Lamont v. Postmaster General is a remarkable case for many reasons. Lamont invalidated a federal law barring Americans from receiving so-called “communist political propaganda” from foreign sources unless they requested it be delivered. It was the first case to definitively hold that the First Amendment protects the rights of listeners independent of any corollary right of speakers. And it was a forceful rebuke to an anti-communist Congress at the height of the Cold War. Astonishingly, Lamont also marked the first time the Supreme Court struck down an act of Congress on First Amendment grounds.

The story of Lamont is one of the vital importance of listeners in the constellation of interests safeguarded by the First Amendment. It established that the First Amendment protects the right of the public to receive information and ideas from abroad, even when the government deems that material subversive and un-American. The Court’s ruling, and in particular Justice William J. Brennan’s insightful concurring opinion, presciently recognized that preserving the free flow of ideas across borders is vital to maintaining a robust democracy. But, for all its significance, Lamont is largely an overlooked precedent. There are few dedicated scholarly treatments of the case, and it garners barely a mention in most casebooks. Fewer than two dozen Supreme Court cases cite Lamont in controlling opinions.

Why is a case about communist snail mail so important now, in an age of electronic devices, social media, and the internet? Digital technologies have made information ubiquitous, and content transcends continents and borders (at least some of them) with the ease of a click or a swipe. Ideas originating from abroad routinely flow into domestic public discourse and influence domestic affairs. Governments around the world, including in the U.S., have become increasingly concerned with restricting their citizens’ access to information from foreign sources, particularly content they characterize as malign or subversive. Lamont, however, stands for the principle that Americans have a right to access the media of their choosing, even when the government has labeled it dangerous. The values that animate Lamont are as crucial today as they were during the Cold War, and Lamont deserves a place among the Court’s most celebrated First Amendment decisions.

The Regulation of Subversive Mail

Lamont involved a challenge to a statute directing the postmaster general to intercept and detain mail from abroad determined to be “communist political propaganda.” The law at issue in Lamont was not the first time the U.S. government sought to use its authority over the mail to suppress materials it deemed subversive. In fact, itreflected practices with deep roots in our history.

One of the earliest attempts by postal officials to systematically intercept and detain subversive mail came in the lead-up to the Civil War. As North-South tensions rose, postmasters across the South refused to carry abolitionist materials they characterized as propaganda. At the behest of his postmaster general, President Andrew Jackson called on Congress in 1835 to enact legislation that would prohibit “the circulation in the southern States, through the mail, of incendiary publications intended to instigate the slaves to insurrection.” Although the Senate ultimately rejected his request, primarily due to concerns about its constitutionality, it did not stop federal and local officials from openly sanctioning the practice for decades.

More than two decades later, in 1857, following an incident involving a local postmaster’s refusal to deliver copies of a newspaper on the grounds that it contained abolitionist propaganda, Attorney General Caleb Cushing advised the postmaster general in a formal legal opinion that it was lawful to permit regional officials to suppress mail matter they believed contained subversive content. In the opinion, Cushing speculated about the danger that some foreign government might “in the spirit of misdirected propagandism of its own particular social or political opinions . . . undertake to produce revolution or insurrection in the United States.” If that were to happen, Cushing asked, would anyone doubt the government’s ability to halt the circulation of that foreign propaganda?

The first formal program for intercepting subversive mail originating from abroad began in 1940. Then, at the height of World War II, the concern was with Nazi propaganda. In a series of high-profile moves, postal officials seized and destroyed large shipments of Nazi propaganda as they arrived in the country. Given the at least questionable legality of those actions, Postmaster General Frank Walker formally requested the advice of Attorney General Robert Jackson. Jackson issued a crafty legal opinion interpreting two laws with seemingly limited connective tissue—the Foreign Agents Registration Act of 1938 and the Espionage Act of 1917—to authorize postal officials to intercept and exclude foreign propaganda from the mail. Jackson’s opinion would, for years, form the primary authority for the administratively authorized exclusion of subversive mail.

The practice of intercepting and destroying Nazi propaganda lapsed after the end of World War II, but the Truman administration revived it during the Korean War with a renewed focus on communist propaganda. At the time, government officials were concerned with what they perceived to be a deluge of subversive publications arriving into the country from communist-controlled countries. By 1951, postal and customs officials had embarked on a large-scale effort to restrict the dissemination of foreign communist propaganda through the mail. But they often acted haphazardly, lacking clear direction or set procedure. In one absurd (and possibly apocryphal) incident, a non-Russian-speaking postal worker was reportedly taken to a warehouse full of detained mail, handed a Russian-English dictionary, and told to identify any publications he deemed to contain communist propaganda.

Among the materials detained were Russian and Chinese newspapers and periodicals, along with books and pamphlets discussing politics and life in foreign countries. Officials intercepted Russian classic literature, Chess for Beginners (a Soviet-published book on chess), Catholic Imperialism and World Freedom (an English book criticizing the Catholic Church), and Five Stars Over China (a book published not in China but by a resident of Toronto, Canada). In a particularly embarrassing episode in 1955, officials held up delivery of the London Economistto American subscribers, prompting the journal’s editors to tell readers that the issues were being delayed due to a “possible propaganda matter” and noting that further comment on the affair “might be in bad taste.” When asked about the incident, the solicitor of the Post Office Department claimed to have almost jumped out of his seat, blaming it on “some over-officious underling.”

The knowledge that the government was holding up Americans’ mail did not sit well with many citizens, including some who had no love for communist ideas. When the post office informed the outspoken conservative commentator George Sokolsky that some of his mail from abroad had been detained, he angrily wrote back:

I want these publications because I subscribed to them. They can do me no greater harm than some American publications I buy. If I am to be saved from my reading habits I do not want it done by the Post Office, the business of which is to deliver the mails.

