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Historical background[]

On June 1, 2005, ICANN announced that it had entered into commercial and technical negotiations with a registry company (ICM Registry) to operate a new “.xxx” domain, which would be designated for use by adult websites. Registration by adult websites into the .xxx domain would be purely voluntary, and those sites would not be required to give up their existing (for the most part, .com) sites. Announcement of a .xxx domain proved controversial.

With the ICANN Board scheduled to consider final approval of the .xxx domain on August 16, 2005, the Department of Commerce sent a letter to ICANN requesting that adequate additional time be provided to allow ICANN to address the objections of individuals expressing concerns about the impact of pornography on families and children and opposing the creation of a new top level domain devoted to adult content.

The ICANN Government Advisory Committee (GAC) also requested more time before the final decision. At the March 2006 Board meeting in New Zealand, the ICANN Board authorized ICANN staff to continue negotiations with ICM Registry to address concerns raised by the DOC and the GAC. However, on May 10, 2006, the Board voted 9-5 against accepting the proposed agreement, but did not rule out accepting a revised agreement. Subsequently, on January 5, 2007, ICANN published for public comment a proposed revised agreement with ICM Registry to establish a .xxx domain.

However, on March 30, 2007, the ICANN Board voted 9-5 to deny the .xxx domain, citing its reluctance to possibly assume an ongoing management and oversight role with respect to Internet content.

ICM Registry subsequently challenged ICANN’s decision before an Independent Review Panel (IRP), claiming that ICANN’s rejection of ICM’s application for a .xxx gTLD was not consistent with ICANN’s Articles of Incorporation and Bylaws. On February 19, 2010, the three-person Independent Review Panel (from the International Centre for Dispute Resolution) ruled primarily in favor of ICM Registry, finding that its application for the .xxx TLD had met the required criteria, and that the ICANN Board’s reversal of its initial approval “was not consistent with the application of neutral, objective and fair documented policy.”[1]

The IRP decision was not binding; it was the ICANN Board of Directors’ decision to determine how to proceed and whether ICM’s application to operate a .xxx TLD should ultimately be approved. At ICANN’s March 2010 meeting in Nairobi, the Board voted to postpone any decision about the .xxx TLD, and directed ICANN’s CEO and general counsel to write a report examining possible options.[2]

On June 25, 2010, at the ICANN meeting in Brussels, the Board voted to allow ICM’s .xxx application to move forward. The Board approved next steps for the application, including expedited due diligence by ICANN staff, negotiations between ICANN and ICM on a draft registry agreement, and consultation with ICANN’s Government Advisory Committee (GAC).

At the December ICANN meeting in Cartegena, Colombia, the ICANN Board passed a resolution stating that while “it intends to enter into a registry agreement with ICM Registry for the .xxx TLD,” the Board will enter into a formal consultation with the Government Advisory Committee on areas where the Board’s decision is in conflict with GAC advice relating to the ICM application.[3]

A February 2011 letter from ICANN to the GAC acknowledged and responded to areas where approving the .xxx registry agreement with ICM would conflict with GAC advice received by ICANN.[4] With the GAC ultimately opposed to approval of .xxx at this time (and continuing to raise specific objections), the ICANN Board acknowledged that the Board and the GAC were not able to reach a mutually acceptable solution. Ultimately, on March 18, 2011, at the ICANN meeting in San Francisco, the ICANN Board approved a resolution giving the CEO or General Counsel of ICANN the authority to execute the registry agreement with ICM to establish a .xxx TLD. The vote was nine in favor, three opposed, and four abstentions.

Potential constitutional issues[]

Some propose making use of a “.xxx” domain voluntary, but others propose that Congress make it mandatory. The latter proposal raises the question whether a mandatory separate domain would violate the First Amendment. To require that websites with sexually explicit material be under a separate domain name would be to treat such material differently from other speech, and therefore could be viewed as discriminating against speech on the basis of its content.

