The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1912-09-26
NEWSPAPER LAW
MERE PRETEMSf
lanes NJ. Beck Holds That It
Regulates Journalism. Not
the Mails.
IS NOT CONSTITUTIONAL
Distinguished Lawyer. Says Su-
preme Court Would So De-
eide, if Law Is Tested.
NOT CONSTITUTIONAL

Association few days ago 10 ts mem
bers suggesting injunction proceedings
against the enforcement Of the new
Federal statute. which practically puts
newspapers and other periodical pup
locations under government regulation.
were lengthy legal opinions from emil
nsnt counsel, declaring the new law
clearly unconstitutional
One of these opinions Was written
by James NJ Beck, former United
States Assistant Attorney General, ana
in II he says that he believes test
Of the law in the District Court or tho
United States Supreme Court would
result in its defeat. In his opinion. ne
says:
The attempt to censor the press
is not altogether novel During the
administration Of Andrew Jackson an
agitation sprans up TO exclude from
the United States mails all newspapers
which contained anti-s!avery matter
on the ground that 1t tended to dis
turb the public peace. In 1885 Presi-
dent Jackson recommended to Con-
gress the passage Of bill to make
such an exclusion from the Federal
mails. The bill was referred to a Sc
lect committee. OF which John c. CAL
4, 1886. the committee made report
to Congress recommending the pas
sage Of a law which would make II
penal o!Ysnse to transmit through the
mails ant.-slavery documents 20 any
State which had a local law forbid
ding the circulation Of such printed
matter. Although a pro-slavery man.
Calhound expressed the opinion in this
report that the Federal government
had no direct power TO forbid the CIR
culation Of antislavery matter except
as an auxiliary TO police regulations
of the several States James Buchan-
an affirmed the broader power OF the
Federal government to exclude any
matter from the mails which 1t DEEM
ed Objectionable. The views OF Buch-
anan and Calhoun were opposed by
Daniel Webster. and the proposed 81.
was rejected by a vote Of Is to -.
The 0uestiss IT Issue.
This legislation. therefore. involves
two questions:
Il Can the Federal government
prohibit under the threat Of imprison-
ment the insertion In newspaper
Of a paid matter unless 1t - plainly
marked as an Advertisement?
"e. Can the Federal government
exclude from the mails and Newspaper
or other publication which fails TO NE
with the Postmaster-General semi-an-
nually a sworn statement As to 1ts
business and editorial management
and its circulation?
The first question admits Of IN
easy answer That portion OF the IA"
does not pretend to exclude from the
mails publications which contain al
ve..isements which are not marked a.
Advertisements. II 1t did. 1t would
suggest a question which VIII mere
after be discussed in connection with
the second question. how far the
power Of Congress to determine what
shall and what snail not be carried
In the mails includes the right 70 ex-
ciude otherwise innocent mail matter.
unless il conforms to the conditions
prescribed by Congress. But ahat por-
ton Of the law which forbids the pun
LEGATION of Advertisements as reading
matter does not pretend TO resuiate
mail matter. Whether such puoncA-
ton. are carried In the mails or not,
the mere insertion by any editor or
publisher Of reading matter Tor WHICH
compensation ~ paid, accepted. or
promised without so marking the
same, is prohibited and punished win
imprisonment
Under this section Of the Law. .
newspaper which made no 0ss what
ever OF the mails and did not Avsii IT.
self of any other Federal instru-
mentality like the channels OF inter-
state trade. would yet be prohibited
from publishing paid meter except
as an advertisement.
nPncSiCN
Of publishing paid matter al ordinary
reading matter 10 in most cases bad
Journalists ethics. and assuming for
the purposes OF the argument that I'M
der all circumstances IL 10 for the pub
lie welfare that no contribution. for
which advertising rates are paid.
shall be published as ordinary reading
matter. nevertheless, even under the
legislative powers of sovereign
state. which are far more compre-
hensive and less delegated than those
of the Federal government, II Is at
least delstabie whether such a pro-
, vision void not infringe on the
liberty Of the press.
In any sspec; Of the case IL is .
matter Of police regulation which -
in the reserved power Of the state. 20
decision of the Supreme Court can BE-
cited which lends the slightest Jus'a-
, rcation to this bald attempt of Con-
! sress to regulate what shall and what
shall not appear in the newspapers
of the country.
Csrsase 81 Ma0 . Preeeose.
. The difference between regulating
an exercise OF a FEDERAL power. such
as conveyance by the mails or inter-
state commerce. and Furnishing Sensr.
ally a given evil withou; reference
to its exercise OF Federal functions.
can be illustrated by the fact that
while Congress has the power TO cx.
c,ude from the mails any Newspaper
which contains lottery advertisements.
:: IA. no power except in tnc Terri
tories TO prohibit a newspaper from
inserting q lottery advertisement q
| ~ not the insertion OF tho lottery ad-
verstsement that the Federal govern
! r,ent has the power 70 prohibtt but
4, ia its carriage in the mails SINH
larry the Federal government has the
power under It's plenary authority
ovsr Sorsi0u commerce 10 prohibit the