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PATON v. LA PRADE

November 29, 1978

Lori PATON, a minor under 18, suing by her father, Arthur Paton, Plaintiff,
v.
J. Wallace LA PRADE, Special Agent in Charge, Federal Bureau of Investigation, Newark, New Jersey, John Patrick Devlin, Peter McDede, Jr., John Hugh Bryan, Agents for the Federal Bureau of Investigation, and Clarence M. Kelley, the Director of the Federal Bureau of Investigation, Postmaster General, United States Postal Service, Defendants



The opinion of the court was delivered by: WHIPPLE

This matter is before the court on plaintiff's motion for partial summary judgment on the constitutionality of the mail cover pursuant to Fed.R.Civ.P. 56. The issue has been well briefed by both sides and having had the benefit of oral argument, I am prepared to make the following ruling.

Postal Regulation 861.4, 39 C.F.R. § 233.2, authorizing mail covers *fn1" to "protect the national security" is unconstitutionally vague and overbroad.

 I. FACTUAL BACKGROUND

 Unbeknownst to Paton the Federal Bureau of Investigation (hereinafter FBI) had instituted a mail cover on the SWP headquarters in New York. On January 9, 1973, an internal memorandum to assistant FBI Director, F. E. Miller, *fn3" recommended a mail cover be placed on the SWP headquarters. This was followed on January 11, 1973 by acting FBI Director L. Patrick Gray's III request to the Assistant Postmaster General for a SWP mail cover.

 The "Shackelford Memo" delineates the basis for the FBI's grounds for requesting SWP mail cover. It reads as follows:

 
PURPOSE:
 
To recommend U. S. Postal Service be requested to institute mail cover on national headquarters of the Socialist Workers Party (SWP), 410 West Street, New York City, for a period of 120 days.
 
DETAILS:
 
The SWP is the largest of the Communist-Trotskyist splinter groups in United States with a current membership of approximately 1100. Along with its youth arm, the Young Socialist Alliance (YSA) with a membership of approximately 1300, SWP has put forth a continuing propaganda program against the American form of Government coupled with a call to adopt a "socialist" system.
 
SWP has been able to bring its message to large numbers of American citizens by virtue of its control and domination of the National Peace Action Coalition and the Student Mobilization Committee to End the War in Vietnam (SMC). These organizations are in the forefront among antiwar groups in the United States. These activities offer the SWP a major role in planning, promoting and executing antiwar demonstrations, some of which have in the past created violence.
 
The SWP has been cited by the Attorney General pursuant to Executive Order 10450. SWP, of course, advocates the overthrow of the United States Government.
 
New York has requested that FBI Headquarters request the Postal Inspection Service to institute a mail cover on SWP headquarters for a period of 120 days.
 
OBSERVATIONS:
 
As noted above, SWP has been able to play a major role in promoting antiwar activities. Some of the best known antiwar activists are or have been SWP members whose influence is felt not only in this country but throughout the world. As an example, . . . SWP member, has just concluded an extensive tour throughout European capitals where he solicited support against current policies of the United States Government.
 
The New York Office feels that this mail cover will identify new SWP members and sympathizers, establish foreign contacts, develop information concerning financial contributors and greatly assist in determining the identity of employees of the SWP national office.
 
We currently have KKKK mail covers in effect with four requests awaiting approval.
 
RECOMMENDATION:
 
That the attached letter requesting authorization of a mail cover for 120 days on SWP national headquarters be approved and forwarded to the Assistant Postmaster General.

 An investigation of Paton was begun in Newark. When it was discovered that the Newark FBI files contained no information on Paton an agent was dispatched for a field investigation. The agent, armed with Paton's name and address, contacted the Chester police chief, the Morristown Credit Bureau, and eventually visited Paton's school. There he discovered the reason for the mailing of the initial letter. As a result, the agent drafted a memorandum dated May 7, 1973 which concluded:

 
In view of the fact that the subject is a high school student who apparently contacted the National Office of the SWP in New York for information for one of her courses and, due to the fact that she is not believed to be involved in subversive ...

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