Maryland Delegate Nicholaus Kipke and Sen. Bryan Simonaire are pushing for passage of the Fallen Soldier Privacy Act of 2008 to criminalize the the commercial use of a deceased soldier’s name or image. It is a controversy triggered by tee-shirts produced by anti-war activist Dan R. Frazier of Flagstaff, Ariz., whose online business Carryabigsticker.com sells anti-war shirts and other items that use soldiers’ names. The law is, in my view, unconstitutional and could lead to an interesting court fight if Congress follows suit with its own legislation.
I previously wrote a column on this issue and I have discussed the matter with Frazier. Click here. The effort to prevent the use of publicly available names and images constitutes a serious infringement of free speech. While privacy and misappropriation torts do offer some support for restricting the commercial use of images, the constitutional values should prevail in this conflict.
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