U.S. Laws on Direct Mail

  They claimed the right to send you any junk they want...

In 1970 a group of direct marketers appealed to the Supreme Court of the United States against a law that was hurting their business. They called it unjust and unconstitutional. They claimed to have a constitutional right to say anything to you that they want, as often as they want, ``in any manner whatsoever,'' especially by sending you mail. Even if you told them to stop.

They complained that your right to force them to remove your name from the lists they sell had ``impoverished'' them ``in a confiscatory manner.'' They wanted this right to be taken away from you, so that they could go on making money selling information about you even if you told them not to. They also raised various legal objections to the law, saying that its requirement not to mail you anything and not to sell your name was ``unconstitutionally vague.''

  ...but their arguments were rejected by the Supreme Court

The court was not convinced by any of the junk pushers' arguments. The judges came to just the opposite conclusion: they found that the law ``permits a citizen to erect a wall . . . that no advertiser may penetrate without his acquiescence.''

That law requires the US Postal Service to provide a simple form that you can fill in to stop any junk mailer from ever sending you anything else. The law was originally intended to stop pornographic junk mail, and the form still refers to the junk as ``erotically arousing advertisements.''

The court didn't like the idea of the employees of the USPS deciding for the nation what is erotically arousing and what isn't. It avoided the question of erotica completely by ruling that you decide what's junk: ^SM ``the addressee [has] complete and unfettered discretion in electing whether or not he desired to receive further material from a particular sender.'' To make their ruling absolutely clear, they said that you can stop a ``dry goods'' (clothing) catalog if you want.

The original law and the court's judgment on it are included below. If anyone has a copy of the direct marketers' appeal, we would be glad to publish it too. The court quoted only one sentence of their lofty libertarian sentiments. We're sorry they haven't been given equal time here, especially as the court was so very unsympathetic: it dismissed all of their pleas, and (as if to add insult to injury) threw in several blunt statements such as

``Everyman's mail today is made up overwhelmingly of material he did not seek from persons he does not know. And all too often it is matter he finds offensive.''

  U.S. Post Office Form 2150, ``Prohibitory order against sender''

Lodging Form 2150 or 1500 is simple and free of charge. It only asks for your name and address and sender's. You sign it and attach the mail they sent you, in its opened envelope, and give it to a postal clerk or mail it to the address below.

Form 1500 is available for download in PDF format from the USPS site. Or you can phone a major post office in your area and ask for their triplicate originals to be mailed to you.

The forms can also be submitted directly to:

Pricing and Classification Service Center
PO BOX 1500
New York NY 10008-1500

We have noticed a few common difficulties with the process, but nothing that a little persistence can't overcome. Only the bigger post offices seem to stock copies of the form. (The one they sent us was printed in 1968, in triplicate carbon.) But they were happy to mail us a copy when we phoned to ask for one. (It's called Prohibitory order against sender of pandering advertisement in the mails.)

When we took it to our local post office, the clerk was puzzled. He kept staring at the phrase ``erotically arousing or sexually provocative matter,'' and didn't see how it could apply to the supermarket coupons we had stapled it to. When we started to tell him about the Supreme Court's opinion, he advised us to speak to the Postmaster at another office. Staff often seem reluctant to accept the form. If you have similar difficulty, you can try printing out page 13 of the Postal Bulletin 21977 (7-30-98) and point out the following paragraph:

Postmasters may not refuse to accept a Form 1500 because the advertisement in question does not appear to be sexually oriented. Only the addressee may make that determination.

The USPS has withdrawn Form 2150 and replaced it with Form 1500, which also serves the purpose of Form 2201. Form 1500 is just as powerful and contains clearer instructions on the back, including the following pleasing paragraph.

Your obtaining the protection offered through these two programs makes sending prohibited mail to you unlawful. However, it does not make such mailings physically impossible. If you receive an apparently violative mailpiece, contact your post office or refer to your notification letter for instructions on submitting the piece as evidence for possible enforcement action.

The article you attach to your a prohibitory order must be opened. For a very good reason, postal employees are not permitted to open sealed articles (a rule instituted by Benjamin Franklin when he was Postmaster General).

