State can forbid commercial use of state seal, rules Alaska appeals court

Tuesday, October 12, 1999

An Alaska law that forbids the use of the state seal “for any advertising or commercial purpose” without permission from state authorities does not violate the First Amendment, a state appeals court has ruled.

The state charged Scott P. Robart in 1997 with violating the law after he sold coins that featured the seal to two state troopers.

Robart filed a motion to dismiss the charges, claiming he had a right to market and sell his coins under the First Amendment and the free-speech provision of the Alaska Constitution.

A trial judge dismissed the criminal case in March 1998, finding Robart's free-speech rights were violated.

However, the Court of Appeals of Alaska reinstated the charges on Oct. 8, writing that “commercial use of the state seal is not protected speech.”

The appeals court noted in State v. Robart that the statute “proscribes only commercial speech” which does not receive as much First Amendment protection as other forms of noncommercial speech, such as political speech.

The Alaska appeals court relied on the U.S. Supreme Court's 1993 decision in San Francisco Arts & Athletics, Inc. v. United States Olympic Committee to decide the case. In the San Francisco case, the high court upheld a federal law that granted the exclusive right for the commercial use of the word “Olympic” to the United States Olympic Committee.

“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 that necessary to protect the legitimate congressional interest and therefore does not violate the First Amendment,” the Supreme Court wrote.

The Alaska court said that the state had a “legitimate governmental interest” in regulating the commercial use of its state seal.

“The First Amendment does not bar the State's prosecution of Robart for marketing commemorative coins bearing the official state seal, a commercial activity, because Robart used the state seal without permission,” the court wrote.

Eric A. Johnson, the assistant attorney general who handled the case for the state, said that the Alaska Court of Appeals correctly followed U.S. Supreme Court precedent.

Matthew Claman, Robart's attorney, said he was “disappointed” with the ruling. He said that he would file an appeal to the Alaska Supreme Court and was “optimistic” about its chances.

“The Legislature has never made any particular findings as to what the compelling state interest is in protecting the commercial use of the state seal,” Clanan said. “This is a case involving protected speech and art.”