Hannegan v. Esquire
The ruling limited the postmaster general's powers of censorship, and reinforced the freedom of circulation in the mail system. The Court's decision made clear that materials that were not considered obscene could not be excluded from normal postal services, whether or not they were thought by any individual, even the postmaster, to be contributing to the public good.
Second class mailing rates are considered a kind of subsidy from the government, allowing periodicals such as newspapers and magazines cheaper rates of postage. The goal for these special rates is to allow the broad circulation of periodicals, which will contribute to the education of the public. The Classification Act of 1879, which set up the second class postage system, required that periodicals receiving the special postage rate "be originated and published for the dissemination of the information of a public character, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers."
The postmaster general issued a citation against Esquire magazine, called "the Magazine for Men," designating a board to determine whether the magazine's permit for second class distribution be revoked. Although the board recommended that the magazine be allowed to continue receiving the special postage rates as before, the postmaster revoked the permit anyway. He cited recurring items in the magazine that he found strongly objectionable; these included jokes, cartoons, and articles with sexual content.
It is important to note that the postmaster was not claiming that the magazine was actually obscene, because obscene material does not receive protection from the First Amendment, and cannot legally be mailed, as the Court determined in Ex parte Jackson (1877). Instead, the postmaster was arguing that the material in Esquire did not deserve to receive the special, discount rate of postage because the magazine did not contribute to the public good, and because it contained material that was "morally improper and not for the public welfare." This determination was not indisputably held by the general public; the Court considered testimony from several witnesses, whose opinions of the material ranged from "highly objectionable" to finding no basis for objection.
The Court determined that what the postmaster was really questioning in this case was not whether Esquire, Inc. abided by the requirements set forth in the Classification Act of 1879, but whether the content was of suitable quality--i.e., whether the magazine was good or bad. The Court understood this as a question of whether the postmaster should be granted powers of censorship. Granting these powers would allow the postmaster to determine what was fit to be distributed, not just regarding questions of sexual content, but also of political opinion. This same issue was addressed in United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson (1921), but with respect to political motivations.
In the Esquire case, the Court decided that these powers of censorship were decidedly beyond the call of the job of the postmaster general. Justice Douglas wrote in the Court's opinion,
Under our system of government there is an accommodation for the widest varieties of tastes and ideas. What is good literature, what has educational value, what is refined public information, what is good art, varies with individuals as it does from one generation to another . . . A requirement that literature or art conform to some norm prescribed by an official smacks of an ideology foreign to our system.
The Court decidedly supported the freedom of circulation, and rejected the idea that a public official should have the kind of control over a publication's content as the postmaster was seeking.
The ruling in this case, however, does not represent a unified approach to the question of censorship throughout the history of the U.S. government. During times of war, circulation of publications that violate espionage laws have been limited. The Court upheld the right of the postmaster to exercise some censorship in United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson. In this case, the Court upheld the withdrawal of second class rates from the Milwaukee Leader, a Socialist newspaper. Obscene materials have continued to be subjected to circulation limitations, even as public standards and concerns change.