The Post Office as a Violation of Constitutional Rights
An Efficient and Cheap Mail Services Is Not the USPS's Primary Function
MAY 01, 2001 by WENDY MCELROY
In September 2000, the United States Postal Service (USPS) launched a $12 million campaign to advertise a new Internet service, eBillPay, through which customers could pay their bills electronically. EBillPay is one of several new e-services designed to woo back the growing army of Americans who would rather click a mouse than lick a stamp to send mail. After a free introductory period, eBillPay customers will be charged $6 a month for up to 20 payments with a 40-cent additional charge per payment thereafter. (See www.usps.gov/ebpp/welcome.htm.) Although the USPS rate is comparable to that of similar private services, such as Paytrust and Billpay, it hardly competes with the many banks that offer such e-services to their customers for free. For their part, private services cannot compete with a postal behemoth that is financed through legal privilege in the marketplace, with a governmental net for shortfalls in revenue.
As Flint A. Lane, president of Paytrust commented, as a taxpayer, “I’m paying for advertising . . . for a competitor of mine.” Concerns are already being raised about whether the USPS will attempt to gain a position of legal privilege over certain e-services just as it asserts a monopoly over first-class mail.
The USPS is a government monopoly accustomed to operating at public expense. Although the USPS currently receives no direct cash transfers from the government, it is exempt from taxation and can borrow from the Treasury. Many people consider the main cost to be the inefficiency and expense wrought by the absence of competition. To such people, the Postal Service is a relatively benevolent expression of government, offering a vital service that would otherwise not exist on the free market.
The history of the USPS suggests something different, however. It chronicles centuries of civil-rights violations that began at the very birth of a national postal system and that have nothing to do with providing a service. Rather, the USPS promoted and protected the interests of those in power. In asserting the monopoly that allows it to do so, it has been indifferent or hostile to providing the best service at the lowest price. An infamous case of this hostility occurred in 1845, when private mail companies operated with relative freedom, including carrying first-class mail. One such venture was the American Letter Mail Company that had been established by the noted libertarian legal theorist Lysander Spooner. In his periodical Liberty (May 28, 1887), Benjamin Tucker described the situation that confronted his mentor: “In 1844, he [Spooner] started a private mail between Boston and New York, and soon extended it to Philadelphia and Baltimore, charging but five cents a letter between any of these points—a very much smaller sum than the government was then charging. The business was an immediate success and rapidly extending.”
Then, in 1845, in response to the fiscal threat posed by private companies, a congressional act imposed draconian fines on private carriers who dared to offer better service at lower rates. Tucker explained, “as the carrying of each letter constituted a separate offence, the government was able to shower prosecutions on him [Spooner] and crush him in a few months by loading him with legal expenses.”
Spooner had been so effective in demonstrating the superiority of private mail, however, that the post office was virtually compelled to lower its rates significantly thereafter. Thus Tucker dubbed him “the father of cheap postage in America.”
In his pamphlet, “The Unconstitutionality of the Laws of Congress Prohibiting Private Mails,” Spooner highlighted the inefficiency guaranteed by the act of banning competition in postal service. Once there was an enforced monopoly, he stated, postal officials would “feel few quickening impulses to labor” or “to move at the speed that commercial interests require.” The consequence would be “a cumbrous, clumsy, expensive and dilatory government system” that would be “nearly impossible to modify or materially improve” except by opening it up once more to “rivalry and free competition.”
But Spooner objected to a postal monopoly not merely or primarily because it cheated the public by requiring an extravagant fee for an inadequate service. His main objection lay in the argument that the monopoly violated individual and constitutional rights in at least three ways. First, Article I, Section 8, of the Constitution authorized Congress “to establish post offices and post roads,” but it didn’t bar others from doing so as well. The power to create was not a power to prohibit. The Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Second, freedom of the press included—and, indeed, required—the right to privately distribute material to whoever wished to read it. A government postal monopoly would be able to ban periodicals from using virtually the only legal channels of distribution. This control constituted a direct affront to the First Amendment.
Third, a monopoly post office that can control the flow of information inevitably would be used to political advantage by those in authority. In “Private Mails,” Spooner argued, “Its immense patronage and power, used, as they always will be, corruptly, make it [the monopoly post office] also a very great political evil.” Tucker concurred and added that the reduction in rates that followed Spooner’s legal persecution had been a “sop” thrown to the public to keep them from calling for abolition of the monopoly.
Beyond the Superficial
Thus in viewing the current USPS, Spooner’s criticism would go far beyond superficial facts, such as the 4.6 percent increase in postage that went into effect in January. Certainly he would have pointed to the folly of propping up a government service with an expected fiscal loss of more than a billion dollars in 2001 when private companies are eager to compete. But he would have emphasized the civil-rights abuses—for example, the USPS’s obligation to share information with police and other law-enforcement agencies.
