Appeal from dismissal in the United States District Court for the Southern District of New York, William C. Conner, Judge, of action seeking declaratory and injunctive relief on first amendment grounds from threatened enforcement of 18 U.S.C. § 1725 prohibiting deposit of unstamped mailable matter in letter box.
Before Kaufman, Chief Judge, Smith and Meskill, Circuit Judges.
Two "non-partisan civic organizations," threatened with prosecution under 18 U.S.C. § 1725*fn1 for depositing unstamped notices and pamphlets in approved letter boxes of private homes, sought declaratory and injunctive relief on first amendment grounds in the United States District Court for the Southern District of New York, and moved with supporting affidavits for summary judgment. The court, William C. Conner, Judge, dismissed the complaint on a cross-motion under Fed.R.Civ.P. 12(b). We find error in the dismissal at this stage of the case, reverse the order of dismissal and remand for further proceedings.
The motion to dismiss under Rule 12(b) was based on a claimed failure to "state a cause of action," I. e., a failure to state a claim on which relief can be granted. We think, however, that enough is alleged in the complaint to raise the issue of infringement of freedom of communication.
Plaintiffs have alleged that the only practicable method of delivery of their messages to their constituents is hand delivery to the privately-owned mail receptacles of the constituents, and that the enforcement of § 1725 against them deprives them of constitutional rights including the rights of free speech and free press. The costs and time delays of using the regular mails are claimed to be in practice insurmountable barriers to effective communication by ordinary mail by these plaintiffs. We think these allegations sufficient to survive a Rule 12(b) motion to dismiss.
"A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972), Citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957); see also, Build of Buffalo, Inc. v. Sedita, 441 F.2d 284 (2d Cir. 1971).
The allegations, though general, are sufficient under this standard. If they were thought deficient in any way, permission to amend should have been granted. The parties are entitled to an opportunity to submit proof as to the extent of the handicap*fn2 to communication caused by enforcement of the statute in the area involved, on the one hand, and the need for the restriction for protection of the mails, on the other.*fn3 This is a sensitive first amendment area. Careful balancing of the need for the statute against the statute's constriction of first amendment rights is called for. See Martin v. City of Struthers, 319 U.S. 141, 63 S. Ct. 862, 87 L. Ed. 1313 (1943); Schneider v. State, 308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155 (1939); Wolin v. Port of New York Authority, 392 F.2d 83 (2d Cir. 1968). Full development of the facts is essential for the court to strike this balance.
We express no opinion, on this record, on the merits of the claim.
IRVING R. KAUFMAN, Chief Judge (concurring):
I concur in my Brother Smith's clear and succinct opinion. I add these comments only to elaborate on the considerations underlying our conclusion that the two plaintiff civic organizations have stated a constitutionally cognizable claim.
The free expression interest of these associations is not shrouded in obscurity. It is illumined clearly by some of the classic writings on the First Amendment. Freedom of press "necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest." Lovell v. Griffin, 303 U.S. 444, 452, 58 S. Ct. 666, 669, 82 L. Ed. 949 (1938). And probably the most effective way of ensuring that such literature reaches its intended audience is house-to-house distribution. Schneider v. State, 308 U.S. 147, 164, 60 S. Ct. 146, 84 L. Ed. 155 (1939). Indeed, the Supreme Court has declared that "(d)oor to door distribution of circulars is essential to the poorly financed causes of little people." Martin v. City of Struthers, 319 U.S. 141, 146, 63 S. Ct. 862, 865, 87 L. Ed. 1313 (1943). Moreover, the individual householder's right to receive ...