For more than a year, the state of Arizona has fought a pitched battle against the First Amendment.
Not surprisingly, the First Amendment has won at every step.
Enough. It is time to admit this was a bad fight based on a bad law. Stop throwing public money into a battle the state never should have taken on.
The issue was nothing more substantive than a T-shirt.
Dan Frazier of Flagstaff sold shirts displaying the names of American soldiers killed in Iraq. The shirts contain the message: “Bush Lied, They Died.”
Families of some soldiers did not want the names of their loved ones used and last year persuaded the Legislature to pass a law prohibiting sale of the shirts.
The law clearly was an unconstitutional attack on the First Amendment protection of free speech – a point that has been made in several court rulings.
The most recent loss for the state came last week when U.S. District Judge Neil Wake permanently barred Arizona from using the law to prosecute Frazier. Wake ruled the T-shirts are “core political speech” protected by the First Amendment.
Wake cannot be derided as a liberal activist judge; he was appointed to the federal bench by President George H.W. Bush.
Unfortunately, Wake did not strike down the law as unconstitutional, which would have ended this legal fight for good. Instead, he prohibited the state only from prosecuting Frazier under the law.
This was a law that should never have been placed on the books. It made it a crime to use the names of dead soldiers on merchandise – including T-shirts – without the permission of the soldiers’ families.
In an earlier ruling, Wake said the requirement of getting permission from families amounts to a prohibition “given the difficulty and cost of finding, contacting and obtaining consent from the soldiers’ numerous representatives.”
The law was written to exclude the media and aimed at people who use soldiers’ names on a product sold for profit. But Wake rightly struck down that distinction, writing, “The political and commercial dimensions of the speech cannot be separated because the mode of expression has a cost.”
This is precisely that type of free speech the Founding Fathers sought to protect when the Bill of Rights was added to the Constitution. The Arizona Attorney General’s Office should understand that and pull the plug on this quixotic legal fight.