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May 25th, 2018

Insight

Tacky is not criminal --- even if Trump does it

 Stephen Carter

By Stephen Carter Bloomberg View

Published March 8, 2018

Tacky is not criminal --- even if Trump does it

I would like to correct what seems to have become an alarmingly common misunderstanding: An act of silliness does not become a crime simply because it is committed by President Donald Trump or the people around him.

Case in point: The thunderstruck reaction to the news that the Trump Organization has ordered tee markers for its golf courses emblazoned with the presidential seal. Suddenly one reads everywhere that unofficial, commercial-related use of the seal is a crime.

I must respectfully dissent from this strange consensus.

The federal statute in question is Section 713 of Title 18 of the U.S. Code, but, as we'll see in a moment, the law actually bars very little. In fact, were the rule as broad as the news coverage suggests, it would be unconstitutional.

True, there was a time when a presumption against private use of the seal was enforced with remarkable rigor. In 1965, a Texas bootmaker excited controversy when he created a pair of leather boots embossed with the presidential seal. People objected even though the boots had been handmade to be presented to President Lyndon Johnson. When a curiosity shop near the Johnson ranch sold ashtrays bearing the symbol, the Baltimore Sun stated flatly that "such use of the presidential seal is illegal."

During Richard Nixon's administration, the White House refused a request from a publisher to incorporate the seal in the design of a book jacket. When Nixon's daughter Tricia turned 24, her father gave her a ring with the seal in its design. Said Tricia to reporters: "You know you can only wear the presidential seal with permission."

In 1999, the issue arose after President Bill Clinton and his wife, Hillary, announced that they would be moving to Chappaqua, New York, at the end of the president's term. The New York Times reported that the White House had ordered a Chappaqua nonprofit group to stop raising scholarship funds by selling T-shirts bearing the seal together with the legend "Secret Service, Chappaqua Bureau, Presidential Detail."

But that was then. This is now. Zip over to Amazon.com and you can buy cufflinks, shot glasses, decals, lapel pins, coffee mugs, aprons, T-shirts, note pads or baseball caps emblazoned with the presidential seal. (Some can be personalized.) The seal adorns the covers of books aplenty, fiction and nonfiction both. Nobody pretends that these uses are illegal. And they shouldn't be.

The statute regulating (not "barring" or "prohibiting") use of the presidential seal is drafted with care. Under Section 713, one commits a crime only by displaying the seal "in a manner reasonably calculated to convey, a false impression of sponsorship or approval by the Government of the United States or by any department, agency, or instrumentality thereof." This language, borrowed from the law of unfair competition, is narrowly drafted to avoid trampling on First Amendment rights. Displaying a likeness of the seal is prohibited only when the use will create that "false impression of sponsorship or approval" -- what courts in other contexts call "confusion as to source."

In the law of trademark and unfair competition, it's not the use of someone else's brand name that's forbidden, but the use of that brand name in a way that might confuse the consumer. That's why I'm on safe legal ground when I conclude this sentence with the words Google, Mercedes, Exxon and Walmart. I am borrowing a series of well-known trademarks, but there is no confusion because no reader will imagine that the companies endorsed this column. This is the distinction that Section 713 tries to draw.

One of the few federal cases to construe the statute took exactly this view. In Rothamel v. Fluvanna County (2011), a federal district court in Virginia considered the constitutionality of an ordinance that prohibited the display of a county's seal without permission from the board of supervisors. A local blogger challenged the law as a violation of his First Amendment rights. The court agreed. In striking down the ordinance, the court drew a contrast with Section 713. Unlike the county ordinance, wrote the court, the federal statute was "narrowly tailored" to further the "legitimate interest in preventing the seal's deceptive or misleading use."

That's the key point. The federal statute is constitutional only so long as we read it to ban uses of the seal that are either deceptive or misleading, and nothing else. What the Trump Organization is doing, or what Amazon is doing, or what a publisher touting a book is doing, involves uses that are neither deceptive nor misleading. Journalists should be quicker than other people to notice threats to the First Amendment. And a Section 713 that broadly banned display of the seal without permission would constitute a major assault.

This leads us back to those tacky golf tee markers. It's not clear why the placement of the seal on the course implies any endorsement. (Amazon, after all, sells golf balls embossed with the seal.) But even if we conclude that some golfers playing at a Trump course might imagine that the president endorses the facility, I'm afraid we crossed that bridge when the horse left the barn to search for spilled milk: The name at the entrance to the golf course is already kind of a hint.

If the Trump Organization does wind up using those tee markers, let's use reasonable language. We can call the gimmick uncouth or silly or déclassé, but none of those things are illegal. To try to transform an act of tastelessness into a crime is to turn a good law into a bad one.

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Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. Among his courses are law and religion, the ethics of war, contracts, evidence, and professional responsibility. His most recent book is The Violence of Peace: America’s Wars in the Age of Obama (2011). He is an author and Bloomberg View columnist.

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