kaltes is mostly correct, however, libel (the t-shirts are printed) post-Sullivan doesn’t protect private individuals from the malice standard nor from free speech protections if no public figure is involved.

No, I was entirely correct, I just didn’t care to get into detail on libel because it clearly isn’t an issue here. The only thing being said about the persons named is that they died in Iraq, and that is true.

Not only would the case move beyond summary judgment, I believe plaintiff would win on the merits–here’s how: you are probably familiar with laws prohibiting murderers and serial killers from profiting from their cases, so in the case at bar a judge would likely find the speech acceptable under First Amendment grounds but would rule that the profits go to decedent’s estate.

Haha no, wrong. The entire case gets tossed on a motion to dismiss because, as a matter of law, plaintiffs have stated no valid causes of action. Anti-war t-shirt makers arent killers. They didnt kill these soldiers. It isnt like al queda is printing these shirts, so your analogy doesnt make sense.

Yes. Their names appearing on a t-shirt implies that they endorse the t-shirt guy’s view and makes no allowance for those who don’t.

No it doesn’t. Their names are being used to show the bodycount in more personal terms. It isn’t an endorsement.

This is an issue of using a person’s name to forward that opinion, thus making it seem that that person endorsed said opinion.

I hope you grow out of using such tortured language before you finish law school. People don’t speak like this. When I read this out loud I feel like an old british guy in a white wig is saying it. lol

Everybody has a right of publicity

Not really. People who arent famous don’t really have any trademark rights in their names, because their names arent worth anything. Instead, non-famous people have to rely on causes of action like violations of privacy type stuff. So no, a soldier from iraq isn’t going to have a trademark claim. Even if he did, trademark doesn’t override the 1st amendment either.

And no, the soldier could not have made money putting his name on shirts. The name isn’t what sold the shirts, the anti-war message is what sold the shirts. The names by themselves are worthless.

Would a mosaic of Brezhnev’s face made up of Russian soldiers, say those who were drafted to go to Afghanistan and had zero choice in the matter, be an abuse of the fallen?

freevillage on April 23, 2008 at 11:43 PM

Yes. Their names appearing on a t-shirt implies that they endorse the t-shirt guy’s view and makes no allowance for those who don’t. The assumption that ‘death = I didn’t support the President/Premier’ is the problem, as the vast majority of soldiers understand duty and aren’t whiny t-shirt making tards who only have enough balls to use the names of those who can’t come find them and kick their asses for misrepresenting their views.

If there is a difference, though, US soldiers weren’t drafted and chose to serve in whatever capacity they’re legally ordered to serve, but even then, some draftees support the actions they’re sent into.

Via Hot Air:

The Smoking Gun has a copy of the complaint. Turning KIAs into political props is bad enough; getting rich off it — profits may reach $75,000 in this case — is execrable. Any tort lawyers in the audience want to skim through …

An ugly abuse of the fallen, for sure, but not legally actionable.

Would a mosaic of Brezhnev’s face made up of Russian soldiers, say those who were drafted to go to Afghanistan and had zero choice in the matter, be an abuse of the fallen?

Or would it be a totally acceptable (certainly on this forum) message that Brezhnev’s idiotic policy led to lots of good people’s deaths.

Would you let your friend slander and smear your Mothers name (for the sake of whatever) because it sells t-shirts? I think you would probably either get ticked off… or go for a slice of the pie. My opinion is you would go for the pie

Well, you’re wrong about me. I guess you’re projecting your own thoughts.

you are probably familiar with laws prohibiting murderers and serial killers from profiting from their cases, so in the case at bar a judge would likely find the speech acceptable under First Amendment grounds but would rule that the profits go to decedent’s estate.

Your reasoning is ridiculous. You may be right as to the outcome but the explanation makes zero sense. They aren’t murderers. If their message is legitimate from the point of view of the law, and they have broken no other law, why can’t they make money off these t-shirts?

You now owe me $125.
I’ll bill you.

I’m not sure the First Amendment right to free speech includes the right to use a dead soldier’s name

(a) No such thing as a “First Amendment right to free speech”, only a First Amendment protection of free speech
(b) The right of free speech is abstract, and makes no specific claims to how that right is exercised. If Joe Shmoe dies in a war you object to, you are at liberty to talk about him, his loss, and the futility of it all.

He cannot misrepresent them, however – that would be cause for legal action – but simply listing them as casualties of war is perfectly factual.

An ugly abuse of the fallen, for sure, but not legally actionable.

Emotional arguments don’t work when you’re dealing with Constitutional law; like it or not.

