The Supreme Court decision in Lamont v. Postmaster General, 381 U.S. 301 (1965), invalidated a statute allowing the Postmaster General to regulate the flow of “communist political propaganda” through the mail.
Lamont was the first time the Supreme Court invalidated a federal statute under the speech and press clauses of the First Amendment, the first case to hold that the First Amendment includes a “right to receive,” and the first time a justice used the phrase “marketplace of ideas” in a judicial opinion.
Law required postmaster general to hold ‘communist propaganda’
The law at issue in Lamont required the postmaster general to review postal matter sent from abroad and determine at his or her discretion which constituted “communist political propaganda.” If the postmaster general determined that the mail was indeed communist propaganda, the addressee of the material would receive a postcard instead of the mail.
The addressee could return the postcard to the post office indicating a desire to receive the materials, upon receipt of which the post office would deliver them. If the addressee did not return the postcard, the post office would not deliver the withheld materials. The statute exempted sealed letters, materials sent pursuant to a subscription, and all mail sent to government agencies and educational institutions.
Dr. Corliss Lamont, who engaged in publishing and distributing pamphlets, filed suit to enjoin enforcement of the statute. The Post Office had allowed one controversial piece of mail through in an attempt make his suit moot. However, the Supreme Court struck down the law.
Court: Holding mail based on content violates First Amendment
The Court invalidated the law because it “require[d] an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressees[’] First Amendment rights.” The court concluded that the statute was “almost certain to have a deterrent effect, especially as respects those who have sensitive positions,” and thus “amount[ed] to an unconstitutional abridgment of the addressee’s First Amendment rights.”
Brennan: ‘Right to receive publications’ is fundamental right
Justice Brennan made explicit what had been implicit in the majority opinion, declaring that “the right to receive publications is . . . a fundamental right,” the protection of which is “necessary to make the express guarantees [of the First Amendment] fully meaningful.” Although mentioned in a concurrence only, the “right to receive” was clearly acknowledged by the entire Court because the Court premised its holding on the addressee’s, rather than the foreign speaker’s, constitutional claim in order to avoid the difficult question of whether foreign governments have First Amendment rights.
Building on Justice Oliver Wendell Holmes Jr.’s use of the phrase “competition of the market” in his famous dissent in Abrams v. United States (1919), Justice Brennan stated in Lamont: “It would be a barren marketplace of ideas that had only sellers and no buyers.” By comparing the exchange of ideas to the exchange of goods in a marketplace, Justice Brennan highlighted the intrinsic necessity of buyers of goods and, analogously, the importance of a “right to receive” ideas.
This article was originally published in 2009. Anuj C. Desai is the William Voss-Bascom Professor of Law at the University of Wisconsin, where he teaches in both the Law School and the iSchool. Among his classes are those in First Amendment, Intellectual Freedom, and Cyberlaw. He has published numerous articles on topics related to the First Amendment, including in the Stanford Law Review and Federal Communications Law Journal. Prior to entering academia, Professor Desai practiced law with the Seattle, Washington firm of Davis Wright Tremaine, where his practice included a variety of First Amendment-related matters.