with whom
Justice Marshall joins, dissenting.It is clear to me that the university’s compliance with the state-law requirement that it allow the Union free use of its internal mail system to send unstamped letters to its employees would constitute delivery “by private hands without compensation” within the meaning of 18 U. S. C. § 1696(c). I therefore respectfully dissent.
The construction of the Private Express Statutes urged by the Government and adopted by the majority broadens the scope of the federal monopoly beyond that envisioned by the Continental Congress when it passed the first statutes defining the postal monopoly in 1782, and by Congress when it reenacted those statutes in 1792 and amended them in 1825, 1845, and 1909. This broad construction is contrary to the statutory language and hostile to the wisdom of narrowly construing the legislation that created the powerful and far-reaching postal monopoly. There are at least three important reasons to construe the Private Express Statutes narrowly. First, the statutes impose criminal penalties for their violation. Though the sanctions are modest and seldom imposed, the rule of lenity requires a strict construction of the statutes’ provisions. Second, the statutes grant an economic monopoly. Even though the Federal Government is the proprietor of the monopoly, this Nation’s tradition of opposition to monopolistic privileges supports a policy of strict construction. Third, and of greatest significance, expanding the monopoly beyond the bounds delimited by Congress will inevitably curtail the volume of communication that would otherwise be exchanged in a free society.
It is quite wrong to assume that a private carrier, such as a university, that allows a third party to use its internal mail *605delivery system without charge is necessarily depriving the Postal Service of significant revenues. Many messages that can be sent free of charge will simply not be sent at all if the sender is required to pay a user fee in the form of postage for the privilege of communicating in this way. As Justice White has correctly noted, no one can question the fact that this “user fee measurably reduces the ability of various persons or organizations to communicate with others.” United States Postal Service v. Greenburgh Civic Assns., 453 U. S. 114, 141 (1981) (concurring in judgment). The facts of the Greenburgh case demonstrate that there are many worthwhile civic groups whose ability to communicate with their constituents is seriously impaired when they must pay postage instead of using private methods of distribution. Id., at 119-120. Thus, a broad prohibition against the use of free private facilities imposes a real burden on the First Amendment right to communicate which may well be more significant than the uncertain loss of revenue to the Postal Service. The “First Amendment’s guarantee of free speech applies to . . . teacher’s mailboxes as surely as it does elsewhere.” Perry Education Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 44 (1983).
I
The monopoly granted by Congress to the Postal Service is limited to the right to deliver mail for “hire, reward, or other profit or advantage.” The delivery of mail without compensation does not infringe this monopolistic grant, and the statutes creating the monopoly have always permitted the private delivery of mail without profit. The first statute granting monopoly privileges to the Postal Service was enacted by the Continental Congress in 1782. It provided:
“[T]he Postmaster General of these United States for the time being, and his deputy and deputies, thereunto by him sufficiently authorised, and his and their agents, post-riders, expresses and messengers respectively, and no other person whatsoever, shall have the receiving, *606taking np, ordering, despatching, sending post or with speed, carrying and delivering of any letters, packets or other despatches from any place within these United States for hire, reward, or other profit or advantage . . . Act of Oct. 18, 1782, 23 J. Continental Cong. 670, 672-673 (G. Hunt ed. 1914). (Emphasis added.)
When Congress reenacted the substance of this statute in 1792, Act of Feb. 20, 1792, ch. 7, § 14, 1 Stat. 236, the language it chose again made clear that the monopoly being granted was limited to the right to deliver mail for profit:
“That if any person, other than the Postmaster General, or his deputies, or persons by them employed, shall take up, receive, order, dispatch, convey, carry or deliver any letter or letters, packet or packets, other than newspapers, for hire or reward, or shall be concerned in setting up any foot or horse post, wagon or other carriage, by or in which any letter or packet shall be carried for hire, on any established post-road, or any packet, or other vessel or boat, or any conveyance whatever, whereby the revenue of the general post-office may be injured, every person, so offending, shall forfeit, for every such offence, the sum of two hundred dollars.” Ibid. (Emphasis added.)