Would that this were so, but with the left-leaning end of SCOTUS, that seems to be most of what does matter.

kaltes on April 23, 2008 at 4:52 PM

Koppel was not profiting (any more than if he ran a show a another topic) from his show “honoring” the dead. These tee-shirt makers are directly makeing profit off of these shirts. Does that figure in at all? I know very little about the law in this instace so that is a question of ignorance.

Sure you do. As I have the right to call you a complete idiot and a heartless bastard.

But would you slander your Mothers name… or even better. Would you let your friend slander and smear your Mothers name (for the sake of whatever) because it sells t-shirts? I think you would probably either get ticked off… or go for a slice of the pie. My opinion is you would go for the pie…. but then again 1st amendment!

Now that you are a little ticked off. Think about how the families feel that their children, brothers, sisters, uncles, cousins, aunts, husbands, wives, and wear a t-shirt with their names on it?

It is called common sense… use it!

However, Dan Fraser knew or should have known that the use of the Soldiers’ names on the T-shirts would cause emotional distress to some of their survivors.

Is that the standard now? Suppose, for the sake of argument, I genuinely believe that I have more concern for the memory of the soldier than his own family.

I know, it’s most likely false but we’re talking fundamental constitutional issues here.

Suppose my position is: the family of the soldier is wrong on this. The soldier was needlessly killed in a stupid war. That his family wants it to be otherwise is understandable but factually false in my estimation.

Do I have a constitutional right to express this view?

slp on April 23, 2008 at 7:00 PM

IIED is a lot different than NIED. The Falwell comparision doesn’t relate very well.

Featuring the names of dead soldiers on an anti-war shirt isn’t quite as cut and dried as that, but I’ve personally never assumed that the families of the fallen have licensed the names and/or images of the troops used in those dopey mosaics of Bush’s face, so in no sense am I really being misled.

Thanks. End of thread.

Falwell was a public figure with fewer rights against a First Amendment defense by Penthouse Magazine.

The Soldier was not a public figure.

On the other hand, the fact that he was a Soldier who died in Iraq is a matter of public record.

California has laws which allow the survivors to control the right of publicity for the decedent.

My guess is that under Tennessee law the Soldier’s right of publicity died with him.

However, Dan Fraser knew or should have known that the use of the Soldiers’ names on the T-shirts would cause emotional distress to some of their survivors.

mjk on April 23, 2008 at 6:31 PM

Emotional arguments don’t work when you’re dealing with Constitutional law; like it or not.

I’m not sure the First Amendment right to free speech includes the right to use a dead soldier’s name, over the objection of his next of kin, in a manner which conceivably implies endorsement of your message.

Also, FWIW, Greeneville is a small southern town which would probably rank pretty high on the patriotism scale. They’re proud of their history, and previous residents include President Andrew Johnson, Davy Crockett, and country singer Rodney Atkins.

I think it’s safe to say the populace, and many individuals in the court system, will be sympathetic to the case and the family. IMHO.

kaltes on April 23, 2008 at 4:56 PM

P.S. Perhaps you’d like the names of my family members who have killed themselves or have succumbed to Alcohol and drug addiction to further some political cause. I mean, first amendment and all.

Anyone who thinks this way might as well tear the 1st amendment out of the Constitution and wipe their behinds with it.

Holy Crap!!! It’s called bloody courtesy and sympathy for a family who lost a member of their own in a bloody war!!! How about they do that for all the Military who lost their lives in WW2?? There are people who think that war was pointless or something.

I don’t know if you’ve ever lost a family member in a tragic murder or during a war, but I can guaran-fricking-tee you that I would have the maturity and class not to put their exact name on a bloody T-shirt to advance my political cause.

Why? Because I’m a grown up who would never ever do that to anyone.

Actually it does. If you look into many and multiple States there have and are some cases going on as of right NOW that show slander against individuals whom are dead.

You are seriously ticking me off. Your narrative on Dead Soldiers to Socialist’s aren’t even on the same level. PERIOD! Soldiers died for their country, duty and what they believed which is Freedom! Socialist made people of the couontry they resided in impoverish, poor, and to the point of Death or Starvation for ideals that no one should ever back.

I would highly suggest you think about what you are saying before posting it in here. Because you “propaganda” is not something I would claim. I.E. The Soldier didn’t Die because Bush Lied… you idiot!

The parents can sue for slander. Slander against them as parents and Slander against their Son’s name, may he rest in peace.

Slander is spoken defamation, so it doesn’t apply here. Written defamation is called libel. Since the parents were not mentioned on the shirt, there is no way to allege defamation against them.

As for the son, there is nothing untrue regarding his name. He is only represented to be among the dead and that is accurate.

One man who is a lawyer casually dives in, swims to shore, and brings back help. “That was amazing!!!,” said his buddy in the boat, “how come you weren’t immediately ripped limb from limb and eaten?”

“Professional Courtesy,” replied the lawyer.