FIRST AMENDMENT SNAFU
Bernie Sanders Is Threatened by a T-Shirt
The Vermont senator is trying to shut down a small business that makes satirical political T-shirts after it poked fun at his campaign.
Bernie Sanders cares about the little guy. Except when the little guy disagrees with him.
That’s the message the Democratic presidential candidate sent when his campaign threatened legal action against a small T-shirt vendor who had dared to make fun of him.
Late last week, a Seattle lawyer representing Sanders’s campaign demanded that LibertyManiacs, a three-employee online merchandising shop, immediately take down T-shirts that humorously portrayed the Vermont senator alongside a pantheon of communist figures, with the caption: “Bernie is my comrade.” (A red star replaced the dot over the ‘i’ in Bernie for emphasis.)
Using high-priced lawyers to bully a small business that is making fun your campaign is an odd move for a politician who has built a grassroots movement on protecting average Americans from the whims of the rich and powerful.
Nonetheless, the Sanders campaign lawyer apparently didn’t see the irony.
“We encourage you to be creative in designing and using your own logos or trademarks to clearly identify you as the source of the efforts,” the legal notice lectured. “Hopefully you see this as an opportunity to creatively and distinctively come up with something new and clever on your own.”
The similarity between the Bernie Sanders campaign logo and the T-shirt’s design, the Sanders campaign lawyer wrote (PDF), was “likely to cause… confusion”—despite the obvious humorous nature of the T-shirt (PDF).
Paul Levy, a lawyer for the government watchdog Public Citizen, is representing LibertyManiacs owner Daniel McCall in this battle against the Sanders campaign. Levy identifies as on the political left but is defending McCall on principle, telling The Daily Beast that the T-shirt designer’s work is “intensely political speech, which is at the core of what the First Amendment protects.”
“It’s a completely baseless takedown. McCall is standing for his rights… if [the Sanders campaign had] any decency, they’d say, ‘We made a mistake and we’re withdrawing our demand,’” Levy said. “Each of his parodies have been fun as well as fully protected by the First Amendment… he’s entitled to his opinion.”
The Sanders campaign declined to respond to a Daily Beast inquiry about whether they stood behind their threatening takedown notice.
“Parody is a protected form of art and expression, and organizations, big and small, shouldn’t be using lawyering to hush dissent,” McCall told The Daily Beast. “It’s actually going on, and the reason I’ve been fighting this fight is because I’ve been trying to do my little part to do something.”
McCall’s parodies have stung campaigns and government entities in the past: In 2011, the National Security Agency demanded that a vendor that McCall was using cease and desist selling a design that called it “the only part of government that actually listens.” The NSA was later forced to back down, indicating that it had inaccurately accused McCall of violating federal law.
And two years ago, Ready for Hillary, a political action committee promoting Hillary Clinton’s presidential candidacy, demanded the takedown of a design mimicking their logo that read, “I’m Ready for Oligarchy.” This T-shirt remains on sale today.
But while McCall has been fighting for his free-speech rights, the legal threats have taken a toll. After the Ready for Hillary PAC complained, three partners who carried McCall’s merchandise refused to carry any of his political designs—hitting his business hard.
“None of these companies will carry my satire anymore—[they tell me,] ‘Sorry, Dan, we can’t spare the hassle.’ That’s why I get so passionate about this,” McCall said.
McCall has been running his LibertyManiacs website for about 12 years, and working on it full-time for seven years alongside his own design business. Revenue is substantially down from when he was working with several vending partners on his politically themed designs, he said.
But in the short term, after a controversy, there can be a boon. His lawyer Levy is puzzled as to why the Sanders campaign would ever attempt to bully this small business into taking down a satirical design, noting that it was likely to backfire tremendously from the outset.
“This is a Seattle-based firm with a substantial intellectual-property practice. Have they never heard of the ‘Streisand Effect’?” Levy said, citing the theory by which attempting to suppress information will have the unintended consequence of distributing it more widely. (The Streisand Effect was so named after the entertainer attempted to suppress photographs of her house in California, but in so doing attracted even more interest in it.) “Maybe it’s not legal malpractice, but it’s political malpractice, sending this takedown [demand letter].”
Happily for McCall, there are signs that this Streisand Effect is in full force. His lawyer wrote about the case on Public Citizen’s blog, and McCall estimates that sales are up 200 to 300 percent over the past few days.
Updated 12:19 p.m. to correct the name Andy Levy to Paul Levy, the lawyer for the government watchdog Public Citizen. We regret the error.