Good Sense Prevails
Every once in a while, good sense prevails, as in the case of a silly Arizona law intended to prevent people from using the names of dead soldiers as part of a criticism of the war. As I wrote then,
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.
I wondered at the time if this would make Pat Tillman football jerseys (very popular here) illegal. Fortunately, a preliminary court ruling seems to bring some good sense to the table.
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.
