NYT Calls for Obama to Live up to Campaign Promise

Obama hasn’t exactly lived up to all of his campaign promises. In fact, he hasn’t done a whole hell of a lot at all. The New York Times calls him out on his failure to put a brick back in the wall between church and state — a wall that his predecessor spent eight years whacking at it with a biblical jackhammer.

President Obama promised in his campaign to preserve President George W. Bush’s faith-based initiative aimed at helping social service programs sponsored by religious organizations win federal grants and contracts. He also promised a vitally important change: groups receiving federal money would no longer be allowed to hire employees on the basis of their religion.

The idea was to prevent discrimination and preserve the boundary between church and state. But Mr. Obama has not made good on the promise. His February executive order revamping the White House office for religion-based and neighborhood programs left untouched a 2002 presidential directive authorizing religious-oriented programs that receive federal financing to hire and fire on religious grounds.

Also left untouched was a constitutionally suspect 2007 memo concluding that the government cannot order religious groups not to discriminate as a condition of federal financing — even in programs like Head Start, where religious discrimination is outlawed. The memo, based on a far-fetched interpretation of the 1993 Religious Freedom Restoration Act, was produced by the Justice Department’s Office of Legal Counsel. That is the same outfit that wrote the memos authorizing torture. (source)

Immoral or Scandalous Matter?

by Jason Fischer

One of the "peculiarities" of U.S. trademark law is that the government has a stick up its collective ass about recognizing trademarks that may be suggestive of dick-and-fart humor.  Section 2 of the Lanham Act (the federal statute that creates trademark rights) provides:

No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it –

• (a) Consists of or comprises immoral, deceptive, or scandalous matter . . . .

15 U.S.C. § 1052 (2008).

Presumably, you can decide for yourself whether the above image is offensive or (as I did) worthy of a snicker or three.  It looks like, from the license plate and unfamiliar make/model of the van, this company is doing business overseas, but rest assured this mark would never appear on the principal register of trademarks in this country.  Now, don’t misunderstand me; if this business opened up an office on this side of pond, they could likely prevent others from using the same mark, based on any common law rights that could be established, but our federal government would never give them the benefits of a federal registration for the mark.

Now, you may be asking yourself, "Wait; isn’t that the whole point of trademark law — preventing others from using your mark?"  That is true, but the game gets much, MUCH easier when you have a federal registration.  Establishing common law rights is generally an extremely lengthy and expensive evidentiary process, which involves paying your attorney to prepare and file a phone-book-sized amount of paperwork in any infringement suit.  Compare that with the single sheet that must be presented by the owner of a federally registered trademark, and you begin to see some of the benefits of registration.

Lots of hardcore civil libertarians that I know pound the table and froth at the mouth while denouncing the puritanical nature of our trademark regime.  Even though I don’t get as worked up, personally, I do happen to agree.  What difference does it make that someone wants to call their business "Butt Drilling"?  Do we really need the federal government to discourage that guy from doing what he wants with his entrepreneurial humor?  Should we be shielded from this "attack of immorality" at the expense of his freedom?  Trust me, plenty has already been written on whether there is even a rational basis for Section 2(a), by people way smarter than I — enough that I won’t bore you with any more.  Suffice it to say, it is something that must be given careful consideration when choosing your brand.

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This story has also been published on The Tactical IP Blog.

This is COLUMBUS DAY!!!

Pick another day, Crybabies!!!!

This is COLUMBUS DAY.

I’d like to invite anyone whose name ends with a vowel (Persians excluded) to raise their hands, extend their middle fingers, and flip off the Native Americans, the hippies, and everyone else in the International Association of Crybabies who has a piss and a moan about Christopher Columbus.

This is not “indigenous people’s day,” it is not “la dia de la raza” and it isn’t frigging “wear a beret, listen to Joni Mitchell, and wear patchoulli day.”

To the Native Americans who have a beef with Columbus Day — suck it. There was a war. You lost. Sorry. Trust me, the Italians know how you feel. We suck at wars. We used to be awesome at them. That ended some time around 400 A.D. Italians are the Chicago Cubs of warfare. (But you’re the Padres)

Tons of us came here to get away from the consequences of being really shitty at fighting wars. It worked out for us. We gave the world the thermometer, barometer, piano, electric battery, nitroglycerin, eyeglasses, the radio, and The Telephone.

