Volokh on the Anti-War Shirts

Radley Balko | July 12, 2007

Eugene Volokh looks at the Arizona law banning the "Bush Lied" anti-war shirts I blogged about this morning and concludes that it's almost certainly unconstitutional.

Commenters there note that the law would conceivably also prohibit t-shirts bearing the likeness of Pat Tillman, Dwight Eisenhower, and George Washington.

Comments

The Wine Commonsewer®|7.12.07 @ 2:22PM|#

Blessed are the first for they can say....

........shall make no law.

D.A. Ridgely|7.12.07 @ 2:33PM|#

Volokh is, as usual, right, although he curiously doesn't consider the proposed federal statute (or equivalent rider to the pending Defense Authorization Act). My take here. Unfortunately, whether these laws are ultimately struck down as unconstitutional is irrelevant to the burden they will place on the makers (and possibly the chilling effect on others as well) until then.

RSDavis|7.12.07 @ 2:39PM|#

I mentioned the George Washington thing on my blog, as well.

not an expert|7.12.07 @ 2:49PM|#

Okay I'm no lawyer, but:

"A person shall not knowingly use the name, portrait or picture of a deceased [U.S.] soldier for the purpose of advertising for the sale of any goods, wares or merchandise or for the solicitation of patronage for any business without having obtained prior consent"

Does this law really ban the sale of the t-shirt?

The t-shirt is merchandise, it's not "advertising for the sale" of merchandise. And it's not soliciting patronage.

Is it possible that the AZ senate is dumb enough to not have passed the law they think they passed?

It is also possible I'm missing something here.

Anonymo the Anonymous|7.12.07 @ 3:13PM|#

"A person shall not knowingly use the name, portrait or picture of a deceased [U.S.] soldier for the purpose of advertising for the sale of any goods, wares or merchandise or for the solicitation of patronage for any business without having obtained prior consent"

How about Patton?

|7.12.07 @ 3:17PM|#

You can't physically wear a Patton shirt, because the embroidered image alone would kick your ass...

|7.12.07 @ 3:19PM|#

A little off topic but same vein...

Ever since I watched the Bullshit! episode on profanity, I've wanted to sit outside of the FCC building with a sign that said nothing but "Fuck."

Can anybody tell me how long it would take for the black SUV's to show up and drag me off?

Mr. X|7.12.07 @ 3:22PM|#

What all of these lawmakers are probably not considering is that they're just donating money to the ACLU legal fund. Strike down an unconstitutional law in court, win attorney's fees; it's what keeps Fred Phelps and his crew funded.

|7.12.07 @ 3:23PM|#

I once made the mistake of saying "I'm getting tired of this shirt" while holding my George Patton tee, and it hit me in the face and made me leave the bedroom.

|7.12.07 @ 3:34PM|#

Just once, I wish Arizona could do something that wouldn't embarass me for living there.

Paul|7.12.07 @ 3:40PM|#

law banning the "Bush Lied" anti-war shirts[...]concludes that it's almost certainly unconstitutional.

Not of someone can convince the FEC that the tee-shirts represent an in-kind campaign contribution to Bush's political opposition. All they need are four votes.

|7.12.07 @ 3:42PM|#

just once, I wish Arizona could do something that wouldn't embarass me for living there.
Hey, you've got a great football team! Oh wait, no you don't. Sorry, I got nothing for ya.

|7.12.07 @ 3:48PM|#

"A person shall not knowingly use the name, portrait or picture of a deceased sldier ... without having obtained prior consent"

Hey Bob, can I put your name on my teeshirt after you're dead?

Smeg off 'Buck!

|7.12.07 @ 3:59PM|#

just once, I wish Arizona could do something that wouldn't embarass me for living there.

Raising Arizona forgives a lot of sins.

|7.12.07 @ 4:07PM|#

Aw, Todd, you guys get a lot of credit for hosting the Cubs for Spring Training. And finally helping Tank Johnson out of his Bears uniform.

|7.12.07 @ 5:16PM|#

not an expert | July 12, 2007, 2:49pm | #
Okay I'm no lawyer, but:

"A person shall not knowingly use the name, portrait or picture of a deceased [U.S.] soldier for the purpose of advertising for the sale of any goods, wares or merchandise or for the solicitation of patronage for any business without having obtained prior consent"

Yep. Definitely can't use the image of George Washington for a Washington's Day sale unless you first get his permission.

The Wine Commonsewer®|7.12.07 @ 5:36PM|#

You can't physically wear a Patton shirt, because the embroidered image alone would kick your ass...

Worth banning tee shirts to get to read that. LOL.

|7.13.07 @ 7:25AM|#

Does this law make it illegal to use one dollar bills, quarters, fifty dollar bills, twenty dollar bills or any likeness of a deceased soldier for purposes of "promoting commerce"? Any sale of merchandise promotes commerce...

Trading Cards|7.13.07 @ 8:26AM|#

According to the passage above, it does indeed indicate that the advertising and soliciting of goods using such images in forbidden - not on the goods themselves. But this, too, is equally egregious.

What about campaign speeches that invoke tear-choked references to fallen servicemen? What about using a dead President to shill for new postage stamps? Bah, there are too many holes in the thing. It'll never happen.

(Insert photo of Audie Murphy here, raising a proud middle finger to Congressional idiots.)