Anatol Zukerman v. USPS

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 7, 2020 Decided June 9, 2020

No. 19-5168

ANATOL ZUKERMAN AND CHARLES KRAUSE REPORTING, LLC,
A D.C. LIMITED LIABILITY COMPANY,
APPELLANTS

v.

UNITED STATES POSTAL SERVICE,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-02131)

Daniel S. Guarnera argued the cause for appellants. With
him on the briefs were K. Chris Todd and Geoffrey M.
Klineberg.

Joshua M. Salzman, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief was Daniel
Tenny, Attorney.

Before: GRIFFITH and RAO, Circuit Judges, and EDWARDS,
Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
 2

EDWARDS, Senior Circuit Judge: In 2015, Plaintiff-
Appellants Anatol Zukerman and Charles Krause Reporting,
LLC (together “Zukerman”), filed a complaint against the
United States Postal Service (“USPS” or “Postal Service”)
contending that USPS’s custom postage program violated the
prohibition against viewpoint discrimination under the First
Amendment. Zukerman’s First Amended Complaint alleged
that the Postal Service, through its vendor Zazzle, rejected his
custom postage design because it was incompatible with the
program’s ban on “political” designs, even as it accepted other
custom postage designs with obvious political content.

In 2018, as the parties were completing discovery and
nearing summary judgment, the Postal Service adopted a new
policy (the “2018 Rule”) covering custom postage. The 2018
Rule deems custom postage designs acceptable only if they are
“commercial” or “social” and exclude any content that is
“political.” In response to USPS’s adoption of this new policy,
Zukerman filed an unopposed Supplemental Complaint
“incorporat[ing] by reference every allegation” from his First
Amended Complaint and further alleging that the 2018 Rule is
unconstitutional on its face. The District Court granted the
Government’s motion to dismiss Zukerman’s viewpoint
discrimination claim as moot and his challenge to the 2018
Rule for failure to state a claim. On appeal, the Government
challenges our jurisdiction to address Zukerman’s claims on
the ground that they are moot. We disagree. Zukerman’s
Supplemental Complaint raises two challenges to the Postal
Service’s current policies covering custom postage and neither
claim is moot.

First, Zukerman’s Supplemental Complaint incorporates
the allegation that he suffers “ongoing” viewpoint
discrimination. The complaint alleges that, under the pre-2018
 3
regime, the Postal Service discriminated in selecting certain
political designs in the custom postage program. It alleges
further that, under the 2018 Rule, the Postal Service now
recognizes these already-printed designs as valid custom
postage, even as Zukerman’s political design is barred from the
forum. This aspect of Zukerman’s claim is not moot. The
challenged conduct continues, its effects persist, relief is
possible, and, therefore, the court has jurisdiction.

Second, in a recently filed letter to this court, the Postal
Service asserted that it “has determined that the Customized
Postage program should be terminated and has taken steps to
effectuate that decision.” USPS 28(j) Letter (May 4, 2020). The
Postal Service claims that this development “bears directly on
the continuing justiciability of” Zukerman’s challenge to the
2018 Rule. Id. This remains to be seen. At this point, however,
the Postal Service has not met its “heavy burden” of making it
“absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur.” Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000).
Any claim by the Postal Service that the termination of the
custom postage program has “completely and irrevocably
eradicated the effects” of the 2018 Rule can be addressed by
the District Court on remand. County of Los Angeles v. Davis,
440 U.S. 625, 631 (1979).

Because the District Court dismissed Zukerman’s
viewpoint discrimination claim as moot, it never reached the
merits. We therefore remand this claim to be addressed by the
District Court in the first instance. However, we reverse the
District Court’s dismissal of Zukerman’s facial challenge to the
2018 Rule. The rule’s blanket ban on “political” content fails
the “objective, workable standards” test articulated by the
Supreme Court in Minnesota Voters Alliance v. Mansky, 138
 4
S. Ct. 1876, 1891 (2018). Therefore, we hold that the contested
rule is unconstitutional.

I. BACKGROUND

Because the District Court granted the Postal Service’s
motion to dismiss under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6), “we construe the complaint ‘liberally,’
granting [Zukerman] ‘the benefit of all inferences that can be
derived from the facts alleged.’” Barr v. Clinton, 370 F.3d
1196, 1199 (D.C. Cir. 2004) (quoting Kowal v. MCI Commc’ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). The facts
recounted here are drawn from Zukerman’s Supplemental
Complaint, which “incorporate[s] by reference every allegation
in [his] First Amended Complaint.” Suppl. Compl. ¶ 1, Joint
Appendix (“J.A.”) 172.

A. The Postal Service’s Custom Postage Program

Since about 2005, the Postal Service has offered its
customers the opportunity to create customized postage. See
Customized Postage, 70 Fed. Reg. 21,821 (Apr. 27, 2005)
(continuing a trial program). The basic idea of custom postage
is simple and (by now) familiar: You can navigate to a website
of an authorized third-party vendor, upload a custom design
including text or images, pay a fee, print your custom stamps –
which are, strictly speaking, customized evidence of pre-
payment, not stamps – and use them to send first class mail and
other USPS products. For example, a couple might create a
custom design based on their engagement photo and use the
postage to send save-the-date cards.

From the outset, the Postal Service sought to use the custom
postage program to generate revenue without entangling itself
in controversy or exposing itself to legal liability. See, e.g., Br.
 5
for Appellee at 4-6 (summarizing this history). To that end, the
Postal Service has adopted policies to regulate the content that
customers may include on their custom postage designs. In this
case, Zukerman attempted to create custom postage based on
his political artwork twice – first in 2015 under a now-
superseded policy, and again in 2018 under still-current
regulations.

1. The Postal Service’s 2015 Policy

In 2015, the Postal Service established content
requirements for custom postage by writing them into contracts
with vendors. At the time, Zazzle was an authorized third-party
vendor. According to a contract between Zazzle and the Postal
Service, Zazzle agreed “to establish and maintain an image
control process which will ensure that all images appearing in
Customized Postage Products . . . conform in every respect to
the Statement of Purpose and Standardized Image Guidelines”
attached to the contract. J.A. 125.

The Postal Service intended these Standardized Image
Guidelines to “maintain neutrality on religious, social,
political, legal, moral, [and] other public issues” and prevent
the custom postage program from becoming a “public forum.”
J.A. 130. To that end, the Standardized Image Guidelines
required Zazzle to reject any content, “regardless of the
viewpoint expressed,” that was “[p]artisan or political,”
including “content or images supporting or opposing election
of any candidate(s) to any federal . . . governmental office.”
J.A. 130-31.

