Company seeking to register new domain names loses First Amendment claim

Wednesday, January 26, 2000

A private company that registered domain names in cooperation with the federal government did not violate the First Amendment by refusing to register another private company’s domain names, a federal appeals court has ruled.

Name.Space, Inc. sued Network Solutions Inc. and the National Science Foundation in federal court, after NSI refused to register Name.Space’s domain names. Name.Space Inc. sought to register more than 500 new generic top-level domain names (gTLDs).

Generic top-level domain names appear as the last part of an Internet address. There are currently seven different gTLDs — .com, .net, .org, .edu, .gov, .int and .mil.

NSI currently controls the registration of gTLDs under to an agreement with the National Science Foundation mandated by federal law.

Name.Space contended that NSI’s refusal to register its domain names forced it to support the existing gTLDs in violation of the compelled-speech doctrine. Name.Space also charged that the NSF’s refusal to permit new gTLDs restricted the company’s free-speech rights.

In March 1999, a federal district court ruled that domain names do not constitute expressive speech entitled to First Amendment protection.

On appeal, the 2nd U.S. Circuit Court of Appeals agreed, finding in Name.Space, Inc. v. Network Solutions, Inc., that “Name.Space’s free-speech rights have not been violated under any of the familiar rubrics of First Amendment analysis.”

The 2nd Circuit was cautious in issuing its ruling and declined to establish a per se rule as to whether gTLDs were a form of expressive conduct meriting First Amendment protection.

“Mindful of the often unforeseeable impact of rapid technological change, we are wary of making legal pronouncements based on highly fluid circumstances, which almost certainly will give way to tomorrow’s new realities,” the appeals court wrote.

“Domain names and gTLDs per se are neither automatically entitled to nor excluded from the protections of the First Amendment,” the court wrote.

The 2nd Circuit determined that the “degree of restriction is … minimal. Companies like Name.Space can still express themselves through second-, third-, or fourth-level domain names,” the court wrote.

The attorneys who handled the case could not be reached for comment.