Waring Well

Sen. Waring's bill to protect the names and image of deceased soldiers is getting some national attention.   The Constitutional scholars at the Arizona Daily Star think you have a fundamental right to sell merchandise with the names of fallen soldiers.  However, the AZ House passed Waring's bill unanimously.  It seems like other Legislatures have the same view.  Don't they read the Star?  Oh, that's right, no one reads the Star.  (Since the T shirts are being sold and the statute is prohbiting the "Commercial Use" of the names, I think the Star's Constitutional argument is way off base. I point that out a few posts down.)

Here's an article from the Chicago Sun Times.

PHOENIX -- Incensed by the sale of anti-war T-shirts and other paraphernalia emblazoned with the names and pictures of America's military dead, some states are outlawing the commercial use of the fallen without the permission of their families.

Despite serious questions of constitutionality, Oklahoma and Louisiana enacted such laws last year, and the governors of Texas and Florida have legislation waiting on their desks. Arizona lawmakers are on the verge of a similar law.

''You should have some rights to your own name and your own legacy, particularly if you're a deceased veteran,'' said state Sen. Jim Waring.

The bills were prompted largely by pleas from families upset that their loved ones names and photos were being used on phone cards, body armor and other products.

In many cases, the target of their ire is Dan Frazier, who sells T-shirts on line that list the names of 3,155 U.S. military personnel killed in Iraq. The shirts bear slogans such as ''Bush Lied -- They Died.''

Frazier, 41, said he will not retreat. ''I'm providing a valuable service to people to help show the enormity of the cost of war,'' he said.

Comments

[netrootsdemocrat]

Senator Waring needs to take a Constitutional law course. The chilling effect these people are creating by trying to pass laws on trying to "protect" the sanctity of fallen soldiers is permanently altering the character of the country. Do not members of the military swear an oath to the Constitution? And in the constitution is there not a first amendment? Oh, the irony!

This law is unconstitutional, period. The rightwing of yesterday at least respected the Bill of Rights. Today's ultra cons? Not so much. Sinclair Lewis said that "fascism will come to America wrapped in a flag and carrying a cross." Is he going to be proven true?

Why stop with this? Sen. Waring ought to propose a new bill which states it's a felony to say anything that law enforcement officials in the state of Arizona deem to be disparaging of ANYONE who happens to serve in the military, just because they are in the military. Yes, putting images of deceased soldiers on a t-shirt is very vulgar and nauseating. However, the mark of a truly free society is one which also protects speech that may happen to offend.

This is getting scary.

[Paul Srch]

So... you don't think the use of one's name without his or her prior consent should be illegal? Gee, why don't you start a business and call it... I dunno ... International Business Machines or Microsoft or something. See how long you're in business before their lawyers file a lawsuit for using their name without their permission.

It's not about being or not being disparaging - it's about misappropriating ones name and image (in the marketing sense, which includes one's name).

[netrootsdemocrat]

Paul,

That is why this country has a tort system. Everything doesn't have to be a criminal issue, does it? Let the people's families sue for using their images without consent. Our tort system works pretty well.

Thank God we have an co-equal branch of government - the judiciary - that isn't subject to the whims and tyranny of an emotional, knee-jerk electorate to check the often irrational legislature.

[Chad]

Do you liberals have no shame? Using fallen heroes to score little political points.

[curious]

While I would not normally be inclined to agree with someone called 'netrootsdemocrat' I think that I am going to in this one. It seems that it would be more efficient and productive for society to use the tort system in this case (much as Microsoft would), than to label this as an offense great enough to incur the "moral condemnation" of the criminal law. Does this make me personally feel uncomfortable and sick? Yes. Do I think that it is probably immoral? Yes. Do I think that it should be criminal? NO.

To Chad, that's a cute argument. However, I frequently hear the argument from the right that we shouldn't pull out of Iraq because then all of the troops that have fallen will have died for nothing. That seems to me to be a much more shameless argument.

[NICK]

My father and his 5 sons all served with
honor.

Father survived gas in WW1.

