McCall v. National Security Agency et al

Filing 1

COMPLAINT against Department of Homeland Security, National Security Agency ( Filing fee $ 400 receipt number 0416-4400824.), filed by Dan McCall. (Attachments: # 1 Civil Cover Sheet, # 2 Summons for National Security Agency, # 3 Summons for Department of Homeland Security)(Gollogly, Ezra)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
t

DAN MoCALL.

*

Plaintiff,

*
NATIONAL SECURITY AGENCY and
DEPARTMENT OF HOMELAND SECURITY

Civil Action No.

*

*
Defendants.

*

*t***********r(
COMPLAINT FOR DECLARATORY RELIEF

l.

This is an action for a judgment rejecting claims made in cease and desist letters that

two govemment agencies sent to an online vendor of T-shirts, mugs and similar merchandise.

(a) Contrary to the agencies' claims, images created by a parodist to comment on the
agencies by juxtaposing their names and official seals, or altered versions of their seals, with
humorous and satirical words and images, do not violate federal statutes barring use of the agencies'
names and seals, as those statutes are construed to avoid conflict with the First Amendment.

(b) If the statutes are not construed narrowly to permit such use of the agencies'
names and seals, application of those statutes to bar the speech violates the First Amendment.

2.

The Court has jurisdiction over this action under 28 U.S.C. $ 1331 . The Court has

venue over this action under 28 U.S.C. $ 1391(e).

PARTIES

3.

Plaintiff Dan McCall is a resident of Minnesota who operates the web

site

LibertyManiacs.com.

4.

Defendant National Security Agency ("NSA") is an agency of the United States that

is headquartered in Maryland.

5.

Defendant Department of Homeland Security ("DHS") is an agency of the United

States that has facilities and conducts substantial activities in Marvland.

FACTS

6.

At his web site LibertyManiacs.com, McCall promotes T-shirts, mugs, posters, and

other products that display messages and images communicating his point of view. Many of the
images and messages use parody and other forms of humor to express his viewpoint.

7.

McCall does not make his own products or imprint his messages on products.

Instead, he has arranged with Zazzle.com, a California company that imprints images provided
by

its customers on physical products and sells them online, to have his images printed on articles

of

clothing such as T-shirts and hats, on bumperstickers, and on other items, and to sell those items
online to customers who select his images, and the products on which the images are to be printed,

from a "virtual storefront" on the Zazzle web site. McCall redirects traffic from his Liberty
Maniacs.com web site to seryers maintained by Zazzle so that people wishing to express their own
opinions by purchasing and displaying these items may easily do so. McCall's virtual storefront is
also directly accessible to the potential buyers athttp:llwww.zazzle.com/libertymaniacs.

8.

McCall created a design to be imprinted on products by Zazzle. The design

juxtaposed an image of NSA's official seal with the words "spying On you
Since lg51" (,.NSA
Spytng Parody"). The NSA Spying Parody is shown below as imprinted on a ceramic mug:

"io,t O, l/)r,' 3,nn

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(M
l,\,. rlj:.

,?{,Eel

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19 ?" ,{dir

Sr4e f9l?

9.

McCall also created a design to be imprinted on products by Zazzle. The design

juxtaposed an image of an altered version of the official NSA seal with the words, "The NSA: The

onlypart of government that actually listens" ("NSA Listens Parody'') The NSA Listens Parody is
shown below:

TheNSA

Theon$ psrtolgvemnent
that acfitallyliilen*
. .1.

10.

McCall also created a design to be imprinted on products by Zazzle. The design

juxtaposed an image of an altered version of the official seal of DHS with the words "Department

of Homeland Stupidity'("DHS Stupidity Parody''), as follows:

lt

o'
lt1

11.

Products featuring the NSA Spying Parody and the DHS Stupidity Parody were

available on McCall's Zazzle virtual storefront beginning

in May 2008 and August 2011,

respectively. Products featuring the NSA Listens Parody were available on McCall'sZazzle virtual
storefront beginning in June 2013.

12.

On March 15,2011, NSA sent aletter toZazzle,warningthat several different images

offered by several different Zazzle vendors, including the NSA Spyrng Parody, violated

a

provision

of Public Law 86-36, 50 U.S.C. $ 3613, that prohibits "use [of] the words 'National Security
Agency,' the initials, 'NSA,' the seal of the National Security Agency, or any colorable imitation
such words, . . .

activityin

a

of

in connection with any merchandise, impersonation, solicitation, or commercial

manner reasonably calculated to convey the impression that such use is approved,

endorsed, or authorized by the National Security Agency" (emphasis added), without the
permission of

NSA. NSA pointed

out that, under Zazzle's terms of service, vendors are not

permitted to offer any item that "potentially infringes any intellectual or proprietary rights of any
party." NSA demanded a response within ten business days and threatened to take "appropriate legal
action" if Zazzle failed to respond.

13.

