The forces of free speech have prevailed in Frazier v. Boomsma (at least at the preliminary injunction stage).
The case, previously blogged here, “Bush Lied – They Died” T-Shirts and Free Speech has resulted in a federal court giving the State of Arizona a remedial course in First Amendment law.
In his 30-page decision, Judge Neil V. Wake of the United States District Court stated that the law is unconstitutional and state or local prosecutors cannot use it to initiate criminal proceedings against Flagstaff activist Dan R. Frazier, who owns and operates a Web site, www.carryabigstickter.com, where he sells three different types of t-shirts featuring anti-war messages.
“Messages such as ‘Bush Lied – They Died’ obviously critique the initiation and administration of the war in Iraq, perhaps the most salient and hotly debated issue in current American politics,” wrote Wake, who dismissed charges by the state that the t-shirts were commercial in nature and therefore undeserving of constitutional protections. “The mere fact that Frazier sells the t-shirts does not transform them into less-protected commercial speech. The political and commercial dimensions of the speech cannot be separated because the mode of expression has a cost.”
In May, Governor Janet Napolitano signed into law Senate Bill 1014, which prohibits the use of the name of any soldier, alive or deceased, on any item for sale without permission of the soldier or a legal representative. The law imposes civil and criminal penalties for using the names of American soldiers and was passed unanimously by both chambers in the Arizona Legislature.
“The state cannot give anyone a right of commercial exaction for the exercise of someone else’s First Amendment rights,” wrote Wake. “The Nation’s debt to its fallen soldiers may not be paid by giving their families a toll on free speech. The debt must be paid in other ways.” (source)
The court’s ruling is here, courtesy of the ACLU.