Zazzle also developed its own content guidelines. See First
Am. Compl. ¶¶ 14-16, J.A. 18-19. As a general matter, Zazzle
prohibited “names of politicians[,] . . . political statements,”
and any other content that “may be considered offensive or be
 6
controversial to others.” Id. Ex. I, J.A. 67. For custom stamps
in particular, Zazzle prohibited “any content . . . that in [its]
sole judgment and discretion [it] believe[d] would be
controversial or offensive,” including any designs that
“[i]ncorporate a . . . current or former . . . politician” or
“[a]dvocate or protest any social, political, legal, moral or
religious agenda.” Id. Ex. J, J.A. 73-74.

2. The Postal Service’s 2018 Rule

In December 2017, the Postal Service finalized new
regulations to “standardize and formalize [the] requirements”
of the custom postage program, and these requirements took
effect on May 15, 2018. See Customized Postage Products, 82
Fed. Reg. 60,117, 60,118 (Dec. 19, 2017) (codified at 39 C.F.R.
§ 501), J.A. 179, 180 (“2018 Rule”). The Postal Service
explained that, under the old policy, “the inconsistency of
publicly available provider content guidelines . . . caused
confusion over Customized Postage products.” J.A. 180. To
address that problem, the 2018 Rule prohibits authorized
vendors from using any other eligibility criteria and requires
them to make the Postal Service’s criteria available to their
customers. See 39 C.F.R. § 501.21(c)(1), (2)(i).

The 2018 Rule specifies that “[a]ny content not identified
by the Eligibility Criteria is prohibited,” id. § 501.21(b), and
then sets forth the following requirements:

(1) Images or text must be “commercial” or “social,”
as defined below:

(i) Commercial means intended for no purpose
other than the sale of goods or services in
commerce.
 7
(ii) Social means promoting or depicting people,
animals, items, or events commonly associated
with community relations or companionship and
likely to generate invitations, announcements,
notices, thank-you notes, RSVPs, or similar
correspondence.

(2) Acceptable commercial or social images or text
must not contain content that is unsuitable for all-ages
audiences, including but not limited to:

....

(iii) Any depiction of political, religious, violent
or sexual content . . . .

39 C.F.R. § 501.21(b)(1)(i)-(ii), (b)(2)(iii).

In sum, the 2018 Rule says that “if proposed content is not
a commercial or social image that is suitable for all-ages
audiences, it is not eligible.” J.A. 180. And if a proposed design
contains “[a]ny depiction of political . . . content,” it is “not
suitable for all-ages audiences” and is, therefore, ineligible. If
a vendor cannot determine whether a proposed design is
eligible, it may seek clarification from the Postal Service. See
39 C.F.R. § 501.21(c)(2)(ii). In all events, however the Postal
Service “reserves the right to determine independently”
whether a proposed design is acceptable under the 2018 Rule.
Id. § 501.21(b)(4).
 8
B. Factual and Procedural Background

1. Zukerman’s First Amended Complaint

As mentioned above, Plaintiff-Appellants are Anatol
Zukerman, an artist, and Charles Krause Reporting, LLC, a
company that operates an art gallery that works with
Zukerman. First Am. Compl. ¶¶ 5-6, J.A. 16. In July 2013, the
gallery held an exhibition of Zukerman’s work that included
his drawing of “Uncle Sam being strangled by a snake labeled
Citizens United and configured as a dollar sign.” Id. ¶ 17, J.A.
19. After the exhibition, Zukerman decided to create custom
postage based on this Citizens United drawing to “encourage
the sale of the art and to raise awareness about what [he]
perceived as the harm caused by the [Supreme Court’s]
decision.” Id. ¶ 18, J.A. 20.

On April 27, 2015, Zukerman ordered 40 custom stamps
from Zazzle, an authorized vendor. Id. ¶ 20, J.A. 20.
Zukerman’s design reproduced his Citizens United drawing
and included a caption stating that “Democracy Is Not for
Sale.” Here is an image of the custom postage Zukerman
ordered:

First Am. Compl. ¶ 20, J.A. 20.
 9
Later that day, Zazzle emailed Zukerman to say that it had
canceled his order because his design was “in conflict with
[applicable] content guidelines.” Id. ¶ 22, J.A. 21. In a follow-
up email, Zazzle explained that Zukerman’s design was
“politically oriented,” and, therefore, at odds with the
“Appropriate Use Guidelines” that “prohibit[] the printing of
any postage with content that is primarily partisan or political
in nature.” Id. ¶ 23, J.A. 21.

“Zukerman then searched Zazzle’s online marketplace—
which made other users’ customized postage designs available
for purchase—and identified multiple designs with political
themes.” Br. for Appellants at 5. For example, Zukerman found
custom postage expressing support for 2016 presidential
candidates including Ted Cruz, Bernie Sanders, Jeb Bush,
Hillary Clinton, and Donald Trump. First Am. Compl. ¶¶ 24-
25, J.A. 21-22. Here are just two of the custom political designs
that Zazzle allegedly “printed and offered for sale”:

Id. ¶ 24, J.A. 22.

On December 9, 2015, Zukerman and Charles Krause
Reporting, LLC, filed a lawsuit against the United States Postal
Service. Zukerman’s First Amended Complaint – filed with
leave of the court in June 2016 – outlines the events described
above and alleges that the Postal Service violated the
Constitution by permitting Zazzle to engage in both content
and viewpoint discrimination. Id. ¶ 2, J.A. 15. Most relevant
 10
here, Zukerman contends that “[i]n light of the decisions Zazzle
made to print and promote the sale to the public of partisan and
political stamps of others, including stamps advocating the
election of Cruz, Bush, Trump, and Clinton, USPS’s actions
have also permitted Zazzle to engage in unlawful viewpoint
discrimination.” Id. ¶ 44, J.A. 28.

Zukerman’s First Amended Complaint repeatedly
describes the Postal Service’s viewpoint discrimination as
“ongoing” or “contin[uing].” See, e.g., id. ¶ 2, J.A. 15 (“By
permitting Zazzle to engage in . . . viewpoint discrimination,
USPS has violated the Constitution . . . . [Zukerman] ha[s]
been injured by these unconstitutional actions, and will
continue to be injured in the future unless this Court requires
USPS to stop violating the Constitution . . . .”); id. ¶ 27, J.A.
23 (“[Zukerman] face[s] an ongoing injury because of USPS’s
policy and practice of . . . viewpoint discrimination.”); see also
id. ¶ 44, J.A. 29 (alleging that his injuries “will continue
indefinitely” unless the court intervenes).

In his prayer for relief, Zukerman sought, among other
things, an injunction prohibiting “USPS from continuing to
engage in the aforesaid unlawful . . . viewpoint discriminatory
conduct, practice, and policy.” J.A. 30. Zukerman also sought
relief from specific aspects of the policy in place in 2015. See
id.

