OCTOBER 31, 2013
The feds have threatened to criminally prosecute a novelty store owner who sells products—such as “Department of Homeland Stupidity” coffee mugs—making fun of the U.S. government. Could this be a matter of national security, or that Uncle Sam simply lacks a sense of humor?
To poke fun at the National Security Administration (NSA) the merchant, Dan McCall, sells T-shirts with the agency’s official seal that read: “The NSA: The only part of government that actually listens.” Other parodies say “spying on you since 1952” and “peeping while you’re sleeping.” The designs may seem funny—and possibly represent reality—but to the government it’s no laughing matter. In fact, it’s a serious issue worthy of an investigation and legal action.
The NSA and the Department of Homeland Security (DHS) quickly fired off “cease and desist” letters to the website that sold the products, threatening litigation and criminal prosecution if the parody designs weren’t immediately removed. The agencies claim the parody images violate laws against the misuse, mutilation, alteration or impersonation of government seals. The intimidating communication scared the website enough to remove the items, but McCall isn’t going down without a fight.
In a federal complaint filed this week he claims the government is violating his First Amendment right because the special statutes protecting the NSA and DHS seals from misuse can’t properly be applied to forbid parodies. McCall says his images make fair use of the NSA and DHS seals to “identify federal government agencies as the subject of criticism.” Therefore it’s unconstitutional for the government to forbid him from displaying and selling his parodies to “customers who want to display the items to express their own criticism of NSA and DHS,” according to his complaint.
Furthermore, McCall is not mutilating or altering the agency seals, but rather using them in a parodic form that doesn’t create any likelihood of confusion about the source or sponsorship of the material. No reasonable viewer is likely to believe that any of the materials is affiliated with or sponsored by the DHS or the NSA, the complaint says. “Nor were the seals affixed to the items to be sold with any fraudulent intent.”
In short, the merchant claims that the First Amendment protects his use of the NSA and DHS seals to identify truthfully the agencies that he is criticizing. The two agencies at the center of this brouhaha most certainly have bigger fish to fry. So does the Department of Justice (DOJ), the agency that has threatened to prosecute the mug and T-shirt creator.
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