*49Benjamin Louis Rudofsky, Daniel S. Guarnera, Geoffrey M. Klineberg,
Kenneth Chris Todd, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington,
DC, for Plaintiffs., Jason Lee, Rebecca Michelle Kopplin, United States Department
of Justice, Washington, DC, for Defendant., CHRISTOPHER R. COOPER, United States
District Judge *50The United States Postal Service ("USPS") allows customers to
design and print customized postage stamps. We've all seen them: personalized postage
for a wedding invitation featuring a photograph of the happy couple, a birth announcement
featuring an image of the newborn, or an upcoming sale featuring the company's
logo. Artist Anatol Zukerman wanted to create his own personalized postage to promote
an upcoming gallery exhibition and submitted a proposed design to a third-party
vendor that printed customized postage on USPS's behalf. The vendor rejected Zukerman's
design as too "partisan or political" under USPS's then-extant guidelines: aimed
at critiquing the Supreme Court's Citizens United decision, the design cautioned
that "Democracy is not for sale" and featured the image of a snake-marked with the
words "Citizens United" and shaped like a dollar sign-strangling Uncle Sam. Zukerman
and the gallery sued, alleging that USPS, through the vendor, had violated the First
Amendment. The Court denied a previous motion to dismiss the suit for lack of jurisdiction,
and the parties proceeded to discovery. In the meantime, though, USPS promulgated
new regulations to govern the customized postage program, redefining and narrowing
somewhat the type of content that is permitted. Again, Zukerman submitted proposed
designs to a vendor; again, those designs-substantially similar to the previous
one-were rejected; and again, Zukerman and the gallery sued, supplementing their
original claims with a facial First Amendment challenge to the new regulations.,
USPS launched its customized postage program in 2004 to allow customers to print
at home "evidence of prepayment of postage" using their own images. 39 C.F.R. §
501.1(a). These products are distinct from U.S. postal stamps, which are produced
and controlled by USPS. See 18 U.S.C. § 8. Consumers may only use authorized third-party
vendors to create customized postage. Since the program's inception, it has been
"the Postal Service's declared intent not to allow its Customized Postage program
to become a public forum for dissemination, debate, or discussion of public issues."
Customized Postage, 71 Fed. Reg. 12,718 -01, 12,719 (Mar. 13, 2006). Rather, the
program is designed to promote USPS's commercial objectives as set forth in 39
U.S.C. § 3622(b)(5), which directs the Postal Regulatory Commission *51"[t]o assure
adequate revenues, including retained earnings, [and] to maintain financial stability."
See Request of the U.S. Postal Service to Add Postal Products to the Mail Classification
Schedule, Attachment D (Statement of Supporting Justification for Customized Postage)
at 1, Modification of Mail Classification Schedule Product Lists in Response to
Order No. 154, No. MC2009-19 (Postal Regulatory Comm'n Mar. 10, 2009) (hereinafter
"USPS Statement of Support, Attachment D")., For most of the program's history,
USPS restricted the permissible content of customized postage by requiring authorized
vendors to abide by Standardized Image Guidelines incorporated in the vendors'
authorization agreements. See Proposed Rule, Revisions to the Requirements for Customized
Postage Products, 82 Fed. Reg. 1,294 -01, 1,294 (Jan. 5, 2017). The Guidelines attached
to the 2009 agreement of one such vendor, Zazzle, Inc., directed the vendor not
to accept, among other categories, "[c]ontent or images actively advocating or disparaging
the religious, political, or legal agenda of any person or entity, including but
not limited to content or images designed to influence a specific piece of legislation"
or "[p]artisan or political content or images, including but not limited to content
or images supporting or opposing election of any candidate(s) to any federal/state/local
governmental office or supporting or opposing any referendum conducted by federal/state/local
government." Standardized Image Guidelines, Exhibit A to Customized Postage Amended
and Restated Authorization between USPS and Zazzle, Inc. (May 7, 2009), ECF No.