By 1960, executive branch officials themselves began to question the wisdom of the mail interception program. In June of that year, a committee established at the direction of the National Security Council (NSC) to study the program concluded that it should be abandoned. The committee’s report noted that the program was of “declining value as a means of obtaining an intelligence informational product” and had “provoked some public complaints that constitutional liberties are being impaired. . . .” The committee explained that it had “been unable to conclude that delivery to addressees of material presently withheld” would result in “an additional threat of significance to the national security.” In fact, the report acknowledged the potential damage the program could do to U.S. interests abroad, stating:

We are engaged in a total national effort to produce evolutionary changes within the bloc and to orient uncommitted nations to the free world. . . . The knowledge that we ourselves maintain what is loosely considered a “censorship” program impairs the effectiveness of our presentation abroad.

When John F. Kennedy took office as president in 1961, he moved quickly to discontinue the mail interception program. Referencing the NSC report, he explained that “the program serve[d] no useful intelligence function” and indeed had “been of concern to the Secretary of State in connection with efforts to improve cultural exchanges with communist countries.”

The president’s directive, however, was met with almost immediate resistance in Congress, and several bills were introduced to reinstate restrictions on the delivery of foreign communist propaganda. These efforts culminated in the enactment of section 305 of the Postal Service and Federal Employees Act of 1962, which sought to revive many of the essential elements of the just-ended mail interception program. Section 305 directed the postmaster general to intercept and detain mail matter that “originates or which is printed or otherwise prepared in a foreign country,” and that “is determined by the Secretary of the Treasury . . . to be ‘communist political propaganda’. . . .” Under the law, recipients of the so-called “communist political propaganda” would be “notified that such matter has been received,” and the material would be “delivered only upon the addressee’s request. . . .” Otherwise, the mail was destroyed. The law exempted, among other things, any mail “which is furnished pursuant to subscription or which is otherwise ascertained by the Postmaster General to be desired by the addressee.”

How Lamont Arrived at the Supreme Court

One late July day in 1963, Dr. Corliss Lamont received a notice in the mail from the post office informing him that it had intercepted and detained a copy of the Peking Review that had been addressed to the small publishing operation Lamont ran called Basic Pamphlets. The notice, sent pursuant to section 305, informed Lamont that the secretary of the Treasury had determined that the magazine—an English-language periodical published by the Chinese government—was “communist political propaganda.” It gave Lamont a choice: He could return an included reply card indicating that he desired delivery of the magazine, or the magazine would be destroyed. Lamont was not a subscriber to the Peking Review, and he had no clue who had sent it to him. But he saw in the notice a perfect opportunity to challenge the law that authorized the post office to intercept and detain his mail. Rather than return the reply card, Lamont brought suit.

The Plaintiff

Dr. Corliss Lamont, a prominent philosopher and civil liberties advocate, was perhaps the ideal candidate to challenge the government’s communist mail interception program. Lamont was born on March 28, 1902, in Englewood, New Jersey, into a life of wealth and privilege. He was the son of Thomas W. Lamont, Jr., a prominent banker who was a partner (and later chairman) of J.P. Morgan & Company. The younger Lamont attended Phillips Exeter Academy and then Harvard, which is to say, he was in want of neither funds nor education. Nothing about Lamont’s background suggested that he, instead of cutting his teeth on Wall Street like his father, would become a patron saint for radical causes.

Lamont, however, had a penchant for finding trouble and was anything but a wallflower when it came to challenging authority. Throughout the 1940s and 1950s, Lamont had numerous high-profile run-ins with the government owing to his suspected membership in, and clear sympathies for, communism. In 1946, Lamont was subpoenaed by the House Un-American Activities Committee for his involvement in the National Council of American-Soviet Friendship (a group he chaired). He refused to answer the committee’s questions, arguing that “the Un-American Committee” had no right to investigate his organization at all and that the committee’s very existence was unconstitutional. For his trouble, Lamont was indicted for contempt of Congress, a charge that was ultimately dropped when it became clear that Lamont did not actually possess any of the documents the committee sought.

Beginning in 1951, the Department of State refused to issue Lamont a passport because it deemed his travel abroad would be “contrary to the best interest of the United States.” The State Department had treated Lamont’s application as incomplete based on his refusal to answer questions on the application about whether he was or had been a member of the Communist party. Rather than answer the questions, Lamont attached a statement to the application that read:

I decline to answer questions as to membership in the Communist party. I take this position because I believe that every American citizen has a natural right to travel regardless of his political or economic views and because I believe it is unconstitutional for the United States State Department to ask passport applicants such questions and to require answers.

The State Department eventually issued Lamont a passport in 1958 following the Supreme Court’s decision in Kent v. Dulles, which found that the secretary of state had exceeded his authority by refusing to issue passports to suspected communists. Following the years-long struggle to obtain his passport, the then-57-year-old Lamont embarked on a world tour.

In 1953, Lamont was again called to testify before Congress, this time in front of Senator Joseph McCarthy’s Subcommittee on Government Investigations. Lamont had written a book called The Peoples of the Soviet Union, which had apparently appeared in materials prepared for the Army. At the hearing, McCarthy (who was the only senator in the room) grilled Lamont on the book: how it was financed, who had helped him write it, and whether he had cooperated with anyone from the Soviet government. Lamont refused to answer the questions, insisting that they violated his First Amendment rights and were outside the committee’s purview. McCarthy then spearheaded a resolution—adopted by the Senate with a 71-3 vote—to cite Lamont for contempt of Congress. A court ultimately dismissed the criminal indictment that followed on the ground that it failed to adequately plead that McCarthy’s inquiry was within the committee’s authority. Lamont would later say that “[a]part from purely personal pleasures, the greatest single joy of [his] entire life was the court triumph over the scoundrel Joseph McCarthy.”

It was during this time that Lamont began working closely with the Emergency Civil Liberties Committee (ECLC), an organization that had been founded in 1951 by civil liberties advocates who had been dissatisfied with other groups’ unwillingness to directly defend certain radical individuals from prosecution. The ECLC had taken a much more aggressive stance in challenging the government’s efforts to go after suspected communists. Lamont would help lead the ECLC for 30 years, becoming a vice-chairman in 1955 and then chairman in 1965. It was during his long association with the ECLC that Lamont received the notice that would lead to the Court’s ruling in Lamont.

