Public Citizen – 2013-11-10 23:03:21
WASHINGTON, DC (November 3, 2013) — Dan McCall, a Minnesota man who creates politically-relevant designs for imprinting on T-shirts, mugs and other paraphernalia, was inspired to play with the official seals of the National Security Agency and the Department of Homeland Security to express his critical views about them.
One design juxtaposed the official seal of the NSA with the words “Spying on You Since 1952”; another altered the seal to add the words, “Peeping While Your Sleeping,” while placing this legend below the seal: “The NSA: the only part of government that actually listens.” Still a third design replaced the name of the DHS in its official seal with the name “Department of Homeland Stupidity.”
McCall has neither his own printing equipment nor the resources to pre-print and store an extensive inventory of wares displaying his designs.
To enable others to join in his expression, he arranged with a third-party printer, Zazzle, to imprint the designs on order by members of the public. Zazzle allows anybody to create designs for order by others; each seller’s designs are displayed on the seller’s own virtual storefront within the Zazzle web site; in McCall’s case, here. The designs are then printed on particular items and mailed to consumers in response to specific orders.
In 2011, however, both NSA and DHS took steps to shut down the use of their seals. NSA warned Zazzle that several different sellers, including McCall, were using the NSA’s name and official seal in violation of Public Law 86-36, 50 U.S.C. Â§ 3613, and if Zazzle didn’t stop using the name, initials, or seal, NSA would take “appropriate legal action to protect its rights.”
DHS was even more threatening, invoking a series of provisions in the federal criminal code that bar use of its official agency seals or even, in the case of one statute, 18 U.S.C. Â§ 506, makes it a crime to “mutilate or alter the seal of any department or agency of the United States.”
DHS warned Zazzle that use of its seal is “punishable by fines and/or imprisonment,” providing a link to a general search that called up every DHS design on the Zazzle web site (The letters themselves are not linked here because, for reasons that I don’t understand, Zazzle was unwilling to give me a copy of the original cease-and-desist letters; it was willing only to read them to me over the telephone, although I am certainly grateful for that cooperation).
Zazzle complied with alacrity, taking down the “Spying on You” and “Homeland Stupidity” designs and, when McCall posted his “Peeping While You’re Sleeping” design earlier this year, Zazzle removed that as well in compliance with NSA’s threat of litigation.
In a lawsuit McCall has challenged both the cease-and-desist letters, arguing that statutes should not be construed to forbid his parodies because nobody could think that they reflect endorsement by NSA or DHS, and that, if the statutes are not construed narrowly, their application to McCall violates the First Amendment.
We also argue that the statutory prohibition against “alter[ing] or mutilat[ing]” the official seal of any government is unconstitutionally over broad because it can too easily be construed, as Zazzle plainly did after receiving a threat of prosecution under that law, as criminalizing parody or expressive conduct that is protected by the First Amendment.
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