The United States Postal Service offers a shipping option called Media Mail. Media Mail is a popular way to ship certain types of goods through the mail because it is cheap and offers a tracking number. It is not the fasted form of shipping but many buyers are prepared to wait an extra day or two or three for their package to be delivered. Media Mail allows printed material, books, periodicals, literature, plays, audio and video recordings to be shipped at a reduced rate compared to Priority Mail. But it does not allow all things which might fall into these categories or like categories. The rules are riddled with contradictions and outdated approaches. We will look at two such applications, comic books and video games.

Comic Books

Media Mail permits the shipping of books of at least 8 pages but not comic books because “Media Mail packages may not contain advertising. Comic books do not meet this standard. Books may contain incidental announcements of other books and sound recordings may contain incidental announcements of other sound recordings.” Notice 121 Why is there a “no advertising rule”? If it was to prevent catalogs from being shipped in this fashion, that is the regulation of commercial speech to which a more stringent standard can be applied than other kinds of speech. A comic book certainly qualifies as something more than just commercial speech. It has artwork and usually words and a story. I also know of some comic books which literally contain no advertisements beyond “incidental announcements of other books.” And those announcements must be for books, not other things.

What is an advertisement? Media Mail allows an order form to be included in a book and incidental announcements of books. Order forms or their equivalents may be found in book series like The Hardy Boys. Film catalogs can be included with 16mm film. How are these not advertisements? Advertising is defined here.

Magazines and periodicals have their own special pricing scheme and may contain advertising. Domestic Mail Manual, section 207. A comic book would seemingly not qualify for magazine pricing because magazines, newspapers and the like required to have as their primary purpose “the transmission of information. Flyers, catalogs and those annoying weekly grocery store circulars also have their own pricing system, Domestic Mail Manual, section 243.

Trade paperbacks, a.k.a. graphic novels, often collect many issues of a comic book. Some may have advertisements in them, others do not. Other “books” in the same format as a comic book (stapled, no spine) may be shipped so long as they do not have the attributes of a comic book. A book eligible for Media Mail pricing “is to consist wholly of reading matter or scholarly bibliography”. Does this mean that a book with any pictures or illustrations is banned from Media Mail? Fortunately the postal service does not go quite that far.

Is a book which contains advertisements permanently barred from the privilege of being passed through Media Mail? Consider a comic book from 1984. No advertisement in a forty year old book is still valid, at that point it is a historical artifact. The advertisement no longer serves the purpose for which it was placed, even if you obtained the advertised item you would only be putting money into a reseller’s pocket. Even books published five years ago are not going to have any significant ability to generate direct revenue to the company which paid for the ad. Still, a customer support ruling suggests that the age of the document does not matter, only the original purpose does. Another ruling suggests otherwise as to reprints. What about the rare comic that literally contains no ads, can you mail those?

It should be noted that the prohibition of comic books is only found in Notice 121, not in the Domestic Mail Manual, section 170. Notice 121 is poorly written in regard to comic books and finds no support in the Domestic Mail Manual beyond the Manual’s general rules against advertising. The Domestic Mail Manual’s revisions are published in the Federal Register and may be treated as official regulations of the USPS. The Notice and the FAQ cite no source for their authority.

Many video cassettes, DVDs, Blu-rays and even Ultra HD Blu-rays contain advertising in the form of trailers for other movies which are intended to play before the main feature. This “no advertising” rule would subject their suitability to Media Mail on a disc-by-disc basis. While the postal inspector may open a package and observe an advertisement on the back cover of a comic book, he or she might have to use slightly more effort to determine whether the disc or tape contained trailers.

According to the Domestic Mail Manual, video recordings and player piano rolls are treated like sound recordings. Sound recordings are permitted to include incidental announcements of recordings. A trailer may be an announcement for another video recording, but the work involved in making a trailer, length of a trailer and the often unskippable playback of a trailer would be hard to argue it is incidental like a list of books by an author or in a series.

Video Games

Media Mail prohibits shipping “video games, computer drives and digital drives”, despite that video games are a recognized form of speech protected by the First Amendment. This is explicit prohibition is not found in either the Domestic Mail Manual section 170, or Notice 121 but only in the Media Mail FAQ, Article Number 000006802.

However, Media Mail permits the shipping of “Computer-readable media containing prerecorded information and guides or scripts prepared solely for use with such media.” By this standard you could ship a copy of King’s Quest I or Quake III Arena, as both contain computer-readable media on floppy disk and CD-ROM, respectively, and manuals as guides prepared solely for use with such media. But if you ship a copy of NES Super Mario Bros. in the mail, which only was released on cartridge, you risk getting it returned to you. All video games, whether they came on cassette tape, cartridge, floppy disks, CD/DVD ROMs, can be read by a computer even if the hardware required may be a greater investment for some types of media than others.

Also, why are video games specifically mentioned? This implies that other kinds of software is permissible to ship. Is it OK to ship a copy of Microsoft Office 97 versus Diablo II?

In the cases of comic books and video games, the only way you can segregate out these materials is by deeming them “frivolous” and therefore unworthy of the cheaper shipping rate. There is no legal justification for discriminating in pricing on shipping certain works due to subjective impressions of a work’s literary, artistic or scientific value.

We have the postal service’s explanation of this rule, a short “customer support ruling” from July, 2018. The author begins by claiming that “From the beginning of Media Mail, the policy behind this classification has been to encourage the flow of educational materials through the mail.” If that is so, why are books eligible for Media Mail not limited to educational books, as opposed to fiction? Seldom is a playscript, which is permitted under Media Mail, educational. Then the writer goes on to acknowledge that “games, including board games and games in an electronic format, are used primarily for entertainment and they do not serve the same purpose as books, films, or other qualifying Media Mail.” Not all games are made primarily for entertainment, there has always been a class of games that are designed to instruct and educate as well as entertain. Video games like The Oregon Trail and board games like The Settlers of Catan or even Monopoly do both. Video games can promote the ‘educational, cultural, scientific, and informational values’ permitted for discount mail rates under 39 U.S. Code § 3622 and inherent in the Media Mail classification

Moreover, sound and video recordings are usually sent with the purpose of entertainment. Few wouldclaim any substantial intentional educational value in Avengers: Doomsday or Michael Jackson’s Thriller. That movie and that album were made to entertain. But they can be sent via Media Mail but video games based on them cannot. It is absurd that I could mail a DVD or Blu-ray of TMNT: The Movie but not the comic books on which much of that movie was derived or video games which tell a similar story.

Video games are protected by the First Amendment. Brown v. Entertainment Merchants Association, 564 U.S. 786, 790 (2011) (“Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). While comic books have not had as explicit an announcement of protection, there is no serious dispute that they are protected as well. Kaplan v. California, 413 U.S. 115, 119-20 (1973) (“As with pictures, films, paintings, drawings, and engravings, both oral utterance and the printed word have First Amendment protection”). The customer support ruling reflects an outdated approach to video games. A government agency cannot impose a regulation, even if content neutral, if that restriction is greater than essential to First Amendment freedoms to further an important governmental interest. Turner Broadcasting System v. FCC, 522 U.S. 622 (1994). The agency must treat all speech similarly, offering discounts to all or none of it. Speiser v. Randall, 357 U.S. 513 (1958). The government cannot pick and choose arbitrarily which kinds of speech gets the special subsidy treatment and which does not.