The District Court Proceedings

As early as 1953, the ECLC had been brainstorming ways to challenge the government’s communist mail interception program on constitutional grounds but had not come up with a suitable method. When Lamont received word that his copy of the Peking Reviewhad been detained pursuant to section 305, it seemed like a perfect opportunity had arrived. To bring the case, Lamont turned to his friend and compatriot Leonard Boudin, a brilliant (and now legendary) progressive lawyer who was then serving as general counsel to the ECLC. Lamont, represented by Boudin, filed his complaint in the U.S. District Court for the Southern District of New York on August 13, 1963.

The government’s response was swift. It was not, however, to answer Lamont’s complaint or move to dismiss the case. Instead, two weeks after Lamont had initiated the suit, he received a letter from the acting general counsel of the Post Office, Adam G. Wenchel. Wenchel informed Lamont that the post office had interpreted the commencement of Lamont’s lawsuit as “an expression of desire” by Lamont to “receive all of [his] mail whether or not the Customs Bureau of the Treasury Department considers it to be Communist political propaganda.” Citing a provision of section 305, which provided that detention of mail was not required where the postmaster general could “otherwise ascertain[ ]” that the recipient desired the mail, Wenchel explained that he had directed all the screening points around the country that “any mail presently being detained be dispatched and that in the future mail addressed to Basic Pamphlets or to [Lamont] not be detained.”

The government’s strategy became clear when, shortly after Wenchel’s letter was delivered, the government’s lawyer sent Boudin a letter declaring that the government now “consider[ed] the matter to be moot” and requested that Boudin dismiss the case. This tactic was part of a time-tested formula that had also helped insulate the government’s prior mail interception program from constitutional challenge. During the 1950s, civil liberties groups had brought numerous lawsuits challenging earlier communist mail restrictions in court. But in each instance, after a suit was filed, postal authorities simply forwarded along any withheld mail, effectively mooting the case.

Rather than drop the suit, however, Boudin tried to use Wenchel’s letter to his advantage. In a stroke of ingenuity, Boudin amended the complaint to challenge not just the post office’s detention of mail but its apparent practice of keeping lists of individuals who affirmatively sought to receive mail the government considered communist propaganda. To operationalize Wenchel’s directive, propaganda screening units around the country would need to keep a record of Lamont’s name along with his desire to receive subversive literature. The complaint alleged that the keeping of this list would create a chilling effect on those willing to attest to wanting communist mail. It also presented a very real possibility that the post office would make the list available to government entities like the House Un-American Activities Committee or to the public. Boudin immediately moved for summary judgment and requested a three-judge district court panel to hear the case.

In a split decision issued on May 5, 1964, the court denied Lamont’s motion and dismissed his complaint. The majority opinion, written by Judge Paul R. Hays, resolved the case on justiciability grounds. As Hays saw it, Lamont’s primary legal theory rested on a provision of the law that was “no longer applicable to him” because the post office had, in response to the lawsuit, “ordered the unimpeded delivery of plaintiff’s mail.” This meant that Lamont had already obtained the relief he sought, making the claim moot. As for Lamont’s objection to being placed on a government list, Hays found that Lamont had failed to allege an adequate injury. Hays explained that section 305 “ma[de] no provision whatsoever for keeping any list or record of persons desiring to receive communist political propaganda,” and therefore, any injury resulting from the keeping of any list was “purely incidental.” Hays also declined to credit Lamont’s assertion that disclosure of his apparent desire to receive communist propaganda would cause him injury, reasoning that “[c]lassification as a person desiring to receive communist political propaganda . . . need not connote disapprobation.”

Judge Wilfred Feinberg dissented. He noted that while section 305 did not “specifically authorize” the post office to “maintain a list of persons desiring to receive communist political propaganda, such a list is essential to effective implementation of the statutory scheme.” Additionally, Feinberg argued that it was irrelevant whether classification as a person desiring to receive communist political propaganda “need connote public disapprobation . . . , since it ordinarily does so connote, and social ostracism flows from this.” Feinberg also took aim at the government’s strategy of trying to moot every case that could test the constitutionality of section 305. Blessing the government’s theory, Feinberg admonished, would “prevent any potential recipient of [withheld] mail from testing the statute.”

Shortly after the district court issued its opinion, Boudin sought review of the decision before the Supreme Court. The Court noted probable jurisdiction later that year, on December 7.

The Companion Case

At around the same time Lamont filed his lawsuit, other individuals had also been exploring ways to challenge section 305 on First Amendment grounds. Most consequential was the case brought by Leif Heilberg, a 31-year‐old Danish toolmaker and Esperanto enthusiast living in San Francisco. In July 1963, Heilberg, like Lamont, was informed by the post office that he had been sent “Communist political propaganda”—in Heilberg’s case, a copy of A Proposal Concerning the General Line of the International Communist Movement printed in Esperanto. Heilberg, too, opted to sue. On July 30, 1963, he filed a complaint in the U.S. District Court for the Northern District of California.

The Heilberg case contained perhaps one of the most amusing and audacious attempts by the government to moot a case. At a hearing held just a few days after the suit was initiated, the following colloquy occurred between Assistant U.S. Attorney Charles Collett, who represented the government defendants, and Heilberg’s attorney Marshall Krause:

Mr. Collett: Is Mr. Heilberg here?

Mr. Krause: Yes, Mr. Heilberg is here.

Mr. Collett: Will you have him come forward, please.

Mr. Krause: I do not understand—

Mr. Collett: Will you have him come forward.

The Court: Mr. Collett, if you have anything to say, you direct it to the Court.

Mr. Collett: Yes, Your Honor. I call Your Honor’s attention to the complaint which is filed. Paragraph 5. Mr. Heilberg desires to receive this piece of mail so I— At this time I hand the letter to him—

Collett proceeded to hand Heilberg his detained mail right then and there in the courtroom. A missive from the post office soon followed, informing Heilberg that it would no longer be detaining any of his mail in the future. The government then moved to dismiss the case, arguing that the case was now moot.

