Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“Government has no other end, but the preservation of property.”     John Locke

July 12, 2007

Arizona Trashes The First Amendment

by Doug Mataconis

The Arizona Senate has passed a resolution banning the sale of t-shirts that carry an explicitly political message:

PHOENIX — State lawmakers voted Monday to enact new laws designed to stop the sale of anti-war T-shirts with the names of dead soldiers — a measure a veteran media lawyer says is “unconstitutional about three or four different ways.”

On a 28-0 margin, the Senate agreed to make it punishable by up to a year in jail to use the names of deceased soldiers to help sell goods. The measure, SB 1014, also would let families go to court to stop the sales and collect damages.

What about that pesky First Amendment, you might ask ? Well, they have an answer for that:

Rep. Jonathan Paton, R-Tucson, a backer of the measure, doesn’t see it that way. He said because Frazier is selling his shirts for a profit means it is not constitutionally protected political speech.

Umm, sorry but I don’t think so.

The measure is headed to the Governor, who may well veto it, but given the fact that it passed both houses of the Arizona legislature unanimously, the probability of an override would seem pretty high.

And just in case you might think Arizona is alone in being this blatant, the shirts in question are already banned in Louisiana and Oklahoma.

H/T: Hit & Run

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21 Comments

  1. Doug,

    This guy is doing this without the families of the deceased permission. When asked to remove some names by family members, he has flat out refused. So, does his right to Free Speech trump the family’s right to privacy?

    Nick

    Comment by Nick M — July 12, 2007 @ 10:24 am
  2. Aren’t these names of the killed public record? I’ve seen the names and pictures scrolled on TV news and other programming.

    Comment by John Newman — July 12, 2007 @ 10:43 am
  3. Yes, they are a matter of public record. But, does that mean someone gets to profit off of them without getting permission from the deceased’s family?

    Comment by Nick M — July 12, 2007 @ 10:45 am
  4. Just because it might be public record doesn’t give someone the right to use it for a profit. Especially if the families of those deceased are for the war. That would seem like a slap in the face to me.

    Comment by Aimee — July 12, 2007 @ 11:06 am
  5. Legally, I don’t think there is any bar to them using the names on the shirt. They are a matter of public record, and any right to privacy is a personal right that would have ceased to exist when the person died.

    Morally, though, I agree that it’s a pretty sickening thing to do.

    This is another one of those cases where the First Amendment gives someone the right to be offensive.

    Comment by Doug Mataconis — July 12, 2007 @ 11:09 am
  6. Good bye first admendment, we’ve had some good times.

    Comment by Gezis — July 12, 2007 @ 11:30 am
  7. As I suspected, this law does not ban him from making the t-shirts or using soliers names. It bans him from using the soldiers names without permission of the family. I see absolutely no problem with this.

    Comment by Nick M — July 12, 2007 @ 12:41 pm
  8. Morally, what the man does is questionable.

    Legally, the state is in the wrong.

    But how is it different from the media using the names without permission?

    I am not just talking news. Politicians, talk show hosts, authors… all of whom can and do make a profit from it, have chosen to drop the names of soldiers.. without permission. And these media outlets are also designed to make a profit, even under the guise of delivering content that people need to know.

    So, now we have a law that stops this man from making anti-war t-shirts with a unauthorized name, a name that is in public record.

    Next, the name will be unable to be used in books. They make a profit, right?

    Next, the media will be unable to report it… they make a profit, right?

    Comment by Ted — July 12, 2007 @ 1:15 pm
  9. Ted,

    I don’t know about their names being used without permission by politicians, media outlets, etc. Typically, when service people’s names are used in an editorial nature, the family is interviewed as well. In this case, families have specifically petitioned this man to not use their loved one’s names, as they do not agree with his message. He has refused, basically saying that his right to free speech trumps their right to privacy. While the fact that they died is a matter of public record, they may not have agreed with the message “Bush Lied, They Died.” Since everything else goes to the next of kin when a person dies, shouldn’t the right to use a namre for a message go to them as well?

