Can property law reverse Cohen v. California? by Rebecca Tushnet

In other words, can the state create a property interest that will allow it to prosecute people for wearing the wrong sort of T-shirts?

I received an email from a columnist who is following up on this story, which concerns a Texas couple whose son was killed on duty in Iraq. The father searches for his son’s name and, when he finds it on anti-war sites, asks them to remove it. According to him, the majority comply. This, I submit, is a mistake on the sites’ part, albeit an understandable one. That history is painful does not make it untrue, and that the father opposes anti-war groups does not make his son’s death off-limits for discussion by such groups. Sites that complied with his understandable but overreaching request, I suspect, set the stage for the next development: there’s an Arizona site, CarryABigSticker, selling T-shirts with “Bush Lied” on the front and “They Died” on the back, along with the names of U.S. soldiers killed in Iraq through October 23.

The grieving father, Robert Vandertulip, asked the seller to remove his son’s name. The seller refused. According to the Star-Telegram, at the father’s urging, “Rep. Linda Harper-Brown, R-Irving, has pre-filed a bill for the upcoming Texas legislative session that would make it a misdemeanor to use the name or image of a current or former member of the military for a commercial purpose without permission…. Already, two other states have passed similar laws and two bills have been filed in Congress before.” (Later information in the article indicates that Texas already has a civil law covering use of name/image without permission, but that the proposed bill adds a criminal penalty.)

Rep. Harper-Brown thinks it’s not right to profit “on the death of a soldier who put his life on the line for us and our freedom.” What the family’s permission has to do with the rightness of profit is an open question – but the bigger issue is how detailed political speech has to be before we’re willing to recognize it as speech. I hope and trust that supporters of these laws would not want to apply them to books critical of the war, or a newspaper’s list and photos of the U.S. dead, even though those are, like the T-shirts, produced by profit-seeking entities.

Vandertulip invokes right of publicity in defense of his claims, arguing that “if he were to use shirts with Arnold Schwarzenegger, Paris Hilton or Robert DeNiro's name, [he’d] have to pay them for the use of it.” Schwarzenegger might sue – he has done so over bobblehead dolls – but whether he could win is another question, especially if the shirts had a political message. The question of when artistic license trumps publicity rights has been much-litigated, to very different results in different states. California is reasonably speech-protective, if the commercial art at issue is “transformative” and uses a celebrity image as a starting point for new meaning. Missouri, by contrast, hews pretty closely to the idea that trading on celebrity identity for commercial advantage is a violation of the right of publicity, regardless of what was added.

Rights of publicity, however, are based on a privacy-plus theory of unjust enrichment: that celebrities are responsible for the pecuniary value of their images and are thus entitled to reap whatever commercial advantage they bring. This doesn’t translate well to an equally expansive right for non-celebrities. CarryABigSticker isn’t exploiting any preexisting commercial value of the fallen soldiers’ names. The value of the shirt exists in listing multiple names and in adding the political message. Even Missouri’s right of publicity requires the plaintiff to show that his identity has preexisting commercial value, and here it really doesn’t. There is no “reaping where others have sown” to counterbalance against the T-shirt maker’s First Amendment rights to speak about the war.

The Star-Telegram article quotes some lawyers to the effect that the proposed bill is more likely to pass constitutional muster because it covers only commercial speech, implying that CarryABigSticker can be stopped even if political protests putting servicemembers’ names on signs can’t be banned. This spin is consistent with a standard prejudice against “promotional goods” like T-shirts, posters, and mugs, as compared to pamphlets, blogs, and newspapers, but it reflects a deep misunderstanding of what “commercial speech” means.  The speech that gets less protection is not speech that’s offered for a price (like the print version of the Star-Telegram) but speech that proposes a commercial transaction (like the ads in the Star-Telegram).  The “Bush Lied” T-shirts are not commercial speech. The proposed law may be constitutional – but if so, it’s constitutional because it doesn’t cover the T-shirts it’s supposed to silence.

According to the story, CarryABigSticker has stopped selling the T-shirts in two states with a version of this law, Louisiana and Oklahoma.  This is unfortunate but, again, understandable – it’s called a chilling effect for a reason.