PART VI
Chapter 25
A Dissent from a Denial to Rehear the SFFA case by the full court (en banc).
The below is advocating the First Amendment and Trademark Act of 1946
The three judges' dissent said that the motion to rehear the case by the full nine judge court should be granted. Judge Alex Kozinski came to the Ninth Circuit by way of the Federal Claims Court, Washington D.C. where he was Chief Judge. His opinion below was joined by two esteemed jurists. His words are precise and he utters the famous words that warm my heart, "[I]t's unlike anything we have seen in our law before." A similar statement was made by my Supreme Court counselor, Michael H. Gottesman. "A law superior to anything that has ever existed in our country." My statement affirmed by him.
For the purposes of clarity, flow, and understanding many legal citations are omitted in the opinion. It need be understandable to the reader or it has no value. Any person or scholar can order a complete copy from the proper repository. I would also prejudicially add "His opinion as articulated should have been the U.S. Supreme Court 'opinion' in the SFAA case." It involves the first amendment as well as trademark law.
Circuit Judge ALEX KOZINSKI Opinion May 28th 1986
with Circuit Judges Harry Pregerson and Joseph Sneed, joining dissent.
Bio: [Judge Alex Kozinski (born July 23, 1950) is a judge on the United States Court of Appeals for the Ninth Circuit. Appointed by President Ronald Reagan on November 7, 1985, Kozinski has won supporters from the left and the right with his common-sense decisions and libertarian instinct. His writing is clear and often humorous, and has been featured in mainstream publications such as Forbes and Slate. He was born in Bucharest, Romania but his parents, both Holocaust survivors, brought him to America in 1962 (he was only 12). They settled in Los Feliz, California and his father, Moses, ran a small grocery store there. Kozinski attended John Marshall High School and UCLA. He received his J.D. from UCLA Law School in 1975 (he was one of the top students) and went on to clerk for then-Ninth Circuit Judge Anthony Kennedy and Chief Justice Warren Burger. Then he spent a few years in private practice before going to work in the White House counsel's office for then-President Ronald Reagan. Kozinski received a job as chief judge at the newly-formed Federal Claims Court. Then, at the age of 35, Reagan appointed him to the Ninth Circuit, making him the youngest federal appeals court judge in the country.] Thank you President Reagan. He is now Chief Judge of the 9th Circuit Court of Appeals.
The Dissent
This case was brought by the United States Olympic Committee, and others, under the Amateur Sports Act of 1978 (the Amateur Act), 36 U.S.C. §§ 371-396 (1982), to enjoin the use of the word "Olympic" by appellants, San Francisco Arts & Athletics (SFAA) in connection with an event to be known as the Gay Olympic Games. USOC is a private non-profit corporation chartered by Congress, 36 U.S.C. §§ 371, 377 (1982); SFAA is a non-profit corporation. The Gay Olympic Games SFAA intended to sponsor in 1982 (and again in 1986) were designed to combat homophobia and to work for the health and tolerance of gay and lesbian persons. Pet. Reh. 2.
A panel of this court upheld a permanent injunction issued after summary judgement had been granted USOC. International Olympic Committee v. San Francisco Arts & Athletics, 781 F.2d 733 (9th Circuit 1986). For the reasons stated below, I find the panel's reasoning squarely at odds with controlling Supreme Court authority. Moreover, the result reached threatens a potentially serious and widespread infringement of personal liberties. I therefore would vacate the panel's opinion and set the case for re-hearing en banc.
A.
As the panel interprets the Amateur Act, the USOC is given the exclusive right to use the word Olympic "for the purpose of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition," 36 U.S.C § 380, whether undertaken for a profit or non-profit purpose. The USOC may obtain in injunction against use of this term without showing a likelihood of confusion and without overcoming the defenses normally available in trademark infringement actions under the Lanham Act. 781 F.2d at 736. Interpreted in this fashion the Amateur Act represents a sweeping exercise of sovereign power, implicating principles of individual liberty protected by our Constitution. By passing the act, Congress extracted a word from the English language and gave it to a private party to use in connection with any commercial endeavor or event. This raises serious first amendment concerns that the panel failed to address or acknowledge.
The word olympic has a meaning unique within our language. It connotes open and intense competition among non-professionals athletes, usually involving the best and most accomplished contestants. Thus, we have Special Olympics, Junior Olympics, Police Olympics, even Canine Olympics, normally involving competition among best friends within the denoted category. I have great difficulty with the idea that Congress can deny all of us that word, and the ideas, it embodies, in connection with all public endeavors. As noted by Justice Harlan in Cohen v. California, 403 U.S. 15, 26 (1971), "we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process." The ideas embodied in the word Olympic can, or course, be expressed by other means, but only in a much clumsier fashion, with out the same nuance of meaning. Justice Harlan wrote in Cohen,
much linguistic expression serves a dual communicative
function: it conveys not only ideas capable of relatively precise,
detached explication, but otherwise inexpressible emotions as
well. In fact, words are often chosen as much for their emotive as
their cognitive force. We cannot sanction the view that the Constitution,
while solicitous of the cognitive content of individual speech, has little or
no regard for that emotive function which, practically speaking,
may often be the more important element of the overall message sought to be
communicated.
Id. at 26
In organizing the Gay Olympic Games, the SFAA sought to "create a more realistic image of homosexual men and women to move into the mainstreams in all societies and to provide more alternatives for homosexual men and women to move into the mainstreams of their respective societies." International Olympic Committee v. San Francisco Arts & Athletics, 291 U.S.P.Q. 982, 985 (N.D. Cal. 1982) aff'd mem., 707 F.2d 517 (9th Circuit 1983). The word Olympic was no doubt chosen to foster a wholesome, normal, image of homosexuals. Denying SFAA the use of the word thwarts that purpose. To say that the SFAA could have named it's event "The Best and Most Accomplished Amateur Gay Athletes Competition" no more answers the first amendment concerns here than to suggest that Paul Robert Cohen could have worn a jacket saying "I strongly Resent the Draft."
The Supreme Court has been extremely reluctant to approve restrictions against the use of particular words. See, Cohn v. California, 403 U.S. 15 (1971). In the rare case when the court has done so, it was after the closest scrutiny and subject to the most careful restrictions. By contrast, the panel here dismisses SFAA's constitutional argument, simply by noting that the word "Olympic" and it's associated symbols and slogans are essentially property. Such property rights can be protected without violating the first amendment. 781 F.2d at 7373 (citing Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 573-577 (1977). To say that the word Olympic is property begs the question. What appellants challenge is the power of Congress to privatize the word Olympic, rendering it unutterable by anyone else in connection with any product or public event, whether for profit or, as in this case, to promote a cause. The rights conferred on the USOC by the Amateur Act are materially different than traditional intellectual property rights where a careful balance is struck between the interests of the property owner and those of the public.
Trademarks/1, copyrights/2, and patents/3, are subject to a variety of statutory and common law defenses, and they reserve only those rights necessary to protect the owners economic interest.
/1 (case attributions limited)
Trademarks are recognized only upon a showing that the mark has been adopted and used in commerce, 15 U.S.C. § 1051 (1982). Subsequent users may raise a series of defenses under section 33(b) of the Lanham Act, such as fraud on the PTO, abandonment, fair use, misrepresentation of source, or violation of the antitrust laws, 15 U.S.C. § 1115 (1982). There are also equitable defenses such as estoppel by laches; acquiescence; and unclean hands. Most importantly, trademark rights can only exist in distinctive terms and devices. Similarly, there cannot be a trademark in a purely functional device. Distinctiveness is central to the status of the mark. A legitimate trademark will lose it's status if it becomes generic. Thus, trademark owners have an exclusive right to use the mark only to the extent necessary to safeguard the integrity of the product source.
/2 (case attributions omitted)
Copyrights are of limited duration, U.S. Const....., Art I, § 8; 17 U.S.C. § 302 (1982), and are subject to a number of defenses, most notably the defense of fair use. Copyright protection will not extend to the idea itself or to purely utilitarian objects.
