When Keith Cowing made an innocuous post about a meeting of the President’s Council of Advisors on Science and Technology on his long-running science policy blog, Space Ref, he didn’t imagine that it would trigger a phone call from the White House. But that is exactly what happened, and the White House was not calling to congratulate him on his excellent science policy coverage. Cowing’s offense? Including an image of the seal of the Executive Office of the President of the United States in his blog post. According to Cowing, White House staffer Rick Weiss objected to the seal’s placement in proximity to an ad, which White House lawyers worried might be construed as an endorsement of the product.
The legal basis for the claim is unclear, but the story does sound familiar. In July of 2010, the FBI made a similar demand to Wikipedia for its use of the FBI seal on a Wikipedia entry about, no surprise, the FBI. That claim was made under 18 U.S.C. sec. 701, which is aimed at use of government seals to deceive the public. Wikipedia’s lawyers responded with a detailed letter pointing out, among other things, that their use wasn't deceptive. The FBI went away.
Cowing's use isn't deceptive either. The seal is plainly used in conjunction with the news article and the advertisement is no closer on this blog than ads are on news websites and in most newspapers and magazines for that matter. In fact, the seal of the Executive Office of the President of the United States is used extensively all over the internet, sometimes even in promixity to advertising. Threatening phone calls from the White House only serve to chill free speech. Indeed, Cowing has replaced the image of the seal with a pixelated version and the words “OSTP Logo Pixelated Due to a Phone Call Complaint from the White House.”
As we said about the FBI last year, surely the White House has better things to do than to threaten bloggers engaged in legitimate free speech. Mr. Cowing deserves an apology and some folks in the White House appear to need a bit more training on the First Amendment.