Posted Jan 01, 2013 09:49 am CST
Lubbock, Texas, lawyer John Gibson had a simple idea: Create a blog about the state’s workers’ compensation law. Luckily, “texasworkerscomplaw.com” was available, so he grabbed it. Gibson then was hit with a cease-and-desist order from the Texas Department of Insurance, which informed him that his blog violated a state law governing the use of the department’s name and purview. The state threatened to fine him $5,000 per violation per day if he continued to use the words Texas and workers and compensation in any order in any marketing or promotional efforts.
Gibson sued, claiming the state was violating his First, Fifth and 14th amendment rights. He also argued that his blog was mainly informational.
Last October, the 5th U.S. Circuit Court of Appeals at New Orleans agreed with Gibson, holding that “Texas made no serious attempt to justify this regulation as narrowly tailored to a substantial state interest.”
The court noted that the law regarding the type of protection afforded domain names is in its infancy. “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,” Circuit Judge Edith Brown Clement wrote for the court. “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.”
Gibson’s lawyer, Robert Hogan, says the case has potential to impact other blawggers. “There are broader issues concerning what degree of First Amendment protection applies to lawyers’ blogs because there’s no clear delineation from any court of appeals as to whether lawyers’ blogs should be treated as commercial speech and get a reduced degree of First Amendment protection, or whether they deserve a higher degree of protection because of their inherent noncommercial nature.”