/3 (case attributions omitted)
Patents are granted only for subject matter that is novel, useful, or non-obvious. 35 U.S.C. §§ 101-103 (1982). They are limited in time, U.S. Const....., Art I, § 8. They also are subject to a variety of legal and equitable defenses, including patent misuse, expiration of the statute of limitations, and inequitable conduct before the PTO. Zacchini, upon which the panel relied, is instructive. The Court there was careful to limit the relief afforded petitioner (the human cannonball) to assuring that he "reap(s) the reward of his endeavors." The Court twice noted that "petitioner does not seek to enjoin the broadcast of his performance; he simply wants to be paid for it. By and large rights in intellectual property are limited to uses that have been invented, created or developed by the owner. They are not a wholesale prohibition against all public uses but provide limited protection for that which "is the product (the owner's) own talent's and energy, the end result of much time, effort, and expense." So, limited rights in intellectual property are easily harmonized with the first amendment. However, when cut loose from their conceptual moorings, intellectual property rights can raise serious constitutional concerns. Here the Amateur Act's ironclad prohibition against every commercial or theatrical use of the word Olympic (unrestrained by need to show likelihood of confusion or to overcome Lanham Act defenses) stakes out an intellectual property right fiefdom quite unlike anything we have seen in our law before. By giving the USOC exclusive possession of the word, Congress has diminished the rights of everyone else, withdrawing from the public domain a term used by many and useful to more. If Congress has the power to grant a crown monopoly in the word Olympic, one wonders how many other words or concepts can be similarly enclosed, and the extent to which our public discourse can thereby be impoverished.
B.
My first amendment concerns are heightened by the way the USOC allegedly exercises it's stewardship over the word Olympic. According to the petition for rehearing "the facts submitted below establish that the USOC has openly permitted use of "Olympic" both by groups it directly supports, e.g. the Special Olympics, the Explorer Olympics, and the Junior Olympics, and by groups it has known to be using 'Olympic' that it has elected not to sue, such as the 'Int'l Police Olympics.' " Pet. Reh. 10.
Accepting SFAA's allegation, as we must, it seems that the USOC is using it's control over the term Olympic to promote the very image of homosexuals that SFAA seeks to combat: handicapped, juniors, police, Explorers, even dogs are allowed to carry the Olympic torch, but homosexuals are not. Troublesome as would be a total withdrawal of the term from public discourse, an exclusion that is invoked pursuant to a subjective assessment of the wholesomeness of the proposed speaker or the propriety of the proposed message is more troublesome still. Where the entity making the decision is private, unconstrained by principals of equal protection and due process, and entirely free of the discipline imposed by our political system, there are no safeguards whatsoever against the arbitrary exclusion of certain groups because they wish to communicate ideas some may find offensive. Under the panel's rationale, the result would have been the same if appellants were blacks rather than homosexuals, and their claim were based on racism rather than homophobia.
The fundamental purpose of the [Amateur] Act was to safeguard
the USOC's ability to raise the financial resources that are a
critical component of America's capacity to send world-class
amateur athletes into international competition without the
massive government subsidies enjoyed by competitors from other nations.
If this is the only interest supporting the USOC's monopoly, I seriously doubt whether it would justify even a minor restriction on free speech. In words that seem to address this very issue, Justice Marshall noted earlier this term:
While the interference with appellant's speech is, concededly,
very slight, the State's justification -- the subsidization of another
speaker chosen by the State -- is insufficient to sustain even that
that minImum or burden. We have held that the State may use its
own resources for subsidization but that interest standing alone
cannot justify interference with the speech of others.
B. Even if the government's interest in subsidizing the USOC were deemed sufficient to abridge some of appellants' first amendment rights, we would still have to determine whether the broad monopoly granted by the Amateur Act "is not more extensive than is necessary to serve that interest." Again the scant record here makes that determination difficult, but the question is amenable to no simple answer. At the very least, it is necessary to consider whether USOC's commercial licenses could not be adequately protected by giving the USOC rights coextensive with those in the Lanham Act or by restricting it's control over use of the word Olympic in some other fashion. Or so, at least, do I read Supreme Court's uniform pronouncements in this area.
IV
By raising these concerns I do not necessarily conclude that the Amateur Act is irreconcilably at odds with the first amendment. Indeed, on this barren record I find it difficult to reach any, but the most tentative conclusions about this highly unusual statute and it's effect on personal liberties. What I find most troubling, however, is the haste with which appellants are being ushered out of court. The panel appears to have overlooked that where first amendment defenses are raised "judgment as to whether the facts justify the use of the drastic power of injunction necessarily turns on subtle and controversial considerations and upon a delicate assessment of the particular situation in light of legal standards which are inescapably imprecise," Carroll v. Princess Anne, 393 U.S. 175, 183.
What appellants propose to do, after all, lies at the very heart of the first amendment: They wish to hold a public event to promote sociopolitical views some may find offensive. They claim that calling their event Gay Olympics is essential to the message the wish to convey. A long and unbroken line of Supreme Court cases stands for the proposition that "any prior restraint on expression comes to [court] with a heavy presumption against it's constitutional validity." Under this standard, prior restraints have been struck down even where adopted to protect important public or private interests. By contrast, the panel here approves a permanent injunction that significantly blunts rights to public expression without the slightest showing that the enjoined use would harm anyone.
Moreover, "[a]n order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-point objective permitted by constitutional mandate and the essential needs of the public order." Carroll, 393 U.S. at 183. I have much difficulty reconciling the blunderbuss injunction entered against SFAA with this admonition. With all due respect, the panel's offhand approval of this injunction, obtained as it was by summary judgment, simply does not measure up to the close appellate scrutiny due first amendment claims and defenses. Bose Corp. v. Consumers Union; Standard Oil v. California.
In sum, I believe that the petition for rehearing raised very serious arguments that deserve consideration and resolution by the court en banc. The panel fails to acknowledge the difficult first amendment issues presented, regrettably bypassing what I consider to be clear and applicable guidance from the Supreme Court. The opinion will therefore prove a troublesome precedent, undermining not only the right to free speech but also the laws protecting intellectual property, to the ultimate detriment of both. While not every error by a panel can be addressed by the full court, the important and novel constitutional issues raised by this case, the panel's failure to adequately address them and the likely adverse effect the opinion will have on personal liberties, all strongly mitigate in favor of rehearing the case en banc. I therefore respectfully dissent from the court's refusal to do so.
Alex Kozinski, Circuit Judge, 9th Circuit Court of Appeals joined by Harry Pregerson and Joseph T. Sneed III
Chapter 26 NOAB and HR 1988
It is a daily ritual to receive and read the Congressional Record, at minimum the contents table to see what may be forthcoming re the Amateur Sports Act and its revision, if any, and for any reason which may be pertinent to the lobby and/or my personal situation. This was like religion. It was a must do, or go to hell, kind of thing. Why it was so important I was to soon know. After months of finding nothing unusual, interesting or relevant I see mention of proposed measure re the USOC and it has to do with a "check off" box on the I.R.S. 1040 tax form that we all know and love so much. This new law is designated HR-1988, "The United States Olympic Check-Off Act." At the time of it's introduction there are 37 co-sponsors; I believe there were eventually 170 co-sponsors in the House.
I called the Clerk of the House inquiring about the new proposed law. The Clerk's Office told me about it and said it was considered "non-controversial" (legislation), which means "no notice", "no hearings", no nothing about it and it will become law automatically when the larger bill it is included in - passes. He said "it is non-controversial" and I said, "not anymore," and thanked him. Someone later suggested this idea was the brain child of William E. Simon, the new president of the USOC who's last job was Treasury Secretary of the United States. The Congress has long asserted that the USOC is not supposed to be a part of the federal government but that was yesterday when the turnip truck passed by, and today no one's looking, turnips are on sale, and who remembers. Blinded by the olympic light again. If no one knows, except a select few, then I must find a way to make it Public. A "registered lobbyist" sounds like a job important or at least someone to be suspicious about or ignored. So let's see if they hear a lobbyist rather than a lone litigant. I could obviously inform the lobby members as well as the thousands in my record as I have done before. That's just spreading bad news (the next edition of the "Olympic Record)," all the bad news that's fit to print. I'll wait on them. I need to figure who to tell. This is great; now you can give money to the USOC on your tax form so they can use the money to put you out of business using the word Olympic. And now raise money from your customers to help put you out of business. I am angry at these co-sponsors and fit to be tied down, again. It took two days for the "olympic vision" to appear. I have another IDEA. It's funny what happens when you "sleep" on something. Unconscious debriefing and collective results.
A lobbyist (seemingly) has rights that an individual person cannot assume. He has a license to lobby, he is required to report cash contributions, and report who she/he contacted in Congress the prior, quarterly, reporting period. It's almost a "license to speak." The word, "lobbyist" is maligned way more than it should be. Yes, special interest have lobbyist for their points, positions, and financial concerns but without my being registered and heading a group I would have NOT been taken seriously and simply dismissed as a crank.
The USOC is a non-profit federally chartered corporation. It seems to me that other non-profit associations and groups would benefit by knowing about this "uncontroversial bill" soon to become law with no one knowing about it until it's passed. You all "Remember the Alamo" well we "Remember the March of Dimes." What was the end result of the March of Dimes incident I know not but I was reporting what had been published and now to remind all non-profit associations, businesses, and organizations of it whether they heard the story or not.