After the District Court denied the Postal Service’s initial
motion to dismiss for lack of jurisdiction (on grounds not at
issue here), the case proceeded to discovery. On May 15, 2018,
as the case neared summary judgment, the Postal Service’s
2018 Rule took effect and Zazzle lost its authorization to sell
custom postage products. See Suppl. Compl. ¶¶ 2, 4, J.A. 172,
174.
 11
2. Zukerman’s Supplemental Complaint

On July 13, 2018, Zukerman filed a motion for leave to
supplement his pleadings under Federal Rule of Civil
Procedure 15(d). See Pls.’ Mot., ECF No. 48. The Postal
Service did not oppose Zukerman’s motion “on the
understanding that [Zukerman] proffer[s] ‘a solely facial
challenge’ to ‘the new regulations’ restrictions on political
speech,’ and [Zukerman] ‘agree[s] that no further discovery is
necessary in light of [his] facial challenge.’” Def.’s Non-Opp’n
to Pls.’ Mot., ECF No. 50, at 2 (quoting Pls.’ Mot., ECF No.
48, at 1, 2). On July 18, 2018, the District Court granted
Zukerman’s unopposed motion. The court also granted the
parties’ joint motion to stay proceedings on Zukerman’s then-
pending motion for summary judgment and the Postal
Service’s anticipated opposition and cross-motion.

Zukerman’s Supplemental Complaint first “incorporate[s]
by reference every allegation in [his] First Amended
Complaint.” Suppl. Compl. ¶ 1, J.A. 172. Zukerman then
alleges that, in late June and early July of 2018, he submitted
two custom postage designs to Stamps.com, an authorized
vendor under the 2018 Rule. See id. ¶¶ 5-9, J.A. 174-75.
Zukerman’s designs were “substantively identical to the design
[he] submitted to Zazzle . . . , except that in addition to the
words ‘Democracy is Not for Sale,’ [one] design included the
text ‘But This Artwork Is!’” and the name of the gallery. Id.
¶ 6, J.A. 174. Stamps.com rejected both because they did not
meet the company’s “content guidelines.” Id. ¶¶ 7, 9, J.A. 175.
Zukerman alleges that, because the 2018 Rule establishes
impermissible content requirements for all custom postage
vendors, it violated his First Amendment rights by “causing
Stamps.com to reject [his] designs.” Id. ¶ 10-11, J.A. 176.
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3. The District Court’s Decision

On April 26, 2019, the District Court granted the Postal
Service’s motion to dismiss the case pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). See Zukerman v.
USPS, 384 F. Supp. 3d 44 (D.D.C. 2019).

First, the District Court held that Zukerman’s viewpoint
discrimination claim was moot because “USPS has rescinded
and replaced the [2015 policy] with the [2018 Rule], so any
challenge to the constitutionality of the [2015 policy] is now
moot.” Id. at 54. The court rejected Zukerman’s argument that
the claim falls in the voluntary cessation exception to mootness
because his injury is ongoing and has not, therefore, been
completely and irrevocably eradicated by intervening events.
See id. at 57-58. The court reasoned that the “vestiges of the
previous enforcement regime do[] not mean that USPS has
failed to close the previous forum or, relatedly, that
[Zukerman’s] injury is ongoing.” Id. at 58. Finally, the court
held that it would not decide Zukerman’s challenge to the 2015
policy for “practical considerations,” even if his claim were not
moot. Id. at 58-59.

Second, the District Court held that the 2018 Rule was
constitutional on its face. The court found that the custom
postage program created a nonpublic forum. Id. at 60-63. It
then held that the challenged ban on “political” content was
reasonable and (thus) constitutional. See id. at 63-67. The court
reasoned that, unlike the ban on “political” apparel at polling
places struck down in Minnesota Voters Alliance v. Mansky,
138 S. Ct. 1876 (2018), the Postal Service’s 2018 Rule
provides “objective, workable standards.” See Zukerman, 384
F. Supp. 3d at 63-65. In the court’s view, the 2018 Rule
provides “sufficiently clear guidance on what can come in and
what must stay out,” Zukerman, 384 F. Supp. 3d at 67, because
 13
the ban on “political” content is “anchored by both the
definitions [of ‘commercial’ and ‘social’] and the list of
exclusions,” id. at 64.

In sum, the District Court dismissed the viewpoint
discrimination claims “originally set forth in [Zukerman’s]
First Amended Complaint as moot” and dismissed the facial
First Amendment challenge to the 2018 Rule “set forth in
[Zukerman’s] Supplemental Complaint for failure to state a
claim.” Id. at 67. The court also denied as moot Zukerman’s
motion for summary judgment. Id. Zukerman filed a timely
notice of appeal.

4. Post-Argument Developments

On February 5, 2020, two days before oral argument, the
Postal Service filed a letter explaining that it was “currently re-
evaluating its Customized Postage Program” and would notify
the court of any developments. USPS 28(j) Letter (Feb. 5,
2020). On May 4, 2020, the Postal Service filed a second letter
stating that “the Postal Service has determined that the
Customized Postage program should be terminated and has
taken steps to effectuate that decision.” USPS 28(j) Letter (May
4, 2020). This letter indicates that “the Postal Service has
terminated the authorization of the last remaining vendor
participating in the program (i.e., Stamps.com), effective June
16, 2020.” Id. The Postal Service has also submitted a request,
pursuant to 39 U.S.C. § 3642 and 39 C.F.R. §§ 3040.130-.135,
seeking to have the Postal Regulatory Commission remove
customized postage from the “Mail Classification Schedule.”
USPS 28(j) Letter (May 4, 2020). As of the date of this opinion,
the Commission has not taken any definitive action on the
Postal Service’s request.
 14
II. ANALYSIS

A. Standard of Review

We review de novo the District Court’s dismissal of both
Zukerman’s viewpoint discrimination claim for lack of
jurisdiction and his challenge to the 2018 Rule for failure to
state a claim. See True the Vote, Inc. v. IRS, 831 F.3d 551, 555
(D.C. Cir. 2016) (explaining that review of 12(b)(6) dismissals
is de novo and that review of 12(b)(1) dismissals is de novo
when, as here, the District Court relies “on the complaint
standing alone” (quoting Herbert v. Nat’l Acad. of Scis., 974
F.2d 192, 197 (D.C. Cir. 1992))).

As noted above, in reviewing dismissals under Rules
12(b)(1) and 12(b)(6), we assume the truth of Zukerman’s
allegations and “construe the [Supplemental Complaint and the
First Amended Complaint it incorporates] ‘liberally,’ granting
[Zukerman] ‘the benefit of all inferences that can be derived
from the facts alleged.’” Barr v. Clinton, 370 F.3d 1196, 1199
(D.C. Cir. 2004) (quoting Kowal v. MCI Commc’ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994)).

