Law and Politics: Occasional Papers of Felix Frankfurter, 1913-1938

By Felix Frankfurter; Archibald MacLeish et al. | Go to book overview

Press Censorship by Judicial Construction

This selection appeared as an unsigned editorial in the New Republic for March 30, 1921.

IF PEOPLE truly acted according to self-interest, it has been observed, this would be a very different world. The dictum finds striking confirmation in the attitude of the press towards the recent decision of the Supreme Court in the Milwaukee Leader case. With few exceptions, newspapers have either approved or have been indifferent to a decision which immediately affects only a despised Socialist sheet, but which involves nothing less than the control of the press.

As the Milwaukee Leader had for weeks systematically carried matter which the Postmaster General deemed non-mailable, in September, 1917, he denied second-class postal rates to all future issues of the Leader. To deny mail service to a newspaper except at six times the usual cost of the service furnished to papers is normally, of course, to make its circulation impossible. The Supreme Court has now sustained this power of suppression in the Postmaster General. Our government, we are constantly told, is "a government of laws and not of men"; whence, then, is this power derived? Since the offending matter in the Leader was obstructive to the conduct of the war, was the power to deny second-class rates found in the Espionage Act? No; Congress did not confer such power upon the Postmaster General even in that drastic war legislation. Was the Supreme Court, then, able to point to any general statute giving the Postmaster General discretionary authority over the life and death of a paper by denying it second-class rates in the future because of infractions of the postal laws in the past? No; there is no such statute. How then

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