The ACLU has filed a motion asking a court to dismiss a $40 billion lawsuit brought against an Arizona anti-war T-shirt vendor by the parents of a U.S. soldier killed in Iraq. On Wednesday (Dec. 17), the ACLU of Tennessee filed a 25-page motion in the U.S. District Court for the Eastern District of Tennessee at Greeneville asking that a lawsuit filed in April by the parents of the late Sgt Brandon Michael Read be dismissed. The lawsuit originally sought $10 million from Dan R. Frazier of Flagstaff, Ariz. but was later amended to seek $40 billion on behalf of more than 4,000 families who have lost loved ones in the Iraq war. The lawsuit was brought by Robin Read and Michael A. Read of Greeneville, Tenn., represented by the law firm of Santore and Santore.

Frazier and his company, CarryaBigSticker, has been stirring up controversy since early 2006 because he sells anti-war T-shirts that list the names of U.S. troops killed in Iraq. The latest version of the shirts list more than 4,000 names in a very small typeface. Overlaid on the list of names in much larger letters are anti-war phrases like "Bush Lied - They Died" and "Support Our Remaining Troops - Bring the Rest Home Alive." Frazier donates a dollar from the sale of each shirt to a charity that works to assist the families of fallen troops. To date, he has donated $4,545 to such charities.

In a prepared statement, Frazier said, "When I conceived of these shirts, I wanted to draw attention to the horrific toll that the Iraq war was taking on our troops. Those who died were real people with real families. When you list their actual names, you help to remind people of that reality. I hope to be able to continue this important work until all the remaining troops have come home from Iraq."

Five states have passed legislation aimed at outlawing the sale or advertising of the T-shirts, including Frazier's home state of Arizona. Frazier continues to sell shirts in every state. In August Federal Judge Neil V. Wake ruled that the new Arizona legislation could not be enforced against Frazier because the shirts were a protected form of free speech. "The Nation's debt to its fallen soldiers may not be paid by giving their families a toll on free speech," wrote Wake.

In its motion filed this week, the ACLU of Tennessee argues that the lawsuit should be dismissed on various legal grounds. Chief among these is that Eastern District of Tennessee courts have no jurisdiction over Frazier's Arizona-based business. The motion notes that Frazier has no real connection to Tennessee, though his company's Web site can be accessed from anywhere. If the lawsuit is allowed to proceed, the ACLU would prefer that the case be transferred to Arizona. The motion says, "The District of Arizona has already ruled that Frazier’s t-shirts are protected as core political speech. Rather than file their suit in the court that has already addressed issues related to Frazier’s t-shirts, Plaintiffs have come to this court doubtless hoping for a friendlier outcome. This court, however, is not the proper venue for this case."

In an ACLU press release distributed Wednesday, Hedy Weinberg, ACLU-TN Executive Director, said, "ACLU is committed to protecting the speech of all political activists regardles of the controversy of their message. While our sympathy goes out to the families of fallen soldiers, we cannot jeopardize the free speech rights of Mr. Frazier or others who want to speak out against the war."

Frazier is represented by Erica Green of the Greene Law Firm of Morristown, Tenn. and Tricia Herzfeld, ACLU-TN staff attorney.

Case No. 2:08-CV-116

PHOENIX, AZ – A federal judge today blocked Arizona from enforcing a new law that makes it a crime to sell anti-war t-shirts that list troops killed in Iraq. The permanent injunction striking down the law as unconstitutional ensures that Flagstaff activist Dan R. Frazier will be able to exercise his First Amendment rights by continuing to sell t-shirts featuring anti-war messages.

“Today's ruling is great news for free speech,” said Frazier. “While the lawmakers who crafted the Arizona legislation expressed great confidence that they could stop the sale of my t-shirts, I always knew that the Constitution was on my side.”

On June 28, 2007, the ACLU of Arizona filed a lawsuit challenging an Arizona law (SB 1014) that prohibited the use of the name of any soldier, alive or deceased, on any item for sale without permission of the soldier or a legal representative. The law, which was passed unanimously in 2007 by both chambers in the Arizona Legislature, was specifically intended to prevent Frazier from selling t-shirts featuring the names of the troops who died in Iraq.

“This is more than a personal victory for Dan Frazier and for what he has had to go through,” said Dan Pochoda, Legal Director of the American Civil Liberties Union (ACLU) of Arizona, which filed a lawsuit last year challenging the law. “This is a victory for the free speech rights of all political activists in Arizona, regardless of how controversial or unpopular their messages may be.”

Through his on-line store CarryaBigSticker Frazier sells three anti-war t-shirts that list the names of the deceased soldiers, including one with the phrase: "Bush Lied … They Died” and one stating “Support our Remaining Troops ... Bring the Rest Home Alive.” He donates $1 from each of the t-shirt sales to an organization that benefits families of the fallen soldiers, and has been doing so since the t-shirts were first manufactured nearly three years ago.

"Every single Arizona lawmaker should be ashamed of themselves for voting for a law that attempts to silence political speech,” said ACLU of Arizona cooperating attorney Lee Phillips, an attorney from Flagstaff who served as lead counsel in the lawsuit. “This should send a message to other government officials that they cannot deny people their First Amendment rights based on the content of their messages.”

Judge Neil V. Wake of the United States District Court echoed Phillips’ sentiments in his 8-page permanent injunction: “Frazier’s T-shirts are themselves core political speech fully protected by the First Amendment, notwithstanding the fact that he offers them for sale,” he wrote. “His website is like a streetside table used to disseminate anti-war and political messages in a variety of ways, including displaying and selling his message-bearing T-shirts.”

Last summer, just one month after the law was passed, a police officer in Flagstaff called Frazier to notify him that if he didn’t stop selling the shirts he would face criminal charges under the statute. Similar laws were recently enacted in Florida, Louisiana, Oklahoma, and Texas. Today’s decision only involves a challenge to the Arizona law, however, the First Amendment analysis would apply to similar enactments by other states or the federal government.

