T-shirt with dead soldier's name is protected speech - East Valley Tribune: News

T-shirt with dead soldier's name is protected speech

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Posted: Friday, May 7, 2010 5:42 pm | Updated: 3:29 am, Sat Oct 8, 2011.

Relatives of Iraqi war dead can’t sue a Flagstaff anti-war activist for using their dead soldiers’ names on a T-shirt, a federal judge has ruled.

U.S. District Court Judge Ronnie Greer this week threw out a $40 billion claim filed against Dan Frazier by Tennessee resident Robin Read. She said Frazier used the name of her son, Brandon, who died in 2004 in Iraq, on the shirt without permission, a violation of Tennessee law.

But Greer said the use of Brandon’s name — and that of others — is protected political speech.

“Exercising free speech in criticizing the government is not outrageous,” the judge wrote. And Greer said that while Brandon’s name was on the T-shirt, it was not being used in a commercial way to get others to buy the product.

“It is used in combination with other’s names to make a political statement, which is an exercise in free speech,” Greer wrote.

The ruling is the second court victory for Frazier.

Two years ago, a federal judge in Phoenix blocked prosecutors from bringing criminal charges against him under Arizona law. U.S. District Court Judge Neil Wake said the shirts are “core political speech fully protected by the First Amendment.”

At the heart of both cases are Frazier’s T-shirts, which have the words “Bush Lied” on one side and “They Died” on the other, superimposed over the names of soldiers killed in the Iraq war.

The Arizona Legislature adopted a law making it a crime to use the names, portraits or pictures of dead soldiers to market any items without first obtaining consent of next of kin. It also permitted relatives to file civil suit.

Jim Waring, then a state senator from Phoenix, who crafted the measure, acknowledged it was aimed specifically at Frazier.

While Wake blocked criminal charges from being filed against Frazier, his ruling left intact the part of the law dealing with civil lawsuits. In the wake of that decision, Tennessee subsequently adopted a similar law on civil suits, the law used by Read to sue Frazier.

First Amendment arguments aside, Greer said the claim by Read is legally flawed.

Among her arguments were that she suffered emotional distress. But Greer said that only applied if it could be shown that she witnessed her son’s death and that Frazier was somehow the cause, neither of which is true.

She also argued that Frazier had intentionally or recklessly caused her distress. But Greer said that requires a showing the conduct of a defendant was “so outrageous that it is not tolerated by civilized society.”

“The views expressed by the defendants may be unpopular and even offensive to some people, but they do not rise to the level of outrageous conduct,” the judge wrote.

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