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Brooklyn-based artist and environmental activist Lopi LaRoe sees Smokey the Bear as a friend. As a kid raised by environmentalists, she grew up with him, she says, and feels a particular connection to the affable but informative cultural touchstone invented by the US Forest Service in 1944. “So I thought it was a perfect culture-jamming opportunity to take this very familiar conservationist and turn him into an anti-fracking activist,” she tells the Voice.
The Forest Service, on the other hand, isn’t a fan of LaRoe’s representation of a Smokey who tries to prevent “faucet fires.” Nearly a year after LaRoe began carrying images of a newly radicalized Smokey to protests, selling T-shirts, and circulating what soon became an Internet meme, the Forest Service asked LaRoe to cease and desist.
“The feds want to frack our national parks,” LaRoe says. “It’s not surprising that they’re coming after me to try and censor my political speech.”
For nearly two years, the Forest Service has been embroiled in a debate over whether to allow hydraulic fracturing in western Virginia’s George Washington National Forest.* Concerned citizens and environmental activists have pointed out that the forest contributes to the Shenandoah Valley water supply, serving 4.75 million people–and that hydraulic fracturing has been linked to flammability. Last year, the USDA also came under fire (sorry) for giving loans to businesses with drilling leases, which internal e-mails revealed could potentially violate the National Environmental Policy Act.
The Forest Service, however, argues that LaRoe’s representation of Smokey is separate from his intended purpose–and in violation of the Smokey Bear Act of 1952.
“If you want to use Smokey’s image on a product, you need to ask permission and get a license to do so,” Helene Cleveland, Forest Service fire prevention program manager, tells the Voice. “If she stopped selling products, that would satisfy the cease and desist request.”
“We would also ask her to consider using some other image she would create herself so people are not confused,” Cleveland adds.
LaRoe, meanwhile, had a lawyer send a reply to the Forest Service, though she’s still seeking someone to take on her case pro bono.** In response to the cease and desist request, Lopi argued that her right to use Smokey is protected under the First Amendment. Her letter claims that the Forest Service’s commercialization claims are moot–by “transforming” the image, LaRoe says she’s protected under the doctrine of fair use.
“Anybody who looks at that image knows that it’s Smokey Bear, the image or facsimile,” Cleveland says. “We try to make sure that Smokey only talks about fire prevention and education, and when his image is used elsewhere, it just confuses and dilutes the message.”
In 1992, the Sierra Club, along with environmental group LightHawk, preemptively sued the Forest Service for infringing on freedom of speech rights over Smokey Bear. LightHawk ran a series of ads in newspapers showing Smokey with a chainsaw and the words “Say it ain’t so, Smokey.” But following a cease-and-desist from the Forest Service–and a countersuit–a US district court ruled that LightHawk’s “purely expressive political speech” was protected. Still, “the Court by no means intends to create an open season on Smokey Bear,” the judge wrote, preserving parts of Smokey’s proprietary status.
“Those portions of the regulatory scheme addressing solely commercial uses remain intact,” District Judge Carolyn Dimmick wrote.
LaRoe, however, doesn’t plan on backing down. “This is a fight that I’m very ready to take on. I’ll go to prison,” she tells the Voice. “Martin Luther King Jr. said that if there is a law that is unjust it is our duty to break that law.
“I would definitely go to prison for my first amendment rights to make a statement,” LaRoe says. “That’s how important that is to me.”
*The original post listed the name of the forest incorrectly. We regret the error.
**The original version of this post read that LaRoe had already obtained a lawyer.