I went to UC Riverside Library and located source books on the major non-profit groups. I sent a cover letter saying they should lobby for their own check-off box for many of their causes were far superior than a bunch of folks running around a track. I told them it was law unless they did something about it. All below have millions of times the resources I, or my lobby, could muster so it was up to them. I also assumed that they had lobbyist of their own. We contacted:
NATIONAL EDUCATION ASSO. COMMON CAUSE
1201 SIXTEENTH ST. 2030 M ST., NW
WASHINGTON, D.C. 20036 WASHINGTON, D.C. 20036
AMERICAN KIDNEY FUND AMERICAN RED CROSS
7345 WISCONSON AVE. 17 & D Streets, NW
BETHESDA, MD 20814 WASHINGTON, D.C. 20006
US COMMITTEE FOR UNICEF AMERICAN CIVIL LIBERTIES UNION
331 East 38TH ST. 132 West 43rd St.
NEW YORK, NY 10016 NEW YORK, NY 10036
PEOPLE FOR THE AMERICAN WAY UNITED WAY OF AMERICA
PO Box 96200 701 N. FAIRFAX ST.
WASHINGTON, D.C. 20090-6200 ALEXANDRIA, VA 22314-2044
AMERICAN HEART ASSO. AMERICAN CANCER SOCIETY
7320 GREENVILLE AVE. 1825 CONN. AVE., NW
DALLAS, TX 75231 WASHINGTON, D.C. 20009
AMERICAN CANCER SOCIETY M.D. FOUND. - NAT'L HEAD.
19 WEST 56TH ST. 5249 DUKE ST. - #109
NEW YORK, NY 10019 ALEXANDRIA, VA 22304
M.D. FOUNDATION -NYC Office MARCH of DIMES FOUND.
810 SEVENTH AVE. 1275 MAMARONECK AVE.
NEW YORK, NY 10019 WHITE PLAINS, NY 10501
NAT'L BUSINESS LEAGUE BOY SCOUTS OF AMERICA
4324 GEORGIA AVE. 499 SOUTH CAPITOL ST., SE
WASHINGTON, D.C. 20011 WASHINGTON, D.C. 20003
AMERICAN BUSINESS CONF COMMERCIAL LAW LEAGUE
1730 K ST. 1155 15TH ST., NW - #400
WASHINGTON, D.C. 20006 WASHINGTON, D.C. 20005
NATIONAL RETAIL MERCHANTS AMERICAN ADVERTISING FED.
1000 CONN. AVE., NW 1400 K ST., NW - #1000
WASHINGTON, D.C. 20036 WASH., D.C. 20005
AMERICAN HELLENIC INSTITUTE AMERICAN HOTEL & MOTEL
1730 K ST., #319 888 SEVENTH AVE.
WASHINGTON, D.C. 20006 NEW YORK, NY 10019
AMERICAN INSURANCE ASSO. AMERICAN LAND TITLE ASSO.
85 JOHN ST. 1828 L ST., NW
NEW YORK, NY 10038 WASHINGTON, D.C. 20036
AMERICAN LIBRARY ASSO. AMERICAN MEDICAL ASSO.
50 E. HURON ST. 535 N. DEARBORN ST.
CHICAGO, IL 60611 CHICAGO, IL 60610
AMERICAN NEWSPAPER PUBL. ASSO. NAT'L ASSO. OF MANU.
BOX 17407 - Dulles Int'l. Airport 331 PENNSYLVANIA AVE.
WASHINGTON, D.C. 20041 WASHINGTON, D.C. 20005
NATIONAL ASSO. OF REALTORS ASSO. OF AMERICAN PUBLS.
777 14TH ST., NW 2005 MASS. AVE., NW
WASHINGTON, D.C. 20005 WASHINGTON, D.C. 20036
NATIONAL NEWSPAPER ASSO. U.S. LEAGUE OF SAVINGS INST
1627 K ST., NW - #400 1709 NEW YORK AVE., NW
WASHINGTON, D.C. 20006 WASHINGTON, D.C. 20006
NAT'L COUNCIL OF SAVINGS INSTS. NAT'L RESTAURANT ASSO.
1101 15TH ST., NW - 4TH FLOOR 1700 PENNSYLVANIA AVE.
WASHINGTON, D.C. 20005 WASHINGTON, D.C. 20006
NATIONAL SMALL BZ ASSO. AMERICAN OPTOMETRIC
1155 15TH ST., NW 600 MARYLAND AVE., SW
WASHINGTON, D.C. 20005 WASHINGTON, D.C. 20024
WASHINGTON ST PUBLIC LANDS AMERICAN LIBRARY ASSO
PO BOX 16321 110 MARYLAND AVE., NE
SEATTLE, WA 98116 BOX 54 - WASH., D.C. 20002
NAT'L. FED. OF INDEPENDENT BZS. AMERICAN RETAIL FED.
600 MARYLAND AVE., SW #700 1616 H ST., NW
WASHINGTON, D.C. 20024 WASHINGTON, D.C. 20006
NATIONAL PUBLIC RADIO AMERICAN FED. OF TEACHERS
2025 M ST., NW 555 NEW JERSEY AVE., NW
WASHINGTON, D.C. 20036 WASHINGTON, D.C. 20001
CONSUMERS UNION OF THE US NAT'L ORG. FOR WOMEN
2001 S Street, NW #520 1401 NEW YORK AVE., #800
WASHINGTON, D.C. 20009 WASHINGTON, D.C. 20005
NAT'L. TOUR ASSOCIATION AMERICAN Bz FOR INT'L.
546 E. MAIN ST. 1919 PENNSYLVANIA AVE., NW
LEXINGTON, KY 40508 WASHINGTON, D.C. 20006
ASSN. FOR REGULATORY REFORM NAT'L. ASSN. OF INS. BROKERS
10506 CAVALCADE ST. 1401 NEW YORK AVE., NW
GREAT FALLS, VA 22066 WASHINGTON, D.C. 20005
NAT'L. TAX LIMITATION COMM. NATL. ASSN. OF PUBLIC TV
919 PRINCE ST. 1818 N Street, NW - #410
ALEXANDRIA, VA 22314 WASHINGTON, D.C. 20036
NATL. CABLE TV ASSOCIATION AMERICAN BANKERS ASSO
1724 MASSACHUSETTS AVE., NW 1120 CONNECTICUT AVE., NW
WASHINGTON, D.C. 20036 WASHINGTON, D.C. 20036
NATL. FEDERATION OF FED. EMPS. NATL. MARINE MANUF.
1016 16TH ST., NW 2550 M Street, NW #800
WASHINGTON, D.C. 20036 WASHINGTON, D.C. 20037
JOURNAL OF COMMERCE AMERICAN FAIR TRADE COUN
1133 15TH Street, NW - #1100 900 MINNESOTA ST.
WASHINGTON, D.C. 20005 SAN FRANCISCO, CA 94107
ASSO. GENERAL CONTRACTORS CONCERNED WOMEN FOR A.
1957 E Street, NW 122 C Street, NW - #800
WASHINGTON, D.C. 20006 WASHINGTON, D.C. 20001
NATL. BUSINESS AIRCRAFT ASSN. MECHANICAL CONTRACTORS
1300 19TH ST., NW 5410 GROSVENOR LANE
WASHINGTON, D.C. 20036 BETHESDA, MD 20814
NATL. BICYCLE DEALERS ASSN. OF RETAIL DRUGGISTS
129 CORBEL, #201 205 DAINGERFELD RD.
COSTA MESA, CA 92627 ALEXANDRIA, VA 22314
NATL. SO. OF PUBLIC ACCNTS RUBBER MANU ASSN.
1010 N. FAIRFAX ST. 1400 K ST.
ALEXANDRIA, VA 22314 WASHINGTON, D.C. 20005
NATL. TOUR ASSOCIATION, INC. AMERICANS FOR TAX REFORM
1025 THOMAS JEFFERSON ST., #700 2300 N Street, NW
WASHINGTON, D.C. 20007 WASHINGTON, D.C. 20037
Thank God again for Libraries. Some said the GAO estimated $25-30 million a year from this check-off box financing device. That's over $500,000,000 in lost revenue since the bill died and counting. I never saw that check-off box on my 1040 return and have no idea who did what. I later contacted each co-sponsor that signed on to that legislation. That's not a letter I can locate and I'm sure it was censored.