Although the ACLU’s lawsuit did not involve a direct challenge to the portion of the statute granting individuals the right to sue Frazier for damages in civil court, that provision also will be unenforceable since the entire statute was declared unconstitutional as applied to Frazier, the ACLU said. The ACLU of Tennessee, in a separate action, is representing Frazier in civil lawsuit filed against him by a Tennessee couple whose son was killed in Iraq. The parents of the soldier are seeking more than $40 billion in damages, according to news reports.

Other attorneys on the case were Charles Babbitt and Natalie Jacobs, also with the Law Office of Lee Phillips. 

Read Judge Neil V. Wake's Ruling (PDF).

Dan Frazier's speech to the ACLU Board of Directors (Arizona Chapter, Sept. 20, 2008)

Thank you for inviting me today. It is a long drive from my home in Flagstaff. But I really appreciate this chance to give back something to the ACLU after all the ACLU has done for me.

I had a hard time when I was thinking about what I should say today. I mean, you people are the ACLU. You people are smart.  I have to sound smart. This might have been easier if you were the Arizona legislators who wrote the law aimed at stopping my free speech. I kept hoping one of them would invite me down to the capital to tell my story, but they never did. Had I been invited to talk to the legislators, I would have tried to use short and simple words that they would understand: “You - can’t – take – away – free – speech.” Maybe I would have tried baby talk – you know -- try to reach them at their level.

Well, let me just briefly tell my story, and then I’ll tell you what the ACLU means to me.

I own a small company, CarryaBigSticker.com. We mostly sell liberal political bumper stickers. Just over three years ago, we introduced our first t-shirt. It was a shirt that listed 1,693 U.S. troops killed in Iraq. It was similar to this shirt, but this shirt is our current shirt and this shirt lists the names of 4,058 U.S. troops killed in Iraq. As you can see, this shirt also includes the words “Bush Lied”  on the front and “They Died” on the back. We have another version of the shirt that says “Support our Remaining Troops” on the front, and “Bring the Rest Home Alive” on the back.  I brought a few of both versions in case anybody wants to buy a shirt, now that it is officially legal to do so.

The shirt actually was an outgrowth of a large bumper sticker that had listed 500 fallen troops. The sticker had just said “Bush Lied.” That sticker sold pretty well. But by the time we ran out of those stickers, a thousand more American soldiers had died in Iraq. I could not see how we were going to fit that many more names on a bumper sticker. Then I hit on the idea of doing a T-shirt.

I thought it was a brilliant idea. My wife thought so too. I found a local printer. He tried to print the shirts but had a hard time. The names were tiny and they had to be legible. After much trial and much error, we finally got our first batch of shirts. I eagerly brought them home in one of those little bike trailers for kids that I towed behind my bicycle. We sent out press releases to the media because we thought this was a novel way to draw attention to the unfolding tragedy in Iraq. But the shirts did not sell very well. We had printed about a hundred t-shirts. Months went by and we kept marking down the price to try to get rid of them. We had dropped the shirts from $18 to $10 and we still had a lot of shirts on the shelf. I thought I might have to give some shirts to Goodwill.

Then a funny thing happened. A reporter called me from Louisiana. The reporter wanted to know what I thought of the effort to pass a law to make it illegal to sell my t-shirts in Louisiana. I had no idea what the reporter was talking about. But apparently the reporter was serious because I heard from other reporters. Soon I started hearing from reporters in other states, like Oklahoma, where a similar effort to outlaw my shirts was underway.

The bills that were being introduced were focused on preventing the use of the names of the fallen soldiers without the permission of their families, especially in advertising. The bills were talking about something called the “right of publicity.” This is the part of our legal system that prevents people from capitalizing on the fame of other people without their permission. For instance, it is illegal for me to sell t-shirts with Celine Dion’s name or face on them without her permission.

But what I was doing was different, and I knew it. I am a former journalist. I knew that journalists did not have to get permission to publish someone’s name, or to publish a list of people who died in a war. I kept asking myself how what I was doing was any different from a book or a newspaper that listed the troops who died in Iraq. Yeah, I had included a strong political statement – “Bush Lied – They Died,” but books and newspapers also often include strong political opinions. Nobody would think to try to pass a law to stop a newspaper from printing a list of war dead, even if that list was accompanied by an editorial that criticized the leaders who took us to war on false pretenses. Somehow, because I had printed my list on the fabric of a t-shirt, I had started a firestorm.

It turned out that the publicity about the various efforts to stop my t-shirt sales was good for business. Slowly, I started selling t-shirts. But I still thought I would discontinue the shirts after they sold out. A crew came out from CNN to talk to me. I told CNN that I felt like I had a moral obligation to sell off the inventory of shirts that I had left. They asked me, if I had a moral obligation to sell off the rest of my shirts, didn’t I have a moral obligation to print more? I thought about that and decided that they were right. Besides, demand for the shirts was picking up. 

We have sold more than 4,000 shirts since then, and they keep selling. We have had a hard time keeping up with demand. I know how many shirts we have sold because we have donated one dollar from the sale of each shirt to an organization that assists families of the fallen. So far we have donated $4,411.

Meanwhile, five states have passed legislation aimed at preventing the sale of these shirts: Louisiana, Oklahoma, Florida, Texas and Arizona. Two other states reportedly are considering similar legislation. And now, I am being sued by a couple in Tennessee who lost a son in Iraq. The lawsuit is seeking $40 billion on behalf of all of the U.S. military families who have lost loved ones in Iraq. I figure that if I have to pay up, I and my two employees are going to have to invade a country, preferably a country with oil. Fortunately, it looks like the ACLU will be handling my defense, so I’m optimistic that I won’t have go through with the invasion.

Of course, this is really no laughing matter. The pain and suffering these families have endured on account of their loss in this war, if you could put a price on it, would easily be many billions of dollars. There is no amount of money that is going to bring all those men and women back to life for their families. We can’t bring them back. All we can try to do is to stop more of our brave men and women in uniform from dying. That’s what I’ve been trying to do. I see myself on the side of the families of the fallen. I am on the side of the people who are suing me. I am on the side of the people who have been sending me hate mail. 

