POSTAL POWER-EXCLUSION OF PERIODICAL PUBLICATION FROM SECOND- CLASS MAILING PRIVILEGE-THE ESQUIRE CASE

Authors

John R. Dykema, University of Michigan Law School

Abstract

Respondent is the publisher of the well-known monthly periodical Esquire. In l 933 it was granted a second-class mailing permit pursuant to section 14 of the Classification Act of 1879. In 1943 the then Postmaster General, Frank C. Walker, issued a citation to respondent to show cause why the permit should not be suspended or revoked, on the theory that the magazine did not qualify under the fourth condition of the act, relevant portions of which read as follows: "It must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers." Congress has declared obscene matter to be non-mailable, but the. Postmaster General did not base his action on obscenity. He claimed rather that Esquire's" writings and pictures were "in that obscure and treacherous borderland zone where the average person hesitates to find them technically obscene, but still may see ample proof that they are morally improper and not for the public welfare and the public good. A hearing was held before a board designated by the Postmaster General, which after hearing forty-eight witnesses over a period of seventeen days found that Esquire did not violate the Fourth Condition, and therefore recommended that the magazine retain its second-class privilege. The Postmaster General, however, revoked the permit. Respondent sued in the District Court for the District of Columbia to enjoin enforcement of the revocation order, the parties stipulating that the suit would not be defended on the ground that Esquire was obscene or otherwise unmailable. The district court denied the injunction. The circuit court of appeals reversed. On certiorari, held, affirmed. The Postmaster General exceeded his powers in revoking the second-class mailing privilege of a mailable periodical because in his opinion it failed to make a positive contribution to the public welfare. Hannegan, Postmaster General v. Esquire, Inc., (U.S. 1946) 66 S.Ct. 456.

Recommended Citation

John R. Dykema, POSTAL POWER-EXCLUSION OF PERIODICAL PUBLICATION FROM SECOND- CLASS MAILING PRIVILEGE-THE ESQUIRE CASE, 45 Mich. L. Rev. 230 (1946).
Available at: https://repository.law.umich.edu/mlr/vol45/iss2/18