How long will the constitution last?

[Jimayo]

Lawmakers seek to stop anti-war T-shirts from naming dead soldiers

By Howard Fischer

Capitol Media Services

Tucson, Arizona | Published: 05.14.2007

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.

Dan Frazier, a Flagstaff businessman who is selling the T-shirts that have caused all the fuss, told Capitol Media Services he doesn't intend to halt the sale of the $20 shirts even if Gov. Janet Napolitano signs the measure. He said it's an illegal infringement on his First Amendment rights.

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.

But attorney Dan Barr said the question of whether someone makes money is legally irrelevant.

"The fact that these people died in Iraq is nothing more than a fact," Barr said. And he said listing their names on a T-shirt -- whether sold or given away -- doesn't change that.

The shirts at issue feature the words "Bush Lied/They Died" superimposed over the names of more than 3,000 soldiers who have died since the U.S. invaded Iraq. Frazier has since come up with some variants, including one that says on one side "Support our Remaining Troops," with "Bring the Rest Home Alive" on the other.

Paton said anyone is free to put all those names on a placard and hold it up in the town square.

"It's about you selling or profiting off those soldiers' names the way somebody would off of (pop singer) Britney Spears," he said.

"I really don't see it as trading on the names (of the soldiers) the same way somebody selling a Celine Dion T-shirt is trading on her name," said Frazier.

And Barr said the T-shirts at issue do not show a single identifiable soldier, like Pat Tillman, where someone might buy the shirt solely because it features the photo of the former Arizona Cardinals safety.

"The names of all these people are public record," Barr said. "It's not like they're taking something that isn't in the public domain already."

Paton said the law is legally defensible, noting there are exceptions for news reports and even in books, plays, music as well as film or videos as long as these items, by themselves, are not selling anything else.

But Barr said that just proves how flawed the language is.

"Books and plays are done to make money," he said. And Barr said that the measure puts the government in the position of deciding things like what is "an original work of fine art," something the courts have said is impermissible.

Frazier said it will take a court order to stop him from selling the shirts. But he said he hopes it doesn't come to that.

"It's just a hassle for me if I've got to fight this sort of stuff in court," he said.

And Frazier said he is hoping Napolitano vetoes the measure. Gubernatorial press aide Jeanine L'Ecuyer said the governor will not comment on the bill until she sees it. But a veto would be the only negative vote against it: It cleared both the House and Senate without dissent.

Frazier said all the publicity about the legislation has had one positive effect. "It always boosts my sales of my shirts," he said.