc., delivered by private messenger, and have used as receptacles the letter boxes erected for the purpose of holding mail matter and approved by the Post Office Department for such purpose. This practice is depriving the Post Office Department of considerable revenue on matter which would otherwise go through the mails and at the same time is resulting in the stuffing of letter boxes with extraneous matter."
H.R.Rep. No. 709, 73d Cong., 2d Sess. 1 (1934).

 There is, however, evidence that the Post Office Department, which proposed the legislation, and its Congressional sponsors, intended the statute to apply to noncommercial circulars, such as the community notices distributed by plaintiffs. For example, a proposed amendment that would have inserted the word "commercial" into the statute was rejected in the House debates on the bill. In discussing H.R. 9262 -- a virtually identical predecessor of the bill eventually passed -- the following colloquy took place:

Mr. BLANTON. Mr. Speaker, I ask recognition on the amendment. I am wondering if the gentleman from New York [Mr. MEAD], who is chairman of the committee, would be willing to permit an amendment so as to add the word "commercial" before the word "circular," so that it would apply only to commercial circulars. There are some circulars that it is to the interest of the patrons of the Post Office to receive, which are matters of interest in a local community. For instance, there are thousands of communities where notices out in the country to the effect that a church sociable is going to be held or that there is to ...

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