On August

ll,20ll,

DHS sent an email to Zazzle, stating that various items of

merchandise offered by several different Zazzlevendors, including the Homeland Stupidity Parody,

contained images of the DHS seal and so were in violation of "Title 18, sections 506,

70I,

and

1017." The email warned that "any violations of those sections are punishable by fines and/or
imprisonment." Section 506 makes

it a crime to "(1) falsely make[], forge[], counterfeitf],

mutilate[], or alterf] the seal of any department or agency of the United States, or any facsimile

thereof." Section 701 makes it a crime to "manufacturef], sell[], or possess[] any

badge,

identification card, or other insignia, of the design prescribed by the head of any department or

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agency of the United States for use by any officer or employee thereof, or any colorable imitation

thereof." Section 1017 makes it

a crime to

"fraudulently or wrongfully affix[] or impressf] the seal

of any department or agency of the United States, to or upon any certificate, instrument, commission,
document, or paper or with knowledge of its fraudulent character, with wrongful or fraudulent intent,

use[], buy[], procuref], sell[], or transferf] to another any such certificate, instrument, commission,
document, or paper . .

.."

DHS demanded thatZazzle "remove fthe seal] from your web site and

discontinue offering products branded with the DHS seal and those of its components," threatening

that

if Zazzle did not comply, it could face an investigation by the United States Department of

Justice.

14. In response to the threatening

communications from NSA and DHS raising

intellectual property claims, Zazzleremoved the NSA Spyrng Parody, the NSA Listens Parody, and
the Homeland Stupidity Parody from McCall's Zazzle store.

15.

McCall's 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. 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.

16.

McCall has made fair use of the NSA and DHS seals to identiff federal government

agencies as the subject of criticism.

17.

The First Amendment protects McCall's use of the NSA and DHS seals to identiff

truthfully the agencies that he is criticizing.

18.

McCall's use of the NSA and DHS seals does not violate 50 U.S.C. $ 3613 or

U.S.C. $$ 506, 70I, and 1017, as properly construed in light of the First Amendment.

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18

19.
506(a)(

I

)

As applied by DHS in seeking to suppress the DHS Stupidity Parody, l8 U.S.C.
$g

and (2),

which forbid any person to "mutilate[] or alter[] the seal of any department or

agency of the United States," is unconstitutionally overbroad, in violation of the First Amendment.
20

.

There is an actual controversy between McCall and NSA about whether the NSA can,

pursuant to 50 U.S'C. $ 3613 and consistent with the First Amendment, prohibit
McCall from selling

mugs' T-shirts and other materials that display the NSA Spyrng Parody and NSA Listens parody,
containing images of the NSA seal either in its original form or as altered parodically, to identif,i

NSA as a subject of criticism.

21.

There is an actual controversy between McCall and DHS about whether DHS may,

pursuant to 18 U.S.C. $$ 506, 701, artd 1017 and consistent with the First Amendment, prohibit

McCall from selling mugs, T-shirts and other material that display DHS Stupidity parody, including
an image of an altered version of the DHS seal that makes fun of DHS, as a way of expressing

criticism of DHS.

CLAIMS

22.

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, 707 , and 1017 to forbid Mccall from

displaying his NSA Listens Parody, his NSA Spyrng Parody, and his DHS Stupidity parody, from
placing the Parodies on products to identi$r the targets ofhis 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.

23.

The threatened enforcement of 18 U.S.C. gg 506, 707, and 1017 to forbid McCall

from displaying his designs using altered versions of the DHS seal to identifu the target of his
criticism, or from placing that seal on products to be sold, is not in accordance with law, and is

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contrary to Mccall's constitutional rights under the First Amendment.

24.

The threatened enforcement of 50 U.S.C.A. g 3613 to forbid McCall from displaying

his NSA Listens Parody and his NSA Spying Parody, from placing the Parodies on products to

identifu 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 ofNSA and DHS,
was not in accordance with law, and was contrary to McCall's constitutional rights under the First

Amendment.

PRAYER FOR RELIEF
WHEREFORE, plaintiff prays the Court to

A.

Declare that McCall'

s

NSA Listens Parody and his NSA Spying Parody, using images

of the NSA seal, do not violate 50 U.S.C. $ 3613, and that McCall's DHS Stupidity parody, using
an image of an altered version of the DHS seal, does not

B.

violate 18 U.S.C. gg 506, 701, and,l0l7:

Declare that McCall's NSA Listens Parody, his NSA Spyrng Parody, and his DHS

Stupidity Parody, using the NSA and DHS seals, are protected by the First Amendment to the United
States Constitution;

C.

Declare that 50 U.S.C.A. $ 3613 and 18 U.S.C. $$ 506, 701, and

l0l7 may not be

enforced to forbid McCall from displaying his NSA Listens Parody, his NSA Spyrng parody, and
his DHS Stupidity Parody, or from selling mugs, T-shirts or other items bearing those designs using
the NSA and DHS seals:

D.

Declare

that 8 U.S.C. $$ 506(a)(1)

violation ofthe First Amendment, insofar

as they

and

(2)

are

unconstitutionally overbroad, in

prohibit anyperson to "mutilatef] or alter[] the seal

of any department or agency of the United States,,; and

E.

Granting such other relief as the court deems just and proper.

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Respectfully submitted,

/s/ Paul Alan Lew
Paul Alan Levy (pro hac vice sought)
Scott L. Nelson (pro hac vice sought)

Public Citizen Litigation Group
1600 20th Street NW
Washington, D.C. 20009
Tel: [phone]
Fax [phone]
[e-mail]

/s/ Ezra S. Gollogly
Ezra S. Gollogly (Fed. BarNo. 28088)

Kramon & Graham, P.A.
One South Street, Suite 2600
Baltimore, Maryland 21202
Tel: [phone]
Fax: [phone]
E-Mail : egollogly@kg-law. com
Attorneys for Plaintiffs
October 29,2013

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