Posted by Eugene Volokh:
Unconstitutional Restriction on Use of Fallen Soldiers' Names?
http://volokh.com/archives/archive_2007_07_08-2007_07_14.shtml#1184260087
[1]Reason's Hit & Run reports on a new Arizona statute (Ariz. Rev.
Stat. � 13-3726) that would limit the use of names and pictures of
dead soldiers. The law, which was apparently prompted by [2]outrage
over the sale of antiwar T-shirts that contain the names of soldiers
killed in Iraq, reads:
A. 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 to
the use by the soldier or by the soldier's spouse, immediate family
member, trustee if the soldier is a minor or legally designated
representative....
C. This section does not apply to the following:
1. The use of a soldier's name, portrait or picture in an attempt
to portray, describe or impersonate that soldier in a live
performance, a single and original work of fine art, a play, book,
article, musical work or film or on radio, television or other
audio or audiovisual work if the performance, musical work, play,
book, article or film does not itself constitute a commercial
advertisement for any goods, wares or merchandise.
2. The use of a soldier's name, portrait or picture for
noncommercial purposes, including any news, public affairs or
sports broadcast or account.
3. The use of a soldier's name in truthfully identifying the
soldier as the author of a particular work or program or as the
performer in a particular performance.
4. Any promotional materials, advertisements or commercial
announcements for a use described in paragraph 1, 2 or 3.
5. The use of photographs, video recordings and images by a person,
firm or corporation practicing the profession of photography to
exhibit, in or about the professional photographer's place of
business or portfolio, specimens of the professional photographer's
work, unless the exhibition is continued by the professional
photographer after written notice objecting to the exhibition by
the portrayed soldier or a person who may enforce the soldier's
rights and remedies.
6. A soldier's picture or portrait that is not facially
identifiable.
7. A photograph of a monument or a memorial that is placed on any
goods, wares or merchandise....
The prohibited conduct is made a misdemeanor, and made civilly
actionable.
The law, it seems to me, is unconstitutional, for two reasons:
1. a. The T-shirts don't fit within the "commercial speech" doctrine,
under which commercial advertising gets reduced First Amendment
protection -- the T-shirts aren't advertising (except insofar as the
cover of any work, such as a book or a magazine, advertises itself),
but rather speech sold for money. And the fact that speech is sold for
money doesn't strip it of protection (whether it's a book, a movie, or
a T-shirt).
b. The T-shirts also don't fit within any "right of publicity"
exception that is likely to be recognized by the courts. The Supreme
Court has held that state law may make actionable the taking of
another's [3]entire act (for instance, when a TV station rebroadcasts
a "human cannonball" act); but that narrow exception doesn't apply
here.
Some lower courts, most notably the [4]California Supreme Court, have
held that "nontransformative" use of another's name or likeness, such
as a T-shirt or a coffee mug that merely contains a celebrity's
picture, may also be restrictable. But the speech here is clearly
transformative, in that it "add[s] something new, with a further
purpose or different character, altering the first with new
expression, meaning or message," "add[s] significant expression
beyond" the "literal depiction or imitation of a [person] for
commercial gain," and uses the person's name as "one of the 'raw
materials' from which an original work is synthesized," as opposed to
having "the depiction or imitation of the celebrity [be] the very sum
and substance of the work in question." I [5]have argued that the
"transformative" test isn't clear or speech-protective enough; but
even under this test, the T-shirts would be protected, and the statute
would be unconstitutionally overbroad.
Even under the awful [6]Missouri Supreme Court "Tony Twist" decision
(which I have [7]criticized here), it seems likely that the T-shirts
would be protected. A court would have to engage in the mushy inquiry
of whether the T-shirt "predominantly exploits the commercial value of
an individual's identity" as opposed to having as its "predominant
purpose" be "[the making of] an expressive comment on or about a
[person]," but my guess is that for an overtly political T-shirt like
this, in which the people's names are part of the political message,
the inquiry would come out in the speaker's favor -- and the Tony
Twist case is an outlier among lower courts, which are generally more
protective of speakers' rights in this context.
2. Moreover, even if a categorical restriction on the use of others'
names and likenesses on T-shirts would be constitutional, a selective
ban on the use of deceased soldiers' names seems to violate [8]R.A.V.
v. City of St. Paul, which held that even if a broad category of
speech (there, fighting words) can be restricted, the First Amendment
bars the selective restriction of content-based subcategories of the
speech (there, fighting words that "arouses anger, alarm or resentment
... on the basis of race, color, creed, religion or gender").
The R.A.V. test is complicated and in many ways vague, but it does
seem pretty clearly applicable here:
a. It's not the case that "the basis for the content discrimination
[deceased soldiers' names vs. others' names] consists entirely of
the very reason the entire class of speech at issue [speech that
uses others' names without permission] is proscribable."
b. It's not the case that "the subclass happens to be associated with
particular 'secondary effects' of the speech, so that the
regulation is 'justified without reference to the content of the
... speech.'" (Recall that the offensiveness or persuasiveness of
the speech, and the effects that flow from them, are not counted
as secondary effects. "The emotive impact of speech on its
audience is not a 'secondary effect.'")
c. This is not a generally applicable law that applies both to speech
and conduct and that covers a particular subcategory
"incidentally."
d. It is not the case that "the nature of the content discrimination
is such that there is no realistic possibility that official
suppression of ideas is afoot."
So, the bottom line: The Arizona statute is unconstitutional. So is a
similar law in Louisiana, which is possibly narrower, but still
unconstitutional for reason #2 and a version of reason #1. And so is a
similar law in Oklahoma (21 Okla. Stat. Ann. � 839.1A), though reason
#2 wouldn't apply because a nearly identical Oklahoma law equally
covers the use of people's names and likenesses more broadly, without
limitation to fallen soldiers.
Thanks to Nick Sarwark for the pointer.
References
1. http://www.reason.com/blog/show/121352.html
2. http://www.azstarnet.com/sn/hourlyupdate/183041.php
3.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=433&invol=562
4. http://caselaw.findlaw.com/data2/californiastatecases/S076061.PDF
5. http://www.law.ucla.edu/volokh/publicity.pdf
6.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=mo&vol=/supreme/072003/&invol=60729_103
7. http://www.law.ucla.edu/volokh/twist.pdf
8.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=505&invol=377
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