In 1825 Congress repealed all previous postal statutes in favor of a new postal law. Act of Mar. 3, 1825, ch. 64, 4 Stat. 102. The new statutes continued the monopoly, but substantially weakened the prohibitions against the private carriage of mail. See id., §§ 6, 17, 19, 4 Stat. 104, 106, 107; United States v. Kimball, 26 F. Cas. 782 (No. 15,531) (DC Mass. 1844) (holding that 1825 statutes as amended, Act of Mar. 2, 1827, ch. 61, § 3, 4 Stat. 238, did not prohibit the carriage of letters for profit by railroad); Craig & Alvis, The Postal Monopoly: Two Hundred Years of Covering Commercial as Well as Personal Messages, 12 U. S. F. L. Rev. 57, 72 (1977). This weakening encouraged the proliferation of private express *607companies. In 1845 Congress responded by enacting new legislation “to reduce the rates of postage, to limit the use and correct the abuse of the franking privilege, and for the prevention of frauds on the revenues of the Post Office Department.” Act of Mar. 3, 1845, ch. 43, 5 Stat. 732. The 1845 Act was intended to protect the Postal Service from competition, but, at the same time, Congress saw fit to continue to allow the private delivery of mail without charge.' Accordingly, the 1845 statute emphasized the distinction between the private delivery of mail for profit — which was prohibited — and private delivery when there was “no compensation being tendered or received therefor in any way” — which was not. Id., at 736.
The Private Express Statutes as they are codified today are not substantially different from those enacted in 1845. Title 18 U. S. C. § 1696(c) provides: “This chapter shall not prohibit the conveyance or transmission of letters or packets by private hands without compensation. ” The history of this provision makes clear that although articulated as an exception, the exemption for mail delivered by “private hands”1 without compensation really reflects not merely a desire to excuse certain conduct from criminal sanction but rather an intention to continue to limit the scope of the monopoly granted the Postal Service to thé delivery of mail for compensation. The monopoly Congress granted the Postal Service was simply never intended to reach so far as to encompass the delivery of mail by private parties without compensation.
It seems doubtful that Congress envisioned when it created the postal monopoly the development of internal mail *608systems, such as those that are now found in large universities or large apartment complexes, and much more doubtful that it intended to impose a burden on the free flow of communication within such places. Since the attention of Congress was focused on the actions of common carriers who were being paid to deliver federal mail and on competing private enterprises that were imposing charges similar to postage for their services, I cannot believe Congress intended to interfere in any way with not-for-profit civic organizations such as schools or universities in their provision of uncompensated delivery services or with any other delivery of mail without anticipation of “reward or other profit or advantage.” Act of Oct. 18, 1782, 23 J. Continental Cong., at 672-673.
This interpretation of the scope of the monopoly authorized by the Private Express Statutes is confirmed by the fact that prior to 1979 the applicable postal regulation unambiguously permitted “the sending or carrying of letters ... if no charge for carriage [was] made by the carrier.” 39 CFR § 310.3(c) (1979).2 Under the plain language of this regulation it would have been difficult to argue that appellant could not make its internal mail delivery system available to the Union without infringing on the legitimate scope of the federal postal monopoly. In 1979, however, the Service amended the regulation because it thought the regulation suggested too narrow a construction of the word “compensation.” The regulation was amended to make clear that compensation could “consist ... of non-monetary valuable consideration and of good will.” 39 CFR § 310.3(c) (1987). Although this “clarification” was not intended to change the law, see 43 Fed. Reg. *60960615, 60618 (1978); Advisory Op., PES 76-4 Reconsidered (Jan. 15, 1982), in this case the Service seeks to parlay the “clarification” into an unprecedented expansion of the postal monopoly.
II
Even as “clarified” the Private Express Statutes and the regulation interpreting the private-hands exception do not support the conclusion that appellant would violate the postal monopoly if it delivered mail to its employees on behalf of the Union. Appellant’s delivery of the mail could only violate the postal monopoly if it were somehow compensated for its delivery. The argument that appellant’s carriage of letters under the compulsion of state law would generate “compensation” of its own force merely because appellant has a business relationship with the sender and the recipients of the mail must be rejected as contrary to the express language of the Private Express Statutes and to the historical contours-of the monopoly given the Postal Service.