I should also mention that some family members have been supportive. A few have even spoken out on my behalf. Others have purchased t-shirts. I hear back from people who wear the shirts in public that they generally get a lot of positive attention when they wear the shirts. People come up to them and try to find the name of their friend or loved one who died in Iraq. Some people start crying.

So I am helping people to exercise their free speech about a matter of life or death. Free speech. One of the cornerstones of this country. Free speech. One of the cornerstones of the constitution. Free speech. One of those things that our men and women in uniform believe they are fighting and dying to protect.

Here on the homefront, it is organizations like the ACLU that are on the front lines helping to defend our basic rights, like free speech. Organizations like the ACLU have never been more important. How many organizations are there that are like the ACLU? I sure can’t think of very many.

Historically, it was the press that stood up for free speech. But today our press is a sad, corporatized shadow of its former self. Most editors are too afraid of losing another advertiser to take any kind of a controversial stand on anything. It is true that a number of newspaper editorials have supported my right to sell these t-shirts, but almost always they did so grudgingly, noting how distasteful my shirts are. Not a single newspaper offered to help cover my legal expenses or offered to help me challenge the new laws relating to these shirts.

Only the ACLU stepped forward to help me. With the help of the Law Offices of Lee Phillips in Flagstaff, we brought a lawsuit against the state of Arizona in an effort to overturn Arizona’s new law that tried to restrict the use of the names of U.S. troops. A year later, a federal judge, Neil Wake, ruled in our favor. He said that my shirts were protected political speech and that the new law could not be applied to me. The law is still on the books, but I think it has been rendered largely toothless by this legal precedent. This ruling will also probably discourage other states from passing similar laws. It may also discourage other families from bringing lawsuits against me.

You might think that as the Bush administration winds down, and we prepare to elect a new slate of legislators across the country, that the ACLU’s workload is about to get a lot lighter. But I would not count on it. Keep in mind that in Arizona, and in some of the other states that passed legislation aimed at curtailing my free speech, the vote by state legislators was unanimous. In Arizona, every legislator, regardless of political party, voted against free speech. After the vote, a few of the Arizona legislators said that they had voted without actually reading the legislation. So long as we have legislators who vote without even knowing what they are voting on, we are going to need the ACLU.  And even if we get a new crop of super-intelligent legislators this year, it is going to take years to un-write all the bad legislation that has been written in the last few years.

We have sent some of our best men and women off to foreign lands to protect our way of life. As a country, we have spent untold billions on military equipment to protect freedom.  But I believe that nobody has fought harder for my way of life and my freedom than the ACLU. To me, a true patriot is a person who truly supports the ACLU.

Thank you.

Anti-war T-shirt Maker sees Irony in Vietnam Wall Exhibit Visit to Payson, Ariz.
(Press Release June 3, 2008)

Dan Frazier, whose Flagstaff, Ariz. company has been under attack for selling anti-war t-shirts listing the names of U.S. troops who have died in Iraq, finds it ironic that nobody is raising a fuss about a traveling Vietnam War Memorial Wall. The exhibit, which lists the names of 58,219 U.S. troops who died in Vietnam, will be in Payson Ariz. June 6, 7 and 8.

At least five states including Arizona have passed laws attempting to prevent Frazier's company, CarryaBigSticker, from continuing to sell anti-war T-shirts listing troops killed in Iraq. Generally, the new laws prohibit the use of a person's name for any commercial purpose without permission of that person or their next of kin. Frazier continues to sell his shirts in all 50 states.

The shirts include 4,058 names printed in tiny letters. The list of names is superimposed on much larger words that say "Bush Lied - They Died." Another version of the shirt has the names overlapping larger words that say "Support our Remaining Troops - Bring the Rest Home Alive."

Frazier contends that he has the right to use the names without getting permission because he is engaged in political speech, protected by the First Amendment. The ACLU has brought a lawsuit against the state of Arizona on Frazier's behalf in an attempt to overturn the new Arizona law. A judge has temporarily suspended the Arizona law until he can issue a final decision in the case. 

In late April Frazier learned from news reports that a Tennessee couple who lost a son in Iraq had made his company the target of a $40 billion class-action lawsuit. (Frazier has not yet been formally served with the lawsuit documents.)

Frazier says it is ironic that Payson veterans groups together with the Town of Payson have paid more than $18,000 to bring a replica of the Vietnam War Memorial Wall to Payson for a three-day visit expected to attract more than 15,000 people. In February, the Payson council voted unanimously to approve a $9,000 grant to help underwrite the cost of bringing the replica of the Vietnam Memorial to Payson.

"I have nothing against this traveling Vietnam Memorial wall," said Frazier in a prepared statement. "But I do find it ironic that nobody is raising a fuss about it. On the one hand, you have the Arizona legislature voting unanimously for a law that attempts to ban the commercial use of fallen soldiers' names. On the other hand, you have the Payson Town Council voting unanimously to pay $9,000 to bring a privately owned exhibit listing the names of fallen soldiers to their town. On the one hand, you have the possibility that the Arizona Attorney General's office would try to prosecute me if the new Arizona law is allowed to stand. On the other hand, Rick Romley, the former Maricopa County Attorney will be the keynote speaker at the Payson event."

Though the public will be able to visit the replica of the Vietnam memorial free of charge, Frazier contends that someone is making money off the wall, just as he makes money off the T-shirts he sells. "This year, by my count, the wall will visit at least 30 towns and cities in the U.S. Every time it stops in a different town, tens of thousands of dollars are changing hands. The people who own the replica are not a non-profit. They are not volunteers. They pay their employees just like I pay mine. It says right on their Web site that they are selling merchandise to support their venture, though I notice they don't show the merchandise on the Web site. I don't know if they even donate part of their proceeds to veterans groups or other charitable groups. What I can tell you is that I donate one dollar from the sale of each shirt I sell to an organization that benefits families of the fallen. We have donated more than $4,000 so far."

