TheAgitator.com
Bush, Lies, and Retarded Monkeys
Tuesday, May 6th, 2008Last fall I wrote about Arizona anti-war activist Dan Frazier’s tacky "Bush Lied/They Died" t-shirts, and about even tacker attempts by Congress and several state legislatures to ban them. The front of the shirts say "Bush Lied." The backs of the shirts say, "They Died," feature the names of some 3,000 U.S. troops killed in Iraq.
Now comes a lawsuit (pdf) from the family of one of the late soldiers whose name appears on the shirt. The family’s attorneys are seeking to make the suit a class action on behalf of the families of every solider listed on the shirt. One can sympathize with the family and still believe that (a) their suit is ridiculous, and (b) it looks as if they’ve hired a third-grader to represent them. For example, after arguing that Frazier’s enterprise isn’t protected by the First Amendment, and that even it is, Frazier should be forced to share his profits with the soldiers’ families, the suit then states:
Most respectfully, this is a concept that even a mentally-challenged monkey could grasp, but, apparently, defendants cannot—or, more likely, refuse–to do so, for as defendant, Fraser [sic], stated recently to the Associated Press, he is “not worried” about the outcome of this litigation.
"Most respectfully?" Also, the attorney is asking for $40 billion in damages.
(Hat tip: Howard Wasserman)
Why didn’t the attorney ask for one kajillion dollars? That would have put the fear of God into those cut-and-run defeatists and their traitorous t-shirts.
Seriously, though, I can understand the family members being upset and I think the shirts listing soldiers’ names are more than a little tacky (since it’s tying the soldiers named to a political belief that they may or may not have held) but the family members are actually trying to quash the rights those soldiers swore an oath to uphold. And the tragedy of their loved ones’ deaths doesn’t give them the right to do that.
That’s gotta be one of the most poorly written complaints I’ve ever seen. A 1L writing a complaint as an assignment for their Civil Procedure class would do a better job than that. About half of that complaint should be stricken under the FRCP as being unnecessary, and this kind of language in a complaint should bring sanctions under the FRCP against the attorney who wrote them. Plus there’s no way that selling t-shirts over the internet would be a sufficient nexus to give the courts in TN jurisdiction over this case. The defendants are not doing business in the state of TN, at least not enough to confer jurisdiction.
Even if you were to ignore all of that, I can’t see how this gains class action status anyways.
Also, Radley, you may want to link the amended complaint which includes the $40 billion sum and the class action language (and the monkey language).
As the link said, this is why some of us lawyers don’t like other lawyers. They give us a bad name.
I don’t really think that they are so tacky or political in what they state. Is there really any question at this point that Bush (and/or associates) lied to get us into this war? Of course the shirt is politically motivated, but the content is just a statement of fact.
the best line is the part about “even the mentally challenged monkey should be worried” about the $40B sum. Genius. I predict big things for the Santore law firm.
Zeb,
Oh, I definitely agree with the shirt’s sentiment. I just don’t agree with using the soldiers by name as a political tool to pass an agenda. I don’t like it when Bush trots them out to imply they endorse his positions on emergency spending bills, and I don’t like when someone making a t-shirt uses their names to push his point of view. Soldiers are just like anyone else, they all have their individual opinions and views, they have restrictions on what views they’re allowed to express while they’re in uniform, and I don’t think it’s right for people who aren’t actually representing them or who don’t have any ties to them to be putting words in their mouths or tying their names to advance an agenda they may or may not agree with.
I recognize you’ll never be able to (nor should you) completely separate the military from political opinions but to me the t-shirt thing comes off a little like signing someone else’s name to a petition or blogging under someone else’s pseudonym. It’s just in really poor taste.
It’s a good thing they didn’t use that kind of language in a state filing. Here in Cook County, IL, you’d be setting the bar pretty high if you expected a state judge to have the intellect of a mentally-challenged monkey.
In all seriousness though, it reminds me of the two-day seminar I had to take shortly after being admitted to the IL bar. One speaker (a local judge, I believe) actually had to tell us that you shouldn’t throw things at a judge. Seriously.
UCrawford,
I see your point, and I see why family members might feel similarly. I had thought of the use of the names as a way to make the statement a lot more significant than simply saying “3000 people have died”. If you put a name to each of those people, then whatever you think about the war itself, you have a lot more to think about. Nothing about the shirt says “everyone listed here would agree with me”. It’s just a statement, like reading the names on the news or a war memorial.
Zeb,
I agree…that is a more moving statement, which is why people do it. That’s certainly why, when Bush is accusing the Democrats of being “anti-troop”, he’s often got soldiers in uniform standing beside him or in the background…to imply that they’re on his side. But I think that when you put an individual’s name out there it ties that person to that side of the issue, whether the soldier believed in it or not.
I don’t think that it’s something that should be outlawed though, because it is free speech and I think the families suing in this case are in the wrong, but I still think the shirts are kind of tacky and thoughtless. That’s just a personal opinion, of course, and it’s probably kind of nit-picky, but oh well.
