be dispelled above), then the Examiner could simply look at the relevant marketplace–instead of the marketplace as a whole.
This approach is long-embraced in Trademark Law. See In re Hershey, 6 USPQ2d 1470 ("to determine whether a designation is properly refused as scandalous, the mark must be considered in the context of the marketplace as applied to the goods or services described in the application"). And, this approach is in line with other forms of regulation of expression. For example, in Ginsburg v. New York, the United States Supreme Court affirmed the conviction of a shopkeeper who sold pornography to a child.[1] However, this case embraced the notion that the marketplace in general (including children) could tolerate a bar on certain types of expression, while the marketplace consisting only of adults would not tolerate such restrictions.[2] This very same perspective was embraced by Reno v. ACLU.
- We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.
With this in mind, if the Examiner is uncomfortable determining that we have, as a nation, embraced "fuck," then the Examiner may narrow the relevant marketplace to either the internet, or to the adult internet.
- 1.The internet community tolerates "Fuck" more than other segments of society.
In the alternative, if the Examiner would like to narrow the study from America in
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