[00:00:05] Speaker 03: Charles Zuckerman and Charles Ross reporting, LLC, ADC Women and Liability Company Appellants versus United States Postal Service. [00:00:13] Speaker 03: Mr. Granera for the Appellants, Mr. Salzman for the Appellate. [00:00:48] Speaker 01: Good morning. [00:00:49] Speaker 01: Good morning. [00:00:54] Speaker 00: May it please the court. [00:00:56] Speaker 00: This case concerns two separate acts of unconstitutional censorship of plaintiff's political speech. [00:01:03] Speaker 00: Plaintiffs twice submitted designs for printing on custom postage and twice suffered First Amendment injury when those designs were rejected by agents of USPS. [00:01:14] Speaker 00: Most recently, USPS rejected plaintiff's design under its current regulations, which ban, quote, political content, unquote, on custom postage. [00:01:25] Speaker 00: Under the Supreme Court's decision in Manskey, a political content ban violates the First Amendment. [00:01:30] Speaker 01: Why isn't Manskey just about polling places? [00:01:33] Speaker 01: The court was pretty clear that they were really concerned about what takes place at polling places. [00:01:39] Speaker 01: They don't have quite the same concern about the post, do they? [00:01:44] Speaker 00: Certainly, Your Honor, Manskey factually occurred in a polling place. [00:01:47] Speaker 01: Well, at least more. [00:01:48] Speaker 01: Not just factually. [00:01:49] Speaker 01: They laid great emphasis on that it was in the polling place and what's supposed to take place in the polling place. [00:01:54] Speaker 01: And we don't want to have division. [00:01:56] Speaker 01: We want it to be separate from the argument process that leads beforehand. [00:02:00] Speaker 01: It was all about polling places. [00:02:04] Speaker 00: I think, Your Honor, there are two separate questions that the Court looked at in Manskey. [00:02:07] Speaker 00: The first is, did Minnesota have a legitimate government interest in [00:02:11] Speaker 00: in imposing a regulation designed to, I think the court called it, protecting an island of calm from political debate. [00:02:19] Speaker 00: Once the court decided, yes, Minnesota does have legitimate interest in that goal, in imposing speech restrictions for that reason, the court then turned to a separate inquiry, which is whether Minnesota had, in fact, implemented or written regulations that are objective and workable. [00:02:38] Speaker 01: And the court on that second question- That achieved that goal for that place. [00:02:42] Speaker 01: I mean, it's not a freestanding analysis. [00:02:45] Speaker 01: I think it really misreads the case to try and take it out of that context. [00:02:52] Speaker 01: Your Honor, the court said that. [00:02:54] Speaker 00: The court in Manskey said it's applying a non-public forum analysis, pulling places in non-public forum and custom posts. [00:03:00] Speaker 01: So your argument is that what they say in Manskey just applies [00:03:05] Speaker 01: in all non-public forum cases, not just polling places? [00:03:09] Speaker 00: Certainly, Your Honor. [00:03:09] Speaker 00: And the reason for that is because, as the Court said, in a non-public forum, the government can exclude entire categories of speech if it uses objective workable standards capable of reasoned application. [00:03:22] Speaker 00: And it gave the reason why that's a constitutional requirement. [00:03:26] Speaker 00: And that's because there is such a grave risk of ex-post viewpoint discrimination [00:03:33] Speaker 00: imposed by content reviewers if those reviewers are not given ex ante clear guidelines to determine what comes in and what comes out. [00:03:42] Speaker 04: But in Manskey, I mean, just to follow up on Judge Griffith's question, I mean, in Manskey, they talk about reasonableness of the content restriction, and the reasonableness of it seems to turn on the particular circumstances, right? [00:03:53] Speaker 04: There are a series of cases leading up to Manskey that really focus on the circumstances. [00:03:58] Speaker 04: And so I guess it seems that you need to make an argument about why the circumstance of the stamp or speech on the stamp is similar or it's unreasonable in this particular circumstance. [00:04:10] Speaker 00: Yes, Your Honor, the government was under no obligation to open up custom postage to private speech. [00:04:17] Speaker 00: However, once it did so, it assumed the obligation of administering that forum in a constitutional manner. [00:04:23] Speaker 00: And one of those constitutional requirements is to provide objective workable guidelines to determine who can come in and who can come out. [00:04:30] Speaker 00: And in the context of political speech, this issue is even more serious, the court says in Manskey, because people's political biases will naturally affect their determinations. [00:04:42] Speaker 00: And the First Amendment is particularly concerned with protecting political speech. [00:04:46] Speaker 04: So is it your contention that after Manski, any restriction on political speech in a non-public forum is unworkable because the same problems that would arise in Manski or here or anywhere, basically the government can't limit political speech in non-public fora? [00:05:06] Speaker 04: Is that the ultimate upshot of Manski? [00:05:09] Speaker 00: Not quite, Your Honor. [00:05:10] Speaker 00: I think Manskey does stand for the proposition that a blanket ban on political content or, as in Manskey, political apparel, that those bans do not provide objective workable standards. [00:05:20] Speaker 00: However, as the court recognized in Manskey, there's a long tradition of regulations and statutes that limit the scope of political speech in non-public forums, and Manskey did not overrule those. [00:05:34] Speaker 00: It says that if the government does want to limit political speech, it has to be clearer than in Manskey, and certainly clearer than USPS has been here, about what speech is allowed. [00:05:43] Speaker 05: What would be an objective reasonable [00:05:45] Speaker 05: There's no question that Mansky is concerned about the political criteria, but what in your view would be, you're not saying everything is prohibited, what would be acceptable, hypothetically? [00:06:01] Speaker 00: Your Honor, I would refer back to Manski itself as a starting point. [00:06:05] Speaker 00: Manski effectively upheld Minnesota's ban on apparel that contained the names of political parties, the names of candidates, expression demonstrating support for or opposition to ballot questions. [00:06:17] Speaker 05: Well, use this case. [00:06:20] Speaker 05: What would be acceptable? [00:06:24] Speaker 05: Within the compass of political. [00:06:27] Speaker 00: Sure, Your Honor. [00:06:28] Speaker 00: To get to an example raised by USPS itself, they point to Bryant v. Gates, a decision from this court from a few years ago. [00:06:35] Speaker 00: And the regulation in that case said that, in this case, a Department of Defense newspaper shall not carry paid political advertisements for a candidate party which advocate a particular position on a political issue or which advocate lobbying elected officials on a specific issue. [00:06:54] Speaker 01: So we said, was it a candidate or a party who does those things? [00:06:58] Speaker 01: I'm sorry, Your Honor, I didn't hear you. [00:07:00] Speaker 01: The language you're using, you're saying it was a candidate or a party who takes a particular position or lobbies? [00:07:08] Speaker 00: It cuts a little bit broader than that, Your Honor. [00:07:10] Speaker 00: It's any paid political advertisement which advocates a particular position on a political issue, or which advocate lobbying. [00:07:16] Speaker 01: And you think that's acceptable? [00:07:18] Speaker 00: I think it certainly is categorically different from the black and white people. [00:07:22] Speaker 01: But the question, I don't mean to ask Judge Edwards, the question is, is that acceptable under your reading? [00:07:29] Speaker 00: Your Honor, in interpreting any of these speech regulations, of course, the context matters in interpreting, especially with the word political matters. [00:07:38] Speaker 05: You're starting with the argument that a limitation based on political views is not acceptable, generally. [00:07:46] Speaker 05: But you agree some might be OK. [00:07:49] Speaker 05: I'm just curious to know, like what, in this context? [00:07:54] Speaker 00: Your Honor, I think the regulation that [00:07:57] Speaker 00: was that issue in Bryant v. Gates is an example of a