Ruling protects Arizonan who sells anti-war shirtsAssociated Press
August 19, 2008
PHOENIX - A federal judge on Wednesday permanently barred Arizona from using a state law to prosecute an online merchant who sells shirts that list names of thousands of troops killed in Iraq.
U.S. District Judge Neil Wake did not strike down the 2007 law against selling products that use of military casualties' names without families' permission. But he ruled that using the law to prosecute Dan Frazier would violate the Flagstaff man's First Amendment rights because his "Bush Lied - They Died" shirts are "core political speech."
"It is impossible to separate the political from the commercial aspects of that display," Wake wrote. "For example, the state argues that Frazier can sell his shirts without displaying the soldiers' names. But Frazier's product is his message, and his customers' message."
Arizona's law was enacted with little debate by the Legislature, and Louisiana, Oklahoma and Texas have enacted similar laws.
A spokeswoman for Arizona Attorney General Terry Goddard said Goddard's office was reviewing the ruling and did not immediately know whether it would appeal.
"I always knew the Constitution was on my side," Frazier said in a statement released by the American Civil Liberties Union.
Lee Phillips, a Flagstaff lawyer who represented Phillips on behalf of the ACLU, said it still could be possible to use the law to prosecute a person in a case without political circumstance or motivations.
Citing First Amendment concerns, Wake last September had issued a preliminary injunction against enforcement of the law against Frazier while the lawsuit was pending.
The ACLU is also defending Frazier in a pending lawsuit filed against him in federal court in Tennessee by a couple whose soldier son was killed in Iraq. Robin and Michael Read of Greeneville, Tenn., have asked that their case be expanded to cover more than 4,000 casualties and seek more than $40 billion in damages.