Court: First Amendment Protects Advertisement of Anti-War T-Shirts With Fallen Soldiers’ Names

Anyone who uses the names of U.S. soldiers who have died in Iraq as part of a political punch-line is subhuman scum. If they had any moral scruples, such people would be too embarrassed to show themselves in public. They are scum and barely articulate scum. But they aren’t criminal scum.

Yesterday, a federal district court permanently enjoined the State of Arizona from prosecuting Dan Frazier, a man who sells “Bush Lied — They Died” t-shirts which list the names of 3,461 soldiers who died in Iraq. The order also enjoins private citizens from suing him under a state-created cause of action for selling the t-shirts. The order is here (PDF). The statute, if you were interested, is here.

Arizona created the law last year with exactly this type of anti-war activity in mind. Florida, Louisiana, Oklahoma, and Texas now have similar laws.

The judge concludes that the marketing and sale of the t-shirts involves inextricable, core political speech. With no way to tease out the commercial activity (which may be regulated) from the political speech, the whole disgraceful mess comes under the strongest protection of the First Amendment. He doesn’t go so far as to hold the statute entirely unconstitutional, just unconstitutional as applied to Frazier.

According to CNN, he is also being sued by a solders’ family in Tennessee for $40 billion in damages. I can’t find anything more about that case, but it’s possible that there are some common law causes of action for privacy or publicity under which they could prevail.

The cure for objectionable speech is more speech. So fuck you, Dan Frazier.

Thanks to genghis.


~ by Gabriel Malor on August 21, 2008.

4 Responses to “Court: First Amendment Protects Advertisement of Anti-War T-Shirts With Fallen Soldiers’ Names”

  1. This is an interesting topic, so I wanted to get more of your opinion. I know you just finished law school, so be warned that I am just starting law school myself.

    I commented over at Ace, but I figured it might be easier to get some back-and-forth here.

    Now, as I understand it, it is nearly universally agreed that originally the first amendment (like the next nine) prohibited no government actions by the states. This changed in the early-to-mid twentieth century, as Scalia noted in the Heller decision. Do you think that original interpretation is better or not? Don’t you think that allowing the federal government to decide what speech can and can’t be regulated is no different than allowing the federal government to regulate speech?

  2. And while I’m at it, I guess I should ask “Any suggestions for a first-year law student?” Other than “study”?

  3. My suggestions first, then my response.

    I think you need to be careful to recognize always the difference between what the law is and what you’d like it to be. Obviously, what you’d like the law to be is going to affect the way you read cases and prepare for class. But, ultimately, arguments built on your legal preferences are policy arguments, not legal ones. They are appropriate for blogging, law review articles, and some classes (but not all and not first year classes if your law school is anything like mine). As a 1L, try to make legal arguments. Hold the policy talk for Federalist Society meetings or arguments of last resort.

    Read the assigned material even if you’re sure you won’t be called on. Prepare your own outlines, but don’t obsess over them. When you can choose your own courses and schedules, take the classes you’re interested in taking, not the ones that fit an easy schedule; your grades will reflect the difference. If your school has an international program, consider putting your name on the list; my time in London is among my favorite in law school.

    And the number one rule that got me through: make it a job and not a lifestyle. As a rule, I do not work after the sun goes down or on weekends. But that means that to have time to do everything I needed to do, I started at sun up and I was in the law school parking lot at 7 every morning, which is when the library opened. It let me leave the school and my studying guilt-free at around 5pm every day. I only ever broke that rule a few times during finals or when my law review article was coming due (and while studying for the bar quiz). I never pulled an all-nighter.

    Now, you asked if I thought the original use of the Bill of Rights is better or not. I haven’t given it much thought. Judicial interpretation of the 14th Amendment eventually incorporated the First, Fourth, and Sixth Amendments and parts of the Fifth, Sixth, and Eighth. The Third and Seventh seem destined to remain out in the cold. The jury’s still out on the Second (given Heller’s intimations).

    Things would be radically different if that were so, and not necessarily better. From a policy perspective, I support the incorporation of the Fifth and Sixth Amendments to the states because I believe things like speedy trials, assistance of counsel, and confrontation rights are indispensable to a system of justice. On the other hand, the federal courts have made a serious mess of the Fourth Amendment and I would give anything to shake at least the states (and preferably the federal government too) free of it.

    As for your second question, the courts have always held some types of speech more protected than others. I think we should err on the side of protecting speech, however objectionable.

  4. “I believe things like speedy trials, assistance of counsel, and confrontation rights are indispensable to a system of justice.”

    Well, so do I. That’s why I don’t support incorporation. A single, centralized system cannot adapt as well as a decentralized, competitive system. When state systems are subject to the power of competition, they are much more capable of bringing about the change that people demand, much the same as free market competition works to create wealth. I believe that a state-empowered system would bring about a wealth of rights. I believe that we’d have more and better rights sooner than with one centralized government. Having one standard makes it impossible to know if there is a better standard. It’s not like speech and religion weren’t free before incorporation.

    “make it a job and not a lifestyle.” That’s gonna be hard to do, but it sounds well worth it. I’ll definitely be keeping that in mind.

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