State v. RobartState v. Robart
- Reporters:
- , ,
- Before:
- Stewart
OPINION
STEWART, Judge.Alaska law forbids a person to use the official state seal “for any advertising or commercial purpose” 1 without permission from the Lieutenant Governor. In this case, we hold that this law does not violate freedom of speech and that the State can prosecute a person who manufactures and sells coins that use the state seal without permission.
Facts and proceedings
On December 16, 1996, W.G. Paulick, an employee with the State Department of Commerce and Economic Development, wrote Robart and invited him to submit “one or more of your company’s products” for consideration for a show featuring consumer products from Alaska on QVC, a home-shopping television channel. On May 24,1997, Robart appeared on QVC and marketed a gold and silver coin commemorating the anniversary of the 1897 gold rush with the state seal on one side and a trademarked (not by Robart, although he did have permission to use this logo) design for the Gold Rush Centennial on the other side.
2
On May 29, Lieutenant Governor Fran Ulmer wrote a letter to Robart stating that “it has been my policy since taking office that the state seal shall not be used for commercial purposes.” Ulmer asked Robart to stop selling the coins because it violated
Almost two months later, Alaska State Trooper Steve Garrett wrote to Robart, posing as a person interested in buying some of Robart’s coins. On August 6, another trooper, Curt Harris, posed as a buyer and bought two of the coins from Robart that bore the state seal on one side. The State then charged Robart with using the seal, of the State of Alaska for commercial purposes without permission from the State.
Robart filed a motion to dismiss the case, contending that
Discussion
Commercial use of the state seal is not protected speech.
On its face,
In San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 6 the Supreme Court considered an attack on a federal statute that granted the exclusive right for the commercial use of the word “Olympic” to the United States Olympic Committee. That statute authorized the United States Olympic Committee to preclude the unauthorized use of the word “Olympic” “for the purpose of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition.” 7 The Court noted that Congress had enacted several similar statutes, some of which provided for civil remedies and some of which provided for criminal penalties. 8
SFAA argued that the statute violated the First Amendment. The Court held, “Congress’ decision to grant the USOC a limited property right in the word ‘Olympic’ [fell] within the scope of trademark law protections, and thus certainly within constitutional bounds.” 9 The Court reasoned that, to the extent the statute restricted the uses of the word “Olympic” “for the purpose of trade [or] to induce the sale of any goods or services,” the • statute regulated “commercial speech,” which “receives a limited form of First Amendment protection.” 10 The Court recognized that the statute would prohibit some non-commercial uses of the word “Olympic.” 11 Still, the court rejected SFAA’s First Amendment claim: “Even though [the statute’s] protection may exceed the traditional rights of a trademark owner in certain circumstances, the application of the Act to this commercial speech is not broader than necessary to protect the legitimate congressional interest and therefore does not violate the First Amendment.” 12
We find the reasoning of the United States Supreme Court persuasive.
Robart also relies on article I, section 5 of the Alaska Constitution. (“Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.”) Our supreme court has held that the protection provided by this section is “at least as broad as that of the First Amendment of the United States Constitution.” 13 However, Robart has not convinced us that this provision of the Alaska Constitution provides broader protection for commercial speech than the First Amendment.
Conclusion
We REVERSE the district court’s order dismissing the case and REMAND for further proceedings.
Notes
.
. Robart‘s design added the words “TROY OZ .999 FINE SILVER” onto the state seal. Robart does not argue that adding these words transformed the state seal into an original work of art or into something that is not the state seal.
.In the letter, Lt. Gov. Ulmer stated that she had “turned down a request last October from another business in Anchorage to use the state seal on a Gold Rush commemorative coin.”
.
(a) A person may not use or make a die or impression of the state seal for any advertising or commercial purpose, unless written permission has first been obtained from the lieutenant governor.
(b) Violation of this section is a misdemean- or, and upon conviction is punishable by a fine of not more than $500, or by imprisonment for not more than six months, or by both.
.
See, e.g.,
. 483 U.S. 522, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987).
.
. San Francisco Arts & Athletics, Inc., 483 U.S. at 532 n. 8, 107 S.Ct. 2971.
. Id. at 534-35, 107 S.Ct. 2971.
. Id. at 535, 107 S.Ct. 2971
. Id.
. Id at 540, 107 S.Ct. 2971.
. Vogler v. Miller, 651 P.2d 1, 3 (Alaska 1982) (citations omitted).