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Feb. 18, 2014

NSA and DHS Finally Acknowledge: Parodied Merchandise Does Not Violate Federal Law

Settlement Reached in Lawsuit Will Continue to Allow Sale of Parody Items Containing Agencies’ Seals

WASHINGTON, D.C. — Today, the National Security Agency (NSA) and the Department of Homeland Security (DHS) are acknowledging that merchants who use images and names of the government agencies on parody merchandise are not in violation of any federal laws.

The admission settles a lawsuit Public Citizen filed against the agencies on behalf of Minnesota activist Dan McCall. Public Citizen argued that McCall has a First Amendment right to sell parody merchandise using the NSA and DHS seals.

“This is an important win,” said Paul Levy, the Public Citizen attorney representing McCall. “Citizens shouldn’t have to worry whether criticizing government agencies will get them in trouble or not. This settlement proves the First Amendment is there to protect citizens’ rights to free speech.”

In 2003, McCall launched his website LibertyManiacs.com, which allowed people to buy T-shirts, hats, bumper stickers and other items designed by McCall, who used images and message of parody and humor to express his often political viewpoints. A popular example is a mug with the NSA seal above the words “Spying On You Since 1952” and a parodied NSA seal that includes the words “The NSA: The only part of government that actually listens.”

In March 2011, the NSA sent a cease-and-desist letter to Zazzle.com, the virtual storefront that printed and sold McCall's designs, threatening litigation unless the website removed the parody designs. The letter stated that by selling the merchandise, Zazzle was in violation of a federal law that prohibits the use of the agency’s name, initials, seal and other symbols for commercial sale unless authorized by the NSA.

A few months later in August 2011, the Department of Homeland Security (DHS) saw a design for sale on Zazzle with a version of the DHS seal and the words “Department of Homeland Stupidity.” The department sent a cease-and-desist letter to Zazzle, warning that it was a crime to “mutilate or alter the seal of any department or agency of the United States.” After receiving letters from both agencies, Zazzle removed McCall’s items from its website.

In October 2013, Public Citizen sued both agencies on behalf of McCall, arguing 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 asserted that the First Amendment protected McCall and Zazzle’s right to use the seals to accurately identify the agencies he criticized.

Today, both agencies agreed to send Zazzle letters rescinding their cease-and-desist letters and confirming that selling the parodied merchandise violated no federal laws.

“I'm glad the case helped reaffirm the right to lampoon our government,” said McCall. “I always thought parody was a healthy tradition in American society. It's good to know that it's still legal.”

Read the settlement terms here (PDF).

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

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