Consider Spooner’s claim that a postal monopoly constitutes a standing threat to freedom of the press and freedom of speech. This observation did not originate with Spooner. In colonial America the founding fathers were acutely aware of the censorious role that British control of the post office played. Sam Adams urged the creation of a parallel and private system so that information could flow freely from colony to colony and so establish political cohesion. He insisted that the colonial post office deceived the people into believing it was a public utility when its real purpose was to stop “the Channels of publick Intelligence and” aid “the measures of Tyranny.”
It was no coincidence that one of the first resolutions passed by the Second Continental Congress led directly to establishing the Constitutional Post as a reliable means of spreading information. Article IX of the Articles of Confederation (1781) granted the “United States in Congress” “the sole and exclusive right and power of . . . establishing or regulating post offices from one State to another, throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of said office.” An ordinance established the working rules of the post office, including a provision for licensing post riders to carry newspapers.
But reliability of delivery would not be the only goal of the new postal service. In 1785, a resolution authorized the secretary of the Department of Foreign Affairs to open and inspect any mail that related to the safety and interests of the United States. The ensuing “inspections” caused prominent men, such as George Washington, to complain of mail tampering. According to Unmailable: Congress and the Post Office by Dorothy Ganfield Fowler, the Continental Congress was soon debating whether some communications should be deemed “unmailable” because their content was too dangerous.
In practical terms, certain types of political expression were already experiencing problems with mailability. After the Constitution was drafted, it was sent to the states for ratification. During the bitter political debates, an ideological war broke out between the Federalists (who were pro-ratification) and the Anti-Federalists (who were anti-ratification). The Federalists dominated in the cities through which mail flowed. As a result, Anti-Federalists’ communications seemed to disappear or be strangely delayed. The Federalist Postmaster General Ebenezer Hazard came under particular attack for allegedly stopping the flow of Anti-Federalist information, especially between newspapers in different states that were eager to reprint one another’s articles. Under the penname “Centinel,” an Anti-Federalist wrote, “Attempts to prevent discussion by shackling the press ought to be a signal of alarm to freemen.” He continued, “every avenue to information is so far as possible cut off, the usual communication between the states through the medium of the press, is in a great measure destroyed by a new arrangement at the Post Office, scarcely a newspaper is suffered to pass by this conveyance.”
In 1797, with the new Constitution in force, Congress enacted the first law limiting what could be mailed. It was a modest prohibition against newspapers with wet print being posted because they tended to damage accompanying mail. But the definition of “unmailable” soon acquired political meaning.
In Andrew Jackson’s first annual message to Congress as President (1829), he declared of the Post Office: “In a political point of view this Department is chiefly important as affording the means of diffusing knowledge . . . . Through its agency we have secured to ourselves the full enjoyment of the blessings of a free press.” By 1835, however, Jackson’s address to Congress struck a different note concerning the post office and freedom of the press. Antislavery dissension was already apparent and contributing to the tensions that would eventually lead to civil war. Some Southern politicians and postmasters called for a ban of seditious literature—namely, antislavery literature—from the mails. Jackson recommended that Congress pass a law to allow the prohibition. A bill attempting to do so was defeated in the Senate on its third reading by a vote of 19 to 25. On a federal level, antislavery material was deemed “mailable.” On the state level, however, various Southern legislatures passed resolutions to restrict its circulation. Thus some Southern postmasters were placed in the position of having to break state laws restricting antislavery literature if they wished to obey a federal order to circulate it.
Controlling Public Morality
The censorship exercised by the post office—sometimes officially, sometimes unofficially—was not merely aimed at quashing political dissent and supporting political authority. Often the postal muscle was flexed to control public morality and to prevent social reform.
In 1874 second-class postal rates were granted to newspapers and magazines that met four requirements. They had to: issue at regular intervals of no less than four times annually; state the place of publication; have subscribers; and disseminate “information of a public character, or [be] devoted to literature, the sciences, or some special industry.”
The last requirement would be used as a basis for granting low rates to desirable mail and denying it to the undesirable. A year before, the Comstock Act of 1873 had provided a penalty of up to ten years’ imprisonment for intentionally mailing obscene material. Ominously, “obscene” had not been defined. But Anthony Comstock, a moving force behind censorship in late nineteenth-century America, had acquired broad power to interpret the Act named for him. He defined obscenity in such a manner as to include birth-control information and discussion of sexual issues, such as whether forced sex within marriage was rape.
Thus the post office exercised tremendous power over freedom of the press and the public expression of sexual morality. Birth-control information was especially targeted by two of the most infamous state persecutions in libertarian history. In 1877, Ezra Heywood, editor and publisher of The Word, was arrested for distributing a birth-control pamphlet titled “Cupid’s Yokes,” which advocated the abolition of marriage and contained a scathing personal denunciation of Comstock. Heywood was fined and received a two-year prison sentence but—under extreme public pressure, including a petition reportedly signed by 70,000 people—President Rutherford B. Hayes pardoned Heywood.
Undaunted, Comstock successfully arrested others who distributed the pamphlet and continued to persecute the editor for years thereafter. In 1890 Heywood was once again found guilty of mailing obscene material to subscribers and received two years at hard labor, which he served in full.