significantly better, yet without, because it would have to be converted into the custom postage context, there may be issues that arise. [00:08:08] Speaker 05: Well, that's what I'm trying to understand. [00:08:10] Speaker 05: Converted. [00:08:10] Speaker 05: In the custom postage context, what do you think would be an acceptable prescription against political stance or whatever? [00:08:20] Speaker 00: Your Honor, there's no image that we say must be allowed into custom postage. [00:08:24] Speaker 00: The only question here is whether USPS has created a guideline that allows objective and workable determination. [00:08:32] Speaker 05: All I'm trying to figure out is what guideline would be acceptable once they open up the non-public forum. [00:08:38] Speaker 05: I think, for example, Your Honor, a... I understand they don't have to open the non-public forum, but they did. [00:08:43] Speaker 05: And you're saying they have a political component and the way they are enforcing it is unacceptable because it's not reasonable and no objective standards. [00:08:54] Speaker 05: I'm curious to know, can you think of one that would be? [00:08:58] Speaker 00: Yes, Your Honor. [00:08:59] Speaker 00: So, for example, a ban on electioneering on custom postage, a ban on issue, a ban on [00:09:06] Speaker 00: The names of parties on custom postage would be reasonable. [00:09:09] Speaker 00: A ban on discussion of Supreme Court cases would be acceptable. [00:09:13] Speaker 00: Additionally, perhaps USPS could include a series of... Funding Supreme Court cases or pass Supreme Court cases? [00:09:20] Speaker 00: As USPS wants, as long as it's clear and administrable when the content reviewer has to make a decision about a particular guideline. [00:09:27] Speaker 00: Is this about a Supreme Court case or not? [00:09:28] Speaker 04: If the guidelines become that specific, then don't you run into other problems potentially about viewpoint discrimination and regulation? [00:09:36] Speaker 04: I mean, the type of granular examples you're giving seem to then run into other First Amendment problems. [00:09:43] Speaker 00: The threat of viewpoint discrimination is why clear and administrative guidelines are required on the front end in situations like this. [00:09:50] Speaker 00: So there's always the threat of viewpoint discrimination. [00:09:53] Speaker 00: And as the Supreme Court has said in Rosenberger, for example, it's axiomatic that the government can never engage in viewpoint discrimination. [00:10:00] Speaker 00: So regardless of whether [00:10:02] Speaker 00: Regardless of how the content guidelines are structured, avoiding viewpoint discrimination is paramount responsibility of the USPS. [00:10:08] Speaker 04: I mean, it seems, you know, I mean, some of the examples you've given your brief, I think, are really interesting, right? [00:10:13] Speaker 04: I mean, a Nike ad featuring Colin Kaepernick. [00:10:17] Speaker 04: What kind of standard about political speech would definitively tell the reviewer whether that ad is in or out? [00:10:27] Speaker 04: I mean, it's a hard, I mean, is there even a standard that would be possible? [00:10:32] Speaker 00: It would depend what USPS really cares about and really what wants to do. [00:10:36] Speaker 00: What's not acceptable is for USPS to say, we know in our minds what should come in and come out, and we're going to trust our content reviewers to do that on their own, design after design. [00:10:47] Speaker 00: That's not an acceptable situation. [00:10:49] Speaker 00: USPS has to explain to the public and to the content reviewers exactly what guidelines should be applied. [00:10:55] Speaker 00: Going to some of the examples that we gave [00:10:59] Speaker 00: in the brief, Your Honor, I think it's telling, that USPS declined to provide any interpretation of how its own political content guidelines should be applied to those images. [00:11:11] Speaker 00: In effect, USPS is saying on the one hand, content reviewer, the guideline is sufficiently clear that content reviewers can apply it, again, design after design, reviewer after reviewer, in a way that is consistent, but at the same time, USPS doesn't want to go on record about how many of these designs should be considered. [00:11:27] Speaker 00: And in Manski, [00:11:29] Speaker 00: refusal to provide cogent explanations for how to evaluate potential designs doomed the content guideline in that case. [00:11:41] Speaker 01: Doesn't Mansky kind of suggest that maybe you just can't write guidelines in this area? [00:11:46] Speaker 01: That the word political is just too indeterminate? [00:11:51] Speaker 01: And that's my, I think, lurking behind your resistance to give us a guideline that would be acceptable is [00:11:59] Speaker 01: Maybe that's the point. [00:12:02] Speaker 00: As I think I said earlier, Your Honor, I think there's a distinction between the word political used in a context that gives a definite meaning, for example, as in cases like Lehman where the court interpreted political advertising to mean candidate advertising. [00:12:15] Speaker 00: as opposed to a regulation like this, or like the one in Manskey, where the regulation is on political content, and there's no additional guidance within the regulation itself about what political should mean. [00:12:26] Speaker 01: So a ban on candid advertising would be unobjectionable. [00:12:30] Speaker 00: Administrable, easy to do. [00:12:32] Speaker 00: The Supreme Court has said that in Manskey, and in other cases as well. [00:12:35] Speaker 00: In cases like Cornelius versus NAACP Legal and Education Fund, Your Honor, for example, [00:12:43] Speaker 00: the court upheld a ban on ads from agencies that seek to influence the outcomes of elections or the determination of public policy through political activity or advocacy, lobbying or litigation on behalf of parties other than themselves. [00:12:57] Speaker 00: That's another guideline that the Supreme Court has upheld. [00:13:01] Speaker 00: So there are examples that USPS can draw from. [00:13:04] Speaker 00: And it will ultimately come down to what USPS actually wants to be in and out of the program. [00:13:09] Speaker 00: And then whether we're able to articulate that in a way that content reviewers can apply consistently across reviewer and across every design that's submitted. [00:13:20] Speaker 00: I'd like to turn briefly, Your Honors, to our mootness argument. [00:13:26] Speaker 00: And my time is running short, so I'll make what I think are three brief points. [00:13:32] Speaker 00: First is I want the court to understand the nature of our argument. [00:13:35] Speaker 00: Prior to the current regulations, USPS, through its agent Zazzle, applied standards for judging political stamps that was based on whether or not, according to Zazzle's own written regulations, as well as confirmed through further discovery, whether the design was controversial or harmed Zazzle's reputation. [00:13:54] Speaker 00: Under Mantol versus Tam and Yahu versus Bernetti, that's about as close as you can get to, per se, viewpoint discrimination. [00:14:00] Speaker 00: The question then is whether plaintiffs can get their day in court and have that claim adjudicated. [00:14:06] Speaker 00: And the district court said no, because the new guidelines were implemented. [00:14:10] Speaker 00: We don't think that's correct, Your Honor, because plaintiffs today suffer the exact same harm that they suffered back in 2015 when their stamp was first rejected, namely that there continues to be political postage, political designs in the custom postage program while plaintiffs are still denied the opportunity to speak. [00:14:28] Speaker 00: And the court can still order things. [00:14:30] Speaker 01: This is an alternative argument, right? [00:14:32] Speaker 01: I mean, your first argument is that the guidelines and regulations right now are facially flawed, right? [00:14:39] Speaker 00: If we agreed with you on that, do we need to reach this issue? [00:14:44] Speaker 00: I think the court does, Your Honor. [00:14:45] Speaker 00: These are two separate independent claims. [00:14:48] Speaker 00: And that's because, first of all, the guidelines at issue were different in 2015 as compared to today. [00:14:55] Speaker 00: And then secondly, the alleged injury is different. [00:14:57] Speaker 00: In 2015, plaintiffs alleged that they actually suffered viewpoint discrimination, whereas today they're doing it. [00:15:02] Speaker 01: But the remedy you're seeking in the facial challenge would take care of the problem