Customized Postage: USPS Loses in Court but Wins at the PRC

Just last month – on May 1 – the Postal Service filed a request with the Postal Regulatory Commission seeking to delete Customized Postage as a service.  Among the reasons it offered was that “the eligibility criteria have become the source of customer complaints and the subject of legal disputes.”  (Authorized Customized Postage vendors are required to apply criteria “to ensure that the types of content included in customized postage are appropriate in light of the purposes of the program and the potential audiences, in order to safeguard the Postal Service’s legal, financial, and brand interests.”)

In that filing, it didn’t mention that, as if to support its statement, it was in court at that time with a customer whose design had been rejected.

A long backstory

The case began in 2013 when an art gallery displayed a painting by Anatol Zukerman that showed Uncle Sam imprisoned by a snake named “Citizens United,” a reference to Citizens United v. Federal Election Commission, a landmark US Supreme Court case concerning campaign finance.

(In that decision, the Court held that the free speech clause of the First Amendment prohibits the government from restricting independent expenditures for political communications by corporations, including nonprofit corporations, labor unions, and other associations.  The decision enabled the establishment of “SuperPACs” and was criticized as expanding the influence of special interest groups and lobbyists.)

The gallery chose the painting to use in promoting a 2016 show of Zukerman’s work and, in early 2015, submitted it to Zazzle, a third-party vendor authorized under the Customized Postage program.  Zazzle applied the related content criteria and rejected the design, noting the prohibition on “content that is primarily partisan or political in nature.”

Zukerman and the gallery sued in US District Court for the DC Circuit, claiming “impermissible content and viewpoint discrimination in violation of the First Amendment.”  The court rejected a USPS move to have the suit dismissed.

In a 2017 rulemaking, the Postal Service codified the program’s content criteria, limiting the type of content allowed on to just two categories, “commercial” and “social,” and banning others including political and religious content.  The new regulations (39 CFR 501.21) took effect in May 2018.

In an April 26, 2019, decision, the court dismissed the case.  It ruled that the original complaint against the program’s criteria (replaced by the rulemaking) was moot, and that in their amended complaint (about the new regulations) the plaintiffs “failed to state a facial First Amendment challenge to the Regulations because the customized postage program is a nonpublic forum and the Regulations are both reasonable and viewpoint neutral.”

The plaintiffs then appealed that decision to the US Court of Appeals for the DC Circuit, which rendered its decision on June 9...


Subscribers can read this article in full in the June 22 edition of the Mailers Hub News

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