Evening star., 1945-06-06
Arnold Opinion Hailed
On Freedom of Press
But Supreme Court Ruling Still
Is Needed, Observer Contends
BY David Laurence

- ODo~A ~ N>oHt~haS
BY David Laurence
Judge Thurman Arnold has written
an invaluable opinion upholding the
freedom of the press and he has done
a splendid job of stating the issues,
but unfortunately his opinion, even
though concurred in by the other judges
of the United States Circuit Court Of
Appeals, is not the law of the land.
For the Supreme Court of the United
States has held the exact opposite, and
until and unless that opinion OF the
higher court Is reversed the American
press will be subject to the possible use
OF the second-class mail privilege as .
weapon of censorship and control.
Judge Arnold courageously relied ca
the dissenting opinions of justices
Brandeis and Holmes in two famous
cases decided in 1921. But the ma jof-
ity of the court held then that q nevv-
paper could be denied second-class rates
by the Postmaster General and that It
could be forced to mail its copies third
class or first class, at much greater ex-
pense, as the case may be. This lis the
decision on which Postmaster General
Walker relied in taking the present
controversy, known as the Esquire case,
to the courts. On the basis of the Su-
preme Court majority ruling in the Ber-
ger case in 1921, he was right. The de-
clsion in that instance was not, as has
been often assumed, case based on
wartime issues alone
Brandeis' Opinion.
Justice Brandeis said in his dissent
on March 7, 1921:
This case arose during the World
War, but it presents no legal question
peculiar to war. 1t is important, be-
cause what we decide may determine
in large measure whether in times Of
peace, our press shall be free"
The Brandeis opinion aSsailed the idea
that second-class rates were a "privi-
lege," to be granted or withheld at the
whim of the Post Office Department.
Justice Holmes said:
TO refuse the second-class rate to Q
newspaper is to make its circulation i'm
possible"
recently awakened to the dangers 2
the 1921 decision, and, curiously enough,
Postmaster General Walker is, the first
head of the Post Office Department
since that time to see clearly the con-
f1ict between previous practice and the
implications of the Supreme Court
opinion. He has announced that he
will ask Congress to clarity the law.
That is a simple approach to the mat
ter, but unless there is assurance that
| Congress will act the Postmaster Gen.
eral would be within his rights in ask
! ing the Supreme Court TO review the
| decision
| Certainly the American press is in .
| precarious position if some future POST
master General takes the view that the
| Arnold opinion is not controlling and
that the Supreme Court ruling of tbs
/ late Justice Clarke is still the law of the
land. There are plenty of opportunities
! to harass the newspapers and magazines
/ by wrongful use of the postal power.
! While the Constitution forbids Congress
! to pass any law interfering with the
freedom of the press, apparently the
only institution which can say whether
such a law does or does not SO interfere
is the Supreme Court, and that tribunal
spoke in 1921 holding that second class
mail rates are privilege and not Q
right.
Publishers Concerned.
Judges Miller and Edgerton, who con-
CURED with Judge Arnold TO make
| unanimous opinion. have Joined TO
make a strong case for a reversal Of
the Berger case by the present Supreme
! Court. But in the absence of any peti-
| ton for review-which even if presented
and denied could be construed only by
inference as upholding the Arnold opin-
ion-=there will be no way of knowing
what the real scope of the Post Office
| Departments rulings are to be.
1t is significant that although the
issue arose over the problems of one
magazine. briefs urging reversal Of
Postmaster General Walkers Tuling
whereby he revoked the second-class
privileges were submitted by the
Authors League of America, American
Civil Liberties Uuion, the Curtis Pub
fishing Co., the Readers Digest Associa-
ton, Inc, and the American Newspaper
Publishers Association.
The basic principle involved has
caused general concern in the field of
publishing. For the Postoffice Depart
ment contended: "A publication to en-
joy these unique mail privileges b
bound to do more than refrain from
disseminating material which is obscene
or bordering on the obscene. 1t is under
a positive duty to contribute to the
public good and the public welfare"
Who is to be the judge of what is the
public good2 Some official who sits in
governmental agency and through
the particular preiudices of his party
politics or economic bias decides what
is the public good? That was and
still is the unsettled issue in the present
case.
| Reproduction RiEhts Reserved)
| k1~x.>, A.