in the first place, wouldn't it? [00:15:07] Speaker 01: Not necessarily, Your Honor. [00:15:09] Speaker 00: I think that depending exactly how the court crafted its remedy, USPS would have an opportunity to revise its guidelines to address the problem. [00:15:17] Speaker 00: The order would not necessarily be to print plaintiff stamp or custom postage. [00:15:21] Speaker 00: I would agree that if the court did order USPS to print our custom postage design as a result of the Manskey violation, that would effectively provide the relief we're seeking from the 2015 claim. [00:15:32] Speaker 04: So you're suggesting we should order USPS to [00:15:36] Speaker 04: to publish stamps that would be in contravention of their current guidelines? [00:15:42] Speaker 04: One of the current regulations, I should say. [00:15:44] Speaker 00: Yes, Your Honor. [00:15:45] Speaker 00: The only question at this stage is simply whether the case is moot and whether that's a possible remedy that the court could apply down the line if we prevail on the merits, et cetera. [00:15:54] Speaker 00: And the answer to whether the court could order that relief is yes. [00:16:01] Speaker 00: In response to a constitutional violation, a regulation passed by USPS should not prevent the court from ordering or USPS from complying with an injunction to remedy that past constitutional violation. [00:16:13] Speaker 05: In both 2015 and 2018, your claim is that the rule in the books poses an unworkable political content ban. [00:16:25] Speaker 05: And the fact that they have changed from 15 to 18 doesn't move the case. [00:16:29] Speaker 05: That's all you're saying, right? [00:16:31] Speaker 05: And so the remedy you're looking for is they cannot exclude what we offer based on an unworkable political content ban. [00:16:42] Speaker 00: Our argument based on the 2015 claims, Your Honor, is not specifically that there was a lack of clarity about the term political under the 2015 guidelines. [00:16:53] Speaker 05: Well, that's what Zazzle was, and not the one who did it. [00:16:56] Speaker 00: Correct. [00:16:57] Speaker 05: That's what Zazzle said. [00:17:00] Speaker 00: Well, Zazzle had a separate guideline that said that they will not print controversial images. [00:17:06] Speaker 05: Well, the government endorsed it, right? [00:17:08] Speaker 00: Correct. [00:17:09] Speaker 05: It's not inconsistent with what you're saying, as far as I can understand. [00:17:15] Speaker 05: Political content, the ban in both situations, in your view, was unconstitutional. [00:17:21] Speaker 05: And the fact that they got rid of whatever was there in 15, and they had a new ban, which still [00:17:27] Speaker 05: includes political content, does it moot out the case? [00:17:31] Speaker 05: And there are cases that say that. [00:17:32] Speaker 05: I mean, we have said it recently, Judge Ginsburg, Justice Thomas said it in a very important case in the Supreme Court. [00:17:39] Speaker 05: I don't know what the big deal is on mootness. [00:17:41] Speaker 05: The question as to what the remedy would be depends upon, if you win, depends upon whether the agency then changes the rule again to cure the defect. [00:17:53] Speaker 00: In this context, I don't think I fully agree, Your Honor. [00:17:56] Speaker 00: Even if USPS had closed the custom postage program in 2018 rather than adopting new guidelines, our plaintiff's viewpoint discrimination claim from 2015 would still survive. [00:18:08] Speaker 00: And the underlying policy, it would survive because there would still be pro-and-con abortion images, there would still be pro-and-con gay rights images, there would be pro-military images in the custom program that Zassel printed. [00:18:23] Speaker 00: Plaintiffs would still be prohibited from speaking. [00:18:25] Speaker 00: And that's the same injury they suffered the day that they're... Prohibited from what? [00:18:29] Speaker 00: Prohibited from speaking on custom postage, from having their design printed. [00:18:33] Speaker 05: Pursuant to what? [00:18:35] Speaker 05: The 15 rule is no longer there. [00:18:37] Speaker 00: It's no longer there. [00:18:38] Speaker 00: And so we're not asking for the court to provide some general interpretation of what it means or whether it's enforceable. [00:18:44] Speaker 00: We're asking the court to determine whether or not plaintiffs actually suffer viewpoint discrimination in 2015. [00:18:49] Speaker 00: And the remedy would be what? [00:18:51] Speaker 00: to either order USPS to provide plaintiffs with what they should have gotten but for the viewpoint discrimination, i.e. [00:18:57] Speaker 00: to print the design they submitted, or if USPS doesn't feel like they can do that for whatever reason. [00:19:03] Speaker 00: And again, the only question here is whether there's any relief that could possibly be granted. [00:19:07] Speaker 00: The court could order USPS to remove the political images that should never have been printed according to USPS in the first place. [00:19:20] Speaker 00: In a discrimination case, there are two possible remedies. [00:19:22] Speaker 00: You can either give the person who was discriminated against what they should have done, or you can remove the benefits that were improperly given to others. [00:19:28] Speaker 03: How would they do that? [00:19:29] Speaker 03: Can you cite any authority they have to do that, to withdraw the previous stamps? [00:19:34] Speaker 00: Sure. [00:19:35] Speaker 00: I'll take both questions. [00:19:36] Speaker 00: It's the same question. [00:19:39] Speaker 00: OK. [00:19:39] Speaker 00: So in terms of whether it's possible for USPS to do something like this, I would point, for example, again, there's nothing in the record to suggest that they couldn't. [00:19:47] Speaker 00: And the court recognized that this is a factual inquiry that had not been developed. [00:19:51] Speaker 00: But for example, in the case of Morris versus Runyon, which was a DDC case, USPS improperly printed stamps, improperly sold them. [00:20:00] Speaker 00: And then it contacted the people who sold those stamps and offered to exchange them for properly printed postage. [00:20:06] Speaker 00: That type of remedy would provide plaintiffs with meaningful relief by eliminating the disparity created by USPS's own viewpoint discrimination. [00:20:15] Speaker 00: As long as that remedy remains possible, then this case is not moot and it should proceed to its merits. [00:20:24] Speaker 01: Great. [00:20:25] Speaker 01: Thank you very much. [00:20:26] Speaker 01: We'll give you back some time for the vote. [00:20:30] Speaker 02: Good morning. [00:20:30] Speaker 02: Good morning. [00:20:31] Speaker 02: Thank you, Your Honor, and may it please the Court, Joshua Solzman, on behalf of the Postal Service. [00:20:35] Speaker 02: I'd like to begin by just diving right in on the challenge to the current regulations. [00:20:40] Speaker 01: Can I ask you about the letter that you all submitted? [00:20:42] Speaker 01: What's going on? [00:20:43] Speaker 02: Yeah, absolutely, Your Honor. [00:20:45] Speaker 02: I'm sorry that I'm not really in a position to elaborate on it significantly beyond what's in the letter, but just to give you some context of what happened, it came to our attention that there is this re-evaluation that's going on. [00:20:57] Speaker 02: This was publicly disclosed in another context, in another case, and we thought it prudent to err on the side of caution [00:21:03] Speaker 02: And to let the court know... What's the nature of the reevaluation? [00:21:07] Speaker 01: Over this particular issue? [00:21:08] Speaker 01: Over what political content means? [00:21:11] Speaker 02: All I can say is it's the customized postage program, and we thought at least that the results of that reevaluation at least had the potential to impact this litigation while this case was still conceivably pending in this court. [00:21:22] Speaker 02: We're not asking this is all... This is at a... [00:21:25] Speaker 02: comparatively early stage, this is internal deliberations, but we wanted to err on the side of caution of letting the court know, especially because it had been disclosed elsewhere. [00:21:35] Speaker 01: And you don't know whether the issue that we're dealing with will even be part of that reevaluation? [00:21:40] Speaker 02: I'm not in a position to handicap what changes will ultimately be made, if any, or the timing, unfortunately, on what that would happen. [00:21:48] Speaker 02: That's why we didn't ask the court [00:21:49] Speaker 02: to hold the case in abeyance or