By Terry Baynes
A lawyer from Lubbock, Texas, will get another chance to make
his case that the First Amendment gives him a right to the
domain name for his legal blog, www.texasworkerscomplaw.com. The
5th U.S. Circuit Court of Appeals in New Orleans on Tuesday
revived John Gibson's battle with the Texas Department of
Insurance over the use of the site as a place to advertise and
disseminate information about his law practice.
In the legal blogosphere, the URL might seem unremarkable,
except that Texas law bars the business-related use of the word
"Texas" in combination with "workers' compensation" or "workers'
comp." As we previously reported, Gibson had been running the
site for several months when, in February 2011, he received a
cease-and-desist letter from the state insurance department,
which claimed that the domain name violated the Texas Labor
Code. Gibson sued the agency in federal court in Lubbock,
alleging, among other things, that the law infringed his freedom
He argued that the state didn't own the rights to the words
"Texas" and "workers' comp," but last year U.S. District Judge
Sam Cummings dismissed his suit, finding that the URL was
commercial speech entitled to less First Amendment protection
than ordinary communication. Cummings said that the law against
use of the words in question also served a legitimate purpose of
preventing any confusion with the government agency that
administers workers' compensation.
But a three-judge panel of the 5th Circuit disagreed earlier
this week. While the panel -- Judges Edith Clement, Thomas
Reavley and James Dennis -- acknowledged that the free speech
right to a domain name presented a novel question for the court,
it also found that the URL was entitled to some degree of First
Amendment protection. The domain name and blog may do more than
simply propose a commercial transaction, given that the site
included Gibson's views on the need for compensation law reform,
the judges found. They also rejected Texas's argument that the
URL was "inherently misleading."
"While Texas fears that Gibson's domain name may confuse the
public, there is no showing that the domain name is incapable of
being viewed in a non-deceptive manner," wrote Clement for the
The panel sent the case back to district court for the
parties to develop the record on the First Amendment dispute.
Gibson was not immediately available for comment on
Wednesday. He told us in April that he was aware of the statute
when he started the site, but that he didn't think the blog was
a violation, given the number of textbooks with similar names.
Gibson's lawyer, Robert Hogan of the Hogan Law Firm, welcomed
another opportunity to challenge the law, which he said affects
a large number of attorneys in Texas. "Any attorney that lists
in their letterhead that they're certified in workers'
compensation law by the Texas Board of Legal Specialization is
automatically in violation of the law," he said.
The Texas Attorney General's office declined to comment on
the litigation. In the meantime, Gibson's site remains down
until he receives permission from the court to revive it. Fines
for operating the site run up to $5,000 per day.
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