To prevail on its Rule 12(b)(1) motion to dismiss for lack
of jurisdiction, the Government, as the party urging mootness,
bears the “heavy burden” of establishing that the case is moot.
Honeywell Int’l, Inc. v. Nuclear Regulatory Comm’n, 628 F.3d
568, 576 (D.C. Cir. 2010). In contrast, to survive the
Government’s Rule 12(b)(6) motion to dismiss for failure to
state a claim, Zukerman must show that his complaint
“contain[s] sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
 15
B. Mootness

The Postal Service argues that the court lacks jurisdiction
to consider Zukerman’s viewpoint discrimination claim
because the matter is moot. The Government also suggests that
recent developments have cast doubt on our jurisdiction to
decide Zukerman’s challenge to the 2018 Rule. We disagree on
both counts.

“Article III of the Constitution limits our jurisdiction to
‘actual, ongoing controversies.’” Foretich v. United States, 351
F.3d 1198, 1210 (D.C. Cir. 2003) (quoting Honig v. Doe, 484
U.S. 305, 317 (1988)). This “case-or-controversy requirement
subsists through all stages of federal judicial proceedings, trial
and appellate.” Chafin v. Chafin, 568 U.S. 165, 172 (2013)
(quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990))
(internal quotation marks omitted).

“A lawsuit becomes moot—and is therefore no longer a
‘Case’ or ‘Controversy’—‘when the issues presented are no
longer “live” or the parties lack a legally cognizable interest in
the outcome.’” Almaqrami v. Pompeo, 933 F.3d 774, 779 (D.C.
Cir. 2019) (quoting Chafin, 568 U.S. at 172). This happens
“only when it is impossible for a court to grant ‘any effectual
relief whatever’ to the prevailing party.” Knox v. Serv. Emps.
Int’l Union, 567 U.S. 298, 307 (2012) (quoting City of Erie v.
Pap’s A.M., 529 U.S. 277, 287 (2000)). “As long as the parties
have a concrete interest, however small, in the outcome of the
litigation, the case is not moot.” Chafin, 568 U.S. at 172
(quoting Knox, 567 U.S. at 307-08) (internal quotation marks
omitted).

In this case, it is the Postal Service’s own actions that have
arguably rendered Zukerman’s viewpoint discrimination claim
moot. “[A]s a general rule, ‘voluntary cessation of allegedly
 16
illegal conduct does not deprive the tribunal of power to hear
and determine the case, i.e., does not make the case moot.’”
County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)
(quoting United States v. W.T. Grant Co., 345 U.S. 629, 632
(1953)). If the rule were otherwise, “[a] defendant [would be]
free to return to his old ways,” and that, “together with a public
interest in having the legality of the [disputed] practices settled,
militates against a mootness conclusion.” W.T. Grant Co., 345
U.S. at 632.

The Supreme Court has made it clear that a court may not
conclude that a defendant’s voluntary cessation of disputed
conduct renders a case moot unless “the party urging mootness
demonstrates that (1) ‘there is no reasonable expectation that
the alleged violation will recur,’ and (2) ‘interim relief or
events have completely or irrevocably eradicated the effects of
the alleged violation.’” Nat’l Black Police Ass’n v. District of
Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997) (quoting Davis,
440 U.S. at 631); see also Initiative & Referendum Inst. v.
USPS, 685 F.3d 1066, 1074 (D.C. Cir. 2012) (same). As noted
above, the party urging mootness bears a heavy burden. The
Government has not met its burden in this case.

1. Zukerman’s Viewpoint Discrimination Claim Is Not
Moot Because His Relevant Injury Is Ongoing

In any mootness inquiry, we must first “defin[e] the wrong
that the defendant is alleged to have inflicted.” Clarke v. United
States, 915 F.2d 699, 703 (D.C. Cir. 1990) (en banc).
Zukerman contends that he suffers from “ongoing” viewpoint
discrimination, an injury that “is the same today as it was in
2015: other speakers are still allowed to express their political
beliefs on [previously printed] customized postage, while
[Zukerman] still cannot convey [his] own political message in
 17
the same forum.” Reply Br. for Appellants at 15-16. The
Government does not directly contest this.

Zukerman also alleges that that his injury was initially
inflicted in 2015 under a now-superseded policy administered
by a since-deauthorized vendor. It is clear, therefore, that the
Postal Service’s voluntary actions have brought an end to some
aspects of Zukerman’s claimed injury and have, for that reason,
rendered some of Zukerman’s requested relief moot. Indeed,
Zukerman concedes as much. He agrees, for instance, that a
court can no longer provide him effectual relief by prohibiting
the Postal Service from enforcing a policy that is no longer on
the books. See Br. for Appellants at 39; see also Initiative &
Referendum Inst., 685 F.3d at 1074 (explaining that it is
generally not appropriate to provide injunctive or declaratory
relief from a superseded law).

Nevertheless, it is well understood that “the fact that one
aspect of a lawsuit becomes moot does not automatically
deprive a court of jurisdiction over remaining, live aspects of
the case.” Foretich, 351 F.3d at 1210; see also Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
196 (2000) (Stevens, J., concurring). As explained above,
Zukerman contends that “USPS has continued to cause [his]
viewpoint-discrimination injury by permitting political
messages to circulate on previously printed customized
postage, while having denied [him] the same opportunity.” Br.
for Appellants at 41. Zukerman maintains that this aspect of his
injury persists and can be relieved by an appropriate court
order. See id. at 39. We agree.

Zukerman’s Supplemental Complaint clearly alleges that
the Postal Service’s viewpoint discrimination remains
“ongoing,” even though the 2018 Rule has replaced the 2015
policy. The reason, put simply, is that Zukerman’s unopposed
 18
supplemental pleadings, filed after the 2018 Rule was already
in operation, “incorporate” his earlier allegations that he suffers
viewpoint discrimination that is “ongoing” and “will continue
indefinitely.” See Suppl. Compl. ¶ 1, J.A. 172 (incorporating,
inter alia, First Am. Compl. ¶¶ 27, 44, J.A. 23, 29). Therefore,
Zukerman’s supplemental pleadings indisputably carry
forward, from 2015 to 2018, the allegation that the Postal
Service allowed Zazzle to print political designs and continues
even under the 2018 Rule to recognize these designs as valid
custom postage, all the while rejecting Zukerman’s design for
having that same feature. In sum, 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, a practice that has outlived the 2015
policy.

In this case, correctly “defining the wrong” Zukerman
alleges is the dispositive step. Clarke, 915 F.2d at 703 (en
banc). Because the Postal Service’s voluntary conduct is the
only intervening event that even arguably renders the case
moot, we apply the two-part voluntary cessation test. See, e.g.,
Davis, 440 U.S. at 631. As the record makes clear, Zukerman’s
claim of ongoing viewpoint discrimination is emphatically not
moot due to USPS’s voluntary cessation. This is so because the
Postal Service has not carried its heavy burden of
demonstrating that its voluntary actions have completely
eradicated the effects of its alleged violations.