Chapter 27
Why did the Supreme Court take the case? Were they bored with everyday life and death issues; were they enamored by Olympism?; did they not like Circuit Judge Kozinski's (w/2 other Judges) dissenting opinions in the same circuit; were they here to strike a blow for foreign entities usurping the U.S. Constitution and American rights (no that wasn't it); but that's exactly what they did. Now the high court will hear oral arguments about why there should not be allowed a "Gay Olympic Games." Dr. Waddell is now dying of complications from Aids. Truly the case of champions. Here's where the Martians take over. We can't speak or understand Martian but the Supreme Court can. And it can make new law, never before seen or heard of, in the history of our country, if they feel like it or when they are steered into it. Enamored by the Olympic light and there was no homophobia present.
I tried to "join" SFAA and Mr. Waddell and spent no small sum. Mr. Perkins, my appellate attorney, petitioned the high court for certiorari to join SFAA before judgement (in my case) in the Ninth Circuit. I tried to go up there and stand beside Dr. Waddell to expose my evidence and record SHOWING THE THOUSANDS of Olympic uses; proving the word Olympic already belongs to everyone (the Public) in this country and not to the USOC and especially not to the IOC who borrowed it from Greek history. But the Court denied two petitions for cert. as premature, which they were, and the Court went about disposing of Dr. Waddell, kind of makes you proud. Martian law says you need no facts, no evidence, no argument, no precedent, no nothing because we, the High Martian court, already are smart enough, like Solomon I suspect, to figure this one out. Well my dear old Cast of Nine - you are were duped. Being duped has far reaching implications. By virtue of this calatimus decision, my action will not survive the lower appeals court, making certain that all evidence and facts which might make your opinion seem a little biased, uninformed, and ridiculous be forever buried in a federal repository somewhere, or dumpster. Perfect example of the Martian system of justice. See no facts, hear no truth, and follow no precedent.
We were in a small way able join the SFAA case by submitting a 'Friend of the Court' brief with the A.A.U., known as an Amicus Curiae in support of the SFAA case.
AMICUS CURIAE BRIEF
Briefed and Submitted
By Randall G. Wick, Counsel of Record
The National Association of Olympic Businesses [NAOB] agrees to join the Amateur Athletic Association [AAU], the Center for Constitutional Rights, and others on a Friend of the Court brief known as an AMICUS submission to the Supreme Court in support of the SFAA case and their first amendment and trademark positions. A separate group will submit and argue the Fifth Amendment concerns.
In spite of my case being denied access to the Supreme Court (one to expedite consideration and the other to "Join" SFAA) there is a way to get limited arguments and issues before the Court. The ACLU pulled this one together and it was a fine accomplishment, notwithstanding it being ignored.
Here are the Headings for the points argued by Mr. Randall G. Wick, counsel of record.
Each Heading tells it like it is.
1. IN ENACTING THE AMATEUR SPORTS ACT OF 1978 CONGRESS INTENDED TO PROVIDE PROTECTION FOR THE MARK "OLYMPIC" COMMENSURATE WITH THE PROTECTION PROVIDED TO OTHER FEDERALLY CHARTERED ORGANIZATIONS WITHIN THE PARAMETERS OF THE LANHAM ACT.
A. IN PASSING THE INITIAL UNITED STATES OLYMPIC ASSOCIATION INCORPORATION ACT OF 1950, CONGRESS INTENDED TO PREVENT ONLY FALSE DESIGNATIONS AND FRAUD IN THE USE OF USOC DESIGNATIONS.
B. THE SUI GENERIS PROTECTION WITH RELATED REMEDIES IN EARLY VERSIONS OF THE AMATEUR SPORTS ACT OF 1978 WERE DELETED FROM THE FINAL VERSION OF THE ACT.
C. THE COMMITTEE REPORTS, AND LETTERS DEMONSTRATE THE SPECIFIC INTENT OF CONGRESS TO PROHIBIT THE USE OF THE USOC DESIGNATIONS ONLY WHERE THEY WERE "TENDING TO CAUSE CONFUSION" AS PROSCRIBED BY THE LANHAM ACT.
D. COMMENTS MADE BY MEMBERS OF CONGRESS MADE CONTEMPORANEOUSLY WITH THE PASSAGE OF THE AMATEUR SPORTS ACT OF 1978 EVIDENCE A CONGRESSIONAL UNDERSTANDING THAT THE ACT'S AMBIGUOUS LANGUAGE BE CONSTRUCTED PURSUANT TO THE BOUNDARIES OF OTHER FEDERALLY CHARTED ORGANIZATIONS AND THE LANHAM ACT.
Mr. Wick gets an A+ for this filing. These headings are absolutely correct in every detail. My Congressional contacts made these same statements, over, and over, and over again. "Don't worry, Mr. LaBranche." Below is an additional group in support of SFAA contentions of a State Action violation under the Equal Protection clause Fifth Amendment. A separate claim and position than the above headings. Only the Summary is re-printed.
AMICUS CURIAE BRIEF
Written and Submitted
By Robert H. Rotstein, Counsel of record
Bonnie I. Bogin, James Y. Leong, Kelly W. Kay
Summary of Argument
The USOC, an entity created by Federal Charter, takes the position that, pursuant to 36 U.S.C. § 380 Congress has granted the USOC an absolute monopoly over the word "olympic," including the right to discriminate among groups at will in connection with the use of the word -- even if the discrimination is based solely on a group's exercise of its First Amendment rights. In prohibiting SFAA from using the word "olympic" in connection with the SFAA's amateur athletic competition (which was to be entitled, "The Gay Olympic Games") while at the same time allowing other groups to use the word, the USOC has discriminated against SFAA in connection with petitioner's exercise of their fundamental First Amendment right to freedom of expression. This brief will show that; assuming arguendo that Congress did intend to grant the USOC the exclusive and blanket right to use the "word" "olympic" (and that the Constitution permitted Congress to do so), the USOC's discriminatory conduct in allowing some groups, but not petitioner's, to use the word "olympic" constitutes "state action" for the purposes of the Fifth Amendment.
This brief submitted is sixty-four (64) pages in length. No matter what anyone will submit, argue, prove or disprove, the SFAA case is lost. Another perfectly argued point will be pushed aside in support of the light of Olympizm. The high court should have worn their sunglasses so the light from the gods of olympus would not have blinded them.
After the Ruling
If you can believe this, I can appeal my case after the appeals court applies Supreme Court case law precedent against me. My last chance for the justice train is to file a Petition for Certiorari (again) with the Supreme Court to rule on one issue only and that is they were wrong in their prior decision in SFAA. My evidence record down in the district court is not relevant because the case is now so skewed that it pitches me against the Supreme Court's decision in SFAA. What to hell has that got to do with my case? Not a thing. See how well the Martians do it.
One last IDEA: September 1988, my last act in this perfect play I produced. I buy 200 paperback editions of Bantam Books copyrighted paperback product, Guinness Book of "OLYMPIC RECORDS" and I send it to 200 Members of Congress with a complaining letter.
Honorable House Member:
This week the Seoul Summer Games are scheduled. If you're a sports fan you want want to consult the "Guinness Book of Olympic Records" should you be interested in a copyrighted compilation of the data on past performance records of Olympic athletes.
As you can see from the attached the Olympic records of athletes are the copyrighted property of Bantam/Dell/Doubleday publishing group. This commercial enterprise has published the data every four years since at least 1964, coinciding with the Olympics.
As a Legislator do you find it fair that I cannot own or operate my corporation, Olympic Records, Inc. engaged in record (music) business, while all others use the word olympic and the name Olympic Records? I have expended in excess of $250,000 and six years to secure my rights when all others pay nothing for the exercise of the identical rights and privileges I am denied.
I always believed Congress was bigger than the Olympics or the International Olympic Committee and I will always believe the U.S. Constitution is superior to the Amateur Sports Act of 1978. With Respect for the Constitution.
End communications with courts or Congress
PART VIII to follow
Chapter 25
A Dissent from a Denial to Rehear the SFFA case by the full court (en banc).
The below is advocating the First Amendment and Trademark Act of 1946
The three judges' dissent said that the motion to rehear the case by the full nine judge court should be granted. Judge Alex Kozinski came to the Ninth Circuit by way of the Federal Claims Court, Washington D.C. where he was Chief Judge. His opinion below was joined by two esteemed jurists. His words are precise and he utters the famous words that warm my heart, "[I]t's unlike anything we have seen in our law before." A similar statement was made by my Supreme Court counselor, Michael H. Gottesman. "A law superior to anything that has ever existed in our country." My statement affirmed by him.
For the purposes of clarity, flow, and understanding many legal citations are omitted in the opinion. It need be understandable to the reader or it has no value. Any person or scholar can order a complete copy from the proper repository. I would also prejudicially add "His opinion as articulated should have been the U.S. Supreme Court 'opinion' in the SFAA case." It involves the first amendment as well as trademark law.
