Don't Offend Us in Arizona

I have written a number of times about universities establishing a "right not to be offended" that supersedes free speech.  This is a bit old, but apparently our confused state of Arizona has done the same thing:

The Arizona Senate has unanimously passed
a resolution banning the "Bush Lied, They Died" t-shirts from sale in
the state. The shirts include the names of hundreds of U.S. troops
killed in Iraq in fine print, which legislators apparently find
unseemly, and which they say makes the shirts commercial speech,
instead of political speech, which the Supreme Court says enjoys more
First Amendment protection.

This theory is absurd.  Printing it on a T-Shirt and selling it for money no more converts this into commercial speech than printing Maureen Dowd's column on paper and selling it for money makes her editorials unprotected.   The law makes it

punishable by up to a year in jail to use the names of deceased
soldiers to help sell goods. The measure, SB 1014, also would let
families go to court to stop the sales and collect damages

Here is a question - about every person in Phoenix, including me, has bought some sort of Pat Tillman shirt or jersey, to memorialize our local football player killed in action.  Are those now illegal?  The AZ Republic makes money selling papers in Phoenix that contain the
names of deceased soldiers all the time -- are they going to jail?  Does this mean that no one can sell Glen Miller albums in Arizona?  And if it is determined to be OK to sell shirts memorializing soldiers or reporting on their deaths but not to criticize the president, well, that is pretty much selective enforcement based on political views, is it not.

As an aside, I have never really like the Bush Lied meme, though perhaps not for the reasons his supporters hate it.  I don't like it because it's purpose seems to be to relieve every other politician of both parties from any responsibility for the war;  ie, since they were all victims of lies, they bear no responsibility for their actions (or their votes).  I don't buy that.

Update: Volokh has a much more complete analysis here, which include exceptions to the law.  It appears that at least the Arizona Republic and Glen Miller are safe, but Pat Tillman jerseys still seem to be in the gray zone.  However, interestingly, the law seems to exempt many forms of commercial speech but ban political use of the names.   Wither the first amendment.


  1. Ian Random:

    I'm a conservative republican who proudly voted for Bush twice and I don't like this. Just because the left does equivalent things to the right, does not make it okay to do it to them. If they want to irk the left, maybe a fairness doctrine for public universities.

  2. Max Lybbert:

    What about companies named after dead Presidents who happened to once be soldiers? Say, Washington Mutual?

  3. M. Hodak:

    The fact that this was passed UNANIMOUSLY, not one single person in your legislature (House as well as Senate, I believe) supported the First Amendment on this one. Not one.

    I think that says something. I'm not sure what, but I'm sure it's not good.

  4. Bruce Hayden:

    I think that the fact that it penalizes political speech much more harshly than it does commercial speech is strong evidence that it will be deemed violative of the 1st Amdt., plus likely some part of the AZ Constitution. Of course, someone has to be prosecuted first for it.

    And, in the end, that is what it is - political speech. We may not like the message that is being displayed, but the message, non the less, is political. And protecting political speech is at the core of our 1st Amdt. Free Speech guarantees.

    p.s. My AZ law license is currently inactive, since I have no need for it here in CO, but if you do run into a case with merit, I would be willing to reactivate it if I could be of help.