Is Junk Mail Legal? EDDM and Mailbox Law

Why is junk mail legal?

Because advertising is protected speech and postage buys delivery. The First Amendment covers commercial speech, though less fully than political speech: since the Supreme Court's 1980 Central Hudson decision, a law restricting truthful advertising has to serve a substantial government interest, directly advance it, and go no further than necessary. The Postal Service delivers mail that meets its rules and carries the right postage, and no federal law requires an advertiser to get your consent before mailing you.

What federal law regulates instead is the path into your mailbox, plus a few kinds of mail you have a legal right to stop.

What does the mailbox law, 18 U.S.C. 1725, say?

It makes it a federal offense to put unstamped mail-type material in a mailbox to avoid paying postage:

“Whoever knowingly and willfully deposits any mailable matter such as statements of accounts, circulars, sale bills, or other like matter, on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter on any mail route with intent to avoid payment of lawful postage thereon, shall for each such offense be fined under this title.”

18 U.S.C. 1725

It became law on May 7, 1934 (48 Stat. 667) and was carried into the federal criminal code in 1948. According to a 1997 GAO review, Congress adopted it to “protect postal revenue by preventing delivery of unstamped matter to mailboxes.” It is a separate law from the Private Express Statutes, which limit who may carry letters, and the only penalty is a fine. USPS rules add that a mailbox “may be used only for matter bearing postage.”

The law does not make you accept anything. You can refuse a piece when it is offered, or mark it “Refused” and return it unopened. What it does is put the Postal Service's rules in charge of the box, and those rules send mail addressed to “Postal Customer” to all deliveries on a route and dispose of undeliverable pieces “as waste” instead of returning them.

The 1997 GAO review, done as Congress weighed postal reform, made no recommendation either way. It found that 82% of adults opposed “allowing just anyone to put mail into their mailboxes,” and that the debate had “little empirical data available to support the arguments, pro or con.”

Why did the Supreme Court uphold the mailbox law?

In U.S. Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114 (1981), civic groups in Westchester County, New York, sued after their local postmaster told them to stop leaving unstamped notices in residents' mailboxes. The Court sided with the Postal Service. Writing for the majority, Justice William Rehnquist held that the law does not violate the First Amendment because it is not “geared in any way to the content of the message,” and that a mailbox is not a public forum open to anyone who wants to use it.

The opinion also settles whose box it is. The postal customer “pays for the physical components” but “agrees to abide by the Postal Service's regulations in exchange for the Postal Service agreeing to deliver and pick up his mail.” Nobody has to accept that bargain: anyone can do without home delivery “by simply failing to provide the receptacle.”

What did Rowan v. Post Office decide?

That a householder can shut a mailer out. Rowan v. U.S. Post Office Department, 397 U.S. 728 (1970), upheld a 1967 law, now 39 U.S.C. 3008, that lets a person who receives an ad they find “erotically arousing or sexually provocative” get a Postal Service order barring that sender from mailing them anything further. Mail-order publishers and mailing-list brokers argued it violated their free speech. Chief Justice Warren Burger's opinion for the Court rejected that:

“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.”

Rowan v. U.S. Post Office Dept., 397 U.S. 728 (1970)

The Court made the householder's judgment final. The law entrusts “unreviewable discretion to the addressee,” so a householder “may prohibit the mailing of a dry goods catalog because he objects to the contents.” Congress wrote it that way partly to keep government officials out of judging what mail says. In the Court's words, “a mailer's right to communicate must stop at the mailbox of an unreceptive addressee.”

What Rowan did not do is create a general right to refuse advertising mail. It upheld one statute, and Congress has not widened that statute since. Why Rowan doesn't stop EDDM.

Can a prohibitory order (PS Form 1500) stop junk mail?

From one sender at a time, in a narrow situation. Under 39 U.S.C. 3008 you file PS Form 1500 at a post office after receiving an ad you consider sexually provocative. USPS then directs that mailer “to make no mailings whatsoever to anyone named in the order,” starting 30 days after the mailer receives it, and after Rowan it cannot second-guess your view of the ad.

The practical limits are what keep it from working on EDDM:

• One mailer per order. Each application names a single sender.
• The original piece is required. You must submit “the entire advertising mailpiece (the original, NOT a photocopy),” opened.
• It is written around named addressees. The order protects the people named in it. EDDM pieces name no one; they are addressed to “Postal Customer.”

We found no record of a prohibitory order being used against an EDDM sender. What does work on a specific EDDM sender is its own Do Not Deliver list, covered below.

What rules created EDDM?

The Postal Service built EDDM through its own rulebook, with the Postal Regulatory Commission approving it as a product. The key steps:

• January 31, 2008. Postal Bulletin 22225 sets up the Rural Boxholder Non-delivery Request. A rural customer asks a mailer to stop, the mailer passes the request to USPS, and the carrier stops delivering that mailer's saturation pieces to the address.
• December 16, 2010. Postal Bulletin 22300 lets mailers address saturation mail to “Postal Customer” on city routes, effective January 2, 2011, and extends the rural do-not-deliver procedure to city routes.
• March 1, 2011. The Postal Regulatory Commission approves a market test of the retail product, first called “Marketing Mail Made Easy” (Order No. 687, Docket MT2011-3). EDDM Retail service begins March 31. By November, the PRC reports, 87% of its revenue is coming from new customers.
• July 10, 2012. USPS asks the PRC to add EDDM Retail to its list of market-dominant products, and the PRC approves.
• October 15, 2012. USPS publishes the final rule making EDDM Retail permanent (77 FR 62446, Federal Register document 2012-25059), effective January 27, 2013.