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.

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