This time, however, the court denied the government’s motion. On November 18, 1964, the three-judge district court panel issued a per curiam opinion, holding section 305 unconstitutional under the First Amendment. On the issue of mootness, the panel expressly rejected the reasoning put forward by the majority in Lamont. Instead, thepanel held that Heilberg’s case was not moot because “Plaintiff’s mail is still subject to delay . . . ; his name remains on the Postmaster’s list of persons desiring to receive communist political propaganda; and there is no guarantee that this list will not be used to his detriment.” The panel likewise saw a clear injury, both from the “unnecessary delay because of the screening program” and the “more serious obstacle” of “the statute's requirement that the addressee of ‘communist political propaganda’ indicate a ‘desire’ to receive it.” Echoing Feinberg’s dissent, the panel explained that it would not “approve a device which would enable defendants to prevent any potential recipient of mail originating abroad from ever testing the constitutionality of [section 305].”

Turning to the merits, the Heilberg court held that the mail detention scheme plainly implicated Heilberg’s First Amendment “right to distribute and receive controversial literature” because it could subject him “to social disapprobation or economic injury.” The panel observed that the legislative history made it “abundantly clear that the purpose of the new legislation was primarily to control, restrict and prevent the delivery of matter found to be communist propaganda,” which was “an infringement upon the dissemination of ideas, and, therefore, a clear and direct invasion of First Amendment territory.” Due to the “burden placed on the First Amendment rights of plaintiff and members of the class he represents,” the panel concluded that the law was “unconstitutional on its face.”

Soon after, the government filed a notice of appeal to the Supreme Court, and the Court noted probable jurisdiction on February 1, 1965, setting the case to be heard with Lamont.

The Post Office’s Response

The district court’s decision in Heilberg had important consequences for the government’s strategy in defending the law before the Supreme Court. Heilberg was significant because it marked the first time that any federal court had reached the merits of the constitutionality of communist mail interception. And when it had, it declared the practice unconstitutional. As the government saw it, the reasoning in Heilberg rested “largely on the premise that the administration of the statute required the Post Office Department to ‘maintain a list of persons indicating a desire to receive this type of mail,’ and that the availability of such a list to other government agencies would substantially deter addressees from exercising their constitutional rights to receive such mail.” The government understood this list-keeping practice as section 305’s major constitutional vulnerability.

In line with that belief, shortly after the Court agreed to hear Heilberg, the postmaster general hastily undertook a review of the procedures for administering section 305 and concluded that the post office should abandon the practice of keeping files of the names of people who desired to receive “communist political propaganda.” In a Regional Letter sent on March 1, 1965, the postmaster general announced the new changes to its procedure. Under the new policy, “[i]nstead of treating the request by the recipient as a continuing request for the delivery of all such mail, the new procedure requires the Postal authorities to send a separate notification for each item as it is received, and the recipient to make a separate request for each item.” The post office would no longer retain any list of individuals, and it ordered all existing lists destroyed.

In a memorandum to the Supreme Court (in the midst of briefing), Solicitor General Archibald Cox acknowledged that the policy change would “preclude any contention that these cases are moot. . . .” It would, however, make “the alleged inhibiting effect of the statute on First Amendment rights far less severe than it was under the former procedure.” Indeed, in his brief before the Court, Cox’s principal argument focused on how minimal the law’s “trivial and temporary” intrusions were on the receipt of material characterized as “Communist propaganda.” He explained that “[t]here is no censorship,” rather the only consequence of the law was that “delivery is suspended for a day or two while the addressee is put to the trifling task of marking a card if he wishes delivery.”

The First Amendment and the Proto-Rights of Listeners

It is worth pausing here to underscore what was so unique about the circumstances giving rise to Lamont’s (and Heilberg’s) case. Lamont’s complaint did not allege that the government had done anything to prevent him from writing or otherwise expressing his views. And nothing about section 305 purported to prevent Lamont from saying whatever he wished. Rather, the only speakers whose activities were subject to the law were foreign entities and individuals—for instance, the Chinese agency that published the Peking Review. While it was certainly true that those foreign speakers had suffered an “abridgement” of their speech due to the law, no such entity had sued to challenge the law, nor had they joined Lamont’s suit.

Instead, what remained for the Supreme Court to consider was the fairly novel contention that the First Amendment protected Lamont’s right to receive information from foreign speakers who had not come to court themselves (and who likely lacked any First Amendment rights of their own to begin with). Up to that point, First Amendment doctrine regarding the rights of listeners had been sparse and under-theorized. Although the Court had referred in various contexts to a right or interest in receiving information, that language was largely relegated to dicta and did not clearly form the basis of any holding or opinion.

One of the Court’s earliest acknowledgments of the rights of listeners came in the 1936 case Grosjean v. American Press Co. Grosjean concerned the constitutionality of a Louisiana tax on newspapers of a certain size. Although it was publishers who brought suit to challenge the law, Justice George Sutherland’s opinion for the Court explained that the tax implicated the interests of both the publishers and the listening public: “to impart and acquire information about their common interests.” Sutherland’s opinion was rooted in a critique of British “taxes on knowledge,” whose “dominant and controlling aim was to prevent, or curtail the opportunity for, the acquisition of knowledge by the people in respect of their governmental affairs.” Seeing the Louisiana tax as reflecting that same evil, Sutherland wrote:

The tax here involved is bad not because it takes money from the pockets of the [publishers]. If that were all, a wholly different question would be presented. It is bad because, in the light of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties.

In other words, a critical problem with the law was that it cut off the flow of useful information available to the reading public.

