Paul Alan Levy and Public Citizen Push Back Against NSA and DHS Censorship

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:

NSAShirtImage

NSAShirtFromComplaint

. . . 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:

DHSShirtFromComplaint

DHSShirtFromComplaint

. . . 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.

  1. Given what we put up with from the NSA, they're arguably right.  

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Comments

  1. Vince Clortho says

    Nerdy question here. Are NSA and DHS the appropriate defendants here? Are they jural entities that can be separately sued or should the defendant be the United States (or maybe the directors of those entities)?

  2. Grifter says

    So are they admitting they're the Department of Homeland Stupidity, then? Or just laying claim to all use of "department" and images of eagles?

  3. MrSpkr says

    Based on the comments sections of many websites, as well as posts and comments on Facebook, I'm not so sure the NSA is wrong. Perhaps, through its eavesdropping on American citizen's private communications, the NSA believes it has gathered sufficent data to present a prima facie case that Americans ARE stupid enough to think the NSA approved the parody shirt.

  4. Mike says

    This goes to your previous comments about needing adults in the room. Even for someone who disagree's with the substance of the shirts, this is obnoxious and a giant waste of time for our public servants to be caring about.

  5. mud man says

    because we, collectively, butt up with it.

    I was going to fix that for you, put Ken got there first.

    Believable as self-parody? Look at all those cop shirts celebrating excessive force. QED.

  6. grouchy says

    I wanted a friend to make a shirt that said in large print "TSA stole my dignity" and in smaller print "and my camera".

    They refused and so far neither of us appear to be on the no-fly list.

  7. David C says

    Nerdy question here. Are NSA and DHS the appropriate defendants here? Are they jural entities that can be separately sued or should the defendant be the United States (or maybe the directors of those entities)?

    I think the defendants are appropriate. Government sub-entities like that can be sued, and they are the ones issuing the threats.

    They plaintiffs should have a slam-dunk win on any statute that requires fraudulent intent. The intent is clearly parody and not fraud. The fact that those statutes were cited at all by the departments indicates that they aren't concerned about actual violations of law; they just want these guys to stop making fun of them.

  8. Eowyn says

    Suddenly I want a variation on the NSA shirt:

    Nazional Sekuritat Actionale …

    That can't possiby refer to our home grown NSA, can it?

  9. Wondering says

    The only part of government that actually listens.

    Dang. So much said in so few words. I want that shirt. Plus, it looks classy!

  10. Anonymous Tweeter says

    Obviously NSA has about as much respect for the 1st amendment as they do for the 4th.

    As an example of the censorious douchebaggery of the NSA crowd: I run a parody twitter account, in which I satirize and mock an ex-NSA twitter troll who pushes conspiracy theories about Snowden being a Russian spy. He responded by rounding up a posse of fellow ex-spooks to fraudulently "report abuse" my parody account, despite the fact that it was not engaged in any TOS-violating behavior. The account is currently suspended, undergoing the suspension appeals process.

    Now of course I do understand that the 1st amendment is not implicated in this, since twitter is privately owned, but it goes to show the mentality at play, both in terms of censoriousness douchebaggery, and in how they view systems of rules designed to constrain them: as just a game to be played with and circumvented. The "report abuse" button is clearly labeled for use only in cases of spam or other TOS-violations. But who cares? They know that it's an automated system, and if they just click it enough times it'll make the bad man stop saying the hurty words about them. So they click it.

    But don't worry – I'm sure back when they worked at NSA they were much more conscientious about following the spirit of the rules designed to constrain their actions.

    While I'm here, might as well ask for some advice:

    @Ken: I remember you recently went through an attempted twitter attack by the Kimberlings to get the @Popehat account suspended. In the course of your defense against the attack, did you manage to find contact information for anyone at twitter more responsive to these kinds of situations than the automated support system?

    Also, the troll in question, as well as many members of his posse, although no longer employed by the NSA, remain employed by other Federal agencies, and are presumably engaging in their fraudulent, censorious behavior while on the taxpayers' dime. Are there legal implications to this? Lots of twitter-lawyers like to cite the Hatch Act, but it doesn't look applicable to me (IANAL).

