                                                                     December 15, 1978

78-65 MEMORANDUM FOR THE ATTORNEY
      GENERAL
      National Security Mail Covers—Constitutional
      Challenge—Federal Bureau of Investigation
      (39 CFR 233.2(d)(2)(H))

   You have asked us to review the effect of District Judge Whipple’s opinion
on remand in Paton v. LaPrade, 469 F. Supp. 773 (D. N.J. 1978) on the
current use of mail covers in cases being investigated by the Federal Bureau of
Investigation (FBI) under the Foreign Intelligence and Foreign Counter-
Intelligence guidelines. We believe that the opinion, standing alone, requires
no change in present practice. A Supreme Court decision to the same effect
would, of course, require the termination of any national security mail covers
authorized under existing Postal Service regulations.
   The plaintiff, Lori Paton, sued the FBI in 1973 seeking, inter alia , damages
for injuries caused by the interception of a letter she had written to the Socialist
Workers Party (SWP). Her letter was intercepted under an FBI-authorized mail
cover. She further sought a declaration that the postal regulation under which
the SWP mail cover was conducted, 39 CFR § 233.2(d)(2)(ii) (1977), was
unconstitutional.1
   The complaint was originally dismissed. Paton v. LaPrade, 382 F. Supp.
1118 (D. N.J. 1974). On appeal the Third Circuit held that the complaint stated
an actionable claim for damages and Paton had standing to challenge the
constitutionality of the mail cover regulation, 524 F. (2d) 862 (3d Cir. 1975).
On remand Judge Whipple declared the regulation unconstitutional on its face.
He reached his conclusion as follows: First, the SWP mail cover, as authorized
by the challenged regulation, infringed on political associational freedoms

  'The regulation reads:
    “ (2) The Chief Postal Inspector, or his designee, may order mail covers under the
    following circumstances:
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      (ii) When written request is received from any law enforcement agency wherein the
    requesting authority stipulates and specifies the reasonable grounds that exist which
    demonstrate the mail cover is necessary to (A) protect the national security . . . .”
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 protected by the First Amendment. Buckley v. Valeo, 424 U.S. 1 (1976);
 NAACP v. Alabama, 357 U.S. 449 (1958). Second, because the regulation had
 that effect, it had to pass muster under “ strict” constitutional scrutiny; that is,
 the regulation had to be justified by a compelling Government interest that was,
 in fact, served by its operation. Buckley v. Valeo, supra, 424 U.S. at 64.
 Finally, Judge Whipple concluded that the Government had demonstrated no
 compelling interest because of the vagueness of the term “ national security”
 and the consequent “ overbreadth” of the regulation.
    For purposes of this memorandum we assume that Judge Whipple might
 have properly concluded that the challenged regulation as applied in Ms.
 Paton’s case was not justified by any compelling Government interest, and
 therefore unconstitutional. We believe that Judge Whipple’s analysis of the
 regulation was incorrect because of his failure to consider the constitutionality
 of the regulation as applied.
   Judge Whipple found the challenged postal regulation overbroad because it
 was “ susceptible to impermissible applications” (see 524 F. (2d) at 779) and
 not “ susceptible to a narrowing construction,” (524 F. (2d) at 782) which
 could withstand strict scrutiny. If the term “ national security” were confined to
 cases in which there was some foreign power involvement, we believe the
 regulation would be justified by a compelling Government interest. This
conclusion is compatible with the distinction drawn by the Supreme Court in
 United States v. United States District Court, 407 U.S. 297, 322 and n. 20
(1972), between domestic security cases and cases involving foreign powers or
their agents. The Court held that a warrant was required in a domestic security
case not involving a foreign power. Because the Third Circuit recognized the
Government’s compelling interest in the conduct of foreign affairs and held that
the President has power to conduct warrantless electronic surveillance to gather
foreign intelligence information, United States v. Butenko, 494 F. (2d) 593 (3d
Cir. 1974), we think it doubtful that the Third Circuit would uphold Judge
Whipple’s decision as written.
   Even assuming the SWP mail cover in this case was unconstitutional, Judge
Whipple’s analysis of the regulation on its face adjudicated questions not
requisite to the protection of any party’s rights. Had he first addressed the
constitutionality of the regulation as applied, he could have afforded the
plaintiff complete relief without deciding issues not presented by the facts. The
Supreme Court’s hesitancy in resorting to overbreadth analysis counsels such
an approach: “ [W]hen considering a facial challenge it is necessary to proceed
with caution and restraint, as invalidation may result in unnecessary interfer­
ence with a [government] regulatory program,” Erznoznik v. City of Jacksonville,
422 U.S. 205, 216 (1975). The Court has refrained, for example, from relying
on the asserted overbreadth of breach-of-the-peace statutes to overturn
petitioners’ criminal convictions in cases in which such convictions were
themselves unconstitutional under the First Amendment or unsupported by any
evidence. See, Broadrick v. Oklahoma, 413 U.S. 601, 613-14 (1978), and
cases cited therein. The Supreme Court, moreover, has resisted application of
overbreadth analysis in cases involving “ statutes regulating conduct in the
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shadow of the First Amendment, but doing so in a neutral, noncensorial
manner.” Broadrick v. Oklahoma, supra, at 614. Like the statute upheld in
Broadrick, the regulation challenged by Paton is “ neutral” and “ noncensorial,”
although it clearly implicates First Amendment liberties. However, unlike the
Broadrick statute, the postal regulation does not proscribe any conduct. Paton
was free to engage in any “ speech” she desired; the Government made a record
of her “ speech,” it did not prohibit it. Thus, her case presents a more
compelling circumstance for the court to avoid overturning the challenged
regulation for overbreadth.
   Because we believe Judge Whipple’s broad conclusion is incorrect, we think
it would be lawful to continue to approve and implement mail covers under the
existing FBI Foreign Intelligence and Counter-Intelligence guidelines. This
conclusion rests,' of course, on the assumption that the District Court will not
enjoin the FBI or the Postal Service.
                                               Jo h n M . H a rm o n
                                           Assistant Attorney General
                                                      Office of Legal Counsel




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