Circuit Judge ALEX KOZINSKI Opinion May 28th 1986
with Circuit Judges Harry Pregerson and Joseph Sneed, joining dissent.
Bio: [Judge Alex Kozinski (born July 23, 1950) is a judge on the United States Court of Appeals for the Ninth Circuit. Appointed by President Ronald Reagan on November 7, 1985, Kozinski has won supporters from the left and the right with his common-sense decisions and libertarian instinct. His writing is clear and often humorous, and has been featured in mainstream publications such as Forbes and Slate. He was born in Bucharest, Romania but his parents, both Holocaust survivors, brought him to America in 1962 (he was only 12). They settled in Los Feliz, California and his father, Moses, ran a small grocery store there. Kozinski attended John Marshall High School and UCLA. He received his J.D. from UCLA Law School in 1975 (he was one of the top students) and went on to clerk for then-Ninth Circuit Judge Anthony Kennedy and Chief Justice Warren Burger. Then he spent a few years in private practice before going to work in the White House counsel's office for then-President Ronald Reagan. Kozinski received a job as chief judge at the newly-formed Federal Claims Court. Then, at the age of 35, Reagan appointed him to the Ninth Circuit, making him the youngest federal appeals court judge in the country.] Thank you President Reagan. He is now Chief Judge of the 9th Circuit Court of Appeals.
The Dissent
I
This case was brought by the United States Olympic Committee, and others, under the Amateur Sports Act of 1978 (the Amateur Act), 36 U.S.C. §§ 371-396 (1982), to enjoin the use of the word "Olympic" by appellants, San Francisco Arts & Athletics (SFAA) in connection with an event to be known as the Gay Olympic Games. USOC is a private non-profit corporation chartered by Congress, 36 U.S.C. §§ 371, 377 (1982); SFAA is a non-profit corporation. The Gay Olympic Games SFAA intended to sponsor in 1982 (and again in 1986) were designed to combat homophobia and to work for the health and tolerance of gay and lesbian persons. Pet. Reh. 2.
A panel of this court upheld a permanent injunction issued after summary judgement had been granted USOC. International Olympic Committee v. San Francisco Arts & Athletics, 781 F.2d 733 (9th Circuit 1986). For the reasons stated below, I find the panel's reasoning squarely at odds with controlling Supreme Court authority. Moreover, the result reached threatens a potentially serious and widespread infringement of personal liberties. I therefore would vacate the panel's opinion and set the case for re-hearing en banc.
A.
As the panel interprets the Amateur Act, the USOC is given the exclusive right to use the word Olympic "for the purpose of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition," 36 U.S.C § 380, whether undertaken for a profit or non-profit purpose. The USOC may obtain in injunction against use of this term without showing a likelihood of confusion and without overcoming the defenses normally available in trademark infringement actions under the Lanham Act. 781 F.2d at 736. Interpreted in this fashion the Amateur Act represents a sweeping exercise of sovereign power, implicating principles of individual liberty protected by our Constitution. By passing the act, Congress extracted a word from the English language and gave it to a private party to use in connection with any commercial endeavor or event. This raises serious first amendment concerns that the panel failed to address or acknowledge.
The word olympic has a meaning unique within our language. It connotes open and intense competition among non-professionals athletes, usually involving the best and most accomplished contestants. Thus, we have Special Olympics, Junior Olympics, Police Olympics, even Canine Olympics, normally involving competition among best friends within the denoted category. I have great difficulty with the idea that Congress can deny all of us that word, and the ideas, it embodies, in connection with all public endeavors. As noted by Justice Harlan in Cohen v. California, 403 U.S. 15, 26 (1971), "we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process." The ideas embodied in the word Olympic can, or course, be expressed by other means, but only in a much clumsier fashion, with out the same nuance of meaning. Justice Harlan wrote in Cohen,
much linguistic expression serves a dual communicative
function: it conveys not only ideas capable of relatively precise,
detached explication, but otherwise inexpressible emotions as
well. In fact, words are often chosen as much for their emotive as
their cognitive force. We cannot sanction the view that the Constitution,
while solicitous of the cognitive content of individual speech, has little or
no regard for that emotive function which, practically speaking,
may often be the more important element of the overall message sought to be
communicated.
Id. at 26
In organizing the Gay Olympic Games, the SFAA sought to "create a more realistic image of homosexual men and women to move into the mainstreams in all societies and to provide more alternatives for homosexual men and women to move into the mainstreams of their respective societies." International Olympic Committee v. San Francisco Arts & Athletics, 291 U.S.P.Q. 982, 985 (N.D. Cal. 1982) aff'd mem., 707 F.2d 517 (9th Circuit 1983). The word Olympic was no doubt chosen to foster a wholesome, normal, image of homosexuals. Denying SFAA the use of the word thwarts that purpose. To say that the SFAA could have named it's event "The Best and Most Accomplished Amateur Gay Athletes Competition" no more answers the first amendment concerns here than to suggest that Paul Robert Cohen could have worn a jacket saying "I strongly Resent the Draft."
The Supreme Court has been extremely reluctant to approve restrictions against the use of particular words. See, Cohn v. California, 403 U.S. 15 (1971). In the rare case when the court has done so, it was after the closest scrutiny and subject to the most careful restrictions. By contrast, the panel here dismisses SFAA's constitutional argument, simply by noting that the word "Olympic" and it's associated symbols and slogans are essentially property. Such property rights can be protected without violating the first amendment. 781 F.2d at 7373 (citing Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 573-577 (1977). To say that the word Olympic is property begs the question. What appellants challenge is the power of Congress to privatize the word Olympic, rendering it unutterable by anyone else in connection with any product or public event, whether for profit or, as in this case, to promote a cause. The rights conferred on the USOC by the Amateur Act are materially different than traditional intellectual property rights where a careful balance is struck between the interests of the property owner and those of the public.
Trademarks/1, copyrights/2, and patents/3, are subject to a variety of statutory and common law defenses, and they reserve only those rights necessary to protect the owners economic interest.
/1 (case attributions limited)
Trademarks are recognized only upon a showing that the mark has been adopted and used in commerce, 15 U.S.C. § 1051 (1982). Subsequent users may raise a series of defenses under section 33(b) of the Lanham Act, such as fraud on the PTO, abandonment, fair use, misrepresentation of source, or violation of the antitrust laws, 15 U.S.C. § 1115 (1982). There are also equitable defenses such as estoppel by laches; acquiescence; and unclean hands. Most importantly, trademark rights can only exist in distinctive terms and devices. Similarly, there cannot be a trademark in a purely functional device. Distinctiveness is central to the status of the mark. A legitimate trademark will lose it's status if it becomes generic. Thus, trademark owners have an exclusive right to use the mark only to the extent necessary to safeguard the integrity of the product source.
/2 (case attributions omitted)
Copyrights are of limited duration, U.S. Const....., Art I, § 8; 17 U.S.C. § 302 (1982), and are subject to a number of defenses, most notably the defense of fair use. Copyright protection will not extend to the idea itself or to purely utilitarian objects.
/3 (case attributions omitted)
Patents are granted only for subject matter that is novel, useful, or non-obvious. 35 U.S.C. §§ 101-103 (1982). They are limited in time, U.S. Const....., Art I, § 8. They also are subject to a variety of legal and equitable defenses, including patent misuse, expiration of the statute of limitations, and inequitable conduct before the PTO. Zacchini, upon which the panel relied, is instructive. The Court there was careful to limit the relief afforded petitioner (the human cannonball) to assuring that he "reap(s) the reward of his endeavors." The Court twice noted that "petitioner does not seek to enjoin the broadcast of his performance; he simply wants to be paid for it. By and large rights in intellectual property are limited to uses that have been invented, created or developed by the owner. They are not a wholesale prohibition against all public uses but provide limited protection for that which "is the product (the owner's) own talent's and energy, the end result of much time, effort, and expense." So, limited rights in intellectual property are easily harmonized with the first amendment. However, when cut loose from their conceptual moorings, intellectual property rights can raise serious constitutional concerns. Here the Amateur Act's ironclad prohibition against every commercial or theatrical use of the word Olympic (unrestrained by need to show likelihood of confusion or to overcome Lanham Act defenses) stakes out an intellectual property right fiefdom quite unlike anything we have seen in our law before. By giving the USOC exclusive possession of the word, Congress has diminished the rights of everyone else, withdrawing from the public domain a term used by many and useful to more. If Congress has the power to grant a crown monopoly in the word Olympic, one wonders how many other words or concepts can be similarly enclosed, and the extent to which our public discourse can thereby be impoverished.
B.
