Unconstitutional Restriction on Use of Fallen Soldiers' Names:

As I wrote in July, the newly-enacted Ariz. Rev. Stat. § 13-3726, which was apparently prompted by outrage over the sale of antiwar T-shirts that contain the names of soldiers killed in Iraq, provides:

A. A person shall not knowingly use the name, portrait or picture of a deceased soldier [defined as referring to any member of the U.S. armed forces] 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....

C. This section does not apply to the following:

1. The use of a soldier's name, portrait or picture in an attempt to portray, describe or impersonate that soldier in a live performance, a single and original work of fine art, a play, book, article, musical work or film or on radio, television or other audio or audiovisual work if the performance, musical work, play, book, article or film does not itself constitute a commercial advertisement for any goods, wares or merchandise.

2. The use of a soldier's name, portrait or picture for noncommercial purposes, including any news, public affairs or sports broadcast or account.

3. The use of a soldier's name in truthfully identifying the soldier as the author of a particular work or program or as the performer in a particular performance.

4. Any promotional materials, advertisements or commercial announcements for a use described in paragraph 1, 2 or 3.

5. The use of photographs, video recordings and images by a person, firm or corporation practicing the profession of photography to exhibit, in or about the professional photographer's place of business or portfolio, specimens of the professional photographer's work, unless the exhibition is continued by the professional photographer after written notice objecting to the exhibition by the portrayed soldier or a person who may enforce the soldier's rights and remedies.

6. A soldier's picture or portrait that is not facially identifiable.

7. A photograph of a monument or a memorial that is placed on any goods, wares or merchandise....

The prohibited conduct is made a misdemeanor, and made civilly actionable.

In yesterday's Frazier v. Boomsma, a federal district court preliminarily enjoined the criminal prohibition on the grounds that it is likely to be unconstitutional; the reasoning suggests the accompanying civil liability provision is unconstitutional as well. The Court rightly held:

1. The T-shirts don't fit within the "commercial speech" doctrine, under which commercial advertising gets reduced First Amendment protection — the T-shirts aren't advertising (except insofar as the cover of any work, such as a book or a magazine, advertises itself), but rather speech sold for money. And the fact that speech is sold for money doesn't strip it of protection (whether it's a book, a movie, or a T-shirt). Even the advertising for the T-shirts is fully protected, the court concluded, because it is advertising for fully protected speech, rather than just for a nonspeech product.

2. The T-shirts also don't fit within any "right of publicity" exception to the First Amendment. The Supreme Court has held that state law may make actionable the taking of another's entire act (for instance, when a TV station rebroadcasts a "human cannonball" act); but that narrow exception doesn't apply here.

3. The court also held that even if in some situations some speech may be restricted to protect grieving families of the recently dead, this would at most be allowed in a very narrow range of cases, and wouldn't cover every commercial use of the names of dead soldiers.

Thanks to Arizona State Prof. Jim Weinstein for the pointer.

Related Posts (on one page):

  1. Unconstitutional Restriction on Use of Fallen Soldiers' Names:
  2. Unconstitutional Restriction on Use of Fallen Soldiers' Names?
Bla bla (mail):
Does this mean the section of the Lanham Act banning the use of a living President's name is unconstitutional too? I don't recall any courts ever griping about that provision.
9.28.2007 7:04pm
Any thoughts on the Stolen Valor Act in this same context (i.e. the parts that now make it a felony to have claim to have won a Medal of Honor, etc.)?
9.28.2007 7:34pm
Eugene Volokh (www):
Bla bla: I think the provision you mention bars the registration of trademarks using a President's name. That leaves people free to use the name -- it just denies them certain benefits (such as enforcement of exclusive use) that trademark registration provides.

One might still criticize limits on trademark registration (especially ones that are viewpoint-based, such as the ban on disparaging trademarks that is the focus of the Redskins litigation). But at least such limits don't actual ban the use of any name.

Billb: If the Act were limited to false claims of having won a medal, it might well be constitutional under the "false statements of fact" exception to First Amendment protection (the one that generally authorizes bans on libel, perjury, fraud, and the like). But if the Act is read literally to bar wearing such medals (or imitations) even in contexts where no false statement of fact is being made -- for instance, if one is doing that in a play or a movie -- then it would be unconstitutional.
9.28.2007 8:20pm
Bill Poser (mail) (www):
Is there any reason to think that the Arizona legislature actually thinks that this legislation will withstand challenge? Since many of them are lawyers and they also receive legal advice from the Attorney General, they can hardly be uninformed. Or is it correct, as I suspect, to interpret this as political grandstanding?
9.28.2007 8:31pm
Dilan Esper (mail) (www):
As Professor Volokh points out, this is a pretty easy case under the First Amendment.

Nonetheless, I am not sure that the trial court's reasoning here is entirely right.