  Direct marketers presume unless told otherwise

The result of this case is that all Americans have the right to stop direct mailers from sending them junk and from selling information about them. Unfortunately, most people are unaware of this, and exercising these rights is a chore.

We wish that the USPS would allow consumers to submit Form 2150 or 1500 through their web site, the same way that they accept submissions to their National Change of Address service. [MoversGuide.com]

The next two sections of this page are the Supreme Court's opinion and the original law that it applies to. Ever since this appeal, almost all mailers have kept a policy of obeying direct requests to stop mailing and to remove names.

Your JUNKBUSTERS DECLARATION states that unless you say otherwise, you don't want your name sold, even if you permit mail. For more information about privacy and mailing lists, see our FAQ or self-help pages.

  Syllabus and Opinion of the Court

ROWAN, DBA AMERICAN BOOK SERVICE, et al. V. UNITED STATES POST OFFICE DEPARTMENT et al.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

No. 399. Argued January 22, 1970. Decided May 4, 1970

1. The statute allows the addressee unreviewable discretion to decide whether he wishes to receive any further material from a particular sender. Pp. 731-735.
2. A vendor does not have a constitutional right to send unwanted material into someone's home, and a mailer's right to communicate must stop at the mailbox of an unreceptive addressee. Pp. 735-738.
3. The statute comports with the Due Process Clause as it provides for an administrative hearing if the sender violates the Postmaster-General's prohibitory order, and a judicial hearing prior to the issuance of any compliance order by a district court. Pp. 738-739.
4. The statute does not violate due process by requiring that the sender remove the complaining addressee's name from his mailing lists, nor is the statute unconstitutionally vague, as the sender knows precisely what he must do when he receives the prohibitory order. P. 740.

300 F Supp. 1036, affirmed.

Joseph Taback argued the cause and filed a brief for appellants.

Assistant Attorney General Ruckelshaus argued the cause for appellees. With him on the brief were Solicitor General Griswold, Peter L. Strauss, Robert V. Zener, and Donald L. Horowitz.

Louis J. Lefkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Lloyd G. Milliken filed a brief for the Attorney General of New York as amicus curiae urging affirmance. David E. McGiffert filed a brief for the Direct Mail Advertising Association, Inc., as amicus curiae.

Mr Chief Justice Burger delivered the opinion of the court.

Appellants challenge the constitutionality of Title III of the Postal Revenue and Federal Salary Act of 1956. SI Stat 645, 39 U.S.C. § 4009 (1964 ed., Supp. IV), under which a person may require that a mailer remove his name from its mailing lists and stop all future mailings to the householder. The appellants are publishers, distributors, owners, and operators of mail order houses, mailing list brokers, and owners and operators of mail service organizations whose business activities are affected by the challenged statute.

A brief description of the statutory framework will facilitate our analysis of the questions raised in this appeal. Section 4009 is entitled ``Prohibition of pandering advertisements in the mails.'' It provides a procedure whereby any householder may insulate himself from advertisements that offer for sale ``matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative.'' 39 U.S.C. § 4009 (a) (1964 ed., Supp. IV).

Subsection (b) mandates the Postmaster General, upon receipt of a notice from the addressee specifying that he has received advertisements found by him to be within the statutory category, to issue on the addressee's request an order directing the sender and his agents or assigns to refrain from further mailings to the named addressee. Additionally, subsection (c) requires the Postmaster General to order the affected sender to delete the name of the designated addressee from all mailings lists owned or controlled by the sender and prohibits the sale, rental, exchange, or other transactions involving mailing lists bearing the name of the designated addressee.

If the Postmaster General has reason to believe that an order issued under this section has been violated, subsection (d) authorizes him to notify the sender by registered or certified mail of his belief and the reasons therefor, and grant him an opportunity to respond and have a hearing on whether a violation has occurred.

If the Postmaster General thereafter determines that the order has been or is being violated, he is authorized to request the Attorney General to seek an order from a United States District Court directing compliance with the prohibitory order. Subsection (e) grants to the district court jurisdiction to issue a compliance order upon application of the Attorney General.