Frazier added, "Remember, some soldiers who died in Vietnam would not have wanted their names on the Vietnam War Memorial in Washington D.C. In fact, at the time that the Vietnam Memorial was erected, some family members did object to the inclusion of their loved ones' names on the memorial."

Frazier says he has not decided if he will visit the traveling Vietnam memorial when it visits Payson. Payson is about 100 miles southeast of his home in Flagstaff. "I don't agree with the kind of militaristic, super-patriotic agenda the exhibit owners are pushing, but I've heard a lot about this exhibit and I would like to see it for myself. But I am a little worried about all the veterans who will be there. Some of the nastiest e-mails I have received about my T-shirts have been from veterans." Frazier has received several death threats since he started selling his shirts in 2005. "I think it is interesting how some people are so supportive of a for-profit replica of the Vietnam Memorial, but meanwhile some of these same people want to shut down my anti-war t-shirt sales."

On the Web:
American Veterans Traveling Tribute

Info about the Payson event        

Dan Frazier comments on $40.5 billion class-action lawsuit brought by the parents of the late Sgt. Brandon M. Read (Updated 8/20/08)

I am sure that the pain and suffering the families of the fallen have experienced is incalculable. It would far exceed $40 billion if you could somehow put a dollar value on it. I believe that whatever pain and suffering my T-shirts have caused pales in comparison to the pain and suffering caused by having a loved one killed in a war, especially a controversial war like Iraq.  Though I do not feel responsible for what these families are going through, like most other Americans, I do wish I could help to ease their suffering. Unfortunately, neither I nor my company has anywhere near the $40 billion some families are apparently now seeking. Despite the popularity of some of our products, we remain a company deeply mired in debt. But we can and will continue to sell our anti-war T-shirts that list the names of the fallen in an effort raise awareness of the enormous human toll that this war is taking on American families. Perhaps we can play a small part in ending the war so that other families will not have to go through what the parents of Brandon Read are going through. 

As the class-action lawsuit moves forward, and various families of the fallen have an opportunity to get involved, it will become apparent that the families are far from united in their views of the war, or in their views of the T-shirts we sell. I have heard from a number of family members who are supportive of the T-shirts we sell, and some family members have even bought these shirts. News reports have often failed to mention that in addition to selling a t-shirt that overlays the words "Bush Lied - They Died" on the names of the fallen, we also sell a shirt that overlays the words "Support our Remaining Troops - Bring the Rest Home Alive" on the names of the fallen.

Regardless of whether this lawsuit against me is brought by two people or  2,000, or whether it seeks $10 million or $40 billion, the fact remains that the t-shirts we sell are political speech protected by the First Amendment. I am very confident that we will ultimately prevail in court. 

In mid-August of 2008, I learned that the ACLU of Tennessee would be assisting in my legal defense. This was good news, and I believe it speaks to the strength of my legal position.

Ironically, the lawsuit faults me for not getting permission from the families of the fallen before using the names of the fallen on the t-shirts my company sells. Meanwhile, this class-action lawsuit on behalf of the families of the fallen makes clear that no attempt has yet been made to sign up all the legal heirs of the fallen to make them active participants in the lawsuit. Apparently, I have to get permission from family members to sell t-shirts, but it's OK to bring a lawsuit on behalf of family members without getting similar permission.

To assist in defraying what could be substantial legal expenses related to my defense, I had set up a legal defense fund prior to learning that the ACLU of Tennessee would be involved in my defense. After learning that the ACLU would be involved, I stopped accepting donations until further notice. The fund will be maintained in case it is need at some later time in other litigation related to these T-shirts. Any unspent monies will eventually be donated to an organization that benefits families of fallen U.S. troops. 

About the Dan Frazier Legal Defense Fund

As explained above, the Dan Frazier Legal Defense Fund was established on May 1, 2008 in response to a class-action lawsuit brought against Lifeweaver LLC, the parent company of CarryaBigSticker. Dan R. Frazier is the owner of Lifeweaver LLC. The class-action lawsuit was initiated in Tennessee Federal Court by the parents of the late Sgt. Brandon Michael Read. According to news reports, the lawsuit seeks $40 billion in compensation for the heirs of U.S. troops killed in the Middle East since 2001. The compensation is related to the emotional distress caused to families of the fallen by the sale of T-shirts that list the names of the fallen. 

During the following three months, the fund received about $3,200 worth of donations from CarryaBigSticker customers. Then we learned that the ACLU of Tennessee would be working on our defense. As a result of the ACLU's involvement, we do not expect to need to tap our Legal Defense Fund to defend ourselves from the lawsuit brought by the parents of Brandon Read.  However, the fund may still be needed in the event other litigation arises related to the T-shirts on this page. For the moment, we have stopped accepting additional donations to the legal defense fund.

Money donated to the Dan Frazier Legal Defense Fund will be used to defend Dan R. Frazier and his company, Lifeweaver LLC (parent company of CarryaBigSticker) and employees from lawsuits related to the sale of T-shirts and other merchandise that list the names of U.S. troops killed in Iraq since March of 2003. The fund will be used only to pay attorneys and other costs directly related to defending Dan R. Frazier and his company in court. The fund may also be used to pay damages awarded to plaintiffs by the court in the event that the plaintiffs prevail. 

Donations will be held until they are needed in a special bank account to be administered by Dan R. Frazier. Donations are NOT tax-deductible and are not refundable. 

Donated funds that are not needed right away for legal defense purposes will be retained for at least five years. After five years, if it does not appear likely that donated funds will be required to pay legal costs, unspent monies (along with any interest earned) will be donated to an organization that benefits the families of the U.S. troops who have been killed in U.S. wars.

ACLU Wins Major Victory ACLU Wins Major Victory in Challenge to Law Criminalizing Sale of Anti-War Shirts ACLU Wins Major Victory in Challenge to Law Criminalizing Sale of Anti-War Shirts   9/27/07

– In a victory for free speech, a federal judge today issued a preliminary injunction halting the enforcement of an Arizona law that makes it a crime to sell anti-war t-shirts in Arizona. The landmark decision in this closely-watched lawsuit held that the misguided law is a content-based restriction on political speech that violates the First Amendment.