43-7, at 9 (Filed Under Seal).1 In interpreting and applying these Guidelines, Zazzle
imposed additional restrictions, which prohibited "the printing of any postage with
content that is primarily partisan or political in nature" or that "[a]dvocate[s]
or protest[s] any social, political, legal, moral or religious agenda in a way that
may appear controversial to others." Am. Compl. ("FAC"), ECF No. 17-2, ¶¶ 15, 23.,
In January 2017, USPS noticed in the Federal Register a proposed rule that would
give "regulatory form" to these content restrictions and remedy any "inconsistency
of publicly available provider content guidelines" that "caused confusion over Customized
Postage products." 82 Fed. Reg. at 1,294. USPS finalized the rule in December 2017.
Final Rule, Revisions to the Requirements for Customized Postage Products, 82 Fed.
Reg. 60,117 -01, 60,117-18 (Dec. 19, 2017). The final rule emphasized that although
customized postage is a specialized form of evidence of prepayment of postage, there
is a possibility that consumers will believe that the images originated with the
Postal Service. Accordingly, USPS concluded that it "must limit eligible private
content to protect its own business and brand interests against dilution, false
attribution, appearances of endorsement, and other potential impacts." Id. at 60,117.
The new Regulations thus limit the type of content allowed on customized postage
to just two categories: "commercial" and "social" content. 39 C.F.R. § 501.21(b)(1).,
*52They also require that images be suitable for all ages. Id. § 501.21(b)(2). Finally,
the Regulations "exclud[e] entire categories of content," 82 Fed. Reg. at 60,118,
including all "political, religious, violent or sexual content"; "[a]ny depiction
of controlled substances"; and "[a]ny non-incidental depiction of alcohol, tobacco,
gambling, or firearms," 39 C.F.R. § 501.21(b)(2). Thus, under the Regulations, which
went into effect in May 2018, the "default presumption" is that images are in eligible
for printing. 82 Fed. Reg. at 60,118., In July 2013, an art gallery owned by Charles
Krause Reporting, LLC, displayed a drawing by Mr. Zukerman depicting Uncle Sam being
strangled by a snake marked "Citizens United." FAC ¶ 17. To promote an exhibition
titled "Truth to Power: Anatol Zukerman's 'Responsible' Art," planned for February
2016, the gallery suggested that Zukerman create a custom postage design using the
drawing. Id. ¶¶ 18-19. In early 2015, Zukerman submitted a proposed design to Zazzle,
Inc., an authorized vendor under the customized postage program. Id. ¶¶ 13, 20.
Zazzle rejected the design, saying that applicable content guidelines prohibited
"printing [ ] any postage with content that is primarily partisan or political in
nature." Id. ¶ 23 (quoting Apr. 27, 2015 Email from Zazzle Support to A. Zukerman,
Exhibit M to FAC at 91)., In December 2016, the Court denied USPS's motion to dismiss
the First Amended Complaint for lack of jurisdiction. See Memorandum Opinion, ECF
No. 23. The parties proceeded to discovery. In July 2018, two weeks after Plaintiffs
moved for summary judgment, they sought leave to file a supplemental complaint setting
forth a facial First Amendment challenge to the 2018 Regulations. See Motion for
Leave to File Suppl. Compl., ECF No. 48. The Court granted this request. See July
18, 2018 Minute Order., Plaintiffs' Supplemental Complaint alleges that the Regulations
violate the First Amendment by barring "political" designs. Plaintiffs aver that
they placed two orders for customized postage with Stamps.com, another authorized
vendor.2 The orders were for a "substantively identical" design to that previously
submitted to Zazzle in April 2015. Suppl. Compl., ECF No. 52, ¶¶ 5, 6, 8. But in
addition to the image of the dollar-sign snake strangling Uncle Sam, the design
features the text "Democracy is Not for Sale, But This Artwork Is!"-presumably included
to situate the design within USPS's allowance for commercial content-and the name
"Charles Krause Reporting Fine Art." Id. ¶ 6. Both orders were rejected because
they "did not meet the 'content guidelines.' " Id. ¶¶ 7, 9., When evaluating a
motion to dismiss, the Court must "treat the complaint's factual allegations as
true and must grant [the] plaintiff 'the benefit of all inferences that can be
derived from the facts alleged.' " Sparrow v. United Air Lines, Inc., 216 F.3d
1111, 1113 (D.C. Cir. 2000) (citations omitted); Am. Nat'l Ins. Co. v. FDIC, 642
F.3d 1137, 1139 (D.C. Cir. 2011) (citation omitted). The Court need not accept the
plaintiff's legal conclusions, however. Browning v. Clinton, 292 F.3d 235, 242
(D.C. Cir. 2002). USPS has moved to dismiss the complaint for lack of jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a
claim under Rule 12(b)(6)., "A motion to dismiss for mootness is properly brought
under Rule 12(b)(1) because mootness itself deprives the court of jurisdiction."
