Legislator wants law against using veterans' images

By KEVIN LANDRIGAN Telegraph Staff
klandrigan@nashuatelegraph.com

CONCORD – The state should make it against the law for anyone to use a veteran's name or picture for commercial use without permission, Rep. Al Baldasaro, R-Londonderry said Thursday.

But the author admitted his own bill needs adjusting to protect First Amendment rights and to avoid an avalanche of litigation.

"I plan to change this so First Amendment rights are protected, but the military and their family members are protected as well,'' Baldasaro told the House State and Federal Relations Committee.

An Arizona man, through his Internet business created in 2005, has been selling T-shirts with the names of all soldiers killed in Iraq. His T-shirts have sparked similar bills before lawmakers in 11 states.

Dan Frazier, of Flagstaff, sells shirts that bear slogans such as "Bush Lied – They Died" and "Support Our Remaining Troops – Bring the Rest Home Alive."

Lawmakers in Arizona, Florida, Louisiana, Oklahoma and Texas have all approved measures. Rep. Daniel Boren, R-Okla., is pursuing a federal ban.

The New Hampshire proposal would require the user to get written permission from the veteran or surviving next of kin for "any merchandise, retail product, impersonation, solicitation or commercial activity.''

Violators would face a fine for each offense of at least $1,000 and up to $2,500.

It further gives the state attorney general the authority to seek a court injunction to block continued use of a name or image without having to show proof any person "has in fact been injured or damaged'' by the violation.

"I'm looking to protect particularly the family of the deceased veteran from those looking to make a quick profit,'' said Baldasaro, a disabled Marine veteran.

But the bill would unconstitutionally infringe on free speech rights according to Paul Worsowicz, a lobbyist representing the Motion Picture Association.

"We oppose the bill as written, but we'll work with the committee to clarify it,'' Worsowicz said.

"You could see a lot of litigation resulting from this.''

Rep. Kris Roberts, R-Keene, said it's not always possible for those publishing newspapers and magazines or moviemakers to get the permission of every soldier's name or image in a photograph.

"How would Ken Burns' World War II ever have been done the way this bill is written?'' asked Committee Chairman Roberts, referring to the PBS documentary that contains thousands of war scenes from the archives.

Roberts, a retired Marine lieutenant colonel, said he would help Baldasaro amend the measure to ban what he described as "unauthorized, derogatory use of a service member's image.''

An Arizona law passed in 2007 grants exceptions for plays, articles and certain other uses.

But last September, a federal judge ruled it violated the First Amendment and agreed with the American Civil Liberties Union that Frazier's controversial T-shirts amounted to protected political speech.

"There are some fine lines to be drawn here,'' Roberts said. "If you are in the military, you lose certain freedoms.''

The names of soldiers killed during military service become public record once the Defense Department announces the fatality.

Kevin Landrigan can be reached at 224-8804 or klandrigan@nashua telegraph.com