First, I think that the right of publicity "exception" to the first amendment is broader than the Zacchini fact pattern of appropriating the entire act; the Court didn't say this was the only thing the state could regulate, but rather just said this was one thing the state could regulate. Lower courts, such as the California Supreme Court in the Saderup and Polydoros cases, have held that the right to publicity is constitutional as applied to nontransformative uses of people's names and likenesses without their consent.

In contrast, this is a transformative use, as the name is being used to make a political (and perhaps artistic) point about the war.

Second, I also think the Court is wrong that it could be constitutional to prohibit the use of names just after the person dies. Imagine if a particularly well known member of a community died in Iraq (we'll call this person "Joe Smith"), and someone immediately printed up t-shirts that said "How many more Joe Smiths have to die. Stop the war in Iraq". I don't see how the suppression of that t-shirt wouldn't be unconstitutional as well.
9.28.2007 9:07pm
Amicus Fortiori (mail) (www):
If you read the order, you see that the judge did not address the facial validity of the statute. He only ruled that the statute was invalid as applied to a merchant who was using the soldier's likenesses on T-shorts that were clearly conveying "core political speech."

One intriguing part of the analysis is whether this was a "content" based restriction, which the court said it was. The analysis that the court used has ample support, but it's always seemed to me that it ignores what the "content-based" inquiry is really supposed to be about - whether applicability of the regulation depends on whether the government agrees or disagrees with the message. Since this statute prohibited a commercial use on a T-favoring the war as well as one opposing it, there is a substantial argument that the restriction was content neutral. It was the message, not the images, that the court held to be the First Amendment expression, so one could certainly argue that he should have been looking at the "content" of the message, not the content of the T-shirt.

This ruling does not address the use of the soldiers' likenesses for purely commercial-speech purposes. In that setting, it seems to me like this statute is merely a codification of a slightly modified common law right of publicity. See Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir.1974)and White v. Samsung Electronics, 971 F.2d 1395 (9th Cir. 1992). I assume those cases, and others like them, are the reasons that the legislature thought they could do this, and in those setting, perhaps they can.
9.28.2007 9:15pm
Bob from Ohio (mail):
There is a compelling government interest in protecting against the exploitation of soldiers who gave their life in service of their country.

Put Paris Hilton's name on a t-shirt, you can't sell it. Put a dead heros name on one, go right ahead.
9.28.2007 10:04pm
Bill Poser (mail) (www):
Bob from Ohio,

I don't see any "exploitation" here. There is no implication that the named soldiers endorse either the opinions of the wearer or the sale of the shirts.

Furthermore, why is the use of the names of the dead to oppose the war more exploitative than their use in supporting it? Given the false premises under which the administration justified the war, the inadequate preparation, inadequate equipment, and insufficient troop strength, the argument of opponents of the war that it is they who care more about the lives of the troops has considerable force. Warmongers wrapping themselves in the flag is one of the oldest scams on record.

Since when can't you put Paris Hilton's name on a T-shirt?
You can't use it as a trademark, but suppose that you made up a T-shirt to protest the popularity of vacuous celebrities and included her name in a list of several? I'm pretty sure that would be protected under the First Amendment.
9.28.2007 10:28pm
Dilan Esper (mail) (www):
The analysis that the court used has ample support, but it's always seemed to me that it ignores what the "content-based" inquiry is really supposed to be about - whether applicability of the regulation depends on whether the government agrees or disagrees with the message.

No, that's viewpoint-based regulation. For the distinction, read the Perry Educators' Association case.

[Different commenter:] There is a compelling government interest in protecting against the exploitation of soldiers who gave their life in service of their country.

Put Paris Hilton's name on a t-shirt, you can't sell it. Put a dead heros name on one, go right ahead.

In other words, you believe that it is "exploiting" a soldier to argue that the soldier's death is a tragedy and we need to change our Iraq policy to prevent more such tragedies.

I don't know what to make of that argument, except to say that it is inconsistent with what the First Amendment is supposed to be about. We are supposed to have wide latitude to express political arguments in this country. One of those arguments is "look at all these people the Iraq War has killed-- it needs to end". Whether one labels this "exploiting the soldiers" or in any other fashion, it is pretty clearly a political argument of the kind that goes to the very core of our First Amendment protection.

As for Paris Hilton, the t-shirt you are imagining makes no political argument. It may be artistic (in which case it may still be protected as a transformative use), but it isn't at the core of First Amendment protection.

A t-shirt that did, however, make a political argument and used Paris Hilton's image to make that point would be protected for the same reason the use of the soldier's names are. For instance, t-shirts that said "free Paris Hilton" during her jail term were certainly protected speech, as would a t-shirt that listed the names of all these famous young celebrities under the message "CNN-- start covering the real news again".
9.28.2007 10:43pm
David M. Nieporent (www):
Dilan is definitely right on the RoP claim; the idea that Zacchini represents the outer bounds of the RoP is odd. But I can't see that a state legislature can create a special RoP only for soldiers, so that's a problem with this statute.
9.28.2007 10:44pm
Richard Aubrey (mail):
The law is a ass.