Indian River Cty. v. Rogoff, 254 F. Supp. 3d 15, 18 (D.D.C. 2017). Unlike some jurisdictional
questions such as standing or ripeness, the party asserting mootness-here, USPS-bears
the "initial 'heavy burden' " of establishing that the case is moot. Honeywell
Int'l, Inc. v. NRC, 628 F.3d 568, 576 (D.C. Cir. 2010) (citation omitted). This
burden remains when the defendant contends that its voluntary action deprives the
court of jurisdiction. PETA v. U.S. Dep't of Agric., 918 F.3d 151, 157 (D.C. Cir.
2019) (quoting Friends of the Earth, Inc. v. Laidlaw Envt'l Servs., Inc., 528 U.S.
167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) )., To survive a 12(b)(6) motion,
it is the plaintiff who bears the (relatively light) burden of showing that the
complaint contains sufficient facts which, if accepted as true, state a plausible
claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007) )., There are two central issues before the Court. First,
whether it has jurisdiction to consider Plaintiffs' claims based on the Standardized
Image Guidelines or whether the superseding Regulations render the original claims
moot. And second, whether Plaintiffs' Supplemental Complaint states a plausible
First Amendment challenge to the 2018 Regulations. For the reasons that follow,
the Court concludes that Plaintiffs' challenges to the Guidelines are moot and
will therefore dismiss the claims originally set forth in Plaintiffs' First Amended
Complaint for lack of jurisdiction. And even if it did have jurisdiction over those
claims, both precedent and practicality counsel against passing on the constitutionality
of a superseded enforcement regime., "Federal courts lack jurisdiction to decide
moot cases because their constitutional authority extends only to actual cases or
controversies." Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1204 (D.C. Cir.
2013) (quoting Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373,
78 L.Ed.2d 58 (1983) ). "A case becomes moot-and therefore no longer a 'Case'
or 'Controversy' for purposes of Article III-'when the issues presented are no
longer 'live' or the parties lack a legally cognizable interest in the outcome.'
" Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013)
(quoting Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)
(per curiam))., Under the voluntary-cessation exception to mootness, when "the intervening
event is of the defendant's own doing," the Court "examine[s] whether the defendant's
voluntary cessation of the challenged action truly renders the case moot." Am. Freedom
Def. Initiative v. Wash. Metro. Area Transit Auth. ("AFDI"), 901 F.3d 356, 362 (D.C.
Cir. 2018), pet. for cert. filed, No. 18-1000, --- U.S. ----, --- S.Ct. ----, ---
L.Ed.2d ----, 2019 WL 400746 (U.S. June 3, 2019) (quoting IRI, 685 F.3d at 1074
). This occurs when "(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." Id. (quoting Nat'l Black Police Ass'n v.
District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997) ). Plaintiffs argue that
their original claims "remain alive" under this exception because the alleged violation
and their attendant injuries are "ongoing" insofar as " 'political' designs that
Zazzle printed for others on customized postage products are in circulation today
even as Plaintiffs remain silenced." Opp'n at 10-11. But any such residual effect
of the prior Guidelines is not grounds for applying the voluntary-cessation exception
here., Not so here. Although the Regulations and the Guidelines are not as starkly
different as the government would have the Court believe, the Court can discern
key distinctions between the two regimes. The Regulations' prohibition of everything
but commercial and social content is logically more restrictive than the Guidelines'
exclusion of content that "actively advocat[es] or disparag[es] the [ ] political
[ ] agenda of any person or entity" or "[p]artisan or political content" that "support[s]
or oppos[es] election of any candidate" or "referendum." Standardized Image Guidelines
at 9. In other words, under the current program, no political content is permitted,
regardless of whether that content is neutral or takes a stance on a particular
issue; under the prior program, at least some political content would have been
permitted provided it was non-partisan and did not advance a particular "agenda."