“The First Amendment has emerged victorious from the Arizona Legislature’s illegal attempt to keep speech about the human costs of the Iraq war out of the public discourse,” said Dan Pochoda, Legal Director of the ACLU of Arizona, which filed a lawsuit on June 28^th challenging the law. ACLU of Arizona Cooperating Attorney Lee Phillips was lead counsel on the case. 

In his 30-page decision (download ruling as PDF file), Judge Neil V. Wake of the United States District Court stated that the law is unconstitutional and state or local prosecutors cannot use it to initiate criminal proceedings against Flagstaff activist Dan R. Frazier, who owns and operates a Web site, www.CarryaBigSticker.com, where he sells three different types of t-shirts featuring anti-war messages.

“Messages such as ‘Bush Lied – They Died’ obviously critique the initiation and administration of the war in Iraq, perhaps the most salient and hotly debated issue in current American politics,” said Wake, who dismissed charges by the state that the t-shirts were commercial in nature and therefore undeserving of constitutional protections. “The mere fact that Frazier sells the t-shirts does not transform them into less-protected commercial speech. The political and commercial dimensions of the speech cannot be separated because the mode of expression has a cost.”

In May, Governor Janet Napolitano signed into law Senate Bill 1014, which prohibits the use of the name of any soldier, alive or deceased, on any item for sale without permission of the soldier or a legal representative. The law imposes civil and criminal penalties for using the names of American soldiers and was passed unanimously by both chambers in the Arizona Legislature.

“The state cannot give anyone a right of commercial exaction for the exercise of someone else’s First Amendment rights,” added Wake. “The Nation’s debt to its fallen soldiers may not be paid by giving their families a toll on free speech. The debt must be paid in other ways.”

One month after it was passed, police officers in Flagstaff visited Frazier to notify him that they were preparing a report for the Flagstaff City Attorney’s Office that could results in criminal charges under the statute. Similar laws were recently enacted in Florida , Louisiana , Oklahoma and Texas . Although today’s decision only involves a challenge to the Arizona law, the First Amendment analysis would apply to similar enactments by other states or the federal government.

“This ruling offers a bit of assurance to me and my family that at least for now I am not going to be arrested or charged with a crime for simply exercising my First Amendment rights,” said Frazier.  “This is a small victory for everyone who cares about free speech. It is also a small victory for everyone who wants to end this war and bring our men and women in uniform home safely.”

Other attorneys on the case were Charles Babbitt and Natalie Jacobs, also with the Law Office of Lee Phillips. The case number is:  07-CV-8040-PCT-NVW.

ACLU Files Free Speech Lawsuit on Behalf of Anti-war T-shirt Maker

Press Release - June 28, 2007

PHOENIX, AZ - The American Civil Liberties Union of Arizona today filed a lawsuit in federal court, charging that a recently-enacted Arizona state law criminalizing the sale of anti-war t-shirts violates the First Amendment.

At issue is Senate Bill 1014 which prohibits the use of the name of any solider, alive or deceased, on any item for sale without permission of the soldier or a legal representative. The law, which was passed unanimously by both chambers in the Arizona Legislature, was specifically intended to prevent Flagstaff activist Dan R. Frazier from selling t-shirts featuring the names of the troops who died in Iraq. Governor Janet Napolitano signed the bill into law on May 21, 2007 as an "emergency measure that is necessary to preserve the public peace, health or safety."

"This new law is not only an attempt to take away my First Amendment rights, but it is also an attempt to take away the rights of every American who wants to make a powerful statement about the war," said Frazier, 41, who has sold 2,200 anti-war t-shirts over the past two years. "A vote in support of this law was a vote to sweep the names of the fallen under the carpet and simultaneously take away one of the very rights many of the soldiers believed they were fighting to defend."

Frazier, a former newspaper editor and writer, has been selling bumper stickers and t-shirts with political slogans for four years through his on-line store www.carryabigsticker.com. Frazier sells three anti-war t-shirts that list the names of the deceased soldiers, including one with the phrase: "Bush Lied . They Died" and one stating "Support our Remaining Troops ... Bring the Rest Home Alive." He donates $1 from all of the anti-war shirts to an organization that benefits families of the fallen soldiers, and has been doing so since the t-shirts were first manufactured.

"These t-shirts, like many of Frazier's products, are designed and sold to prominently display an anti-war message and to have this message reach the public and contribute to the public debate over the war in Iraq," wrote ACLU of Arizona cooperating attorney Lee Phillips, an attorney from Flagstaff who is serving as lead counsel in the litigation.

In its lawsuit, the ACLU points out that the names of soldiers killed in Iraq are already matters of public record and can be accessed by private citizens in numerous ways. By requiring Frazier to seek permission from family members to print the names of the soldiers, and carving out exemptions for art, books or films, the legislation is targeting him on the basis of the anti-war content of his message. As noted in the lawsuit, the t-shirts are produced and bought because of the political message that is in bold and large letters on the shirt, and not because of the newsprint-size name of any one of the almost 3,500 soldiers.

"This was an attempt by elected officials to stifle fundamental rights of political speech, and to keep the expression of sentiments that personalize the damage done by the war in Iraq out of the public discourse," said Daniel Pochoda, Legal Director of the ACLU of Arizona. "The fact that the shirts are for sale is immaterial to free speech protections outlined in the Bill of Rights, especially since the very purpose of selling the t-shirts is to change policies related to the Iraq war."

In addition to Phillips and Pochoda, attorneys Charles Babbitt and Natalie Jacobs, of the Law Office of Lee Phillips, also are serving as counsel in this case. The lawsuit, Frazier vs. Boomsma et al., was filed today in federal district court in Phoenix. The case number is:  CV07-1274.