The Supreme Court has said that “[i]t is rare that regulation restricting speech because of its content will ever be permissible.”[5] As a general rule, the Supreme Court will uphold a content-based speech regulation only if it satisfies “strict scrutiny,” which means only if it is necessary “to promote a compelling interest” and is “the least restrictive means to further the articulated interest.”[6]

By contrast, if a regulation of speech is “justified without reference to the content of the speech,” then the Supreme Court considers it “content-neutral” and will uphold it if it “is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication.”[7] In other words, if a regulation of speech has a purpose other than to protect people from harm that the speech itself might cause, then it stands a better chance of being found constitutional.

One might argue that, although requiring sexually explicit material to be under a separate domain name would discriminate against speech on the basis of its content, that would not be the purpose of the requirement, and the requirement could be justified without reference to the content of the speech it would regulate. Its purpose would arguably be to facilitate parents’ or librarians’ use of filters when children access the Internet. It would accomplish this by dividing websites into two categories — those with sexually explicit material and those without it.

This could be viewed as analogous to requiring “adult” movie theaters to locate in areas that are zoned for them. In City of Renton v. Playtime Theaters, Inc., the Supreme Court upheld such zoning on the theory that it “is not aimed at the content of the films shown at ‘adult motion picture theaters,’ but rather at the secondary effects of such theaters on the surrounding community.”[8] “The ordinance by its terms is designed to prevent crime, protect the city’s retail trade, maintain property values, and generally ‘protec[t] and preserv[e] the quality of [the city’s] neighborhoods, commercial districts, and the quality of urban life,’ not to suppress the expression of unpopular views.”[9]

Analogously, one might argue, to restrict sexually explicit material to a separate domain name arguably would “zone” certain websites not because of the content of their speech but to lessen the “secondary effect” of minors’ viewing those websites without parental approval. In effect, the proposal, like a zoning ordinance, would seek to isolate certain material into particular “neighborhoods” in cyberspace, and assist parents in preventing their children from visiting those “neighborhoods.”

A possibly fatal flaw with this analogy, however, is that, in Renton, the secondary effects that the zoning ordinance sought to prevent — crime, lowered property values, and a deterioration in the quality of urban life — were not effects of viewing the regulated speech itself. The “.xxx” proposal, by contrast, would apparently attempt to protect minors from the effects of viewing the regulated speech itself, and these effects therefore are arguably not “secondary” in the sense that the Supreme Court meant in Renton.

The “.xxx” proposal, from this view, would impose a burden on speech because Congress deems it harmful, and that is not a sufficient basis on which the government may regulate speech in a manner that affects adults, unless the regulation satisfies strict scrutiny.[10]

In Ashcroft v. Free Speech Coalition,[11] for example, the Supreme Court struck down a federal statute that banned “virtual” child pornography and other child pornography produced without the use of an actual minor, despite various harms that the government claimed that viewing such pornography could cause, such as “whet[ting] the appetites of pedophiles and encourag[ing] them to engage in illegal conduct.”[12]

Thus, a court might view the “.xxx” proposal either as a content-based regulation, which is constitutional only if it satisfies strict scrutiny by advancing a compelling governmental interest by the least restrictive means; or as a content-neutral regulation, which is constitutional if it advances a substantial governmental interest and allows for reasonable alternative avenues of communication. This article apply these two tests to the “.xxx” proposal, in the sections below titled “Strict scrutiny” and “Content-neutral scrutiny.” First, however, this article will explain why the “.xxx” proposal would even raise a free speech issue, in light of the fact that it would not censor speech.

Compelled speech[]

The “.xxx” proposal could be viewed as, in effect, compelling speech on the part of websites with sexually explicit material. It would compel them to identify themselves, through use of a separate domain name, as containing such material. In general, it is as unconstitutional for the government to compel speech as it is for it to censor speech, except in the commercial context.[13]

In Riley v. National Federation of the Blind of North Carolina, Inc.,[14] a North Carolina statute required professional fundraisers for charities to disclose to potential donors the gross percentage of revenues retained in prior charitable solicitations. The Supreme Court held this unconstitutional, writing

“ There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees “freedom of speech,” a term necessarily comprising the decision of both what to say and what not to say.[15] ”

In Meese v. Keene,[16] however, the Court upheld compelled disclosure in a noncommercial context. This case involved a provision of the Foreign Agents Registration Act of 1938, which requires that, when an agent of a foreign principal seeks to disseminate foreign “political propaganda,” he must label such material with certain information, including his identity, the principal’s identity, and the fact that he has registered with the Department of Justice. The material need not state that it is “political propaganda,” but one agent objected to the statute’s designating material by that term, which he considered pejorative. The agent wished to exhibit, without the required labels, three Canadian films on nuclear war and acid rain that the Justice Department had determined were “political propaganda.”

