On March 15, 2011, Zazzle received a warning letter from the NSA, and on Aug 11, 2011, it received one from DHS. The NSA said that Zazzle, by selling the merchandise, was in violation of a provision of the National Security Agency Act of 1959 that prohibits the “use [of] the words ‘National Security Agency,’ the initials, ‘NSA,’ the seal of the National Security Agency, or any colorable imitation of such words … in connection with any merchandise, impersonation, solicitation, or commercial activity in a manner reasonably calculated to convey the impression that such use is approved, endorsed, or authorized by the National Security Agency” without the permission of the NSA.
DHS said that Zazzle, by selling McCall’s DHS parody items, was in violation of a law making it a crime to “mutilate or alter the seal of any department or agency of the United States,” among other provisions.
In the lawsuit filed in defense of McCall, Public Citizen points out 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 asserts that the First Amendment protects McCall and Zazzle’s right to use the seals to accurately identify the agencies he is criticizing.
“The agencies’ attempts to forbid McCall from displaying and selling his merchandise are inconsistent with the First Amendment,” said Paul Alan Levy, the Public Citizen attorney handling the case. “It’s bad enough that these agencies have us under constant surveillance; forbidding citizens from criticizing them is beyond the pale.”