Man Has Made First Amendment Challenge in Domain Name Dispute

LegalNewsline is reporting that The U.S. Court of Appeals for the Fifth Circuit has sent back to district court a Texas attorney’s constitutional challenge to the State of Texas’ attempt to deny him use of his website’s domain name.

John Gibson maintains a website under the domain name “TexasWorkersCompLaw.com.” In February 2011, Gibson received a cease and desist letter from the Texas Department of Insurance, Department of Workers Compensation, which alleged that his use of the words “Texas” and “Workers’ Comp” in the domain name of his website violated Sec. 419.002 of the Texas Labor Code.

The Court of Appeals agreed with the district court and affirmed the dismissal of the Fifth and Fourteenth Amendment claims. However, it found some merit in Gibson’s First Amendment challenge.

“The United States Supreme Court has recognized that commercial speech is protected by the First Amendment… However, the Constitution… accords a lesser protection to commercial speech than to other constitutionally guaranteed expression,” wrote Judge Edith Brown Clement in the Fifth Circuit’s “as-applied” analysis.

Gibson argued that his website did more than just propose a commercial transaction and thus should have more than the protection afforded commercial speech, and the Court agreed that it might. But, the Court said, “the domain name may nevertheless be considered commercial speech if“ it is an advertisement of some form, it refers to a specific product, and the speaker has an economic motivation for the speech.”

Because the issue of whether a domain name is commercial speech or “a more vigorously protected form of speech” is a new issue, the Court wrote, “This is an issue we need not reach or decide in this appeal without a record of all of the surrounding facts and circumstances involving the website’s domain name.”

You can read the entire article here

@AndrewHazen

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