The Worst Boss in the World

Guess who.

In all fairness to whoever this boss is…. the underwear was clean, and does anyone NEED to tell you that the middle seat sucks?

“Why I do it” — An Erotic Documentarian’s Viewpoint

by Tony Comstock
Special Guest to the Legal Satyricon

In a world that seems awash in sexualized imagery, why is it that so little of this imagery speaks to the common pleasurable reality of sex? We’ve been producing the “Real People, Real Life, Real Sex” erotic documentary series for some time now, and I’ve heard the same kinds of questions dozens, perhaps even hundreds of times from people who know and love our work, from therapists and counselors, from people in pain about their sexuality, and from people enjoying their sexuality as part of full and wholesome lives. Over and over, I am asked, “Why are films like ours, films that depict sex in a way that is joyous and cinematic, almost nonexistent?” “Why are art films that contain explicit sex always so downbeat?” “Why does pornography look and feel so different from the other sorts of visual images we see?” “How does what we do — and do not — see in cinema affect our understanding of our own sexuality?”

I’d like to say the answer is that I have a special insight into the human sexual condition as it relates to cinema, but it’s a little more complicated than that. To truly understand why sex on film looks the way it does, one needs to look at the history of sexual imagery in cinema, the history of obscenity laws, and the business and technology of image making. Once you have that background, you can explore how cinematic images actually work, and how that relates to cinematic depictions of sexuality. I have spent many years investigating that background, and the more I learn, the more I am driven to make the films that we produce.

I have been a photographer my entire adult life. I believe passionately in the power of the moving image to help us understand who we are as human beings. I’ve documented unspeakable suffering, violence, and death. For that, I’ve been called a courageous witness.

In bearing witness to sex, I sometimes get called other, less charitable names. Sometimes this hurts my feelings. Sometimes it makes me feel like quitting.

I bear witness to the sex act because I believe that depictions of truly joyous and wholesome sex — depictions that represent the overwhelmingly positive and important role that our sexuality plays in our humanity — are all but absent from the cinematic landscape. Moreover, in an age where it is easier than ever to see sexually explicit imagery, it is harder than ever to find imagery that reflects the common reality of sex: that sex is nice; that sex is normal; that sex is good.

I’d like to share a comment left on my blog about three years ago. As you might imagine, doing this work and demanding that it be taken seriously can sometimes be a struggle. But when I despair, I go back and read this:

I have issues with sex. I’m a sexual abuse survivor. Anyone who’s been sexually abused comes into sexuality with a handbag and two trunks of emotional baggage.

When we were trying to conceive there was a blatant point to having sex: having a baby. That made it okay. After all, society couldn’t look down it’s nose at a married couple — young, still facing fertility problems, trying to have a child.

And then when the child is born, you get the excuse of body recuperation. And if your child is sick, you get a bonus 6 month reprieve. However, there does come a point where sexuality, motherhood, couplehood, and life clash. I’m tired. Sex requires energy. So does doing the dishes. But sex requires an emotional investment, something I’m not ready to make, something I feel inferior making. So the dishes it is. And laundry for good character.

I feel conflicted by sexual imagery. I sometimes like what I see. I sometimes like it a lot. But sometimes it scares me. I’m not pretty like Eva Longoria. I’m not thin or have shiny hair. I don’t have nice breasts. Mine are saggy and droopy and currently nourish the body of a very rotund 9 month old. They serve a purpose, and purposeful breasts aren’t sexy — to me anyway. And besides, they don’t LOOK like the breasts I see on TV. Perfect, sculpted breasts. Breasts that boys like. And bodies. Don’t get me started on the bodies.

What we see isn’t real. It’s said over and over. I know there are 50 people off-set creating the magic. What they’re feeling isn’t real. What they’re doing isn’t real. And it makes me wonder if what I’m doing is okay. Emotionally un-investing myself in my relationship. Because really, I can’t ask family about sex. I can’t ring my mother-in-law up and ask her if she ever felt this way when looking at her naked body. Or ask her if she felt hung up on emotional issues when her husband’s hand touched her bottom.

Abuse survivors bring guilt into the game as well. Not only do we have more bodily hang-ups, failed relationships and mental problems, but we have guilt about sexuality. About wanting sex. About feeling GOOD about sex.

