Free Speech mastehead

August __, 1999


Hon. ______________

______ House Office Building

Washington, D.C. 20515

Re: S. 335, the “Deceptive Mail Prevention and Enforcement Act”


Dear Rep. _____:

On August 2, 1999, the Senate passed S. 335, entitled the "Deceptive Mail Prevention and Enforcement Act." This bill was sold to the American people and to the Senate as a bill to regulate sweepstakes by commercial mailers -- but it does much more than that. It regulates mailings which are not sweepstakes, and mailings which are not sent by commercial firms. It gives the Postal Service broad powers to refuse to accept mail, almost unlimited powers to subpoena the business records of mailers, and impose fines on mailers of up to $2 million. Moreover, it regulates mailings by nonprofit organizations even though these mailings were not the subject of the two days of Senate hearings. Even unanimously-passed bills can be bad, and this one must be changed to eliminated unconstitutional limitations on speech when it is considered by the House after the recess.

When considering the broad, amorphous powers being given to the Postal Service, one must remember that this entity is no longer a conventional government agency -- but only a quasi-governmental agency -- charged with the duty to run itself like a business and break-even in its finances. For the first time, the Postal Service would be given the power to be investigator (through the Postal Inspection Service), prosecutor (through its General Counsel's office), judge and jury (through its so-called Judicial Officer), by allowing it to impose up to $2 million so-called "civil" fines on mailers. Moreover, at least some of which revenue would go directly to the Postal Service's own coffers. It is not prudent for a democratic republic to entrust to a quasi-government agency the power to refuse to accept mail which it finds objectionable, to subpoena whatever business records it feels relevant, and to impose huge fines, all without adequate checks on potential abuses of that authority.

It appears that none of the sweepstakes run by states or localities would be regulated in any way by this law -- it only applies to citizens, not to the government.

The Postal Service's track record in dealing with powers to bar the entry of mail does not inspire confidence. In the last century, postmasters determined what mailers could mail, and often rejected literature which urged the abolition of slavery. Giving the Postmaster-General of the United States the power to refuse to accept mail and impose huge fines is too great a power to be invested in one man and his subordinates. And it is certainly too great a power to be given to him when one considers that the Postmaster-General is not even appointed by the President of the United States and confirmed by the Senate -- he is simply chosen by nine non-Postal employees who are members of the Board of Governors of the Postal Service for his ability as a businessman. For both businesses and nonprofits which use the mail, this power gives the Postal Service the quickest and surest way to destroy mailers with which it disagrees.

The Postal Service can bar access to the mail for any mail piece which it believes could be construed as implying any Federal Government "connection." Could this power be used to chill free speech, and to threaten fines and bar mail pieces critical of government which name the offending agency, or appointed or elected official, including himself, in a way that he finds offensive?

In addition, S. 335 would grant extraordinary subpoena power to the Postal Service, to seize the records of individuals who have attracted the Postal Service's attention (or ire). No showing would be required -- and this power could turn into a fishing expedition.

Finally, S. 335 would give the Postal Service the power to levy "civil" fines of up to $2 million per incident. The use of "civil" fines permits the Postal Service to avoid the need to make their case to an independent judge, and the due process protections accorded criminal cases need not be complied with. These fines would not be limited to cases involving sweepstakes, but rather any mailing that the Postal Service feels may be ambiguous, therefore deceptive, according to a very subjective standard. Even under current law, all that the Postal Service need show is that a mailing contains a "false representation" to raise money. To show that, the Postal Service need only show that there were ambiguities in the mail piece, and that some people could have been misled or could have misread the letter. In the context of nonprofit organizations, this power could be used to shut down those of different views by claiming, for instance, that a pro-life group made a false representation to raise money by saying that life begins at conception, or that a pro-choice group made a false representation to raise money by saying that a fetus is not a human being. Either view could be considered misleading if the Postmaster-General is invested with the role of being the arbiter of truth in this country. The power possessed by the Postal Service is already too significant, and the potential to clamp down on free speech would be made even worse under this bill.

The statement filed by the Free Speech Coalition in the House Permanent Subcommittee on Investigations (available at demonstrates how the Postal Service has abused the power that it already has -- and this would make it much worse. What's more, under S. 335 the Postal Service would be permitted to retain a piece of the fines it imposes. That is hardly an incentive for disinterested public service.

None of these broad and punitive powers should be granted to a quasi-governmental business that is headed by a businessman not even appointed by the President, and which increasingly competes with the very private businesses that it is regulating.

Fraud and abuse in the mails can be (and has been successfully) prosecuted without giving the Postal Service a blank check to bar mail -- and destroying particularly the free speech of advocacy organizations which are nonprofits. I hope you will work to protect our rights as Americans. At a minimum, the bill should not give the Postal Service additional powers over nonprofit organizations, particularly advocacy organizations. The risk to our liberties is too great. I look forward to hearing from you to find out what you have done to stop the bad provisions in this bill.