Judge Neil Wake of the United States District Court for the District of Arizona issued an interesting opinion last week dealing with the uneasy tension between publicity rights and the First Amendment. The case, Frazier v. Boomsa, 2007 WL 2808559, addresses an Arizona law that makes it a misdemeanor to "knowingly use the name, portrait or picture of a deceased soldier for the purpose of advertising the sale of any goods,wares or merchandise or for the solicitation of patronage for any business" without the consent of the soldier or a family member. Arizona Revised Statutes section 13-3726. A companion provision creates a civil cause of action for using the name or likeness of any US soldier for advertising the sale of goods, soliciting patronage for a business, or "receiving consideration for the sale of any goods." Section 12-761. Both provisions have exceptions for "noncommercial purposes, including any news, public affairs or sports broadcast or account."
The Arizona legislature enacted these statutes in response to the activities of Dan Frazier, an Arizona resident and peace activist who runs a website called CarryaBigSticker.com. On his site, Frazier sells t-shirts, buttons, and other paraphernalia expressing his political views on a variety of topics. Among the items sold by Frazier are three t-shirts that contain antiwar messages printed over a background consisting of the names of 3,461 US soldiers who died in Iraq from March 20, 2003 to October 23, 2006. Elsewhere on the site, Frazier posted an "Open Letter to Families of the Fallen," in which he explains his decision to sell the t-shirts as connected to his personal views on the war. Frazier also uses his website to promote his political views in ways unrelated to the sale of merchandise by posting photographs documenting a local antiwar movement and commentaries by Frazier and others who share his political views.
Police officers in Flagstaff, Arizona contacted Frazier to notify him of enactment of these laws and advised him that they were preparing a report for the Flagstaff City Attorney's Office that could result in criminal charges under Section 13-3726. Frazier filed a lawsuit in federal court and sought an injunction prohibiting the enforcement of the two statutes against him. The court denied Frazier's motion with respect to the civil liability provision because he had not identified any person who was threatening to sue him under Section 12-761. With respect to the criminal provision, the court granted Frazier's motion for a preliminary injunction barring prosecution.
Judge Wake concluded that Frazier's t-shirts constitute "core political speech," even though he offers them for sale, because the political component of his message is inextricably tied up with the advertisement and sale of his merchandise. The court noted that the right of publicity can warrant content-based restrictions on commercial speech, but "cannot justify content-based restrictions on political or artistic expression where the identity of the holder of the right bears a reasonable relationship to the message." Applying this principle, the court concluded:
[P]rotection of the right of publicity, whatever the scope of the right under state law, cannot be a compelling state interest that overrides Frazier's fundamental right to political speech on the facts of this case. As explained above, the restriction is content-based, and Frazier's sale and advertising of the t-shirts constitute political speech on a controversial issue. Because a focal point of Frazier's critique of the Iraq war is the magnitude of the personal loss that it has produced, the individual identities of the deceased American soldiers are not only reasonably related to this message, but integral to it. The t-shirts, like the Vietnam War Memorial, derive some of their communicative force from their ability to personalize human loss on a great scale. Without the large number of real names of fallen soldiers, the effect of Frazier's political message would be diminished.
Frazier, 2007 WL 280559, at 16.
This decision promises to have an impact outside of Arizona, as several other states (Florida, Louisiana, Oklahoma, and Texas) have recently enacted similar legislation, and the Senate is currently considering a similar piece of draft legislation called the "Soldiers Targeted by Offensive Profiteering Act of 2007."