Today though, something struck me in just in the right spot. I had one of Oprah’s famed “a-ha” moments. A link took me to www.comstockfilms.com. Dubbed: “Real People, Real Life, Real Sex” the site explores sexuality for real. In a documentary style, we meet and enjoy the couple and then venture into the velvety movement of their bodies.

I must say. I was stunned. I’m not a fan of porn. I am disgusted by a lot of what is sold to men. The fairytale behind that isn’t charming, in my opinion. But watching these clips I thought, wow. Oh my goodness. So THIS is sex. For real. And I loved the charming banter of the couples. I feel grown up right now. Like a real adult. I’ve confronted one of my demons — enjoying a sexual experience — and I can actively admit that I enjoyed it. Which is probably a lot more information that you’ve wanted to hear from the mother of a child who doesn’t do a lot of sleeping. If you’ve got the time and the inclination I encourage you to take a step into the realm of Comstock films. It’s the first step I’ve taken to embracing that humans are allowed to be sexual beings. – Jen P.

---

Award-winning filmmaker Tony Comstock frequently lectures on the legal and business realities that shape and too often warp the sexual imagery we see. Drawing on examples from Hollywood’s history of self-censorship, landmark obscenity cases, and the collision of technology and image-making, Comstock offers an expanded framework for understanding of how what we do and do not see in cinema effects our understanding of our own sexuality.

Domain Privacy Service Can Be Liable Under the ACPA

The wrong approach for a domain privacy service.

The Central District of California just issued this thoughtful, reflective, and lengthy opinion in a case two of my Los Angeles partners and I are working on.

Web hosting company, Solid Host, took the position that a domain privacy service should be held responsible for the actions of one of its customers, when that customer was a hacker who stole a Solid Host’s domain name, and the privacy service took a “not our problem” approach to the theft.

From a trademark practitioner perspective, the really interesting part is that the court sustained the viability of a claim that a privacy service may be contributorily liable under the ACPA for its customer’s actions.

While this is not a final ruling in the case, the theory that a privacy service can be held liable for the actions of its customers has passed its first test, and got past the privacy service’s motion to dismiss.

See Solid Host v. NameCheap, et.al.

Another Strip Club Sued for Age Discrimination

By Jess Christensen, Employment Law Correspondent

A while ago, I wrote about Kimberlee Ouwroulis and Barbara Sanders, both Canadian exotic dancers in their mid-40s who sued the club that fired them for being too old. Now the can you be too old to work at a strip club? debate comes to America.

The EEOC has filed a lawsuit against Houston’s Cover Girls club on behalf of former waitress Mary Bassi, alleging that the club engaged in age discrimination when it fired her in 2006. At the time of her termination, Bassi was 56 years old, and had worked for the club since 1993. According to reports (the complaint itself does not appear to be available online), club managers called Bassi “old” and teased her about entering into menopause and showing signs of Alzheimer’s disease. According to the EEOC attorney handling the case, Bassi had been a high earner until the club started to assign prime shifts to younger waitresses. Attorneys for the club have so far declined to comment on the case. Bassi now works as a waitress for a competitor club—though, competition isn’t stiff (heh), since Cover Girls burnt down in 2007 and hasn’t yet been rebuilt.

Tempest Storm and Bette Paige

As talked about in my earlier post, an employee’s age cannot be considered as a factor in any employment decision, unless age is a Bona Fide Occupational Qualification (BFOQ)—i.e., that age is relevant to the essential functions of the job. While strip club employers will undoubtedly argue that age relates to beauty, and beauty is certainly an essential qualification for adult entertainment establishments such as strip clubs, they might do well to consider the case of Tempest

Who says 81 isn't hot?

Storm, who at age 81, is still a crowd pleaser. Although Storm has semi-retired after more than 50 years as a stripper and burlesque dancer, she still makes headliner appearances at such legendary venues as San Francisco’s O’Farrell Brothers Theater and performs frequently in Las Vegas, stripping down to a sheer bra and G-string in front of cheering, packed houses.

