The Trump administration argued to both the First Circuit Court of Appeals and Supreme Court in recent days that its new postal restrictions on election ballots are not electoral regulations at all. They are packaging regulations akin to those placed on “cremated remains and replica explosives.” The authority of the US Postal Service, President Donald Trump’s team claims, “plainly encompasses the power to promulgate rules like this that govern envelope design and addressee information.”

The Trump administration’s argument is designed to avoid impaling these new regulations on the Elections Clause in Article I, § 4 of the US Constitution, which delegates the authority to regulate the manner of federal congressional elections to the States (through their legislatures), and affords Congress (not the President) the power to “alter such Regulations.” If Trump is trying to regulate elections he loses. If he is simply regulating ballots like any other piece of mail, he believes he has a chance to win.

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.

Of course, an exception to all of this exists for so-called “government speech.” Governmental messages do not fall under the First Amendment’s protections at all, meaning that governmental speakers can freely choose their own content and exercise their own editorial control. Specialty license plates for cars provide one example, and government-printed ballots likely provide another, at least in part, though the Supreme Court has never expressly said so.

But even if the to-be-mailed ballots are government speech, they are the respective States’ speech. Because the Post Office feigns electoral innocence and claims its new rules merely regulate mailed matter, the government-speech exception cannot save it. The mailings, after all, are not the Post Office’s speech, and the federal government is not by its own admission running the elections. Moreover, even though the ballots are State government speech, and even though a State need not engage in ballot speech at all, the intended recipients of the mail in question are not governmental speakers and have a right under the First Amendment to receive communications that a State desires to send. To the extent the Post Office uses content-based restrictions to interfere with communications between State governments and their citizens, the First Amendment fully applies. If it were any other way the Post Office could prohibit States from sending information about any disfavored (though otherwise protected) topic (like communist propaganda) to their citizens. It can’t. And Trump’s postal policy is no different.