Brownsville herald. [volume] (Brownsville, Tex.) 1910-current, 1912-09-26
BROWNSVILLE DAILY HERALD THURSDAY, SEPT 2s, 1912.


power of Congress to determine what
shall and what shall not be carried
in the mails includes the right to
exclude otherwise innocent mail mat
ter, unless it conforms to the condi-
that portion of the law which forbids
the publication of advertisements as
reading matter does not pretend to
regulate mail matter. Whether such
publications are carried in the mails
or not, the mere insertion by any ed
.itor or publisher of reading matter
for which compensation is paid, &C
cepted or promised without so mark
ing the same, is prohibited and pun
ished with Imprisonment. Under this
which made no use whatever of the
mails and did not avail itself of any
other federal fundamentally, like
the channels Of interstate trade,
would yet be prohibited from pub
fishing paid matter except as an adj
vertisement. No such far reaching
usurpation of the reserved police
powers of the State has ever been
brought to my knowledge. 1t is a
plain, palpable and naked invasion of
the reserved rights of the States. 1t
is doubtful whether even a State,
with more comprehensive powers of
legislation, could pass such a law. in
view of the guarantee of the freedom
of the press which may be found in
almost any State Constitution.
Freely admitting that the practice
of publishing paid matter as ordin-
airy matter is in most cases bad jour
|nalistic ethics and assuming for the
purposes Of the argument that under
all circumstances it is for the pub
lie welfare that no contribution, for
which advertising rights are paid.
shall be published as ordinary read
ing matter, nevertheless even under
the legislative powers of a sovereign
State, which are far more compre-
hensive and less delegated than
those of the Federal Government, IL
is at least debatable whether such
a provision would not infringe the
liberty Of the press.
In any aspect of the case, it is a
matter of police regulation, which is
within the reserved power Of the
Estate. No decision of the supreme
court can be cited which lends the
slightest Justification to this bald at
tempt of Congress to regulate what
shall not appear in the newspapers
of the country. The difference be-
tween regulating an exercise Of a
federal power, such as conveyance by
the mails or interstate commerce,
and Furnishing generally a given evil
without reference to its exercise Of
federal functions, can be illustrated
by the fact that while Congress has
the power to exclude from the mails
any newspaper which contains lot
itery advertisements, it has no power
Except in the territories to prohibit
a newspaper from inserting a lottery
advertisement. 1t is not the inser-
ton of the lottery advertisement
that the Federal Government has the
power to prohibit, but it is its car
rage in the mails. Similarly the
Federal Government has the power
under its plenary authority over for
eign commerce to prohibit the impor-
~tation of immoral matter, but it has
no power except in the territories to
punish the publication Of immoral
matter without reference to it's car
riage either in the mails or in for
eign or interstate commerce. The line
of demarcation has always been
drawn and admits of no dispute.
In this connection, the statement
which the Postmaster-General made
to Senator Bourne, Chairman of the
Committee on Post Offices and Post
Roads, is significant although not
controlling. He regarded the provi-
sion as needless, and added:
1.-THE only possible service to be
rendered by such a provision would
be the Identification Of the owners
and writer's of newspapers and
periodicals, in order to hold them
for ~contractual obligations or for
libelous printed matter, both Of
which would be matters under the
jurisdiction of the State and not
Pf federal authority"
This disclaimer of novel power by
a federal official is as unusual as it
is gratifying. 1t is almost the only
instance that l can recall where a
federal official declined to accept an
extension of executive mower which