And now for a little Friday afternoon entertainment…

Pussy TTAB upholds pussy Examiner and says that Americans are too pussified to deal with “PUSSY”

The TTAB says you can't handle this.

Jonathan Shearer launched a new energy drink that he cheekily named PUSSY. When he applied for trademark registration for the logo shown above, the examining attorney denied registration under Section 2(a) of the trademark act — the section that allows examining attorneys and/or their supervisors to impose their personal morality on any trademark before them. See In re: Shearer (TTAB May 14, 2009) (not precedential)

Under Section 2(a), to be considered “scandalous,” a mark must be “shocking to the sense of truth, decency or propriety; disgraceful; offensive; disreputable; … giving offense to the conscience or moral feelings; … [or] calling out for condemnation.” In re Mavety Media Group Ltd., 33 F.3d 1367, 1371, 31 USPQ2d 1923, 1925 (Fed. Cir. 1994). “Scandalousness is determined from the standpoint of “not necessarily a majority, but a substantial composite of the general public, … and in the context of contemporary attitudes.” Id.

Llewellyn Joseph Gibbons said it well in his article, Semiotics of the Scandalous and the Immoral and the Disparaging: Section 2(a) Trademark Law after Lawrence v. Texas, 9 MARQ. INTELL. PROP. L. REV. 187, 248 (2005) at n. 89 (“At best, this ‘substantial portion’ of the general public is a vacuous point on a nebulous continuum. One that is often chosen post-hoc to justify the decision-maker’s preconceived determination.”).

Lets see if Mr. Gibbons is right. In rejecting the mark under Section 2(a), the Examining Attorney wrote:

The applied-for mark PUSSY is slang for ‘female genitalia’ or reference to women sexually and is thus scandalous because such term is described as vulgar, offensive, taboo, obscene and coarse. (Op. at )

The Examining Attorney is clearly not all that bright, since he threw “obscene” in there. If anyone would like to educate him on the legal meaning of “obscenity,” perhaps a little remedial reading of a little known case called “Miller v. California” would be helpful. But, lets read some more of his justification.

… the continually evolving meaning of the term “pussy” has come to mean something more, (sic) than merely a cat, or a catkin, a pus wound, or even that of a weak and cowardly male. In today’s attitudes and mind set, the term “pussy” is used in a most offensive and vulgar manner. Specifically, the term “pussy” refers to female genitalia, desire for sexual intercourse with women and ultimately women as sexual objects.”

I don’t know, I think that any man who thinks that the term “pussy” is something that is “immoral and scandalous” would be a good definition for a fucking pussy too.

The Applicant countered:

“Applicant respectfully submits that its mark is not scandalous on the grounds that (1) the mark is not obscene under its ordinary meaning; (2) the general public does not perceive the mark to be scandalous; and (3) any ambiguity as to the meaning of the mark must be construed in favor of the Applicant.” Applicant’s Brief at 5. In this regard, Applicant argues that the Examining Attorney has failed to meet the burden of showing that the entire mark is scandalous and that the Examining Attorney has disregarded “… the numerous common meanings [of PUSSY] that are not scandalous or vulgar.” Id. at 7.

Applicant continues, “While it may be a slang term for female genitalia, this meaning clearly does not apply to Applicant’s all natural energy drinks, whether explicitly or implicitly. At best, the term is a double entendre that has been used for more over (sic) 100 years.” Id.

In his reply brief Applicant argues further that we must look at his mark in its entirety, stating, “Nothing about this design is suggestive of female genitalia.” (Op. at 7)

The TTAB clearly had its mind made up before examining the case. All three judges were appointed in 2005 and 2006 — the high water mark of the religious conservatives’ grip on power in Washington. You can rest assured that none of these three douchebags got where they are by respecting the constitution or due process, and why should they begin now.

A joyful little quote from the TTAB:

Section 2(a) may be difficult to define, we reject the notion that those boundaries are coextensive with the boundaries of permissible, that is, uncensored, artistic expression. Neither vaudeville nor South Park provide a useful guide for applying Section 2(a). (Op. at 21)

However, the TTAB has it precisely wrong here. If a highly-rated show like South Park does, indeed, use a term regularly, and even basic cable doesn’t censor it, that should be highly persuasive evidence that the American people can handle the word. Nevertheless, the nanny-staters decided that in modern-day America, we must endeavor to never offend anyone, lest their little hearts break into a million Jesus-shaped pieces. Even the double entendre, previously approved of in everything from James Bond movies to daytime television, is no longer acceptable to the TTAB.