We turned ghettoes into neighborhoods where people would kill to have a studio apartment. We taught the mayonnaise-faces what good food tastes like. We gave America 39 Medal of Honor recipients. We gave America Filippo Mazzei, John Basilone, Frank Sinatra, Tony Bennett, Lawrence Ferlinghetti, Bruce Springsteen, Vince Lombardi, and Gino the Ginny. You know what their middle names are? “Fuckin” that’s what.

We gave America its NAME for chrissakes.

You know what America gave us in exchange? A holiday. Good enough for us.

And you know what? America didn’t even give it to us, we took it. You know why? Because at the turn of the last century, Italians and other Catholic immigrants weren’t exactly what you would call “welcome” here. Yes, they used to lynch Italians too. So, the Catholics and Italians started organizations like the Knights of Columbus as a way to band together against the bigotry they encountered. They thought that by choosing Christopher Columbus as their symbol, it would show that if an Italian “discovered” America, then as Italians, they belonged here.

So you assholes can run your little left-wing crybaby agenda on any one of the 364 other days. I don’t give a damn if you managed to get every crap stained woodstock love child, dope smoker, and liberal academic to weep with you as you look at the pollution on the highway. This is our holiday, and you can kiss my ass if you have a problem with it.

Don’t get me wrong. I generally have nothing but love for my Native American brothers and sisters. I think that they got a crappy deal. I’m with them when they get pissed off at the completely racist Cleveland Indians logo, and I don’t think you should call a team “The Redskins” if you wouldn’t call it “The Jigaboos” (yes, its the same damn thing). I think that America DOES owe the Native Americans a little something — and it ought to be something better than the right to build casinos. We owe them respect, help, and dammit, we ought to put a hell of a lot of effort into preserving their culture.

Shaddap about Columbus Day or I'll give you somethin' to really cry about!

But you know what, Tonto? If you have a beef, its with the damn British, the French, the Spanish, and the white-bread assholes who kicked your asses. Lord Jeffrey Amherst gave you the smallpox infected blankets, not Al Pacino. You picked a fight with the wrong people, because the Italians never did jack to you. So get the fuck off my holiday.

Personally, I don’t know why we’re all down on the Conquistadors anyhow. Leonidas killed 20,000 ill-equipped, poorly trained, forced-to-fight losers and we call him a hero for the ages. A couple hundred Spaniards kick the crap out of an entire empire of human sacrificing nutbags who make Jerry Falwell look sane, and we think it was an awful sin?

Columbus sailed the ocean blue in 1492 and then your lives started to suck. Boo hoo frigging hoo. The Conquistadors followed Columbus and took all the gold. Yeah that sucks.

You know what else sucks? When you screw with our holiday.

So here’s the deal. Take out the calendar. No, not that stupid Mayan one that is going to be worthless in three years, the REAL calendar.

You want a holiday? Be my guest. Pick any day on the calendar except October 31, February 14, March 17, January 1, or July 4. I don’t even care if you want Christmas, but picking THAT will be a marketing nightmare.

You know which day would be an awesome Indigenous People’s Day? How about the Friday after Thanksgiving? Most of us have the day off anyhow. The pilgrims wouldn’t have survived without you. So, the day after Thanksgiving, as we’re all resting up and glad that we have four days in a row off, we can thank you. Thank you for saving the Pilgrims’ asses. Thank you for basketball, and chewing gum, and chocolate. Thank you for potatoes and tomatoes. Thank you for the windtalkers. Thank you for really cool art. Thank you for whatever the hell else you did for us. Thank you for not stabbing every person in a Cleveland Indians shirt. Thank you for not setting off bombs at Redskins games. Thank you for being pretty damn cool about one of the most royal screw jobs in the history of mankind.

But most of all, thank you for quitting your damn bitching about Columbus Day.

You can Cheat on your Spouse but NOT on your Taxes

Rephrase: you can probably get away with cheating on your spouse, but the IRS will always catch you.