In Meese, the Supreme Court upheld the statute’s use of the term, essentially because it considered the term not necessarily pejorative. On the subject of compelled disclosure, the Court wrote:

“ Congress did not prohibit, edit, or restrain the distribution of advocacy materials. . . . To the contrary, Congress simply required the disseminators of such material to make additional disclosures that would better enable the public to evaluate the import of the propaganda.[17] ”

One might infer from this that compelled disclosure, in a noncommercial context, gives rise to no serious First Amendment issue, and nothing in the Court’s opinion would seem to refute this inference. Thus, it seems impossible to reconcile this opinion with the Court’s holding a year later in Riley (which did not mention Meese v. Keene) that, in a noncommercial context, there is no difference of constitutional significance between compelled speech and compelled silence.

In Meese, furthermore, the Court did not mention earlier cases in which it had struck down laws compelling speech in a noncommercial context. For example, in Wooley v. Maynard,[18] the Court struck down a New Hampshire statute requiring motorists to leave visible on their license plates the motto “Live Free or Die”; in West Virginia State Board of Education v. Barnette,[19] the Court held that a state may not require children to pledge allegiance to the United States; and, in Miami Herald Publishing Co. v. Tornillo,[20] the Court struck down a Florida statute that required newspapers to grant political candidates equal space to reply to the newspapers’ criticism and attacks on their record.

In any event, if one views the “.xxx” proposal as discriminating on the basis of content, then one could cite most of the compelled speech cases for the proposition that the “.xxx” proposal would be unconstitutional unless it can pass strict scrutiny. But one could cite Meese v. Keene (adapting the above quotation from it) to argue that the “.xxx” proposal would be constitutional because it would “not prohibit, edit, or restrain the distribution of [sexually explicit material]. . . . To the contrary, Congress [would] simply require[ ] the disseminators of such material to make additional disclosures that would better enable the public to evaluate the [content] of the [website].”

Strict scrutiny[]

If the “.xxx” proposal were viewed as content-based, and not as constitutional simply by virtue of its similarity to the statute upheld in Meese v. Keene, then, as noted, it would be subject to “strict scrutiny,” which means that it would be constitutional only if it is necessary “to promote a compelling interest,” and is “the least restrictive means to further the articulated interest.”[21]

Though the Supreme Court may be becoming less absolute in viewing the protection of all minors, regardless of age, from all sexual material, to be a compelling interest,[22] it has never struck down, on the ground that it did not further a compelling governmental interest, a statute aimed at denying minors access to sexual material. Rather, the Court tends to assume the existence of a compelling governmental interest in denying minors access to pornography and move on to the “least restrictive means” part of the strict scrutiny test, upholding or striking down the statute on that issue.

In striking down the part of the Communications Decency Act of 1996 that banned from the Internet all “indecent” material that was accessible to minors, the Court wrote:

“ In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.[23] ”

The “.xxx” proposal would not suppress speech, but would only compel it to be under a separate domain name. But are there less restrictive means by which to accomplish the “.xxx” proposal’s goal? We will consider two alternative means. One alternative might be to make use of the separate domain name voluntary. The question with respect to this alternative would be whether there would be an incentive for sexually explicit websites to use a separate domain name voluntarily — an incentive sufficient to induce enough of them to use a separate domain name so as to make the proposal as effective as it would be if it compelled them to use a separate domain name. An incentive, arguably, is that, just as the proposal would make it easier to block websites that use a separate domain name, it might make it easier to locate websites that use a separate domain name.