It is clear from Zukerman’s allegations, which we accept
as true and construe in his favor, that the effects of the alleged
violation persist. For one thing, Zukerman still does not have
his stamps. For another, there is no indication that the 2018
Rule invalidated any postage issued under the prior policy. Cf.
Pulphus v. Ayers, 909 F.3d 1148, 1152 (D.C. Cir. 2018)
 19
(holding that a claim for injunctive relief was moot when a
2016 art competition was over, the other 2016 winners were no
longer displayed anywhere that the defendant controlled, and
the 2017 winners had been put up instead). Nor is there any
suggestion that the Postal Service has recalled or withdrawn
recognition from stamps issued in violation of the then- or now-
applicable guidelines. As a result, this case fits comfortably
within our precedents finding that a defendant’s voluntary
actions do not moot a case where “some tangible, concrete
effect, traceable to the injury, and curable by the relief
demanded, clearly remain[s].” Penthouse Int’l, Ltd. v. Meese,
939 F.2d 1011, 1019 (D.C. Cir. 1991).

In other words, Zukerman’s viewpoint discrimination
claim is not moot – through voluntary cessation or otherwise –
because it is clearly not impossible for the court to provide “any
effectual relief whatever.” Knox, 567 U.S. at 307 (internal
quotation marks and citation omitted). A court could in
principle “grant [Zukerman] . . . concrete, tangible relief,” Br.
for Appellants at 39, like an order to print his Citizens United
design, see id. at 37-38 (drawing on Sefick v. Gardner, 164 F.3d
370, 371-72 (7th Cir. 1998)), or an order to make reasonable
efforts to decertify political designs issued under the old policy
rather than treat them as valid custom postage, see id. at 41-42.
In its brief, the Postal Service raises doubts about whether the
relief Zukerman seeks is workable. See Br. for Appellee at 35-
37. But ultimately “that is a matter relating to the exercise
rather than the existence of judicial power,” City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982), and should
be taken up after Zukerman proves that he is entitled to relief
on remand.

The Government’s remaining arguments are similarly
unpersuasive. The Postal Service argues that Zukerman’s claim
is moot because he has received all the relief he specifically
 20
identified in his pleadings. Br. for Appellee at 27-29. Even
assuming that is the proper standard by which to judge
mootness, however, we find that Zukerman’s original request
for an injunction prohibiting “USPS from continuing to engage
in . . . viewpoint discriminatory conduct, practice, and policy”
suffices to refute the Government’s claim. J.A. 30.

In addition, the Government expresses doubt that “there is
any meaningful ongoing use” of “previously authorized
political postage.” Br. for Appellee at 30. The Government also
raises inchoate doubts about whether Zazzle’s alleged conduct
constitutes viewpoint discrimination. Id. at 31. These
arguments are premature, given the posture of this case.
Because the District Court has not made any factual findings,
we accept Zukerman’s allegations as true and draw all
reasonable inferences in his favor. The Government will have
the opportunity to litigate these matters on remand, as it sees
fit.

Finally, we reject the Government’s contention that our
conclusion might “disable the Postal Service from neutrally
enforcing its content restriction in the present” or “sharply
curtail[]” its ability to close or transform a forum. Br. for
Appellee at 32-33. The first thing to be said about this is that
viewpoint discrimination is prohibited in all forums, see
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,
828-30 (1995), so the justiciability of Zukerman’s viewpoint
discrimination claim does not depend on any specific
assumption about the nature of the custom postage forum.
Beyond that, the Government’s arguments largely depend on
the mistaken premise that the Postal Service’s disputed conduct
has ceased. The Government has not shown this.

Zukerman alleges that the Postal Service continues to give
authoritative recognition to some political speech submitted
 21
under the prior policy, even as Zukerman’s speech submitted
under both the old and new policies is barred. In this situation,
where the Government gives authoritative permission to
certain individuals to speak in a forum and that permission
survives a change in forward-looking policy, we have no
difficulty in concluding that a challenge to the nature of the
Government’s ongoing authorization remains justiciable. This
conclusion will not prevent or hinder the Government from
changing course in more routine scenarios where once-
authorized speeches have already been given, or once-
authorized posters have been taken down, or the like.

In sum, Zukerman’s challenge to the Postal Service’s
viewpoint discrimination is not moot because Zukerman’s
Supplemental Complaint alleges that USPS has not eradicated
the effects of its past viewpoint discrimination and, by the same
token, that its viewpoint discrimination continues still. At this
juncture, we cannot say the past is dead; we cannot even say it
is past.

2. The District Court’s Reliance on “Practical
Considerations” Was Error

In declining to address Zukerman’s viewpoint
discrimination claim, the District Court said:

Even if [Zukerman’s] original claims were
justiciable, practical considerations would lead the
Court to assess the constitutionality of the current
Regulations only. The D.C. Circuit has counseled that
“precedent and practicality direct us to deal with the
world as it is now, not as it was when the case was
filed.”
 22
Zukerman, 384 F. Supp. 3d at 58 (quoting Am. Freedom Def.
Initiative v. Wash. Metro. Area Transit Auth., 901 F.3d 356,
363 (D.C. Cir. 2018)). This was error. As we explained above,
“the world as it is now” in this case includes Zukerman’s claim
that the Postal Service’s alleged viewpoint discrimination is
“ongoing.” It did not end with the adoption of the 2018 Rule.
Therefore, the claim is not moot.

Furthermore, the Supreme Court has made it very clear
that “a federal court’s obligation to hear and decide cases
within its jurisdiction is virtually unflagging.” Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 167 (2014) (quoting
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572
U.S. 118, 126 (2014)) (internal quotation marks omitted); see
also Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013).
It is hardly surprising, then, that for almost two hundred years,
we have followed the principle that federal courts “have no
more right to decline the exercise of jurisdiction which is given,
than to usurp that which is not given.” Cohens v. Virginia, 19
U.S. (6 Wheat.) 264, 404 (1821). The District Court therefore
erred in looking to “practical considerations,” Zukerman, 384
F. Supp. 3d at 58, in declining to address Zukerman’s
viewpoint discrimination claim.

3. Zukerman’s Challenge to the 2018 Rule Is Not Moot
Because USPS’s Post-Argument Actions Do Not Make
It “Absolutely Clear” That the Alleged Wrong Will Not
Recur

As explained above, the Postal Service recently
“determined that the Customized Postage program should be
terminated and has taken steps to effectuate that decision.”
USPS 28(j) Letter (May 4, 2020). So far, the Postal Service has
terminated the last authorized vendor effective June 16, 2020,
and filed a request with the Postal Regulatory Commission to
 23
have the custom postage program removed from the “Mail
Classification System.” It is not clear from the Postal Service’s
letter what follows if this pending request is granted. But the
Postal Service says that “this development bears directly on the
continuing justiciability of this appeal” and suggests that “[t]his
Court should not pass on the constitutionality of regulations
that are not the source of any continuing injury to [Zukerman].”
Id.

