I frequently praise Paul Alan Levy of Public Citizen for his work on important First Amendment issues. He's trounced the censorious Charles Carreon on behalf of a satirical blogger, protected online reviewers from frivolous lawsuits, and battled against unprincipled prior restraint of consumer speech.
Today he turned it up to 11.
Levy and Public Citizen, working together with Kramon & Graham, have sued the Department of Homeland Security and the National Security Agency to thwart their censorious attacks on parody and political comment.
Their client is Dan McCall of LibertyManiacs.com, a site that sells t-shirts that celebrate liberty and oppose the Security State. Some of LibertyManiacs' shirts satirize and criticize government agencies like DHS and NSA. As we've discussed here several times before, federal agencies can be very aggressive in their trademark and copyright claims in what appears to be an effort to harass and deter satirists and critics. That's what DHS and NSA did here.
The complaint displays the shirts that led to bumptious, bogus, censorious threats from our government. For instance, this shirt:
. . . was taken down as a result of threats from the NSA:
On March 15, 2011, NSA sent a letter to Zazzle, warning that several different images offered by several different Zazzle vendors, including the NSA Spying Parody, violated a provision of Public Law 86-36, 50 U.S.C. § 3613, that prohibits “use [of] the words ‘National Security Agency,’ the initials, ‘NSA,’ the seal of the National Security Agency, or any colorable imitation of such words, . . . in connection with any merchandise, impersonation, solicitation, or commercial activity in a manner reasonably calculated to convey the impression that such use is approved, endorsed, or authorized by the National Security Agency” (emphasis added), without the permission of NSA.
The NSA apparently thinks the American public is pretty stupid if such a clear parody and criticism reasonably conveys NSA approval.1 Similarly, this shirt about DHS:
. . . drew this threat from DHS:
On August 11, 2011, DHS sent an email to Zazzle, stating that various items of merchandise offered by several different Zazzle vendors, including the Homeland Stupidity Parody, contained images of the DHS seal and so were in violation of “Title 18, sections 506, 701, and 1017.” The email warned that “any violations of those sections are punishable by fines and/or imprisonment.” Section 506 makes it a crime to “(1) falsely make, forge, counterfeit, mutilate, or alter the seal of any department or agency of the United States, or any facsimile thereof.” Section 701 makes it a crime to “manufacture, sell, or possess any badge, identification card, or other insignia, of the design prescribed by the head of any department or agency of the United States for use by any officer or employee thereof, or any colorable imitation thereof.” Section 1017 makes it a crime to “fraudulently or wrongfully affix or impress the seal of any department or agency of the United States, to or upon any certificate, instrument, commission, document, or paper or with knowledge of its fraudulent character, with wrongful or fraudulent intent, use, buy, procure, sell, or transfer to another any such certificate, instrument, commission, document, or paper . . ..”
In other words, the Department of Homeland security made specious threats of criminal prosecution to intimidate a site to take down an utterly crystal-clear parody of its seal.
The complaint seeks declaratory relief — more specifically, an order finding that the threatened shirts and other parody goods are protected by the First Amendment and do not violate federal law.
This is a righteous complaint. McCall and LibertyManiacs should win and the DHS and NSA should lose.
This sort of thing — abuse of power by the government — happens because we, collectively, put up with it. We tolerate it from the faceless government agencies that perpetrate it and from the individual (too often anonymous) government actors who carry out the agency orders. We need to call it out. We need to say "enough."
I will follow the case with great interest. I hope that it will yield public documents identifying the particular government lawyers who wrote the censorious and thuggish threats described above. Their names should be public. They should be known in their communities as dishonest, betrayers of American principles, and abusers of government power.
Update: Paul has blogged about it.
- Given what we put up with from the NSA, they're arguably right. ▲
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