We reject out of hand the argument that, in the context of beverages, including natural energy drinks, the public would view the term PUSSY as conveying a double meaning. This case is distinguishable from the Hershey case where the Board found a credible double entendre in the BIG PECKER mark based on the display of a chicken with a beak along with the BIG PECKER word mark in the specimen of record. In re Hershey, 6 USPQ2d at 1470, 1472 (TTAB 1988).

In this case Applicant posits that his PUSSY NATURAL ENERGY mark, when used on an energy drink, on the one hand would suggest either a cat, a weak or cowardly man or boy, a catkin of the pussy willow, or a pussy wound, and simultaneously on the other hand, might suggest PUSSY in the vulgar sense.

We do not find this proposition credible, nor has Applicant provided any support for the proposition. We see no double entendre in this context. We conclude so whether we view the term PUSSY alone or as part of Applicant’s full mark. Furthermore, there is nothing in the display of the mark or the additional wording, “natural energy” which affects the perception of the term PUSSY. Accordingly, we
reject Applicant’s double-entendre argument. (Op. at 22)

The Board then looked at the relevant marketplace and concluded that since the energy drink market is one that seeks to grab the consumer’s attention, that it should be held to a different standard than other products.

The Examining Attorney has provided additional evidence which not only confirms that the term PUSSY is vulgar, but evidence that the attention-grabbing meaning is the only reasonable meaning to conclude the relevant public would perceive in this context. An excerpt from factexpert.com discusses the highly competitive marketing of energy drinks, stating:

Energy drink packaging is more often flashy and bright than subtle and understated. The primary consumer group of energy drinks includes extreme sports enthusiasts, young adults and teenagers, and the hip-hop crowd. … Because this group is a group excited by speed, energy, flash and instant thrill, most energy drink packaging appeals to these tastes.

In this context, it is not reasonable to conclude that the relevant public will perceive PUSSY as referring to a cat, a weak or cowardly man or boy, a catkin of the pussy willow or a pussy wound. The offensive, vulgar meaning is the only one which makes sense in this context. (Op. at 24).

Finally, the Board concluded that a substantial composite of the public, “in particular women,” (as evidenced by the Examiner’s quotation of unsigned comments on a typepad blog) would find that PUSSY has a vulgar, offensive, sexual meaning.

Here is some poetry for the pussy Examiner and the pussy judges. By that, I use the definition of “pussy” that refers to those with little courage.

Facebook proves that its terms are not First Amendment friendly

by Jason Fischer

Facebook has confirmed that they have removed two group pages belonging to holocaust deniers after receiving pressure from members of the public, including attorney Brian Cuban (brother of entrepreneur Mark Cuban).

A Facebook spokesperson explained that “if the discussion among [a group's] members degrades to the point of promoting hate or violence, despite whatever disclaimer the group description provides, we will take them down. This has happened in the past, especially when controversial groups are publicized.”

As a private organization, Facebook is certainly entitled to take these actions. It is unfortunate, however, that they find it necessary to do so. The “marketplace of ideas” is capable of labeling the members of these groups as asshats and rejecting their hate speech. Freedom means ignoring viewpoints you don’t agree with, not censoring them.

The Greasy Pole

Every year, my hometown has this tradition… Chad Carlberg of Bait & Tackle Films recently produced this short film about it, which won the Toronto International Documentary Challenge.

James Corbett Speaks

James Corbett

Last week, I published a piece on C.F. v. Capistrano School District. In that case, a federal judge ruled that when schoolteacher James Corbett referred to another teacher’s assignment asking students to provide scientific support for c reationism as “superstitious nonsense,” he violated student Chad Farnan’s First Amendment rights.

Mr. Corbett has graciously agreed to appear as a guest blogger, and provided us with his editorial on the case, published below.