Hypothetically, the Court can envision certain calls for political or civic participation-e.g.,
"Register to Vote" or "Think Global, Act Local"-that would not be permitted *56under
the Regulations because they are neither commercial nor social, but could have been
under the Guidelines because they are both general and non-partisan., Relatedly,
the Regulations represent a more objective, blanket ban while the Guidelines allowed
for considerable subjective line-drawing. The Regulations simply ban all political
content without exception; the Guidelines, by contrast, appear to have allowed for
some political content so long as it was neutral. In addition, the Regulations do
not allow vendors to impose additional eligibility criteria, while vendors under
the Guidelines could, as demonstrated by Zazzle's interpretive gloss barring "primarily
partisan or political" designs or designs advocating for or against a political
agenda "in a way that may appear controversial to others." FAC ¶¶ 15, 23. Figuring
out whether a particular design is primarily partisan, would be controversial to
others, or advocates for or against specific legislation demands a level of subjectivity
not required by the Regulations. Therefore, the Court concludes that although there
is some overlap between the Regulations and the Guidelines, USPS did not simply
"repeal[ ] the challenged [program] and replac[e] it with one that differs only
in some insignificant respect." AFDI, 901 F.3d at 362 (quoting Ne. Fla. Chapter
of Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662, 113
S.Ct. 2297, 124 L.Ed.2d 586 (1993) ). The differences are meaningful., *57Moving
to the second requirement of the voluntary-cessation exception, Plaintiffs argue
that they continue to suffer redressable harm as a result of the Standardized Image
Guidelines because some previously approved politically themed postage remain in
circulation. They say that unlike in the cases cited by USPS, which "merely challeng[ed]
the legality of a since-repealed rule," Plaintiffs continue to "seek[ ] tangible
relief" based on their original claims. Opp'n at 17. Plaintiffs assert that the
Court "can provide relief for the injuries [they] sustained from USPS's pre-May
2018 customized postage stamp program" by doing one of two things to, in essence,
level the speech playing field: order USPS "[1] to print Plaintiffs' desired postage
or [2] to decertify improperly printed political postage." Id. at 11., At the outset,
Plaintiffs did not include decertification or recall as requested remedies in their
complaints. "[T]he scope of a federal court's jurisdiction to resolve a case or
controversy is defined by the affirmative claims to relief sought in the complaint[.]"
Akiachak Native Cmty., 827 F.3d at 106. Therefore, "to determine whether [a] case
ha[s] become moot," a court "look[s] only to the 'relief requested by' " the plaintiff.
Id. (quoting Nat'l Football League Players Ass'n v. Pro Football, Inc., 56 F.3d
1525, 1529 (D.C. Cir. 1995), vacated in part on other grounds, 79 F.3d 1215 (D.C.
Cir. 1996) ); see also Diffenderfer v. Cent. Baptist Church of Miami, Fla., Inc.,
404 U.S. 412, 414-15, 92 S.Ct. 574, 30 L.Ed.2d 567 (1972) (finding challenge to
repealed statute providing tax exemption for church property moot where no court
could grant "[t]he only relief sought in the complaint" (emphasis added)); Love
v. Griffith, 266 U.S. 32, 34, 45 S.Ct. 12, 69 L.Ed. 157 (1924) (finding challenge
to rule prohibiting African Americans from voting in past primary election moot
because "bill was for an injunction that could not be granted at that time" and
"[t]here was no constitutional obligation to extend the remedy *58beyond what was
prayed"). Plaintiffs' failure to request decertification or recall in their complaints
is grounds to reject this aspect of their response to USPS's mootness argument.,
But even if Plaintiffs had requested this form of relief, the fact that there remain
vestiges of the previous enforcement regime does not mean that USPS has failed to
close the previous forum or, relatedly, that Plaintiffs' injury is ongoing. The
Court has been unable to find, and Plaintiffs have not provided, any case law suggesting
that the government must eradicate all private speech in order to effectively close
a particular forum. As Plaintiffs recognize, and as discussed more fully below,
the government unquestionably has the power to convert a designated public forum
(assuming arguendo that the customized postage program under the Guidelines was
one) into a nonpublic forum. Opp'n at 16 (citing Archdiocese of Wash. v. Wash.
Metro. Area Transit Auth., 897 F.3d 314, 323 (D.C. Cir. 2018) ). But what Plaintiffs
miss is that the thrust of the forum inquiry turns on the government's intent ,
not its total effectiveness in enforcing a policy. See Ridley v. Mass. Bay Trans.