On the record before us, we cannot conclude that the Postal
Service’s post-argument actions have mooted Zukerman’s
challenge to the 2018 Rule or otherwise deprived us of
jurisdiction. Most important, the challenged 2018 Rule remains
in effect. See Glob. Tel*Link v. FCC, 866 F.3d 397, 407 (D.C.
Cir. 2017) (concluding that there was “absolutely no basis” for
concluding that the FCC’s voluntary actions mooted the case
where the challenged Order was “still in force”). Therefore, the
Postal Service’s announced plans provide only “weak
assurance” in a context in which the Postal Service bears a
“heavy burden.” Payne Enters., Inc. v. United States, 837 F.2d
486, 492 (D.C. Cir. 1988). In short, the Postal Service has not
made it “absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.” Friends of the
Earth, 528 U.S. at 189 (quoting United States v. Concentrated
Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)).

In these circumstances, the appropriate course is to leave
the question open for consideration on remand. See Friends of
the Earth, 528 U.S. at 193-94 (declining to address a party’s
argument that the case had been mooted by events following
the Fourth Circuit’s decision because the question turned on
“disputed factual matter[s]” that had “not [yet] been aired in
the lower courts”). It is also “open to [the Postal Service] to
show, on remand, that the likelihood of further violations is
sufficiently remote to make injunctive relief unnecessary. This
 24
is a matter for the trial judge.” Aladdin’s Castle, Inc., 455 U.S.
at 289 n.10 (quoting Concentrated Phosphate Export Ass’n,
393 U.S. at 203-04).

C. The Merits of Zukerman’s Viewpoint
Discrimination Claim

We will remand Zukerman’s viewpoint discrimination
claim without lingering long over the merits. In view of the
record before us, Zukerman’s viewpoint discrimination claim
appears to have merit. After all, Zukerman effectively alleges
that “he was [(and is)] prevented from speaking [through the
custom postage program] while someone espousing another
viewpoint was [(and still is)] permitted to do so.” McCullen v.
Coakley, 573 U.S. 464, 485 n.4 (2014). At first blush, then,
these allegations pass the “most basic . . . test for viewpoint
discrimination,” which is “whether—within the relevant
subject category—the government has singled out a subset of
messages for disfavor based on the views expressed.” Matal v.
Tam, 137 S. Ct. 1744, 1766 (2017) (Kennedy, J., concurring in
part and concurring in the judgment).

That said, we cannot responsibly decide the merits of
Zukerman’s viewpoint discrimination claims on the record
before us. The Postal Service has not yet had an adequate
opportunity to articulate or defend its position on the merits: it
did not file or litigate a 12(b)(6) motion; the District Court
granted the parties’ joint motion to stay summary judgment
proceedings before the Postal Service could file its opposition
or cross-motion; and the parties did not fully brief the merits
before this court. Therefore, we will adhere to “our general
practice,” Mendoza v. Perez, 754 F.3d 1002, 1020 (D.C. Cir.
2014), and remand the case. On remand, the District Court can
further develop the record as necessary and then decide the
merits of Zukerman’s claims in the first instance.
 25
D. The Merits of Zukerman’s Challenge to the 2018
Rule

Finally, we turn to the merits of Zukerman’s claim that
USPS’s 2018 Rule violates the First Amendment. We hold that
the Postal Service’s regulation banning custom postage designs
containing “[a]ny depiction of political . . . content” cannot
pass constitutional muster because it does not provide
“objective, workable standards” to guide the exercise of the
Government’s discretion. The 2018 Rule is thus
unconstitutional pursuant to the standards articulated by the
Supreme Court in Minnesota Voters Alliance v. Mansky, 138
S. Ct. 1876 (2018).

“Our analysis of a restriction on speech on government
property begins with the forum doctrine.” Am. Freedom Def.
Initiative v. Wash. Metro. Area Transit Auth. (AFDI), 901 F.3d
356, 364 (D.C. Cir. 2018). “This approach divides government
property into three categories, and the category determines
what types of restrictions will be permissible.” Initiative &
Referendum Inst., 685 F.3d at 1070. In this appeal, the parties
do not challenge the District Court’s holding that the Postal
Service’s custom postage program constitutes a “nonpublic
forum,” Br. for Appellee at 15-16 – that is, a “public property
which is not by tradition or designation a public forum” for
expressive activity, Archdiocese of Wash. v. Wash. Metro. Area
Transit Auth., 897 F.3d 314, 322 (D.C. Cir. 2018).

Because “the government, ‘no less than a private owner of
property,’ retains the ‘power to preserve the property under its
control for the use to which it is lawfully dedicated,’” Mansky,
138 S. Ct. at 1885 (quoting Adderley v. Florida, 385 U.S. 39,
47 (1966)), restrictions on speech in a nonpublic forum are
subject to a “distinct,” id., and more “forgiving” standard of
review, id. at 1888. “The government may reserve such a forum
 26
‘for its intended purposes, communicative or otherwise, as long
as the regulation on speech is reasonable and not an effort to
suppress expression merely because public officials oppose the
speaker’s view.’” Id. at 1885 (quoting Perry Educ. Ass’n v.
Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)).

In Mansky, the Supreme Court provided additional
guidance on the test for “reasonableness” in this context. The
Court explained that a rule limiting speech in a nonpublic
forum is reasonable only if it is “capable of reasoned
application.” 138 S. Ct. at 1892. In other words, the
government “must be able to articulate some sensible basis for
distinguishing what may come in from what must stay out”
under the rule. Id. at 1888. The government cannot meet that
requirement, the Court explained, unless the rule in question
provides “objective, workable standards” to guide a
government official’s exercise of discretion. Id. at 1891.

If a regulation on speech does not provide government
decision-makers with objective, workable standards, the risk of
“unfair or inconsistent enforcement,” id., and even “abuse” is
“self-evident,” id. (quoting Bd. of Airport Comm’rs v. Jews for
Jesus, Inc., 482 U.S. 569, 576 (1987)). In addition, the Court
observed, the risks of arbitrary or inconsistent enforcement will
tend to undermine the very governmental interests that the
regulation in question was meant to advance. See id.; see also
Initiative & Referendum Inst., 685 F.3d at 1073 (“A regulation
is reasonable if it is consistent with the government’s legitimate
interest in maintaining the property for its dedicated use.”).

The Court in Mansky applied these principles to a
Minnesota law prohibiting individuals from wearing any
“political badge, political button, or other political insignia” at
polling places on Election Day. 138 S. Ct. at 1883 (quoting
MINN. STAT. § 211B.11(1) (Supp. 2017)). The law assigned
 27
certain poll workers the job of deciding what apparel was in
and what was out. The Court found that Minnesota’s “political
apparel ban” sought to achieve a permissible end. See id. at
1886-88. However, the Court explained that a regulation
limiting speech is required to “draw a reasonable line” in
service of permissible ends. Id. at 1888. In the Court’s view,
“the unmoored use of the term ‘political’ in the Minnesota law”
doomed it “to fail even this forgiving test.” Id.