By JAMES CORBETT

Over 2,000 years ago Socrates faced a court for refusing to recognize the gods acknowledged by the state, importing strange divinities and corrupting the young. The judges sent Socrates to his death. He accepted the sentence of the court and committed suicide by drinking a cup of hemlock.

The only virtue for Socrates was “knowledge.” He reached it by questioning the most deeply held beliefs of his students by which I mean all of Athens and ultimately all of us. What troubled the Athenians about Socrates, however, was not listed in the charges. His crime was that he prompted people to think.

His provocations exposed the Athenians’ shallowness of belief and mindless deference to myth. Socrates was judged because he was successful in provoking his students “examine their lives.” [his words]Those who guard the myths must try and strike down any who teach young people to think and question, because myths often shrink in the light of reason, draining power from those in authority who benefit from belief.

There are thousands of teachers who agree with Socrates that, “[t]he unexamined life is not worth living.” Every teacher who makes a student think takes the risk that he will be attacked by parents and others who see themselves as guardians of cherished political and religious myth. The teachers willing to take that risk should be rewarded, not punished. After the verdict, the Athenian court asked Socrates what his punishment should be. He responded that he should get free meals at the Pyrataneum, a celebration hall for Olympian athletes. Socrates went on to explain that those who passed judgment were not harming him, but rather themselves. He said, by killing him they corrupted their own souls and revealed the weakness of their own belief. A true believer does not fear that a few questions can undo years of parental teaching. Those who would “protect” students from self-examination have little faith and great fear.

Chad Farnan, the boy who sued me, was an average student, who admitted under oath that he did not do the required reading for the class. If Chad’s lawyers, the “Advocates for Faith and Freedom,” and his parents were actually concerned with protecting the boy, why didn’t they simply come to me and ask me to explain my comments? Neither they nor the Farmans ever expressed concerns to me nor to any administrators before they came to school with attorneys and reporters in tow to drop a lawsuit on the desk of Tom Ressler, our principal. Perhaps more importantly, the Farmans were aware long before Chad took my class that I go out of my way to be provocative. Every year in July, I send a letter home to students who have signed up for my class. Chad admitted under oath that he received that letter. The letter says, in part:

“Most days we will spend a few minutes (sometimes more) at the beginning of class discussing current events from either The Orange County Register or the L.A. Times. I may also use material from a variety of news Web sites. Discussion will be quite provocative, and focus on the ‘lessons’ of history. My goal is to have you go home with something that will provoke discussion with your parents. Students may offer any perspective without concern that anything they say will impact either my attitude toward them or their grades. I encourage a full range of views.”

I included my home phone number and e-mail address in that letter and encouraged parents to contact me if they had any concerns. Chad admitted under oath that my lectures prompted many discussions with his parents. I might add, that in 20 years in the CUSD, I have never had a complaint filed against me, save this one.

Every teacher in California (this was a federal case after all) now works with the knowledge that any student, at any time, and in violation of California law, can sneak a tape recorder into a classroom, record the teacher and use an out-of-context five second comment as a bludgeon to threaten, to intimidate and, ultimately, to destroy the teacher’s career and good name.

Challenging myths is dangerous, but it is the essence of getting students to think for themselves. The Athenian judges, like some parents today, would have students accept myth without question, because myth is the foundation of their parental, political and/or religious authority. Ms. Farnan objected to my challenging the myth of the Puritans as a pious people who fled religious intolerance to found America. As Ms. Farnan sees them, the Puritans are quaint, pious people with buckles on their hats and shoes as portrayed in the national mythology, but they may also be seen as intolerant, misogynistic and homophobic religious bigots who hanged Mary Dyer, a Quaker girl, for preaching something other than Puritan doctrine and several other women for the crime of “witchcraft.”

Questioning may make students and parents uncomfortable, but students have a right to think for themselves. It is not “bullying” to demand that students think.