The war memorials aren’t generally used to make a partisan point…just to honor the dead. Hypothetically, newscasts with that info aren’t meant to be partisan either, just informative, but of course we know that’s not how it works out. Like I said, though, I’m probably being a bit nit-picky with it.
When I first heard about it, I thought the names were huge, along the lines of “Bush Lied, John Doe Died,” instead of being listed in rather small type compared to the message of the shirt.
The names themselves are almost meaningless on the shirt - they’re simply set out there to visually emphasize how many souls were lost. It’s unlikely that any friend or relative would be able to quickly identify their loved one’s name.
I’m with Zeb on this one.
Choosing which dead to honor in a conflict through “War memorials” is certainly making a “partisan point” - even if the partisans debating the issue aren’t Democrats and Republicans. Choosing to honor dead soldiers, even when they’re engaged in unjust, aggressive warfare, or have committed heinous atrocities, while choosing not to honor the dead civilians and opposition soldiers of the conflict, is a partisan issue.
Susan K & JJH2,
Point taken…on both your comments.
When I mention war memorials, I was thinking of the Vietnam memorial in particular. Of the war memorials I have been to, it really did the most to impress the horror and waste of war on me, which, if you ask me, is the number one lesson that should be learned from any war, no matter how justified it may be.
Zeb,
I’m in agreement with you there. The U.K. is filled with war memorials and soldiers’ grave sites dating back hundreds of years, and when I lived there I used to go visit them often and look through the huge books of names that many of them had and think about what those people might have gone on to do and what they might have accomplished if they hadn’t gotten killed…and it always made me kind of sad to think what a waste so many of those deaths were, particularly since the troops are usually not the ones who benefit from the war’s outcome, even if they win.
I don’t think this is tacky or poor taste at all. I think that using the names is much more memorable like Zeb says. I saw one of the shirts here in kingman and seeing all those names made me think about the issue. And seeing ALL those names, that was effective.
It isn’t like Frazier is ascribing a particular political opinions to the names. If he said something like, “these people think the war is lame,” I’d call bullshit because I be willing to be that many of the dead thought that they were doing the right thing and doing their duty for their fellow citizens.
Political speech often isn’t pretty, so get over it.
Troy,
Fair enough.
If you use my name to make money, I or my estate should be entitled to a cut. It’s that simple. Now if he were giving these away…
It’s distasteful? So’s the war.
Plus, the list of casualties is public record.
I don’t get it.
And I’m suing the lawyer for defamation.
#18 (Chance)
Um… no. Say you do something interesting (a big stretch). Then suppose a newspaper writes a story about what you did, and sells newspapers because of it. Do newspapers owe you a cut?
Of course not. Because you don’t own third party representations of (1) your name or (2) your actions. Your name is not, at least legitimately, your “property.” I can’t fraudulently misrepresent that I am you, the person, but if I wanted, I would have every right to adopt your exact name as my own, just because I liked the sound of it. There’s no such thing as legitimate intellectual property, and certainly no such intellectual property in a combination of letters.
I’ve never understood the pacifist point of view or the idea that a person who dies while fighting in a “justified” war is somehow a “waste”. Maybe you meant “shame” which I could grasp, but not waste. The idea that someone should never be willing to fight means that person really has no reason to live. Take a quick look around you, if you don’t see something worth dying for, then your life is a waste and therefore “unjustified”.
Tokin42,
The “wastes” I was referring to were more about conflicts like the Anglo-Afghan wars or battles like Gallipolli, in which people died pointlessly for no appreciable gain, than about war in general. I’m no pacifist, but I also realize that some wars are no more than a pissing contest between egocentric tyrants (pretty much summing up Iraq) and don’t need to be fought. Some wars, however, do need to happen and you’re correct that in those cases the deaths of soldiers are better labeled as a “shame” rather than a “waste”. Sorry, should have been more clear.
#20 JJH2
Your newspaper analogy, is so weak, its just not close.
The name on the other hand is not just a random name. These names represent specific people and it is apparent from the context who these people are.
Is political speech still purely political speech if it is sold as a product for profit motives?
Considering he didn’t ask for the blessing of these families, I think he deserves any harassment they care to throw his way.
It’s probably too late in the game now but, What if Frazier just used the full first name and first letter of the last?
#20 Against Stupidity:
Don’t be confused. The analogy was not the argument (although honestly, your elaboration that the names “represent specific people” applies even more explicitly to newspaper accounts of peoples’ actions). The argument is that you don’t “own” the combination of letters that make up your name, nor do you “own” third party descriptions of your acts. I am not asserting a LEGAL doctrine - I’m making an argument about constitutes a legitimate “property right.” Because all forms of “intellectual property” interfere with _real property_, ownership of combinations of letters on a page (or t-shirt) have to give. You can’t homestead a combination of alphabetic characters. You can, however, own a T-shirt.
“Your newspaper analogy, is so weak, its just not close.”