  11. a_random_guy says

    The good news is: This will sell a lot of shirts.

    The bad news is: even if the government loses, so what? No one involved on the government side has any skin in the game. Losing should hurt, but it doesn't. Ergo they will have no reason not to be censorious thugs the next time they don't like something.

  12. MrSpkr says

    Good point, random. If the government loses, well, it has to stop this specific censorious conduct. It might also have to pay McCall's attorney's fees and costs of litigaiton. In other words,. the government screws up, but the taxpayers are the ones footing the bill for both sides' litigation expenses.

  13. desconhecido says

    You probably can't sue the government lawyers and take their cars and stuff, but government lawyers are sensitive to being called out by courts, particularly if their names might end up in opinions. Within the last few months there was a video of a 9th circuit appellate argument linked at (I believe) Volokh. The government lawyer got pretty interested when Kozinski, et al, started using words like "misconduct." So, this sort of legal action my be useful in getting the lawyers for these particular agencies (and others) to focus.

    edit:

    Here's a link to the Volokh article.

  14. cdru says

    The PTA at my kids' school has a program for dads called Fathers Being Involved. Their logo on their hats and shirts they sell for fundraising says FBI with the same typeface as what you see real agents wear. I wonder if I should expect a raid one of these days to confiscate my contraband.

  15. says

    I'm with MrSpkr. The actions and (especially) commentary from the NSA are so out of touch with reality that they are almost impossible to parodize. It's a situation similar to the recent "Sarah Palin thinks Jesus celebrates Easter" blowup. We need some kind of equivalent of a Turing test. Something like this:

    1. 1. Take 5 random dumbass things the NSA has done or said.
    2. 2. Make up 5 new random things along similar veins.
    3. 3. Present the combined list in random order to a number of subjects.
    4. 4. If the subjects cannot determine which of the 5 instances of
      dumbassery are real versus which are parody, then the target is "immune" to satire. There's room for error, so maybe we set the bar at 75% accuracy.

    Shit, the former boss Hayden was cracking wise about Snowden getting killed and the how two presidents are enjoying "legal" assassination-via-drone "with some degree of enthusiasm". To imagine the NSA rolling out a parody T-shirt of its own actions does not require a lot of creative genius.

    (Note: this is mostly a joke, at least until the NSA and DHS try to argue it in court.)

  16. Bob Brown says

    I just ordered one of the gray T-shirts for $25.50 including shipping. If you go to the link Ken posted in the article, http://www.libertymaniacs.com/ and click the T-shirt image, you are taken to CafePress, which has apparently not received any thuggishly censorious letters yet. It looks as though Dan McCall might even make a buck or two from the sale.

    I hope they ship fast, before they get The Letter.

    Am I worried about the NSA spying on me because of buying the shirt? Too late! They're spying on everybody. Besides, I've been loudly encouraging people to encrypt their email for a few months. So, I've probably already gotten their attention.

  17. jtf says

    Perhaps telling that they didn't go after the EFF's shirt, which is probably much more likely to be mistaken as an official use than a parody. Or maybe they were smart enough to not try intimidating a bunch of first amendment lawyers specializing in online free speech issues.

  18. Bob Brown says

    Turns out there's a 25% discount code on the Cafe Press site. I didn't see it until too late. It's BOO25, good until midnight Tuesday.

  19. Rich Fiscus says

    Mike Godwin already did this dance with the FBI when they demanded the removal of their seal from Wikipedia. IIRC he just sent them a long and detailed letter clearly showing the demand was based on either intentional dishonesty or monumental incompetence.

    Of course that approach wouldn't work too well here. You can't make the NSA look any more dishonest or incompetent than what they've accomplished on their own.

  20. says

    The NSA hides behind terms like security and classified information. That in itself gives the agency unbridled power. I often wonder if it is the NSA is the puppeteer and Obama the puppet. I wish you the best in your lawsuit. I have a firm appreciation for your fortitude considering the way the government works these days. Standing for what you believe is right could lead to harassment and intimidation from other gov. agencies like the IRS, ATF and FBI. We have seen this scenario play out over and over during the past 5 years in particular.

