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Oct. 29, 2013

Public Citizen Defends Merchant From Unconstitutional Interference by NSA, Department of Homeland Security

In Lawsuit Filed Against Agencies, Public Citizen Argues That Attempts to Stop Production of Parody Merchandise Are Inconsistent With First Amendment

Note: This press release was updated after being issued to clarify the nature of the statues that Public Citizen is asking the court to declare unenforceable.

BALTIMORE, Md. – A Minnesota activist who uses images and names of government agencies on satirical merchandise is entitled to do so under the First Amendment, Public Citizen argued in a lawsuit filed today against the National Security Agency (NSA) and the Department of Homeland Security (DHS) on behalf of the merchant.

The suit, filed in the U.S. District Court for the District of Maryland, targets cease-and-desist letters sent to the merchant’s producer by the NSA and DHS.

On his website LibertyManiacs.com, Sauk Rapids, Minn., resident Dan McCall sells T-shirts, hats, bumper stickers and other items with his designs, printed by Zazzle.com – for example, a mug with the NSA seal above the words “Spying On You Since 1952” and a parodied NSA seal that says “Peeping While You’re Sleeping” above the words “The NSA: The only part of government that actually listens.”

On March 15, 2011, Zazzle received a warning letter from the NSA, and on Aug 11, 2011, it received one from DHS. The NSA said that Zazzle, by selling the merchandise, was in violation of a provision of the National Security Agency Act of 1959 that prohibits the “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” without the permission of the NSA.
DHS said that Zazzle, by selling McCall’s DHS parody items, was in violation of a law making it a crime to “mutilate or alter the seal of any department or agency of the United States,” among other provisions.

In the lawsuit filed in defense of McCall, Public Citizen points out that the graphics did not create any likelihood of confusion about source or sponsorship, and no reasonable person would believe that the agencies themselves produced merchandise with those messages. The complaint also asserts that the First Amendment protects McCall and Zazzle’s right to use the seals to accurately identify the agencies he is criticizing.

“The agencies’ attempts to forbid McCall from displaying and selling his merchandise are inconsistent with the First Amendment,” said Paul Alan Levy, the Public Citizen attorney handling the case. “It’s bad enough that these agencies have us under constant surveillance; forbidding citizens from criticizing them is beyond the pale.”

Public Citizen is asking the court to declare that provisions of the National Security Agency Act and the criminal code cannot be enforced to forbid McCall from displaying his merchandise, and that one of the laws cited by DHS is unconstitutionally overbroad because it violates violate the First Amendment by saying no one can “mutilate or alter the seal of any department or agency of the United States.”

McCall is now selling his merchandise at CafePress.com.

See the full complaint for declaratory relief here.

Ezra Gollogly of the Baltimore firm Kramon & Graham, P.A. is local counsel for plaintiff.

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