Even if the Trump administration’s litigation strategy avoids the Elections Clause, the new postal regulations do not necessarily survive the rest of the Constitution. In particular, if the federal government is not regulating congressional elections — but is merely regulating the mail — the First Amendment’s guarantee of free speech becomes a serious problem.
To understand why, consider a hypothetical postal restriction that prohibits the mailing of political dissent during time of war. As Judge Learned Hand argued over one hundred years ago in Masses Publishing Co. v. Patten, postal restrictions like these violate the First Amendment. People enjoy a right to speak out about their government, whether on soap boxes or through the mails. Although Hand’s decision in that case was reversed, and the country’s lamentable “red scare” and associated political persecutions continued for decades to come, today we moderns recognize Hand’s position as the correct one. Justice Oliver Wendell Holmes, Jr. said in dissent in 1921 and Justice William O. Douglas repeated for a Court majority in 1965 that “the use of the mails is almost as much a part of free speech as the right to use our tongues.”
Today it is understood that the First Amendment generally bars the Post Office from using mail’s communicative content to refuse, delay, or otherwise restrict delivery. Unless the content of speech is unprotected (e.g., false commercial speech, fraud, soliciting crimes, obscenity, child pornography), it cannot be rejected by the Post Office. The US Supreme Court held in Police Dept. of City of Chicago v. Mosley (1972) that “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” In Barr v. American Association of Political Consultants (2020), Justice Brett Kavanaugh quoted that line before concluding that “content-based laws are subject to strict scrutiny,” while “content-neutral laws are subject to a lower level of scrutiny.”
Postal restrictions on cremated remains and replica explosives are legitimate under this analysis because they are plainly content-neutral. So are restrictions on speech that falls outside the First Amendment’s protection altogether. Ballot speech does not fall into any recognized unprotected category. And whether President Trump’s postal restrictions on State electoral ballots are content-neutral is not so clear. Indeed, a strong argument can be made under current Court precedents that singling out mail because it conveys an election ballot is content-based. As Justice Clarence Thomas explained for the Court in Reed v. Town of Gilbert, “Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” The new postal regulations do just that; their application depends on an election being discussed and the names of candidates being expressed….