The fundamental problem with the Minnesota law, the
Court found, was that the unqualified term “political” is too
“expansive” to be capable of reasoned application. Id. For
example, the term “can encompass anything ‘of or relating to
government[,]’ . . . or anything ‘[o]f, relating to, or dealing with
the structure or affairs of government, politics, or the state.’”
Id. (second alteration in original) (first quoting WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY 1755 (2002); then
quoting AMERICAN HERITAGE DICTIONARY 1401 (3d ed.
1996)). Because the term “political” admits of such capacious
readings, a blanket prohibition on “political” apparel has an
“indeterminate scope.” Id. at 1889. It provides no objective,
workable standards.

The Court then explained why this indeterminate scope
was a problem. “It is ‘self-evident’ that an indeterminate
prohibition carries with it ‘[t]he opportunity for abuse,’” id. at
1891 (alteration in original) (quoting Jews for Jesus, Inc., 482
U.S. at 576), even where some discretion is necessary and
government officials “strive to enforce the [rule] in an
evenhanded manner,” id. In particular, a blanket ban on
“political” expression does not provide government decision-
makers with the kinds of “objective, workable standards” that
are necessary to ensure that their “own politics [do not] shape
[their] views on what counts as ‘political.’” Id. at 1891.
Without such standards, the risk of “unfair or inconsistent
 28
enforcement” – and the concomitant risk to the state’s interest
“in maintaining a polling place free of distraction and
disruption” – is obvious. Id.

The Court also considered the authoritative
“interpretations [that Minnesota] . . . provided in official
guidance and representations to th[e] Court.” Id. at 1888. The
Court found that these interpretations could not “clarify[] the
indeterminate scope of the political apparel provision” or
otherwise “save[]” the law. Id. at 1889. Indeed, the Court found
that the state’s “haphazard interpretations” introduced their
own line-drawing problems and generally proved incapable of
“reasoned application.” Id. 1888, 1892. The Court’s opinion
recounts the state’s struggles “to articulate some sensible basis
for distinguishing what may come in from what must stay out”
under various, putatively narrowing interpretations, see id. at
1888-91 – struggles that went “beyond close calls on borderline
or fanciful cases,” id. at 1891.

The Court summarized its holding in Mansky by saying
that “the unmoored use of the term ‘political’ in the Minnesota
law, combined with haphazard interpretations the State has
provided in official guidance and representations to this Court,
cause Minnesota’s restriction to fail even th[e] forgiving test”
that governs speech regulations in nonpublic forums. Id. at
1888. The Court’s use of the phrase “combined with” suggests
that the state’s haphazard efforts were essential to the holding,
but that is clearly not so. As explained above, the Court
amplified the problem with the term “political” before saying
that the State’s efforts could not “clarify” or “save” the
“indeterminate scope of the political apparel provision.” Id. at
1889. That is, the “unmoored use of the term ‘political’” was
itself a critical problem.
 29
This court’s decisions applying Mansky confirm this
reading of the case. In AFDI, the court explained that the
problem with Minnesota’s political apparel ban was that it “did
not define the term ‘political,’ which in the Court’s view was
simply too broad.” 901 F.3d at 371 (emphasis added). “The
crux of the Court’s decision,” we said, “was that the State’s
discretion in enforcing the statute had to be ‘guided by
objective, workable standards.’ Because the unqualified ban on
‘political’ apparel did not provide those standards, it was
unreasonable.” Id. at 372 (quoting Mansky, 138 S. Ct. at 1891);
see also id. (explaining that courts must determine whether
rules limiting speech in nonpublic forums are “so broad as to
provide [the government] with no meaningful constraint”
(emphasis added)); Archdiocese of Wash., 897 F.3d at 330
(explaining that, under Mansky, “a restriction may also be
unreasonable if it is unclear what speech would be swept in”).

With these principles in mind, we turn to the case at hand.
Here, because “[t]he text of the [2018 Rule] makes no
distinction based on the speaker’s political persuasion,”
Mansky, 138 S. Ct. at 1886, the question before the court is
whether the 2018 Rule’s ban on custom postage with
“political” content is “reasonable in light of the purpose served
by the forum,” Mansky, 138 S. Ct. at 1886 (quoting Cornelius
v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806
(1985)) (internal quotation marks omitted). In addition,
because the parties do not dispute the purposes of the custom
postage forum (i.e., to generate revenue and avoid
misattribution and political entanglement), see Br. for Appellee
at 16-17; Zukerman, 384 F. Supp. 3d at 65, or that USPS may
regulate speech to achieve those ends as a general matter, the
dispositive question is whether the 2018 Rule provides
objective, workable standards of the sort that Mansky requires.
 30

We hold that it does not. The Postal Service’s 2018 Rule
banning “[a]ny depiction of political . . . content” in custom
postage products raises the same problem the Court diagnosed
in Mansky. Here, as in Mansky, the challenged regulation tasks
government decision-makers with deciding what can come in
and what must stay out. Here, as there, the challenged
regulation uses the ill-defined term “political” to establish a
blanket content exclusion. And here, as there, the ill-defined
term “political” cannot provide the “objective, workable
standards” that Mansky requires. Without such standards, the
Postal Service’s content reviewers’ “own politics may shape
[their] views on what counts as ‘political.’” Mansky, 138 S. Ct.
at 1891. “And that is a serious matter when the whole point of
the exercise is to prohibit the expression of political views.” Id.
As in Mansky, moreover, the risk of unfair or inconsistent
enforcement remains a real threat to undermine the Postal
Service’s stated interest in avoiding entanglement in politics.
In sum, the 2018 Rule’s blanket ban on “political” content is
“simply too broad” to guide the discretion of the Postal
Service’s content reviewers. AFDI, 901 F.3d at 371.

We understand that “[p]erfect clarity and precise guidance
have never been required even of regulations that restrict
expressive activity.” Mansky, 138 S. Ct. at 1891 (quoting Ward
v. Rock Against Racism, 491 U.S. 781, 794 (1989)). But here,
as in Mansky, the Government’s “difficulties with its restriction
go beyond close calls on borderline or fanciful cases.” Id.

