Yes, A Domain Name Can Be Protected By The First Amendment
from the pay-attention... dept
A year and a half ago, we wrote about a lawsuit from a lawyer in Texas, John Gibson, who is an expert in workers’ comp issues in the state. He — quite reasonably — set up a blog at the URL TexasWorkersCompLaw.com. Shouldn’t be a big deal, right? Wrong. It seems that Texas has a law that you can’t use the words “Texas” and “Workers’ Comp” together. Seriously. The law explicitly says that anyone advertising Texas Workers’ Comp law help “may not knowingly use or cause to be used… any term using both ‘Texas’ and ‘Workers’ Compensation’ or any term using both ‘Texas’ and ‘Workers’ Comp’;”
After he received a cease & desist letter, he sued, claiming the law was a First Amendment violation. We had missed the news that the district court had dismissed the case, but that doesn’t matter now, since the appeals court has brought the case right back (hat tip to Paul Keating for the news). The district court’s dismissal was based on the rather simplistic analysis that the domain was commercial speech. The appeals court, however, feels there’s much more worth looking at here, noting that commercial speech is still protected by the first amendment.
As with many new issues involving the Internet, the proper method of analysis to determine whether a domain name is commercial speech or a more vigorously protected form of speech is res nova. A domain name, which in itself could qualify as ordinary communicative speech, might qualify as commercial speech if the website itself is used almost exclusively for commercial purposes.
While this case is interesting in its own right, the fact that the court acknowledges that domains themselves are a form of speech certainly raises significant questions about the Constitutionality of the federal government seizing domain names — and arguing that there are no First Amendment issues raised, since they’re not pulling down the websites behind them. The domains themselves are a form of speech and the government is seizing them with no notice or adversarial hearing.