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Legal Update – December 2000
Posted On 29 Dec 2000
“Lawrence G. Walters, leading first amendment attorney, provides a ‘real-world’ legal update for The ADULTWEBMASTER Magazine readers. News on Domain Names, the Supreme Court, and more are covered in this controversial article.” “Lawrence G. Walters, leading first amendment attorney, provides a ‘real-world’ legal update for The ADULTWEBMASTER Magazine readers. News on Domain Names, the Supreme Court, and more are covered in this controversial article.”
Vulgar Website Names Not Protected First Amendment
At least that’s what U.S. District Court Judge Steven McAuliffe ruled in an adult website case recently. The case questioned whether Network Solutions could legally refuse to register names which it deemed “profane” or “vulgar.” The court ruled that domain names are more akin to signposts, and have little or no communicative value to justify First Amendment protections. This is a dangerous precedent for the Internet, which depends on Free Speech protections for its survival. This ruling may also prove problematic for companies attempting to protect intellectual property associated
with their domain names like trademarks or tradenames.
Battle Over Domain Name Continues
Meanwhile, the battle raged over who has rights to the sex.com domain name. In the lawsuit filed in federal court, Gary Kremen alleges that his cyberspace nemesis, Steph Cohen, unlawfully deprived him of the legal rights to the valuable URL by committing fraud. The Web portal tied to the name generates tens of millions of dollars by directing online users to adult material, and has become somewhat of a “Yellow Pages” for the adult industry. Kremen’s lawyers are attempting to freeze $25
million in sex.com related assets to make sure Cohen doesn’t hide his money in offshore accounts in the event judgment is entered against him.
“…property rights do not apply to a domain name since it is not considered tangible property.”
This case also raises thorny legal issues regarding how intellectual property laws are to be applied to domain names like sex.com. Earlier, the judge assigned to the case dismissed Network Solutions as a defendant, ruling that traditional property rights do not apply to a domain name since it is not considered tangible property. This case could have far-reaching implications to any owner of a domain name.
U.S. Supreme Court & Free Speech
The U.S. Supreme Court, in the middle of sorting out the election mess, took time to hear arguments on a landmark Free Speech case involving an adult bookstore in Wisconsin. The City News And Novelty, Inc. v. City of Waukesha case will decide whether adult businesses are entitled to the protection of “procedural safeguards”
when applying for licenses to operate from local governments. At issue is whether the City of Waukesha was required to allow the bookstore to remain in business while the courts considered legal challenges to the license renewal procedure.
These procedural safeguards have been the subject of significant litigation by First Amendment lawyers on behalf of the adult entertainment industry. In 1\’\’0, the U.S. Supreme Court decided, in the case of FW/PBS v. City of Dallas, that local governments must issue a decision on license applications by adult businesses within a specified, brief time period, and must provide for prompt judicial review of a license denial. Without these safeguards, cities and counties could tie up a decision in the administrative review process indefinitely, and keep the business closed while the courts considered the challenge to the process. Most businesses would give up the fight if prohibited from opening during this process. This produced censorship by delay. First Amendment lawyers are watching the City News case very closely to see if the current Court reaffirms or takes away these important Free Speech protections.
