NSA, DHS Sued For Threatening People Who Created Parody Merchandise

from the parody-is-protected-free-speech dept

You may recall the story from a few months back about the NSA supposedly issuing a takedown over some parody NSA merchandise. The NSA later claimed that it had no problem with the parody T-shirt that was specified, but did admit that a few years ago, it had sent a cease-and-desist letter to Zazzle, the platform that many people use to make such branded content, telling them they couldn’t sell any merchandise with the NSA seal, since it would be a violation of 50 USC 3613, which says it’s against the law to “misuse” the NSA’s logo. It turns out that the Department of Homeland Security, DHS, had sent a similar letter, focusing on 18 USC 506, saying it’s a crime to “mutilate or alter the seal of any department or agency of the United States.” DHS even warned Zazzle that it could be punished with fines or jail time, and gave Zazzle a link to a general search on the Zazzle site of all items labeled “DHS.”

Either way, Dan McCall, who created the NSA T-shirt design which was taken down in August, using the motto “peeping while you’re sleeping” has decided to sue for declaratory relief, represented by Paul Levy of Public Citizen (disclaimer: Paul has represented us in various matters over the years).

The lawsuit argues that the two cease-and-desist letters sent to Zazzle have violated McCall’s First Amendment rights, which include protecting parody speech, and that the two laws cited should not be construed to forbid parodies because, well, because that’s ridiculous. Furthermore, the lawsuit argues that 18 USC 506 is unconstitutional, in that the claim against altering and mutilating seals is way too broad and can, as in this case, lead to protected speech being stifled.

Defendants violated the First Amendment to the United States Constitution by threatening to enforce 50 U.S.C. § 3613 and 18 U.S.C. §§ 506, 701, and 1017 to forbid McCall from displaying his NSA Listens Parody, his NSA Spying Parody, and his DHS Stupidity Parody, from placing the Parodies on products to identify the targets of his criticism, or from selling mugs, T-shirts or other items bearing those designs to customers who want to display the items to express their own criticisms of NSA and DHS.

In his blog post about the case, Levy also explains how Zazzle, though not a party in the suit, is really complicit in all of this, for using those single threatening cease-and-desist letters to take down future products and for not pushing back against such overly broad claims from the government. While he notes that when the government comes calling, lots of companies bend over to avoid any legal consequences, he still notes that this is the kind of situation where a competent lawyer at Zazzle should have pushed back on the government and pointed out that these letters were ridiculous (even more bizarre: Zazzle refused to share the letters with Levy, saying they would only read them aloud to him over the phone).

…it is inconceivable that the First Amendment might not protect these uses of the agencies’ shields, and the NSA’s trademark-like statute applies, by its terms, only when the challenged use “convey[s] the impression that such use is approved, endorsed, or authorized by the National Security Agency.”  Although the NSA’s cease-and-desist letter specifically identified McCall’s “Spying Since 1952″ design as violating this statute, we should be able to expect a substantial commercial operation to push back against the implicit suggestion that somebody looking at that mug could have believed that NSA endorses it.  Even though the cease-and-desist letter warned Zazzle against “any” future use of its name, initials or seal, it is even more farfetched to think that NSA would have endorsed a version of its seal that says, “Peeping While You’re Sleeping.”  Consumers have a right to expect companies like Zazzle to have a thicker skin when faced with preposterous demands, and to wait for specific trademark challenges, rather than policing its service for other uses of the letters NSA, and proactively removing this sort of design in response to a cease-and-desist letter received two years before.

Happily, Zazzle faces commercial competition from others that do get tough on frivolous threats.  After Zazzle removed McCall’s designs in response to threats of litigation, McCall posted them to a virtual storefront at CafePress.com.   We don’t know whether CafePress has received similar threats from NSA or DHS, but based on previous experiences dealing with CafePress on trademark issues, I would expect CafePress to be more resistant to cease and desist letters. 

For example, a few years ago, CafePress stood up to the Republican National Committee when it tried to prevent CafePress users from using the RNC’s elephant logo in conjunction with materials opposing or endorsing various candidates or, indeed, praising or condemning the Republican party.  And indeed, when the City of Memphis went after an anonymous blogger and sent a bogus takedown letter to Zazzle over the sale of parody Tshirts making fun of its police department, Zazzle’s immediate response was to cave in while CafePress was willing to stand up to the pressure, although Zazzle did restore the images after I urged it to do so. 

Still, until Zazzle shows itself to be more energetic in responding to threats against political humor, parodists speaking about controversial subjects should consider voting with their feet by using other vendors.

Indeed. If you actually want a company that will stand up for your basic rights, it seems like Zazzle might not be the best option.

Filed Under: dan mccall, dhs, first amendment, free speech, logos, nsa, parody, paul levy