Federal Court Blocks State from Enforcing Law Criminalizing Sale of Anti-War Shirts

Affiliate: ACLU of Arizona
August 20, 2008 12:00 am

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ACLU of Arizona
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PHOENIX, AZ – A federal judge today blocked Arizona from enforcing a new law that makes it a crime to sell anti-war t-shirts that list troops killed in Iraq. The permanent injunction striking down the law as unconstitutional ensures that Flagstaff activist Dan R. Frazier will be able to exercise his First Amendment rights by continuing to sell t-shirts featuring anti-war messages.

“Today’s ruling is great news for free speech,” said Frazier. “While the lawmakers who crafted the Arizona legislation expressed great confidence that they could stop the sale of my t-shirts, I always knew that the Constitution was on my side.”

On June 28, 2007, the ACLU of Arizona filed a lawsuit challenging an Arizona law (SB 1014) that prohibited the use of the name of any solider, alive or deceased, on any item for sale without permission of the soldier or a legal representative. The law, which was passed unanimously in 2007 by both chambers in the Arizona Legislature, was specifically intended to prevent Frazier from selling t-shirts featuring the names of the troops who died in Iraq.

“This is more than a personal victory for Dan Frazier and for what he has had to go through,” said Dan Pochoda, Legal Director of the American Civil Liberties Union (ACLU) of Arizona, which filed a lawsuit last year challenging the law. “This is a victory for the free speech rights of all political activists in Arizona, regardless of how controversial or unpopular their messages may be.”

Through his on-line store www.carryabigsticker.com, Frazier sells three anti-war t-shirts that list the names of the deceased soldiers, including one with the phrase: “Bush Lied … They Died” and one stating “Support our Remaining Troops … Bring the Rest Home Alive.” He donates $1 from each of the t-shirt sales to an organization that benefits families of the fallen soldiers, and has been doing so since the t-shirts were first manufactured nearly three years ago.

“Every single Arizona lawmaker should be ashamed of themselves for voting for a law that attempts to silence political speech,” said ACLU of Arizona cooperating attorney Lee Phillips, an attorney from Flagstaff who served as lead counsel in the lawsuit. “This should send a message to other government officials that they cannot deny people their First Amendment rights based on the content of their messages.”

Judge Neil V. Wake of the United States District Court echoed Phillips’ sentiments in his 8-page permanent injunction: “Frazier’s T-shirts are themselves core political speech fully protected by the First Amendment, notwithstanding the fact that he offers them for sale,” he wrote. “His website is like a streetside table used to disseminate anti-war and political messages in a variety of ways, including displaying and selling his message-bearing T-shirts.”

Last summer, just one month after the law was passed, a police officer in Flagstaff called Frazier to notify him that if he didn’t stop selling the shirts he would face criminal charges under the statute. Similar laws were recently enacted in Florida, Louisiana, Oklahoma, and Texas. Today’s decision only involves a challenge to the Arizona law, however, the First Amendment analysis would apply to similar enactments by other states or the federal government.

Although the ACLU’s lawsuit did not involve a direct challenge to the portion of the statute granting individuals the right to sue Frazier for damages in civil court, that provision also will be unenforceable since the entire statute was declared unconstitutional as applied to Frazier, the ACLU said. The ACLU of Tennessee, in a separate action, is representing Frazier in civil lawsuit filed against him by a Tennessee couple whose son was killed in Iraq. The parents of the soldier are seeking more than $40 billion in damages, according to news reports.

Other attorneys on the case were Charles Babbitt and Natalie Jacobs, also with the Law Office of Lee Phillips. The case number is: 07-CV-8040-PHX-NVW.

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