The American Civil Liberties Union is asking a federal judge to void a new Arizona law making it a crime to sell products that use the names of dead military personnel, in what may be the first such challenge of any law of this kind in the nation.
In legal papers filed Thursday in U.S. District Court, the attorneys charge the law violates the constitutional rights of Flagstaff businessman Dan Frazier. The law took effect May 24.
Frazier sells T-shirts featuring the words “Bush Lied” on one side and “They Died” on the other — over a field of the names of more than 3,000 U.S. military personnel who have died in Iraq.
What has caused immediate concern, the lawsuit states, was that Flagstaff police officers told Frazier last week that they are preparing to report his activities to the city attorney’s office “which would seek the filing of a criminal complaint.”
The law subjects offenders to up to six months in jail.
Sen. Jim Waring, R-Phoenix, sponsor of the law, said the lawsuit does not surprise him.
Waring said he believes the new law will withstand legal challenges. He pointed out that the measure gained unanimous legislative approval as well as the signature of Gov. Janet Napolitano.
Other states have enacted similar laws. Waring said there have been no rulings and no lawsuits testing those statutes.
At the heart of the issue is the scope of the First Amendment rights to free speech. Frazier has argued he is entitled to protest the war.
Waring’s measure seeks to avoid that issue by limiting the scope of the prohibition on the use of the names of dead troops.
It applies to those who make money off the sale of such items without permission from relatives of the dead service members.
Charles Babbitt, one of the lawyers who filed the suit, acknowledged courts have concluded there is less protection for what is considered “commercial speech.” But he said it’s irrelevant that Frazier is making money off the shirts as long as what he is doing has a legitimate political purpose.
Alessandra Meetze, director of the Arizona chapter of the ACLU, said it’s no different than pundits Rush Limbaugh or Al Franken selling a book of political thoughts. She said such books and authors are protected by the First Amendment even though they make a profit. She also said the situation is different than someone selling items with the name of a pop star.
“People are buying those Tshirts because of the political message,” she said. “They’re not buying it because of the name of the soldier.”