Zukerman v. U.S. Postal Serv.

Decision Date26 April 2019
Docket NumberCase No. 15-cv-2131 (CRC)
Citation384 F.Supp.3d 44
Parties Anatol ZUKERMAN, et al., Plaintiffs, v. UNITED STATES POSTAL SERVICE, Defendant.
CourtU.S. District Court — District of Columbia

384 F.Supp.3d 44

Anatol ZUKERMAN, et al., Plaintiffs,
v.
UNITED STATES POSTAL SERVICE, Defendant.

Case No. 15-cv-2131 (CRC)

United States District Court, District of Columbia.

Signed April 26, 2019


384 F.Supp.3d 49

Benjamin Louis Rudofsky, Daniel S. Guarnera, Geoffrey M. Klineberg, Kenneth Chris Todd, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, DC, for Plaintiffs.

Jason Lee, Rebecca Michelle Kopplin, United States Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

384 F.Supp.3d 50

The United States Postal Service ("USPS") allows customers to design and print customized postage stamps. We've all seen them: personalized postage for a wedding invitation featuring a photograph of the happy couple, a birth announcement featuring an image of the newborn, or an upcoming sale featuring the company's logo. Artist Anatol Zukerman wanted to create his own personalized postage to promote an upcoming gallery exhibition and submitted a proposed design to a third-party vendor that printed customized postage on USPS's behalf. The vendor rejected Zukerman's design as too "partisan or political" under USPS's then-extant guidelines: aimed at critiquing the Supreme Court's Citizens United decision, the design cautioned that "Democracy is not for sale" and featured the image of a snake—marked with the words "Citizens United" and shaped like a dollar sign—strangling Uncle Sam. Zukerman and the gallery sued, alleging that USPS, through the vendor, had violated the First Amendment. The Court denied a previous motion to dismiss the suit for lack of jurisdiction, and the parties proceeded to discovery. In the meantime, though, USPS promulgated new regulations to govern the customized postage program, redefining and narrowing somewhat the type of content that is permitted. Again, Zukerman submitted proposed designs to a vendor; again, those designs—substantially similar to the previous one—were rejected; and again, Zukerman and the gallery sued, supplementing their original claims with a facial First Amendment challenge to the new regulations.

USPS has moved to dismiss Plaintiffs' suit. It says that Plaintiffs' original claims are moot because they are based on guidelines that have been superseded by the operative regulations. And it contends that Plaintiffs' supplemental claims challenging those regulations fail to state a claim because the customized postage program is a nonpublic forum and its governing regulations need only be reasonable and viewpoint neutral, which they are. For the reasons that follow, the Court concludes that Plaintiffs' original claims are moot and must be dismissed under Federal Rule of Civil Procedure 12(b)(1). The Court further concludes that Plaintiffs' supplemental claims fail to state a claim and must be dismissed under Rule 12(b)(6).

I. Background

A. The Customized Postage Program

USPS launched its customized postage program in 2004 to allow customers to print at home "evidence of prepayment of postage" using their own images. 39 C.F.R. § 501.1(a). These products are distinct from U.S. postal stamps, which are produced and controlled by USPS. See 18 U.S.C. § 8. Consumers may only use authorized third-party vendors to create customized postage. Since the program's inception, it has been "the Postal Service's declared intent not to allow its Customized Postage program to become a public forum for dissemination, debate, or discussion of public issues." Customized Postage, 71 Fed. Reg. 12,718 -01, 12,719 (Mar. 13, 2006). Rather, the program is designed to promote USPS's commercial objectives as set forth in 39 U.S.C. § 3622(b)(5), which directs the Postal Regulatory Commission

384 F.Supp.3d 51

"[t]o assure adequate revenues, including retained earnings, [and] to maintain financial stability." See Request of the U.S. Postal Service to Add Postal Products to the Mail Classification Schedule, Attachment D (Statement of Supporting Justification for Customized Postage) at 1, Modification of Mail Classification Schedule Product Lists in Response to Order No. 154, No. MC2009-19 (Postal Regulatory Comm'n Mar. 10, 2009) (hereinafter "USPS Statement of Support, Attachment D").

