How Not To Honor Our Honored Dead

Where's Jack Kevorkian when the nation really needs him? I sometimes think I'd rather see the 1st Amendment put out of its misery quickly than witness its lingering, painful death at the hands of contemporary politicians, regardless of their motives. In the case of the Bipartisan Campaign Reform Act of 2002 (McCain–Feingold), of course, the motive is entirely self-serving. "Bipartisan" is the tipoff here and the objective is simply to further entrench the two-party system and make it that much easier (read: cheaper) for current incumbents to retain office.

Not every attempted rape of the 1st Amendment is self-serving, however. Occasionally, benighted legislators act out of genuine, if misguided, concern for some competing interest other than their own. Several states have already passed (and other states are considering) legislation banning the sale of the t-shirt shown below, the fine print being a Vietnam Memorial style listing of U.S. personnel who have thus far died in Iraq. The other side of the shirt reads "BUSH LIED" with the same background.



In Congress, Rep. Dan Boren (D-Okla) introduced H.R. 269, the proposed Soldiers Targeted by Offensive Profiteering Act of 2007 (STOP Act), which includes the following language:

Except with the permission of the individual or individuals designated under subsection (d), no person may knowingly use the name or image of a protected individual in connection with any merchandise, retail product, impersonation, solicitation, or commercial activity in a manner reasonably calculated to connect the protected individual with that individual's service in the armed forces.

Let us acknowledge at the onset that many, perhaps most, perhaps even all of the U.S. casualties of the Iraq War believed in the cause they were fighting for and that many of their survivors continue to do so or, at the very least, are emotionally harmed by the use of their loved ones' names in this manner. The Defense Department made similar arguments about photographs of the caskets of such casualties and I freely acknowledge that at least part of the rationale for the objection was and is a legitimate concern for the feelings of the survivors and a moral, if not legal, right of privacy on the part of the deceased.

That said, let us also acknowledge that the primary rationale for the 1st Amendment is the protection of free political speech. (See, e.g., various commentaries here.) As such, whatever other dubious exceptions the Supreme Court has carved out to the amendment's apodictic prohibition against any federal "law ... abridging the freedom of speech," even the High Court has given special deference (except, alas, in the case of McCain-Feingold) to political speech.

Some state legislatures, at least dimly aware of this fact, have attempted to construe the t-shirt and its printing as "commercial speech." Ordinarily, commercial speech is understood by the Court to mean "expression related solely to the economic interests of the speaker and its audience," so I rather seriously doubt these state laws will withstand constitutional scrutiny if and when they are challenged in court. Here, in any case, is the current prevailing test under Central Hudson Gas & Elec. v. Public Serv. Comm'n for regulation of commercial speech. Commercial speech may be regulated if:

1. The regulated speech concerns an illegal activity,
2. The speech is misleading, or
3. The government's interest in restricting the speech is substantial, the regulation in question directly advances the government's interest, and the regulation is no more extensive than necessary to serve the government's interest.

I simply cannot imagine how any state legislatures have managed to convince themselves that their prohibitions can meet this test. Then again, one should never underestimate the capacity of legislators either to delude themselves or to engage in a bit of grandstanding when it comes to such emotionally sensitive issues as properly honoring our war dead. (A phrase I want to make completely clear I do not mean at all ironically. Those men and women unquestionably do deserve to be honored for their sacrifice.)

Similarly, I serious doubt that congressional attempts to justify such restrictions on both the allegedly commercial nature of the speech and creation of, in effect, new property rights for the deceased and their family members as "protected persons" can withstand both these and other constitutional concerns, e.g., the fairly glaring viewpoint discrimination involved.

I suspect Boren and others genuinely believe they are doing, or at least trying to do the right thing here. But they're not. If anything, and however unintentionally, these laws do a disservice to our war dead. If the American men and women who have died in Iraq did not give their lives to preserve the very freedoms some claim our enemies hate us for, why on earth did they die?

(Hat tip to Reason's Radley Balko.)