Is a Website's Name Protected Speech?

By Deanne Katz, Esq. on November 01, 2012 | Last updated on March 21, 2019

The question of whether a website name can ever be considered protected speech was raised by the Fifth Circuit Court of Appeals in Texas, but it wasn't answered.

The issue started when Texas attorney, John Gibson, bought the domain for his firm. The state demanded that he give up the name which they claim violates state law on deceptive practices. Rather than submit, Gibson filed suit.

His suit was dismissed by a federal court claiming that the law related to commercial speech which is not as heavily protected. But Gibson appealed and received a much more interesting ruling.

The statute at issue prohibited lawyers pairing the words 'Texas' and 'workers' comp.' in relation to their legal practice, reports The Wall Street Journal Law Blog. But Gibson claimed the law violates his freedom of speech.

The state supports the law which it argues prevents deceptive claims from an attorney.

On Tuesday the appellate court ruled there's no history to indicate that the speech prohibited by the statute is inherently deceptive. Based on that, the case was sent back for the lower court to determine whether the law infringes freedom of speech.

While freedom of speech is a broad right contained in the First Amendment, it is not without boundaries. Statutes can limit speech so long as the limitation is sufficiently narrow, not based on message, and necessary to fulfill a government interest.

So far, it appears the court has rejected the idea that the law is as narrowly tailored as it could be.

The court effectively dismissed the argument that the language at issue is inherently deceptive. To make their case, government officials will have to show that it does have some actual impact.

The fact that the speech is a domain name rather than a piece of prose or advertising may make a difference in the new hearing. For now it's still an open question.

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