For most of the program's history, USPS restricted the permissible content of customized postage by requiring authorized vendors to abide by Standardized Image Guidelines incorporated in the vendors' authorization agreements. See Proposed Rule, Revisions to the Requirements for Customized Postage Products, 82 Fed. Reg. 1,294 -01, 1,294 (Jan. 5, 2017). The Guidelines attached to the 2009 agreement of one such vendor, Zazzle, Inc., directed the vendor not to accept, among other categories, "[c]ontent or images actively advocating or disparaging the religious, political, or legal agenda of any person or entity, including but not limited to content or images designed to influence a specific piece of legislation" or "[p]artisan or political content or images, including but not limited to content or images supporting or opposing election of any candidate(s) to any federal/state/local governmental office or supporting or opposing any referendum conducted by federal/state/local government." Standardized Image Guidelines, Exhibit A to Customized Postage Amended and Restated Authorization between USPS and Zazzle, Inc. (May 7, 2009), ECF No. 43-7, at 9 (Filed Under Seal).1 In interpreting and applying these Guidelines, Zazzle imposed additional restrictions, which prohibited "the printing of any postage with content that is primarily partisan or political in nature" or that "[a]dvocate[s] or protest[s] any social, political, legal, moral or religious agenda in a way that may appear controversial to others." Am. Compl. ("FAC"), ECF No. 17-2, ¶¶ 15, 23.

In January 2017, USPS noticed in the Federal Register a proposed rule that would give "regulatory form" to these content restrictions and remedy any "inconsistency of publicly available provider content guidelines" that "caused confusion over Customized Postage products." 82 Fed. Reg. at 1,294. USPS finalized the rule in December 2017. Final Rule, Revisions to the Requirements for Customized Postage Products, 82 Fed. Reg. 60,117 -01, 60,117–18 (Dec. 19, 2017). The final rule emphasized that although customized postage is a specialized form of evidence of prepayment of postage, there is a possibility that consumers will believe that the images originated with the Postal Service. Accordingly, USPS concluded that it "must limit eligible private content to protect its own business and brand interests against dilution, false attribution, appearances of endorsement, and other potential impacts." Id. at 60,117. The new Regulations thus limit the type of content allowed on customized postage to just two categories: "commercial" and "social" content. 39 C.F.R. § 501.21(b)(1).

384 F.Supp.3d 52

They also require that images be suitable for all ages. Id. § 501.21(b)(2). Finally, the Regulations "exclud[e] entire categories of content," 82 Fed. Reg. at 60,118, including all "political, religious, violent or sexual content"; "[a]ny depiction of controlled substances"; and "[a]ny non-incidental depiction of alcohol, tobacco, gambling, or firearms," 39 C.F.R. § 501.21(b)(2). Thus, under the Regulations, which went into effect in May 2018, the "default presumption" is that images are in eligible for printing. 82 Fed. Reg. at 60,118.

B. Factual and procedural background

In July 2013, an art gallery owned by Charles Krause Reporting, LLC, displayed a drawing by Mr. Zukerman depicting Uncle Sam being strangled by a snake marked "Citizens United." FAC ¶ 17. To promote an exhibition titled "Truth to Power: Anatol Zukerman's ‘Responsible’ Art," planned for February 2016, the gallery suggested that Zukerman create a custom postage design using the drawing. Id. ¶¶ 18–19. In early 2015, Zukerman submitted a proposed design to Zazzle, Inc., an authorized vendor under the customized postage program. Id. ¶¶ 13, 20. Zazzle rejected the design, saying that applicable content guidelines prohibited "printing [ ] any postage with content that is primarily partisan or political in nature." Id. ¶ 23 (quoting Apr. 27, 2015 Email from Zazzle Support to A. Zukerman, Exhibit M to FAC at 91).

Zukerman and the gallery sued. Their First Amended Complaint alleges that USPS, through Zazzle, engaged in content and viewpoint discrimination in violation of the First Amendment because Zazzle printed postage promoting the campaigns of several 2016 presidential candidates while declining to produce Zukerman's proposed Citizens United design. Id. ¶¶ 24, 33, 44. Zazzle's decision to print postage depicting specific candidates appears to violate both the Standardized Image Guidelines, which barred "[p]artisan or political content or images, including ... content or images supporting or opposing election of any candidate(s) to any federal[ ] governmental office," Standardized Image Guidelines at 9, as well as Zazzle's own Appropriate Use Guidelines, which prohibited content that "incorporate[s] a .. politician .. or other famous person's name or likeness," Exhibit J to FAC at 61.

In December 2016, the Court denied USPS's motion to...

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