In 1887, the editor and publisher of Lucifer the Light Bearer, Moses Harman, was arrested for publication of a letter that identified forced sex within marriage as rape. The grand jury indicted Lucifer on 270 counts of obscenity under the Comstock Act; the charges were eventually discarded. Not to be thwarted, the district attorney procured a new set of indictments, 216 counts in all. Due to public controversy, however, the case was continued over until 1890, when Harman was finally sentenced to five years’ imprisonment, then released on a technicality. In January 1891 Harman was sentenced to one-year imprisonment on another obscenity charge, with another writ of error ensuing. The legal persecution continued for years.
Postal harassment preceded Harman’s final arrest in 1896. Lucifer had been denied the use of second-class mail rates until the matter had been successfully appealed to the authorities in Washington. Even then, the Chicago post office—the city in question—confiscated and destroyed individual issues that it independently declared “obscene.” One issue was destroyed because it contained an article by the venerated feminist Alice Stone Blackwell, which had been reprinted from the conservative Woman’s Journal.
Finally, at age 75 Harman was sentenced to and served one year at hard labor. From Cook County jail in Chicago, Harman had explained that the cause of his persecution had been Lucifer‘s mission “to help woman to break the chains that for ages have bound her to the rack of man-made law, spiritual, economic, industrial, social and especially sexual, believing that until woman is roused to a sense of her own responsibility on all lines of human endeavor, and especially on lines of her special field, that of reproduction of the race, there will be little if any real advancement toward a higher and truer civilization.” It was in reference to Harman’s imprisonment under the U.S. postal laws that the British playwright George Bernard Shaw coined the term “Comstockery.”
The post office routinely used repressive tactics against socialist and labor periodicals in the late nineteenth and early twentieth century to control the flow of radical information. Such Comstockery continued past World War II as a policy of the Cold War. On October 11, 1962, for example, the Cunningham Amendment—designed to restrict the circulation of communist literature that originated in a foreign country—became law. On a less official basis, the Post Office Department began to keep a list of everyone who received the questionable mail. In 1965, the Supreme Court ruled that the Cunningham Amendment was unconstitutional because it limited the First Amendment rights of the addressees.
Over and over again, the goals of the USPS have come into conflict with the First Amendment that assures freedom of the press and speech. Civil libertarians demand to know whether freedom of speech extends to privately written words in letters as well as to public written words in newspapers. And if not, why not?
Arguably, the USPS has also violated the Fourth Amendment, which guarantees the right of people to be secure against unreasonable search and seizure. The postal prerogative to open and examine letters raises this question. If the USPS did not have the privileges of a legal monopoly, it could not enforce policies that violated the rights of its customers.
A recent attempt by the USPS to maintain its monopoly control was embodied in Postal Bulletin 21994 (March 1999). The bulletin targeted one of the USPS’s major competitors—private mailbox providers that serve millions of people, especially people with small businesses or who wish to preserve their privacy. The bulletin orders mailbox providers to have each customer fill out a new form requiring two types of identification and various other personal data. For example, the form for businesses requires the home addresses of officers and directors. The bulletin also states that if a business deals “with the public,” anyone walking in off the street has a legal right to view the business’s data.
Material addressed to a private mailbox is required to have the acronym “PMB” (Private Mail Box) on a separate line preceding the box number itself. The bulletin’s stated purpose is to reduce mail scams, but the USPS either could not or would not provide data linking private mailboxes to fraud. Jere Glover, chief counsel of the Office of Advocacy of the Small Business Administration (SBA), insisted, “There is no indication that using a “#” or “PMB” in an address will in any way deter fraud.” The Office of Advocacy has asked the Justice Department to review the rule, which is scheduled to go into effect August 26, 2001.
The USPS never mentions two of the main impacts of this measure. First, it provides the government with the names and addresses of every individual and business who rents a private box. Individuals to whom privacy is critical—for example, women living apart from abusive, violent spouses—will no longer trust the confidentiality of private mailbox providers. (Although the USPS promises confidentiality, the mailbox companies advise people not to use credit cards as the recorded identification.)
Second, many small businesses are discouraged from using private mailboxes with a designation—PMB—that stigmatized them as “second class” (non-storefront) ventures. Thus another competitor of the USPS is placed at a disadvantage in the marketplace. (For more on this issue, see PostalWatch, www.postalwatch.com, a not-for-profit organization that alerts the private sector to intrusions by the USPS.)
Those who argue that the worst sins of the USPS are its inefficiency and high cost may be overlooking the possibility that an efficient and cheap mail service is not its primary function. If it were, the USPS would have relinquished the function to the private sector long ago. Its primary political purpose is to control the flow of information by defining what is “unmailable.” During periods of war, that purpose emerges openly. For example, “un-American political doctrines” were declared unmailable during World War I. Broadly defined “subversive propaganda” received similar treatment during World War II. Enforcing those prohibitions required widespread interception, monitoring, and censorship of private correspondence. It required monopoly.
The question posed by Spooner over a century and a half ago remains unanswered: from which passage of the Constitution can Congress claim this right?