anything like that. [00:21:52] Speaker 02: But given that we knew that this was possible and had disclosed it elsewhere, we just wanted to be upfront with the court and let you know as well. [00:22:01] Speaker 04: Would changes to the program require further notice and comment rulemaking? [00:22:05] Speaker 02: It really depends on what the nature of those changes are. [00:22:08] Speaker 02: Depending on the scope of the changes, they might require approval from the Postal Regulatory Commission, publication of the Federal Register. [00:22:15] Speaker 02: There are any number of things that could be required, depending on the scope of the resulting changes. [00:22:21] Speaker 02: With that said, I'll turn to first the challenge, the present regulations. [00:22:27] Speaker 02: And I think the court well understands the key point here, which is that Manskey needs to be understood in context. [00:22:34] Speaker 02: There was lots of precedent beforehand from the Supreme Court in Greer and Lehman, from this court in Bryant, upholding political limitations in non-public forum. [00:22:45] Speaker 02: Manskey didn't purport to overrule those. [00:22:48] Speaker 02: Post-Manskey, in the Archdiocese of Washington case, this court continued, cited Manskey and continued to discuss limitations on political content as an example of a permissible limitation on speech in a non-public forum. [00:23:04] Speaker 02: So I think, at that point, in order to win, they need to persuade you that this case is Mansky. [00:23:11] Speaker 02: That it's not, you can't generalize from it so far to say that any restriction on political speech is impermissible. [00:23:17] Speaker 01: I don't think that's the point. [00:23:19] Speaker 01: The point is, what does it mean when you say political? [00:23:22] Speaker 01: Let's forget Mansky. [00:23:24] Speaker 01: Mansky never happened, okay? [00:23:25] Speaker 01: Just hypothetically. [00:23:27] Speaker 01: What are we supposed to do with [00:23:29] Speaker 01: the broad definition of political that you all have adopted. [00:23:35] Speaker 01: I mean, if you go to the dictionary, it's very broad. [00:23:38] Speaker 01: Political, dictionary definition, political relates to governmental affairs, politics, the state, relates to. [00:23:45] Speaker 01: We've got lots of Supreme Court cases that tell us what relates to means, and it's very, very broad. [00:23:51] Speaker 01: So forget Manskey. [00:23:53] Speaker 01: What is the decision maker at the Postal Service supposed to do when reviewing a design stamp and the standard is, can't be political? [00:24:05] Speaker 01: That's the standard that you've embraced. [00:24:06] Speaker 02: Absolutely, Your Honor. [00:24:07] Speaker 02: And I'd say two things in regards to that. [00:24:10] Speaker 02: First of all, notably that plaintiff's counsel says it's OK to have a limit to political issues or political advertising. [00:24:17] Speaker 02: And at least that's what I understood from both their briefing and what they said at the podium. [00:24:21] Speaker 02: A lot of those edge cases are going to be just as hard under their standard, which they've basically said is OK than it is under ours. [00:24:28] Speaker 02: The other thing that I think makes this very different [00:24:31] Speaker 02: than the unmoored use of the word political in Manski, is the fact that this is a secondary criterion that's applied in the context of a much broader scheme. [00:24:41] Speaker 05: What does that do? [00:24:50] Speaker 01: Somebody's sitting at a desk looking at a design and they have to answer, is it political or not? [00:24:54] Speaker 02: Well, it matters in two ways. [00:24:58] Speaker 02: First of all, it's going to matter less often because of the threshold criteria that I want to talk about. [00:25:02] Speaker 02: And also, those threshold criteria help inform the vision of how this scheme is supposed to operate. [00:25:08] Speaker 02: So let me walk through that. [00:25:10] Speaker 02: The way these regulations are laid out, you have a presumption of ineligibility. [00:25:14] Speaker 02: This is not some broad program. [00:25:16] Speaker 02: You can wear whatever you want to to the polls unless we tell you not to. [00:25:20] Speaker 02: We're starting from everything is out. [00:25:22] Speaker 02: We then define two narrowly focused categories of material that's eligible that can come in. [00:25:28] Speaker 02: And that's the commercial matter and social. [00:25:31] Speaker 02: And though both of those terms are defined in the regulations, they haven't taken issue with either of those definitions. [00:25:37] Speaker 02: Commercial is intended solely or only to promote the sale of goods and services. [00:25:43] Speaker 02: And social is promoting animals or events that's going to generate correspondence like RSVPs and thank you notes. [00:25:51] Speaker 02: A lot of the work, a lot of the tough screening happens at that point. [00:25:56] Speaker 02: So then you have something marginal. [00:25:58] Speaker 02: It gets through. [00:25:58] Speaker 02: Let's take a couple of concrete examples, including their stamp here. [00:26:03] Speaker 02: So first they have a stamp that just says, democracy is not for sale. [00:26:07] Speaker 02: I think that's pretty plainly not commercial and not social. [00:26:11] Speaker 02: But then they stick something on. [00:26:13] Speaker 02: They modify their design. [00:26:15] Speaker 05: It's not social? [00:26:16] Speaker 02: No, not at all. [00:26:18] Speaker 02: How is that promoting an event? [00:26:20] Speaker 02: I don't see any connection to an event that's likely to entail... Social means an event, in your view. [00:26:25] Speaker 05: Nothing more. [00:26:25] Speaker 02: No, there are two criteria. [00:26:27] Speaker 02: There are two criteria. [00:26:28] Speaker 02: The definition of social has two parts. [00:26:30] Speaker 02: First, it's animals, people, events. [00:26:32] Speaker 02: There may be one fourth thing in that first half of the definition. [00:26:36] Speaker 02: And then the second half of the definition is it needs to be associated with something that's going to entail the sending of correspondence. [00:26:44] Speaker 02: such as invitations, RSVPs, and thank you notes. [00:26:48] Speaker 02: So this is really focused on things like life cycle events and invitations to graduation parties and weddings. [00:26:57] Speaker 02: I think this is a much more circumscribed definition [00:27:01] Speaker 02: then perhaps the court is appreciating. [00:27:04] Speaker 02: So a lot of the work is happening at that stage. [00:27:07] Speaker 02: So then somebody comes in and they say, oh, I'll make it commercial. [00:27:11] Speaker 02: I'll stick on the phrase, but this artwork is. [00:27:15] Speaker 02: And the word political helps work in tandem with those initial threshold screening criteria to help define the scope of the program. [00:27:23] Speaker 02: Another context [00:27:24] Speaker 02: where you see something like this operating is when transit systems have adopted limitations that are designed to keep out non-commercial material, sometimes a candidate for office will buy something that will try to run an ad that says, buy a bumper sticker that says... So you can advertise non-political art, but you can't advertise political art in your stamp, is that right? [00:27:49] Speaker 02: I hesitate to talk about that. [00:27:51] Speaker 02: There are many other limitations, including if it is purely commercial, if it is intended solely to promote the sale of goods or services, and it doesn't fall within any of the supplemental restrictions. [00:28:04] Speaker 01: Political art. [00:28:04] Speaker 01: I'm trying to sell political art. [00:28:06] Speaker 02: Well, political art is out. [00:28:08] Speaker 02: Political art is definitely out. [00:28:09] Speaker 05: So we're being patient. [00:28:10] Speaker 05: But the bottom line is you still get to a point, whatever the number of cases is, we're so far [00:28:16] Speaker 05: The person sitting there doing this has to decide what political means. [00:28:22] Speaker 05: And the question is, are there objective, reasonable standards in place? [00:28:27] Speaker 05: Not whether there are some things above the line, as you're proposing it, which we know how to work through social commercial. [00:28:35] Speaker 05: You still get to a place where there's going to be an argument over, is this political, and in what way, and how is it offensive? [00:28:41] Speaker 02: Offensive is not the problem here. [00:28:47] Speaker 02: Let's take out offensive, but