My first amendment concerns are heightened by the way the USOC allegedly exercises it's stewardship over the word Olympic. According to the petition for rehearing "the facts submitted below establish that the USOC has openly permitted use of "Olympic" both by groups it directly supports, e.g. the Special Olympics, the Explorer Olympics, and the Junior Olympics, and by groups it has known to be using 'Olympic' that it has elected not to sue, such as the 'Int'l Police Olympics.' " Pet. Reh. 10.
Accepting SFAA's allegation, as we must, it seems that the USOC is using it's control over the term Olympic to promote the very image of homosexuals that SFAA seeks to combat: handicapped, juniors, police, Explorers, even dogs are allowed to carry the Olympic torch, but homosexuals are not. Troublesome as would be a total withdrawal of the term from public discourse, an exclusion that is invoked pursuant to a subjective assessment of the wholesomeness of the proposed speaker or the propriety of the proposed message is more troublesome still. Where the entity making the decision is private, unconstrained by principals of equal protection and due process, and entirely free of the discipline imposed by our political system, there are no safeguards whatsoever against the arbitrary exclusion of certain groups because they wish to communicate ideas some may find offensive. Under the panel's rationale, the result would have been the same if appellants were blacks rather than homosexuals, and their claim were based on racism rather than homophobia.
II
A. Once it is concluded that the first amendment is implicated by giving the USOC the word Olympic, the next inquiry must be whether doing so directly advances a governmental interest. If the Amateur Act prohibited only those uses likely to cause confusion or otherwise mislead the public, it would in all likely survive first amendment challenge. Friedman v. Rogers, 440 U.S. 1, 13-15 (1979). However, the panel reads the act as proscribing all unauthorized uses of the word Olympic, regardless of whether they would mislead the public, undermine USOC sponsored events or cause anyone harm whatsoever. The first amendment requires, at minimum, close scrutiny of the governmental interest served by such a broad prohibition. Because the case was dismissed short of trial, we can only speculate as to what governmental interest is advanced by giving USOC such sweeping rights in the word Olympic. As the panel, noted, "other courts have remarked on the need to insure the market value of licenses for the use Olympic symbols." Stop The Olympic Prison v. USOC; IOC v. SFAA; USOC v. International Body Builders. Apparently the Amateur Act serves as a type of subsidy to the USOC in lieu of direct financial support:The fundamental purpose of the [Amateur] Act was to safeguard
the USOC's ability to raise the financial resources that are a
critical component of America's capacity to send world-class
amateur athletes into international competition without the
massive government subsidies enjoyed by competitors from other nations.
If this is the only interest supporting the USOC's monopoly, I seriously doubt whether it would justify even a minor restriction on free speech. In words that seem to address this very issue, Justice Marshall noted earlier this term:
While the interference with appellant's speech is, concededly,
very slight, the State's justification -- the subsidization of another
speaker chosen by the State -- is insufficient to sustain even that
that minImum or burden. We have held that the State may use its
own resources for subsidization but that interest standing alone
cannot justify interference with the speech of others.
B. Even if the government's interest in subsidizing the USOC were deemed sufficient to abridge some of appellants' first amendment rights, we would still have to determine whether the broad monopoly granted by the Amateur Act "is not more extensive than is necessary to serve that interest." Again the scant record here makes that determination difficult, but the question is amenable to no simple answer. At the very least, it is necessary to consider whether USOC's commercial licenses could not be adequately protected by giving the USOC rights coextensive with those in the Lanham Act or by restricting it's control over use of the word Olympic in some other fashion. Or so, at least, do I read Supreme Court's uniform pronouncements in this area.
III
While I hesitate to second-guess the panel's interpretation of the Amateur Act, I respectfully suggest that its conclusion that the USOC need not prove confusion or overcome Lanham Act defenses is not inevitable. If, as I suggest, the interpretation the panel adopts raises serious constitutional concerns, it may be appropriate to resort to a narrowing construction of the statute. Because the panel failed to address what I see as the clear first amendment implications of its decision, it did not consider the possibility of giving the Amateur Act a less sweeping interpretation.IV
By raising these concerns I do not necessarily conclude that the Amateur Act is irreconcilably at odds with the first amendment. Indeed, on this barren record I find it difficult to reach any, but the most tentative conclusions about this highly unusual statute and it's effect on personal liberties. What I find most troubling, however, is the haste with which appellants are being ushered out of court. The panel appears to have overlooked that where first amendment defenses are raised "judgment as to whether the facts justify the use of the drastic power of injunction necessarily turns on subtle and controversial considerations and upon a delicate assessment of the particular situation in light of legal standards which are inescapably imprecise," Carroll v. Princess Anne, 393 U.S. 175, 183.
What appellants propose to do, after all, lies at the very heart of the first amendment: They wish to hold a public event to promote sociopolitical views some may find offensive. They claim that calling their event Gay Olympics is essential to the message the wish to convey. A long and unbroken line of Supreme Court cases stands for the proposition that "any prior restraint on expression comes to [court] with a heavy presumption against it's constitutional validity." Under this standard, prior restraints have been struck down even where adopted to protect important public or private interests. By contrast, the panel here approves a permanent injunction that significantly blunts rights to public expression without the slightest showing that the enjoined use would harm anyone.
Moreover, "[a]n order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-point objective permitted by constitutional mandate and the essential needs of the public order." Carroll, 393 U.S. at 183. I have much difficulty reconciling the blunderbuss injunction entered against SFAA with this admonition. With all due respect, the panel's offhand approval of this injunction, obtained as it was by summary judgment, simply does not measure up to the close appellate scrutiny due first amendment claims and defenses. Bose Corp. v. Consumers Union; Standard Oil v. California.
In sum, I believe that the petition for rehearing raised very serious arguments that deserve consideration and resolution by the court en banc. The panel fails to acknowledge the difficult first amendment issues presented, regrettably bypassing what I consider to be clear and applicable guidance from the Supreme Court. The opinion will therefore prove a troublesome precedent, undermining not only the right to free speech but also the laws protecting intellectual property, to the ultimate detriment of both. While not every error by a panel can be addressed by the full court, the important and novel constitutional issues raised by this case, the panel's failure to adequately address them and the likely adverse effect the opinion will have on personal liberties, all strongly mitigate in favor of rehearing the case en banc. I therefore respectfully dissent from the court's refusal to do so.
Alex Kozinski, Circuit Judge, 9th Circuit Court of Appeals joined by Harry Pregerson and Joseph T. Sneed III
Chapter 26 NOAB and HR 1988
100th Congress, First Session
The United States Olympic Check-Off Act
Introduced April 8, 1987
The United States Olympic Check-Off Act
Introduced April 8, 1987
It is a daily ritual to receive and read the Congressional Record, at minimum the contents table to see what may be forthcoming re the Amateur Sports Act and its revision, if any, and for any reason which may be pertinent to the lobby and/or my personal situation. This was like religion. It was a must do, or go to hell, kind of thing. Why it was so important I was to soon know. After months of finding nothing unusual, interesting or relevant I see mention of proposed measure re the USOC and it has to do with a "check off" box on the I.R.S. 1040 tax form that we all know and love so much. This new law is designated HR-1988, "The United States Olympic Check-Off Act." At the time of it's introduction there are 37 co-sponsors; I believe there were eventually 170 co-sponsors in the House.
I called the Clerk of the House inquiring about the new proposed law. The Clerk's Office told me about it and said it was considered "non-controversial" (legislation), which means "no notice", "no hearings", no nothing about it and it will become law automatically when the larger bill it is included in - passes. He said "it is non-controversial" and I said, "not anymore," and thanked him. Someone later suggested this idea was the brain child of William E. Simon, the new president of the USOC who's last job was Treasury Secretary of the United States. The Congress has long asserted that the USOC is not supposed to be a part of the federal government but that was yesterday when the turnip truck passed by, and today no one's looking, turnips are on sale, and who remembers. Blinded by the olympic light again. If no one knows, except a select few, then I must find a way to make it Public. A "registered lobbyist" sounds like a job important or at least someone to be suspicious about or ignored. So let's see if they hear a lobbyist rather than a lone litigant. I could obviously inform the lobby members as well as the thousands in my record as I have done before. That's just spreading bad news (the next edition of the "Olympic Record)," all the bad news that's fit to print. I'll wait on them. I need to figure who to tell. This is great; now you can give money to the USOC on your tax form so they can use the money to put you out of business using the word Olympic. And now raise money from your customers to help put you out of business. I am angry at these co-sponsors and fit to be tied down, again. It took two days for the "olympic vision" to appear. I have another IDEA. It's funny what happens when you "sleep" on something. Unconscious debriefing and collective results.
