Suing agencies for violation of First Amendment rights
Oct 30, 2013
Back in August Infowars and Ben Swann broke the story of the NSA threatening online t-shirt makers because users of their sites were creating parody shirts denouncing the agency and selling them on the internet. Now one t-shirt designer, who was specifically targeted is suing both the NSA and The Department of Homeland Security, for violating his First Amendment rights.
Dan McCall, who created several t-shirts on the website Zazzle that featured parodies of the NSA’s logo, has filed for declaratory relief, following the NSA’s admission that it sent cease and desist letters on the grounds that “misusing” the logo constituted copyright infringement. McCall, with the help of the Public Citizen Litigation Group, is also suing the DHS for sending similar letters claiming it is against the law to modify any seal of the US government.
McCall created the following designs, among others, mocking the government agencies:
“In response to the threatening communications from NSA and DHS raising intellectual property claims, Zazzle removed the NSA Spying Parody, the NSA Listens Parody, and the Homeland Stupidity Parody from McCall’s Zazzle store,” McCall says in the complaint.
His lawsuit further states:
Defendants violated the First Amendment to the United States Constitution by threatening to enforce 50 U.S.C. § 3613 and 18 U.S.C. §§ 506, 701, and 1017 to forbid McCall from displaying his NSA Listens Parody, his NSA Spying Parody, and his DHS Stupidity Parody, from placing the Parodies on products to identify the targets of his criticism, or from selling mugs, T-shirts or other items bearing those designs to customers who want to display the items to express their own criticisms of NSA and DHS.
The lawsuit also argues that the law regarding modifying US seals is unconstitutional, because it is too broad and infringes on freedom of speech.
The lawsuit states that it is obvious that the products in question are not created by the government agencies and are in no way affiliated with them. The NSA even admitted this recently, reversing its stance and saying that that it no longer had a problem with the parody products.
“[The] use of images of the NSA and DHS seals, whether unaltered but in combination with critical text, or altered in parodic form, did not create any likelihood of confusion about the source or sponsorship of the materials on which they were available to be printed.” the complaint notes. “No reasonable viewer is likely to believe that any of the materials is affiliated with or sponsored by defendants. Nor were the seals affixed to the items to be sold with any fraudulent intent.”
“The agencies’ attempts to forbid McCall from displaying and selling his merchandise are inconsistent with the First Amendment,” said Paul Alan Levy, the attorney handling the case. “It’s bad enough that these agencies have us under constant surveillance, (but) forbidding citizens from criticizing them is beyond the pale.”
In a blog post yesterday, Levy also criticized Zazzle for capitulating to the NSA, accepting overly broad claims from the government, and setting a precedent for taking down products in the future.
“Consumers have a right to expect companies like Zazzle to have a thicker skin when faced with preposterous demands, and to wait for specific trademark challenges, rather than policing its service…”
“Happily, Zazzle faces commercial competition from others that do get tough on frivolous threats.” Levy adds, referring to CafePress.com, which still carries the designs.
“Until Zazzle shows itself to be more energetic in responding to threats against political humor, parodists speaking about controversial subjects should consider voting with their feet by using other vendors.” Levy concludes.
McCall is also still selling the items on his own website, with the slogan: “Get the T-shirts the NSA & DHS Don’t Want You to Wear!”
The Obama administration is increasingly characterizing copyright infringement as terrorism, with SWAT teams now being sent out to deal with alleged copyright infringers. Critics have noted that the process is about creating a history of case law to establish the precedent of stamping out free speech via copyright claims.
Steve Watson is the London based writer and editor for Alex Jones’ Infowars.com, and Prisonplanet.com. He has a Masters Degree in International Relations from the School of Politics at The University of Nottingham, and a Bachelor Of Arts Degree in Literature and Creative Writing from Nottingham Trent University.