Unconstitutional Restriction on Use of Fallen Soldiers' Names?

Reason's Hit & Run reports on a new Arizona statute (Ariz. Rev. Stat. § 13-3726) that would limit the use of names and pictures of dead soldiers. The law, which was apparently prompted by outrage over the sale of antiwar T-shirts that contain the names of soldiers killed in Iraq, reads:

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.

The law, it seems to me, is unconstitutional, for two reasons:

1. a. 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).

b. The T-shirts also don't fit within any "right of publicity" exception that is likely to be recognized by the courts. 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.

Some lower courts, most notably the California Supreme Court, have held that "nontransformative" use of another's name or likeness, such as a T-shirt or a coffee mug that merely contains a celebrity's picture, may also be restrictable. But the speech here is clearly transformative, in that it "add[s] something new, with a further purpose or different character, altering the first with new expression, meaning or message," "add[s] significant expression beyond" the "literal depiction or imitation of a [person] for commercial gain," and uses the person's name as "one of the 'raw materials' from which an original work is synthesized," as opposed to having "the depiction or imitation of the celebrity [be] the very sum and substance of the work in question." I have argued that the "transformative" test isn't clear or speech-protective enough; but even under this test, the T-shirts would be protected, and the statute would be unconstitutionally overbroad.

Even under the awful Missouri Supreme Court "Tony Twist" decision (which I have criticized here), it seems likely that the T-shirts would be protected. A court would have to engage in the mushy inquiry of whether the T-shirt "predominantly exploits the commercial value of an individual's identity" as opposed to having as its "predominant purpose" be "[the making of] an expressive comment on or about a [person]," but my guess is that for an overtly political T-shirt like this, in which the people's names are part of the political message, the inquiry would come out in the speaker's favor — and the Tony Twist case is an outlier among lower courts, which are generally more protective of speakers' rights in this context.

2. Moreover, even if a categorical restriction on the use of others' names and likenesses on T-shirts would be constitutional, a selective ban on the use of deceased soldiers' names seems to violate R.A.V. v. City of St. Paul, which held that even if a broad category of speech (there, fighting words) can be restricted, the First Amendment bars the selective restriction of content-based subcategories of the speech (there, fighting words that "arouses anger, alarm or resentment ... on the basis of race, color, creed, religion or gender").

The R.A.V. test is complicated and in many ways vague, but it does seem pretty clearly applicable here:

  1. It's not the case that "the basis for the content discrimination [deceased soldiers' names vs. others' names] consists entirely of the very reason the entire class of speech at issue [speech that uses others' names without permission] is proscribable."
  2. It's not the case that "the subclass happens to be associated with particular 'secondary effects' of the speech, so that the regulation is 'justified without reference to the content of the ... speech.'" (Recall that the offensiveness or persuasiveness of the speech, and the effects that flow from them, are not counted as secondary effects. "The emotive impact of speech on its audience is not a 'secondary effect.'")
  3. This is not a generally applicable law that applies both to speech and conduct and that covers a particular subcategory "incidentally."
  4. It is not the case that "the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot."

So, the bottom line: The Arizona statute is unconstitutional. So is a similar law in Louisiana, which is possibly narrower, but still unconstitutional for reason #2 and a version of reason #1. And so is a similar law in Oklahoma (21 Okla. Stat. Ann. § 839.1A), though reason #2 wouldn't apply because a nearly identical Oklahoma law equally covers the use of people's names and likenesses more broadly, without limitation to fallen soldiers.

Thanks to Nick Sarwark for the pointer.

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