A lobbyist (seemingly) has rights that an individual person cannot assume. He has a license to lobby, he is required to report cash contributions, and report who she/he contacted in Congress the prior, quarterly, reporting period. It's almost a "license to speak." The word, "lobbyist" is maligned way more than it should be. Yes, special interest have lobbyist for their points, positions, and financial concerns but without my being registered and heading a group I would have NOT been taken seriously and simply dismissed as a crank.
The USOC is a non-profit federally chartered corporation. It seems to me that other non-profit associations and groups would benefit by knowing about this "uncontroversial bill" soon to become law with no one knowing about it until it's passed. You all "Remember the Alamo" well we "Remember the March of Dimes." What was the end result of the March of Dimes incident I know not but I was reporting what had been published and now to remind all non-profit associations, businesses, and organizations of it whether they heard the story or not.
I went to UC Riverside Library and located source books on the major non-profit groups. I sent a cover letter saying they should lobby for their own check-off box for many of their causes were far superior than a bunch of folks running around a track. I told them it was law unless they did something about it. All below have millions of times the resources I, or my lobby, could muster so it was up to them. I also assumed that they had lobbyist of their own. We contacted:
NATIONAL EDUCATION ASSO. COMMON CAUSE
1201 SIXTEENTH ST. 2030 M ST., NW
WASHINGTON, D.C. 20036 WASHINGTON, D.C. 20036
AMERICAN KIDNEY FUND AMERICAN RED CROSS
7345 WISCONSON AVE. 17 & D Streets, NW
BETHESDA, MD 20814 WASHINGTON, D.C. 20006
US COMMITTEE FOR UNICEF AMERICAN CIVIL LIBERTIES UNION
331 East 38TH ST. 132 West 43rd St.
NEW YORK, NY 10016 NEW YORK, NY 10036
PEOPLE FOR THE AMERICAN WAY UNITED WAY OF AMERICA
PO Box 96200 701 N. FAIRFAX ST.
WASHINGTON, D.C. 20090-6200 ALEXANDRIA, VA 22314-2044
AMERICAN HEART ASSO. AMERICAN CANCER SOCIETY
7320 GREENVILLE AVE. 1825 CONN. AVE., NW
DALLAS, TX 75231 WASHINGTON, D.C. 20009
AMERICAN CANCER SOCIETY M.D. FOUND. - NAT'L HEAD.
19 WEST 56TH ST. 5249 DUKE ST. - #109
NEW YORK, NY 10019 ALEXANDRIA, VA 22304
M.D. FOUNDATION -NYC Office MARCH of DIMES FOUND.
810 SEVENTH AVE. 1275 MAMARONECK AVE.
NEW YORK, NY 10019 WHITE PLAINS, NY 10501
NAT'L BUSINESS LEAGUE BOY SCOUTS OF AMERICA
4324 GEORGIA AVE. 499 SOUTH CAPITOL ST., SE
WASHINGTON, D.C. 20011 WASHINGTON, D.C. 20003
AMERICAN BUSINESS CONF COMMERCIAL LAW LEAGUE
1730 K ST. 1155 15TH ST., NW - #400
WASHINGTON, D.C. 20006 WASHINGTON, D.C. 20005
NATIONAL RETAIL MERCHANTS AMERICAN ADVERTISING FED.
1000 CONN. AVE., NW 1400 K ST., NW - #1000
WASHINGTON, D.C. 20036 WASH., D.C. 20005
AMERICAN HELLENIC INSTITUTE AMERICAN HOTEL & MOTEL
1730 K ST., #319 888 SEVENTH AVE.
WASHINGTON, D.C. 20006 NEW YORK, NY 10019
AMERICAN INSURANCE ASSO. AMERICAN LAND TITLE ASSO.
85 JOHN ST. 1828 L ST., NW
NEW YORK, NY 10038 WASHINGTON, D.C. 20036
AMERICAN LIBRARY ASSO. AMERICAN MEDICAL ASSO.
50 E. HURON ST. 535 N. DEARBORN ST.
CHICAGO, IL 60611 CHICAGO, IL 60610
AMERICAN NEWSPAPER PUBL. ASSO. NAT'L ASSO. OF MANU.
BOX 17407 - Dulles Int'l. Airport 331 PENNSYLVANIA AVE.
WASHINGTON, D.C. 20041 WASHINGTON, D.C. 20005
NATIONAL ASSO. OF REALTORS ASSO. OF AMERICAN PUBLS.
777 14TH ST., NW 2005 MASS. AVE., NW
WASHINGTON, D.C. 20005 WASHINGTON, D.C. 20036
NATIONAL NEWSPAPER ASSO. U.S. LEAGUE OF SAVINGS INST
1627 K ST., NW - #400 1709 NEW YORK AVE., NW
WASHINGTON, D.C. 20006 WASHINGTON, D.C. 20006
NAT'L COUNCIL OF SAVINGS INSTS. NAT'L RESTAURANT ASSO.
1101 15TH ST., NW - 4TH FLOOR 1700 PENNSYLVANIA AVE.
WASHINGTON, D.C. 20005 WASHINGTON, D.C. 20006
NATIONAL SMALL BZ ASSO. AMERICAN OPTOMETRIC
1155 15TH ST., NW 600 MARYLAND AVE., SW
WASHINGTON, D.C. 20005 WASHINGTON, D.C. 20024
WASHINGTON ST PUBLIC LANDS AMERICAN LIBRARY ASSO
PO BOX 16321 110 MARYLAND AVE., NE
SEATTLE, WA 98116 BOX 54 - WASH., D.C. 20002
NAT'L. FED. OF INDEPENDENT BZS. AMERICAN RETAIL FED.
600 MARYLAND AVE., SW #700 1616 H ST., NW
WASHINGTON, D.C. 20024 WASHINGTON, D.C. 20006
NATIONAL PUBLIC RADIO AMERICAN FED. OF TEACHERS
2025 M ST., NW 555 NEW JERSEY AVE., NW
WASHINGTON, D.C. 20036 WASHINGTON, D.C. 20001
CONSUMERS UNION OF THE US NAT'L ORG. FOR WOMEN
2001 S Street, NW #520 1401 NEW YORK AVE., #800
WASHINGTON, D.C. 20009 WASHINGTON, D.C. 20005
NAT'L. TOUR ASSOCIATION AMERICAN Bz FOR INT'L.
546 E. MAIN ST. 1919 PENNSYLVANIA AVE., NW
LEXINGTON, KY 40508 WASHINGTON, D.C. 20006
ASSN. FOR REGULATORY REFORM NAT'L. ASSN. OF INS. BROKERS
10506 CAVALCADE ST. 1401 NEW YORK AVE., NW
GREAT FALLS, VA 22066 WASHINGTON, D.C. 20005
NAT'L. TAX LIMITATION COMM. NATL. ASSN. OF PUBLIC TV
919 PRINCE ST. 1818 N Street, NW - #410
ALEXANDRIA, VA 22314 WASHINGTON, D.C. 20036
NATL. CABLE TV ASSOCIATION AMERICAN BANKERS ASSO
1724 MASSACHUSETTS AVE., NW 1120 CONNECTICUT AVE., NW
WASHINGTON, D.C. 20036 WASHINGTON, D.C. 20036
NATL. FEDERATION OF FED. EMPS. NATL. MARINE MANUF.
1016 16TH ST., NW 2550 M Street, NW #800
WASHINGTON, D.C. 20036 WASHINGTON, D.C. 20037
JOURNAL OF COMMERCE AMERICAN FAIR TRADE COUN
1133 15TH Street, NW - #1100 900 MINNESOTA ST.
WASHINGTON, D.C. 20005 SAN FRANCISCO, CA 94107
ASSO. GENERAL CONTRACTORS CONCERNED WOMEN FOR A.
1957 E Street, NW 122 C Street, NW - #800
WASHINGTON, D.C. 20006 WASHINGTON, D.C. 20001
NATL. BUSINESS AIRCRAFT ASSN. MECHANICAL CONTRACTORS
1300 19TH ST., NW 5410 GROSVENOR LANE
WASHINGTON, D.C. 20036 BETHESDA, MD 20814
NATL. BICYCLE DEALERS ASSN. OF RETAIL DRUGGISTS
129 CORBEL, #201 205 DAINGERFELD RD.
COSTA MESA, CA 92627 ALEXANDRIA, VA 22314
NATL. SO. OF PUBLIC ACCNTS RUBBER MANU ASSN.
