The Southern Baptist Convention is under fire for releasing publications "The Soldier’s Bible" and "The Soldier’s New Testament," through Holman Bible Publishers, the Nashville, Tennessee publishing company they own.

At issue is the use of official Department of Defense emblems that suggest, at barest minimum, an endorsement by the DoD. Versions exist for the Army, Air Force, Marine Corps and Coast Guard. Critics argue that the Defense Department-sanctioned bibles give the appearance of being official government publications, thus violating the First Amendment’s Establishment Clause.

According to an article by NPR’s Jeff Brady:

The Army says the use of its emblem "is authorized in publications and other printed matter of an official or quasi-official nature." The Army's Institute of Heraldry is the keeper of the emblem. If you want to put it on a T-shirt or bumper sticker, you first have to get permission from Stanley Haas at the Institute.

According to Brady, Army Chief of Chaplains David Hicks claims he's “perplexed how anyone would conclude this is the Army's official Bible,” since the front of the book states that Holman is the publisher.

I know from personal experience that Hicks’ faux surprise is disingenuous at best. Back in 1995, the United States Navy attempted to bar the use of a 1972 recruiting poster featuring the first African American used in a recruiting campaign. Servicemember Ed Graves had been discharged from the Navy a few years later for being gay, and I wanted to use the image in a CD ROM production of investigative journalist Randy Shilts’s book, Conduct Unbecoming, of which I had acquired the electronic rights. After I demanded clarification for the Navy’s denial, the Department of the Navy wrote the following:

The United States Naval Academy crest is a trademark registered with the United States Patent and Trademark Office (Reg. No. 1,810,681) pursuant to the Trademark Act of 1946, as amended (Lanham Act, 15 USC Chapter 22). The United States Naval Academy crest is predominately displayed on the poster in question which is an Academy advertisement. Its use, therefore, is subject to the approval of the United States Naval Academy.

My attorney, Michael Traynor, argued that the poster in question had been in the public domain since 1972, and that it was not copyrighted adding that copyright protection “is not available for any work of the United States Government.”

The Navy had also argued that usage of the image with the Navy seal implied endorsement of the CD ROM, the very argument David Hicks claims to be rejecting. The conduct CD ROM contained this disclaimer on the cover:

None of the images, photographs, and reproductions, digitized or otherwise, displayed herein or on the packaging, promotional material, or advertising material imply or are intended to imply official U.S. Department of Defense approval or endorsement of the images or opinions expressed. These images, photographs, or reproductions, digitized or otherwise, are presented for journalistic purposes only.

Even this however, was not good enough for the Navy, which was adamant that endorsement not be implied by allowing the use of the Navy seal. Mr. Traynor added:

We appreciate your identifying the United States Naval Academy's trademark rights as the source of your concern. Our client acknowledges those rights. However, protection for trademark rights under the Lanham Act is limited to protection against another's use of a designation to identify its business or in marketing its goods or services in a way that causes a likelihood of confusion. Such trademark rights do not override First Amendment rights.

There is no likelihood of confusion presented by ApolloMedia's use of an image of the poster in its CD ROM. It is not making any trademark use of the Academy's crest. It is not using the Academy's trademark to suggest any association between itself and the Academy or that the CD ROM is produced, sponsored, certified, or approved by the Academy.

In the end, my attorney stated:

If the Academy were simply asserting its federal trademark right as a ground for refusing permission, the matter could probably end there since our client acknowledges and is not infringing the Academy's trademark. The Academy does not have to grant permission and ApolloMedia does not need it.

That being said, I would venture to say that the Southern Baptists are doing far less than I did to avoid even the appearance of an official endorsement, and that the major distinction from a First Amendment standpoint relates to potential confusion relating to what looks like an official government sanction of a religious Bible, not endorsement of a journalistic endeavor.

Holman Bible Publishers may have a First Amendment right to use the emblems, and I don't think they should be deprived of such a right, but the Navy, it seems, was far more careful to avoid endorsing contributions of gay servicemembers than it cares to avoid mixing religion in violation of the First Amendment.