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Wednesday, April 1, 2020

Fifth Circuit: Man has made First Amendment challenge in domain name dispute

By Nathan Bass | Nov 6, 2012


NEW ORLEANS (Legal Newsline) - 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 "" 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 statute states in relevant part:

"(a) Except as authorized by law, a person, in connection with any impersonation, advertisement, solicitation, business name, business activity, document, product, or service made or offered by the person regarding workers' compensation coverage or benefits, may not knowingly use or cause to be used:

(2) any term using both 'Texas' and 'Workers' Compensation' or any term using both 'Texas' and 'Workers' Comp;'"

The letter from the DWC requested a response and Gibson responded by filing a suit in the United States District Court for the Northern District of Texas.

Gibson alleged that the statute violates the First Amendment's guarantee of freedom of speech, the Fourteenth Amendment's guarantees of equal protection and due process, and the Fifth Amendment's prohibition on taking.

The district court dismissed the Fifth and Fourteenth Amendment challenges for failure to state a claim.

His First Amendment claim had two parts, an "as-applied" challenge and a "facial" challenge. The district court dismissed his "as-applied" claim for failure to state a claim as well, and it chose not to take up his "facial" claim. Gibson appealed.

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."

The Court went on to say that even if the domain name was found to be purely commercial speech that "Gibson has nevertheless stated a claim under the First Amendment." Clement wrote "the district court... erred by basing its decision on the legislative record without the benefit of briefing on this issue."

"Because Texas has made no serious attempt to justify this regulation as narrowly tailored to a substantial state interest, the district court's order dismissing Gibson's as-applied challenge was in error, and this case is remanded to allow Texas the opportunity to develop additional factual findings to support the statute's constitutionality."

Like the district court, the Court of Appeals chose not to take up the issue of the "facial" validity of the statute "because courts should not anticipate a question of constitutional law in advance of the necessity of deciding it."

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