Ms. Farnan also objected to my challenge of another national myth, that the United States was founded as a “Christian” nation. There is some truth to that notion, but embracing that myth and excluding other views can be used to unfairly gain political advantage. Another view of the founding fathers can be seen in the writings of Thomas Jefferson, the man who authored the Declaration of Independence. He translated the Bible. The last words of the Jeffersonian Bible might shake Ms. Farnan’s faith: “There laid they Jesus, and rolled a great stone to the door of the sepulcher, and departed.” There was no resurrection for Jefferson, he rejected all the Biblical miracles, as contrary to reason. I doubt with his view would be called “Christian” by Ms. Farnan or anyone else. James Madison, who penned the Constitution, warned, “Religious bondage shackles and debilitates the mind and units it for every noble enterprise, every expanded prospect.” If Jefferson and Madison were alive today, I doubt they could be elected. The guardians of the national myth would rise up and smite them as unbelievers.

We respect the guardians and their myths at our peril because history (and science) changes and improves with knowledge, but the same force damages myth based on belief. That’s why the guardians fear the knowledge begat by questioning. For them, “knowledge” is gained in rote memory of approved truth. They chant in the school, temple, church or mosque and fool themselves into thinking they’ve acquired knowledge.

All those teachers, and there are many of us, who understand the value of questioning sacred myths serve this nation as faithfully as other patriots. What is true will be strengthened. What is false will be destroyed, as it should be. Such teachers should be honored. There is no greater gift teachers can give to students than to teach them to think. Don’t sue them for it. Try taking them to the Pyrataneum for dinner, conversation and a cup of coffee, no hemlock.

Volokh Pwns Censorship-Minded “Liberal” Congresswoman Sanchez

Dirty Sanchez

A California congresswoman has been reading too much Danielle Citron bullshit and has proposed a crybaby liberal bill against “cyberbullying.” I’ve been working on a piece slapping her legislation around like the piece of shit that it is. Why bother, Volokh brings the pain, but he brings it nicely.

And you thought only Republicans were censorship goons! Silly mortals.

Chuck Grassley – No Campaign Contribution For You!

Grassley? More like ASSLEY!

A few months ago, I was on the Charles Grassley (R-IA) fan band wagon, here and here. I even said I would give him a campaign contribution. I take it back. Fuck Chuck. He’s sponsoring yet another jingoistic flag-burning amendment.

“No other image depicts as clearly the freedoms and ideals of our country than the American flag. It’s the symbol our men and women in uniform have fought for over 200 years,” Grassley said in a prepared statement. “The American flag has been proudly flown in times of battle, of victory, and of national tragedy. It is the most recognized symbol of freedom and democracy in the world.”

No, you fucking retard. The Constitution is the symbol of freedom and democracy. The Flag is a piece of cloth that doesn’t mean anything without the Constitution behind it. We should not fetishize a piece of cloth. Without the Constitution, that piece of cloth is meaningless and worthless. That is why I have proposed a change to the Pledge of Allegiance:

Proposal — The New Pledge

I pledge my highest allegiance
to the Republic of the United States of America.
I pledge to uphold, defend, and protect the Constitution
against all enemies, foreign and domestic, at all times.
I pledge to join with my fellow citizens for this cause,
and to achieve Liberty and Justice for All

Now THAT is a patriotic, accurate, and Constitutional pledge. We should pledge to that which really matters.

We should ritualize our loyalty in an accurate and constructive manner – to remember from where our country’s true strength grows. Grassley is just playing to the uneducated.

Additional Point on Barnes v. Yahoo: Section 230 is an Affirmative Defense

Past First Amendment Bad Ass Award winner, Paul Alan Levy, points out that the recent Barnes v. Yahoo case has some notable dicta: The 9th Circuit said that Section 230 is an affirmative defense, and thus can not be raised in a motion to dismiss. Levy disagrees, for good reason.

In a UDRP Case, you have to do *some* work!

In my experience, the doozie arguments in UDRP cases usually come from Respondents. But, this Complainant takes an honorable mention in the hall of fame of stupid domain name arbitration maneuvers.

In Mathiesen S.A.C. v. Allan Mathiesen, WIPO Case No. D2009-0087, the Complainant had legitimate Chilean trademark registrations for MATHIESEN, and the domain name in question was www.mathiesen.com. However, the Chilean registrations were granted in 2005, and the domain name appears to have been held by the same owner, Allan Mathiesen, since 1999.