Oldest brother at the Battle of The Buldge.

Hawaii during peace was ok.

No scumbag has the right to use any of
our names in a commercial venture!

[Chris DeRose]

Netroots

Is taking a Constitutional law course the prerequisite for having an opinion? What about taking one and actually paying attention?

If you had ever taken one, you would have read Central Hudson Gas & Electric v Public Service Commission.

Commercial speech is treated differently from other kinds of speech for FIRST AMENDMENT purposes.

Under the Central Hudson test, commercial speech may be regulated if "The government's interest in restricting the speech is substantial, the regulation in question directly advances the government's interest, and the regulation is narrowly tailored to serve the government's interest."

Protecting the names of dead veterans from some guy trying to turn a buck is indeed a substantial governmental interest. Requiring permission before using someone's name advances that interest, and is narrowly tailored to that interest.

The FIRST AMENDMENT gives you a right to your own opinion, but I'm not your own facts. Sorry netroots!

[BobH]

If all forms of speech/writing were considered equally protected, then there could not be restrictions on advertising.

It is illegal to make false claims in advertising by not (as we all know) to make false claims in political speech.

In fact, I believe first amendment arguments were used by advertisers to protest the first laws against false advertising -- to no avail.

[netrootsdemocrat]

Not disputing what you wrote, Chris. Yes, indeed commercial speech lies within substantial interest. But only commercial speech. However, an argument can be made that listing names of war dead can be under strict scrutiny, especially if the commercial interest is secondary to political speech.

But this is a distraction from the issue at hand. Is it okay for a gov't to criminalize this, or would it be more appropriate for the victims to sue under tort?

Btw, don't need to be insulting. I did not go back to my conlaw casebook as you evidently did.

[Chris DeRose]

Netroots

Actually there is no colorable argument in favor of strict scrutiny. If you want to print t-shirts with the war dead on them and not sell them for money, you'd be guilty of spectacularly bad taste but not guilty under this law. It's purely commercial speech.

You said that "Senator Waring needs to take a Constitutional law course." Then you said he doesn't respect the Bill of Rights, and insinuated that he is a fascist. You're the one who needs a lesson in politeness, as well as Constitutional law.

[Margy]

Hello,
I was forwarded the story you wrote about SB1014 in Arizona preventing the unauthorized use of a soldier's name, picture or portrait. Below are two letters. The first was from me to our House of Representatives.
The second from Iraq that read of this overseas.

Let me make this clear before you read any further. All we are asking for is the right to decide what our fallen hero's name should be on. The key word in all of this is "Unauthorized". We are not trying to change the Bill of Rights, Freedom of Speech or any other rights that our fallen have given the ultimate sacrifice for. We are only asking for the right to choose what will honor them with the respect that should be honored. No one should print and sell a t-shirt, with a political slogan, without first asking the family if it is okay. We would know what our hero's belief was. We know that before they deploy. This is not political in any way. This is about the respect of the deceased and how best to keep their names honored.

Before and since my son was killed, I have belonged to support organizations supplying items to the troops and the families left behind. I know full well what this war is costing but I know full well the pride of our military and the pride we should show them and especially the pride of hearing the word Hero attached to my son's name. He would not have wanted his name on this slogan "Bush Lied,,,They Died". He was a Proud Marine, Patriot and Citizen. I am proud of him and have to protect his name and legacy. He can't do it anymore because he gave the ultimate sacrifice for all of us.

So before people start making money or comments about rights, let them know that as a mother that received the "knock upon the door", all we are doing is protecting those that protected us and died doing it. Isn't that our right?

First Letter:


Hello,

Today you will be voting on SB1014 regarding the unauthorized use of a soldier’s name, picture or portrait. I would like to request a Yes vote on this bill and would like to address why.