focusing on political. [00:28:51] Speaker 02: We know that political advertising bans are okay. [00:28:53] Speaker 02: We know that from Lehman. [00:28:55] Speaker 02: A limitation on political speeches was upheld in Greer, which was cited with approval in Mansky. [00:29:00] Speaker 02: So we know that the word political by itself is not [00:29:04] Speaker 02: death to a limitation. [00:29:07] Speaker 02: It's not fatal to a program. [00:29:10] Speaker 01: If that's the only word, it might be death to it. [00:29:12] Speaker 01: It's indeterminate. [00:29:13] Speaker 02: Well, but in Manskey, look at all the things the point is to... No, no, no. [00:29:17] Speaker 05: Manskey, tell us what you think this new rule means. [00:29:21] Speaker 05: Because the concern is whether or not you have regulation of political content that is not based on objective and reasonable standards. [00:29:30] Speaker 02: I completely agree that that's the applicable test, Your Honor. [00:29:35] Speaker 05: I can't define with mathematical precision where this is, and Manskey says that's fine. [00:29:49] Speaker 05: Not at all, Your Honor. [00:29:50] Speaker 05: I think common sense and plain meaning of the term. [00:29:52] Speaker 02: When you say not at all, what are you referring to? [00:29:55] Speaker 02: Oh, I was saying that it's indeterminate and cannot be reasonably applied. [00:30:00] Speaker 05: Well, you just said you can't define it. [00:30:03] Speaker 02: You didn't mean to say that? [00:30:05] Speaker 02: I perhaps misspoke, Your Honor. [00:30:06] Speaker 02: I apologize. [00:30:08] Speaker 02: I think that the plain meaning of the term as it has been used and upheld in a number of precedents is sufficient to guide content reviewers. [00:30:16] Speaker 02: There will be edge cases, and I'm not going to say that there aren't. [00:30:19] Speaker 04: Let's go through some examples. [00:30:20] Speaker 04: I mean, you gave a number of hypotheticals that you found easy to answer. [00:30:23] Speaker 04: But I mean, what about advertisements that are arguably clearly commercial, like for a media company, right? [00:30:28] Speaker 04: Fox News wants to feature the Tucker Carlson show on a stamp. [00:30:31] Speaker 04: or MSNBC wants to choose Rachel Maddow on a stamp, is that? [00:30:35] Speaker 04: It's commercial, right? [00:30:37] Speaker 04: They're a media company, right? [00:30:40] Speaker 04: They're there to make money. [00:30:43] Speaker 04: What if they want to feature somebody who has a political viewpoint? [00:30:46] Speaker 02: I think you'd have to evaluate the ad in context. [00:30:50] Speaker 02: If it is doing nothing but promoting the sale of goods and services in commerce and therefore gets into the eligible criteria bucket. [00:30:58] Speaker 04: Advertising show. [00:30:59] Speaker 02: Then you need to say, is there a message associated with that? [00:31:03] Speaker 02: But there is a presumption of ineligibility that's written right into the regulations. [00:31:08] Speaker 01: But don't write that political. [00:31:09] Speaker 01: Here's the design. [00:31:12] Speaker 01: Watch Tucker Carlson because he's right [00:31:17] Speaker 01: And they're wrong. [00:31:18] Speaker 01: There's your stamp design. [00:31:20] Speaker 01: That acceptable or not under... [00:31:22] Speaker 02: Again, I'm hesitant to opine that. [00:31:25] Speaker 02: Because he's right and they're wrong sounds awfully soft. [00:31:27] Speaker 02: The fact that you're hesitant to opine suggests it's indeterminate. [00:31:31] Speaker 02: Just because this panel is very good and clever lawyers will always be very good at probing the outer edges of the rules. [00:31:40] Speaker 02: This is an edge case, Your Honor. [00:31:42] Speaker 04: What about Ben and Jerry's stamps? [00:31:44] Speaker 04: There are all these Ben and Jerry's ice cream flavors that have political connotations. [00:31:48] Speaker 04: Ben and Jerry's is clearly a commercial entity. [00:31:51] Speaker 04: If they picked a flavor that was chocolate chip that doesn't have any political overtones, I assume USPS would say it was fine. [00:31:58] Speaker 04: But if they pick, I don't know, World Peace or I don't know, Pecan Resist. [00:32:03] Speaker 04: Pecan Resist, yes, you're right. [00:32:07] Speaker 04: Maybe that's not OK. [00:32:09] Speaker 04: So it turns out the flavor on ice cream, whether something is going on? [00:32:13] Speaker 02: I think it's going to turn on the specific context. [00:32:15] Speaker 02: But Manskey reaffirms that this is a forgiving standard, that there can be [00:32:21] Speaker 02: And in the Archdiocese of Washington case, I think this course grappled with the idea that you need some latitude in having content-based restrictions in order to, if the government is going to have the ability, which has been consistently upheld, to limit access to a forum based on content, [00:32:41] Speaker 02: There needs to be some degree of forgivingness around the margins there. [00:32:46] Speaker 02: And I think this falls within the scope of what's been upheld elsewhere, because until Manskey, you had unbroken lines of precedent upholding something like this. [00:32:56] Speaker 02: Manskey says, when you're in the polling place, when there's a potential impact on the right to vote or fines of several hundred dollars, when the criterion is unmoored from a broader regulatory scheme, [00:33:08] Speaker 02: And when, on top of all of that, the state comes in and offers supposedly clarifying guidance that's so haphazard that it makes the problem infinitely worse, when you have that confluence of events, when you have that context. [00:33:20] Speaker 01: An invitation to a same-sex marriage. [00:33:23] Speaker 01: Does that work or not? [00:33:25] Speaker 02: Again, it's going to depend on context. [00:33:26] Speaker 02: If it's just Kate and Jenny come to Kate and Jenny's wedding, I think that's probably fine. [00:33:34] Speaker 02: If you start including references to Obergefell, [00:33:37] Speaker 02: then I think it gets very different. [00:33:40] Speaker 02: You think, but you're not sure. [00:33:42] Speaker 02: Again, it's going to need to be evaluated in context. [00:33:44] Speaker 02: There are going to be edge cases. [00:33:45] Speaker 02: And I do want to underscore that they were up here telling you that a limit on political issues is OK, which I think they should concede in light of Lehman and Greer and Bryant. [00:33:56] Speaker 05: No, they said an objective reasonable limit. [00:33:59] Speaker 02: I'm sorry, one more time? [00:34:00] Speaker 05: They said an objective reasonable limit. [00:34:03] Speaker 05: And we're trying to figure out from you [00:34:05] Speaker 05: Well, I think the first question is, does it even survive the commercial? [00:34:17] Speaker 02: I think it's clearly not social under the definition. [00:34:21] Speaker 02: There's the commercial. [00:34:23] Speaker 02: hesitate to say that it even meets the definition of commercial, which says only to promote the sale of goods or services in commerce. [00:34:32] Speaker 04: Nike is choosing to sell shoes by using Colin Kaepernick to sell shoes. [00:34:38] Speaker 02: But clearly marrying it with a social message, at which point I think it goes beyond only designed to sell goods and services. [00:34:46] Speaker 01: Let's go back to the wedding invitation example. [00:34:49] Speaker 01: Come to Adam and Steve's wedding. [00:34:52] Speaker 01: out of the definition of political you've adopted, that relates to government. [00:34:56] Speaker 01: Marriage relates to government. [00:34:58] Speaker 01: Why isn't that a political statement? [00:35:00] Speaker 01: Politics is anything relating to government. [00:35:04] Speaker 01: A wedding is related to government. [00:35:06] Speaker 02: I think that stretches the plain meaning of the term political too far to say that a marriage is political and consistent. [00:35:14] Speaker 01: Does marriage relate to government? [00:35:16] Speaker 02: It's an act of the government, right? [00:35:20] Speaker 02: I mean some marriages do. [00:35:22] Speaker 02: There are religious marriages. [00:35:25] Speaker 02: Marriages can be consecrated in different ways. [00:35:29] Speaker 02: a great deal of legal significance. [00:35:30] Speaker 02: I'm not trying to fight the court on this. [00:35:32] Speaker 01: Of course, there are... Marriage relates... Politics relates to government. [00:35:39] Speaker 01: Marriage relates to government. [00:35:41] Speaker 01: Just illustrating the problem with the indeterminacy of you