Coyote Blog

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.

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.