Tolerance part of protecting free expression

I have always found it surprising that some people - perhaps even many people - expect free expression to be polite, respectful and inoffensive. And if it is not, then they want it banned.
 
That is what happened to a Flagstaff man, Dan Frazier, who started selling T-shirts that opposed the war in Iraq and used the names of nearly 4,000 fallen service members on the shirt to symbolize the cost of the war.
 
The anger over his shirt was red hot, especially from those who were related to or knew the military personnel who were killed in action. They felt the T-shirt was disrespectful of the sacrifice made by these individuals for their nation.
 
They did not leave it there, however. They went to the Arizona Legislature to put a stop to it. Legislators, unwisely, complied with the request. The passed a law last year which they acknowledged specifically targeted Frazier.
 
The law makes it a crime to sell items that use the names or images of fallen military members without the consent of the next of kin. The offender could be jailed for up to six months. It also allows next of kin to file civil suits for damages.
 
The American Civil Liberties Union has been fighting the law on Frazier's behalf and had a somewhat favorable ruling from a federal judge this week. U.S. District Court Judge Neil Wake ruled the controversial T-shirts are "core political speech fully protected by the First Amendment."

As seems to be the usual case with court rulings these days, it was a mixed bag.
 
While the judge acknowledged that even items which are sold have free expression protections, he limited the ruling specifically to Frazier and drew a line between strictly commercial uses and those that combine legitimate expression.
 
That is far too fine a line. Free expression is free expression and it should be broadly interpreted as such by the courts.

The First Amendment to the Constitution, which protects free expression, does not distinguish between commercial and non-commercial speech. It simply says that free speech may not be curtailed by the government.
 
Unfortunately, the outcome of this narrow ruling is that the law itself remains intact and each case may have to be argued on its own merits to determine if it applies. Hopefully, the free speech protection will be expanded if it goes to a higher court.
 
The judge also left intact the civil lawsuit part of the law because he said the case before him did not include that issue. The ACLU is currently fending off a $40 billion class action lawsuit by survivors against Frazier. It apparently will go up to another court to decide the constitutionality of that issue.
 
The T-shirt case is one that is probably confusing for many people. In general, they like the idea of being able to say what they want, but to most Americans, I think, those who have died in this war are heroes and there is great empathy for those who have lost a loved one. They want them to be protected.
 
To them, the T-shirt in this case is disgraceful and an attack on these heroes. They find it offensive.
 
But it also makes a political statement and is therefore protected expression.
 
We need to be able to step back and make that distinction - even if we hate doing it - so the free expression for everyone is protected.


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Terry Ross is director of The Sun's News and Information Center. E-mail him at tross@yumasun.com or phone him at 539-6870.