Essay about Arizona Legislation
Published June 14 2007, Arizona Daily Sun

The First Amendment to the Constitution says in part, “Congress shall make no law…abridging the freedom of speech…”

Legislators in Arizona take an oath that says in part, “I … solemnly swear that I will support the Constitution of the United States…”

Our legislators have ignored their oath and let us all down by voting to approve SB 1014, the new law that attempts to make it a crime for me to continue selling T-shirts that include a list of soldiers who have died in Iraq. The shirts also feature a political statement superimposed on the list of names, such as “Bush Lied – They Died.”

This new law is not only an attempt to take away my First Amendment rights, but it is also an attempt to take away the rights of every American who wants to make a powerful statement about the war. This decision will be heard around the world, and Arizona politicians will be thought of as a bunch of Bush-loving buffoons. On the eve of Memorial Day weekend, our representatives chose not to remember the fallen, but to sweep the names of the fallen under the carpet, while simultaneously taking away one of the very rights many of the fallen believed they were fighting to defend.

Though I am disturbed by the passage of this law, I am heartened by the outpouring of support for free speech that has been evident in letters to the editor. I am also heartened by the Sun editorial that opposed this law and grudgingly supported my right to sell these shirts on free speech grounds. Other newspapers have published similar editorials, either about the Arizona law, or about similar laws that have passed in three other states.

One quibble I have about the Sun editorial is that it said, “We have to wonder if lawmakers would have been as eager to ban the use of soldiers’ names if the T-shirts had contained a ‘Support our troops’ message.“ In fact, my company sells three T-shirt designs listing the fallen. One of the newer designs says, “Support our Remaining Troops --Bring the Rest Home Alive.”

One person who criticized me in this newspaper accused me of being a “money-grubbing non-patriot.” For the record, I love my country, and most of what it is supposed to stand for, including free speech and the entrepreneurial spirit. One letter writer wrote of my supposed claim that it’s not about the money, calling it “a flat-out lie.” But I have never insisted that this has nothing to do with money. I am both an anti-war activist and an entrepreneur. I would love to be able to give these shirts away, but I can’t afford to. Critics who say I should give the shirts away should buy some shirts to give away.

Laws like this one have sometimes been defended as necessary to protect the memories of the fallen. But banning the publication of the names of the fallen hardly preserves their memories. And shouldn’t we be more concerned about protecting the living – our men and women in Iraq?

Some say this law will protect the grieving families of the fallen. But what are we doing for the families who have living sons and daughters in harm’s way right now? The truth is that these kinds of laws protect neither the dead nor the living. If they protect anything, it is only the false veneer of patriotism our politicians think they must wear to get re-elected.

Those who have pointed to the unanimity of the vote as an indication of its correctness would do well to remember that unanimity is a poor indicator of the rightness of an idea. At one time, nearly everyone agreed the Earth was flat. For a while, the 13 U.S. colonies were unanimous in allowing slavery. There have been four unanimous votes in the U.S. Congress since 2003 to fund the Iraq War. The unanimity of the vote on the T-shirt bill says more about the ignorance and cowardice now so common in our elected representatives than it says about the merits of the bill.

You can read more about this controversy on my Web site, where I also sell shirts.

Dan R. Frazier

Comments about the families and the fallen

I want to acknowledge that a number of relatives of fallen soldiers have contacted me to express their displeasure (or disgust) with the products I sell that bear the names of their loved ones. I also have heard from some family members of fallen troops who have expressed support for these products.

I admit that I did not contact the families of soldiers to get their permission. This would have been a monumental exercise, and would no doubt have proved impractical given the differing opinions among various family members. 

Of course, this product is not meant to be a statement on behalf of the families or the fallen soldiers. It is a statement on behalf of those who believe that this war was a tragic and terrible mistake -- and not an innocent mistake.

I should also like to point out that many of the soldiers who died in Iraq believed that they were fighting for democracy. Democracy is built in large part on freedom of speech. The First Amendment to the Constitution protects these products, and all such similar examples of free speech.

Finally, I would like to express my sincere condolences to all of those who have lost loved ones in this war. No matter what they believed, or which side they were on, those who died will be missed.    

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An open letter to the friends &
 families of the fallen
(revised April 16, 2007)

Thank you for taking the time to share your thoughts about the Bush Lied They Died products my company is selling. I am sorry that I am not able to respond individually to the messages that I am receiving from the friends and families of those troops who have died in Iraq. However, I am reviewing every message and I would like to respond to some of the most common concerns expressed in these e-mails.

I am surprised at the outpouring of emotion that has been aroused by these products. For nearly a year and a half, my company sold a large bumper sticker that said "Bush Lied" and included the names of more than 500 fallen U.S. troops. I do not recall receiving a single complaint about that product, which sold-out after I sold a few hundred stickers.

I am sorry that some family members and  friends of the fallen have been so offended by these products. It was not my intention to offend these family members. Nor did I expect this kind of reaction. Despite all the criticism I have received, I still fail to see how my products change the indisputable fact that these men and women exhibited great bravery on behalf of their country. The statement on the shirt is much more about the president than about the troops. The names of the troops are used to underscore the scale of the human tragedy caused by the president's lies.

As it clearly says on my Web site, these products were never intended to be a statement endorsed by the fallen or their families. But I also know that at least some family members would endorse such a statement. And if we could somehow poll the fallen themselves, we might be surprised at how many of them would agree with the statement that these products make.

These products are not meant to imply that the cause for which these men and women died was not worthwhile. History may show that these troops did in fact die for a worthy cause. Peace and stability may yet come to Iraq. Only time will tell. These products do not in any way imply that these men and women died for a cause they did not believe in.

Much has been made of my failure to get permission from the families before using the names of the fallen. Not only would this have been a monumental endeavor for a small company like mine, but it would be impractical. There would certainly be many cases where the wife said no, but the mother said yes, or vice-versa. All kinds of disagreements would arise between family members. Who would have the final say?

A number of people have accused me of trying to "make a buck" off the fallen troops. But it is not clear that I have made much money on these shirts. These shirts were expensive to design and difficult to produce because of the many names involved. I had to substantially discount the first batch of shirts in order to sell them.