Appellants initiated an action in the United States District Court for the Central District of California upon a complaint and petition for declaratory relief on the ground that 39 U.S.C. § 4009 (a) (1964 ed., Supp. IV) is unconstitutional. They alleged that they had received numerous prohibitory orders pursuant to the provisions of the statute. Appellants contended that the section violates their rights of free speech and due process guaranteed by the First and Fifth Amendments to the United States Constitution. Additionally, appellants argued that the section is unconstitutionally vague, without standards and ambiguous.

A three-judge court was convened pursuant to 29 U.S.C. § 2284 and it was determined that the section was constitutional when interpreted to prohibit advertisements similar to those initially mailed to the addressee. 300 F. Supp. 1036.

The District Court construed subsections (b) and (c) to prohibit ``advertisements similar'' to those initially mailed to the addressee. Future mailings, in the view of the District Court, ``are to be measured by the objectionable material of such first mailing.'' 300 F. Supp. at 1041. In our view Congress did not intend so restrictive a scope to these provisions.

  I. Background and Congressional Objectives

Section 4009 was a response to public and congressional concern with the use of mail facilities to distribute unsolicited advertisements that recipients found to be offensive because of their lewd and salacious character. Such mail was found to be pressed upon minors as well as adults who did not want it. Use of mailing lists of youth organizations was part of the mode of doing business. At the congressional hearings it developed that complaints to the Postmaster General had increased from 50,000 to 250,000 annually. The legislative history, including testimony from child psychology specialists and psychiatrists before the House committee on the Post Office and the Civil Service, reflected concern over the impact of the materials on the development of children. A declared objective of Congress was to protect minors and the privacy of homes from such material and to place the judgment of what constitutes an offensive invasion of those interests in the hands of the addressee.

To accomplish these objectives Congress provided in subsection (a) that the mailer is subject to an order ``to refrain from further mailings of such materials to designated addresses.'' Subsection (b) states that the Postmaster General shall direct the sender to refrain from ``further mailings to the named addresses.'' Subsection (c) in describing the Postmaster's order states that it shall ``expressly prohibit the sender . . . from making any further mailings to the designated addresses . . .'' Subsection (c) also requires the sender to delete the addressee's name ``from all mailing lists'' and prohibits the sale, transfer, and exchange of lists bearing the addressee's name.

There are three plausible constructions of the statute with respect to the scope of the prohibitory order. The order could prohibit all future mailings to the addressee's, all figure mailings of advertising material to the addressees, or all future mailings of similar materials.

The seeming internal statutory inconsistency is undoubtedly a residue of the language of the section as it was originally proposed. The section as originally reported by the House Committee prohibited ``further mailings of such pandering advertisements,'' § 4009 (a), ``further mailings of such matter,'' § 4009 (b), and ``any further mailings of pandering advertisements,'' 4009 (c), H.R. Rep. No. 722, 90th Cong. 1st Sess., 125 (1967). The section required the Postmaster General to make a determination whether the particular piece of mail came within the proscribed class of pandering advertisements, ``as that term is used in the Ginzburg case.'' Id., at 69.

The section was subsequently amended by the House of Representatives to eliminate from the Post Office any censorship function. Congressman Waldie, who proposed the amendment, envisioned a minimal role for the Post Office. The amendment was intended to remove ``the right of the Government to involve itself in any determination of the content and nature of these objectionable materials . . .'' 113 Cong. Rec. 28660 (1967). The only determination left for the Postmaster General is whether or not the mailer has removed the addressee's name from the mailing list. Statements by the proponents of the legislation in both the House and Senate manifested an intent to prohibit all further mailings from the sender. In describing the effect of his proposed amendment Congressman Waldie stated:

``So I have said in my amendment that if you receive literature in your household that you consider objectionable . . . you can inform the Postmaster General to have your name stricken from that mailer's mailing list.'' 113 Cong. Rec. 28660.

``If a person receives an advertisement which . . . he . . . believes to be erotically arousing . . . he may notify the Postmaster general of his determination. The Postmaster General is then required to issue an order to the sender directing him to refrain from sending any further mailings of any kind. S. Rep. No. 801. 90th. Cong. 1st. Sess., 38.