Compensation may take many forms; it is not necessarily monetary. It may, as the Postal Service expressed in its Advisory Opinion when appellant asked whether its delivery of the Union’s letters would violate the Private Express Statutes, include such intangibles as “good will,” “forbearance of demands for benefits,” or the “facilitation of a continuing relationship.” Advisory Op., PES No. 82-9 (July 2, 1982), App. to Juris. Statement A66,-A71. But these intangibles may be recognized as compensation only if they have value to the recipient. Recognition that compensation may take an intangible form does not diminish the requirement that the recipient receive something of value in exchange for the costs it incurs when it undertakes the carriage, that is, that it receive some benefit on account of the carriage. Appellant’s delivery of the Union’s letters would fall squarely within the private-hands exception unless some benefit would flow directly to it as a result of its carriage of letters for the Union.
*610I have been unable to identify any benefit that appellant will acquire if it begins to fulfill its obligation under state law to allow the Union to use its mail system. The state statute that creates the obligation does not mandate, or even appear to contemplate, that appellant will receive compensation for complying with this duty.3 Further, it has not been suggested that the Union intends nonetheless to provide some compensation to appellant. Thus the question becomes whether despite the absence of any requirement that the Union compensate appellant and the lack of any intention on the part of the Union to compensate appellant, some intangible compensation will necessarily flow from the Union or some other source when appellant begins to fulfill its state-law obligations.
There is no reason to suspect that appellant will benefit from any increased good will towards it on the part of the Union. Although such good will might conceivably be generated if appellant were to provide the service out of the kindness of its heart, no good will, at least no good will that qualifies as compensation, can be thought to arise merely because an entity does precisely what state law compels it to do. No business can establish good will — “‘[s]omething in business which gives reasonable expectancy of preference in race . . . of competition’”4 — merely by broadcasting that it, as all businesses are expected to do, conducts itself in conformance with applicable state law. Similarly, there is no reason to anticipate that appellant will enjoy any forbearance of de*611mands for benefits by the Union. First, the Union is not the collective-bargaining agent of appellant’s employees. Second, and more importantly, it is unreasonable to assume that the Union will refrain from seeking some demand because appellant does what state law compels it to do. Nor could appellant reasonably be expected to be able to utilize its compliance with state law as a bargaining chip in disputes with the Union. Appellant has a pre-existing duty to conduct itself in accordance with the law, and it is unreasonable to think that the Union would give appellant anything in return for a promise to continue to obey the law.
I also do not find in the record any evidence that a benefit will flow from appellant’s employees to it on account of its delivery to them of mail from the Union. Appellant’s employees are currently obligated to provide their services to appellant without regard to whether appellant complies with its state-law obligation to allow the Union access to its mail system. Appellant’s compliance will not increase its employees’ obligations to it one whit.
Appellant contends that the Postal Service “has consistently taken the position that any business relationship between the carrier and the sender or recipient defeats the gratuitous character of the carriage.” Brief for Appellant 35. In fact the Postal Service’s concept that compensation is implicit in any business relationship was adopted for the first time in this case.5 As the Postal Service admitted in its Ad*612visory Opinion, this case is distinguishable from those previously considered by the Postal Service in that the Union involved is not the collective-bargaining agent of the carrier and the carriage would not be voluntarily undertaken. Advisory Op., PES No. 82-9 (July 2, 1982), App. to Juris. Statement A66. It is one thing to recognize, as the Postal Service has previously, that in a business setting voluntary gratuitous acts often benefit the actor in a concrete way and quite another to conclude that merely because a business relationship exists between the parties any action, even though compelled by state law, that benefits the other party generates compensation.
