In 1967, Congress passed legislation commonly referred to as the ‘‘Anti-Pandering Act’’ or the ‘‘Pandering Advertisement Act.’’ This act allowed persons who felt advertisements mailed to them were ‘‘erotically arousing or sexually provocative’’ to instruct the Post Office to order the senders to remove their names and addresses from their lists and to cease any future mailings.
The appeal was brought by fourteen petitioners besides Rowan, who operated the American Book Service, and included publishers, mail order houses, mailing list brokers and other businesses or organizations involved in mass mail marketing challenged the constitutionality of the act. A three-judge federal district court had decided the law was constitutional. The Supreme Court’s unanimous decision, affirming the lower court, was written by Chief Justice Warren Burger who had been nominated by President Nixon and confirmed by the Senate for the Supreme Court in 1969 to replace the retired Earl Warren. This was Burger’s first majority opinion in an obscenity case.
The act permitted parents to remove the names of their children under nineteen from these lists. This was important to Burger. In his first draft of the opinion (which Burger assigned to himself, a prerogative of being chief justice), he included a strong statement on parents’ rights to censor their children’s mail, going so far as to describe this right as ‘‘absolute.’’ He told Brennan that parents should closely supervise their children and, if they had, perhaps the disorder and excesses of that time might not have occurred. In a note to Burger, Harlan stated that he was ‘‘gun-shy’’ of absolutes, found them ‘‘distasteful,’’ and objected to Burger’s statement, which Burger deleted from the final opinion.
In the course of Burger’s opinion, he points out ‘‘the right of every person ‘to be left alone’’’ must be weighed against the right of others to communicate. He stresses that in a complex society where citizens are often ‘‘inescapably captive audiences for many purposes’’ there is a need to preserve ‘‘a sufficient measure of individual autonomy’’ to permit ‘‘every householder to exercise control over unwanted mail.’’ The Court, he claims, has traditionally respected the right of householders to bar solicitors from their property. ‘‘Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit,’’ he argues; the federal law was thus constitutional.
Brennan’s concurrence, joined by Douglas, demurs from Burger’s broad interpretation of the law and cautions against the possibility that the law might be used by parents to prevent their children, even those eighteen and older, from receiving political, religious, or other materials the parents find offensive. The statute, he writes, is not without constitutional difficulties for this reason, although it was not challenged on this ground nor did the record showed evidence of the statute being used in this way.
ROY B. FLEMMING
References and Further Reading