The Supreme Court recognized these interests more explicitly seven years later in Martin v. City of Struthers. At issue in Struthers was whether a Jehovah’s Witness could be fined for violating an ordinance that prohibited the distribution of handbills through door-to-door solicitation. Writing for the majority, Justice Hugo Black concluded that the law violated the First Amendment. He explained that the “broad scope” of the freedom of speech “embraces the right to distribute literature, and necessarily protects the right to receive it.” The issue with the handbill ordinance was that it blocked the “dissemination of ideas in accordance with the best tradition of free discussion.” In weighing the government’s interests against those protected by the First Amendment, Black reasoned that the speech side of the ledger must include consideration of the rights of the speaker “as well as the right of the individual householder to determine whether he is willing to receive her message. . . .” The Court similarly sprinkled acknowledgements of the rights of listeners in Marsh v. Alabama and Thomas v. Collins.

Yet, for all the promising language the Supreme Court used to discuss the interests of listeners in receiving information, in none of these cases did the Court actually base its decision on the existence of such a right. The cases largely treated the listener’s right to hear as a corollary to the speaker’s right to speak, interests that existed in the shadow of the interests of speakers. In each of the relevant cases, it was the speakers themselves who brought suit and asserted the rights of listeners, not the other way around. So, by the time Lamont arrived at the Supreme Court, the Court had not yet relied on a listener’s right to receive information in any holding, nor had it provided any account for why that right was central to the meaning of the First Amendment.

The Supreme Court’s Decision

The Supreme Court heard argument in Lamont on April 26, 1965, and a few days later, the Justices met to discuss the case in conference. Notes from the conference suggest that all the participating Justices agreed that section 305 was unconstitutional. Chief Justice Earl Warren and Justices William O. Douglas and William J. Brennan believed that the mail restrictions could be invalidated on First Amendment grounds or because the definition of “propaganda” in the law was “vague” and gave “officials unlimited discretion.” Justices Hugo Black and Potter Stewart, too, believed that the law was unconstitutional but resisted the idea of deciding it on vagueness grounds, favoring instead the First Amendment approach.

Warren assigned the opinion to Douglas, who circulated a draft on May 11 proposing to invalidate section 305 solely on First Amendment grounds. In a memo dated May 13, Justice Arthur Goldberg wrote to Douglas that he “agree[d] with and [was] glad to join [Douglas’] opinion in Lamont” but recommended one important clarification. He advised that Douglas “may want expressly to state that the First Amendment right protected is that of the addressee,” writing:

I recall at Conference the argument being made that the foreign sender who is abroad has no constitutional rights that he may assert. You do state several times in the opinion that it is the addressee whose rights are involved but perhaps it may be well, in light of the Conference discussion, to make this explicit.

Douglas took this advice, to a degree. In the draft he had circulated prior, Douglas had included a line that read: “We conclude that the Act as construed and applied is unconstitutional because it requires an official act (viz. returning the reply card) as a condition to the exercise of a First Amendment right.” When Douglas circulated the next draft of the opinion on May 14, the day following Goldberg’s message, Douglas had replaced the words “a condition to the exercise of a First Amendment right” with “a limitation on the unfettered exercise of the addressee’s First Amendment rights.” He did not, however, further expound on the significance of that statement.

A few days after Douglas circulated his opinion, Brennan shared a concurring opinion with his colleagues. Brennan’s opinion further developed the legal and theoretical basis for a right to receive information that was only hinted at in Douglas’ opinion. Despite the differing treatment of the right in their respective opinions, it is not clear that Douglas in any way disagreed with Brennan’s views. In fact, in a May 17 memo from Douglas to Brennan after the latter had circulated his concurrence, Douglas professed that he “liked [Brennan’s] opinion in Lamont very much.” He asked whether there was anything in his own opinion “that stands in the way” of Brennan joining it, noting that he “would be very happy to circulate the necessary revision in order to accommodate [Brennan’s] needs. . . .” There was no recorded response from Brennan.

The Court published its decision in Lamont on May 24, with Douglas’ opinion for the Court largely unchanged. Noting that there was “no longer even a colorable question of mootness in these cases,” Douglas moved to the “sole question of the constitutionality of the statute.” He began with the line that he had modified at Goldberg’s request, announcing “that [section 305], as construed and applied, is unconstitutional because it requires an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressee’s First Amendment rights.” Douglas explained that the Court’s holding rested on the “narrow ground that the addressee, in order to receive his mail, must request in writing that it be delivered.” That requirement, Douglas wrote, was “almost certain to have a deterrent effect” on the addressee’s willingness to ask after that material, and “any addressee is likely to feel some inhibition in sending for literature which federal officials have condemned as ‘communist political propaganda.’” Thus, he concluded, the law reflected an impermissible attempt by the government “to control the flow of ideas to the public” that was “at war with the ‘uninhibited, robust, and wide-open’ debate and discussion that are contemplated by the First Amendment.”

Douglas’ opinion was equal parts revelatory and cryptic. Even as his opinion engaged with important ideas about who and what is protected by the First Amendment, it was also vague and imprecise. For instance, although Douglas plainly intended to ground the holding in the rights of listeners, his opinion did not explain why or how those interests mattered to the First Amendment. Moreover, Douglas’ opinion was unclear about the intended sweep of the Court’s reasoning. Despite characterizing the decision as resting on a “narrow ground,” Douglas did not explain the opinion’s supposed narrowness. Was the problem that section 305 imposed on addressees an affirmative obligation (or “official act”) to obtain access to their mail? Or was it enough that the law imposed a burden on their receipt of information?

While some read Douglas’ opinion as holding that section 305 was invalid because it required an affirmative act on the part of the addressee, Douglas’ opinion is best understood as more broadly denouncing the limitation the law placed on the rights of the intended recipients. That is, the law violated the First Amendment because it was an impermissible “attempt by a State to impose a burden on the exercise of a [constitutional] right.” As Douglas underscored, the law was “almost certain to have a deterrent effect” on prospective recipients of mail. The predictable consequence of the law was that some individuals would be reluctant to identify themselves as persons wishing to receive “communist political propaganda.” This burden on their interests as listeners to access the media of their choosing was the relevant abridgment of the freedom of speech protected by the First Amendment. Thus, “the narrow ground” to which Douglas refers was not intended to restrict Lamont’s holding to only the imposition of an affirmative obligation as such but to circumstances where the government impeded the rights of listeners to receive information.