Case in point, Mr. Walter Halby who attempted to reduce his tax liability by claiming medical expense deductions for his patronage of prostitutes. Mr. Halby claimed $100,000 in deductions for payments to prostitutes as necessary treatments for medical conditions (sexual addiction and erectile dysfunction). I’m not a doctor so I won’t comment on whether feeding an addiction is a proper course of treatment for any type of addiction, but Mr. Halby failed to take the “treatment” part of the allowable tax deduction for medical expenses into account. Mr. Halby was never diagnosed with a medical condition that needed treatment, nor did a doctor prescribe a specific course of treatment for Mr. Halby. Even more unfortunate for Mr. Halby, he failed to keep adequate records of his payments for his “treatments”, didn’t show that repeated sexual gratification was necessary to cure his “illnesses,” and he lived in the wrong state. Prostitutes normally don’t give receipts or invoices, so Mr. Halby couldn’t substantiate his payments or reasons therefore. Most unfortunately for Mr. Halby, paying for sex is illegal in the state of New York. You can’t deduct a payment for medical treatment if that treatment is illegal. If Mr. Halby lived in Nevada he may have had a better case.

Pig in a Poke

When the judge tells you “no contact” with another person, that means NO FRIGGIN CONTACT! That includes, not surprisingly, a “facebook poke.”

A reason that “Social Networking Sites Suck.“

One Nation “Under God” in Picture Book Form

This is all kinds of awesome. Use the scroll over function.

I found this at Shit Planet. That blog brings us the eternal question, which is more amusing? The Legal Satyricon or watching a guy shove his own balls up his own ass?

Hate Crime Legislation

The Moderate Voice has a thoughtful post on why Hate Crime legislation is wrong-headed.

Asshat of the Day: DNC communications director Brad Woodhouse

Brad Woodhouse
Asshat of the Day

Woodhouse said:

“The Republican Party has thrown in its lot with the terrorists – the Taliban and Hamas this morning – in criticizing the President for receiving the Nobel Peace prize,” DNC communications director Brad Woodhouse told POLITICO. “Republicans cheered when America failed to land the Olympics and now they are criticizing the President of the United States for receiving the Nobel Peace prize – an award he did not seek but that is nonetheless an honor in which every American can take great pride – unless of course you are the Republican Party. (source)

Fuck you, Brad Woodhouse.

It was bullshit when the conservatives accused their critics of being “un-American” or “disloyal” and the bullshit smells the same when it comes out of a Democrat’s mouth. Actually, it smells worse. The Republican Party is a party of morons and hypocrites, and we’ve come to expect this from them.

I’m criticizing the President for receiving the Nobel Peace prize too. I take no pride in it whatsoever. And, I’m no Palinite. I donated a pretty damn big check to the Obama campaign. I worked on the Obama campaign. Hell, I made my wife hold off on getting a c-section so my daughter could be born because of my obligations to the Obama campaign. So suck that, Brad Woodhouse.

Obama should sack up and say “I haven’t accomplished a goddamned thing in nine months in office. Paris Hilton has done more to deserve this prize than I have, so I am respectfully declining to accept it.”

And if you don’t agree, then you’re a child molesting terrorist.

It’s official… The Nobel Prizes have lost all significance

You know what would be cool? If I could use my fortune to establish a prize for doing nothing! Imagine it... 'And the Nobel Prize for doing Jack Shit goes to..... .

by Jason Fischer

Maybe I’m just too young to realize that it’s always been effed up this way, but when I was a kid, I used to think it meant something to hear that someone had won a Nobel Prize. Now it is clearly just a leftist love fest with no real accomplishment value whatsoever.

Congratulations, President Obama, on your meaningless award that you got for playing basketball with the boys in the White House instead of bowling giving the world hope. Great Success!! High Five!!

Free Speech Coalition v. Holder —- 18 U.S.C. § 2257 Delendum Est!

Let's hear it for the FSC

The Free Speech Coalition has filed its long-awaited complaint seeking to have 18 U.S.C. § 2257 declared unconstitutional.

