Like most people (at least based on my Google AdSense stats), I rarely click on web page ads. Earlier today, though, I clicked an ad for a T-shirt, but not because I wanted to buy the T-shirt in question. I clicked because, according to the ad, six states had banned the shirt, and I'm kind of a fan of the whole First Amendment thing we claim to have in this country.
The Site and the Shirt
My click took me to a site called "Carry A Big Sticker," which sells a variety of left-wing T-shirts, bumper stickers, and other stuff. One of the items on the site is a T-shirt that lists the names of soldiers who have been killed in the "War on Terror" along with the message "Bush Lied, They Died." It seems that the shirt has stirred up a bit of controversy (and, ironically enough, probably extra profits for the site's owner, Dan Frazier).
Several different states have, often at the behest of families and friends of the fallen, passed legislation to prevent anyone (ie, Mr. Frazier) from using the names or likenesses of deceased soldiers (or in some cases any soldier) to make a profit or for political purposes. I'm going to ignore the ironic fact that the same friends and family members behind these lawsuits will probably be clamoring to have their loved ones' names emblazoned on a memorial at taxpayer expense in the near future, as well as the fact that they probably wouldn't be "mentally anguished" by the same shirt without the anti-war message. Instead, I'll focus on whether or not Mr. Frazier's shirt is entitled to protection under the First Amendment.
Disclaimers & Warnings
I am not a lawyer. The views expressed here are at best armchair extrapolations based on years of following coverage of First Amendment issues. Anything I say here could be way off base and, in all likelihood, can and will be used against me in a court of law, as I have given up my right to remain silent. Fortunately, I have the right to an attorney (and if I cannot afford an attorney the court will appoint one for me). Void where prohibited. Don't eat yellow snow. May cause drowsiness. If rash develops, see your doctor. Don't run with scissors. Never wear white after Labor Day.
The Coattails of a Dead Man
The names, likenesses, and personalities of American citizens are, as anyone who's seen Chasing Amy knows, protected by law, and you have ask permission (and in some cases pay) to use them. These rights are generally considered property rights, which means they can be passed to a person's heirs. Based on right to publicity (the legal name for likeness rights) alone, Mr. Frazier would in fact need permission from all the dead soldiers' heirs to use their names. Of course, most soldiers probably don't think to include likeness rights in their wills, so determining which relative has final say could be problematic.
Not So Fast!
There are exceptions to the general publicity rights laws for political speech, but most only cover non-commercial use. Frazier donates $1 from each shirt to charities that assist families of fallen U.S. soldiers, but he keeps the rest, presumably making a profit. However, the case of Riley v. National Federation of the Blind established protection for commercial speech that is "inextricably intertwined" with political speech. If a judge decides that the T-shirt meets this criterion, Frazier is entitled to full First Amendment protection. Frazier could also try to claim that soldiers are "public figures" and therefore not entitled to the same personality rights protections as a private citizen. This certainly applies to high-ranking military men (General Patreus, for instance), but convincing a judge that the average grunt is a public figure would be much more difficult.
Those Who Won't Be Prosecuted
If the laws that make the "Bush Lied, They Died" T-shirt illegal are upheld, the real sin will be that they will undoubtedly be selectively enforced, focusing on anti-war protesters like Frazier. Here are just a few people who are not likely to be prosecuted, even though they are using dead soldiers' names or likenesses for profit or political purposes:
- The news infotainment show that airs a "profile in courage" of a soldier killed in the War In Iraq. If such a piece is being aired, it is being aired because producers believe it will bring in ratings and therefore profit.
- The newspaper editor who includes a list of the fallen in the Veterans' Day issue in hopes of selling a few extra papers.
- The politician who tells the story of a fallen soldier in a stump speech.
- The minister who organizes a candlelight vigil for the fallen. Whether or not the minister acknowledges it, such activities are designed to attract new members to the congregation, which usually means profit for the church. Because religion and politics are so closely tied in this country, increasing the flock could also be considered political.
- Toby Keith. I normally link all celebrity names to Amazon, but I'm not helping that redneck sell any CDs, even if I would get a cut. Try something by Steve Earle instead.
Of course, the sad fact is that, while Dan Frazier is trying to stop the war, many of these people have an interest in keeping it going, since it makes their jobs a little easier. Taken to the extreme, these laws would even technically allow the family of any soldier named "Charlie" or "Baker" to sue Billy Joel, who I stole the title of this post from. I just hope Billy Joel doesn't sue me.