In addition, one might argue, a statute could effectively make use of a separate domain name mandatory only for websites based in the United States, as the U.S. government does not generally have authority over foreign websites. Therefore, a statute that mandated use of a separate domain name would not cover all websites with sexually explicit material, and this would appear to strengthen the case that voluntary use of a separate domain name would be as effective as mandatory use.[24]

A second alternative to the proposal might be one that already exists: the Dot Kids Implementation and Efficiency Act of 2002. This statute may enable parents who wish to do so to block all websites not under the “dot kids” domain name. If parents used a filter to prevent their children from gaining access to any website that does not use the “dot kids” domain, then they would be denying their children access to much material on the Internet that is not sexually explicit. If one deems a purpose of both the “Dot Kids” statute and the “.xxx” proposal to be not only to deny children access to sexually explicit material, but not to deny them access to non-sexually explicit material, then the “Dot Kids” Act might be viewed as less effective than the “.xxx” proposal, and therefore as not an adequate alternative to the latter. But, in another respect, the “Dot Kids” statute could be more effective because it could enable parents to block foreign as well as domestic websites; in that respect it might be viewed as an adequate alternative to the “.xxx” proposal.

Content-neutral scrutiny[]

If a court were to find the “.xxx” proposal to be analogous to the zoning of “adult” theaters that the Supreme Court has upheld, then it would ask whether the proposal is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication. Because it appears that a court would likely find the proposal to serve a “compelling” interest, a court would ipso facto likely find the proposal to meet the less rigorous test of serving a “substantial” interest. And, because the proposal would not prevent anyone from posting protected speech, but would merely require them to post some speech under a separate domain name, it apparently could not even be said to reduce their avenues of communication except insofar as Internet users chose to block websites that used the separate domain name. Though the proposal would presumably facilitate such blocking, it would not require it, and therefore would seem likely to be found constitutional if this less-than-strict-scrutiny test were applied.

Criminal penalties[]

A factor that might make a difference to the “.xxx” proposal’s constitutionality is whether it imposed criminal penalties; if it did, that might tip the balance toward making it unconstitutional. In Reno v. American Civil Liberties Union,[25] the Supreme Court, in striking down the Communications Decency Act of 1996, was apparently influenced by the fact that the statute would have imposed criminal penalties, including imprisonment.[26] It distinguished Federal Communications Commission v. Pacifica Foundation,[27] in which it had upheld the ban on “indecent” material on broadcast media, in part on the ground that the radio station that had broadcast George Carlin’s “Filthy Words” monologue had been penalized with only a Federal Communications Commission declaratory order. “[T]he Commission’s declaratory order,” the Court in Reno wrote, “was not punitive; we expressly refused to decide whether the indecent broadcast ‘would justify a criminal prosecution.’”[28]

Breadth of the requirement[]

Another factor that might make a difference to the “.xxx” proposal’s constitutionality is whether it applied only to websites that contained predominantly pornographic material, or it applied to any posting of material that fit whatever definition the proposal used to define material that was required to be under the “.xxx” domain name. The latter approach would seem more problematic from a constitutional standpoint because it would effectively bar all websites not under the “.xxx” domain name from ever posting material that was sexually explicit, even when there might be a non-pornographic reason to do so, and even if the website contained predominantly, for example, literary, artistic, or medical material that would not attract children.

The preciseness of the definition of material required to be under the “.xxx” domain name might also make a difference, so that a website that posted sexually explicit material not as pornography but for its literary, artistic, or medical content, would not be deterred from doing so.

Conclusion[]

If a court were to apply “strict scrutiny” to the “.xxx” proposal, then it appears difficult to predict whether it would be constitutional. Although it seems likely that the Supreme Court would find that it serves a compelling governmental interest, it is not certain whether it would find that it would be the least restrictive means to serve that interest. If a court were to apply “content-neutral scrutiny,” or if the Court were to follow its reasoning in Meese v. Keene, then it seems likely that it would find the “.xxx” proposal to be constitutional.