Brennan’s concurring opinion, endorsed by Goldberg and Justice John Marshall Harlan, more explicitly (and perhaps more ably) drew out the First Amendment interests at stake. Brennan began by observing that the case necessarily turned on the rights of listeners and not speakers. He posited that the cases “might be troublesome . . . if the addressees predicated their claim for relief upon the First Amendment rights of the [foreign] senders.” Brennan noted, however, that this difficult question was not before the Court because “the addressees assert First Amendment claims in their own right: they contend that the Government is powerless to interfere with the delivery of the material because the First Amendment ‘necessarily protects the right to receive it.’”

Although he acknowledged that “the First Amendment contains no specific guarantee of access to publications,” Brennan reasoned that the “right to receive publications” was nonetheless “a fundamental right.” He described the right to hear as a structural right, one whose recognition is essential not because of its significance to any particular speaker or listener but because of its significance to our democracy. As he explained, the right to receive information was safeguarded by the First Amendment because the “dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them.” In other words: “It would be a barren marketplace of ideas that had only sellers and no buyers.” Thus, even if foreign speakers lacked any right to speak under the First Amendment, the American public certainly had a right to listen to and consider what these foreign speakers had to say. Surmising that Douglas’ opinion essentially “uph[e]ld this contention,” Brennan was content to “join the Court’s opinion.”

Brennan concluded with a warning about government attempts to control the flow of information to the public:

That the governments which originate this propaganda themselves have no equivalent guarantees only highlights the cherished values of our constitutional framework; it can never justify emulating the practice of restrictive regimes in the name of expediency.

The Impact and Significance of Lamont

Lamont was groundbreaking not just because it ended an ill-conceived, costly, and repressive mail interception program but also because it recognized that Americans have a First Amendment right to receive information and ideas from abroad. Unlike the Court’s previous pronouncements on the interests of listeners, which had treated them as a corollary to the First Amendment rights of speakers, the Court in Lamont gave the right to receive speech its own distinct position within the freedoms guaranteed by the First Amendment. Indeed, in a note on the case in the Harvard Law Review, Paul J. Mishkin called the “unconditional right of access to publications” recognized in Lamont a “newly discovered right.”

Lamont’s recognition that American listeners possessed a right to receive information that was independent of any right of speakers had enduring significance. In Griswold v. Connecticut, decided a month after Lamont, Douglas’ opinion for the Court acknowledged that “[t]he right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read. . . .” Griswold thus “reaffirm[ed] the principle” that “the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.” Brennan viewed the Court’s conclusion in Griswold as “largely anticipated” by his concurrence in Lamont. Just four years later, in Stanley v. Georgia, Justice Thurgood Marshall pointed to Brennan’s concurrence in Lamont to support the proposition that it was “now well established that the Constitution protects the right to receive information and ideas.” Echoing the structural interests Brennan had alluded to, Marshall explained that “[t]his right to receive information and ideas, regardless of their social worth, is fundamental to our free society.”

Even in periods of retrenchment and hostility to cross-border communication, the Court continued to reaffirm the central holding of Lamont. In Kleindienst v. Mandel, decided in 1972 by a much-changed roster of justices, the Court upheld the denial of an entry visa to Belgian Marxist scholar and journalist Ernest Mandel. Mandel had been invited to come to the U.S. to attend a conference and to give talks at a number of universities across the country. When he was denied entry, Mandel and several professors who wished to listen to and engage with him in person challenged the denial on First Amendment grounds. Although a majority of the Court found that the government’s plenary authority to bar noncitizens from entering the country required it to provide only a “facially legitimate and bona fide” reason for Mandel’s exclusion (which the Court held it had supplied), it also restated and reinforced the legal underpinnings of the right to receive information and ideas from abroad that had been central in Lamont.

Lamont’s significancewas best highlighted in a powerful dissent by Marshall (who was joined by Brennan). Marshall expanded on the nature of the right to receive information, writing:

[I]n a variety of contexts, this Court has held that the First Amendment protects the right to receive information and ideas . . . . The reason for this is that the First Amendment protects a process . . . and the right to speak and hear—including the right to inform others and to be informed about public issues—are inextricably part of that process. The freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin. But the coin itself is the process of thought and discussion.

Drawing on both Justice Louis Brandeis’ famous concurrence in Whitney and Brennan’s concurrence in Lamont, Marshall explained that the First Amendment protects the structure and process of public communication itself and that the “Government has no power to thwart the process of free discussion, to ‘abridge’ the freedoms necessary to make that process work.” The Court largely adopted this position two years later in its decision in Procunier v. Martinez.

Lamont was also influential in the Court’s developing jurisprudence on the communicative rights that attach to corporations. This became clear in Virginia State Board of Pharmacy v. Virginia Citizens Consumers Council. There, prescription drug users challenged, on First Amendment grounds, a Virginia statute that prohibited pharmacists from advertising drug prices to the public. Citing Lamont, the Court held that the law was unconstitutional because it interfered with “the communication” between the pharmacist and consumers who were interested in drug price information. In coming to this conclusion, Justice Harry Blackmun, writing for the majority, centered his analysis on the rights of the public to access that information, explaining:

Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. . . . It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable. . . . [I]t is also indispensable to the formation of intelligent opinions as to how that system ought to be regulated or altered. Therefore, even if the First Amendment were thought to be primarily an instrument to enlighten public decisionmaking in a democracy, we could not say that the free flow of information does not serve that goal.

Thus, in recognizing a First Amendment interest in “commercial speech” for the first time, the Court followed Lamont by rooting that right in the informational value of that speech to the public.