It is true that I am a business man. I do try to make money so that I can continue my business and feed my family. Usually, that is not a crime. But I am also an anti-war activist. I have stood shoulder-to-shoulder with other concerned citizens holding candles in remembrance of the fallen. I organized educational peace-themed events in my community. I have marched in parades carrying the U.N. flag.

Several wives and others have asked me to remove various names from the products. Others have asked me to discontinue selling these products. Despite these requests, I have no plans to remove any names or discontinue any of these products, no matter how many requests I receive. Every name matters, and will be retained to help underscore the horrific loss of life that has been caused by President Bush's rush to war under false pretenses. The more plentiful and impassioned the pleas that I take names off these products, or stop selling them, the more aware I become of the depth of the pain and suffering that has been caused by the lies of President George W. Bush, and the more convinced I am that products like these should be part of the national debate over the merits of this war.

Some have said that I should not be degrading the sacrifices of the troops because it is sacrifices like these that enable me to enjoy the freedoms I enjoy, including freedom of speech. First of all, I do not believe that I am degrading anyone's sacrifice. Moreover, if I agree with the idea that throughout history my fellow Americans have fought and died for my freedoms (true enough), why would I be so cowardly as to give up these freedoms? Surely I should be exercising these freedoms, especially when the end result of doing so might be to prevent the deaths of more brave soldiers who may believe that they are fighting for democracy and all that it entails, including free speech.

To lose a loved one in any war is a terrible thing. To lose a loved one in a controversial war is even worse. But to take your anger out on people like me who opposed this war from the beginning, and who continue to work to bring our remaining troops home in one piece, would seem to be a case of misplaced anger. We are all American brothers and sisters. My grandfather fought in World War II and was wounded. My father was also in the military. We may not always agree with one another, but I think we can agree that the names of the fallen should be remembered, that telling the truth is important, and that every American has a right to speak their opinion.

Dan R. Frazier

July 17, 2006

Federal Legislation to Ban Certain  Anti-War Merchandise Targets Flagstaff Entrepreneur

Just months after legislators in Louisiana and Oklahoma voted to outlaw the unauthorized use of the names and images of U.S. soldiers on anti-war merchandise, representatives of those two states have separately introduced new legislation in the U.S. House of Representatives that would outlaw such use on merchandise across the nation.

Dan Frazier, the owner of CarryaBigSticker, says the legislation directly targets some of his merchandise. His Flagstaff, Ariz. company mostly sells anti-war and anti-Bush bumper stickers via the Internet. In June of 2005, his company introduced a T-shirt listing the names of about 1,700 U.S. troops who had died in Iraq. The list of names covers the front and the back of the shirt. Overlaid on the names of the fallen troops are the words "Bush Lied," and on the back, "They Died."  The company also sells a similar magnetic vehicle sign (discontinued).

On July 12 U.S. Rep. Dan Boren of Oklahoma, a Democrat known for his conservative leanings,  announced in a press release that he was introducing H.R. 5755, prohibiting the unauthorized use of the names or images of American service men and women. The U.S. Attorney General is granted the authority to seek an injunction in federal court against violators.

On July 13 U.S. Rep. Charles W. Boustany, Jr. of Louisiana and U.S. Rep. Geoff Davis of Kentucky, both Republicans, jointly announced in a press release that they were introducing H.R. 5772 that would ban the unauthorized use of a deceased soldier's name or image for a commercial or political purpose. 

The proposed federal legislation comes in the wake of new laws recently passed in Oklahoma and Louisiana.

On April 20 Oklahoma Governor Brad Henry, a Democrat, signed into law HB2643, creating penalties for the commercial use of a soldier's name or likeness without consent from the soldier or the soldier's family.  Violation of the law is punishable by a fine of up to $1,000 or up to one year in prison. The law was the result of  lobbying efforts by the mother of the late Cpl. Scott Michael Vincent, whose name appears on Frazier's merchandise. Vincent’s family also contacted Rep. Boren requesting federal legislation. The Oklahoma law is set to take effect Nov. 1, 2006.

On June 2 Louisiana Governor Kathleen Blanco signed into law HB1304  making it a crime to use the name or likeness of a deceased soldier in advertising without the permission of the closest living relative. Violation of the law is punishable by a fine of up to $1,000 or up to a year in prison. Meanwhile, in the Louisiana Senate a SB281 is awaiting a vote that would make unauthorized use of a soldier’s name on goods or clothing grounds for a lawsuit. Violators could be subject to the award of damages similar to those awarded in cases of the wrongful death of an injured person.

Sharon McLeese and Yvette Burridge, two mothers whose sons died in Iraq, pushed for the new Louisiana legislation. Lance Cpl. Justin D. McLeese, and Pfc. David Paul Burridge, appear on the “Bush Lied They Died” merchandise sold by Frazier’s company. In testimony before a committee of the Louisiana House of Representatives, Burridge specifically mentioned this merchandise.

Despite the new laws and the pending federal legislation, Frazier plans to continue selling his controversial anti-war merchandise. He said he believed it was a free speech issue and that his merchandise deserved a place in the national dialogue on the merits of the war.

“I believe I have a moral obligation to do the right thing here,” said Frazier in a prepared statement. “To me, the right thing is to continue drawing attention to the horrific toll this war is taking in terms of the lives lost. If these legislators really cared about the families of the troops, they would stop their political posturing and pass legislation to bring the troops home.”

He says he will fight any new legislation in court if necessary. But with his supply of merchandise running low, he may run out of merchandise before the new legislation takes effect. He says his “Bush Lied-They Died” merchandise has sold poorly. He says he is unlikely to produce any more.

RELATED LINKS:

March 6, 2006 news story from Louisiana.

Oklahoma Senator Jim Wilson’s April 12 press release about the then-pending Oklahoma bill.


