Maryland House Weighing Commercial Use Of Dead Soldiers' Identities

Lawmakers are pushing a bill to criminalize the commercial use of a deceased soldier's name or image, but opponents say political speech would be unlawfully targeted.

In an emotional House committee hearing Tuesday, the families of slain service members and other bill supporters lashed out at activist Dan R. Frazier of Flagstaff, Ariz., whose online business sells anti-war shirts and other items that use soldiers' names. He refuses to remove any names, and the American Civil Liberties Union has backed him on free speech grounds.

"To characterize [the shirts] as commercially exploitive of the soldiers' names? is not a fair characterization of what these shirts were doing," said Cynthia Boersma, legislative director for the ACLU of Maryland. "They're about engaging in a dialogue about why these soldiers died."

In an interview, Frazier said the shirts' slogans, such as "Bush Lied -- They Died" are not presented as the opinions of the soldiers listed.

But Kevin Kavanagh of Severna Park, whose son Army Pvt. Eric Kavanagh was killed in Sadar City, Iraq in 2006, is appalled that his son's name is used in political messages that are "not only against what my son believed, but what I believe," he testified.

Kavanagh contacted Delegate Nicholaus Kipke and Sen. Bryan Simonaire, both Republicans representing Anne Arundel County, and both introduced the Fallen Soldier Privacy Act of 2008 in each chamber earlier this month. Similar measures have passed in five other states and Congress is considering a nationwide law.

A federal judge issued a preliminary injunction against Arizona's version of the bill in September. Frazier is pushing for a permanent injunction.

Kipke sat next to family members at the House Economic Matters Committee hearing and defended the act, which would impose a maximum penalty of $2,500 and a year's imprisonment on anyone using deceased soldiers' names for commercial advantage.

"This is just about respecting the rights and privacy of families who have lost a loved one," he said, stressing that the law would only target the commercial use of names without consent, not political expression.

The ACLU of Maryland opposes the bill, arguing the law would jeopardize protected political speech, including certain news coverage or political cartoons that are commercially distributed.

"It happens to be a political message that the families of the soldiers disagree with, and find understandably hurtful and painful, but it's the political message that they're trying to censor," Boersma said, at the hearing. "And that's what the First Amendment protects."

Family members asked for the soldiers' speech rights to be considered as well.

Eric Herzberg of Laurel, whose son Marine Lance Cpl. Eric Herzberg died in Iraq's Al Anbar province in 2006, held up a painted portrait of himself and his son, likening Frazier's activities to defiling the portrait with black marker.

"Mr. Frazier claims this is a free speech issue," he said. "I couldn't agree more. Let's make sure our country's fallen heroes? are heard on this issue."

But Frazier said he's puzzled by legislative efforts against his business.

"I'm a little bit surprised that they're so upset sometimes about what I'm doing," he said. "I really feel like I'm on their side. I'm doing what I can to try to bring the troops home safely."

Capital News Service contributed to this report.