Auth., 390 F.3d 65, 78 (1st Cir. 2004) ("One or more instances of erratic enforcement
of a policy does not itself defeat the government's intent not to create a public
forum."). For example, as counsel for USPS highlighted at the hearing, in Hodge
v. Talkin, 799 F.3d 1145 (D.C. Cir. 2015), the D.C. Circuit found it "of no moment"
that the Supreme Court police had, "in certain situations," declined to enforce
an assembly and display prohibition on the Supreme Court plaza. Id. at 1162. The
plaintiff in that case complained that while he was arrested after displaying a
political sign on the plaza, scores of others were not arrested even though they
gathered on the Supreme Court steps to engage in a particularly fervent protest.
Id. According to the D.C. Circuit, "[t]he fact that the protesters made their way
onto the plaza for a quarter of an hour did not somehow transform the plaza into
a public forum for all time. Rather, the plaza was then, and remains now, a nonpublic
forum." Id. Likewise here. Because the focus is on the government's intent rather
than its effectiveness, and without any case law to the contrary, the Court declines
to find that USPS is required to completely eradicate every trace of private speech
when closing a forum., Moreover, Plaintiffs' request for decertification or recall
strikes the Court as inconsistent with basic First Amendment principles. "The preferred
First Amendment remedy" is one of "more speech, not enforced silence." Brown v.
Hartlage, 456 U.S. 45, 61, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982) (quoting Whitney
v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis,
J., concurring)). Plaintiffs' request-to silence others because Plaintiffs claim
they were unfairly silenced-is antithetical to this bedrock value.5, *59AFDI, 901
F.3d at 363. For this reason, "the Supreme Court routinely considers agency regulations
that [ ] superseded the originally challenged regulation during the course of the
litigation." Id. (citing Cal. Bankers Ass'n v. Shultz, 416 U.S. 21, 53, 94 S.Ct.
1494, 39 L.Ed.2d 812 (1974) ; Thorpe v. Hous. Auth. of Durham, 393 U.S. 268, 281-82,
89 S.Ct. 518, 21 L.Ed.2d 474 (1969) ). Following this practice, the AFDI court concluded
that even though the plaintiff's challenge to WMATA's temporary moratorium was
not moot for the reasons discussed above, it would only pass on the constitutionality
of the operative guidelines that had replaced the moratorium. Id. The same reasoning
applies here. The Court "see[s] no advantage to either of the parties in [ ] ruling
upon a policy that has no continuing bite." Id. The Court will therefore turn next
to whether Plaintiffs have plausibly alleged that the 2018 Regulations governing
the customized postage program violate the Free Speech Clause of the First Amendment.,
Courts use a "forum based approach" to assess private-speech restrictions on government
property. Minn. Voters All. v. Mansky, --- U.S. ----, 138 S. Ct. 1876, 1885, 201
L.Ed.2d 201 (2018) (quoting Int'l Soc. for Krishna Consciousness, Inc. v. Lee,
505 U.S. 672, 678, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992) ). Under the forum doctrine,
the Court first determines the type of forum at issue, which in turn dictates the
level of scrutiny that applies to the challenged restriction. Perry Educ. Ass'n
v. Perry Local Educators' Ass'n, 460 U.S. 37, 44, 103 S.Ct. 948, 74 L.Ed.2d 794
(1983) ("The existence of a right of access to public property and the standard
by which limitations upon such a right must be evaluated differ depending on the
character of the property at issue."). There are "three types of fora: the traditional
public forum, the public forum created by government designation, and the nonpublic
forum." Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802, 105
S.Ct. 3439, 87 L.Ed.2d 567 (1985). Traditional public fora-like sidewalks and parks-are
not implicated here. Designated public fora are those places which the government
has "opened for use by the public as a place for expressive activity." Perry, 460
U.S. at 45, 103 S.Ct. 948. Nonpublic fora are those places which are "not by tradition
or designation a public forum" and are not "held open to the public for general
debate."6 Archdiocese, 897 F.3d at 322 (citing Perry, 460 U.S. at 46, 103 S.Ct.
