by Howard Fischer

PHOENIX - The American Civil Liberties Union is asking a federal judge to void a new law making it a crime to sell products with the names of dead soldiers. It may be the first such challenge of any law of this kind in the nation.

In a lawsuit filed Thursday in U.S. District Court, the attorneys charge that the law, which took effect on May 24, violates the constitutional rights of Flagstaff businessman Dan Frazier. He has sold T-shirts that feature the words "Bush Lied" on one side and "They Died" on the other - over a field of the names of more than 3,000 U.S. service members who died in Iraq.

What is causing immediate concern, the lawsuit states, is that Flagstaff police officers told Frazier just a week ago that they were preparing a report on his activities and referring it to the City Attorney's Office, "which would seek the filing of a criminal complaint."

The law subjects offenders to up to six months in jail.

State Sen. Jim Waring, R-Phoenix, the sponsor of the measure, said the lawsuit didn't surprise him.

Waring said he believes the new law will withstand a legal challenge. He said he can't be the only one to believe that, noting that the measure gained unanimous legislative approval as well as the signature of Gov. Janet Napolitano.

But Waring, noting that other states have enacted similar laws, said there have been no rulings and no lawsuits testing this kind of statute.

At the heart of the issue is the scope of the First Amendment right of freedom of speech. Frazier has argued - and no one has disagreed - he is entitled to protest the war.

Waring's measure seeks to avoid that issue by limiting the prohibition on the use of the names of dead soldiers without permission of relatives to the sale of items or the promotion of a business. He said that means Frazier is making money off their names.

Attorney Charles Babbitt, one of the lawyers who filed the suit, acknowledged that courts have concluded there is less protection for what is considered "commercial speech." But Babbitt said that is defined as an activity "solely related to the economic interest of the speaker and its audience."

Put another way, Babbitt said, as long as what Frazier is doing has some legitimate political purpose, it is legally irrelevant that he is selling the T-shirts and making money.

Alessandra Meetze, director of the Arizona chapter of the ACLU, said it's no different from Rush Limbaugh or Al Franken selling a book of political thoughts. She said these books, and their authors, are protected by the First Amendment even though they are making a profit.

Meetze also said this is different from someone making money from the sale of an item with the name of a pop star.

"People are buying those T-shirts because of the political message," she said. "They're not buying it because of the name of the soldier."

Even if the ACLU wins the case, that won't void the entire law. Another section gives the relatives of dead soldiers the right to file a civil lawsuit to block the sale of items with the names and seek to recoup any profits made by the seller.
Copyright © 2007 Arizona Daily Star