FREE SPEECHFool for lust or no in front of an official microphone, former Assembly Member Mike Duvall (R-Yorba Linda) authored a probably unconstitutional restriction on others' speech that his legislative colleagues have fallen all over each other to push on to passage.

AB 585, now shouldered by Assembly Republican co-authors Joel Anderson (El Cajon), Paul Cook (Yucaipa) and Chuck DeVore, awaits only one more vote—a concurrence vote in the Assembly—before heading to the Governor's desk.  Earlier it won a 75-0 vote in that chamber, followed by a 24-10 vote in the Senate.

The bill, as noted in the Senate Judiciary Committee analysis, is about T-shirts.  Or rather, selling T-shirts.  Or rather, selling T-shirts that name groups of war casualties and crime victims to make a political point, as in, "Bush Lied. They Died." Or rather, doing so without getting the surviving relatives' permission.

Although the decision will ultimately be left to the court whether this bill, if enacted, is unconstitutional as applied to the offensive T-shirts and other commercial goods, it will likely turn on whether the court finds that the selling of the T-shirts, with the soldiers' names and the emblazoned commentary accompanying the names, is more political speech than commercial speech. Pure commercial speech is less likely to be protected than political speech . . .

The bill's contents and constitutional defects are outlined in the following letter of opposition, sent in June.

Dear Assembly Member Duvall,

Californians Aware opposes AB 585, which would expand the definition of "deceased personality"—whose successors in interest are given the right to control and be compensated for commercial exploitation of his or her identity—to include not only any natural person whose name, voice, signature, photograph, or likeness already has commercial value at the time of his or her death—a celebrity—but also any relatively little-known person in life whose name, etc. acquire such value “because of his or her death.”

Anyone can understand the affront at seeing a late friend or loved one’s identity exploited by those who never knew him or her to advance a point he or she may have never considered, much less shared. Anyone can understand the aggravation sensed when such a linkage is made in a mass medium for commercial gain. 

But like a large number of things done and said that are at once repugnant to people of intelligence, taste, dignity and decency but also protected by the First Amendment, the practices that this bill would regulate would very likely survive the bill’s approach to regulating them, once it was challenged in court, which it surely and deservedly would be.

The current law on the protection of celebrity personalities from unconsented commercial exploitation is just that and no more.  It protects those—and the heirs of those—who have consented to and even encouraged the commercial exploitation of their personalities throughout their lives, at least when the exploitation was reputationally acceptable and financially rewarding.  This law, in short, is not about sentiment or honor or reverence for either the living or the dead.  It is about branding rights and their business consequences.

Your bill would depart from this intellectual property domain by making the fact or circumstances of one’s death alone, if they have “market value,” protected from unconsented commercial exploitation.  But the intended or hypothetical examples—service members killed in a theater of war, but also, as the Senate Judiciary Committee analysis notes, the victims of notorious crimes—had deaths that in themselves had no market value.  Moreover, unlike the case with celebrities, these otherwise anonymous people’s names, likenesses, voices, signatures, etc. will never have a market value in and of themselves.  The only market value that will arise will be the product of other people’s asserted beliefs and convictions concerning not the people themselves, but the fact of their death.  And those other people’s beliefs and convictions are protected by the First Amendment, as are those who obtain commercial gain from selling merchandise with appeals to or expressions of those beliefs and convictions.

In the existing celebrity-rights statute you would amend, there is an utter exclusion from the consent requirement for the use of a name, voice, signature, photograph, or likeness of a deceased  personality in material that is of “political value.” That exclusion was not added without good reason, because without it there would have been a high risk of unconstitutional applications.   Without it one could not have used imagery of Ronald Reagan or John Wayne to satirize or criticize the right wing in posters sold to the public, or of Jane Fonda in T-shirts sold to mock the left wing.  Even celebrities are fair game for having their legacy iconography drafted as ironic references in political discourse.

Your bill, nonetheless, asks those who would gain commercially for serving the market for political, religious, ethical or other outspoken beliefs about deaths from war or crime to seek permission from the loving (or at least economically interested) survivors in order to do so.  Such a desire is no more consistent with our tradition than an impulse to let the descendants of notable figures have a veto over references to them in works of biography or history.

The application to the names of service members who died in uniform is particularly strained.  Unlike even victims of notorious crimes, these people’s particular deaths are almost totally unknown to the public at large,  and evoke political significance only when framed collectively as representative of all war fatalities.  One could sell a thousand different T-shirts with a thousand different clusters of (authentic) names and the point would be the same: “They died.” It is safe to say that absolutely no one connects the thrust of the message that “They died because Bush lied” with either an individual named on the T-shirt,  or with all those named.  They are a fact being pointed to as the premise of a political accusation.  And it is not a constitutionally recognized defense to say that this bill would regulate not political rhetoric, or even the citing of names as facts used in political rhetoric, but only the seeking of money for the display of names as facts in political rhetoric. Money paid (or gained) to promote a point of view is just as protected as an expression thereof under the First Amendment as are the words they pay for.  That principle undergirds all modern American politics, and the politics of winning and keeping seats in Cali
fornia’s enormous representative districts in particular. 

In summary, T-shirts hawked on the Internet, in a novelty shop or on a street corner listing the dead as data in deploring a war, a crime, or a war crime have no less constitutional validity or dignity than would articles in pricey magazines or honoraria-bought speeches that do the same thing.  The making of money from such offerings is nothing but the surest sign that there is a market not just for the cotton, paper or the high-end speaker’s smile,  but for what is being written or said.  It has been called the marketplace of ideas; and once we begin limiting the facts that can be taken to market to bring life to the ideas, we begin limiting our liberty of speech to what is politically acceptable.

We respect your concern for the feelings of those who have lost dear friends and family members to war, but we do not believe it serves the memories of the fallen to pass a law soon to be stricken as alien to the Constitution they swore to defend.

We urge you to withdraw AB 585.