Kyle Markley
for Oregon Secretary of State

The core purpose of my job as a legislator will be to protect the individual rights of Oregonians. Although it is the proper role of government to protect our rights from the likes of criminals, the government itself is the most significant threat to our rights.

I am unhappy to report a personal example of this threat that stemmed from my 2012 political campaign. After my campaign literature was mailed to registered voters in my district, I received the following chilling e-mail from the Office of the Oregon Secretary of State:

We just received notification from a citizen in House District 30 telling us she received a piece of political literature from you in the mail, which included an image of the Oregon State Seal. She was aware that the Seal cannot be used on campaign literature and wanted to notify us of the violation.

The Oregon State Seal is for governmental use only, or for incidental use in educational publications describing the various States and their Seals. Please refer to Oregon Revised Statute 186.023:

186.023 Improper use of state seal.

1. Except as authorized by the Secretary of State, no person shall knowingly use any device, or possess any device capable of such use, to emboss upon a document the seal of the State of Oregon described in ORS 186.020.
2. No person shall use any reproduction of the seal of the State of Oregon:
   1. In any manner falsely implying official indorsement or sponsorship by the State of Oregon or any of its agencies of any product, business, service or other activity; or
   2. In any manner that subjects or exposes the seal of the State of Oregon to ridicule, debasement or infamy.

These guidelines apply not only to the official state seal of Oregon but to any symbol which imitates or is confusingly similar in appearance to the official seal.

Elected officials are entitled to use the state seal in their official capacity, but not in their capacity as candidates for public office (i.e., in a publication paid for and/or authorized by a principal campaign committee).

We respectfully request that you cease use of the State Seal immediately. Please let me know if you have any questions. Thank you.

The complaint was factually incorrect. My campaign literature included an image of the Oregon State Flag, not of the Oregon State Seal.

I assume that the employee at the Secretary of State's office had not seen my campaign literature, because my district is far from the Capitol. Therefore, I do not fault anyone in that office for acting on the citizen's concerns. They didn't know that the complaint was wrong.

However, I do assume that any citizen familiar enough with the law to know that there are restrictions on the use of the State Seal also possesses the ordinary skills of perception to enable them to distinguish the State Seal from the State Flag. (And that isn't hard: they aren't even the same shape!) In other words, this concerned citizen is probably a busybody associated with one of my opponents' campaigns who sought to (mis)use the Secretary of State's office to intimidate my campaign.

I will not be intimidated. I explained in my reply:

My campaign literature included an image of the Oregon State Flag, not of the Oregon State Seal. Therefore, there is no violation. Please notify the citizen who originated the complaint of her error.

I understand that you are not an attorney (neither am I) and that you are just doing your job in communicating the citizen's concern. Although I am clearly not in violation of the law at all, there are a few things I feel I must say about it.

My inclusion of the Oregon State Flag is a symbolic expression of my support for states' rights, of the primacy of the states in our federal system of government, and of pride for Oregon. It is protected political expression under both the federal First Amendment and under Article I, Section 8 of the Oregon Constitution, which commands that "No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."

Furthermore, my use of the Oregon State Flag is also expressly protected in ORS 186.010, which defines the flag and reads in part to provide "the privilege of use by all citizens upon such occasions as may be fitting and appropriate." The use of flag imagery is fitting, appropriate, and extremely common in political campaigns, and no reasonable person would believe that the use of flag imagery on campaign literature "falsely impl[ies] official indorsement or sponsorship by the State of Oregon." (ORS 186.023(2)(a))

Finally, I note that the warning about "confusingly similar" symbols is not a part of the law; the law itself refers exclusively to the Oregon State Seal.

I am completely confident that there is no violation of the law and that an attempted application of ORS 186.023 in these circumstances would not pass muster on factual, statutory, or constitutional grounds.

If it is the professional opinion of an attorney working for the Secretary of State that my campaign literature is potentially in violation of ORS 186.023, I would be happy to enter a dialogue with them about this matter. Otherwise, I consider this matter closed.

The freedom of speech is a very broad right, but its very core and essence is the protection of controversial speech, especially speech that is critical of the government. Seen in this light, ORS 186.023(2)(b), prohibiting the use of the Seal "[i]n any manner that subjects or exposes the seal of the State of Oregon to ridicule, debasement or infamy" is flagrantly unconstitutional in any possible application, and must be repealed.

For example, if I wished to ridicule the Seal by distributing a political cartoon depicting the Seal on the forehead of a vampire feeding on Lady Liberty, with the vampire wearing a bib reading "ORS 186.023(2)(b)" and Lady Liberty wearing a dress reading "Article I Section 8", that might be a violation of the law — but it is also unquestionably constitutionally protected speech.

In my 2012 Voters' Pamphlet candidate statement, I said "Government is too arrogant. I will deliver the attitude adjustment it needs." Now it seems deeply fitting that I included that text above the image of the Oregon State Flag on my campaign literature. I was born and raised in Iowa, where the state motto is "Our Liberties We Prize and Our Rights We Will Maintain." That attitude has stuck with me indelibly. I cherish my rights and I will defend them zealously. As your representative, it will be my honor to do the same for your rights.

When elected, I will work to clean up the text of poorly-written, overbroad, or unconstitutional laws. I will volunteer to aid people whose rights the State is violating. I believe that the testimony of a sitting legislator, opposing the State's excesses, would hold considerable weight with any judge or jury.

Thank you for the opportunity to fight for all our rights.