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A Minnesota designer of satirical t-shirts has filed suit [PDF] against the National Security Agency and the Department of Homeland Security for their attempts to take down his merchandise. Federal agencies have a reputation for being aggressive in protecting their intellectual property rights. The NSA and DHS are no exception.
Dan McCall’s website, LibertyManiacs.com, bills itself as an “aggressive advocate for freedom” that designs “Freedom Products for Liberty-Lovers.” His satirical merchandise criticizes the US government on everything from drone strikes and taxation to the more recent NSA snooping controversy.
Zazzle, one of the third-party printers and sellers McCall works with, received warning letters from the DHS and NSA about McCall’s merchandise. The NSA objected to several inspired designs by McCall: a mug featuring the NSA seal above the words “Spying on You Since 1952″ and an NSA seal with the slogan “Peeping While You’re Sleeping” above the words “The only part of government that actually listens.” The DHS, on the other hand, was ruffled by McCall’s t-shirt featuring a parodied DHS seal for the “Department of Homeland Stupidity.”
The two agencies independently sent Zazzle letters alleging McCall’s merchandise and designs were illegal. The NSA accused Zazzle of violating 50 U.S.C. § 3613, which makes it a civil offense to “misuse” the NSA’s logo “in a manner reasonably calculated to convey the impression that such use is approved, endorsed, or authorized by the National Security Agency.” The DHS threatened criminal penalties, accusing Zazzle of violating a series of provisions in the federal criminal code that bar the use of its seal, including 18 U.S.C. § 506, which makes it a crime to “mutilate or alter the seal of any department or agency of the United States.” The DHS warned that these offenses may be punishable by imprisonment.
Zazzle was responsive, and removed several designs identified in the agencies’ threat letters. Not to be pushed out of the market, McCall moved his merchandise to CafePress.com, where they are still for sale.
With help from Public Citizen attorney Paul Alan Levy, Dan McCall recently filed for declaratory relief (see the full complaint here [PDF]), asking the court for an order establishing that his merchandise is protected under the First Amendment and does not violate federal law. The complaint also asks the judge to declare 18 U.S.C. §§ 506(a)(1) and (2) unconstitutional under the First Amendment insofar as they prohibit any person from mutilating or alter US agency or department seals. In a Public Citizen press release, Levy put the case in a national context: “[i]t’s bad enough that these agencies have us under constant surveillance; forbidding citizens from criticizing them is beyond the pale.”
It is clear that Levy is trying to make a statement that agencies cannot use these laws to prevent criticism, critique, and satire. As this case progresses, it will be interesting to see how much the agencies resist, especially since the NSA has more than its fair share of bad publicity. At first glance, the DHS’s allegation under § 506 holds water, as McCall did alter its seal. However, enforcement of § 506 is subject to the First Amendment, and McCall’s designs seem to clearly fall under protected parody or satire. The NSA’s allegations, however, are more suspect — it is strikingly obvious that the NSA does not approve, endorse, or authorize McCall’s merchandise. If they think that a reasonable person would believe that the NSA is endorsing a shirt with the subtitle “The only part of government that actually listens,” they must not think much of the American public — although that may just be a side effect of reading all of our texts.
At the very least, I am glad this complaint was filed. The bad press alone will hopefully make agencies think twice before sending letters like this in the future.
[We maintain that this is a fair use based on three of the four 17 USC § 107 factors. --Ed.]
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