Senator Monroney, a major proponent of the legislation in the Senate, described the bill as follows:

``With respect to the test contained in the bill, if the addressee declared it to be erotically arousing or sexually provocative, the Postmaster General would have to notify the sender to send no more mail to that address . . .'' 113 Cong. Rec. 34231 (1967).

The legislative history of subsection (a) thus supports an interpretation that prohibits all future mailings independent of any objective test. This reading is consistent with the provisions of related subsections in the section. Subsection (c) provides that the Postmaster General ``shall also direct the sender and his agents or assigns to delete immediately the names of the designated addressees from all mailing lists owned or controlled by the sender or his agents or assigns and, further, shall prohibit the sender and his agents or assigns from the sale, rental, exchange, or other transaction involving mailing lists bearing the names of the designated addressees.'' 39 U.S.C. § 4009 (a) (1964 ed., Supp. IV).

It would be anomalous to read the statute to affect only similar material or advertisements and yet require the Postmaster General to order the sender to remove the addressee's name from all mailing lists in his actual or constructive possession. The section was intended to allow the addressee complete and unfettered discretion in electing whether or not he desired to receive further material from a particular sender. The impact of this aspect of the statute is on the mailer, not the mail. The interpretation of the statute that most completely effectuates that intent is one that prohibits any further mailings. Limiting the prohibitory order to similar materials or advertisements is open to at least two criticisms: (a) it would expose the householder to further burdens of scrutinizing the mail for objectionable material and possible harassment, and (b) it would interpose the Postmaster General between the sender and the addressee and, at the least, create the appearance if not the substance of governmental censorship. (Footnote omitted.) It is difficult to see how the Postmaster General could decide whether the materials were ``similar'' or possessing touting or pandering characteristics without an evaluation suspiciously like censorship. Additionally, such an interpretation would be incompatible with the unequivocal language in subsection (c).

  II. First Amendment Contention

The essence of the appellants' argument is that the statue violates their constitutional right to communicate. One sentence in the appellants' brief perhaps characterizes their entire position:

``The freedom to communicate orally and by the written word and, indeed, in every manner whatsoever is imperative to a free and sane society.'' Brief for Appellants 15.

Without doubt the public postal system is an indispensable adjunct to every civilized society and communication is imperative to a healthy social order. But the right of every person ``to be let alone'' must be placed in the scales with the right of others to communicate.

In today's complex society we are inescapably captive audiences for many purposes, but a sufficient measure of individual autonomy must survive to permit every householder to exercise control over unwanted mail. To make the householder the exclusive and final judge of what will cross his threshold undoubtedly has the effect of impeding the flow of ideas, information, and arguments that, ideally, he should receive and consider. Today's merchandising methods, the plethora of mass mailings subsidized by low postal rates, and the growth of the sale of large mailing lists as an industry in itself have changed the mailman from a carrier of primarily private communications, as he was in a more leisurely day, and have made him an adjunct of the mass mailer who sends unsolicited and often unwanted mail into every home. It places no strain on the doctrine of judicial notice to observe that whether measured by pieces or pounds, Everyman's mail today is made up overwhelmingly of material he did not seek from persons he does not know. And all too often it is matter he finds offensive.

In Martin v. Struthers, 319 U. S. 141 (1943), Mr Justice Black, for the Court, while supporting the ``[f]reedom to distribute information to every citizen'' id. at 146, acknowledged a limitation in terms of leaving ``with the homeowner himself'' the power to decide ``whether distributors of literature may lawfully call at a home.'' Id., at 148. Weighing the highly important right to communicate, but without trying to determine where it fits into constitutional imperatives, against the very basic right to be free from sights, sounds, and tangible matter we do not want, it seems to us that a mailer's right to communicate must stop at the mailbox of an unreceptive addressee.

The Court has traditionally respected the right of a householder to bar, by order or notice, solicitors, hawkers, and peddlers from his property. See Martin v. Struthers, supra, cf. Hall v. Commonwealth ISS Va. 72. 49 S. F. 2d 369, appeal dismissed, 335 U. S. 875 (1948). In this case the mailer's right to communicate is circumscribed only by an affirmative act of the addressee giving notice that he wishes no further mailings from that mailer.

