NSA, Its Seal, and the First Amendment

Speech, Citizenry, and the Market in real life. It seems the NSA has invoked a public law to prevent someone from making parody NSA T-shirts. The shirt displayed the seal and the words “THE NSA, The only part of the government that actually listens.” The NSA was not amused. The first site to offer the shirts stopped offering the shirts after a letter from the NSA (apparently they were able to talk about that one for now). The NSA wrote to one online outlet, “The NSA seal is protected by Public Law 86-36, which states that it is not permitted for”any person to use the initials ‘NSA,’ the words ‘National Security Agency’ and the NSA seal without first acquiring written permission from the Director of NSA.” The company, Liberty Maniacs, has sued under the First Amendment. That case may be near settlement.

In the Liberty Maniacs case, the obvious parody should suffice. If not, I suggest that the NSA is public figure entity and so mocking it by using its name and logo (just like we use a person’s name and face) should be protected under that reasoning as well. That said, I would think that under Alvarez, most special laws regarding seals, the Olympics, and so on will need some extra explanation to stay in place.

The video below is from Cafe Press which also offers the shirts and mugs.

Santa’s Brand

Quietbook has a mock re-branding Santa guide up. It is a “refresh.” Refresh. The word triggered a flashback to corpspeak where irony goes to die. I scanned the rest of the page. “*Santa* is a Concept, not an idea. It’s an Emotion, not a feeling. It’s both Yesterday and Today. And it’s Tomorrow as well.” Ah yes. They get it. The Santa Brand book is a great example of the way branders operate. I dove into those ideas in my paper From Trademarks to Brands. These folks take you on a similar but funnier journey. Good times and a belated but truly meant Merry Christmas and Happy Holidays to all.

The Team Who Will Not Be Named: The Redskins and Slate

This week, Slate announced that it would stop referring to the NFL team from Washington, DC, as the Redskins.  With this decision, Slate joins Washington’s City Paper, as well as the Buffalo News and the Philadelphia Daily News, in their refusal to use the Redskins moniker.

Litigation over the Redskins trademark has been protracted and convoluted.  Substantively speaking, the litigation has focused on disparagement, which allows a trademark registration to be cancelled if it is disparaging to a substantial composite of a referenced group.  Pro Football, Inc. v. Harjo was, however, decided on laches, which is a particular vulnerability for plaintiffs claiming disparagement.  (In this particular case, it  has also resulted in an odd situation whereby a new case has been filed in the TTAB over the same issue but with younger plaintiffs.)

The standard for disparagement is less than clear.  Many TTAB decisions and court opinions have found that a mark just is disparaging with little supporting analysis.  What is enough to be “substantial”, and what the parameters of a “referenced group” are, are often problematic (and have both been particularly problematic in the context of the Redskins litigation).  Another problem with the standard is that it requires a mark to be disparaging at the time of registration.  Thus, if a trademark was registered at a time when racism was socially acceptable, it might be more difficult for plaintiffs to petition for cancellation either because members of the group internalize that racism, or because the groups are not empowered enough to bring an action for disparagement in a timely fashion.

Extra-legal solutions, such as the decision by Slate and other media outlets, can be more effective than courts at addressing these issues.  It’s not because of litigation, but because of market forces (including an evolving social and cultural climate), that a trend has developed toward elimination of American Indian school mascots at both collegiate and high school levels. The NCAA has banned conference play for teams with American Indian mascots, resulting in changes to more than a dozen teams.  Other Universities, such as the University of Wisconsin-Madison and Iowa, have refused to schedule non-conference games against teams with American Indian mascots.  Outside the courtroom setting, increased pressure has resulted in a steady decline of use of American Indian references in sports teams across the US.  Whether or not these pressures reach the NFL team from Washington DC, however, remains to be seen.

The Battle for .Amazon

With thanks to Mary Wong (ex-UNH, now at ICANN) for drawing this to my attention, the Governmental Advisory Committee (GAC) yesterday agreed to file a consensus objection to Amazon.com’s application for the new gTLD, .amazon. The Patagonia sporting goods company has also recently withdrawn its application for .patagonia. Story here.

Citizens United, Graffiti, and the Web

We need more outlets to challenge the way things run. Challenging corporations is difficult, necessary, and proper. Someone in San Diego tried to do that. He is losing his case. It turns out that if you scribble anti-bank messages, you could face 13 years in jail. The medium: washable children’s chalk, not spray paint, on the sidewalk in front of banks. The bank: Bank of America. Now, you might think the First Amendment would be an issue here; it’s not. According the news report, “a judge had opted to prevent the defendant’s attorney from ‘mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial,’ and the defendant must now stand trial on 13 counts of vandalism.” The defendant was saying other banks were better banks. Bank of America did not like it, claimed it cost $6,000 to clean up the chalk, and apparently used its influence to have the city gang unit investigate and hand the case to the attorney’s office. Given that this defendant may not be allowed to engage in this speech, because of anti-graffiti and, my bet, property laws, all that may be left is the Web. I think offline mediums matter and should be protected. The Web is an alternative, not a substitute. But even on the Web a protester will have problems.

As I argue in Speech, Citizenry, and the Market: A Corporate Public Figure Doctrine, corporate power to speak has gone up. Corporate power to limit speech has not. A corporate public figure doctrine would allow someone to use a corporation’s logo and name to challenge to corporation on public issues. A corporation’s word mark is its given name; its logo, its face. Just as we would not limit the ability to question and identify human public figures for speech, we should not do so for corporate public figures. A foundational commitment of free speech law, perhaps the foundational commitment, is that public figures don’t and can’t own their reputations. Yet, through trademark and commercial speech doctrines corporations have powerful control over their reputations. If corporations are people for free speech purposes, as a constitutional matter, their control over their reputations can be no greater than the control other public figures have. Corporations cannot have it both ways. Corporations want and receive many of the legal rights natural persons receive. They should be subject to the same limits as other powerful, public figures.

HT: Fred von Lohmann for noting the story on Facebook.

PS. I am not saying corporations should be challenged, because they are corporations. That is silly. In that sense, I would challenge those who challenge, but that’s me.