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NSA concedes: Parody T-shirts that use NSA’s name and logo aren’t illegal

I wrote about this incident last fall, and now the National Security Agency has folded (as has the Department of Homeland Security with regard to a similar controversy), thanks to the work of Paul Alan Levy of Public Citizen, who represented the designers. Here is the letter the NSA agreed to send Zazzle:

Dear Ms. Sherk:

In March 2011, the National Security Agency (“NSA”) sent Zazzle Inc. (“Zazzle”) a cease-and-desist letter, warning that several items posted on Zazzle’s website violated Public Law 86-36, codified at 50 U.S.C. § 3613, by displaying the words HNational Security Agency,” “NSA” and the NSA seal “in a manner reasonably calculated to convey the impression that such use is approved, endorsed, or authorized by the National Security Agency.” 50 U.S.C. § 36l3(a)….

One of the items identified in the March 2011 letter was a mug sold by Liberty Maniacs, a business operated by Mr. Dan McCall. In October 2013, Mr. McCall filed a complaint in the District of Maryland, arguing that the letter relied on an overbroad reading of § 3613…. Mr. McCall’s complaint also identified at-shirt design involving NSA that he began selling via Zazzle in June 2013.

On further review of the mug design and initial review of the t-shirt design cited in Mr. McCall’s complaint, NSA hereby rescinds its previous letter and clarifies its construction of § 3613. NSA acknowledges that neither the design by Liberty Maniacs that was identified in the March 2011 letter and cited in paragraph 8 of Mr. McCall’s complaint, nor the subsequently posted design set forth in paragraph 9 of Mr. McCall’s complaint, violates § 3613. Section 3613(a) states that

[n]o person may, except with the written permission of the Director of the National Security Agency, knowingly use the words “National Security Agency”, the initials “NSA”, the seal of the National Security Agency, or any colorable imitation of such words, initials, or seal 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.

Section 3613 does not prohibit the creation or sale of items intended to parody NSA where no such impression of approval, endorsement or authorization is conveyed, nor does it require the prior approval of the Director of the National Security Agency for the creation or sale of such items.

NSA acknowledges that McCall’s designs were intended as parody and should not have been viewed as conveying the impression that the designs were approved, endorsed, or authorized by NSA. NSA encourages Zazzle to reexamine the content of its users, including the content identified in the March 2011 letter, in light of this clarification. Where warranted under the law, NSA reserves the right to enforce § 3613 in the future.

The NSA materials included the T-shirt shown above, as well as (according to Public Citizen), “a mug with the NSA seal above the words ‘Spying On You Since 1952.'” The DHS also agreed to send a similar letter with regard to a T-shirt that bore a modified DHS logo (see below), which the DHS had earlier claimed violated a different statute:

In August 2011, a DHS staff member sent Zazzle a cease and desist letter, warning that your sale of a series of T-shirts and other paraphernalia bearing designs accessible through the use of specified search tenns violated three separate criminal statutes; including one statute, 18 U.S.C. § 506, that makes is a crime to, among other things, “falsely … mutilate[] or alter[] the seal of any department or agency of the United States.” The letter specifically reminded Zazzle that violation of these statutes could result in a criminal conviction and fines and/or imprisonment. One of the designs that was retrieved by the search tenns we specified was a design by Liberty Maniacs, featured an altered seal of the Department of Homeland Security ….

In retrospect, the letter was overbroad because neither section 506, nor any of the other statutes we cited, applies to uses of the name, initials or seal of an agency for purposes of commentary about the agency. Section 506 as quoted above can be narrowly construed in that it applies only when a seal is “falsely” altered or mutilated. However, because criminal statutes were being invoked, we should have been more specific in identifying the improper uses.

In the future, internal guidelines will be developed to advise our staff when such letters should be transmitted, but for now, we acknowledge that the design by Liberty Maniacs … not violate any of the statutes cited in the letter.

See also Public Citizen’s press release and this post by Brian Fung (Washington Post’s The Switch) for more on this.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.

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