May 18, 2007 – 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 approving a similar measure.
“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, a Republican who sponsored the Arizona bill. “Celebrities have that. Why shouldn’t our soldiers have that?”
The bills were prompted largely by pleas from military 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, a Flagstaff man who sells T-shirts online that list the names of 3,155 U.S. military personnel killed in Iraq. The shirts bear slogans such as “Bush Lied – They Died” and “Support Our Remaining Troops – Bring the Rest Home Alive.”
Margy Bons, a Phoenix-area woman whose Marine reservist son, Sgt. Michael A. Marzano, was killed by an insurgent bomb in Iraq in 2005, said he believed in his mission.
“My son was not duped into going to war,” she said. “I’m angry that somebody can use somebody else’s name for their political beliefs without permission.”
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.
Under the Arizona bill, violators could get up to six months in jail and fines of $2,500 for an individual and $20,000 for an enterprise. A spokeswoman for Gov. Janet Napolitano declined to say whether she would sign the bill if it reached her desk.
The Florida bill would impose a $1,000 penalty per violation for using a military member’s name or photo commercially without permission.
Law enforcement officials in Oklahoma and Louisiana said they were unaware of any prosecutions under their laws. But the Arizona legislation also authorizes families to sue, and Bons said she will see Frazier in court.
Frazier said he has sold a couple of thousand shirts through his Web site, www.carryabigsticker.com, since 2005 and regards it as more of a political statement than a moneymaker. He said the shirts, which sell for $20 to $22, are expensive to produce.
Frazier said the various state bills and laws infringe on his First Amendment right to free speech.
Waring said Frazier is selling a commercial product, and that opens the door to state regulation.
“This is clearly commercial speech. He’s not giving the shirts away,” Waring said. “I don’t dispute that if he was giving the shirts away to make a political statement, we probably couldn’t do anything about that.”
However, a constitutional law expert said the facts that the dead soldiers’ names are public record and that the Arizona legislation grants exceptions for plays, articles and certain other uses could undermine its constitutionality.
“You can’t make some irrational distinctions and stop some people and not others without a really good reason,” said Paul Bender, an Arizona State University professor and a top Justice Department official in the Clinton administration.
Bender said the shirts are clearly a political statement: “He’s not advertising anything on the T-shirts.”