The Court of Appeals for the Fifth Circuit decided that a domain name may be protected speech under the First Amendment in an opinion released October of 2012 in the Texas case Gibson v. Texas Dept. of Insurance – Division of Worker’s Compensation. 1

In February of 2011, John Gibson, a worker’s compensation lawyer in Texas, received a cease and desist letter from the Texas Department of Insurance, Division of Worker’s Compensation, to stop his use of the domain name “texasworkerscomplaw.com.”  The department claimed that Gibson’s domain name violated a Texas statute stating that one may not advertise using the word “Texas” in combination with “Worker’s Compensation” or “Worker’s Comp.” 

In response, Gibson filed a lawsuit against the Department of Insurance arguing, among other things, that his use of the domain name constituted free speech as protected by the First Amendment.  After the trial court dismissed Gibson’s claims, he appealed his case to the United States Court of Appeals for the Fifth Circuit.

The Fifth Circuit’s decision began by discussing the differences between non-commercial and commercial speech.  Commercial speech is generally speech that is made with the intent of making a profit; such as placing an ad in the newspaper. A domain name is considered to be “commercial speech” if the associated webpage is used almost exclusively for commercial purposes. In this case, the court stated that if a domain name is used for commercial purposes and is “false, deceptive, or misleading,” it would not be entitled to First Amendment protection.  A common example of this is when use of a domain name constitutes trademark infringement.  Therefore, if Gibson could prove that his use of the domain name was non-infringing and non-deceptive commercial speech or non-commercial speech, he would have a valid claim under the First Amendment.   In this case, the court was unsure whether “texasworkerscomplaw.com” was deceptive or misleading because all of the words in the domain name were generic and no there was no evidence proving that the public found the domain name to be deceptive.  

The Fifth Circuit court sent the case back to the trial courts to determine whether the application of the Texas statute was or was not constitutional.  Although it took such action, the court admits that there was no evidence of deception on its face and the domain name was comprised of several generic terms; two facts that do not lend to a finding of false, deceptive, misleading, or, infringing speech.   While this case does not give us an answer to the ultimate question, it has reignited a vibrant discussion about the validity of domain names as protected First Amendment speech.  The more conversations about this topic that take place within the courts will only bring more attention and education to this developing area of the law.