Does a lawyer’s website constitute free speech, or is it commercial free speech, which is afforded lesser protection under the First Amendment? It’s an important question a trial court soon will address because of the appellate work done by Lubbock attorney Robert Hogan.

The background to the 5th U.S. Circuit Court of Appeals’ Oct. 30 decision in Gibson v. Texas Department of Insurance Division of Workers’ Compensation, et al. is as follows.

In February 2011, the Texas Department of Insurance issued a cease-and-desist letter to Lubbock attorney John E. Gibson, arguing that his use of the words “Texas” and “Worker’s Comp” in the domain name of his firm’s website violated Texas Labor Code §419.002, which restricts the use of certain words in connection with advertising and business activity.

Gibson filed a complaint in the U.S. District Court for the Northern District of Texas, alleging that the statute was unconstitutional under the First, Fifth and 14th Amendments. [See "Lawyer Files Free-Speech Suit Against State Agency Over Blog URL," Texas Lawyer, March 7, 2011.]

The trial court dismissed the complaint for failure to state a claim, and Gibson appealed to the 5th Circuit.

The 5th Circuit affirmed the trial court’s decisions to dismiss Gibson’s Fifth and 14th Amendment claims but reversed the decision on Gibson’s First Amendment claims, remanding the case for further development of the issue.

“This brings us to the crux of the question presented by Gibson: whether the district court erred in finding that the statute (a) prohibits commercial speech, and (b) is a valid prohibition of commercial speech . . .,” wrote Judge Edith Brown Clement in a decision joined by Senior Judge Thomas Reavley and Judge James Dennis.

“As with many new issues involving the Internet, the proper method of analysis to determine whether a domain name is commercial speech or a more vigorously protected form of speech is res nova. A domain name, which in itself could qualify as ordinary communicative speech, might qualify as commercial speech if the website itself is used almost exclusively for commercial purposes,” Clement wrote, concluding that Gibson had stated a claim under the First Amendment. On that basis, the appeals court reversed and remanded the case.

“But we also reserve to Gibson his right in those proceedings to argue for and adduce evidence in support of stronger protection of his domain name as ordinary, communicative speech, and not merely as commercial speech,” Clement wrote.

Hogan, who represents Gibson, says the 5th Circuit drew an important distinction in its opinion “that not all lawyer websites constitute lawyer advertising and therefore commercial speech.”

While the opinion focuses on the Texas Labor Code, the ruling could have an impact on lawyers in many different practice areas, especially when it comes to blogs that attorneys use on their firm websites, says Hogan, of Lubbock’s The Hogan Law Firm.

“But the broader effect on lawyer advertising is considering whether a lawyer’s blog gets the normal degree of First Amendment protection for free speech . . . or if it’s reduced free-speech protection that is afforded to commercial free speech,” Hogan says. “There’s very little case law concerning what degree of First Amendment protection a blog receives as opposed to lawyer advertising.”

Texas Assistant Solicitor General James Sullivan, who represented the Texas Department of Insurance in the case, declines comment. John Greeley, a spokesman for the Texas Department of Insurance, also declines comment. Gibson did not return a telephone call seeking comment.

 

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