December 15, 1978

78-65 MEMORANDUM FOR THE ATTORNEY

GENERAL

National Security Mail Covers—Constitutional

Challenge—Federal Bureau of Investigation

(39 CFR 233.2(d)(2)(H))

You have asked us to review the effect of District Judge Whipple’s opinion 

on remand in Paton v. LaPrade, 469 F. Supp. 773 (D. N.J. 1978) on the 

current use of mail covers in cases being investigated by the Federal Bureau of 

Investigation (FBI) under the Foreign Intelligence and Foreign CounterIntelligence guidelines. We believe that the opinion, standing alone, requires 

no change in present practice. A Supreme Court decision to the same effect 

would, of course, require the termination of any national security mail covers 

authorized under existing Postal Service regulations.

The plaintiff, Lori Paton, sued the FBI in 1973 seeking, inter alia, damages 

for injuries caused by the interception of a letter she had written to the Socialist 

Workers Party (SWP). Her letter was intercepted under an FBI-authorized mail 

cover. She further sought a declaration that the postal regulation under which 

the SWP mail cover was conducted, 39 CFR § 233.2(d)(2)(ii) (1977), was 

unconstitutional.1

The complaint was originally dismissed. Paton v. LaPrade, 382 F. Supp. 

1118 (D. N.J. 1974). On appeal the Third Circuit held that the complaint stated 

an actionable claim for damages and Paton had standing to challenge the 

constitutionality of the mail cover regulation, 524 F. (2d) 862 (3d Cir. 1975). 

On remand Judge Whipple declared the regulation unconstitutional on its face. 

He reached his conclusion as follows: First, the SWP mail cover, as authorized 

by the challenged regulation, infringed on political associational freedoms

'T he regulation reads:

“ (2) The C hief Postal Inspector, or his designee, may order mail covers under the 

following circum stances: * * *

(ii) W hen written request is received from any law enforcem ent agency wherein the 

requesting authority stipulates and specifies the reasonable grounds that exist which 

dem onstrate the mail cover is necessary to (A) protect the national security . . . . ”

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protected by the First Amendment. Buckley v. Valeo, 424 U.S. 1 (1976); 

NAACP v. Alabama, 357 U.S. 449 (1958). Second, because the regulation had 

that effect, it had to pass muster under “ strict” constitutional scrutiny; that is, 

the regulation had to be justified by a compelling Government interest that was, 

in fact, served by its operation. Buckley v. Valeo, supra, 424 U.S. at 64. 

Finally, Judge Whipple concluded that the Government had demonstrated no 

compelling interest because of the vagueness of the term “ national security” 

and the consequent “ overbreadth” of the regulation.

For purposes of this memorandum we assume that Judge Whipple might 

have properly concluded that the challenged regulation as applied in Ms. 

Paton’s case was not justified by any compelling Government interest, and 

therefore unconstitutional. We believe that Judge Whipple’s analysis of the 

regulation was incorrect because of his failure to consider the constitutionality 

of the regulation as applied.

Judge Whipple found the challenged postal regulation overbroad because it 

was “ susceptible to impermissible applications” (see 524 F. (2d) at 779) and 

not “ susceptible to a narrowing construction,” (524 F. (2d) at 782) which 

could withstand strict scrutiny. If the term “ national security” were confined to 

cases in which there was some foreign power involvement, we believe the 

regulation would be justified by a compelling Government interest. This 

conclusion is compatible with the distinction drawn by the Supreme Court in 

United States v. United States District Court, 407 U.S. 297, 322 and n. 20 

(1972), between domestic security cases and cases involving foreign powers or 

their agents. The Court held that a warrant was required in a domestic security 

case not involving a foreign power. Because the Third Circuit recognized the 

Government’s compelling interest in the conduct of foreign affairs and held that 

the President has power to conduct warrantless electronic surveillance to gather 

foreign intelligence information, United States v. Butenko, 494 F. (2d) 593 (3d 

Cir. 1974), we think it doubtful that the Third Circuit would uphold Judge 

Whipple’s decision as written.

Even assuming the SWP mail cover in this case was unconstitutional, Judge 

Whipple’s analysis of the regulation on its face adjudicated questions not 

requisite to the protection of any party’s rights. Had he first addressed the 

constitutionality of the regulation as applied, he could have afforded the 

plaintiff complete relief without deciding issues not presented by the facts. The 

Supreme Court’s hesitancy in resorting to overbreadth analysis counsels such 

an approach: “ [W]hen considering a facial challenge it is necessary to proceed 

with caution and restraint, as invalidation may result in unnecessary interference with a [government] regulatory program,” Erznoznik v. City of Jacksonville,

422 U.S. 205, 216 (1975). The Court has refrained, for example, from relying 

on the asserted overbreadth of breach-of-the-peace statutes to overturn 

petitioners’ criminal convictions in cases in which such convictions were 

themselves unconstitutional under the First Amendment or unsupported by any 

evidence. See, Broadrick v. Oklahoma, 413 U.S. 601, 613-14 (1978), and 

cases cited therein. The Supreme Court, moreover, has resisted application of 

overbreadth analysis in cases involving “ statutes regulating conduct in the

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shadow of the First Amendment, but doing so in a neutral, noncensorial 

manner.” Broadrick v. Oklahoma, supra, at 614. Like the statute upheld in 

Broadrick, the regulation challenged by Paton is “ neutral” and “ noncensorial,” 

although it clearly implicates First Amendment liberties. However, unlike the 

Broadrick statute, the postal regulation does not proscribe any conduct. Paton 

was free to engage in any “ speech” she desired; the Government made a record 

of her “ speech,” it did not prohibit it. Thus, her case presents a more 

compelling circumstance for the court to avoid overturning the challenged 

regulation for overbreadth.

Because we believe Judge Whipple’s broad conclusion is incorrect, we think 

it would be lawful to continue to approve and implement mail covers under the 

existing FBI Foreign Intelligence and Counter-Intelligence guidelines. This 

conclusion rests,' of course, on the assumption that the District Court will not 

enjoin the FBI or the Postal Service.

J o h n M . H a r m o n

Assistant Attorney General

Office o f Legal Counsel

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