D.C. appeals court strikes down ban on political images on customized postage stamps

Washington Postal Scene by Bill McAllister

The United States Postal Service may have thought it quashed a 2015 lawsuit over political images on customized postage stamps but a federal appeals court has ruled otherwise.

In a unanimous ruling by a three-judge panel, the U.S. Court of Appeals for the District of Columbia Circuit struck down a USPS rule that banned any political image from appearing on customized postage stamps.

“The rule’s blanket ban on ‘political’ content fails the ‘objective, workable standards’ test’ ” that the Supreme Court articulated in a 2018 ruling, the judges said in their June 9 decision.

The ruling also sent the case back to a lower court that had ruled in 2019 against the 2015 challenge by artist Anatol Zukerman and a Washington, D.C., art gallery that wanted to use a customized stamp to promote his art.

The three judges rejected the Postal Service’s argument that the case was moot.

Zukerman, they ruled, had raised “two challenges to the Postal Service’s current policies covering custom postage and neither claim is moot.”

Postal Service lawyers had argued that the entire lawsuit was moot because the agency had announced a plan in May to end all customized postage. That decision is currently being reviewed by the Postal Regulatory Commission.

At issue in the lawsuit was a customized postage stamp that Zukerman requested Zazzle, a vendor of USPS-approved customized postage, to produce.

The stamp was to feature his drawing “of Uncle Sam being strangled by a snake labeled Citizens United and configured as a dollar sign,” the court said. Citizens United v. FEC was a 2010 Supreme Court ruling that Zukerman was protesting.

The stamp would have carried the wording “Democracy is Not for Sale.”

But Zazzle, which later dropped out of the customized postage business, rejected the design in 2015, saying it violated the Postal Services’ ban on political subjects on the stamps.

The appeals court ruling carried images of other political customized stamps that the USPS had allowed. One was for Sen. Bernie Sanders’ 2016 presidential campaign and another for Republican Jeb Bush’s presidential campaign mailings that year.

Zukerman argued that his claim is still before the courts because the USPS has allowed previously approved political stamps to continue to be used for postage “while having denied [him] the same opportunity,” the court said.

“In sum,” the court ruled, “Zukerman alleges that (1) he suffered unconstitutional viewpoint discrimination beginning in 2015 and (2) he continues to suffer it because the Postal Service still recognizes other previously-issued political designs as valid postage.”

“Yes, we won the appeal, but we don’t know what that victory means in real life,” said Zukerman in an email to Linn’s. “Of course I’m happy with this decision.”

Charles Krause, the art gallery owner who filed the lawsuit with Zukerman, said, “Thank God we still have courts in this country willing to protect the Constitutional rights of artists and other citizens to political free speech when government agents arbitrarily and capriciously deny free speech.”

Postal Service spokesman David Partenheimer had no comment about the ruling.

He repeated the agency’s statement that it had “concluded that the Customized Postage program constitutes an unacceptable risk to our legal, brand and business interests that outweighs any countervailing benefits, given the program’s declining demand, its insignificant contribution to the Postal Service’s revenues, and the availability of alternatives.”

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