United States Ex Rel. Milwaukee Social Democratic Publishing Co. v. Burleson

1921-03-21

Headline: Court upheld government order revoking a newspaper’s low second-class mailing rate under the Espionage Act, allowing the Postmaster General to block cheap postal privileges for publishers of 'non-mailable' wartime material.

Holding: The Court affirmed that the Postmaster General may revoke a newspaper’s second-class mailing privilege when substantial evidence shows it published 'non-mailable' material under the Espionage Act.

Real World Impact:

Lets Postmaster General revoke low mailing rate for newspapers deemed 'non-mailable' under wartime law.
Forces affected publishers to pay higher postage or change content to regain second-class privileges.
Raises concerns about press freedom and administrative power to limit newspaper circulation.

Topics: freedom of the press, postal rates and mailing, Espionage Act, wartime censorship

Summary

Background

A daily newspaper publisher that had used the low second-class mail rate since 1911 was notified and given a hearing in 1917. The Third Assistant Postmaster General and then the Postmaster General concluded the paper had published articles that Title XII of the Espionage Act made "non-mailable." The publisher sought a court order to restore the second-class mailing privilege; lower courts denied relief and the case reached this Court.

Reasoning

The Court considered whether postal classification law and long-standing practice allowed the Postmaster General to revoke a second-class permit and whether there was substantial evidence for the action. Citing the mail-classification statutes since 1879, earlier decisions, and the Department’s practices, the Court found more than fifty quoted excerpts from the paper (from April to September 1917) that conveyed false reports and encouraged disloyalty or obstruction of recruitment. The Court held that an administrative hearing of the sort given satisfied due process and that the revocation was supported by substantial evidence and within the Postmaster General’s power to enforce mail laws.

Real world impact

The decision leaves in place the executive power to withdraw favorable postal rates from a paper judged to be publishing non-mailable material under the Espionage Act, though it did not bar the paper from using other mail classes. Publishers who wish to regain the low rate must change their content and reapply. The ruling came during wartime and thus particularly affected debates over press freedom versus national security.

Dissents or concurrances

Two Justices dissented, arguing the statutes did not authorize denying the low rate for all future issues and warning this practice risks administrative censorship, fines without jury trial, and serious threats to press freedom.