We would be utterly remiss if we failed to comment on the recent report in the New York Times (free registration required, but it's the NYT: why aren't you registered already?) on The Onion's alleged misuse of the Presidential Seal. The Onion has a regular parody of the President's weekly radio address, where it includes a copy of said seal. Associate Counsel to the President Grant Dixton took the time to scold these wags for using the seal without permission. To quote the Times:

"It has come to my attention that The Onion is using the presidential seal on its Web site," Grant M. Dixton, associate counsel to the president, wrote to The Onion on Sept. 28. (At the time, Mr. Dixton's office was also helping Mr. Bush find a Supreme Court nominee; days later his boss, Harriet E. Miers, was nominated.)

Citing the United States Code, Mr. Dixton wrote that the seal "is not to be used in connection with commercial ventures or products in any way that suggests presidential support or endorsement." Exceptions may be made, he noted, but The Onion had never applied for such an exception.

Onion editor Scott Dikkers offered a characteristically flippant reply, suggesting cheerfully that the White House should use the money spent preparing Mr. Dixton's letter for a tax break for satirists instead. Of course Dikkers has plenty of reason to be happy. You can't buy this kind of publicity; The Onion's status as the premier satire site has been validated both by the Times and by the White House. (And as of 10/26, CNN as well.) Everyone else who's been written about in the NYT and CNN, please raise your hands. Anyone? Anyone?

Of more practical interest is The Onion's actual legal response. As reported by the Times, The Onion's lawyers think they are in the clear because a) it's obviously a parody, and b) it's not for "commercial purposes" anyway:

"It is inconceivable that anyone would think that, by using the seal, The Onion intends to 'convey... sponsorship or approval' by the president," wrote Rochelle H. Klaskin, the paper's lawyer, who went on to note that a headline in the current issue made the point: "Bush to Appoint Someone to Be in Charge of Country."

Moreover, she wrote, The Onion and its Web site are free, so the seal is not being used for commercial purposes.

There are two problems here. First, the White House may not accept the "parody" defense; spokesman Trent Duffy replied "you can't pick and choose where you want to enforce the rules surrounding the use of official government insignia, whether it's for humor or fraud." First Amendment issues aside, that statement is of, shall we say, more than passing interest to anyone who might use it. The Watley Review used the Presidential Seal in question earlier this year. It's unlikely that Watley Review will be getting a letter from the White House, but technically it's in the same boat as The Onion, and it has far fewer lawyers.

The second part of The Onion's defense is also interesting, because it raises the question of what constitutes "commercial purposes." Let's face it: The Onion is a business. Content on the site is available for free, but they are in the business of making money. They have offices in cities around the United States; they can afford lawyers on retainer, for crying out loud. The argument that they're not using the Seal for commercial purposes seems pretty flimsy. It's analogous to suggesting that broadcast television isn't commercial, because it's "free" (if you use an antenna rather than cable or a dish). Anyone who believes that ABC, CBS and NBC are offering programming for non-commercial purposes, just out of the goodness of their hearts, please raise your hands. Anyone? Anyone?

But we may well ask where the line is drawn between "commercial" and "non." Nearly all satire sites take in at least some income, usually through Google ads if nothing else. The total may add up to less than your hosting costs, but still: you are offering content and receiving income in return. Does this make you a business? Do you feel like a business? Do you have any lawyers on hand?

Anyone else who hears from the White House, please drop us a line. We're dying to know how much time the White House staff spends surfing fake news sites, and how much presidential policy is written as a result.