What really grates is the absolute certainty that those who make the constitutional argument are giggling themselves silly at the pain the bereved suffer.
9.29.2007 1:26am
Baxter (mail) (www):
I guess I'm in a distinct minority, but I think the judge got it wrong. That statute is a "manner" restriction. You're allowed to convey whatever message you want, but you're not allowed to convey it in one narrowly defined manner without consent. And the statute makes no distinction based on the viewpoint of the message. As was mentioned above, the judge went awry in saying that the statute is not "content-neutral." That's an unfortunate term, because it is easily misconstrued as it was by this judge. It's supposed to be a determination of whether the law favors one viewpoint over another. That statute doesn't.
9.29.2007 2:21am
Ken Arromdee:
In other words, you believe that it is "exploiting" a soldier to argue that the soldier's death is a tragedy and we need to change our Iraq policy to prevent more such tragedies.

You're using the soldier's image for a cause that the soldier would likely have opposed. Whether you want to call this "disrespectful", "exploitative", or whatever is just a matter of semantics, but it's not a very nice thing.
9.29.2007 6:35am
Seamus (mail):
So this law would make it illegal to sell a T-shirt with the picture of Ike or George S. Patton, Jr., on it? Or George Washington (who upon his death bore the commission as lieutenant general that was issued to him at the time of the quasi-war with France)? Actually, since the statute defines "soldier" to include any "former member of the armed forces of the United States," I guess it would be illegal to sell a t-shirt bearing a picture of John Kerry, John F. Kennedy, Richard Nixon, Ronald Reagan, Harry Truman, Andrew Jackson, Ulysses Grant, Benjamin Harrison, Theodore Roosevelt, or William McKinley, to name just a few.
9.29.2007 4:24pm
Justin Levine:
Problems with this on several levels -

As others have pointed already out here, Professor V. is wrong on the 'right of publicity' analysis. The 'right of publicity' has been upheld in fact patterns far broader than the 'Zachini'-cannonball fact pattern. A broad range of commecial appropriations of one's likeness can be enjoined under 'publicity' rights.

But that is the real problem here.

So-called 'rights of publicity' SHOULD be considered unconstitutional by the courts - but aren't. So what this state was doing was simply trying to extend the rights afforded to celebrities to our own soldiers. Again, I think publicity laws should be struck down en mass as violations of the First Amendement. But as long as courts insist on upholding them, why shouldn't they apply to our soldiers instead of just celebrity elites??
9.29.2007 6:26pm
David M. Nieporent (www):
Baxter -- as Dilan pointed out in his 9:43 PM post, you're confusing content-based and viewpoint-based.

You're also creating a much bigger loophole in the first amendment than the courts do. The rule isn't that restrictions are allowed as long as they're termed "manner" restrictions.
9.29.2007 7:54pm
theobromophile (www):

I don't see any "exploitation" here. There is no implication that the named soldiers endorse either the opinions of the wearer or the sale of the shirts.

If the soldier had said to his family, "I am thrilled to serve my country and the free world this way. If I die, I hope that people look at my death as a sacrifice, happily and freely made, for a great cause," then it is ABSOLUTELY exploitive to put his name on a shirt as a reason for ending the war in Iraq.

The First Amendment does not prevent libel and slander. While it is a stretch, one can argue that using a soldier's name, who freely went into this war (recall, folks, we don't have a draft) and gave his life for something he believed in, to oppose the cause that the soldier died for, is simply not true. It's not a fact; it's not an opinion; it does not seem as if it should be protected.

David Nieporent,

True, but you are allowed reasonable time, place, and manner restrictions. Is it unreasonable to refuse to allow people to use the names of the dead in a way that conveys a misleading message...? Aren't you basically requiring people to fact-check first?
9.29.2007 10:02pm
David M. Nieporent (www):
I don't know what you mean by "conveys a misleading message." What message do you think it's conveying, and what's misleading about it?
9.30.2007 4:32am
theobromophile (www):
Message: that such deaths are "bad" (i.e. tragedies, an exploitation of the soldiers, unconscionable and unjustifiable); and, as a result, we should not be in Iraq. The misleading part is that some of the soldiers believed in the war and believed that their deaths were sacrifices for a greater good; ergo, the deaths are not "bad."
9.30.2007 11:59pm
x (mail):

I'm having a hard time squaring your opinion on this with what seems to be your support for Chelsea Clinton's 'right of publicity' to remove that photo from the restaurant. What is the difference?

Was Chelsea simply lucky enough that the offense occured in NY where the statute hasn't been ruled unconstitutional?

Is she famous or enough of a public figure that her 'right of publicity' needs to be protected? That really seems illogical since a famous person has other venues such as copyright or trademark by which to contest commercial uses of their likeness or name. What venue other than libel/defamation do non-famous people have to keep their names/likeness from being appropriated
10.1.2007 10:29am