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In reply to the discussion: NSA, Homeland Security issue ‘cease and desist’ letters to novelty store owner [View all]struggle4progress
(118,379 posts)(2) the NSA did contact Zazzle directly, once, two and a half years ago, to insist that Zazzle not sell merchandize containing the agency logo, citing the National Security Agency Act of 1959 as prohibiting such activity; (3) similarly, the DHS contacted Zazzle, over two years ago, to insist that Zazzle not sell merchandize containing the agency logo; (4) Zazzle subsequently refused to allow some of McCall's products to be merchandized at the Zazzle website;
(5) McCall certainly has a clear free speech right to parody or lampoon federal agencies and in particular has a clear free speech right to market products that obviously criticize or satirize such agencies; (6) various agencies are recognized to have the authority to control the reproduction of their logos under a variety of laws and statutes, since (for example) an agency may have intellectual property rights in a logo, or may use such a symbol as judicially recognizable certification that the agency has authorized whatever the logo appears on; (7) reproduced modifications of agency logos become more clearly protected as free speech as the modifications become more obvious and become more clearly unprotected as the modifications become less obvious; (8) McCall has no right to reproduce and distribute the intellectual property of such agencies or to reproduce and distribute materials bearing unmodified logos that such agencies use as certifications of authenticity; (9) one issue with McCall's merchandize will be the question, whether his modifications of agency logos are sufficiently evident to prevent confusion among any discernible fraction of the public about the authenticity of a product that may otherwise appear to have been authorized by a federal agency;
(10) as the agencies contacted Zazzle, rather than McCall himself, and as it is Zazzle, rather than a federal agency, that has removed the products from the Zazzle site, any proper action by McCall may lie against Zazzle rather than against the federal government; (11) McCall's free speech rights do not include a general right to have his products marketed through any particular private website, and free speech arguments cannot compel Zazzle to help McCall market his products; (12) Zazzle, in deciding whether or not to allow certain products on its website, is not obliged to follow any directions contained in a letter from a federal agency but is free to consult with its own lawyers in the course of deciding whether or not to concur with the opinion expressed in such federal agency letter and in the course of deciding whether to contest any proposed federal action;
(13) McCall will not have a recognizable action against the agencies unless the agencies are found to have acted in egregious violation of law or in a manner singularly prejudicial to McCall; (14) action by an agency, allegedly to protect the integrity of its standard uses of a logo or to protect its rights under specific statute, will be countenanced the courts in almost automatic manner, unless the plaintiff is able to establish by clear evidence a contrary, illegal, and prejudicial motive; (15) a mere contrary opinion alone, as to the motive of an agency, will not be considered judicially as clear evidence of agency malfeasance