There are potential exceptions, but it is generally accepted that under paragraph 4(a)(ii) of the UDRP, a party has a right to and/or a legitimate interest in a domain name when it corresponds to his actual legal name. See, e.g., G. A. Modefine S.A. v. A.R. Mani, Case No. D2001-0537 (A gentleman by the name of “A.R. Mani” registered armani.com and prevailed against Giorgio Armani on this basis).

I must wonder how the complainant’s attorney could have drafted the complaint and not at least dealt with the fact that the domain name and the respondent’s surname were the same. I have seen respondents come up with post-hoc “name changes” or claim that their “nickname” corresponds to the domain name. Accordingly, the complainant could have at least challenged the presumption that the WHOIS information was accurate – but they apparently didn’t bother to do so.

The panel found that this was an abuse of the arbitration process, and rightfully so.

A heartening factor in this case is that the panelist, Jeffrey D. Steinhardt, bothered to do some independent research, and reviewed the relevant web page and its online archives to see how the domain name had been used since its registration in 1999. UDRP Panelists certainly have the power to do so, and I believe that they have a responsibility to do so. Douglas Isenberg embraces this principle, but precious few others seem to do so.

The moral of the story: as a complainant’s attorney, you have to do some work. As a Panelist, you really ought to.

Let Women Compete in Olympic Ski Jumping

Until I saw this video, I didn’t know two important facts (and one lesser fact):

1. There is no womens’ ski jumping in the Olympics.
2. The best ski jumper in the world is a woman.
3. The justification for excluding women from Olympic ski jumping is a belief that the woman’s uterus might fall out.

Sign the petition at http://www.wsj2010.com to let the women compete.

Right is right and fair is fair

H/T: Feminist Law Professors

Maine Legalizes Gay Marriage

Maine becomes the fifth state to light the way to equality

Maine has joined Massachusetts, Vermont, Connecticut, and Iowa as the fifth state to acknowledge that “equal means equal.”

Maine governor John Baldacci issued this statement to coincide with his signing of the historic civil rights legislation:

I have followed closely the debate on this issue. I have listened to both sides, as they have presented their arguments during the public hearing and on the floor of the Maine Senate and the House of Representatives. I have read many of the notes and letters sent to my office, and I have weighed my decision carefully. I did not come to this decision lightly or in haste.

I appreciate the tone brought to this debate by both sides of the issue. This is an emotional issue that touches deeply many of our most important ideals and traditions. There are good, earnest and honest people on both sides of the question.

In the past, I opposed gay marriage while supporting the idea of civil unions. I have come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage.

Article I in the Maine Constitution states that ‘no person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of that person’s civil rights or be discriminated against.’

This new law does not force any religion to recognize a marriage that falls outside of its beliefs. It does not require the church to perform any ceremony with which it disagrees. Instead, it reaffirms the separation of Church and State,” Governor Baldacci said. It guarantees that Maine citizens will be treated equally under Maine’s civil marriage laws, and that is the responsibility of government. Even as I sign this important legislation into law, I recognize that this may not be the final word. Just as the Maine Constitution demands that all people are treated equally under the law, it also guarantees that the ultimate political power in the State belongs to the people.

While the good and just people of Maine may determine this issue, my responsibility is to uphold the Constitution and do, as best as possible, what is right. I believe that signing this legislation is the right thing to do.

A fantastic analysis of the issue is available here, at the Mountain Sage Blog, written by a Christian blogger who has had enough of the hypocrisy that the Christian Right spews over this issue.

Maine: It may be cold there right now, but they'll be burning soon ... and for all eternity!!!!

However, John Stewart (big surprise) had the more humorous take: Stewart correctly said that now the Maine Lobster Festival will now be the state’s second largest violation of the Book of Leviticus. Yes, that’s right.

Leviticus 18:22 sayeth “Thou shalt not lie with mankind, as with womankind: it is abomination.”

And the same dude sayeth in Leviticus 11:9-12:

9 These shall ye eat of all that are in the waters: whatsoever hath fins and scales in the waters, in the seas, and in the rivers, them shall ye eat.
10 And all that have not fins and scales in the seas, and in the rivers, of all that move in the waters, and of any living thing which is in the waters, they shall be an abomination unto you:
11 They shall be even an abomination unto you; ye shall not eat of their flesh, but ye shall have their carcases in abomination.
12 Whatsoever hath no fins nor scales in the waters, that shall be an abomination unto you.