To hold less would tend to license a form of trespass and would make hardly more sense than to say that a radio or television viewer may not twist the dial to cut off an offensive or boring communication and thus bar its entering his home. Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit; we see no basis for according the printed word or pictures a different or more preferred status because they are sent by mail. The ancient concept that ``a man's home is his castle'' into which ``not even the king may enter'' has lost none of its vitality, and none of the recognized exceptions includes any right to communicate offensively with another. See Camara v. Municipal Court, 387 U. S. 523 (1967).

Both the absoluteness of the citizen's right under § 4009 and its finality are essential; what may not be provocative to one person may well be to another. In operative effect the power of the householder under the statute is unlimited; he may prohibit the mailing of a dry goods catalog because he objects to the contents or indeed the text of the language touting the merchandise. Congress provided this sweeping power not only to protect privacy but to avoid possible constitutional questions that might arise from vesting the power to make any discretionary evaluation of the material in a governmental official.

In effect, Congress has erected a wall­­or more accurately permits a citizen to erect a wall­­that no advertiser may penetrate without his acquiescence. The continuing operative effect of a mailing ban once imposed presents no constitutional obstacles; the citizen cannot be put to the burden of determining on repeated occasions whether the offending mailer has altered its material so as to make it acceptable. Nor should the householder have to risk that offensive material come into the hands of his children before it can be stopped.

We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even ``good'' ideas on an unwilling recipient. That we are often ``captives'' outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere. See Public Utilities Comm'n v. Pollack 343 U.S. 451 (1952). The asserted right of a mailer, we repeat stops at the outer boundary of every person's domain.

The statutory scheme at issue accords to the sender an ``opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked.'' Anderson Nat. Bank v. Luckett, 321 U. S. 233, 246 (1944). It thus comports with the Due Process Clause of the Fifth Amendment. The statutory scheme accomplishes this by providing that the Postmaster General shall issue a prohibitory order to the sender on the request of the complaining addressee. Only if the sender violates the terms of the order is the Postmaster General authorized to serve a complaint to the sender, who is then allowed 15 days to respond. The sender can then secure an administrative hearing. The sender may question whether the initial material mailed to the addressee was an advertisement and whether he sent any subsequent mailings. If the Postmaster General thereafter determines that the prohibitory order has been violated, he is authorized to request the Attorney General to make application in a United States District Court for a compliance order; a second hearing is required if an order is to be entered.

The only administrative action not preceded by a full hearing is the initial issuance of the prohibitory order. Since the sender risks no immediate sanction by failing to comply with that order­­it is only a predicate for later steps­­it cannot be said that this aspect of the procedure denies due process. It is sufficient that all available defenses, such as proof that no mail was sent, may be presented to a competent tribunal before a contempt finding can be made. See Nickey v. Mississippi, 292 U. S. 393, 396 (1934).

The appellants also contend that the requirement that the sender remove the addressee's name from all mailing lists in his possession violates the Fifth Amendment because it constitutes a taking without due process of law. The appellants are not prohibited from using, selling, or exchanging their mailing lists; they are simply required to delete the names of the complaining addressee from the lists and cease all mailings to those persons.

Appellants next contend that compliance with the statute is confiscatory because the costs attending removal of names are prohibitive. We agree with the conclusion of the District Court that the ``burden does not amount to a violation of due process guaranteed by the Fifth Amendment of the Constitution. Particularly when in the context presently before this Court it is being applied to commercial enterprises.'' 300 G. Supp., at 1041. See California State Auto Ins. Bureau v. Maloney, 341 U. S. 105 (1951).

There is no merit to the appellants' allegations that the statute is unconstitutionally vague. A statute is fatally vague only when it exposes a potential actor to some risk or detriment without giving him fair warning of the nature of the proscribed conduct. United States v. Cardiff 344 U. W. 174, 176 (1952). Here the appellants know precisely what they must do on receipt of a prohibitory order. The complainants' names must be removed from the sender's mailing lists and he must refrain from future mailings to the named addressees. The sender is exposed to a contempt sanction only if he continues to mail to a particular addressee after administrative and judicial proceedings. Appellants run no substantial risk of miscalculation.

