Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1912-09-28


umns. of any matter, for the insertion
of which the publisher has received
compensation, unless matter thus in
serted is marked as an advertise
ment."
/ shall not discuss the wisdom of
these regulations. Public policy may
require publicity as to ownership and
circulation, and the exclusion of paid
matter, which masquerades under the
form of reading matter, may likewise
be required by public policy Both
provisions raise a preliminary and
fundamental question as TO the power
of the Federal Government to regulate
journalism, and it is to this inquiry
that | propose to address myself.
The Federal Government has no
power that is not expressly or by fair
implication delegated to it. Beyond
the guarantee of the freedom of the
press, the Constitution is silent as to
any federal power over journalism.
Under these circumstances, it has al
ways been recognized that journalism,
as such, was not within the power of
the Federal Government. Unques-
tionably the physical carriage OF
newspapers from state to state is liz
terstate commerce and undoubtedly
the carriage of newspapers by the
Post Office Department of the United
States Government is, as to such car
riage, a federal function and within
the power of the Federal Government.
Undoubtedly the Federal Government
can forbid the conveyance from state
to state by the ordinary channels of
interstate commerce or the conveyance
by its Post Office Department. either
between the states or within the
states, of any matter which in the
judgment of Congress is prejudicial u
public morals. a newspaper, there
fore, which contains lottery advertise
ments or otherwise immoral matter
may be excluded either from the mails
or from interstate conveyance by
means of express companies or other
wise. -t.. ..4+ -t-a IT, n
Conceding this power of regulation
as TO the channels of interstate COM
merce and Of the post roads, ar more
difficult question remains. whether
under the guise of such resulation the
Federal Government can in effect &c
into the newspaper offices and regu-
late the methods of journalism, as IL
which it would otherwise be without
any constitutional power. If sos the
Federal Government can exercise an
effective censorship of the press il
matters other than those of strict
morality, by simply denying to the
newspaper publisher either the facili-
ties of Interstate commerce or the
instrumentality of the postal service
except under condition that it shall
conform to such Views as to journal
istic methods as Congress may pre-
scribe. Such an extension of powef
has hitherto been undreamed of and
if it exist, it is obviously a matter of
the gravest concern. The news
paper press is in theory and fact the
fourth estate" and anything that af
fects its freedom from undue govern
mental interference is of vital inn
portance to the perpetuity of our in
situations. If such power be now
conceded without a contest. it may be
the entering wedge for further regula-
ton and the freedom of the press may
thereby ultimately be jeopardized.
The attempt TO censor the press is
not altogether novel. During the adj
ministration of Andrew Jackson an
Aleilith sI'I llil6 UP " 'ANAN'S AAo4-t
the United States mails all news
papers which contained anti-slavecy
matter on the ground that ii tended to
disturb the public peace. In 1850
President Jackson recommended to
Congress the passage of a bill to make
such an exclusion from the federal
mails. The bill was referred to a Sc
lect committee, of which John G. Cal
houn was chairman, and on February
4, 1886, the committee made report
to Congress, recommending the pas
sage of a law which would make it
penal offense to transmit through the
mails anti-slavery documents to any
state, which had local law forbidding
the circulation of such printed mat
ter Although a pro-slavery man,
Calhoun expressed the opinion in this
report that the Federal Government
had no direct power to forbid the cir
eulation of slavery matter except
as an auxiliary to police regulations of
the several states. James Buchanan
affirmed the broader power of the Fed
eral Goyrnment to exclude any matte"
from the mails, which it deemed OBJ
| jectionhble. The views of Buchanan
| and Calhoun were opposed by Daniel
Webster and the proposed bin was
rejected by vote of rs to 10.
This legislation therefore involves
| two questions
/. Can the Federal Government
| prohibit under the threat of imprison-
| ment the insertion in newspaper OF
paid matter unless it is plainly marked
as an advertisement?
! 2 Can the Federal Government ex-
| clude from the mails any newspaper
or other publication which fails to file
| with the Postmaster General semi
| annually a sworn statment as to its
| business and editorial management
and its circulation?
| The first question admits of an easy
answer. That portion of the law
| does not pretend to exclude from the
mails publications which contain adj
vertisements which are not marked as
| advertisements. If it did, it would
| suggest a question which will here
| after be discussed in connection with
the second question, how far the
| power of Congress to determine what