# Blount v. Rizzi

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## Concurring Opinion

    Black
United States Supreme Court
400 U.S. 410
Blount, Postmaster General, et al. v. Rizzi, DBA The Mail Box
Appeal from the United States District Court for the Central District of California
No. 55. Argued: November 10, 1970 --- Decided: January 14, 1971
Title 39 U.S.C. § 4006 permits the Postmaster General to stamp as "Unlawful" and return to the sender letters addressed to any person and to prohibit the payment of postal money orders to that person if he finds, on "evidence satisfactory to [him]," that the person is obtaining or seeking money through the mails for "an obscene... matter" or is using the mails to distribute information about how such items may be obtained. Under departmental regulations, following complaint and notice of hearing, a Judicial Officer holds a hearing and renders his opinion "with all due speed," from which there is an administrative appeal. Section 4007 permits district courts to order the defendant's incoming mail detained pending completion of the § 4006 proceedings, upon a showing of "probable cause" to believe that § 4006 is being violated, under the standards fixed by Fed. Rule Civ. Proc. 65. In No. 55, appellee, a retail magazine distributor against whom the Postmaster General had instituted a § 4006 proceeding, brought an action in the District Court seeking declaratory and injunctive relief. A three-judge court held the statute unconstitutional for failure to meet the requirements of Freedman v. Maryland, 380 U.S. 51, which held with respect to a scheme of administrative censorship that (1) the censor must initiate judicial review and prove that the material is unprotected expression; (2) "prompt judicial review" is mandatory; and (3) any restraint before a final judicial determination must be limited to the shortest, fixed period compatible with sound judicial resolution. In No. 58, where the Postmaster General applied for a § 4007 order, the District Court, on appellee distributor's counterclaim, held § 4006 unconstitutional under Freedman v. Maryland, supra, and that § 4007's "probable cause" standard was constitutionally insufficient to support a temporary mail detention order.
Held: The administrative censorship scheme created by 39 U.S.C. §§ 4006, 4007 violates the First Amendment since it lacks adequate safeguards against undue inhibition of protected expression. Freedman v. Maryland, supra. Pp. 416-422.
    (a) The statutory scheme does not require governmentally initiated judicial participation in the procedure barring the magazines from the mails or assuring prompt judicial review. Pp. 417-418.
    (b) The authority given the Postmaster General under § 4007 to apply for a court order for temporary mail detention does not cure the defects in § 4006 since the procedure is only discretionary and the requirement for prompt judicial review is not satisfied by a "probable cause" finding. Pp. 419-420.
    (c) Section 4007 fails to provide that any restraint preceding a final judicial determination "be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution." 380 U.S., at 59. Pp. 421-422.
No. 55, 305 F. Supp. 634; No. 58, 306 F. Supp. 1023, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and DOUGLAS, HARLAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined. BLACK, J., concurred in the result.
Peter L. Strauss argued the cause for appellants in both cases. With him on the brief were Solicitor General Griswold, Assistant Attorney General Ruckelshaus, Robert V. Zener, Donald L. Horowitz, David Nelson, and Charles D. Hawley.
Stanley Fleishman argued the cause for appellee in No. 55. With him on the brief was Sam Rosenwein. Robert Eugene Smith argued the cause for appellee in No. 58. With him on the brief was Hugh W. Gilbert.

## Notes

* ↑ Together with No. 58, United States et al. v. The Book Bin, on appeal from the United States District Court for the Northern District of Georgia.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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