Arizona's T-shirt bill is challenged in federal court

[Shammu]

Arizona's T-shirt bill is challenged in federal court

Our view: Bad taste is not the issue; this unconstitutional violation of political activist's rights should be struck down
Tucson, Arizona

The Arizona Legislature's T-shirt bill has begun a necessary journey through the federal courts to determine whether it is constitutional.

The law, passed this spring, made it illegal to use the names of dead soldiers for commercial purposes without permission from the families of the deceased.

The law seems deceptively simple, except that it raises questions about the First Amendment right of free speech of Flagstaff entrepreneur Dan Frazier, a political activist who sells anti-war T-shirts on his Web site:

The T-shirts have understandably angered families of deceased soldiers, some of whom wrote to the governor and members of the Legislature to protest Frazier's business.

Frazier, 41, sells a number of different T-shirts and bumper stickers advocating liberal positions on issues. The T-shirt that attracted the Legislature's attention says on one side, "Bush Lied," and on the other, "They Died," superimposed over the names of more than 3,000 soldiers reported killed in Iraq.

We believe the Legislature was wrong to pass a law that appears to target one individual. We also believe the law raises important questions about what constitutes protected speech under the First Amendment.

The issue is not whether Frazier's decision to use the names of the dead to protest the war is in bad taste or politically offensive. Politicians and others who focus on the socially disagreeable aspect of Frazier's action are diluting the issue. The focus should be solely on whether the Constitution protects political expression even when it involves financial gain.

Contacted at his home in Flagstaff, Frazier declared, "This is political speech and should be protected no matter how much of a money-grubbing person I might be." For the record, he does not consider himself to be a money-grubbing person.

"I want to make a living as much as the next guy," he said, "but no more than the next guy."

Last week, the Arizona chapter of the American Civil Liberties Union filed a complaint in U.S. District Court against Flagstaff and Arizona officials.

The complaint alleges that the bill passed unanimously by the Arizona Legislature violated Frazier's First and 14th Amendment rights.

The First Amendment protects free speech; the 14th Amendment includes the statement that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The bill signed by Gov. Janet Napolitano "was intended by the Legislature to prohibit the sale of anti-war T-shirts by Plaintiff Dan Ray Frazier," the ACLU complaint stated.

In addition, it says, "This legislative effort to stifle Plaintiff's fundamental rights of political speech, and to keep the expression of sentiments that personalize the damage done by the war in Iraq out of the public discourse, requires the intervention of this Court."

We agree. The question is not about our emotional reaction to what Frazier is doing. The question is whether Frazier is making a political statement and whether the law, looked at objectively, protects a citizen's right to make such statements even if he or she makes money in the process.

Legislatures in Louisiana, Oklahoma and Texas have passed laws similar to Arizona's. The Arizona law is the first in the nation to trigger a federal court challenge, Frazier said.

Frazier's complaint can help clarify whether the Legislature has illegally diminished the First Amendment rights of Arizona citizens.

Only in the courts can the issue be clearly delineated and weighed alongside other cases where the right to free speech was challenged.

The courts have often held that free speech is protected if it does not jeopardize public health or safety, a view that we share. The law does not provide the states a waiver to restrict speech that some members of society find offensive.