adopting the phrase political, because that's a very, very [00:35:50] Speaker 02: But it is the term that was in Bryant. [00:35:54] Speaker 02: It is the term that was in Lehman and Greer. [00:35:56] Speaker 02: It is the term that this court in Archdiocese of Washington versus Ramada continued to discuss at pages 324 and 325 as the kind of paradigmatic limitation [00:36:07] Speaker 02: on otherwise very safeguarded and protected First Amendment speech that is permissible in a non-public forum. [00:36:16] Speaker 02: So I think I caution the court about upending too much and over-reading Manskey because in the absence of Manskey, there'd be an unbroken wall of precedent on our side. [00:36:25] Speaker 02: And Mansky, I just don't think gets them to where they need to get, especially because the word political... That's an interesting argument. [00:36:33] Speaker 05: In the absence of Mansky, the President favors us? [00:36:38] Speaker 02: Well, naturally, Your Honor, but then let's talk about the scope of Mansky. [00:36:41] Speaker 02: Isn't Mansky controlling? [00:36:42] Speaker 02: No, that's exactly the point, Your Honor. [00:36:45] Speaker 02: Mansky is not controlling. [00:36:46] Speaker 02: No, Mansky is not irrelevant. [00:36:47] Speaker 05: Nansky is a product of a particular context and should be understood in that context. [00:37:02] Speaker 05: that if you attempt to regulate political content in a non-public form, the standard must be objective and reasonable so that it's comprehensible. [00:37:14] Speaker 05: That standard comes from Mansky and governs us. [00:37:18] Speaker 05: That's the precedent. [00:37:20] Speaker 02: That is absolutely the precedent. [00:37:22] Speaker 02: It also says that it's forgiving. [00:37:24] Speaker 02: It also says Lehman and Greer are still good law. [00:37:27] Speaker 02: And it says the mere existence of tough cases at the edges aren't a reason to invalidate it. [00:37:31] Speaker 02: Manskey said the combination of the word political with the haphazard guidance that the state had offered in its failed attempt to save the statute, reserved the statute unadministered. [00:37:44] Speaker 05: Well, I won't say the number. [00:37:45] Speaker 05: A number of hypotheticals that occurred to us, and your answers are certainly not clear to me as to how you define it. [00:37:56] Speaker 05: You keep saying, well, on the edge. [00:37:57] Speaker 05: I shouldn't be pushed to the edge. [00:37:59] Speaker 05: That's not a fair response from you. [00:38:03] Speaker 05: We're trying to figure out what you're talking about. [00:38:05] Speaker 05: And your answer is, well, it's not fair to give me on the edge hypotheticals. [00:38:09] Speaker 05: They're not on the edge. [00:38:11] Speaker 05: Colin Kaepernick is not on the edge. [00:38:14] Speaker 05: Suppose he's standing there with a Nike sneaker. [00:38:18] Speaker 05: Your instinct would suggest that was political and therefore excludable. [00:38:22] Speaker 02: I think you're underscoring why context matters so much in evaluating these images. [00:38:28] Speaker 02: I understood the last Colin Kaepernick hypothetical to be the one that specifically tied it to Black Lives Matter, which is a political cause. [00:38:36] Speaker 02: No, no, no. [00:38:37] Speaker 05: Colin mentioned the Nike, if I remember correctly. [00:38:42] Speaker 05: He works for Nike. [00:38:44] Speaker 05: And he's on a stamp with his Nike sneaker there. [00:38:46] Speaker 05: And he's even scowling. [00:38:47] Speaker 02: And has the message, I'm paraphrasing here, but sometimes to get anything, you have to give up everything. [00:38:57] Speaker 02: I think that that image does cross over because it's not just about selling the Nike. [00:39:04] Speaker 05: It's about invoking the... [00:39:09] Speaker 02: by Nike, that's exactly, that's what gets it through perhaps the commercial. [00:39:13] Speaker 02: But again, we're talking about a program that's really focused on you're selling a hamburger, you're selling a shoe, and you're not doing anything else. [00:39:21] Speaker 02: It's only to promote the sale of goods or sale of goods for commerce. [00:39:26] Speaker 05: that you're able to say he must be selling something else. [00:39:30] Speaker 05: His mere presence suggests more things than what can knock it out as political. [00:39:34] Speaker 01: I know. [00:39:35] Speaker 01: I'm resisting that. [00:39:36] Speaker 01: Or that he's identified that they can sell more sneakers to a certain demographic if they have an image of Colin Kaepernick kneeling. [00:39:48] Speaker 02: Just want to be clear here, or does it have the caption that was in there? [00:39:52] Speaker 01: By Nike. [00:39:53] Speaker 01: By Nike. [00:39:54] Speaker 02: No, but there was a specific image in the briefs that they included, a specific Cabernet cap that had a cup. [00:39:58] Speaker 02: No, this is our hypothetical. [00:39:59] Speaker 02: Go with our hypothetical. [00:40:00] Speaker 02: Oh, go with your hypothetical. [00:40:01] Speaker 02: So there's no text anymore. [00:40:03] Speaker 02: No, there is a text. [00:40:04] Speaker 02: It says, by Nike. [00:40:04] Speaker 02: But it says, by Nike. [00:40:06] Speaker 01: Thank you, Your Honor. [00:40:07] Speaker 01: By Nike. [00:40:07] Speaker 01: And the image is Colin Cabernet kneeling, holding a sneaker. [00:40:12] Speaker 02: Holding a sneaker. [00:40:13] Speaker 01: By Nike. [00:40:13] Speaker 02: But there's no text invoking some other message or other [00:40:18] Speaker 02: There may be a subtext, but I don't know. [00:40:21] Speaker 02: I'm curious to hear how you answer it. [00:40:23] Speaker 02: That sounds much closer to being outside the line, as long as there is not a message that's unconnected to promoting the sale of goods in commerce, like the text that appears on the image that they actually include in their brief. [00:40:41] Speaker 02: I really want to step back and emphasize that the mind run of cases are easy here. [00:40:46] Speaker 01: Let me ask you, earlier you responded to a question that I asked by saying there are a number of cases in which courts have used the term political and said that's sufficient. [00:41:01] Speaker 01: But in those cases, and I'm asking you to educate me on this one, on those cases, [00:41:08] Speaker 01: had the government adopted the broad reading of political that USPS has adopted here? [00:41:14] Speaker 01: The dictionary definition? [00:41:16] Speaker 01: Because that's a very broad reading. [00:41:18] Speaker 01: And I just don't know, I don't remember this case as well enough to know if it was as broad a reading as political as what you're advancing here. [00:41:25] Speaker 02: So in Bryant, it wasn't. [00:41:28] Speaker 02: And in Lehman and Greer, I don't remember there being explicit discussion. [00:41:32] Speaker 02: The regulation itself at issue in Lehman applied to, quote, political advertising. [00:41:36] Speaker 01: That's the concern I have here, is that you all have embraced the dictionary definition. [00:41:41] Speaker 01: And when you go to the dictionary definition, it's really broad. [00:41:44] Speaker 01: And it's got that as relating to government. [00:41:47] Speaker 02: And I actually think that's a point in our favor, Your Honor. [00:41:50] Speaker 02: It is intentionally broad. [00:41:52] Speaker 02: The Postal Service, if you read this, the December 2017 Federal Register notice that put this out, it said, we are adopting criteria that are intentionally very restrictive. [00:42:02] Speaker 02: When in doubt, keep it out. [00:42:04] Speaker 02: This is not something that's regulating conduct out in the world, like what people could wear to a polling place. [00:42:10] Speaker 02: This is, we are trying to set up a very narrowly focused program [00:42:15] Speaker 02: And they are intentionally keeping it broad. [00:42:17] Speaker 02: In Manskey, the Supreme Court thought you need a narrowing construction, because you couldn't possibly want the word political to apply to prevent somebody to wear a button that just said the word vote. [00:42:27] Speaker 02: That would be insane at a polling place. [00:42:29] Speaker 02: That wouldn't make any sense. [00:42:30] Speaker 02: But here, that wouldn't even survive review under the social and political criteria. [00:42:37] Speaker 02: I know I'm well past my time. [00:42:39] Speaker 04: What is the government's interest in maintaining a customized state program? [00:42:43] Speaker 02: Well, it was adopted originally as a revenue raising measure. [00:42:47] Speaker 02: That's