PHOENIX — A federal judge yesterday temporarily blocked criminal enforcement of a new Arizona law that bans sales of items that use names of troops killed in Iraq without permission of their families.
The judge issued a preliminary injunction sought by a man who sells anti-war T-shirts displaying names of American service members killed in Iraq. The T-shirts say “Bush Lied — They Died.”
U.S. District Judge Neil Wake said the shirts are political speech and that enforcement of the law’s misdemeanor sanction would violate Flagstaff resident Dan Frazier’s First Amendment rights.
Though the law permits Frazier to use casualties’ names if he obtains permission from designated family members, that amounts to a flat prohibition “given the difficulty and cost of finding, contacting and obtaining consent from the soldiers’ numerous representatives,” Wake said.
But Wake also said Frazier must serve his lawsuit on at least some families of casualties before the judge will consider whether to block part of the law that authorizes civil lawsuits.
As of Sept. 26, at least 3,800 members of the U.S. military have died since the beginning of the Iraq war in March 2003, according to an Associated Press count.
Louisiana, Oklahoma and Texas have enacted similar laws.
Arizona’s law was enacted last May with little debate by the Republican-led Legislature and took effect immediately upon the signature of Democratic Gov. Janet Napolitano.
Frazier, who continues to sell the shirts, welcomed Wake’s decision to grant the preliminary injunction but acknowledged that the final outcome of his legal challenge remains undecided.
He said he and his lawyers would consider whether to serve the lawsuit on casualties’ families to gain protection from lawsuits they might file.
“We don’t want to have to go to court to have to defend ourselves from a lawsuit even though we would probably win. It would be costly,” Frazier said.
The ruling was denounced by the legislator who sponsored the bill that became the law and hailed by the American Civil Liberties Union of Arizona, which filed the legal challenge on behalf of Frazier.
“The First Amendment has emerged victorious from the Arizona Legislature’s illegal attempt to keep speech about the human costs of the Iraq war out of the public discourse,” said Dan Pochoda, ACLU of Arizona legal director.
Sen. Jim Waring, R-Phoenix, rejected Wake’s finding that the T-shirts were First Amendment-shielded political speech, not commercial speech subject to state regulation.
“I think what Mr. Frazier is doing is deplorable — using someone else’s name to sell a product,” Waring said. “This about making money.”
Margy Bons, a slain Marine’s mother who testified in support of the bill and has threatened to sue Frazier, said it was hurtful that Frazier ignored the wishes of service members and their families by using names without permission.
“He’s not a decent human being,” Bons said. “Someday he’s going to meet his maker and he’s going to meet a lot of unhappy people.”
Bons and others argue that using casualties’ names could lead people to believe the casualties or their families shared anti-war beliefs, but Wake rejected that contention.
“There is no suggestion” by Frazier “that the troops endorse the opinions expressed,” Wake said.
The judge acknowledged that Frazier’s’ use of casualties names may increase the hurt of loved ones.
“Such pain is real. But we each have our own convictions of the worth of our political values and of the service we choose to give. In our diverse and democratic society, that worth is not diminished by the disagreement of others,” Wake added.