By Paul Davenport - The Associated Press
Posted : Friday Aug 24, 2007 8:30:09 EDT
PHOENIX — A Flagstaff man who sells anti-war T-shirts with the names of service members killed in Iraq may escape criminal prosecution under a state law that legislators hoped would block his activities.
The criminal portion of a law passed earlier this year was written in a way that doesn’t actually bar sales of items that use the causalities’ names without family authorization, attorneys for the Attorney General’s Office and the Flagstaff city attorney’s office acknowledged during a court hearing Thursday.
Also, the federal judge weighing a request to temporarily block enforcement of the law on free-speech grounds said the law’s exemptions for news accounts and memorials may provide a shield for Dan Frazier from civil lawsuits authorized under the law.
And U.S. District Judge Neil V. Wake said the law’s ban on advertising items with casualties’ names may not apply to Frazier because individual names can’t be discerned on photos of shirts displayed on his online business’ web page.
However, a lawyer for Frazier said he hopes Wake puts the law on hold while its constitutionality is decided because Frazier still could be burdened with having to defend himself against lawsuits from casualties’ families or charges filed by politically motivated prosecutors.
The Legislature passed the law last May in response to complaints by casualties’ family members who said Frazier had no right to use the names and that using them could lead people to believe that the casualties or their families shared his anti-war beliefs.
The emergency law took effect immediately when signed by Gov. Janet Napolitano.
A suit later filed by the American Civil Liberties Union of Arizona on behalf of Frazier contends the law violates his First Amendment rights to make a political statement through his “Bush Lied — They Died” T-shirts.
Supporters contend its restrictions are permissible because Frazier’s activities are commercial in nature.
Even if actual sales aren’t prohibited in the part of the law making it a crime to use the causalities’ names without permission, there’s still the advertising ban, attorney Lee Phillips said. “We don’t want to have to fight this out in a bunch of separate courts.”
At several times during the hearing, Wake held up one of the T-shirts to look at the readability of the casualties’ printed names during the hearing, and he at one point likened it to Life Magazine’s decision during the Vietnam War to devote an entire issue to photos of one week’s American casualties.
“It had a significant effect on public opinion about the Vietnam War,” the gray-haired appointee of President Bush recalled.
Wake did not immediately rule on the request for a preliminary injunction to put the law on hold pending an eventual decision on its constitutionality.
Violations of the law’s criminal section would be punishable by up to six months in jail and fines of up to $2,500 for an individual or $20,000 for a company.
At least three other states — Texas, Louisiana and Oklahoma — have similar statutes passed in the last two years because of complaints like those voiced in Arizona.