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The Manhattan paralegal whose fight with the New York secretary of state legitimized use of the word “queer” in a title of incorporation is continuing his battle against the statute at the heart of the dispute. Christopher Barton Benecke of Greenwich Village has declined to withdraw his challenge to � 301 of the Not-for-Profit Corporation Law, which empowers the government to restrict the use of language it deems obscene or intended to ridicule. Although the state has backed down and will allow him to incorporate his advocacy group under the name “Queer Awareness,” Benecke said in court papers filed Wednesday that the overarching issue he raised — free speech — remains unresolved by the state’s decision. New York’s position is that its statute is sound, but that in its opinion the word “queer” is now part of the mainstream lexicon, and is therefore acceptable. “The idea that one may say anything that one wants as long as it is mainstream is a slap in the face to the First Amendment,” Benecke said. “Future organizations who seek to incorporate should not have to choose names from what is deemed mainstream.” Benecke’s case began when he sought an appropriate name for a group representing people like himself, who do not fall into a single sexual category such as gay, lesbian, bisexual or transgender. Benecke, who uses all those terms to describe his sexuality, figured “queer” was the most accurate and comprehensive adjective. But the Department of State invoked �301 to deny his application to incorporate under “Queer Awareness.” It said the word was too offensive and pejorative. Recently, the Department of State reconsidered in the face of considerable evidence that the word “queer” has evolved to the point where it is neither indecent nor obscene, and in fact is now commonly used as a self-descriptive term by non-heterosexuals. But Benecke, a New York University graduate student and paralegal with Levy & Halperin, contends the battle is only half over, and is resisting the attorney general’s attempt to have his suit dismissed as moot. As it now stands, the statute allows the secretary of state to deny a certificate of incorporation featuring a name that “shall be indecent or obscene or shall ridicule or degrade any person, group, belief, business, agency of government or indicate any unlawful activity.” Attorney Keith Halperin, who will represent Benecke at oral argument next week, argues that � 301 is facially unconstitutional “in that it dictates content-based and viewpoint-based restrictions on speech, and is both overbroad in its reach and vague in its meaning.” The state maintains that the statute does not restrict speech per se. Rather, it contends, the statute gives New York some measure of control over the use of its imprimatur. The state argues that the registry of corporations constitutes a non-public forum, as opposed to a public forum protected by the First Amendment.

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