Page 101 - AVN August 2017

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LEGALESE | By Clyde DeWitt
(such as what the government sought in the “crush video”
and the “stolen valor” cases).
Justice Kennedy’s concurrence loaded the First Amendment
into a howitzer and fired it straight at section 1052(a):
“This separate writing explains in greater detail why
the First Amendment’s protections against viewpoint
discrimination apply to the trademark here. It submits
further that the viewpoint discrimination rationale renders
unnecessary any extended treatment of other questions raised
by the parties.”
Viewpoint discrimination is a principle that conservatives
don’t like very much because it substantially constrains the
government’s ability to shut people up. Justice Kennedy’s
opinion (with citations omitted) goes on to take the
government to task for attempting to categorize The Slants’
trademark application as commercial speech:
“The parties dispute whether trademarks are commercial
speech and whether trademark registration should be
considered a federal subsidy. The former issue may turn
on whether certain commercial concerns for the protection
of trademarks might, as a general matter, be the basis for
regulation. However that issue is resolved, the viewpoint
based discrimination at issue here necessarily invokes
heightened scrutiny.
“‘Commercial speech is no exception,’ the Court has
explained, to the principle that the First Amendment
‘requires heightened scrutiny whenever the government
creates a regulation of speech because of disagreement with
the message it conveys.’ Unlike content based discrimination,
discrimination based on viewpoint, including a regulation
that targets speech for its offensiveness, remains of serious
concern in the commercial context.
“To the extent trademarks qualify as commercial speech,
they are an example of why that term or category does not
serve as a blanket exemption from the First Amendment’s
requirement of viewpoint neutrality. Justice Holmes’
reference to the ‘free trade in ideas’ and the ‘power of ...
thought to get itself accepted in the competition of the
market,’ was a metaphor. In the realm of trademarks, the
metaphorical marketplace of ideas becomes a tangible,
powerful reality. Here that real marketplace exists as a matter
of state law and our common-law tradition, quite without
regard to the Federal Government. These marks make up
part of the expression of everyday life, as with the names
of entertainment groups, broadcast networks, designer
clothing, newspapers, automobiles, candy bars, toys, and so
on. Nonprofit organizations—ranging from medical-research
charities and other humanitarian causes to political advocacy
groups—also have trademarks, which they use to compete
in a real economic sense for funding and other resources
as they seek to persuade others to join their cause. To
permit viewpoint discrimination in this context is to permit
Government censorship.”
Reading Justice Kennedy’s evaluation of the First
Amendment in this case makes one cringe to think of the
specter of his retirement, and being replaced by the likes of
Justice Gorsuch, who seems to be joining ranks with Justices
Thomas and Alito.
This case points to the disturbing trend in the United States
of “political correctness” in favor of free speech. However,
Donald Trump’s tweets could be reversing that trend.
Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice
has been focused on adult entertainment since 1980. He can be
reached at clydedewitt@earthlink.net. More information can be found
at ClydeDeWitt.com. This column is not a substitute for personal legal
advice. Rather, it is to alert readers to legal issues warranting advice from
your personal attorney.
TECH NEWS TECH NEWS
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SEXPLORATIONS | By Anka Radakovich
Lavender-Tinted Glasses tells this story by highlighting the roles of four queers in the making of the
Summer of Love: gay poet Allen Ginsberg, gay filmmaker Kenneth Anger, bisexual philosopher Gavin
Arthur and bisexual rock star Janis Joplin. All of them brought their perspectives as artists, visionaries
and sexual outsiders to the uprising; all made a lasting impact on American culture. In addition, the
exhibition documents the ways San Francisco’s homophile community responded.”
Located in the city’s Castro District, Lavender-Tinted Glasses: A Groovy, Gay Look at the Summer of Love
runs through September 17.
The exhibit is curated by Joey Cain, a San Francisco- based community activist,
researcher and historian who served for eight years on the
board of directors of the San Francisco LGBT Pride Parade
Committee. The museum is an interesting, fun visit for
anyone interested in the history of sexuality and queer
history. See GLBTHistory.org for details.
Hey, It’s Jerry Day!
August 6 marks the day San Francisco celebrates the
Grateful Dead’s Jerry Garcia. Three tribute bands will pay
homage to the legendary musician, considered a god in
San Francisco.
Jerry Day starts at 11.30 a.m. at the aptly named Jerry
Garcia Amphitheater, and goes all day long. Deadheads
can relive 1967 with other diehard fans, who can relive it
with alcohol, weed, LSD and a bunch of Viagra. BYOB of
course. Visit JerryDay.org.
The De Young Experience
The Summer of Love Experience: Art, Fashion, and
Rock & Roll exhibit commemorates an “only in San
Francisco” social and aesthetic movement, say the
show’s curators, “and will remind museum visitors
that the city played a vital role in changing society and
amplifying the pulse of the nation.” We love that San
Francisco loves its hippie history.
The Summer of Love Experience is “an exhilarating
exhibition of interactive music and light shows,
photographs, iconic rock posters, costumes, ephemera,
and avant-garde films,” they say. It’s a “50th
anniversary celebration of the adventurous and colorful
counterculture that blossomed in the years surrounding
the legendary San Francisco Summer of 1967. The
exhibition will present more than 300 significant
cultural artifacts of the time.”
The wall o’
protest buttons
feature slogans
of the era,
including the
iconic “Make
love not war”
and “Put a little
love in your
sex life.” We
liked “If it feels
good do it,” “Free acid, lick here,” “Be nice to each other,”
“Member, Sexual Purity League” and “Orgies catered.”
The exhibit also displays anti-war posters, including one
that says, “Girls say yes to boys who say no.”
The gift shop here is good, with a groovy museum catalog
of the exhibit, posters, T-shirts, and a Summer of Love
drinking flask for this Summer of Love’s (counter) cultural
activities. The exhibit runs until August 20. For information,
visit DeYoung.famsf.org.
Anka Radakovich is a legendary sex columnist who wrote a groundbreaking column for Details magazine. Currently she
writes for British GQ and Sexpert.com. She is the author of three books, including her newest, The Wild Girls Club, Part
2. She has appeared multiple times on TV talk shows, including eight appearances with Conan O’Brien. She is also a
certified sexologist. We are thrilled to have her as a contributor. Follow Anka Radakovich on Twitter: @ankarad.
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