The legal travails of the National Security Agency continue to mount, with news on Tuesday that it will pay the legal costs of its opponent and admit making mistakes in how it handled a First Amendment issue. To wit: It should not have demanded that Zazzle.com remove a parody t-shirt mocking the agency. Not exactly an ironclad Supreme Court victory, but it's a start.
The issue came to national attention last summer, when in the wake of the Edward Snowden leaks, some parody items on Zazzle (which allows users to upload images to be printed on shirts and mugs) were removed. The NSA subsequently denied having issued any cease-and-desist letters — at least, not since 2011. That year, the agency (and the Department of Homeland Security, for that matter) asked that Zazzle remove items that poked fun at the agencies by tweaking their logos. The agencies cited various legal statutes, including criminal law, to demand that the items be removed.
The designer of the items, Dan McCall, sued. On Tuesday, the settlement was made public: the NSA and DHS would issue public letters clarifying that parodies are OK, and McCall would receive $500 to cover his legal costs. According to the agreement, the NSA letter will read, in part:
In other words, the NSA recognizes that McCall had the right to create items parodying the agency. It reserves the right to ask that Zazzle remove items that seem to suggest that they are official creations of the NSA, but otherwise, have at it.
To The Wall Street Journal, a lawyer for Public Citizen (which aided McCall's suit) expressed skepticism that the First Amendment question was entirely resolved.
[Attorney Paul] Levy said the settlement leaves a broader policy question unsettled. “As a trademark lawyer, I think there is a question about whether government agencies should be in the business of telling people whether they can put their seals on t-shirts,” he said. “This settlement doesn’t resolve that question.”
If all of this sounds familiar, it should. The NSA has a habit of masking questionable decisions about free speech issues until such time as those decisions are made public, at which it clarifies-but-not-completely its new standards of behavior. Whether or not Director of National Intelligence James Clapper also wishes he'd been more up-front on this issue, as well as blanket surveillance of Americans, is unknown.