ACLU Tries to Save Anti War T-Shirt

Flagstaff, AZ – The T-shirt says Bush Lied They Died in big red letters. In smaller print appear the names of more than 3-thousand U-S soldiers who died in Iraq. Flagstaff businessman Dan Frazier created the shirts.

FRAZIER: The whole point was to draw attention to the horrific toll that the war was taking on these young people.

A new Arizona law says names of dead soldiers cannot be used without consent. Several states have passed similar laws at the urging of families who lost a loved one in the war.

Senator Jim Waring crafted Arizona's legislation in response to Frazier's shirt.

WARING: He's basically making money off somebody else's name He's putting your name on a message which you fundamentally disagree or in this case your closest relatives say you'd vehemently disagree and selling it for a profit.

The argument comes down to commercial speech versus free speech. Attorney Charles Babbitt is representing Frazier in conjunction with the ACLU. He acknowledges that Frazier's making money but says the shirt's message is political speech that needs to be protected.

BABBITT: There is first amendment protection for commercial speech. It is diminished. In this case we don't believe that this is commercial speech. Traditionally commercial speech has been understood by the Supreme Court as being either advertising or communication that is related solely to the economic interest of the speaker.

Margy Bons' son Michael was killed by a suicide bomb in Iraq. She says even though the names have been made public, that doesn't give Frazier the right to use them for his personal gain.

BONS: Ask first. That's all we're saying. It wasn't about freedom of speech. It wasn't about taking away anybody's rights because our boys and girls died for those rights so we can continue to have those rights. But don't abuse the right by calling freedom of speech for your own personal gain without thinking about who you're hurting.

The Phoenix mother opposes the war but she says she knows her son wouldn't have wanted his name on this T-shirt.

BONS: I was told on Mother's Day that I lost my boy. That in itself is the hardest thing to get through every single year but to have to stand and plead to somebody to keep my son's name in honor somebody that's just trying to do something for money is very hurtful in itself.

Frazier says the law infringes upon the rights of other Arizonans who may want to make a statement about the war. He says he feels terrible for the families.

FRAZIER: Hopefully my T-Shirts will play a small part in shifting public opinion and more importantly at this point the opinion of the administration so we will be able to bring troupes home who are still alive and bring them home safely and soundly.

Initially Frazier wasn't making any money on the shirts. He thought he might have to take them to Good Will because they weren't selling. But after all of the media attention he says the shirts are now his best selling product. He's sold more than 2,000 at $22 each and he has no plans to stop selling them despite the law.

And he's had to make several versions of it -- each time adding more names. The latest has 3,461.

For Arizona Public Radio I'm Laurel Morales in Flagstaff.