For instance, counsel for the Government struggled at oral
argument to explain whether stamps depicting seemingly
“commercial” ad campaigns (e.g., a Nike campaign featuring
Colin Kaepernick, or a Fox News campaign featuring Tucker
Carlson Tonight, or a Ben & Jerry’s campaign promoting
“Pecan Resist”) would be eligible under the 2018 Rule. See
 31
Oral Argument at 30:20-33:20, 34:05-34:45, 38:10-40:45; see
also Mansky, 138 S. Ct. at 1890 (explaining a related problem
created by businesses with “recognizable political views,”
including Ben & Jerry’s). Counsel for the Government had
similar trouble explaining whether custom stamps based on
social events like weddings (gay or straight) or stamps related
to other “social” events whose existence or content is arguably
political should be excluded under the 2018 Rule. See Oral
Argument at 33:20-33:50, 34:47-35:52.

This is no surprise. After all, the 2018 Rule effectively
inherits the problems of a blanket political apparel ban and it
creates many more problems besides. “A rule whose fair
enforcement requires [a government decision-maker] to
maintain a mental index” of commercial or social designs that
have any possible “political” resonances is “not reasonable.”
Mansky, 138 S. Ct. at 1889. Indeed, it would be difficult in
these circumstances for the Postal Service’s content reviewers
not to let their “own politics . . . shape [their] views on what
counts as ‘political.’” Id. at 1891.

The Government tries to locate objective, workable
standards in the 2018 Rule, but its efforts do not persuade us.
The Government’s principal argument is that USPS’s use of the
term “political” is not “unmoored” because the 2018 Rule
defines the “commercial” and “social” content that is allowed,
provides a list of express exclusions, and also excludes
everything not expressly permitted. Br. for Appellee at 18-19,
23. The Government even contends that, in this regulatory
structure, use of the expansive, undefined term “political”
makes the overall rule more administrable because it requires
 32
government decision-makers to exclude everything that even
smacks of politics. See id. at 25.

These features of the 2018 Rule do not save it, because
they do not make the ban on political content any more
objective or workable. At most, the added structure of the 2018
Rule means that the political content ban will be implicated in
fewer overall cases, because the Postal Service can reject some
designs on other grounds. But even if this is true, it does not
make the political exclusion itself any more administrable, and
the political exclusion must be satisfied every time the
Government approves a custom postage design. In countless
cases, then, the Government’s content reviewers will have
enormous unguided discretion to adopt and apply their own
(perhaps narrower, perhaps inconsistent) definitions of
“political.” The Government’s decision to embrace the
broadest meaning of “political” does not help, because the
bounds of that concept are themselves indeterminate and
disputed.

Next, the Government argues that the Court’s holding in
Mansky turned in part on the “haphazard interpretations” of the
term “political” that the state had offered in guidance
documents and in litigation. Br. for Appellee at 22-24 (quoting
Mansky, 138 S. Ct. at 1888). As explained in detail above,
however, the ill-defined term “political” was seen by the Court
in Mansky as a critical problem – a problem that the state’s
authoritative interpretations could not overcome. See AFDI,
901 F.3d at 371; Mansky, 138 S. Ct. at 1888-89. The ill-defined
term “political” is the problem here too.

The Government also contends that “[t]he decision in
Manksy . . . must be understood in terms of the context where
the apparel ban applied, and the consequences that flowed from
noncompliance.” Br. for Appellee at 24. This point is good as
 33
far as it goes. It is true that the 2018 Rule does not reflect the
same “difficult reconciliation” between “the right to engage in
political discourse” and “the right to vote” that was at issue in
Mansky. 138 S. Ct. at 1892 (quoting Burson v. Freeman, 504
U.S. 191, 198 (1992) (plurality opinion)). Given the stakes,
Mansky compellingly illustrates why the government must
adopt objective, workable speech restrictions, even in
nonpublic forums. But the Court’s decision did not turn on the
stakes. Instead, the Court’s holding turned on the fact that the
challenged rule was not capable of reasoned application; that is
the problem here too.

Finally, the Government argues that the Postal Service’s
2018 Rule is at least as objective and workable as other
restrictions on political speech that courts have upheld. See Br.
for Appellee at 17 (citing Lehman v. City of Shaker Heights,
418 U.S. 298 (1974); Greer v. Spock, 424 U.S. 828 (1976); and
Bryant v. Gates, 532 F.3d 888 (D.C. Cir. 2008)). We disagree.
The decisions cited by the Government upheld rules that
excluded “political advocates and forms of political advocacy”
in more precise, objective, and workable terms. Mansky, 138
S. Ct. at 1885-86. Indeed, in Mansky, the Supreme Court
approvingly cited two of the cases the Government relies on –
Lehman and Greer – even as it struck down Minnesota’s
blanket ban on “political” apparel as unworkably broad. See id.
Our decision goes no further than Mansky on this point.

In Lehman v. City of Shaker Heights, for instance, the
Court held that a city could prohibit “political advertising on
behalf of a candidate for public office.” 418 U.S. 298, 299
(1974) (plurality opinion). In Greer v. Spock, the Court upheld
a ban on “[d]emonstrations, picketing, sit-ins, protest marches,
political speeches and similar activities” – and the “rigid[]
enforce[ment]” of this ban to exclude “political campaign
speech[es]” – on a military base. 424 U.S. 828, 831 (1976).
 34
Finally, in Bryant v. Gates, this court upheld a ban on “political
advertisements” in a military newspaper where “the context in
which th[e] term [‘political’] appears . . . makes clear that it
relates specifically to elections and policy matters of concern
to public officials.” 532 F.3d 888, 893 (D.C. Cir. 2008)
(explaining that the regulation specifically mentions
campaigns, candidates, parties, lobbying of elected officials,
and political issues); see also id. at 897 (finding the ban
reasonable).

In all of these cases, the government could point to at least
some limiting standards – for instance, the ordinary meaning of
the term “advertising,” informed by all-important context – to
define the scope of the term “political” and render the
prohibition on speech more objective and workable. See also
Archdiocese of Wash., 897 F.3d at 340 (Wilkins, J., concurring)
(distinguishing a ban on “advertisements that ‘promote or
oppose any religion, religious practice or belief’” from a
“general ban on ‘religious’ or ‘political’ speech”). In other
words, the Court’s decision in Mansky suggests that the step
from a blanket ban on “political” content to a regulation that
imposes some workable limits on the term “political” is a
critical one. Our decision here reinforces that same conclusion.

The precedents discussed above underscore another point
that the Court made in Mansky: the Government has not “set
upon an impossible task.” 138 S. Ct. at 1891. There, the Court
noted that other states had regulated political speech at polling
places “in more lucid terms” and invited Minnesota to adopt “a
more discernable approach.” Id. Here, too, the Postal Service
remains free to craft a new rule that satisfies the requirements
set forth in Mansky and the cases it draws on. But the 2018
Rule’s blanket ban on “political” content does not provide
government decision-makers with objective or workable
guidance. For that reason, it cannot pass constitutional muster.
 35

III. CONCLUSION

For the reasons set forth above, we reverse the decision of
the District Court and remand the case for further proceedings
consistent with this opinion.