Judge: No Free Speech for Web Names

C O N C O R D, N.H., Dec. 11, 2000 -- Free speech may prevail elsewhere on theInternet, but not when it comes to typingwww.(pickanyobscenity).com.

At least that’s one federal judge’s opinion, ruling in an adultWeb site case.

Before Judge Steven McAuliffe was the question of whether theFirst Amendment protects World Wide Web addresses. Do they serve tocommunicate, or to navigate?

Navigation, Not Communication

McAuliffe found for navigation.

Free speech advocates think the judge grossly underestimated thecommunicative power of domain names.

“They are more than just signposts,” said Barry Steinhardt,associate director of the American Civil Liberties Union. “If theyweren’t, then millions of dollars would not be spent to buy themost 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 plaintiffswanted to include obscene or vulgar words in addresses for theiradult Web sites.

Network Solutions Inc., appointed by the government to registerNet addresses, had rejected some 30 requested addresses, arguingthey 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 bysecond-level domain names does not constitute a traditional publicforum for discussion and debate,” he said.

The judge agreed the online world has become a forum forpublic debate, but said that does not mean that each and every Webaddress is a soapbox.

Web addresses don’t function the same as billboards or radiobroadcasts, 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 companydoesn’t have the resources to fight McAuliffe’s Sept. 28 ruling.

Cohen said there’s no doubt in his mind that Web addresses arecommunicative.

“When you’re looking for antiques, the first thing you wouldput in is antiques.com,” he said.

Network Solutions did not return calls seeking comment.

Domain names originated out of a need to simplify navigation ofthe Internet. Web addresses in their truest form are strings ofnumbers, such as 192.168.0.10. Domain names are easier to rememberthan those strings.

Karen Coyle, spokeswoman for Computer Professionals for SocialResponsibility in Palo Alto, Calif., said domain names weren’tintended to express concepts the way they are being used today.

But they evolved that way, she said, because rules weren’twritten 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 technicalfunctions, said McAuliffe’s ruling could affect battles overtrademarks in Web addresses.

If a domain name has no communicative value, Heath said, then onwhat grounds could a company sue to prevent individuals fromregistering Web sites that include its name?

But Michael Froomkin, a law professor at the University ofMiami, said the judge’s decision actually strengthens trademarkprotections. Removing Web addresses from protected speech, he said,prevents individuals from arguing that the terms belong in thepublic domain for use by anyone.

In his ruling, McAuliffe also found that Network Solutions wasnot a state actor and thus not subject to the First Amendment.Haberstroh and National A-1 had argued that because the governmentin 1992 appointed Network Solutions to oversee domain nameregistrations, it was acting as an agent of the government.

While the ruling does allow Network Solutions to continue toenforce its decency policy, it doesn’t forbid use of vulgarities indomain names altogether.

Competing registration companies began appearing in 1999, andsome have been happy to register any Web addresses. In fact,several of the names Haberstroh and National A-1 sought to reservein 1998 have since been registered by others.