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Fifth Circuit Says First Amendment May Protect Domain Names

Commentary First Amendment
Gibson v. Texas Dep’t of Ins. – Div. of Workers’ Comp. By Michael Hoven – Edited by Daniella Adler Gibson v. Texas Dep’t of Ins. – Div. of Workers’ Comp., No. 11-11136 (5th Cir. Oct. 30, 2012) Slip Opinion The United States Court of Appeals for the Fifth Circuit affirmed in part and reversed in part the Northern District of Texas, which had dismissed John Gibson’s claim that a Texas law barring him from using the words “Texas” and “workers’ compensation” or “workers’ comp.” in his domain name violated the First, Fifth, and Fourteenth Amendments. The Fifth Circuit held that appellant had successfully stated a claim under the First Amendment, remanded the case for further review of that claim, and affirmed the dismissal of the Fifth and Fourteenth Amendment claims. In so holding, the court did not decide whether appellant’s speech was commercial or noncommercial. Instead, the court found that his speech warranted First Amendment review even if commercial, and explicitly reserved appellant’s right to further develop the argument that his speech was “ordinary, communicative speech.” Gibson, No. 11-11136 at 7. The Wall Street Journal Law Blog provides an overview of the case. JD Supra agrees with the decision and speculates that the Texas Department of Insurance is unlikely to win the case. Techdirt notes that this decision, which opens the door to giving domain names First Amendment protection, conflicts  with the federal government’s history of seizing domain names. Gibson, a plaintiff’s attorney specializing in workers’ compensation law, ran a website with the domain name “” In February 2011, he received a cease-and-desist letter informing him that his domain name violated a Texas regulation that prohibited the combination of the words “Texas” and “workers’ compensation” or “workers’ comp.” in connection with any business or advertisement. Gibson responded by filing suit, alleging a variety of constitutional violations, all of which were dismissed by the district court. The Fifth Circuit rejected appellant Gibson’s arguments that the statute amounted to content discrimination and prior restraint. Nonetheless, the court found that his speech, even if commercial, met the requirements for protection set forth by the Supreme Court in Central Hudson because (1) appellant’s speech was not “inherently misleading” and (2) Texas had not shown that the statute was “narrowly tailored to a substantial state interest.” Gibson, No. 11-11136 at 9, 10. The court contrasted Gibson’s domain name with domain names that incorporated a trademarked term and thus could be held to be inherently deceptive. Judge Reavley concurred in the judgment only. Judge Reavley, in a brief opinion, faulted the district court’s interpretation of the statute and believed the lower court erred when it “read deception into the statutory language.” Id. at 16 (Reavley, J., concurring). Further, Judge Reavley indicated his doubt that Gibson’s domain name could be construed as “misleading.” Id. The Fifth Circuit’s decision affirms that a domain name can be expressive speech that deserves full First Amendment protection. At minimum, the decision signals lower courts to require the government to better show a “substantial state interest” before finding that a domain name is regulable commercial speech.