Evening star. [volume] (Washington, D.C.) 1854-1972, 1944-01-08

Office Department itself, which nc
longer is willing-and rightly so-tc
leave the second-clasS mailing priv
ilege or license power underlined and
seeks from the courts a definition
Of what Congress intended when ii
wrote the second-class mailing law
The Post Office Department says in
its formal statement:
1.-THE language of the act of Con-
gress establishing the fourth con-
dition seems plain and specific
Whatever the featured and domi-
nant pictures, prose and verse OF
this publication may be, they are
not information of public charac-
ter or literature, the sciences, arts
or some special industry contribut-
ing to the public welfare and the
public good to the extent that this
publication should be relieved of
payment of more than 100000 in
postage per annum."
In banning the particular publica-
ton under discussion, the Post Office
Department does not rest it's case on
the ground that the material pub
lished is obscene" although the
courts would doubtless uphold such
a ban if the evidence were conclu-
sive The department uses the &C.
casion to find out what can or can
not be done with the second-class
mailing privilege as an instrument
of public policy.
For many years American publish
ers have been Indifferent to the
weapon which has been dormant in
the hands of Government. 1t has
been too readily assumed that the
first amendment to the Constitution
was sufficient because it forbade
Congress to make any law abridging
the freedom of speech or of the
press.
But the Constitution is what the
Supreme Court of the United States
says it is, and the issue to be pre-
sented in the instant case is a mar
row one. Unquestiona oily the court
would be inclined to uphold the
power of Congress to pass a law
which permits a special postage rate
to newspapers and periodicals and
already the Court has upheld that
power in cases related to the espion-
age law. During World War I, in a
decision to which the late Justice
Brandeis attached a vigorous dis
sent, second-class mailing privileges
were taken away from q Socialist
newspaper.
One of the reasons advanced by
Justice Clarke, who wrote the ma
jority decision, was that elimination
of second-class privileges didn't
prevent publication because there
was always available the first-class
or third-class rates for printed mat
ter.
But in the case of a newspaper or
magazine the cost of any but sec
ond-class rates might easily be pro-
hipitive and force suspension of
publication. Clearly for any Gov
eminent bureau to have the right
to say what is or is not "informa-
ton of public character" is to vest
in that agency power of censor
ship and licensing.
The theory that the grant of a
Government privilege gives the gov
ernmental bureau the right to make
rules and regulations for the use of
that privilege is being applied,
therefore, to instruments of speech
and the press-radio and printed
publications. Only constitutional
amendment would seem to be COM
pletely effective in preventing sub
terfuge from circumventing the
freedom of press clause of the
Constitution. Such an amendment
might read as follows:
The grant, sale or lease of any
facilities by the United States to the
press, to radio broadcasting, to tele-
vision, or to any other medium of
public expression shall not vest in
the Congress or in any executive
agency or in the several States the
power to limit, restrict or regulate