History:
My son,a Marine, volunteered to go to Iraq after already serving 4 years of active duty and 1 ½ years reserve. He found a reserve unit out of Brook Park Ohio, the 3/25, that needed volunteers to go to Iraq. He believed in the mission and serving his country. This was his choice and his belief. I honored that. He was proudly promoted to Sergeant on April Fool’s day, which is sort of ironic. His MAP was responding to small arms fire at the Haditha, Iraq hospital unaware that there was an ambush in the works. My son deployed out of his hummer when a van filled with IED’s came flying out of an alley. The driver looked at one of our surviving Marines, smiled and detonated. My son never saw what happened. He was killed instantly along with 2 other Marines and a Navy Corpsman. I was told of his death on Mother’s day. He was and forever will be a hero to his loved ones and to his country.

Honor:
Regardless of personal views of the war, regardless of opinions of our current government, it is now our duty as a country to honor our military and the men and women that gave the ultimate sacrifice.

Freedom of Speech:
I do understand that Right because my son died so that we can continue to have our Freedom of Speech. I understand full well that Freedom Is Not Free. We have paid the ultimate sacrifice. We are now Gold Star parents, husbands, wives etc. We know that we must protect our rights and carry on the legacy of those that gave and are continuing to give their lives.

SB1014:
It is sad that there is a need for such a Bill or a law. It is sad that people will use the names of our loved ones without permission in order to make money and for their political views. It makes no sense why someone would not ask first and abide by the wish of the next of kin to the fallen hero before they put a name on a shirt that says “Bush lied…they died”. It is hurtful knowing that my son volunteered to honor and protect his country and then to have his name on something he did not believe. This slogan and the others used by this man in Flagstaff insinuate that my son was duped into giving his life for all of us. I beg of you to understand that we are not asking for restraints on Freedom of Speech, we are asking for the Right to choose what our loves ones name is associated with. This is about asking for permission and respecting the answer.

I would like to close by saying that I beg of you, as the proud mother of Michael, to honor his legacy as we, his loved ones, are fighting to do. He gave his life and we should not have to protect his name. We have suffered enough and to add this to our grief is something we should not have to suffer through. Please vote for SB1014, help us protect those that protect all of us.

Semper Fi,



Second letter



From a Marine in Iraq, I have deleted the names for security reasons but they read the article in the following link and sent me this:

http://www.msnbc.msn.com/id/18728858/. People like this man disgust
me,
and I hope somebody sues his pants off. I don't know what makes him
think he has a right to use the sacrifices of our troops and their
families for his gain. That's disrespect in every way.

I think he should consider who the liar is - he's printing his opinion
with the names of people he never knew, many who would be disgusted
that
he misrepresents them and their beliefs for his political agenda. Our
troops should not be known as being duped - they should be remembered
as
the heroes they are, who gave the ultimate sacrifice for something they
believed in and volunteered for.

What he doesn't seem to realize is that a lot of our troops believe in
the mission. They want to make life better for Iraqis because they
know
if they fail, the people over here who believed in us and helped us
will
be massacred. So failure isn't an option. They know that if we call
it
quits and pull out, terrorists will be encouraged and will grow in
power, and it would only be a matter of time before they try to hit our
homeland.

If people could just see the way these Iraqis live. The kids hear
mortar rounds explode every day, they are kidnapped from their schools,
most have lost a friend or family member to violence, many don't even
have shoes on their feet, they see the blood and destruction and know
bombs are hidden in the piles of trash on the streets. They chase
military convoys and beg for water. They have nothing, not even
safety,
and I want to help them, and I would give anything to know my son won't
have to go through their suffering. I wasn't duped.

Anyways, that's my opinion. And I'm going to let this guy know it. I
lost a friend over here who would be sick to know her name could be
included in this campaign. It is a gross disrespect. How does he
think
he can represent the way our soldiers see their part in the war? He
obviously knows nothing about us or what we do. As they say, "If
you're
not in my foxhole, don't tell me what my foxhole looks like."

Thank you for taking the time to read from those that respect those that gave their lives. I can only guess that the people crying Foul never served our country. Our Vets and current military are our heroes and deserve honor and respect, the same as their fallen brothers and sister.

My bottom line regarding this Bill SB1014 is
Get permission, get authorization, just ask us. Give us the right to decide. Just Ask.