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State v. Robart (10/8/99) ap-1649

     NOTICE:  The text of this opinion can be corrected
before the opinion is published in the Pacific Reporter.  Readers
are encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:  

              303 K Street, Anchorage, Alaska  99501
                       Fax:  (907) 264-0878
        E-mail:  corrections@appellate.courts.state.ak.us


          IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STATE OF ALASKA,              )
                              )        Court of Appeals No. A-7013
               Appellant,     )      Trial Court No. 3AN-S97-6951CR
                              )
     v.                       )                     O P I N I O N
                              )
SCOTT P. ROBART,              )
                              )
               Appellee.      )        [No. 1649   October 8, 1999]
                              )


          Appeal from the District Court, Third Judicial
District, Anchorage, William H. Fuld, Judge.

          Appearances:  Eric A. Johnson, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellant.  Matthew W. Claman, Anchorage, for Appellee.

          Before:  Coats, Chief Judge, and Mannheimer
and Stewart, Judges.


          STEWART, Judge.


          Alaska law forbids a person to use the official state
seal "for any advertising or commercial purpose" [Fn. 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. [Fn. 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 AS 44.09.015.  Also, she enclosed a
copy of that statute. [Fn. 3]  Robart acknowledged receiving the
letter.     
          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 AS 44.09.015 was unconstitutional and that his conduct in
marketing the coins with the official state seal was free speech
protected by the First Amendment and by article I, section 5 of the
Alaska Constitution.  District Court Judge William H. Fuld
dismissed the criminal case because he concluded that the state
statute violated Robart's constitutional right to freedom of speech
and expression. 
          Discussion
          Commercial use of the state seal is not protected speech.
          Alaska Statute 44.09.010 creates the "official seal of
the State of Alaska."  Alaska Statute 44.09.015 prohibits using
that seal for advertising or commercial purposes without
permission. [Fn. 4]  Robart's conduct in this case was marketing
products bearing the state seal   specifically, commemorative coins
or medallions with the state seal on one side and a design for an
Alaskan theme on the other side.
          On its face, AS 44.09.015 proscribes only commercial
speech.  We note that several other jurisdictions have enacted laws
protecting the official symbols from commercial use, but have
apparently not passed on the constitutionality of these laws. [Fn.
5]
          In San Francisco Arts & Athletics, Inc. v. United States
Olympic Committee, [Fn. 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." [Fn. 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. [Fn. 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." [Fn. 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." [Fn. 10] 
The Court recognized that the statute would prohibit some non-
commercial uses of the word "Olympic." [Fn. 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." [Fn. 12]  
          We find the reasoning of the United States Supreme Court
persuasive.  Alaska Statute 44.09.015 regulates commercial speech
only "for any advertising or commercial purpose."  Because it does
not impact any non-commercial uses of the state seal, the potential
restriction of speech is narrower than that of the statute in San
Francisco Arts & Athletics.  The State has a legitimate
governmental interest in regulating the commercial use of the state
seal.  We conclude that 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. 
          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." [Fn. 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.


                            FOOTNOTES


Footnote 1:

      AS 44.09.015.


Footnote 2:

     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.


Footnote 3:

     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."


Footnote 4:

     AS 44.09.015 provides:

          (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 misdemeanor, 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.


Footnote 5:

     See, e.g., Cal. Gov't Code sec. 402; Haw. Rev. Stat. sec. 5-6;
Me.
Rev. Stat. Ann. tit. 1, sec. 204; R.I. Gen. Laws sec. 11-15-4; S.D.
Codified Laws sec. 1-6-3.1; Tex. Bus. & Com. Code Ann. sec. 17.08;
Wash.
Rev. Code Ann. sec. 43.04.050; 18 U.S.C. sec. 713.  


Footnote 6:

      483 U.S. 522 (1987). 


Footnote 7:

       36 U.S.C. sec. 380.


Footnote 8:

       San Francisco Arts & Athletics, Inc., 483 U.S. at 532 n.8.


Footnote 9:

        Id. at 534-35.


Footnote 10:

        Id. at 535


Footnote 11:

      Id.


Footnote 12:

       Id at 540.


Footnote 13:

      Vogler v. Miller, 651 P.2d 1, 3 (Alaska 1982) (citations
omitted).