June 9, 2020— In a significant First Amendment decision, the United States Court of Appeals for the District of Columbia Circuit found that the U.S. Postal Service’s (“USPS”) ban on political content used on custom stamps is unconstitutional.

Through a customized postage program, USPS allows customers to order valid U.S. postage with images and text of their own design but prohibits “political” content.  Kellogg Hansen’s clients – artist Anatol Zukerman and Charles Krause Reporting, an art gallery with whom he collaborates – had a proposed postage design rejected because it was “political.”  Kellogg Hansen filed a lawsuit on behalf of Mr. Zukerman and the gallery in 2015, alleging unconstitutional censorship of political speech.

In today’s ruling, the Court found that the USPS’s blanket ban on “political” content fails the “objective, workable standards” test articulated by the Supreme Court in Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876, 1891 (2018), and therefore is unconstitutional.  The Court also held that USPS’s changes to its challenged policies in 2018 did not moot the plaintiffs’ viewpoint discrimination claims.  Because others remain able to circulate “political” customized postage, while Mr. Zukerman still cannot circulate his “political” postage design, USPS’s viewpoint discrimination continues, its effects persist, and relief remains possible.  The district court’s decision was reversed and the case was remanded for further proceedings.

Former Kellogg Hansen associate Daniel Guarnera argued the case.  With him on the briefs were Kellogg Hansen partners Chris Todd and Geoffrey Klineberg.  Associates Julius Taranto and Gabriel Kohan and former associate Michael Qin also joined in drafting the briefs.

The case is Anatol Zukerman and Charles Krause Reporting, LLC v. United States Postal Service, No. 19-5168 (D.C. Cir. June 9, 2020).