Whipped and Gagged

Is government spending obscene? Well, it paid to train S&M filmmakers.

Peter Scheer, executive director of the California First Amendment Coalition, says the government might be straying into a legal gray area. "I think a fair reading of Supreme Court decisions in this area would support the view that government can't deny all funding to companies while allowing it to others, because the discrimination is based on the expressive content that the companies produce," he said.

Ashutosh Bhagwat, professor of constitutional law at UC Hastings College of the Law, was less certain. "The true answer is: The law in this area is a mess," he said. "The government has some discretion in choosing what speech it wants to fund, but not always. There's a potential constitutional issue there."

Calvin Massey, also a Hastings professor of constitutional law, says that's wrong: Constitutionally speaking, the government may refuse training for pornographers if it so pleases. "My reaction is that there's nothing unconstitutional about refusing to provide governmental subsidies in the pornography industry," he said. "They're still permitted to engage in that expression. They just don't get a governmental subsidy. The government is free to make choices about how it spends its money. Simply because it chooses not to subsidize expression, or training for expression, doesn't mean [government officials have] done anything that's not within their rights."

Indeed, in 1998's National Endowment for the Arts v. Finley, the U.S. Supreme Court ruled that Congress enjoys wide latitude when setting spending priorities that may affect certain forms of expression. And in 1990's Rust v. Sullivan, the Supreme Court ruled that the First Amendment was not violated by a U.S. regulation that said family planning clinics could receive federal money as long as they didn't discuss abortion. "The court said, 'The government is free to subsidize speech it likes, and free to refuse to subsidize speech with which it disagrees,'" Massey said.

Kink.com's Daniel Riedel says the company will fight to keep its government subsidy. He plans to meet with BAVC managers to help them prepare a presentation for the next ETP meeting requesting a repeal of the decision to cut off its funding for training.

I can't say with certainty whether Riedel and Kink will prevail. But if California's economy is to recover, it will need skilled entrepreneurial talent — a quality Kink.com clearly possesses in spades. The company has passed itself off in articles in The New York Times Magazine, Salon, 7x7, and other publications as a hip, if esoteric, high-tech media startup. Yet its business plan is more medieval than modern, consisting, as it does, of giving people money if they'll agree to being on camera while being stripped, bound, impaled, beaten, and shocked.

With marketing mojo like that, I expect Kink.com to have its government subsidy back in no time.

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