567 F.Supp.3d 161
D.D.C.2021Background
- USPS operated a customized postage program (via authorized vendors like Zazzle) allowing customers to order postage with user-selected images; vendors agreed to apply USPS content guidelines.
- Anatol Zukerman submitted a stamp design criticizing Citizens United; Zazzle rejected it as "political," citing its content rules, while other clearly political designs were accepted and sold by Zazzle.
- Zukerman sued in 2015 alleging viewpoint discrimination; the D.C. Circuit later reversed parts of the district court’s rulings and remanded, noting ongoing injury despite USPS’s later termination of the program.
- USPS wound down and ultimately terminated the customized postage program in 2020 and rescinded the governing regulations, but did not recall or decertify previously issued customized stamps.
- On remand, the district court found (on summary judgment) that Zazzle’s decisions were attributable to USPS under the public-function doctrine and that Zukerman proved viewpoint discrimination in violation of the First Amendment.
- The court declined to order the primary remedies Zukerman sought (compelling USPS to print his stamp or to recall/decertify political designs), citing practical, legal, and equitable concerns, and ordered supplemental briefing for narrower, workable relief (e.g., web posting, voluntary exchange, declaratory relief/nominal damages).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / Mootness | Zukerman was prevented from using the custom-stamp forum while others’ political stamps circulated, causing ongoing injury. | USPS argued uncertainty whether political stamps remained in circulation and that the case was moot after program termination. | Court: Zukerman has standing; case not moot—effects persist and USPS didn’t recall or invalidate issued stamps. |
| State action | Zazzle performed a traditionally exclusive public function (determining content of U.S. postage); USPS therefore liable for Zazzle’s conduct. | USPS argued private vendor action not attributable to government and that activities were not exclusively governmental. | Court: Public-function test satisfied; Zazzle’s content decisions are attributable to USPS. |
| Viewpoint discrimination | Zazzerman: Zazzle rejected his Citizens United critique but approved pro-Obergefell and other political designs—disfavoring his viewpoint. | USPS contended insufficient pattern/volume to prove viewpoint discrimination and that approvals were mistakes or non-political. | Court: Found direct evidence of viewpoint discrimination; Zukerman entitled to judgment on merits. |
| Remedy | Zukerman sought order compelling USPS to print his stamp or to recall/decertify political customized stamps. | USPS argued remedies are unworkable, legally and practically infeasible, and would raise wide consequences. | Court: Denied those primary remedies as impracticable; ordered further briefing on narrower, workable equitable relief (e.g., web posting, voluntary exchange, declaratory/nominal damages). |
Key Cases Cited
- Zukerman v. United States Postal Service, 961 F.3d 431 (D.C. Cir. 2020) (case reversed and remanded; held 2018 rule facially invalid and recognized ongoing injury for as-applied claim)
- Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974) (public-function test requires function be traditionally and exclusively governmental)
- Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921 (2019) (private entities not state actors absent traditionally exclusive public function)
- Ex parte Jackson, 96 U.S. 727 (1877) (Congress’s plenary power over post offices and postage design)
- Matal v. Tam, 137 S. Ct. 1744 (2017) (viewpoint discrimination test and broad understanding of prohibited viewpoint-based restrictions)
- Iancu v. Brunetti, 139 S. Ct. 2294 (2019) (government may not discriminate based on viewpoint in trademark refusals)
- Cooper v. United States Postal Service, 577 F.3d 479 (2d Cir. 2009) (private postal facility treated as state actor for Establishment Clause when performing USPS functions)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (government prohibited from regulating speech based on message)
- Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (discusses scope and remedy breadth for as-applied vs facial First Amendment challenges)
- City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982) (abandonment of challenged practice relevant to whether injunctive relief is necessary)
- Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021) (nominal damages can redress a past violation of a constitutional right)