1010 N. FAIRFAX ST. 1400 K ST.
ALEXANDRIA, VA 22314 WASHINGTON, D.C. 20005
NATL. TOUR ASSOCIATION, INC. AMERICANS FOR TAX REFORM
1025 THOMAS JEFFERSON ST., #700 2300 N Street, NW
WASHINGTON, D.C. 20007 WASHINGTON, D.C. 20037
Thank God again for Libraries. Some said the GAO estimated $25-30 million a year from this check-off box financing device. That's over $500,000,000 in lost revenue since the bill died and counting. I never saw that check-off box on my 1040 return and have no idea who did what. I later contacted each co-sponsor that signed on to that legislation. That's not a letter I can locate and I'm sure it was censored.
Chapter 27
San Francisco Arts & Athletics v. IOC/ USOC
Certiorari accepted by Supreme Court
Martian Rules of Law & Procedure
The Wallaby Court
Certiorari accepted by Supreme Court
Martian Rules of Law & Procedure
The Wallaby Court
Why did the Supreme Court take the case? Were they bored with everyday life and death issues; were they enamored by Olympism?; did they not like Circuit Judge Kozinski's (w/2 other Judges) dissenting opinions in the same circuit; were they here to strike a blow for foreign entities usurping the U.S. Constitution and American rights (no that wasn't it); but that's exactly what they did. Now the high court will hear oral arguments about why there should not be allowed a "Gay Olympic Games." Dr. Waddell is now dying of complications from Aids. Truly the case of champions. Here's where the Martians take over. We can't speak or understand Martian but the Supreme Court can. And it can make new law, never before seen or heard of, in the history of our country, if they feel like it or when they are steered into it. Enamored by the Olympic light and there was no homophobia present.
I tried to "join" SFAA and Mr. Waddell and spent no small sum. Mr. Perkins, my appellate attorney, petitioned the high court for certiorari to join SFAA before judgement (in my case) in the Ninth Circuit. I tried to go up there and stand beside Dr. Waddell to expose my evidence and record SHOWING THE THOUSANDS of Olympic uses; proving the word Olympic already belongs to everyone (the Public) in this country and not to the USOC and especially not to the IOC who borrowed it from Greek history. But the Court denied two petitions for cert. as premature, which they were, and the Court went about disposing of Dr. Waddell, kind of makes you proud. Martian law says you need no facts, no evidence, no argument, no precedent, no nothing because we, the High Martian court, already are smart enough, like Solomon I suspect, to figure this one out. Well my dear old Cast of Nine - you are were duped. Being duped has far reaching implications. By virtue of this calatimus decision, my action will not survive the lower appeals court, making certain that all evidence and facts which might make your opinion seem a little biased, uninformed, and ridiculous be forever buried in a federal repository somewhere, or dumpster. Perfect example of the Martian system of justice. See no facts, hear no truth, and follow no precedent.
We were in a small way able join the SFAA case by submitting a 'Friend of the Court' brief with the A.A.U., known as an Amicus Curiae in support of the SFAA case.
AMICUS CURIAE BRIEF
Briefed and Submitted
By Randall G. Wick, Counsel of Record
The National Association of Olympic Businesses [NAOB] agrees to join the Amateur Athletic Association [AAU], the Center for Constitutional Rights, and others on a Friend of the Court brief known as an AMICUS submission to the Supreme Court in support of the SFAA case and their first amendment and trademark positions. A separate group will submit and argue the Fifth Amendment concerns.
In spite of my case being denied access to the Supreme Court (one to expedite consideration and the other to "Join" SFAA) there is a way to get limited arguments and issues before the Court. The ACLU pulled this one together and it was a fine accomplishment, notwithstanding it being ignored.
Here are the Headings for the points argued by Mr. Randall G. Wick, counsel of record.
Each Heading tells it like it is.
1. IN ENACTING THE AMATEUR SPORTS ACT OF 1978 CONGRESS INTENDED TO PROVIDE PROTECTION FOR THE MARK "OLYMPIC" COMMENSURATE WITH THE PROTECTION PROVIDED TO OTHER FEDERALLY CHARTERED ORGANIZATIONS WITHIN THE PARAMETERS OF THE LANHAM ACT.
A. IN PASSING THE INITIAL UNITED STATES OLYMPIC ASSOCIATION INCORPORATION ACT OF 1950, CONGRESS INTENDED TO PREVENT ONLY FALSE DESIGNATIONS AND FRAUD IN THE USE OF USOC DESIGNATIONS.
B. THE SUI GENERIS PROTECTION WITH RELATED REMEDIES IN EARLY VERSIONS OF THE AMATEUR SPORTS ACT OF 1978 WERE DELETED FROM THE FINAL VERSION OF THE ACT.
C. THE COMMITTEE REPORTS, AND LETTERS DEMONSTRATE THE SPECIFIC INTENT OF CONGRESS TO PROHIBIT THE USE OF THE USOC DESIGNATIONS ONLY WHERE THEY WERE "TENDING TO CAUSE CONFUSION" AS PROSCRIBED BY THE LANHAM ACT.
D. COMMENTS MADE BY MEMBERS OF CONGRESS MADE CONTEMPORANEOUSLY WITH THE PASSAGE OF THE AMATEUR SPORTS ACT OF 1978 EVIDENCE A CONGRESSIONAL UNDERSTANDING THAT THE ACT'S AMBIGUOUS LANGUAGE BE CONSTRUCTED PURSUANT TO THE BOUNDARIES OF OTHER FEDERALLY CHARTED ORGANIZATIONS AND THE LANHAM ACT.
Mr. Wick gets an A+ for this filing. These headings are absolutely correct in every detail. My Congressional contacts made these same statements, over, and over, and over again. "Don't worry, Mr. LaBranche." Below is an additional group in support of SFAA contentions of a State Action violation under the Equal Protection clause Fifth Amendment. A separate claim and position than the above headings. Only the Summary is re-printed.
AMICUS CURIAE BRIEF
Written and Submitted
By Robert H. Rotstein, Counsel of record
Bonnie I. Bogin, James Y. Leong, Kelly W. Kay
Summary of Argument
The USOC, an entity created by Federal Charter, takes the position that, pursuant to 36 U.S.C. § 380 Congress has granted the USOC an absolute monopoly over the word "olympic," including the right to discriminate among groups at will in connection with the use of the word -- even if the discrimination is based solely on a group's exercise of its First Amendment rights. In prohibiting SFAA from using the word "olympic" in connection with the SFAA's amateur athletic competition (which was to be entitled, "The Gay Olympic Games") while at the same time allowing other groups to use the word, the USOC has discriminated against SFAA in connection with petitioner's exercise of their fundamental First Amendment right to freedom of expression. This brief will show that; assuming arguendo that Congress did intend to grant the USOC the exclusive and blanket right to use the "word" "olympic" (and that the Constitution permitted Congress to do so), the USOC's discriminatory conduct in allowing some groups, but not petitioner's, to use the word "olympic" constitutes "state action" for the purposes of the Fifth Amendment.
This brief submitted is sixty-four (64) pages in length. No matter what anyone will submit, argue, prove or disprove, the SFAA case is lost. Another perfectly argued point will be pushed aside in support of the light of Olympizm. The high court should have worn their sunglasses so the light from the gods of olympus would not have blinded them.
After the Ruling
If you can believe this, I can appeal my case after the appeals court applies Supreme Court case law precedent against me. My last chance for the justice train is to file a Petition for Certiorari (again) with the Supreme Court to rule on one issue only and that is they were wrong in their prior decision in SFAA. My evidence record down in the district court is not relevant because the case is now so skewed that it pitches me against the Supreme Court's decision in SFAA. What to hell has that got to do with my case? Not a thing. See how well the Martians do it.
One last IDEA: September 1988, my last act in this perfect play I produced. I buy 200 paperback editions of Bantam Books copyrighted paperback product, Guinness Book of "OLYMPIC RECORDS" and I send it to 200 Members of Congress with a complaining letter.
Honorable House Member:
This week the Seoul Summer Games are scheduled. If you're a sports fan you want want to consult the "Guinness Book of Olympic Records" should you be interested in a copyrighted compilation of the data on past performance records of Olympic athletes.
As you can see from the attached the Olympic records of athletes are the copyrighted property of Bantam/Dell/Doubleday publishing group. This commercial enterprise has published the data every four years since at least 1964, coinciding with the Olympics.
As a Legislator do you find it fair that I cannot own or operate my corporation, Olympic Records, Inc. engaged in record (music) business, while all others use the word olympic and the name Olympic Records? I have expended in excess of $250,000 and six years to secure my rights when all others pay nothing for the exercise of the identical rights and privileges I am denied.
I always believed Congress was bigger than the Olympics or the International Olympic Committee and I will always believe the U.S. Constitution is superior to the Amateur Sports Act of 1978. With Respect for the Constitution.
End communications with courts or Congress
PART VIII to follow
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