 --------------------------

Free Speech Should Allow Using Soldiers’ Names in Protests

By Dan R. Frazier

Roughly 800 Words, Revised July, 2006

Imagine a black T-shirt with the names of 1,700 fallen U.S. troops on it. Even in tiny white letters, the partial list of soldiers killed in Iraq fills most of the front and back of the shirt. Now imagine, the words “Bush Lied” in giant red letters superimposed over the list on the front of the shirt. And on the back, the words, “They Died” in equally large red letters.

My small Flagstaff, Ariz. company, CarryaBigSticker, has been selling just such a shirt for about a year now. We also sell a similar magnetic vehicle sign. Unfortunately, these products have not sold as well as some of my other anti-Bush and anti-war merchandise. Nonetheless, these two products have helped to spark a controversy about whether or not such products should be legal. In fact, Oklahoma and Louisiana recently passed laws intended to outlaw such products. A third bill is pending in the Louisiana legislature. Meanwhile, two bills have been introduced in the U.S. House of Representatives that would effectively ban such products in all 50 states.

These bills have emerged at the behest of a small group of mothers of fallen soldiers. These mothers argue that their consent should be required before their sons’ or daughters’ names are used on products like mine. Most of thes bills focus on businesses that use the names or images of fallen soldiers for profit. But  two of the pending bills appear to go further, prohibiting use on any goods or clothing, even if the item is not being sold for profit. If these bills become law, they could be used to stop war protesters like Cindy Sheehan from writing the names of fallen soldiers on wooden crosses set up to protest the war.

While I am deeply sympathetic to these mothers and their loss, I do not intend to stop selling the merchandise in question. In fact, it is such grief as theirs that motivated me to produce these products. I do not want to see any more mothers or fathers lose their children to war – especially to a war that was launched on falsehoods.

I have been surprised by the outrage expressed by some family members who have written to me about these products. Many have said that the fallen soldiers they knew and loved would never have supported the message of my shirts. But my shirts do not say that the soldiers listed believed Bush lied about the war. My shirts merely say that Bush lied -- and these people died.

Some people have told me that they support free speech, but they think consent should be required before the names or likenesses of fallen soldiers are used on items like those I sell. But this is much easier said than done, especially when we are talking about thousands of names. Furthermore, “getting consent” and “free speech” are mutually exclusive concepts. You can’t have it both ways.

I have a background as a writer and editor. I know that libel laws could catch up with me if I made demonstrably false statements about living people, especially if such statements hurt their reputations. But I also know that in most states you can’t be held accountable for libeling a dead person, no matter who it is. I could write a newspaper story stating that President John F. Kennedy was a Nazi, and I would not have to get anybody’s consent. Nobody could haul me into court even though the statement is patently false. Why should it be possible to haul me into court for printing my “Bush Lied-They Died” shirts? The soldiers are dead. Legally, I could write a letter to the editor calling them a bunch of communists if I wanted to (I don’t). Furthermore, I have not made any false statements about the soldiers.

How is what I am doing any different from what Atlanta Journal Constitution cartoonist Mike Luckovich did? He created the word “WHY?” out of the names of 2,000 fallen soldiers who died in Iraq. He won a Pulitzer Prize for doing so. The Constitution sells reprints of the cartoon for up to $290.

We really can’t know what our fallen soldiers would say about anti-war products and protests if they could speak from beyond the grave. We may know what they said before they died, but can we really know what they were thinking at the moment they breathed their last breaths? What we do know for sure is that every soldier who has voluntarily served this country has been brave, especially in a time of war. We also know that many soldiers who have served have believed they were protecting the rights and liberties their country stands for, including freedom of speech. We do them a terrible disservice when we take away these liberties, particularly when we say we are doing it for their sake.

   
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Arizona legislator says she and others voted for T-shirt law by mistake

Posted July 10, 2007

On July 9, 2007 I received an e-mail from Rep. Kyrsten Sinema in which she admits to having voted for the Arizona T-shirt bill (SB 1014) by mistake. She also indicates that other representatives voted for this bill by mistake. She also apologizes for the error. Representative Sinema's e-mail is included below.

I am not too surprised to learn of the mistake. I had previously seen Representative Sinema speak in Flagstaff and had thought her to be a fair-minded representative who would be unlikely to vote for a bill like SB 1014. I accept Representative Sinema's apology and I look forward to receiving similar apologies from other representatives who voted for this bill by mistake.

The admission of the mistaken votes is important partly because many people have pointed to the unanimity of the vote on the SB 1014 as evidence that this was the proper way to vote. Several legislators have said or implied as much, including Representative Ann Kirkpatrick.

In her e-mail Representative Sinema indicates that Rep. Kirkpatrick and other representatives also voted for this bill by mistake. However, Rep. Kirkpatrick had previously contacted my wife and another Flagstaff constituent about this bill and did not indicate that a mistake was made.

I had heard good things about Ann Kirkpatrick prior to this vote. Her vote also surprised me. I would be interested to know if it is true that she cast her vote by mistake. Perhaps she then felt the need to justify the vote rather than admit the mistake. I feel it would have been better for her to admit the mistake, if it was a mistake. I and other constituents look forward to a clarification from Ann Kirkpatrick.

I am sending this message to interested representatives of the Arizona media because I feel it is important that the public be aware that their legislators are apparently sometimes casting votes for legislation without knowing what that legislation is. Clearly, steps need to be taken to rectify this situation as soon as possible.

Below is the text of the message I received from Rep. Sinema:

Hi Dan, it is true that there are a number of us who did not intend to vote for this bill, but because of a mistake on our part (the bills were placed on the board out of order and we were not paying close attention), several of us mistakenly voted yes. Those who did so include me, Rep. Lopes, Rep. Prezelski, and Rep. Kirkpatrick. There may also be others as well who were mistaken, although I have only spoken about it with these three members.

When talking with (a mutual aquaintance) several weeks ago, I strongly recommended that the ACLU file suit and challenge the constitutionality of the legislation. It appears that they have done so - and I hope that this challenge will protect you at some level.

Please accept my apologies for the mistake - I was not paying close attention, we were in the middle of voting about 40 bills, and when I realized it later, I was upset about the mistake.

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