  21. Matthew Cline says

    Each of the complaint letters cite particular laws. So:

    1) Do the T-shirts not actually violate those laws?

    2) Are the laws are unconstitutional?

    3) Or is it both?

  22. MJC says

    At the risk of drawing some ire here may I take the devils advocate position of suggesting that part of the reason the NSA is taking this so seriously is that a Seal is not just some kind of decoration, it is an emblem affixed to official documents to help authenticate them? Legally (not a lawyer, nor do I play one on TV) I may be way off here, but in some sense isn't what LibertyManiacs is doing is the equivalent of using a near-copy of someone's legal signature in a parody?

  23. grouch says

    The big question I have is: Are there any courts left that are not mere rubber stamps of Our Glorious Government, Inc., LLC?

  24. En Passant says

    Counsel advising and representing the two agencies are not stupid. They know they have a losing case if anyone challenges the agencies on this issue. Their goal is to chill criticism of the agencies by any means necessary. They are operating under the theory "you can beat the rap, but you can't beat the ride."

    They should be publicly named and shamed.

  25. rsteinmetz70112 says

    IANAL

    Would this qualify as attempting to deprive someone of their civil rights "under color of authority"?

    I have a lawyer friend who was at one point anxious to sue an agency for asserting authority they did not have in order to intimidate people on those grounds.

  26. AlphaCentauri says

    A private entity's trademark is protected both because it might cause confusion if someone else used it, but also because its value is decreased if they don't prevent others from slapping it on all kinds of items unrelated to their business. (Parody of their business itself is still a different matter, of course.) If Disney finds your daycare center has unlicensed Mickey Mouse murals, they're going to come after you.

    But a public entity's trademark was created at taxpayer expense, and there is no profit that might be reduced if their trademark was reproduced by others. They have no right to argue about their trademark being diluted when it is owned by all the citizens of the US. Even if the items weren't obvious parodies, I don't see that they have any right to restrict their use, so long as it doesn't give the impression that it is authorized by the agencies or that the wearers have any privileges based on wearing the logos.

    The public health agencies put a lot of effort into creating educational materials, and they allow any doctors' office to reproduce and distribute them, even if it is a for-profit practice. It's taxpayer funded, and the taxpayers own it.

  27. Allen says

    America is dead. Toast, put a fork in it, so on. The oldest tradition in America was to lampoon, ridicule, and vilify government, and it's agencies. No more.

    Now you need a lawyer to protect you for your most basic right of speech, the joke. The fact that there is a judge out there who takes this seriously says it all.

    Suppose some person comes up and flashes an ID saying "DHS" "NSA" do you know what it's supposed to look like? Can you backcheck?

    If the real deal is uncheckable, how can someone be accused of fraud?

  28. babaganusz says

    in some sense isn't what LibertyManiacs is doing is the equivalent of using a near-copy of someone's legal signature in a parody?

    i should certainly hope that a private individual can reasonably expect* his or her signature to not be 'near-' duplicated and reproduced for public consumption/study/imitation. not seeing at all how that could equate to a governmental entity's authority, symbolized (and yes, authenticity affirmed) by a very deliberately exact and specific emblem, being satirized/mocked/lampooned/etc. by the use of an altered image of said emblem. as the close of your question shows, the guy isn't making badges designed to 'look like the real thing'. perhaps the question is whether the obviousness of the parody actually matters? i'm not keen to smile and shrug if someone is so blinded by an imitation of authority that they let someone wearing one of these t-shirts hoodwink their way into personal property, but seriously…

    *though i've rarely been accused of sensible optimism.

  29. Wick Deer says

    The feds have been doing this for a long time. I remember when I was doing some volunteer work in the mid 80s for the Hoosier Environmental Council, that the Forest Service got really torqued off when one of our groups used the Smokey the Bear image in a parody flier.

  30. Demosthenes says

    Matthew: If you read the citations of the laws in question and attempt to apply them to these shirts, and then consider that this prosecution is designed to punish First Amendment expression which would be clearly protected if it were directed against (say) Disney, I think you'll find that the answer is 3).

