Free speech may prevail elsewhere on the Internet, but not when it comes to typing www.(pickanyobscenity).com.
At least that’s one federal judge’s opinion, ruling in an adult Web site case.
Before Judge Steven McAuliffe was the question of whether the First Amendment protects World Wide Web addresses. Do they serve to communicate, or to navigate?
Navigation, Not Communication
McAuliffe found for navigation.
Free speech advocates think the judge grossly underestimated the communicative power of domain names.
“They are more than just signposts,” said Barry Steinhardt, associate director of the American Civil Liberties Union. “If they weren’t, then millions of dollars would not be spent to buy the most desirable names and protect copyrights.”
McAuliffe ruled in a case filed by Lynn Haberstroh, of Raymond, N.H., and National A-1 Advertising, of Philadelphia. The plaintiffs wanted to include obscene or vulgar words in addresses for their adult Web sites.
Network Solutions Inc., appointed by the government to register Net addresses, had rejected some 30 requested addresses, arguing they contained words prohibited by its 1996 decency policy.
McAuliffe said Network Solutions did not violate the plaintiffs’ rights in its refusal.
“Unlike streets, sidewalks and parks, the space occupied by second-level domain names does not constitute a traditional public forum for discussion and debate,” he said.
The judge agreed the online world has become a forum for public debate, but said that does not mean that each and every Web address is a soapbox.
Web addresses don’t function the same as billboards or radio broadcasts, McAuliffe said.
Appeal Being Considered
Haberstroh’s lawyer said his client was considering an appeal, but Richard Cohen, president of National A-1, said his company doesn’t have the resources to fight McAuliffe’s Sept. 28 ruling.
Cohen said there’s no doubt in his mind that Web addresses are communicative.
“When you’re looking for antiques, the first thing you would put in is antiques.com,” he said.
Network Solutions did not return calls seeking comment.
Domain names originated out of a need to simplify navigation of the Internet. Web addresses in their truest form are strings of numbers, such as 192.168.0.10. Domain names are easier to remember than those strings.
Karen Coyle, spokeswoman for Computer Professionals for Social Responsibility in Palo Alto, Calif., said domain names weren’t intended to express concepts the way they are being used today.
But they evolved that way, she said, because rules weren’t written to govern their use.
The Issue of Trademarks
Don Heath, president of the Internet Society, a Reston, Va., group that tracks and coordinates some of the Net’s technical functions, said McAuliffe’s ruling could affect battles over trademarks in Web addresses.
If a domain name has no communicative value, Heath said, then on what grounds could a company sue to prevent individuals from registering Web sites that include its name?
But Michael Froomkin, a law professor at the University of Miami, said the judge’s decision actually strengthens trademark protections. Removing Web addresses from protected speech, he said, prevents individuals from arguing that the terms belong in the public domain for use by anyone.
In his ruling, McAuliffe also found that Network Solutions was not a state actor and thus not subject to the First Amendment. Haberstroh and National A-1 had argued that because the government in 1992 appointed Network Solutions to oversee domain name registrations, it was acting as an agent of the government.
While the ruling does allow Network Solutions to continue to enforce its decency policy, it doesn’t forbid use of vulgarities in domain names altogether.
Competing registration companies began appearing in 1999, and some have been happy to register any Web addresses. In fact, several of the names Haberstroh and National A-1 sought to reserve in 1998 have since been registered by others.