Unconstitutional Restriction on Use of Fallen Soldiers' Names?

Reason's Hit & Run reports on a new Arizona statute (Ariz. Rev. Stat. § 13-3726) that would limit the use of names and pictures of dead soldiers. The law, which was apparently prompted by outrage over the sale of antiwar T-shirts that contain the names of soldiers killed in Iraq, reads:

A. A person shall not knowingly use the name, portrait or picture of a deceased soldier [defined as referring to any member of the U.S. armed forces] for the purpose of advertising for the sale of any goods, wares or merchandise or for the solicitation of patronage for any business without having obtained prior consent to the use by the soldier or by the soldier's spouse, immediate family member, trustee if the soldier is a minor or legally designated representative....

C. This section does not apply to the following:

1. The use of a soldier's name, portrait or picture in an attempt to portray, describe or impersonate that soldier in a live performance, a single and original work of fine art, a play, book, article, musical work or film or on radio, television or other audio or audiovisual work if the performance, musical work, play, book, article or film does not itself constitute a commercial advertisement for any goods, wares or merchandise.

2. The use of a soldier's name, portrait or picture for noncommercial purposes, including any news, public affairs or sports broadcast or account.

3. The use of a soldier's name in truthfully identifying the soldier as the author of a particular work or program or as the performer in a particular performance.

4. Any promotional materials, advertisements or commercial announcements for a use described in paragraph 1, 2 or 3.

5. The use of photographs, video recordings and images by a person, firm or corporation practicing the profession of photography to exhibit, in or about the professional photographer's place of business or portfolio, specimens of the professional photographer's work, unless the exhibition is continued by the professional photographer after written notice objecting to the exhibition by the portrayed soldier or a person who may enforce the soldier's rights and remedies.

6. A soldier's picture or portrait that is not facially identifiable.

7. A photograph of a monument or a memorial that is placed on any goods, wares or merchandise....

The prohibited conduct is made a misdemeanor, and made civilly actionable.

The law, it seems to me, is unconstitutional, for two reasons:

1. a. The T-shirts don't fit within the "commercial speech" doctrine, under which commercial advertising gets reduced First Amendment protection — the T-shirts aren't advertising (except insofar as the cover of any work, such as a book or a magazine, advertises itself), but rather speech sold for money. And the fact that speech is sold for money doesn't strip it of protection (whether it's a book, a movie, or a T-shirt).

b. The T-shirts also don't fit within any "right of publicity" exception that is likely to be recognized by the courts. The Supreme Court has held that state law may make actionable the taking of another's entire act (for instance, when a TV station rebroadcasts a "human cannonball" act); but that narrow exception doesn't apply here.

Some lower courts, most notably the California Supreme Court, have held that "nontransformative" use of another's name or likeness, such as a T-shirt or a coffee mug that merely contains a celebrity's picture, may also be restrictable. But the speech here is clearly transformative, in that it "add[s] something new, with a further purpose or different character, altering the first with new expression, meaning or message," "add[s] significant expression beyond" the "literal depiction or imitation of a [person] for commercial gain," and uses the person's name as "one of the 'raw materials' from which an original work is synthesized," as opposed to having "the depiction or imitation of the celebrity [be] the very sum and substance of the work in question." I have argued that the "transformative" test isn't clear or speech-protective enough; but even under this test, the T-shirts would be protected, and the statute would be unconstitutionally overbroad.

Even under the awful Missouri Supreme Court "Tony Twist" decision (which I have criticized here), it seems likely that the T-shirts would be protected. A court would have to engage in the mushy inquiry of whether the T-shirt "predominantly exploits the commercial value of an individual's identity" as opposed to having as its "predominant purpose" be "[the making of] an expressive comment on or about a [person]," but my guess is that for an overtly political T-shirt like this, in which the people's names are part of the political message, the inquiry would come out in the speaker's favor — and the Tony Twist case is an outlier among lower courts, which are generally more protective of speakers' rights in this context.

2. Moreover, even if a categorical restriction on the use of others' names and likenesses on T-shirts would be constitutional, a selective ban on the use of deceased soldiers' names seems to violate R.A.V. v. City of St. Paul, which held that even if a broad category of speech (there, fighting words) can be restricted, the First Amendment bars the selective restriction of content-based subcategories of the speech (there, fighting words that "arouses anger, alarm or resentment ... on the basis of race, color, creed, religion or gender").

