ACLU of Arizona Wins Major Victory in Challenge to Law Criminalizing Sale of Anti-War Shirts

Affiliate: ACLU of Arizona
September 27, 2007 12:00 am

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PHOENIX – 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 28th challenging the law. ACLU of Arizona Cooperating Attorney Lee Phillips, of Flagstaff, was lead counsel on the case.

In his 30-page decision, 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,, 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,” wrote 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,” wrote 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.

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