how it was presented to the Postal Regulatory Commission for approval. [00:42:52] Speaker 02: Since the get-go, there has always been concern, candidly, it's discussed in the public notices, [00:42:58] Speaker 02: about having this turned into a broader forum for speech. [00:43:01] Speaker 02: They thought there were a couple of markets here that if they kept the bans sufficiently broad, ironically, they thought that they could avoid litigation. [00:43:10] Speaker 02: And that's very expressly discussed in the Federal Register notices. [00:43:15] Speaker 02: They were like, there are two targeted markets here. [00:43:17] Speaker 02: We're intentionally going to keep out everything else. [00:43:20] Speaker 02: We're not going to let nonprofit mailers in. [00:43:22] Speaker 02: Sure, we could make more money if nonprofits could have their messages too. [00:43:26] Speaker 02: We're not going to add a third criteria of eligible matter. [00:43:28] Speaker 02: Why? [00:43:29] Speaker 02: Because we don't want to start opening the door up where then we'll be accused of viewpoint discrimination. [00:43:34] Speaker 02: We want to be laser focused on selling people, on people who are just selling things and on folks who are having graduation parties and the like. [00:43:42] Speaker 04: So the problem is you're going to sell more stamps if you have the customized stamp program. [00:43:46] Speaker 04: People won't just go get a flag stamp if they could go get a stamp with a picture of their dog. [00:43:52] Speaker 02: That's right, Your Honor. [00:43:54] Speaker 02: In fact, they make a little more money because this is operated through a vendor. [00:43:59] Speaker 02: They get the money from selling the stamp, and then there's also some additional money that comes in from the vendor. [00:44:06] Speaker 02: Great. [00:44:07] Speaker 02: If the court has questions about the second argument, the mootness, I didn't want a moment to address any questions. [00:44:14] Speaker 01: We'll give you a couple minutes to address mootness, please. [00:44:17] Speaker 02: Okay. [00:44:18] Speaker 02: Thank you, Your Honor. [00:44:19] Speaker 02: I think that the district court here quite rightly looked to what relief had been prayed for in the complaint. [00:44:26] Speaker 02: And look and understood consistent with this court's precedents like a key a chop that when there's an old regime and a new regime and the new regulations come in, you don't continue to litigate about the scope of the old regime, the old regulations, you just decide the case under the new regulations and that's. [00:44:42] Speaker 02: exactly what this court did, for example, in the American Freedom of Defense Initiative case. [00:44:46] Speaker 02: It said, for reasons of precedent and practicality, we're going to look to the current regime. [00:44:51] Speaker 02: We're not going to bother. [00:44:53] Speaker 02: It wouldn't be appropriate, rather, to decide the question of whether the old regulations were proper. [00:45:01] Speaker 02: And if you go through their complaint at J830, that's their prayer for relief, you'll see every specific claim that they asked for has been mooted out. [00:45:10] Speaker 02: They wanted Zazzle out of the program, Zazzle's out of the program. [00:45:13] Speaker 02: They wanted the old guidelines to go away, the old guidelines have gone away. [00:45:16] Speaker 02: They even wanted a change to a very specific regulation that's otherwise tangential to this case, and that precise change was made. [00:45:24] Speaker 05: So at that point, the district court, I think, quite reasonably focused on the real source of their injury, which is... They also did not want to be excluded under an unreasonable, non-objective political standard. [00:45:36] Speaker 05: That's exactly the same as what the 2015 case was about. [00:45:41] Speaker 05: And our case law and the case fight [00:45:44] Speaker 05: from the Supreme Court written by Justice Thomas, same thing. [00:45:49] Speaker 05: And American freedom of defense says the same thing. [00:45:53] Speaker 05: It's the same matter in dispute, the fact that you changed [00:45:58] Speaker 05: The words of a regulation doesn't mood out the case. [00:46:02] Speaker 05: That dispute is still here. [00:46:04] Speaker 02: Absolutely, Your Honor, and I want to be very clear on that. [00:46:06] Speaker 02: The question is not should you decide what we've been talking about for the last half hour. [00:46:12] Speaker 02: It's just should you also decide whether they were separately discriminated against in 2015. [00:46:17] Speaker 02: On the basis of viewpoint. [00:46:19] Speaker 02: On the basis of viewpoint. [00:46:20] Speaker 02: And I think if you look through the complaint and if you look to precedent and practicality, the Supreme Court's defender for decision, this court's Akia Chuck. [00:46:29] Speaker 02: The answer is no, and the district court was correct. [00:46:32] Speaker 01: Thank you, Your Honors. [00:46:33] Speaker 01: Okay, thank you very much. [00:46:35] Speaker 01: Counsel will give you about two minutes for rebuttal. [00:46:44] Speaker 00: Thank you, Your Honor. [00:46:48] Speaker 00: After hearing USPS's response to the court's questions and their continuing refusal to engage in any of the core examples of political speech that have been put forward, both in our briefs and today, I think the self-evident conclusion is that there is no objective, discernible way to apply a content guideline against all political content. [00:47:11] Speaker 00: We're not talking about edge cases here, as the court said. [00:47:14] Speaker 00: Every wedding, which USPS in its brief admits is the type of image that should be printed. [00:47:18] Speaker 00: Every high school graduation, every Fourth of July barbecue, every Memorial Day sale, tickets to the musical Hamilton. [00:47:24] Speaker 00: All of these are on the face of the definition of political, should be excluded. [00:47:32] Speaker 00: As we talked about earlier, Your Honors, there's nothing about the cases that Manskey itself cites for the use of political in other contexts, like Cornelius and Lehman and Greer and Grimes versus Gates. [00:47:47] Speaker 00: Those all provide additional clues about what political actually means in those particular contexts. [00:47:54] Speaker 00: And that's completely different from the situation in the US Postal Service guidelines. [00:48:00] Speaker 00: USPS mentioned the Archdiocese case. [00:48:02] Speaker 00: Judge Wilkins addresses this exact point in his concurrence. [00:48:04] Speaker 00: And he distinguishes the issue in the Archdiocese case from Mansky because he says that there is a general ban on religious and political speech is different than the issue in Archdiocese. [00:48:17] Speaker 00: So there's no conflict between that precedent and what we're asking for here. [00:48:22] Speaker 00: One final note with respect to the mootness argument. [00:48:25] Speaker 00: I encourage the court to look at page JA30, the prayer for relief for the amended complaint, which expressly asks for injunctive relief to end ongoing viewpoint discrimination, which is exactly what plaintiffs are asking for today. [00:48:37] Speaker 00: The look at what page 30 of the Joint Appendix, your honor, which is the prayer for relief in the amended complaint, which asks for an exact relief. [00:48:47] Speaker 00: The plaintiffs are still asking for today. [00:48:48] Speaker 00: The district court, as USPS said, wanted to look to the world as it is now. [00:48:53] Speaker 00: rather than going back, but plaintiffs' mootness, the claim that USPS claims is moot, is addressing the world as it is now. [00:49:02] Speaker 00: Plaintiffs continue to be discriminated against as a result of this past viewpoint discrimination. [00:49:07] Speaker 05: Well, I mean, the point that they're making is the American Freedom case. [00:49:13] Speaker 05: There was a dissent over it, but Judge Ginsburg said in that case, you don't go back and worry about the prior rule. [00:49:21] Speaker 05: It's gone. [00:49:22] Speaker 05: The case is not moved. [00:49:23] Speaker 05: That is, the issue is still here, and we'll decide the issue, but we're not going to decide the details with respect to the first rule. [00:49:31] Speaker 05: What are you saying now? [00:49:35] Speaker 05: You're saying there is still viewpoint discrimination? [00:49:39] Speaker 00: Correct, Your Honor, because as of 2015, Zazzle printed many political stamps, including pro-gay marriage stamps, pro-military stamps. [00:49:48] Speaker 00: pro and con