So, at least Maine was going to burn in hell for all eternity anyhow.

Anti-Creationism Statement By Teacher Violates First Amendment

Sometimes the rational must suck the Lemon too.

The Central District of California held that when schoolteacher James C. Corbett made an in-class statement that creationism is “superstitious nonsense,” he violated the Establishment Clause. However, it isn’t as simple, nor as outrageous, as it sounds.

Peloza apparently brought suit against Corbett because Corbett was the advisor to a student newspaper which ran an article suggesting that Peloza was teaching religion rather than science in his classroom. (Id.) Corbett explained to his class that Peloza, a teacher, “was not telling the kids [Peloza’s students] the scientific truth about evolution.” (Id.) Corbett also told his students that, in response to a request to give Peloza space in the newspaper to present his point of view, Corbett stated, “I will not leave John Peloza alone to propagandize kids with this religious, superstitious nonsense.” (Id.) One could argue that Corbett meant that Peloza should not be presenting his religious ideas to students or that Peloza was presenting faulty science to the students. But there is more to the statement: Corbett states an unequivocal belief that creationism is “superstitious nonsense.” The Court cannot discern a legitimate secular purpose in this statement, even when considered in context. The statement therefore constitutes improper disapproval of religion in violation of the Establishment Clause. (Op. at 15)

However, the Judge reviewed a number of the teachers’ statements, all of which were critical of creationism and religion, and held that the rest of his statements were permissible. For example:

Aristotle was a physicist. He said, ‘no movement without movers.’ And he argued that, you know there sort of has to be a God. Of course that’s nonsense. I mean, that’s what you call deductive reasoning, you know. And you hear it all the time with people who say, ‘Well, if all of this stuff that makes up the universe is here, something must have created it.’ Faulty logic. Very faulty logic.

[T]he other possibility is it’s always been here. Those are the two possibilities: it [the universe] was created out of nothing or it’s always been here. Your call as to which one of those notions is scientific and which one is magic. [Inaudible] the spaghetti monster behind the moon. I mean, all I’m saying is that, you know, the people who want to make the argument that God did it, there is as much evidence that God did it as there is that there is a gigantic spaghetti monster living behind the moon who did it.

Therefore, no creation, unless you invoke magic. Science doesn’t invoke magic. If we can’t explain something, we do not uphold that position. It’s not, ooh, then magic. That’s not the way we work.

Contrast that with creationists. They never try to disprove creationism. They’re all running around trying to prove it. That’s deduction. It’s not science. Scientifically, it’s nonsense. (Op. at 27)

The judge held that the primary effect of these statements was to illustrate a contrast between scientific reasoning and religious faith. Although a statement might be offensive to one religious set of beliefs, that does not make it unconstitutional.

[I]n Epperson v. State of Ark., 393 U.S. 97, 89 (1968), the Supreme Court struck down Arkansas statutes forbidding the teaching of evolution in public schools and in colleges and universities, finding that the statutes violated the Establishment Clause. The Court found that the statutes were unconstitutional even if they merely prohibited teachers from stating that the theory of evolution is true. Id. at 102-03. This was so even though the theory was contrary “to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man.” Id. at 107. The Court found that “[t]here is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma.” Id. at 106 (emphasis supplied). The Court also noted that “the state has no legitimate interest in protecting any or all religions from views distasteful to them.” Id. at 107 (citing Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 505 (1952)). (Op. at 8)

Accordingly, only one of Corbett’s statements was found to run afoul of the three-part test in Lemon v. Kurtzman, 403 U.S. 602 (1971).

1. The government action must have a secular purpose;
2. Its principal or primary effect must be one that neither advances nor inhibits religion;
3. The government action must not foster an excessive government entanglement with religion.

Permissible conduct must satisfy all three requirements. Edwards v. Aguillard, 482 U.S. 578, 583 (1987); Vernon v. City of Los Angeles, 27 F.3d 1385, 1396-97 (9th Cir. 1994). Accordingly, even under this stringent test, most of Corbett’s statements successfully ran the Lemon gauntlet.