References[]

  1. ↑ International Centre for Dispute Resolution, In the Matter of an Independent Review Process: ICM Registry, LLC, Claimant, v. Internet Corporation for Assigned Names and Numbers, Respondent, Declaration of the Independent Review Panel, ICDR Case No. 50 117 T 00224 08, Feb. 19, 2010, at 70.[http://safekids.com/ documents/irp-panel-declaration-19feb10-en.pdf]
  2. ↑ See possible options and public comments here.
  3. ↑ ICANN, Adopted Board Resolutions, Cartegena (Dec. 10, 2010) ([http://www.icann.org/en/minutes/ resolutions-10dec10-en.htm#4]).
  4. ↑ Letter from ICANN to Chair of GAC (Feb. 10, 2011) ([http://icann.org/en/correspondence/jeffrey-to- dryden-10feb11-en.pdf full-text]).
  5. ↑ United States v. Playboy Entertain. Grp., Inc., 529 U.S. 803, 818 (2000)(full-text).
  6. ↑ Sable Comms. of Cal., Inc. v. Federal Comms. Comm'n, 492 U.S. 115, 126 (1989)(full-text).
  7. ↑ Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 50 (1986)(full-text).
  8. ↑ Id. at 47.
  9. ↑ Id. at 48.
  10. ↑ If sexually explicit speech is regulated in a manner that affects only minors, then it is more likely to be constitutional. In Ginsberg v. New York, 390 U.S. 629, 634 (1968)(full-text), for example, the Supreme Court upheld a state statute that prohibited the sale to minors of what the Court called “‘girlie’ picture magazines.” When, however, the government has restricted adults’ access to speech, even with the purpose of protecting minors, the Court has held that “the Government may not ‘reduc[e] the adult population . . . to . . . only what is fit for children.’” See, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 875 (1997)(full-text), in which the Court struck down the part of the Communications Decency Act of 1996 that prohibited “indecent” material on the Internet.
  11. ↑ 535 U.S. 234 (2002)(full-text).
  12. ↑ Id. at 253.
  13. ↑ Compelling commercial speech (i.e., disclosures in commercial advertisements and on product labels) is generally constitutional because the Supreme Court has held that “an advertiser’s rights are reasonably protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers. . . . The right of a commercial speaker not to divulge accurate information regarding his services is not . . . a fundamental right.” Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651, 652 n.14 (1985)(full-text).
  14. ↑ 487 U.S. 781 (1988)(full-text).
  15. ↑ Id. at 796-97 (italics in original).
  16. ↑ 481 U.S. 465 (1987)(full-text).
  17. ↑ Id. at 480.
  18. ↑ 430 U.S. 705 (1977)(full-text).
  19. ↑ 319 U.S. 624 (1943)(full-text).
  20. ↑ 418 U.S. 241 (1974)(full-text).
  21. ↑ Sable Comms. of Cal., Inc. v. Federal Comms. Comm'n, 492 U.S. 115, 126 (1989)(full-text).
  22. ↑ See The Constitution of the United States of America: Analysis and Interpretation 1233 n.1146 (2004), (n.1174 in the Web version).
  23. ↑ Reno v. American Civil Liberties Union, 521 U.S. 844, 874 (1997)(full-text).
  24. ↑ This was one of the reasons that the Supreme Court upheld a preliminary injunction against enforcement of the Child Online Protection Act. See Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 667 (2004)(full-text) (“The District Court noted in its factfindings that one witness estimated that 40% of harmful-to-minors content comes from overseas”).
  25. ↑ 521 U.S. 844 (1997)(full-text), aff'g American Civil Liberties Union v. Reno, 929 F. Supp. 824 (3d Cir. 1996)(full-text).
  26. ↑ Reno, at 867.
  27. ↑ 438 U.S. 726 (1978)(full-text).
  28. ↑ Reno, 521 U.S. at 867.

Source[]

  • Henry Cohen, Constitutionality of Requiring Sexually Explicit Material on the Internet to Be Under a Separate Domain Name (CRS Report RL33224) (Jan. 3, 2006) (full-text).
  • Lennard G. Kruger, Internet Domain Names: Background and Policy Issues (CRS Report 97-868) (Jan. 14, 2008) (full-text).
  • Lennard G. Kruger, Internet Domain Names: Background and Policy Issues (CRS Report 97-868) (Mar. 18, 2011) (full-text).
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