A final case involving corporations is worth mentioning. In First National Bank of Boston v. Bellotti, the Court, in an opinion by Justice Lewis F. Powell, held that a Massachusetts statute that prohibited certain corporations from expending money to publicize their views on referendum proposals in an election violated the First Amendment. The Court, however, rejected the premise that the case turned on “whether and to what extent corporations have First Amendment rights”—that is, whether corporations had rights “coextensive with those of natural persons.” Rather, Powell insisted that “[t]he First Amendment . . . serves significant societal interests.” He explained that “the First Amendment goes beyond protection of . . . the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” Accordingly, the Court found the Massachusetts statute lacking because it impeded the flow of useful information to voters, which was “indispensable to decisionmaking in a democracy.” Although Powell did not cite Lamont in his opinion, Bellotti reiterated Lamont’s core principle: that “[t]he inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source.”

Lamont stands for the important principle that the American public has a right to access information and ideas, including from abroad. Yet, the case has largely disappeared from the Court’s and the public’s imagination. Although Lamont played a key role in the decisions discussed above, it has largely failed to make a meaningful impression on law and policy relating to its fundamental object: the cross-border exchange of information and ideas. As some scholars have noted, Lamont is susceptible to narrow readings focused on either the specific features of the law at issue, or on the unique institutional properties of the post office, not on the fact that the relevant information came from abroad.

Lamont did not birth a new line of doctrine recognizing the importance of hearing from foreign sources. Cases like Virginia State Board of Pharmacy and Bellotti utilized Lamont’s basic principles to affirm First Amendment rights relating to domestic corporations, not foreign dissidents. And, as a practical matter, in the decades following Lamont, the government frequently seized foreign materials at the border or imposed restrictions on their dissemination, all apparently without offending the First Amendment. In this sense, it is fair to look upon Lamont as a disappointment. Itrepresents both a powerful recognition of the rights of Americans to access media from abroad during a time of war, as well as a promise unfulfilled.

Democracy and the Rights of Listeners

If part of the reason that Lamont has faded in stature is that the case does not rest on clear theoretical or doctrinal foundations, then what we need is to recontextualize Lamont in light of the interests safeguarded by the First Amendment. That is, we need to understand how the principles underlying Lamont connect with the values the First Amendment was intended to serve.

One of the most influential theorists of the role of the First Amendment in our democracy is the philosopher Alexander Meiklejohn. Meiklejohn posited that the First Amendment protects the “freedom of speech,” not because speech as such has inherent worth but because it is necessary to preserve our “program of self-government.” He believed that the purpose of public communication was to provide citizens with the information necessary to competently engage in public decision-making—or, as he put it, to “understand the issues which bear upon our common life.” Meiklejohn thus proposed that the “ultimate interest” of the First Amendment is “not the words of the speakers, but the minds of the hearers.” As he famously declared: “What is essential is not that everyone shall speak, but that everything worth saying shall be said.”

Meiklejohn’s formulation is a theory about power, specifically the sovereign power of the people over their government inherent to a democracy. For a people to be self-governing, Meiklejohn theorized that they must have all relevant information in order to make sound choices and hold their government accountable. The First Amendment plays an essential role in our democracy by preserving the process of public communication that makes it possible to form a competent, engaged, and self-critical citizenry capable of participating in self-rule. It is about the communicative structures and practices through which we acquire the knowledge we need to govern ourselves.

Consistent with those principles, Meiklejohn believed that “no idea, no opinion, no doubt, no belief, no counterbelief, no relevant information, may be kept from” the people by the government. That means “that unwise ideas must have a hearing as well as wise ones, unfair as well as fair, dangerous as well as safe, un-American as well as American.” Meiklejohn explained that citizens in a democracy would “be fit to govern themselves under their own institutions only if they have faced squarely and fearlessly everything that can be said in favor of those institutions, everything that can be said against them.” “To be afraid of ideas, any idea,” Meiklejohn wrote, “is to be unfit for self-government.”

Meiklejohn believed that foreign sources, no less than domestic sources, could contribute to the structure, processes, and practices of the communication necessary for self-governance. As he explained, the First Amendment’s protection of the “freedom to hear and to read” applied “not only to the speaking or writing of our own citizens, but also to the writing or speaking of every one whom a citizen, at his own discretion, may choose to hear or to read.” Thus, “unhindered expression must be open to non-citizens, to resident aliens, to writers and speakers of other nations, to anyone, past or present, who has something to say which may have significance for a citizen who is thinking of the welfare of this nation.”

Americans, of course, may wish to access information from abroad to inform their beliefs about how the U.S. government might address domestic issues. Citizens of one country routinely look to international laws, institutions, and practices when arguing about what their own government should do. And matters of concern to the American people are not limited to issues within our territorial boundaries. Many issues of public importance—including armed conflict, climate change, and global commerce—involve people, places, and ideas from beyond our borders. As Douglas explained in his prescient dissent in Zemel v. Rusk, “[t]he ability to understand this pluralistic world, filled with clashing ideologies, is a prerequisite of citizenship. . . .”

The Court’s decision in Lamont is consonant with Meiklejohn’s theory of the First Amendment. Meiklejohn was primarily concerned with maintaining the structure, processes, and practices of communication that facilitate the flow of information relevant to democratic decision-making to the people. The law in Lamont imposed a burden on the receipt of “communist political propaganda” from abroad, which had both the purpose and the effect of limiting the amount of information Americans had access to on issues of national importance. It seems plain that a First Amendment theory that privileges the dissemination of useful information to the public would not countenance the imposition of broad restrictions on foreign “propaganda” that prevent those ideas from reaching American listeners. Meiklejohn’s approach makes clear that the government cannot seek to prevent citizens from accessing ideas on the belief that those ideas are subversive, inconvenient, or even “un-American.” For state interference with the public’s ability to engage with information and ideas from abroad degrades our democracy and makes us less capable of governing ourselves.