The Background – The War on Sex

Social conservatives on both the right and left take great delight in attempting to carve out an erotic speech exception to the First Amendment. The far right thinks that their imaginary friend knows what is best for us – and that is that we shouldn’t have access to erotic materials. The far left is just as bad – believing that they know how to bring us to utopia, and banning erotica is a cobblestone in that road. Neither have any respect for the First Amendment. (For a great discussion of the issue of erophobia, see Dr. Marty Klein, America’s War on Sex).

For the most part, these efforts have not been successful. Outright bans on adult entertainment are unconstitutional. Attempts by misguided left-leaning paternalists to create private causes of action engineered to drive erotica out of business have been no more successful. See, e.g., American Booksellers Ass’n. v. Hudnut, 771 F.2d 323 (7th Cir. 1985).

However, when Congress passed 18 U.S.C. § 2257, it inaugurated a new, creative, and somewhat scary “third front” in the war on sexual expression. Forged in the fires of the Meese Commission, Section 2257 attempted to drive adult entertainment out of business by simply making it too burdensome to produce it.

What is Section 2257?

Section 2257 is a law that requires any “producer” of “actual sexually explicit” content to keep age verification records pertaining to anyone appearing in that content. Explained that simply, Section 2257 seems quite reasonable. If you are going to produce pornography, make sure that the talent is over the age of 18, and be able to prove it.

If only it were that simple.

It isn’t just about pornography

First, lets take a look at what kind of images are regulated by Section 2257. In order to fall under Section 2257, the images must be of “actual sexually explicit conduct.” (hereinafter, ASEC). What does ASEC include? As articulated by the Sixth Circuit, ASEC includes: “sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.” 18 U.S.C. § 2257(h)(1) (2006); see 18 U.S.C. § 2256(2)(A)(i) (2006). It also includes images of bestiality, masturbation, sadistic or masochistic abuse, and “lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2257(h)(1) (2006); see 18 U.S.C. § 2256(2)(A)(ii)-(v) (2006).

See? Already things are getting a little muddy. Any reasonable person would have to agree that “genital-genital intercourse” is a relatively clear term. But, what does “sadistic or masochistic abuse” mean? The law contains virtually no guidance in that department. A photograph of dripping candle wax on someone’s leg could qualify as “sadistic or masochistic abuse,” as could any number of other activities that don’t come close to any definition of “pornography.” Remember, the supposed goal of this statute is to keep children out of pornography..

How about “lascivious exhibition of the genitals or pubic area of any person”??? Go ahead, try to actually define those terms. I’ll wait….

Who is to determine whether the “pubic area” of a person is in a state of “lascivious exhibition” in any given photograph or video? Under this statute, most Victoria’s Secret catalogs, Sports Illustrated swimsuit issues, and any number of seemingly “innocent” images could be swept up in the anti-porn dragnet. That would be just fine with the erophobes. It is not just fine as far as the Constitution is concerned.

What Records?

Now that we have figured out what kind of images or depictions trigger responsibility to keep Section 2257 records, let’s look at what that responsibility means:

Under § 2257, a producer of sexually explicit images must inspect the talent’s government-issued photo identification to ascertain her (or his) date of birth. See 18 U.S.C. § 2257(b)(1) (2006); 28 C.F.R.§ 75.2(a)(1). Not such a big deal… but the government couldn’t be happy with that.

Section 2257 also requires that the producer copy the ID and keep it in a file. The producer must also record any stage names or aliases the talent has used in the past, and record and index all places where the image is published and keep all that information in a file where it is not co-mingled with any other records of any kind. See 18 U.S.C. § 2257(b) (2006); 28 C.F.R. § 75.2(a), (d), (e). Also, the way the regulations are written, it makes the adult entertainment industry into the one industry that is either protected from outsourcing, or at the least, the entertainment equivalent of the minuteman brigade. (Link)

Accordingly, if a producer of First Amendment protected adult material puts anything in an entertainer’s file that is not specifically required by 2257, it could mean that the producer is off to jail.

This isn’t the worst of it…

Fourth Amendment? What Fourth Amendment?