The only previous judicial interpretation of the private-hands-without-compensation exception, United States v. Thompson, 28 F. Cas. 97 (No. 16, 489) (DC Mass. 1846), provides no support for the concept of “implicit-in-the-relationship compensation” relied on here by appellant and by the majority. In Thompson the District Court held that the exception did not permit a private carrier of merchandise to carry letters “in connection with, or as part of his business of a merchandise express, although no charge was made for letters as such. ” Id., at 98. The court recognized that the mere fact that defendant did not charge a fee for the delivery of letters “as such” did not mean that he was not compensated for the delivery. Indeed, the fact of compensation was obvious from the fact that defendant delivered letters only on behalf of persons who hired him to deliver merchandise. The court’s rejection of defendant’s argument that his delivery of letters *613fell within the private-hands exception because he did not charge a distinct fee for the delivery of letters did not rest on the mere existence of a business relationship between the merchandise carrier and the parties on whose behalf he delivered the letters, but rather on the recognition that the provision of that service enhanced the profitability of the merchant’s business. This increase in profitability provided compensation to the merchant for the carriage service.6
The instant case is clearly distinguishable from Thompson and from the other factual settings in which the Postal Service or the Attorney General has considered the scope of the exception.7 The very fact that the majority and the Postal *614Service find it necessary to articulate the broad rule that compensation arises solely from the existence of a business relationship between the carrier and the recipient or sender in order to take this case out of the exception proves that this case represents an attempt to expand the scope of the Postal Service monopoly by narrowing the reach of the exception.
The policies behind the Private Express Statutes would not be impaired by recognizing that this case falls within the private-hands exception. The enactment of the private-hands exception itself reflects a decision to forgo whatever revenues might be generated by expanding the scope of the postal monopoly to encompass all deliveries of written messages by private parties. Moreover, the legislative history of the statute does not support the majority’s position that the exception for carriage by private hands without compensation was designed “solely to permit ‘an innocent man ... to do a favor to some[one]. ’ ” Ante, at 599. As discussed supra, at 605-608, the concept that the monopoly given the Postal Service did not encompass the delivery of mail by private parties without compensation had its origin with the birth of the monopoly. Nothing in the legislative history of the statutes creating the monopoly explains why the Continental Congress and later Congress decided to so limit the scope of the monopoly.8 The language that the majority seeks to *615rely on is actually an excerpt from a debate concerning a proposed, but never passed, amendment to 18 U. S. C. § 1694, which now contains the letters-of-the-carrier exception.
During the Senate’s debate on how to amend § 1694 to insure that railroads could carry their own urgent letters without violating the Private Express Statutes, Senator Mc-Laurin and Senator Teller proposed that the words “for hire” or “for compensation” be added to the statute, so that the statute would allow common carriers to carry mail provided that they did not do so “for hire.” 42 Cong. Rec. 1902, 1903 (1908). Senator McLaurin spoke in favor of the amendment saying,
“[M]y greatest objection to this provision is that some stage driver who happens to be making regular trips would, if he were, out of the kindness of his heart, to take a letter for some friend and deliver it to another friend on the way, be liable to pay a fine of $50. ... I think, therefore, that the amendment offered . . . would accomplish a great deal of good. It will make clear the construction that was given to it by Attorney-General Harmon, and it will not be necessary to construe this section.
“My idea about it is, though, that there ought to be some provision whereby an innocent man, probably one in an humble position and following an humble pursuit, would not stumble into a pitfall when, out of the goodness of his heart, he was trying to do a favor to some friend of his or to somebody, whether he was a friend or not.” Id., at 1905.
In further debate the following day, the amendment was rejected in favor of the amendment proposed by Senator Suth*616erland, which we now know as the letters-of-the-carrier exception. Id., at 1976. A brief colloquy over 60 years after the passage of the 1845 Act about a proposed-but-never-adopted amendment is a slender reed on which to base the Court’s wholly unnecessary and unwise interpretation of this ancient monopoly.
I respectfully dissent.
I agree with the majority that the carriage of mail by the university (governed by appellant Regents and hereafter referred to as appellant) would be carriage by “private hands” within the meaning of the statute. As Attorney General Harmon commented in an opinion on the scope of the postal monopoly written in 1896, the term “ ‘private hands’ was evidently intended to cover all except common carriers on post routes.” 21 Op. Atty. Gen. 394, 401 (1896).
The full text of the regulation provided:
“(e) Private hands without compensation. The sending or carrying of letters is permissible if no charge for carriage is made by the carrier. However, a person engaged in the transportation of goods or persons for hire does not fall within the exception merely by carrying letters free of charge for customers whom he does charge for the carriage of goods or persons.”