948 ). In this last kind of forum, the government limits use to certain groups and/or
discussion to certain subjects. Pleasant Grove City, Utah v. Summum, 555 U.S. 460,
470, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009)., The first question for the Court,
then, is whether the customized postage program qualifies as a designated public
forum or a nonpublic forum. As explained above, "[t]he 'touchstone' for determining
whether the Government has designated a forum public is its 'intent in establishing
and maintaining' that forum." Bryant v. Gates, 532 F.3d 888, 895 (D.C. Cir. 2008)
(quoting Stewart v. D.C. Armory Bd., 863 F.2d 1013, 1016 (D.C. Cir. 1988) ). The
Supreme Court has long held that the "government does not create a public forum
by inaction or by permitting limited discourse, but only by intentionally opening
a nontraditional forum for public discourse." Cornelius, 473 U.S. at 802, 105 S.Ct.
3439 (citing Perry, 460 U.S. at 46, 103 S.Ct. 948 ). "To ascertain the Government's
intent," the Court looks "not only at the Government's 'stated purpose' but also
at 'objective indicia of intent,' such as 'the nature of the property, its compatibility
with expressive activity, and the consistent policy and practice of the government.'
" Bryant, 532 F.3d at 896 (emphasis omitted) (quoting Stewart, 863 F.2d at 1016-17
)., Starting with the stated purpose. Since the customized postage program's inception
as a pilot program, it has been "the Postal Service's declared intent not to allow
its Customized Postage program to become a public forum for dissemination, debate,
or discussion of public issues." 71 Fed. Reg. at 12,719. The 2017 final rule hews
to this stated intent. For example, commenters asked USPS to create a category of
permissible content for nonprofits in addition to the social and commercial categories.
USPS rejected this request to avoid any "impermissible viewpoint discrimination,
which would endanger the entire program." 82 Fed. Reg. at 60,117. Referencing its
limits on eligible private content, USPS explained that the "First Amendment requires
that such content- or speaker-based restrictions be reasonable and viewpoint-neutral."
Id. (citing Matal v. Tam, --- U.S. ----, 137 S. Ct. 1744, 1763, 198 L.Ed.2d 366
(2017) ). As explained above, this is the standard of review for non public fora.
And as USPS points out, the cited portion of Matal concerns "cases in which a unit
of government creates a limited public forum"-again, which is "analyzed the same
way" as nonpublic forums7 -"for private speech." 137 S. Ct. at 1763 (citing Good
News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07, 121 S.Ct. 2093, 150 L.Ed.2d
151 (2001) ; Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 831,
115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) ; Lamb's Chapel v. Center Moriches Union
Free School Dist., 508 U.S. 384, 392-93, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993),
all cases in which the Supreme Court concluded that the forum in question was not
subject to strict scrutiny as a traditional or designated public forum). By referencing
the legal standard applicable to nonpublic fora and citing case law applying that
standard, USPS clearly evinced an intent to create a nonpublic forum in the 2017
final rule., Other objective indicia likewise demonstrate that USPS intended the
customized postage program to be a nonpublic forum. The Supreme Court has explained
it will not "infer that the government intended to create a public forum when the
nature of the property is inconsistent with expressive activity." Cornelius, 473
U.S. at 803, 105 S.Ct. 3439. This inquiry, like the last, takes into account the
government's purpose in establishing the forum in the first place. As relevant
here, courts have concluded that a government's use of its property "as a commercial
enterprise [is] inconsistent with an intent to designate the [property] as a public
forum." Id. at 804, 105 S.Ct. 3439 (describing Lehman v. City of Shaker Heights,
418 U.S. 298, 299-300, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) ); see also Ridley,
390 F.3d at 79 (distinguishing policies intended to "generate revenue" from those
intended to "facilitate expression"). This is because when the government is engaged
in a commercial enterprise, it can consider and limit the type of content that could
jeopardize revenue or alienate potential customers. See, e.g., Ridley, 390 F.3d
at 95 ; Uptown Pawn & Jewelry, Inc. v. City of Hollywood, 337 F.3d 1275, 1279 (11th
Cir. 2003) ("[T]he City is doing what this circuit has authorized in a nonpublic
forum: making distinctions based upon content in order to preserve the bus benches
for the intended use of generating revenue"). USPS launched the customized postage
program in order to generate revenue by receiving both the face value of the postage
as well as annual authorization fees from third-party stamp vendors. USPS Statement
of Support, Attachment D at 1 (citing 39 U.S.C. § 3622(b)(5) ). Plaintiffs' conclusory
assertion that "[c]ustomized postage is, by nature, fully compatible with creative
expression," Opp'n at 20, is no response to the case law permitting a government
agency engaged in a commercial enterprise to reasonably restrict content that would
jeopardize that enterprise. Accordingly, this factor too weighs in favor of concluding
that USPS did not intend to create a designated public forum., The next objective
indicator of government intent is "the consistent policy and practice of the government."