Once the producer creates these records, indexes them, and cross-references them, that isn’t the end of the line. The producer must then list a “2257 statement,” listing the date of production, and an address where the records may be inspected during regular business hours – and those hours must be at least 20 hours per week. 18 U.S.C. § 2257(e) (2006); 28 C.F.R. § 75.6(a), (b). There are more technical requirements as well, including that the statement must be in 12 point font, printed in a color that contrasts with the background, and must be prominently displayed. 28 C.F.R. § 75.6(e) (2006).
The Attorney General, or any designated agent may now come knock on the producer’s door for a “2257 inspection.” By law, they are not allowed to give any advance notice. No warrant. No probable cause. No reasonable suspicion. Once every four months, for no reason at all, FBI agents get to show up at the producer’s door for an inspection – and they can come more often if there is a reasonable suspicion that a violation has occurred. 18 U.S.C. § 2257(c) (2006); 28 C.F.R. § 75.5(b), (c), (d) (2006).

If you blow the requirements – five years in jail. That’s not for having underage performers, mind you. If your paperwork is not in order you are staring down the barrel of a five year jail sentence.

With this as a backdrop, the Free Speech Coalition is fighting back. The statute and its administrative regulations are clearly unconstitutional, clearly intended to burden free expression, and don’t do a damn thing to prevent child pornography from being produced.

Lets wish the FSC the best of luck.

2257 delendum est!

Not every crucifix should be a thorn in an atheist’s eye.

You don’t need to read this blawg for very long to figure out that I, for one, am a rabid atheist. I have little tolerance for those who try and push their superstitious agenda on to others by hijacking the instrumentalities of the state. I am even more concerned about it when it is done by those who want to push a set of superstitions built around a story of a magic space zombie jew. I am a proud member of the Freedom From Religion Foundation.

But sometimes I just shake my head when I see the cases taken up by my free-thought brothers and sisters.

In a current case before the Supreme Court, the ACLU brought a suit against the federal government:

At issue is a cross that sits atop Sunrise Rock in a remote part of the Mojave National Preserve in California, not far from the border with Nevada. Since 1934 the cross has been there, in one form or another, as a war memorial. Different court documents refer to it as 5 to 8 feet tall.

A decade ago it came under legal attack from a former National Park Service employee who, though a Catholic, thought it was inappropriate to favor one religion over another in the preserve. The park service had turned down a request to have a Buddhist symbol erected nearby.

A federal judge and the 9th U.S. Circuit Court of Appeals ruled the stand-alone display of the cross was unconstitutional and that Congress’ move to transfer land to the VFW did not solve the problem. (source)

On purely legal grounds, I agree with the 9th Circuit. The government has played this game more than once — where some christian nut gets a little bit of power, puts a christian display up on government property, and when challenged, the government just “sells” a few square feet of property to a private entity, then smugly says “its on private property.” This is bullshit. On legal grounds, the cross should be torn down.

On the other hand, this thing is out in the middle of nowhere, means nothing to anyone except a few old men in their American Legion regalia. The Mount Soledad Cross, that’s another story. It looms over the city of San Diego like a thumb in Thomas Jefferson’s eye. But seriously, cases like this really don’t need to be brought. There are real battles to be fought to keep that wall of separation strong and well-maintained. This crucifix in the middle of the desert wasn’t so much as moss on that wall, let alone a crack.

Buy This Book

Buy this book or I start killing kittens.

I don’t plug products on this blawg very often. However, my little sister wrote a book called Go Tweet Yourself: 365 Reasons Why Twitter, Facebook, MySpace, and Other Social Networking Sites Suck.

Flip Twitter the bird.

Tell Facebook to f#@% off.

Lose it on LinkedIn.

Somewhere between the advent of Facebook and launching Twitter to the masses, the Internet betrayed us. It allowed pages to be viewed by job interviewers, newsfeeds to be flooded by Aunt Julie, and for constant tweets about what color socks that random girl from the study group is going to wear today.

This book is the hilarious reply all that says: enough is enough. We don’t want to see the pictures from your business trip to Omaha. We don’t want a page-by-page account of what’s going on in Twilight. We definitely don’t want a virtual drink!

When you can’t fix the problem, fix the blame. And since there’s no way in 2.0-hell that you can put an end to the bastardization of the Book, you may as well have a good laugh while pointing the finger at those who ruined their online experience.

Buy the book or this may be their last meal...