The Higher Education Employer-Employee Relations Act (HEERA), Cal. Govt. Code Ann. § 3568 (West 1980), provides:
“Subject to reasonable regulations, employee organizations shall have the right of access at reasonable times to areas in which employees work, the right to use institutional bulletin boards, mailboxes and other means of communication, and the right to use institutional facilities at reasonable times for the purpose of meetings concerned with the exercise of the rights guaranteed by this act.”
Black’s Law Dictionary 625 (5th ed. 1979) (quoting In re Witkind’s Estate, 167 Misc. 885, 895, 4 N. Y. S. 2d 933, 947 (1938)).
The regulation implementing the private-hands-without-compensation exception discusses the impact of a business relationship on the “without compensation” analysis:
“Compensation may also consist, however, of non-monetary valuable consideration and of good will. Thus, for example, when a business relationship exists or is sought between the carrier and its user, carriage by the carrier of the user’s letter will ordinarily not fall under this exception.” 39 CFR § 310.3(c) (1987).
Thus the regulation recognizes that in most instances the existence of a business relationship will suggest such an exchange of value for any services performed by one party for another that the private-hands-without-*612compensation exception will not apply. The use of the word “ordinarily,” however, makes clear that the regulation anticipates that there will be occasions when carriage of mail will be “without compensation” even if there is a business relationship between the carrier and the user. The position taken by the Postal Service and the majority of this Court in this case, however, admits of no such possibility. In their view, once a business relationship is established, the applicability of the exception is foreclosed. This view is contrary to the plain language of the exception, to previous applications of the exception, and to the regulation.
The drafters of 39 CFR § 310.3(c) (1987) no doubt had Thompson in mind when they specified in the regulation that “a person engaged in the transportation of goods or persons for hire does not fall within the exception merely by carrying letters free of charge for customers whom he does charge for the carriage of goods or persons.”
The opinions of the Attorney General and Postal Service relied on by appellant do not support its assertion that the private-hands exception has consistently been interpreted as not authorizing the delivery of mail if a business relationship exists between the carrier and the sender or the recipient. In 1896 the Attorney General was asked whether it was “proper for a railroad company to carry, outside of the mails, not in Government stamped envelopes, first-class mail matter intended for a connecting fine.” 21 Op. Atty. Gen., at 397. In explaining that such conduct would violate the Private Express Statutes, the Attorney General opined that the “express or implied obligation” between railroad lines to carry mail for each other was compensation within the meaning of the private-hands exception. Id., at 401. The Attorney General did not express the view that compensation was implicit in the business relationship between the railroad lines but rather found that the exchange of reciprocal obligations was compensation.
In Advisory Opinions PES 76-4 (Mar. 3, 1976) and 76-4 Reconsidered (Jan. 15, 1982), the Postal Service expressed the view that the delivery of mail by the Salem Oregon School District on behalf of the collective-bargaining agent of its employees would not come within the private-hands-without-compensation exception. The School District was providing the service because it had agreed to do so in a collective-bargaining agreement. Since the agreement to perform the service had been reached as part of a bargaining process, it was clear that the District had re*614ceived something of value in exchange for its agreement to provide the service. The controlling element of the Postal Service’s opinion was not the overall business relationship between the Union and the School District but the fact that the provision of the service was a negotiated element of a collective-bargaining agreement.
There is no suggestion in the instant case that appellant will receive a quid pro quo if it undertakes the delivery of the Union’s mail or that it will be able to acquire some benefit for the service through bargaining. The reality here is that appellant will get exactly nothing for its delivery of the Union’s mail save the satisfaction of finding itself in compliance with a compulsion under state law.
The only time the private-hands-without-compensation exception is referenced in the legislative history of the Private Express Statutes is in a *615deseriptive comment in a House Report on the 1845 Act: “Penalties are provided . . . with exceptions in favor of the party . . . who conveys the letter out of neighborly kindness, without fee or reward.” H. R. Rep. No. 477, 28th Cong., 1st Sess., 4 (1844).