For the reasons stated, the judgment appealed from is affirmed.

It is so ordered.

(A concurring comment on the constitutionality of parental discretion is omitted here as not relevant; it concedes that there is no indication that ``children in their late teens have been unwillingly deprived of the opportunity to receive materials.'')

  (Variously referred to as 4009, 4009a above)

This section of the U.S. Federal laws concerning the Post Office appears to have been renumbered since the Supreme Court case. The text of the statute is also available from the House's database and the Cornell Law Library.

1. Whoever for himself, or by his agents or assigns, mails or causes to be mailed any pandering advertisement which offers for sale matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative shall be subject to an order of the Postal Service to refrain from further mailings of such materials to designated addresses thereof.
2. Upon receipt of notice from an addressee that he has received such mail matter, determined by the addressee in his sole discretion to be of the character described in subsection (a) of this section, the Postal Service shall issue an order, if requested by the addressee, to the sender thereof, directing the sender and his agents or assigns to refrain from further mailings to the named addressees.
3. The order of the Postal Service shall expressly prohibit the sender and his agents or assigns from making any further mailings to the designated addresses, effective on the thirtieth calendar day after receipt of the order. The order shall also direct the sender and his agents or assigns to delete immediately the names of the designated addressees from all mailing lists owned or controlled by the sender or his agents or assigns and, further, shall prohibit the sender and his agents or assigns from the sale, rental, exchange, or other transaction involving mailing lists bearing the names of the designated addressees.
4. Whenever the Postal Service believes that the sender or anyone acting on his behalf has violated or is violating the order given under this section, it shall serve upon the sender, by registered or certified mail, a complaint stating the reasons for its belief and request that any response thereto be filed in writing with the Postal Service within 15 days after the date of such service. If the Postal Service, after appropriate hearing if requested by the sender, and without a hearing if such a hearing is not requested, thereafter determines that the order given has been or is being violated, it is authorized to request the Attorney General to make application, and the Attorney General is authorized to make application, to a district court of the United States for an order directing compliance with such notice.
5. Any district court of the United States within the jurisdiction of which any mail matter shall have been sent or received in violation of the order provided for by this section shall have jurisdiction, upon application by the Attorney General, to issue an order commanding compliance with such notice. Failure to observe such order may be punishable by the court as contempt thereof.
6. Receipt of mail matter 30 days or more after the effective date of the order provided for by this section shall create a rebuttable presumption that such mail was sent after such effective date.
7. Upon request of any addressee, the order of the Postal Service shall include the names of any of his minor children who have not attained their nineteenth birthday, and who reside with the addressee.
8. The provisions of subchapter II of chapter 5, relating to administrative procedure, and chapter 7, relating to judicial review, of title 5, shall not apply to any provisions of this section.
9. For purposes of this section -
   (1) mail matter, directed to a specific address covered in the order of the Postal Service, without designation of a specific addressee thereon, shall be considered as addressed to the person named in the Postal Service's order; and
   (2) the term ''children'' includes natural children, stepchildren, adopted children, and children who are wards of or in custody of the addressee or who are living with such addressee in a regular parent-child relationship.

  U.S. Supreme Court Appeal 341 U.S. 622

In 1950 the Court also upheld the constitutionality of a local ordinance prohibiting door-to-door solicitation.

It would be, it seems to us, a misuse of the great guarantees of free speech and free press to use those guarantees to force a community to admit the solicitors of publication to the home premises of its residents. We see no abridgment of the principles of the First Amendment in this ordinance.

  Pitt on the sanctity of the private home

The phrase quoted above referring to a man's home being his castle comes from a speech in the House of Common in March 1763, by William Pitt the Elder (1708-1778).

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail---its roof may shake--the wind may blow through it-- the storm may enter--the rain may enter--but the King of England cannot enter!---all this forces dare not cross the threshold of the ruined tenement!

  Brandeis on the Fourth Amendment

The Supreme Court decided in 1967 that the Fourth Amendment applies to telephone communications. This vindicated a famous earlier dissenting opinion by Judge Brandeis, who wrote that the makers of the Constitution ``sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.''

