A recent article in Reason about bans on certain anti-war T-shirts made me think back on one of the saddest events of the past year for me. A friend from high school was killed in Iraq in January, and his family threw a good-bye party at the local watering hole for his friends to get together, drink, and tell funny stories about a kid we’d never see again. If you’re lucky enough to have never been to one of these memorials, there are a few things you should know. First, the venues tend to have one of two things in common: a close proximity to God (churches, synagogues, etc.) or easy access to booze (typically a bar or a VFW with a bar). Second, they’re heartrending. Dead young people always are. But the context—a violent death in a faraway country—gives them an even sadder underpinning. Third, there are T-shirts for sale. Always T-shirts. The proceeds usually go to the soldier’s family or a charity—both deserving recipients.
Sadly, this tradition of memorializing dead soldiers is in iffy legal standing in a handful of states. The legal battle began with a Flagstaff, Arizona, anti-war protester who was selling T-shirts that read “Bush Lied...They Died” superimposed over the names of U.S. soldiers killed in Iraq. An Oklahoma mother, whose son is one of the soldiers named on the shirt, raised objections. In response, Oklahoma legislators imposed a ban on merchandise containing soldiers’ names and images in April 2006. Louisiana, Texas, and Florida all followed suit. And in May 2007, Arizona legislators unanimously passed a bill (free registration required) that made the commercial use of soldiers’ names and images without the consent of their families a misdemeanor crime. But, as Reason notes, “Such bans are almost certainly unconstitutional, since the shirts, though exchanged for money, are clearly political speech.”
Though prohibitions on the state level have weathered considerable opposition—in September a federal judge in Arizona issued a preliminary injunction against the law—U.S. Representatives Dan Boren (R-OK) and Charles Boustany (R-LA) pushed for a national ban in the House version of the 2008 Defense Authorization bill. Amid objections from the American Civil Liberties Union (pdf) and other free-speech advocacy groups, the ban didn’t survive the House/Senate conference committee that hashed out a compromised bill. The issue is far from dead, however. The conference committee requested independent studies by the Secretary of Defense and the Congressional Research Service focusing on legal reviews of the proposal.
Such laws, either on a state or federal level, are not only an infringement on free speech; they paint the grieving families of fallen soldiers—or anybody else, for that matter—as un-American if they come out against the war. If proponents of these misguided laws can somehow reconcile their cliché-ridden idea of the “ultimate sacrifice”—which these families have certainly made—with unpatriotic behavior, I’d love to see it. Until then, legislators should keep their laws off our dead friends.