  31. Joe Blow says

    While this can be viewed as an abuse of power, I think the abuse, if any occurred, is at the Congressional level. What falls within the definition of seal, and when the law should be enforced, isn't exactly clear. Federal agencies routinely police up vendors who sell things with their seal on it. The laws are correctly cited above. The rationale for them is that if somebody is making a profit off government items or materials, the taxpayers should get a cut; and, the agencies need to control their marks/seals to prevent impersonation.

    The courts generally protect the use of trademarks and similar seals in purely expressive works – a one-off T-shirt, a painting or other art installation, or a newspaper article. On the other hand, the courts rely on the statutes mentioned and hammer those who appropriate an agency seal (or other trademark) for profit reasons. The difficult cases are where the uses are mixed, with some clearly expressive content (as here) and some clearly for-profit action (as here). The T-shirt makers have a strong claim that they are offering expressive speech as a product, while the agencies have a pretty good argument that they are appropriating trademarks mainly for profit. It could well come down to a question of what was intended with the shirts, and whether the makers are engaged in commentary, or just providing a product to sell. The courts are split on how to resolve this sort of mixed dilution question. That EFF has not been bothered is probably due to (1) its 'NSA' seal being sufficiently distinct from the original so that people wouldn't confuse the two; and, (2) EFF is clearly engaged in advocacy, even if they happen to raise a few bucks by selling the shirts.

  32. azazel1024 says

    I can almost see the case since the NSA seal is being reproduce exactly (as near as I can tell, other than a change in the wording on the seal). However, it is still pretty easy to tell it is a parody, which I'd think would be covered under the 1st.

    The Homeland insecurity one I don't see a single ground to stand on. The seal isn't reproduced, the name Homeland Security isn't even used and so on. I see a MUCH bigger problem with the "case" on the second than I do on the first.

  33. David C says

    @Allen:

    The fact that there is a judge out there who takes this seriously says it all.

    I think you are confused. This was just filed the day the article was written – the judge is probably not even going to look at it until the response gets filed or a deadline passes. Cases are not thrown out the day they are filed (unless there's a problem with the check used for the filing fee, maybe.)

    And it's the people making the parody who are suing the government, so if the judge does take it seriously, that's a GOOD thing.

  34. En Passant says

    Joe Blow Oct 30, 2013 @6:39 am:

    Federal agencies routinely police up vendors who sell things with their seal on it. The laws are correctly cited above. The rationale for them is that if somebody is making a profit off government items or materials, the taxpayers should get a cut; and, the agencies need to control their marks/seals to prevent impersonation.

    IANA IP lawyer. But I think our friends across the pond have a useful test to determine trademark infringement. I see no reason not to apply it to these items:

    "If one puts the two papers side by side I for myself would find that the two papers are so different in every way that only a moron in a hurry would be misled."

  35. says

    He shall peep and mutter; and the night shall bring
    Watchers 'neath our window, lest we mock the King—

    Hate and all division; hosts of hurrying spies;
    Money poured in secret, carrion breeding flies.

    Strangers of his counsel, hirelings of his pay,
    These shall deal our Justice: sell—deny—delay.

    Sound familiar? Written by Kipling in 1899. Nothing ever changes.

  36. Grant Gould says

    The process is the punishment.

    Suits like this aren't meant to succeed, because what penalty could they hope to inflict that is worse than having to deal with the suit itself?

    By the time the defendant has had to lawyer up, the plaintiff has already won. Anything that ends up before a judge is just gravy.

  37. amber says

    @Micheal Donnelly: Read about two years of Mad Magazine from the mid-sixties, and you'll see why your suggestion won't work. That which was clearly parody back then, is now standard practice.

  38. Steven H. says

    Just read a news article in which Secretary of State Kerry said that the NSA may have gone too far in its spying.

    Seems he thinks that spying on our allies (and getting caught, presumably) is "inappropriate" and "may have gone too far".

    Alas, he doesn't seem to think that spying on US citizens is inappropriate or going too far…

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