  Tillman v. Distribution Systems of America

A key case in stopping junk delivered by parties other than the postal service is Tillman v. Distribution Systems of America, Inc., 224 A.D.2d 79, 648 N.Y.S.2d 630 (1996) appeal dismissed 677 NE.2d 289, 89 N.Y. 2d 938 (1997).

We hold that neither a publisher nor a distributor has any constitutional right to continue to throw a newspaper onto the property of an unwilling recipient after having been notified not to do so (see, City of Fredonia v [*2] Chanute Tribune, 7 Kan App 2d 65, 638 P2d 347). "Traditionally the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off * * * [The State may leave] the decision as to whether distributers (sic) of literature may lawfully call at a home where it belongs - with the homeowner himself. [The State] can punish those who call at a home in defiance of the previously expressed will of the occupant" (Martin v City of Struthers, 319 U.S. 141, 147-148; see also, City of Watseka v Illinois Public Action Council, 796 F2d 1547, affd 479 U.S. 1048; Citizens for a Better Environment v City of Park Ridge, 567 F2d 689, 691; Hall v Commonwealth, 188 Va 72, 49 SE2d 369; Alternatives for California Women v County of Contra Costa, 145 Cal App 3d 436, 449; City of Fredonia v Chanute Tribune, 638 P2d 347, supra). "We perceive of no reason crucial to defendant's First Amendment rights that would require a householder to retrieve an unwanted paper from his lawn" (City of Fredonia v Chanute Tribune, supra, at 350).

  Open letter 9/26 from Junkbusters to Members of Congress

Friday, September 26, 2003

Having campaigned for several years for national Do-Not-Call list, I applaud the speed and resolve with which Congress moved to ensure that the DNC registry would not be delayed by the Oklahoma court decision. The American public is overwhelmingly in favor of the privacy protection the registry would provide, and we at Junkbusters commend those of you who supported it.

The Denver court's ruling of unconstitutionality cannot be so quickly resolved, but I am confident that a satisfactory result will eventually be obtained through the courts. In 1970 the Supreme Court upheld a law which they said ``permits a citizen to erect a wall ... that no advertiser may penetrate without his acquiescence.''

I now suggest Congress consider the introduction of analogous legislation that would establish a national Do-Not-Mail list, to stop unwanted printed solicitations. Above 65% of American households do not respond to the more than 70 billion solicitations mailed each year. A DNM list would reduce this enormous waste and burden on consumers and the environment. By prohibiting the sale of marketing information about individuals who choose to register, it could also improve privacy and reduce identity theft.

The U.S. Postal Service is already required by federal law to maintain a list of people who do not wish to receive pornographic solicitations, and anyone can fill out the USPS's Form 1500 to request inclusion. The law also prohibits the inclusion of registered individuals in mailing lists sold. (It was this law that the Supreme Court upheld in 1970.) One approach to DNM legislation could be to extend this USPS service with an option for all commercial mail, not just sexually oriented material.

Another approach might be used for a more specific service relating to offers of credit. As you know, these pose a risk for identity theft, and many people (some of whom might enjoy receiving catalogs) would like to be able to stop the credit offers rather than having to sort and shred such mail. An amendment might be made to the Fair Credit Reporting Act to require a national Do-Not-Mail-Credit registry.

Other approaches could be used, for example combining the DNC and DNM registries operationally, or establishing a separate new registry. We would be pleased to discuss with your staff the merits of various approaches.

Although the Direct Marketing Association has maintained both DNC and DNM lists for many years, there has been no mandatory federal list for either until the recent DNC registry, which has proved extremely popular. Americans deserve and want a national DMN registry too.

In the case of email, our recommendations are different, because an opt-in policy should prevail here. Legislation has already been introduced proposing a national Do-Not-Email registry, but our support for this is qualified. We believe maintaining a database of individual email addresses would be impracticable and undesirable, because of the risk of the database being used improperly for spamming. The proposal might however work at the level of domain names (the part of an email address to the right of the @ sign), where a company or ISP could indicate a prohibition of spam to all addressees at that domain.

I thank you for your consideration of legislation for a national Do-Not-Mail registry.

Sincerely

Jason Catlett
President
Junkbusters Corp.

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