The R.A.V. test is complicated and in many ways vague, but it does seem pretty clearly applicable here:

  1. It's not the case that "the basis for the content discrimination [deceased soldiers' names vs. others' names] consists entirely of the very reason the entire class of speech at issue [speech that uses others' names without permission] is proscribable."
  2. It's not the case that "the subclass happens to be associated with particular 'secondary effects' of the speech, so that the regulation is 'justified without reference to the content of the ... speech.'" (Recall that the offensiveness or persuasiveness of the speech, and the effects that flow from them, are not counted as secondary effects. "The emotive impact of speech on its audience is not a 'secondary effect.'")
  3. This is not a generally applicable law that applies both to speech and conduct and that covers a particular subcategory "incidentally."
  4. It is not the case that "the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot."

So, the bottom line: The Arizona statute is unconstitutional. So is a similar law in Louisiana, which is possibly narrower, but still unconstitutional for reason #2 and a version of reason #1. And so is a similar law in Oklahoma (21 Okla. Stat. Ann. § 839.1A), though reason #2 wouldn't apply because a nearly identical Oklahoma law equally covers the use of people's names and likenesses more broadly, without limitation to fallen soldiers.

Thanks to Nick Sarwark for the pointer.

Related Posts (on one page):

  1. Unconstitutional Restriction on Use of Fallen Soldiers' Names:
  2. Unconstitutional Restriction on Use of Fallen Soldiers' Names?
Coyote (mail) (www):
Half of Arizona has bought a Pat Tillman T-shirt or Jersey either when he was playing or since his death in rememberance of his service and his unique football career. Are these all illegal now? I see that from exception 3 I guess I can still buy and sell Glenn Miller albums. Whew.

By the way, the language seems to work exactly against the commercial speech logic. It seems like most of the exemptions are in fact for commercial speech. The law seems to say that its OK to use the names for commercial speech, just not to make a political point. First Amendment indeed.
7.12.2007 2:43pm
scote (mail):

A person shall not knowingly use the name, portrait or picture of a deceased [U.S.] soldier ..

...hmm, doesn't seem to be any time limit. I guess this means that ads with soldiers or generals from the Spanish American War, WWI, WWII or the Korean war are all illegal in Arizona.
7.12.2007 3:00pm
The statute does not appear to have a date restriction, so it would apply some pretty famous deceased U.S. soldiers, such as Dwight Eisenhower.
7.12.2007 3:08pm
statfan (mail) (www):
I guess I had better not advertise with pictures of fifty (or perhaps five) dollar bills.
7.12.2007 3:08pm
Also would disqualify images of George Washington.
7.12.2007 3:11pm
PatHMV (mail) (www):
It's been a while since I looked at specific cases, but I think the issue of whether this is commercial speech is not as clear-cut. On the one hand, I seem to recall that putting a picture on a child's lunch box, which obviously is for the purpose of getting parents to buy that lunch box for their kids, has been held to be commercial use. On the other hand, there was a case involving sketches of Tiger Woods, where the item for sale was simply the sketch, which was held not to be a commercial use.

Among other factors, I think it would be relevant to look at whether any other messages were contained on the shirts, such as an advertisement for an anti-war website. That would suggest that the shirt is functionally an advertisement for the commercial message of the non-profit group.
7.12.2007 3:12pm
PatHMV (mail) (www):
Also, part of the basis for the "Right of Publicity" theory is the right of individuals (and presumably their heirs) to prevent the false suggestion that the individual has endorsed the speaker's message. Imagine a shirt with the picture of a dead soldier bearing the words "Don't make others die like me." That would convey the impression that the pictured soldier had or would endorse that message.
7.12.2007 3:15pm
Ah, state legislatures. What would we discuss without them?
7.12.2007 3:32pm
gr101 (mail):
"The use of a soldier's name in truthfully identifying the soldier as the author of a particular work or program or as the performer in a particular performance."

