The proposal to ban the use of dead soldiers’ names for profit without the kin’s permission is on its way to the House for a final vote after winning the approval of the Senate on May 14.
The bill, S1014, was amended in a conference committee to include a severability clause, underscoring potential difficulties that even the bill’s sponsor, Sen. Jim Waring, R-7, appeared to have acknowledged.
“We put in the severability clause so that the criminal penalties and the civil penalties are now separate and distinct,” he said.
In short, if the criminal provision gets thrown out in court, it would take a separate action to do the same to the bill’s civil provision, according to Waring.
As passed by the Senate, the measure bars anyone from using, for advertising or sale purposes, a dead soldier’s name or picture without obtaining prior consent from the soldier’s immediate family. A violation of the act is a class 1 misdemeanor.
The Senate exempted photographs of monuments or memorials placed onto merchandise, such as a T-shirt. The House amended it so that the violator is civilly liable as well.
The conference committee version also exempted such use of names and photos for a book, play, TV or movie. Their use for news or broadcast purposes is also exempted.
In fact, the bill’s immediate target is Flagstaff businessman Dan Frazier, who sold on his Web site shirts containing the phrase “Bush Lied, They Died” superimposed over the names of some 3,000 soldiers who had died in Iraq.
Critics of the bill said this area is protected speech and the bill potentially violates the First Amendment.
All 28 senators present on May 14 backed the bill, which now goes to the House for a final action before it is sent to the governor’s desk.
“I understand people classify this is a free speech issue,” Waring said. “But you don’t have the right to put my name on a T-shirt and make money without our permission.”
Giving away T-shirts is one thing, selling them is another, the senator said.
Courtesy, sensitivity for families of fallen soldiers
For families of fallen soldiers, it should have been a simple matter of courtesy, and perhaps some sensitivity, to ask for their permission to use their dead relatives’ names or photos. People should not profit from someone else’s loss, especially if the dead person happens to have died in the line of duty.
“It is a shame that it is necessary to legislate something that should just be common courtesy,” Rob Martens, whose son Robert died in Iraq in 2005, said in an e-mail to the Arizona Capitol Times.
Judy Vincent, whose son Scott also died in Iraq, said she is not trying to put anybody out business. “But I find it very offensive that anybody would make profit off my son’s death,” she said.
Vincent and Margy Bons, who also lost her son Michael Marzano in the war, urged Gov. Janet Napolitano to sign the bill into law, assuming it finally lands on her desk. Bons specifically asked the governor to think of the pain of losing a child and seeing that child’s name used in a way parents would not approve of.
On his Web site, carryabigsticker.com, Frazier said he continues to sell the shirts because he believes the message is important.
Customers seem to agree too, the Web site notes. In January this year, the “Bush Lied, They Died” T-shirt became its fastest-selling product, the Web site says and indicates that the passage of Waring’s bill would not prevent the sale of the shirts.
“Selling these shirts is illegal in two states and may soon be illegal nationwide,” the Web site adds. “With your support, we will continue to sell these shirts in all 50 states until the troops come home or they throw us in jail, whichever comes first.”
Apparently buoyed by sales, the Web site says it has introduced two new shirt designs featuring the names of dead soldiers.
“With the Bush presidency entering its final phase, we wanted to offer our customers new products that did not focus so much on Bush. We hope to continue selling these new shirts, and other products like them, until all U.S. troops have returned from Iraq,” the Web site states.