[wg-c] Court rules that TLDs "could indeed" be protected speech

["Milton Mueller" <mueller@syr.edu>]

From the 2nd Circuit ct of appeals opinion:

"The existing gTLDs are not protected speech, but only because the current
DNS and Amendment No. 11 limit them to three-letter afterthoughts such as
.com and .net, which are lacking in expressive content. The district court
did not address the possibility that longer and more contentful gTLDs like
".jones_for_president" and ".smith_for_senate" may constitute protected
speech, such as political speech or parody."

[snip]

"In short, while we hold that the existing gTLDs do not constitute protected
speech under the First Amendment, we do not preclude the possibility that
certain domain names, including new gTLDs, could indeed amount to protected
speech. The time may come when new gTLDs could be used for "an expressive
purpose such as commentary, parody, news reporting or criticism," comprising
communicative messages by the author and/or operator of the website in order
to influence the public's decision to visit that website, or even to
disseminate a particular point of view. United We Stand Am., Inc. v. United
We Stand Am. N. Y., Inc., 128 F.3d 86, 93 (2d Cir. 1997) (citation
omitted)."

[However, Name.space's first amendment claim failed because...]

"Currently, Name.Space is free to use any of an infinite possible number of
second-, third- and fourth-level domain names as long as it has not
previously been registered. The difference between ".forpresident" and
".forpresident.com, " ".net" or ".org" does not rise to the level of a prior
restraint that offends the First Amendment. Cf. Connecticut State Fed'n of
Teachers v. Board of Educ. Members, 538 F.2d 471, 481 (2d Cir. 1976)
(holding that "inconsequential," "de minimis" interference with free speech
did not violate First Amendment)."



m i l t o n   m u e l l e r // m u e l l e r @ s y r . e d u
syracuse university          http://istweb.syr.edu/~mueller/