Bryant, 532 F.3d at 896 (emphasis omitted). This factor also cuts against finding
an intent to create a public forum. The 2018 Regulations restrict the customized
stamp program to just two categories of permissible content: commercial and social
content that is suitable for all ages. 82 Fed. Reg. at 60,118. And they establish
a "default presumption" of "ineligibility" for all other content, including the
non-exhaustive list provided: political, religious, violent or sexual content; non-incidental
depictions of firearms and alcohol; and depictions of controlled substances. Id.;
see also 39 C.F.R. § 501.21(b)(2). In other words, the customized postage program
permits only extremely "selective access," which supports the conclusion that USPS
did not intend to create a public forum. Cornelius, 473 U.S. at 805, 105 S.Ct. 3439
; see also Hopper, 241 F.3d at 1078 ("In general, the more restrictive the criteria
for admission and the more administrative control over access, the less likely a
forum will be deemed public.")., Other courts evaluating intent have also considered
whether the government *62has strengthened over time the limitations on participation
in a particular regulatory scheme. For example, in Ridley, the First Circuit reasoned
that in light of "the litany of limitations on advertisements from the inception
of its program, and the strengthening of those limitations in 2003 , the [public
transit authority] has, at least by 2003, through its policy expressed an intent
not to open its advertising space to all persons and organizations for public dissemination
of their views on all topics without limitation." 390 F.3d at 78 (first emphasis
added). So, too, here. As discussed previously, USPS has strengthened these limitations
on eligible content by more sharply proscribing what can be printed and eliminating
much of the subjective line-drawing that characterized the Guidelines. Even assuming
that the enforcement regime in existence before the Regulations constituted a designated
public forum-an issue the Court need not decide-"the government 'is not required
to indefinitely retain the open character of the facility.' " Cornelius, 473 U.S.
at 802, 105 S.Ct. 3439 (quoting Perry, 460 U.S. at 46, 103 S.Ct. 948 ); see also
Archdiocese, 897 F.3d at 323 (A government "may instead choose to convert a designated
public forum back into a non-public forum because 'the government retains the choice'
regarding the status of its forum." (quoting Ark. Educ. Television Comm'n v. Forbes,
523 U.S. 666, 680, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998) )). Therefore, USPS was
well entitled to tighten its control over the customized postage program and transition
the program from a public to a nonpublic forum., Plaintiffs counter that this final
objective indicator turns on whether the government "consistently enforces the restrictions
on the use of the forum that it adopted." Opp'n at 20 (emphasis added) (quoting
Hopper, 241 F.3d at 1075 ). They return to the lingering effects of the previous
regime in arguing that because "USPS continues to allow [circulation of] 'political'
customized postage designs that were approved when the forum was public," the current
forum remains public. Id. at 21. Yet Plaintiffs fail to cite any case law for the
proposition that courts should consider rescinded versions of a program in assessing
the consistency of a government's enforcement of a current version under challenge.
In fact, the cases suggest that the inquiry is limited to the existing program.
See Hopper, 241 F.3d at 1070-74 (focusing on the consistency of the government's
practice going forward after adopting the program at issue, not looking to a prior
version); Am. Freedom Def. Initiative v. WMATA, 245 F. Supp. 3d 205, 213 (D.D.C.
2017), aff'd in part, rev'd in part, AFDI, 901 F.3d 356 (D.C. Cir. 2018) ("[H]aving
established that WMATA was permitted to change its guidelines, the relevant inquiry
is not whether WMATA allowed other controversial messages before the May 28 Moratorium,
but whether WMATA has consistently enforced the new guidelines since they were enacted.").
As Plaintiffs have not claimed that the Postal Service has inconsistently enforced
the 2018 Regulations, this factor too supports a finding that USPS intended to create
a nonpublic forum.8