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.

Filed Under: domain name, first amendment, free speech, john gibson, texas, workers comp

Texas Law Bars Workers Comp Lawyers From Saying They're From Texas

from the workers-comp-lawyer-in-that-big-state-in-the-south dept

Ima Fish alerts us to yet another bizarre state law against free speech. John Gibson, a lawyer from Lubbock, Texas, who is an expert in workers' compensation, is suing the state after it sent him a cease and desist letter for having a blog at TexasWorkersCompLaw.com. It turns out that Texas has a law on the books that forbids workers' comp lawyers from saying they're from Texas. Basically, the law forbids the use of "workers comp" and "Texas" together. Gibson, reasonably, finds the whole thing absolutely ridiculous:

Gibson says the words are not the intellectual property of the state, but are in the public domain, that no governmental interest is served by regulating them, and that forbidding their use is an impermissible restraint on free speech.

"For instance, under the terms of the regulation, a physician or medical clinic would be prohibited from advertising that they accept workers' compensation patients in Texas. Any attorney who was board certified would also be strictly prohibited from using the phrase 'Board Certified in Workers' Compensation Law by the Texas Board of Legal Specialization,' which is the accepted manner and form for disclosing Board Certification in Texas," the complaint states. "These and other unnecessary restrictions on advertising are the result of § 419.002, without serving any governmental interest."

We've seen similar -- if somewhat less egregious -- attempts by states to regulate lawyers' speech, usually under rules designed to limit how lawyers can advertise their services. A few years ago, there were issues about the legality of some law blogs in NY and Kentucky, due to overly restrictive laws. But this particular rule concerning workers' comp attorneys goes way beyond that. It really just seems to be designed as an attack on workers' comp lawyers. It makes you wonder just who was behind getting it passed in the first place.

Filed Under: free speech, lawyers, texas, workers comp