I have a dozen kittens at my house. For each day that goes by that the book does not sell 1,000 copies, I shall place one kitten in a wood chipper. When I run out, I will comb the newspaper and find more kittens that people are giving away. The yard will run red with the blood of kittens, and it will be ON YOUR HANDS!

Go ahead. Call my bluff.

You better buy a copy of my little sister’s book.

Click here to buy it.

To the FTC: Yes, I got something for recommending this book. My little sister wrote it. She gave me her sisterly love for the recommendation. Now go shit in your hat.

United States v. Stevens Oral Arguments

From the sounds of the on-the-ground reports I am getting, it seems that United States v. Stevens is looking good for those of us on the side of Free Speech. Only Alito seems skeptical of the free speech arguments. Sotomayor seemed to strongly challenge the government’s position, and Scalia seemed to be reviving his prior free speech theories as articulated in R.A.V. v. City of St. Paul. A great play-by-play of the arguments is here.

The Court was hearing argument in United States v. Stevens, a challenge to the law brought by Robert Stevens, who was prosecuted for making dogfighting videos — even though he claimed they were documentaries that did not foster or endorse illegal dogfighting.

For Chief Justice John Roberts Jr., the problem with the law was that “you have to look at the content” to decide if it fits the exceptions, making it the kind of content-based restriction on speech that is usually found unconstitutional.

For Justice Stephen Breyer, the flaw appeared to be that the exceptions are too broadly worded to guide people who “have to know what to do to avoid the risk of being prosecuted.”

Justice Antonin Scalia seemed most upset by passage of the law in the first place. “It’s not up to the government to tell us what our worst instincts are … Once you allow this [law], what other base instincts do people have?”

For her part, Justice Sonia Sotomayor said she found it hard to distinguish between dogfight videos deemed illegal and an explicit David Roma documentary exposing dogfighting. “Doesn’t there have to be a judgment inherent in this statute?” she asked.

Justice Ruth Bader Ginsburg had a similar concern. Why, she asked, would videos of bullfighting or cockfighting be viewed differently under the law from dogfighting?

Justice Anthony Kennedy’s flashpoint came when Deputy Solicitor General Neal Katyal, who was defending the law, pointed out that in its 10-year history, the law had not been used against speech worthy of protection under the First Amendment. When, Kennedy asked sharply, had the Court ever upheld a law that was challenged as overbroad just because “prosecutors have been restrained?” Source.

Yay Kennedy!

The full oral argument transcript is available here.

For background on the United States v. Stevens case, read “Protecting animals is not a reason to amputate part of the First Amendment.”

Hysterical Erotophobes Freak Out Over Bikini Clad Baristas

Some people in Clearview, WA are losing their minds over a cafe whose servers wear bikinis at work.

“These girls are basically stripping for tips,” pastor and organizer Shahram Hadian told a crowd of about a 100 Tuesday night at the Clearview Foursquare Church.

Speakers one after the other recounted experiences with bikini espresso huts and questioned why police and politicians hadn’t done more. One organizer, Terri Stecher, read a long list of invited politicians and wondered why none, with the exception of representatives from the Snohomish County sheriff and County Councilman Mike Cooper’s office, had shown. (source)

Funny enough, it sounds like Hadian is getting his fill of jollies watching the show:

Hadian also said he is frustrated the sheriff’s office hasn’t done more. People working in a strip mall near the Murphy Corner’s stand complained to the sheriff’s office for a year about activity at a nearby bikini hut: baristas pulling their tops off, jiggling breasts, gyrating their rears and walking nearly nude across the parking lot.

“We sit here for an hour and we see them doing illegal things,” Hadian said Tuesday afternoon. “It doesn’t take a rocket scientist to do some surveillance.” (source)

It is SO AWFUL that we watch for hours and see them shaking their asses!

Wrentham, MA Considers Adult Entertainment Zoning Regulations

Its nice to see a reporter get the coverage right:

Municipal zoning bylaws may limit such uses, but cities and towns can’t completely prohibit them.

A municipality that does not provide certain locations within the community where adult uses may reasonably operate is essentially denying that form of free speech, and they could locate where non-adult businesses, such as retail and restaurants, are allowed to open. (source)