- The Washington Times - Friday, May 25, 2007

Arizona T-shirt maker Dan Frazier’s $22 shirts emblazoned with “Bush Lied, They Died” over the names of 3,155 American soldiers killed in Iraq were bound to stir up trouble. But state lawmakers are wrong if they think that the solution is to ban these shirts.

The Arizona measure makes it a misdemeanor to use the names or pictures of deceased service members “for the purpose of advertising for the sale of any goods, wares or merchandise” without family permission, with exceptions for news reports, plays, books, music and movies. It passed Arizona’s House 57-0 and also went unopposed in the state Senate, 28-0. The bill follows similar laws enacted last year in Oklahoma and Louisiana. State lawmakers in Texas and Florida have also passed comparable measures, each a governor’s signature away from enactment.

The legality of such measures is complicated enough for pro-ban lawmakers to be optimistic about their prospects. We consulted constitutional law expert Bruce Fein, who thinks that these shirts can be construed as unfair commercial exploitation if they print the names without permission of the estate of the deceased. The right of publicity affords ordinary people wide protection from unauthorized use of their names and photos for another’s profit. It is “a very close question” which hinges on the intent — commercial is hard to defend, political is not — and it looks like Mr. Frazier’s motive is a combination of both.

Arizona news reports quote Mr. Frazier calling the shirts expensive to make, and claiming that he donates $1 of every sale to a charity for military families. We’d guess it costs much less than $21 to make these shirts, ensuring him some profit. At the same time, what he does is clearly not as exploitative as, say, emblazoning Pat Tillman’s likeness on T-shirts without permission to profit from his likeness. And it has a clear political dimension which places it in a genuine gray area.

But leave aside the legality for a moment and consider the circus this debate makes of the deceased. We can certainly understand the outrage of a bereaved mother who knows her deceased son would have had nothing to do with the views Mr. Frazier promotes, much less help him profit. But we can only imagine the feelings if and when this becomes a major cultural battle involving more than a T-shirt seller, a few dozen state lawmakers and an unknown number of families of the bereaved.

Make no mistake, we regard the actions of the shirt-seller as reported in the Arizona media to be crass and exploitative. Were this businessman truly interested in the First Amendment and his First Amendment rights alone, he would prove his good intentions by donating the full proceeds to a veterans’ charity.

But outlawing the actions answers crassness with a different sort of crassness, one which ratchets up a corrosive debate. People of good will should avoid making the war dead any more of a political football than they already are. Accordingly, Arizona Gov. Janet Napolitano should see that the bill does not become law. Lawmakers should drop it. And the rest of Arizona should shame Mr. Frazier into donating the full sum of his money to benefit service members and their families.

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