I don’t agree with JJH2’s view of intellectual property,* but I don’t see what’s so wrong with his newspaper analogy. Newspapers — or magazines or books or lots of other things — are usually sold by for-profit enterprises. Your view of the right of publicity (which is the legal term the lawyers didn’t even bother to include in the terrible complaint linked to above) is so broad that it would stifle an enormous amount of speech.
As best I can tell, your view is that anything sold for a profit that somewhere includes the name of an identifiable person requires permission, but for some unspecified reason newspapers are not subject to this rule. Is this your view?
*JJH2 agrees he “can’t fraudulently misrepresent that [he is] you,” and this is a core function of trademark law. Trademark law does indeed provide limited protection for the use of “a combination of letters,” and this protection is routinely described as a form of intellectual property. That trademark owners routinely claim way too much protection doesn’t mean the core functions of trademark law (i.e., preventing passing off and consumer confusion) are not worthwhile.
Lionel Hutz, Esquire, at your service.
#26
Just for clarification, if I sell soda with the Coke logo on it, and represent that I am in fact selling Coca Cola, I don’t consider myself to have committed any legitimate tort of fraud upon Coca Cola. I do, however, acknowledge that I may have defrauded my customer. Trademark law gives an illegitimate right of action to Coca Cola against fraudulent sellers, where any legitimate right of action would only belong to the defrauded customer. That’s the distinction I recognize between Trademark (which I understand to be illegitimate under any consistent and principled libertarian rights theory), and common law fraud.
Again, that’s not a legal argument. I fully recognize that the government allows companies to enforce Trademark as an Intellectual Privilege. I also agree that preventing consumer confusion is a worthwhile goal - it’s just not a goal that Coca Cola has the right to enforce by coercive means (the legal system being an instrument of violent coercion).
“where any legitimate right of action would only belong to the defrauded customer.”
Are there courts in your version of principled libertarianism for this cause of action? I thought you were the anarcho-capitalist here (based on some previous post I only vaguely recall), meaning no courts — unless the parties decide to contract for what is really just non-binding arbitration. It would be “non-binding” in the sense that everyone just relies on warring private police forces to accomplish their goals (until such time as one private police force sets itself up as the top dog in a particular region, i.e., government), right? The loser in this arbitration must decide whether to pay his warlord to fight the winner’s warlord in order to “appeal” the arbitrator’s judgment.
Okay, maybe I’m drifting off topic here. Back to how truly bad this complaint was: You mentioned legal arguments verses political theory/philosophy arguments and how you are not relying on the former. The complaint mentions a “violation of . . . Federal common law . . . prohibiting the use of a name or likeness of another person for profit . . . .” This is nothing. The big nada. There is no federal common law right of publicity claim. These lawyers are also not relying on the former.
#29
The requirements of Justice can be imposed on individuals without their consent. Judgments are binding to the extent that they’re enforced, regardless of whether the enforcer is a monopoly defense service that imposes itself unjustly upon all and criminalizes perfectly legitimate conduct, or whether it’s a private enforcement organization which has numerous market incentives to keep its customers happy and its service affordable (low-grade warfare is expensive). We would be so lucky if the US government actually had to, you know, keep its constituents happy as a prerequisite to extorting 30% of their income every year.
I’m with Zeb and troy. Listing the names on a t-shirt whether the message is partisan or not is no different than listing the names of, say, victims of botched police raids. The target of those raids may or may not agree with Radley’s message, but they are most assuredly part of the story.
Naming names adds credibility to a statement. It’s like saying, “Hey! I didn’t just pull these numbers out of my ass.” In the case of this t-shirt, it also says these are real people who died, not just some anonymous statistic. That fact that some of those who died believed they were sacrificing their lives for some lofty ideal doesn’t exclude them from the topic of whether their deaths were necessary.
Nor does it matter that someone’s making money off of it. Profit is as noble a purpose as any there is and it pisses me off every time I hear someone suggest otherwise. There is no single driving force that has brought as much good to the world as the desire to make money. It’s the core motive that brings almost every bit of information about the world to to your eyes and ears every single day. And, as an element of that environment, this T-shirt is as legitimate as the New York Times or a White House press conference.
Far from tacky, the shirt makes a powerful, concise, and effective point which is precisely why it’s attracting so much attention and elevating emotions.
Tokin42:
Take a quick look around you, if you don’t see something worth dying for, then your life is a waste and therefore “unjustified”.
Pacifists don’t believe there’s nothing worth dying for. They believe there’s nothing worth killing for. Can you see a difference?
I think that the key to pacifism is the observation that no wars are necessary. I do not mean to say that response to aggression is not sometimes necessary in a geo-political context, joining a war is sometimes necessary. But wars are almost always started by one or more sides doing something bad and in that sense the war itself is unnecessary. Everyone would be better served if the soldiers involved spent their lives doing something besides shooting at people and being shot at. So I will stick with calling the lost lives of soldiers wasted. Their sacrifice may have been noble and necessary in many cases, but it is still a waste.
Or to put it another way, the soldiers who died didn’t necessarily waste their own lives, but someone sure did.
What’s happened here? Used to be that any mention of monkeys was in the form of fish weilding monkey-butlers.