    Comment by Nick M — July 12, 2007 @ 1:29 pm
  10. namre = name

    Comment by Nick M — July 12, 2007 @ 1:29 pm
  11. Well, under most current state and federal laws governing the subject (and there aren’t a lot surprisingly) the media can’t use your name or likeness without permission except in reporting news, making commentary, or writing history; unless you are a “public personage”, and involved in events being reported on.

    A politically oriented t-shirt using private individuals names is none of those things.

    Reportage, documentary, and parody are clearly protected, but most fictional depictions (episodic television, movies, novels etc..) are not; this is established law in this country.

    I would say that Souveneirs would fall into the unprotected classes of speech.

    If it was Arnold Schwarzenegger or Paris Hiltons name being used on the shirt, they would sue, and they would win. How is this any different?

    The only way I can see them legitimately and successfully defending themselves is by saying either that a t-shirt counts as reportage of events… and honestly that’s not going to stand up… or that by dying in a well publicized war, that these servicemen have become “public personages” (which has never been a well defined thing by the way).

    Comment by Chris — July 12, 2007 @ 1:42 pm
  12. Chris,

    You may be right, but it’s my understanding with respect to privacy laws here in Virginia that any right to assert a violation ceases to exist when the person dies. A claim like this cannot be asserted by the family or the deceased person’s estate.

    Assuming this is also true in Arizona, then, legally, this is perfectly acceptable.

    Again, I think it’s sleazy but its not illegal

    Comment by Doug Mataconis — July 12, 2007 @ 1:46 pm
  13. You don’t understand. We gotta support this law cuz we gotta support the war. If we don’t support the war the terrorists will come here and take away our freedom.

    Comment by Bob Weber — July 12, 2007 @ 2:51 pm
  14. Doug,

    You’re right this was not illegal. It now is. So now the question is: “Is this new law unconstitutional?” I don’t think it is. I do not see this as being protected speech. If this was a artist’s rendering of soldiers, that would be one thing. I do not think that this guy’s right to free speech trumps the families rights to not have their names associated with a political message that they do not agree with. To me, it’s the same as the case about non-union employees being forced to pay the unions money that can be used for supporting candidates that the non-union members do not support.

    Comment by Nick M — July 12, 2007 @ 2:51 pm
  15. Nick,

    As offensive as it is, its clearly political speech. What if this was a close up of the Vietnam memorial ?

    Comment by Doug Mataconis — July 12, 2007 @ 2:59 pm
  16. Doug,

    You’re correct. After reading my last statement, I was conflating issues. I agree that this is protected speech. But, does he have the right to use deceased soldiers names without consent of the estate? AZ law now says no. AZ is not banning this guy from making the t-shirts, they are not banning him from using deceased soldiers’ names. AZ is saying that he has to ask the families of the deceased for permission to use the deceased’s name. He can print the names of those for whom receives consent.

    Comment by Nick M — July 12, 2007 @ 3:21 pm
  17. I wonder what would have been legislated had this fellow produced a t-shirt with the names of the victims of 9/11 on the burning Twin Towers with the words, “Never Forget.”

    Comment by John Newman — July 12, 2007 @ 5:21 pm
  18. John,

    My guess would be nothing. Why, because none of the families would have complained.

    Comment by Nick M — July 12, 2007 @ 5:55 pm
  19. Nick, newspapers are sold for profit. Suppose George Bush can sue them for using his name without permission?

    Comment by gex — July 12, 2007 @ 10:47 pm
  20. Gex:

    George Bush is a public figure; these deceased soldiers are not. The rules are different for public figures, especially government officials (Doug, please correct me if I am wrong; this is my understanding from what I learned from a busniess law class I took some time back).

    Comment by Stephen Littau — July 13, 2007 @ 2:07 pm
  21. Stephen, that’s an interesting concept, the Commander-in-Chief is a public figure but his troops are not.

    Comment by John Newman — July 13, 2007 @ 9:19 pm

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