961 F.3d 431
D.C. Cir.2020Background
- Plaintiff Anatol Zukerman (artist) attempted to purchase USPS-authorized custom postage reproducing a political artwork; vendor Zazzle cancelled the 2015 order as "political," though other political designs appeared on the platform.
- USPS adopted a uniform regulation in 2018 (the "2018 Rule") allowing only "commercial" or "social" designs and excluding "any depiction of political...content." Authorized vendors must follow the Rule; Stamps.com rejected Zukerman’s 2018 submissions under those standards.
- Zukerman filed a Supplemental Complaint incorporating his 2015 allegations and bringing a facial First Amendment challenge to the 2018 Rule and a continuing-viewpoint-discrimination claim.
- The District Court dismissed the viewpoint-discrimination claim as moot and upheld the 2018 Rule as a reasonable content restriction in a nonpublic forum.
- The D.C. Circuit held the viewpoint claim is not moot and remanded it for further factfinding on the merits; the court reversed the facial challenge and held the 2018 Rule unconstitutional because the term "political" lacks "objective, workable standards."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of viewpoint-discrimination claim | Zukerman alleges ongoing injury: USPS still recognizes previously issued political stamps while rejecting his, so relief remains possible | USPS says earlier policy is superseded by 2018 Rule, so the claim is moot | Not moot: voluntary-cessation test fails; effects persist; remanded to District Court |
| Mootness of facial challenge after USPS announced termination of program | 2018 Rule is still in force; relief remains available; challenge justiciable | USPS says program termination and vendor deauthorization remove continuing injury | Not moot on this record: USPS hasn’t shown it is "absolutely clear" the wrongdoing won’t recur; remand for factual development |
| Merits of viewpoint-discrimination claim | Zukerman: he was and is denied the forum while others with opposing political messages were allowed | USPS: merits not fully briefed below; factual record disputed | Court finds claim facially plausible and potentially meritorious but remands for District Court to decide merits in first instance |
| Facial challenge to 2018 Rule under forum doctrine (Mansky) | Blanket ban on "political" content is overbroad and fails to provide objective, workable standards for reviewers | USPS: Rule is narrowed by definitions of "commercial"/"social" and enumerated exclusions; administrable | Held unconstitutional: the unqualified ban on "political" content is "simply too broad" and lacks objective, workable standards required in nonpublic forums |
Key Cases Cited
- Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018) (speech restrictions in nonpublic forums must provide objective, workable standards)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) (voluntary cessation mootness standard: party urging mootness must show no reasonable expectation of recurrence)
- County of Los Angeles v. Davis, 440 U.S. 625 (1979) (voluntary cessation does not automatically moot a case)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (viewpoint discrimination forbidden in government-controlled forums)
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (forum doctrine framework: public, designated, nonpublic forums)
- Matal v. Tam, 137 S. Ct. 1744 (2017) (test for viewpoint discrimination: government singled out subset of messages for disfavor)
- Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (government may exclude political advertising in certain government-controlled media)
- Greer v. Spock, 424 U.S. 828 (1976) (upholding exclusion of political demonstrations and campaign speech on military base)
- Bryant v. Gates, 532 F.3d 888 (D.C. Cir. 2008) (upholding a ban on "political advertisements" where context made "political" scope clear)