So it looks like Elvis is safe.
7.12.2007 3:36pm
Some James:
So a t-shirt depicting the names of deceased marines, seamen and airmen would be legal under this law?
7.12.2007 3:52pm
scote (mail):

Among other factors, I think it would be relevant to look at whether any other messages were contained on the shirts, such as an advertisement for an anti-war website. That would suggest that the shirt is functionally an advertisement for the commercial message of the non-profit group.

One could also argue that the shirts are advertisements for others to buy the shirts.
7.12.2007 4:03pm
Mr. X (www):
What all of these lawmakers are probably not considering is that they're just donating money to the ACLU legal fund. Strike down an unconstitutional law in court, win attorney's fees; it's what keeps Fred Phelps and his crew funded.
7.12.2007 4:23pm
Eugene Volokh (www):
Some James: Clarified to make clear that this covers all deceased members of the U.S. armed forces.
7.12.2007 4:38pm
Dilan Esper (mail) (www):

You are not correct about the right to publicity. It protects against someone using your name or likeness for commercial gain. It has nothing to do with whether the statement about you is true or false.

For instance, if a local furniture store that you shopped at put on a TV commercial saying "PatHMV shops here and is a satisfied customer", without your consent, it might violate your right to publicity even if you actually do shop there and are a satisfied customer.

As Professor Volokh notes, many courts impose First Amendment limitations on right to publicity claims because otherwise the cause of action would interfere with the First Amendment right to discuss or depict noteworthy people.

In contrast, trademark and unfair competition law protects against someone using your name in a misleading fashion in a commercial activity. And defamation law protects against someone making a false statement of fact about you.

The thing, though, is that there are also limitations on these theories. With respect to trademark / unfair competition, you would have to show that the use was likely to divert sales from your product to the defendants. Thus, it would only really work in a situation where, say, the soldier's family put out pro-war shirts with the dead soldier's name on it, and sales were diverted to the anti-war shirts. This is a pretty limited factual situation, and even then, there may be a First Amendment defense.

As for defamation, the plaintiff would have to show that the shirts made a statement of fact understandable to a reasonable person and that the statement was false. Further, dead people don't have a cause of action for defamation. Thus, unless the shirts falsely attributed the anti-war view to the families of the soldiers, I don't see how they could be actionable under defamation law.

I should mention one other thing here. I think a lot of people are tempted to call these shirts advertisements. But commercial speech, in First Amendment doctrine, does not mean advertisements. It means speech that does NO more than propose a commercial transaction. Thus, things that have been held by the Supreme Court NOT to constitute commercial speech include an advertisement urging support for the civil rights movement and advertisements promoting the use of contraceptives. Under that doctrine, these t-shirts are clearly NOT commercial speech; indeed, there is no doubt that they are the type of political speech that Chief Justice Roberts and Justice Scalia identified in the recent Wisconsin Right to Life case as residing in the core of First Amendment protection.
7.12.2007 7:59pm
Edward A. Hoffman (mail):
This brings to mind the administration's ban on reporters showing the flag-draped coffins of soldiers, marines, etc. killed in Iraq and Afghanistan, at least while those coffins are being transported by the military. The ostensible reason for this rule is that such images would invade the privacy of the deceased.

The ostensible reason makes no sense, of course, since there is no way to tell from such an image whose body is in the coffin. The only plausible reason for the policy -- to prevent such images from reducing public support for the wars -- is plainly improper, so I guess a policy that is plainly illogical was the only remaining option.

Whether this rule is constitutional is a harder question, since the government can flat out prevent reporters from even getting near these caskets while they're in transit if it wants to. Constitutional or not, the rule has always seemed rather Orwellian to me.
7.13.2007 9:43pm
D K Warren (mail):
If commercial speech and fully protected speech (i.e. - political speech) are inextricably intertwined, the Court will treat the total mixture as noncommercial, fully protected speech:

Where, as here, the component parts of a single speech are inextricably intertwined, we cannot parcel out the speech, applying one test to one phrase and another test to another phrase. Such an endeavor would be both artifical and impractical. Therefore, we apply our test for fully protected expression.

Riley v. National Federation of the Blind of No. Carolina, 487 U.S. 781 (1988).
7.14.2007 8:16am
Paul Levinson (mail) (www):
Based on the appalling history of most Courts in disregarding the First Amendment, I wouldn't be so sure ... The Flouting of the First Amendment
7.15.2007 12:10pm