Thursday, August 21, 2008

Flagstaff peace activist wins free-speech battle

A law intended to muzzle an Arizona anti-war activist has itself been hobbled on First Amendment grounds, freeing the t-shirt vendor to continue selling items that feature the names of fallen soldiers.

Like several other states, Arizona recently passed a law making it illegal to "knowingly use the name, portrait or picture of a deceased soldier for the purpose of advertising for the sale of any goods, wares or merchandise or for the solicitation of patronage for any business without having obtained prior consent to the use by the soldier or by the soldier's spouse, immediate family member, trustee if the soldier is a minor or legally designated representative." The law was aimed at a Flagstaff-based political activist, Dan Frazier, who produced anti-war, "Bush Lied, They Died," shirts featuring the names of soldiers killed in combat.

That law, always constitutionally dubious, was the subject of a preliminary injunction issued by U.S. District Judge Neil Wake based on the finding that "Frazier had standing to challenge the State’s law and that the controversy was ripe for review" and that "Frazier had shown a strong likelihood of success on the merits."

Given Judge Wake's earlier ruling, it's no surprise that he has issued a permanent injunction (PDF), preventing the state of Arizona from enforcing the law against Frazier and his enterprise.

In his ruling, Wake dismissed lawmakers' claims that Frazier's speech was unworthy of full protection since he's engaged in the commercial activity of selling shirts. Says Wake:

Frazier’s T-shirts are themselves core political speech fully protected by the First Amendment, notwithstanding the fact that he offers them for sale. ... His website is like a streetside table used to disseminate anti-war and political messages in a variety of ways, including displaying and selling his message-bearing T-shirts. The State has criminalized part of his display because the shirts are offered for sale. But if the shirts “would otherwise be constitutionally protected from the present judgment, they do not forfeit that protection because they were published in the form of a[n] . . . advertisement.” New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964).

This is an important point, since excluding commercial activity from First Amendment protection would raise the possibility that free speech protection extends only to those activities that are not economically self-supporting -- essentially preserving speech as a privilege of the well-funded.

Wake further found that "Frazier’s product is his message, and his customers’ message," recognizing that the use of the soldiers' names is at the core of Frazier's anti-war activism.

Unfortunately, Wake's decision is a narrow one. It protects Frazier's activity, but doesn't find the law in and of itself unconstitutional. A year or two or three from now, another political activist may find him or herself fighting the same battle that Dan Frazier has already won.

Also, Frazier still faces a civil lawsuit in Tennessee filed by the parents of a man killed in Iraq. That lawsuit seeks $40 billion in damages (yes, billion).


Blogger BobG said...

It would seem to me that he should legally be allowed to use their names/pictures, etc, but that the family of the soldiers should have the right to bring a lawsuit against him which would be decided by a jury. Just because something is legal does not always mean that it is ethical.
Just my opinion.

August 22, 2008 12:01 PM  

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