abortion stamps, and while preventing our clients from speaking, because ostensibly their design was political. [00:49:55] Speaker 05: And so your argument is that still ongoing? [00:49:58] Speaker 00: It is still ongoing, Your Honor. [00:49:59] Speaker 05: I see, because the reason they responded the way they did was to get on the immigrant precedent and say, oh, that's behind us. [00:50:07] Speaker 05: And I was trying to ask you initially, and you wanted to go back there, too. [00:50:12] Speaker 05: Your answer now seems to be, [00:50:15] Speaker 05: No, our challenge to 2018 encompasses all of what preceded it because there is still viewpoint discrimination, as you see it, and there is still a rule that rests on political content, which is not reasonable. [00:50:31] Speaker 05: Is that what you're saying? [00:50:33] Speaker 05: Because the American case that was written by Judge Gindman said, no, we're not going to fuss over the rule that's gone. [00:50:39] Speaker 05: We agree that the issue is still here, and we're going to go ahead and decide it, but you wanted to carve it up when I first asked the question. [00:50:49] Speaker 05: Your Honor, we want both our viewpoint discrimination claim and our... But does the viewpoint discrimination claim encompass in your amended complaint? [00:51:00] Speaker 00: Your Honor, we filed an amended complaint alleging just the viewpoint discrimination back in 2015. [00:51:05] Speaker 00: Then plaintiffs filed a supplemental complaint, which incorporated by reference the amended complaint. [00:51:11] Speaker 05: I mean, the one challenging the 2018 rule. [00:51:12] Speaker 00: That was in the supplemental complaint filed in 2018, which incorporated the earlier complaint. [00:51:17] Speaker 00: So at the end of the day, Your Honor, we want a judgment both on whether [00:51:22] Speaker 00: plaintiff suffered viewpoint discrimination and whether the current guidelines are unconstitutional. [00:51:28] Speaker 05: You're saying if the district court, if I'm anticipating you answered, the district court looks at this carefully except in our theory [00:51:37] Speaker 05: on mootness, evidence with respect to what's going on now would show that there is still this disparate treatment. [00:51:44] Speaker 05: Is that what you're saying? [00:51:46] Speaker 05: Whatever was going on in 2015, there's disparate treatment now, and it's viewpoint discrimination in your view. [00:51:54] Speaker 00: Yes, and the viewpoint discrimination that began in 2015 continues to this day, and therefore our initial viewpoint discrimination claim is not moot. [00:52:01] Speaker 05: No, you can't get there [00:52:03] Speaker 05: looking at Judge Dinsworth's opinion. [00:52:05] Speaker 05: You just can't get there. [00:52:06] Speaker 05: That case is moot because we're now looking at it under a new rule. [00:52:13] Speaker 05: What I'm trying to figure out is whether you think your amended complaint or supplemental complaint continues to pose the question regarding viewpoint discrimination. [00:52:24] Speaker 05: I think you said yes. [00:52:26] Speaker 00: The supplemental complaint is a facial challenge to the guidelines as written now. [00:52:31] Speaker 00: It does not include [00:52:33] Speaker 00: based on the submission under the current guidelines, it does not allege that under the current guidelines, USPS is engaging in new viewpoint discrimination. [00:52:42] Speaker 00: It does allege that the viewpoint discrimination that occurred in the past is still ongoing. [00:52:49] Speaker 05: So it's alleging there is still viewpoint discrimination. [00:52:54] Speaker 00: Yes, Your Honor. [00:52:56] Speaker 00: I think what we're concerned with here based on the district court's opinion is that the district court said that our viewpoint discrimination claim is moot because of the reason that we can't get our custom postage today is because of the current guidelines, because we have not complied with the current guidelines. [00:53:14] Speaker 00: And that's fundamentally different from the issue in AFDI, where the old guidelines and the new guidelines were the same, and plaintiffs, in that case, were seeking the same relief. [00:53:23] Speaker 00: So therefore, the court said, well, since it's the same relief and it's the same guidelines, we might as well look at the current guidelines. [00:53:28] Speaker 00: That makes perfect sense. [00:53:29] Speaker 00: Here, the guidelines were different in 2015 and today, and the injury to plaintiffs was different in 2015, viewpoint discrimination, and today. [00:53:38] Speaker 05: I mean, Justice Thomas' decision. [00:53:40] Speaker 05: I don't know. [00:53:41] Speaker 05: Maybe we're just going around in circles. [00:53:44] Speaker 05: It's not that simple. [00:53:45] Speaker 05: You don't have to have exactly the same regulation a second time. [00:53:48] Speaker 05: It has to be whether the new regulation is essentially doing the same harm that the old regulation was doing. [00:53:55] Speaker 05: I thought your claim was they may have changed the words. [00:53:58] Speaker 05: The harm that we alleged in 2015 is the harm that we still allege. [00:54:02] Speaker 05: The words don't change that. [00:54:04] Speaker 05: I thought that's what you were saying. [00:54:06] Speaker 00: Yes, Your Honor, I think just the important thing to remember is there are two separate theories. [00:54:10] Speaker 00: There's a viewpoint discrimination claim, which continues to this day, and there's a separate facial challenge to the current regulations. [00:54:17] Speaker 05: I understand that, but the alleged cause I thought were you're suffering from viewpoint discrimination and from a regulation that is facially unconstitutional. [00:54:27] Speaker 00: Right. [00:54:27] Speaker 00: We're suffering from viewpoint discrimination as a result of the denial of our personal postage under a regime which is no longer in place. [00:54:34] Speaker 00: And that's why the district court found that that claim was mis- But you were still being denied in the 2018. [00:54:39] Speaker 05: That's correct, Your Honor. [00:54:40] Speaker 05: Right. [00:54:40] Speaker 05: So while others are posting things that you think are political. [00:54:46] Speaker 00: Let me put it this way, Your Honor. [00:54:48] Speaker 00: If this court were to uphold the current guidelines as perfectly constitutional, then we would still have this [00:54:54] Speaker 00: this harm from past viewpoint discrimination that can still be remedied. [00:54:57] Speaker 00: And I would just leave the court with this thought on the mootness point. [00:55:01] Speaker 00: It really cannot be the case that by changing its regulations and mooting a claim like plaintiffs here, the government can grandfather in an institutionalized past viewpoint discrimination, which is effectively what it's trying to do. [00:55:15] Speaker 00: It's trying to say that no matter what viewpoint discrimination happened in the past, no matter how egregious, because we changed our regulations, [00:55:21] Speaker 00: And now you don't qualify under the new regulations, that claim is moot. [00:55:25] Speaker 00: We submit that that can't be the rule of law. [00:55:26] Speaker 00: Great. [00:55:27] Speaker 00: Thank you. [00:55:27] Speaker 00: Thank you very much. [00:55:28] Speaker 01: The case is submitted, but before we adjourn, it's my understanding that we have a number of visitors today from a lot of places, but also from the University of Richmond. [00:55:37] Speaker 01: Am I correct on that? [00:55:38] Speaker 01: And that you got up early this morning, took the train, [00:55:42] Speaker 01: got rained on walking from Union Station here. [00:55:45] Speaker 01: We welcome you here. [00:55:46] Speaker 01: Let me just say this. [00:55:48] Speaker 01: The two cases that you've seen argued involve significant matters regarding the rights of detainees at Guantanamo Bay regarding the First Amendment to the Constitution, and you have seen them argued vigorously by excellent counsel. [00:56:04] Speaker 01: I hope you will notice that they argued passionately, they were well prepared, and they argued civilly. [00:56:10] Speaker 01: and with respect to one another. [00:56:12] Speaker 01: And may I suggest to all of us that that's a good role model for us as we march forward in our republic at this time in the future. [00:56:21] Speaker 01: Be well prepared, be passionate, but be respectful to be civil the way these excellent council have been. [00:56:27] Speaker 01: So with that, we'll adjourn. [00:56:29] Speaker 01: Thank you.