It may not be as provocative as comedian George Carlin's "Seven Dirty Words," a free-speech case that went to the Supreme Court in the 1970s. But a Washington area nonprofit group wants to take the U.S. government to the high court for banning the use of "Social Security" on its mailing envelopes.
The reference to Social Security is one of 19 words and phrases the government prohibits on mailing envelopes because of concern that recipients -- think senior citizens -- would assume the correspondence came from the real Social Security Administration.
In 2001, the agency slapped a $554,196 fine, its second-largest, on United Seniors Association for using the phrases "Social Security Alert" and "Social Security Information Enclosed" on its mailings. The group was fined $1 for each piece of correspondence with the offending words.
The alleged violation was of a 1988 law that gave the agency the authority to bar the use of certain words -- including Medicare and Medicaid -- on advertisements, solicitations, books, pamphlets and other communication that could convey, or could be reasonably interpreted as conveying, that they were "approved, endorsed, or authorized" by the government.
The group appealed to an administrative law judge and lost, lost again at a Department of Health and Human Services appeals board, and took the case to federal court. In August, the U.S. Court of Appeals for the 4th Circuit, in Richmond, ruled, "The repeated references to 'Social Security,' the 'Social Security Alert' border, the phony handling instructions, and the envelopes' resemblance to special shipping methods could reasonably lead recipients to believe that the envelopes contain official information relating to their Social Security benefits that must be dealt with at the earliest moment."
The full appeals court declined late last month to review the decision, so Charles Jarvis, United Seniors' chief executive, says he wants to test the constitutional issue at the Supreme Court. "I'm hopeful that a Roberts court with a Judge Alito on it will value basic First Amendment rights in the Social Security debate," Jarvis said. Judge Samuel A. Alito Jr. is the president's latest nominee for the Supreme Court.
The case may not turn out to be as interesting and salacious as Carlin's foul-mouthed monologue, but it illustrates the tension between a federal agency's effort to regulate speech and the argument that the First Amendment allows such marketing pitches.
Such regulation has been challenged before, in Food and Drug Administration rules on the promotion of off-label uses of drugs, labeling claims on dietary supplements, and what drug companies can tell doctors. Department of Agriculture promotional programs to market various commodities also have ended up in court on the grounds they violate the First Amendment by forcing producers to finance messages they don't agree with.
The law was strengthened in 1994, and last year, the terms "Death Benefit Update," "Federal Benefit Information," "Funeral Expenses," and "Final Supplemental Plans" were added to the list of banned words. The maximum penalty is $5,000 per mailing. Since 1999, the SSA has received 616 complaints and assessed $2.8 million in fines.
United Seniors bills itself as a conservative alternative to AARP in supporting issues to help retired persons. It backs personal retirement accounts, for example, rather than the current Social Security benefits system. Its chairman is Art Linkletter. Jarvis served in the Reagan and first Bush administrations and is a former executive vice president of Focus on the Family, a conservative group that promotes traditional family values.
United Seniors was at one time affiliated with Richard Viguerie, who pioneered the multimillion-dollar business of computerized direct mail for political purposes. Viguerie's company, American Target Advertising Inc., in Manassas, filed a legal brief supporting Jarvis's group in its court fight.
Jarvis said he hired a bipartisan team of attorneys in his court fight because the issue transcends political boundaries.
"What have become normal political-marketing techniques, which enliven the political debate, were held unlawful, and you have a nonprofit entity getting hit with a $500,000 fine. The First Amendment issues go right to how political ideas are marketed to the average person," said Robert J. Cynkar, who was special assistant to Edwin Meese III in the Reagan administration.
The other attorney on the case is Washington lawyer Jonathan W. Cuneo, whose firm represents investors and other plaintiffs in cases against corporations.
Amy Thompson, deputy chief counsel in the Social Security Administration's Office of Inspector General, which brought the charges against Jarvis's group, said the lobbying group had been warned repeatedly that the envelopes would violate the law.
"We sent United Seniors notices on several occasions. They rolled the dice on that fine," Thompson said, referring to the appeals. "We never asked them to stop sending their message. We were only concerned about the manner in which it was sent. We did not want to impede their ability to mail."
Jarvis said that the envelopes showed "United Seniors" as the sender and that the postage stamp also named the group.