Lamont stands for the principle that the First Amendment protects the right of Americans to receive information and ideas from abroad because access to such material is necessary to maintain the structure of communication that underwrites democracy. This reading is evident in Brennan’s recognition that the right established in Lamont is grounded in a structural interest in preserving the communicative process for the “dissemination of ideas,” a view that was subsequently reaffirmed in later Supreme Court decisions. It is reflected in Douglas’ rejection of the government’s attempt “to control the flow of ideas to the public,” as well as his insistence that the law was “at war with the ‘uninhibited, robust, and wide-open’ debate and discussion that are contemplated by the First Amendment.” Lamont recognizes that the structure of communication necessary to produce informed citizens in our democracy necessarily values information and ideas from abroad, and it is not up to the government whether citizens may access that material.

Reconsidering Lamont in the Digital Age

The democratic principles underlying Lamont are as important now, in the digital age, as they were during the height of the Cold War. Preserving Americans’ access to information, ideas, and media from abroad is particularly vital when modern communication so often transcends borders. We routinely participate in discussions and debates with individuals from all around the world and obtain information and news from a multitude of foreign sources and media. Our communicative activities spill over and across borders. The legal scholar Thomas Emerson, writing in 1970, recognized this basic point about the global exchange of ideas. He observed that the “extensive interchange of information and ideas with foreign countries” is “an essential feature of our system of freedom of expression.”

The growth of digital technologies, in particular, has given rise to new and more frequent forms of cross-border association and communication. American citizens can now access information from abroad with a click or a swipe. As communication has changed from parcels of mail to streams of data, the social and technical infrastructure that defines the digital public sphere is designed to move through and beyond borders. The line between what is domestic and what is foreign is becoming increasingly imperceptible online. Americans routinely consume information and ideas from foreign sources, likely without even realizing it. We are exposed to a wide range of information from a multitude of sources, both foreign and domestic. The modern-day digital public sphere is cosmopolitan.

These are points the Supreme Court has long acknowledged. In the 1997 case Reno v. ACLU, Justice John Paul Stevens’ opinion for the Court referred to the internet as “a unique and wholly new medium of worldwide human communication,” through which “tens of millions” (make that billions now) can access “vast amounts of information from around the world.” Stevens recognized the internet as a powerful new communicative medium that created unique global forums for the exchange of information and ideas. By 2017, in Packingham v. North Carolina, Justice Anthony Kennedy identified the “vast democratic forums of the Internet” and “social media in particular” as “the most important places . . . for the exchange of views.” He observed that social media platforms are, for many, “the principal sources for knowing current events, . . . speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” Thus, “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights,” including their “access to the world of ideas.”

However, the spread of digital technologies and the cosmopolitan character of many of our modern discursive practices has not stopped governments, including our own, from attempting to control the exchange of information and ideas across borders. Dominant regimes around the world practice pervasive digital censorship, including content filtering and direct prohibitions on their citizens’ access to knowledge. Our own government engages in efforts to monitor the social media of foreign travelers, conduct suspicionless searches of electronic devices crossing the border, surveil cross-border electronic communications en masse, and pressure speech intermediaries located within our territory to remove or block certain content. Borders remain an important location and justification for censorship.

The principles underlying Lamont shed light on present-day attempts to restrict Americans’ access to information and ideas from abroad. One recent example is the efforts in the U.S. to ban the social media platform TikTok. TikTok, an extremely popular app boasting over 170 million American users, has faced mounting scrutiny due to its connection to its Chinese owner ByteDance—in particular, raising fears that the Chinese government could use the platform to covertly spy on and manipulate American users. That has prompted several states to ban the platform to varying degrees (most notable is Montana’s broad prohibition) and Congress to enact its own nationwide ban. Litigation over these bans has raised complicated questions about the First Amendment rights at stake when the government seeks to ban access to a platform in order to protect its citizens from what it perceives as the potential for malign foreign influence and manipulation.

Although dressed up in more modern garb, these questions call back to the ideas at the center of Lamont. For instance, the Protecting Americans from Foreign Adversary Controlled Applications Act, the federal law that bans TikTok in the U.S. in the absence of a qualified divestiture by ByteDance, had been justified in significant part due to a desire to protect Americans from potential covert content manipulation by the Chinese government. But to the extent the government is motivated by fears that Americans might be exposed to information or ideas available on or produced by TikTok (or its foreign owners) that the government would prefer not to be heard, it echoes the evils the Court condemned in Lamont. After all, the Court found the mail restrictions in Lamont, which were similarly motivated by a desire to suppress materials deemed communist propaganda, invalid precisely because they were an attempt to “control the flow of ideas to the public.”

Lamont stands for the proposition that Americans have a right to receive information and ideas from abroad. In the digital age, that means a right to access the social media platforms and discursive communities of their choosing—even when those speech environments are organized or curated by foreign entities. A ban on TikTok deprives citizens of their right to engage with their preferred social media—along with all the attendant information, ideas, and views that the platform carries. This includes views that TikTok (and even ByteDance) itself conveys to its users through algorithmic decisions and other content moderation practices that help construct the distinct expressive environment on the platform. Understood in this way, Lamont establishes thatany attempt to restrict Americans’ access to TikTok must be carefully evaluated to ensure that it does not unduly burden the rights of American users to receive information and ideas from foreign sources or reflect an impermissible attempt to control the flow of information to the public.

Digital technologies bring new challenges for free speech as well as new opportunities. To meet the moment, we need a First Amendment doctrinethat is attentive to the more global nature of modern discourse. More than ever, competent modern self-governance requires the cross-border exchange of information and ideas. Lamont stands for the principle that the First Amendment reserves for the people the ability to select for ourselves the sources of knowledge we need to self-govern, to decide our own destinies. Building towards a more democratic digital age means building towards a First Amendment jurisprudence with a more cosmopolitan direction—one that privileges the global exchange of information and ideas.

 

© 2025, Xiangnong (George) Wang

Cite as: Xiangnong (George) Wang, Listeners’ Rights in the Time of Propaganda: The Story of Lamont v. Postmaster General, 25-04 Knight First Amend. Inst. (Feb. 14, 2025), https://knightcolumbia.org/content/listeners-rights-in-the-time-of-propaganda-the-story-of-lamont-v-postmaster-general[https://perma.cc/9JU9-8BSK].