What's in a name

On this Memorial Day, when my first inclination to honor the service and sacrifice of our soldiers was to link to a list of all those who have given their lives in our current war, I stumbled across an interesting story. (I stumbled across it in article from a gaseous windbag in a paper that I am boycotting linking at present, so I had to go find it elsewhere. Luckily that was not hard to do.)

Prompted by complaints from family members of slain soldiers, there has been a push in several states, some already successful, to outlaw the use of the names of soldiers killed in Iraq for commercial purposes, including the sale of protest paraphernalia such as T-shirts that contain the names of the dead. The legislation has already passed in Oklahoma and Louisiana and is presently pending in Arizona, Texas and Florida.

The problem here is that such legislation is probably unconstitutional. The names of the dead are public record, and the use of such public record for purposes of political speech (even if it involves the sale of protest gear) probably cannot be constitutionally restricted when the names may still be used for other purposes. In addition, the legislation could prohibit the use of such names in connection with any commercial enterprise beyond the sale of goods--such as This Week's weekly broadcast of the names as part of their "In Memoriam," or a website or blog keeping a running tally of the names if that website or blog has advertising on it. I sincerely doubt restricting those sorts of use will pass constitutional muster since all are arguably newsworthy uses.

I sympathize with the feelings of the families of the dead who support the war and don't like the notion of their fallen soldier's name being connected with the opposing view. That would be difficult for anyone to bear, but I don't think anyone--regardless of their political views--intends in any way to sully the reputation of these fallen soldiers. Those of us who support the war and want their names listed as often as possible are seeking to honor them in the best way we know how, which is to never forget that real people with dreams and goals and families gave their lives for the rest of us. We never want to forget or gloss over their ultimate service and sacrifice. And, frankly, outlawing political speech that you disagree with in clear violation of the Constitution does them no great service either.

It is a controversial and emotionally-charged issue, and I am sure that we will see considerable litigation over the constitutionality of such statutes as they are enforced. It is a shame that some will choose to make bad law to silence the other side in what should be a heated public debate. I'd prefer that those who support the war work on legislation designed to make it successful and to positively honor the soldiers rather than worrying about silencing its critics.