Attention Civics Teachers and Law Professors — An Interesting Debate Topic

Sales of t-shirts and other political merchandise using the names of American soldiers killed in Iraq would be banned under a bill pending in the state Senate.

The measure expands California’s protections of the commercial use of a dead celebrity to include “any natural person whose name, voice, signature, photograph or likeness has commercial value either at the time of his or her death or because of his or her death.”

Vietnam Veterans of America and the American Legion back the bill arguing that out of respect for the soldiers and their families their names should not be exploited for commercial gain.

“This will protect our fallen soldiers and their families from having the soldier’s names or likenesses abused by groups, particularly those groups who protest the war by printing t-shirts with dead soldier’s names on them.”

The California Newspaper Publishers Association, an opponent of the bill, counters that use of the names to protest war is political speech and therefore protected by the First Amendment and California constitution.

“There is strong argument that the creation and distribution of T-shirts with the names of deceased soldiers is political speech that is protected by the First  Amendment and the California Constitution, even if the shirts are sold for a profit,” the newspaper publishers wrote in opposition.

“Because it appears the bill is intended to chill this speech, rather than protect the legitimate intellectual property interests of the heirs of deceased personalities, (we) must respectfully oppose this bill.”

The measure, AB 585, was introduced by Assemblyman Mike Duvall, a Yorba Linda Republican, who argues that the bill merely offers the same protections currently granted celebrities to soldiers and their families.

Duvall’s bill differs from current law because the names, voices, signatures or photographs of the celebrities or actors protected had commercial value prior to their death. California’s laws are designed to protect that commercial value from exploitation.

Nor is Duvall’s bill restricted to dead soldiers. The phrase “commercial value either at the time of his or her death or because of his or her death” can also apply to high-profile crime victims, according to the Senate judiciary Committee’s analysis of the bill.

Lacey Peterson would fall into that category. As would Ron Goldman and Nicole Simpson.

The issue was litigated last year in an Arizona federal district court. The court prevented enforcement of an Arizona law making it a misdemeanor to use the name, portrait, or picture of a dead soldier to advertise or sell merchandise without the prior consent of the soldier’s spouse, immediate family or trustee.

The genesis for the Arizona law – and probably for Duvall’s – was the actions of Dan Frazier, a peace activist, who sells a variety of T-shirts, buttons, magnets and bumper stickers expressing different political views.

Among the T-shirts is this one with the words “Bush Lied They Died” superimposed over the names of soldiers who died in Iraq.

Flagstaff’s city attorney prosecuted Frazier. Frazier won an injunction after the court agreed the law was an unconstitutional restriction of his political speech.

The bill is on the Senate’s Third Reading File and could be acted on as early as August 31. It hasn’t been amended so Senate passage sends it to Gov. Arnold Schwarzenegger who has not taken a position on it.

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