Is Texas Lawyer Master of His Domain (Name)?

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The United States Court of Appeals for the Fifth Circuit last week in John E. Gibson v. Texas Dept. of Insurance--Div. of Workers' Compensation et al. (Case No. 11-11136) reversed a trial court in holding that a Lubbock, Texas, attorney can proceed with his claim that a state law barring his Web site domain name violates his First Amendment rights.

As reported by the Wall St. Journal Law Blog, Gibson, a Texas board-certified specialist in workers' compensation law, was prohibited by state officials in 2011 from using the domain name texasworkerscomplaw.com because the combined use of Texas and Workers Comp constituted  inherently deceptive speech that violated a state regulation intended to protect consumers that only allows state government to use those words in tandem.

A federal district court judge dismissed Gibson's First Amendment challenge, ruling that the Texas regulation restricts commercial speech (e.g., advertising copy), which isn't accorded the same level of First Amendment protection as pure speech. The appellate court, however, sent the plaintiff's lawyer's case back to the lower court for review to determine if applying the Texas regulation to the John Gibson & Associates domain name violates First Amendment-protected speech. Not the kind of injury that would require the plaintiff to wear a neck brace.

UPDATE: Last Call for Va. College Papers on Alcohol Ad Ban

Image via WikipediaIn Educational Media Co. v. Swecker (Docket No. 10-278), the U. S. Supreme Court Monday declined to hear an appeal by the Va. chapter of the ACLU on behalf of two college newspapers in the Commonwealth regarding alcohol advertisement restrictions, according to an Associated Press report.

The High Court decision lets stand the 2-1 vote of the U.S. Circuit Court of Appeals for the Fourth Circuit (Case No. 08-1798) that upheld the validity of Va. Alcohol Beverage Control Regulations [3 Va. Admin. Code secs. 5-20-40(A) & (B)(3)] that prohibit use of the term happy hour, forbid references to specific alcoholic beverages and ban beer, wine and mixed drink advertisements in student-run publications, except in the context of restaurant ads. [See "TUOL" post 8/24/10.]

Both The Cavalier Daily and The Collegiate Times challenged the ban on the non-deceptive ads on First Amendment grounds, arguing that they lost roughly $30,000 in ad revenue because of the proscription. Instead of  "bottoms up," their appeal has bottomed out.

Will Supreme Court Drink In College Paper Alcohol Ban 1st Amendment Case?

Image by ThisIsIt2 via FlickrThe Virginia chapter of the American Civil Liberties Union has petitioned the U.S. Supreme Court to overturn the 2-1 vote of the U.S. Circuit Court of Appeals for the Fourth Circuit in Educational Media Co. at Virginia Tech, Inc. et al. v. Susan R. Swecker, Commissioner, Virginia Alcoholic Beverage Control Commission et al, (Case No. 08-1798) that alcohol advertisement restrictions didn't violate two college newspapers' First Amendment rights, according to an Associated Press story. (See "TUOL" post April 12, 2010.)

The Cavalier Daily and The Collegiate Times claimed they lost $30,000 in advertising revenue because of  Alcohol Beverage Control Board regulations [3 Va. Admin. Code secs. 5-20-40(A) & (B)(3)] that prohibit the use of the term "happy hour," ban references to specific cocktails, and forbid beer, wine and mixed drink ads in student-operated publications except within the context of a restaurant ad.

AP said the ACLU filed the High Court petition Monday, arguing that the ban on non-deceptive advertising was unconstitutional and did not advance "important societal goals." The appellate court said the ABCB regs passed constitutional muster because they were narrowly tailored to curb underage and excessive drinking by college students and therefore, a permissible restriction on the papers' commercial speech rights.

'Bottoms Up' Bottoms Out: Court Okays Liquor Ad Limits

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The First Amendment rights of The Cavalier Daily and The Collegiate Daily were not abridged by alcohol advetisement restrictions imposed by the Commonwealth of Virginia, a divided U.S. Court of Appeals for the Fourth Circuit has ruled.

By a 2-1 vote, the 4th Circuit ruled in Educational Media Co. at Virginia Tech, Inc. et al. v. Susan R. Swecker, Commissioner, Virginia Alcoholic Beverage Control Commission et al, (Case No. 08-1798) that Alcohol Beverage Control Board ("ABCB") regulations limiting alcohol advertisements ( 3 Va. Admin. Code secs. 5-20-40(A) & (B)(3)) are not an unconstitutional restraint on commercial speech. The appellate court reversed the decision of the trial court where lawyers for the collegiate newspapers argued successfully that the restrictions both infringed on their free speech rights and did not deter alcohol consumption by underaged college students.  According to the plaintiffs, the ABCB cost the newspapers more than $30,000 in lost ad revenues annually through the regulations, which prohibit the use of the term "happy hour," ban references to specific cocktails, and forbid beer, wine and mixed drink ads in student-operated publications except within the context of a restaurant ad.

Writing for the majority, Judge Dennis W. Shedd concluded the ABCB restriction "is narrowly tailored to serve the board's interest of establishing a comprehensive scheme attacking the problem of underage and dangerous drinking by college students." 

Hard Rolls in America's Breadbasket

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Roadside signs flogging strip clubs and purveyors of sexual paraphrenalia won't be coming down this week courtesy of a federal judge, who granted a preliminary injunction against the enforcement of Kansas Statute Annotated (KSA) sec.68-2255 (2006) that curtailed billboards within one mile of a highway that advertise adult businesses.

U.S. District Court for the District of Kansas Judge Julie A. Robinson this week allowed the plaintiff's motion to enjoin enforcement of the statute in the case of Abilene Retail #30, Inc. d/b/a Lion's Den Adult Superstore v. Steven N. Six in His Official Capacity as Kansas Attorney General (No. 09-2195). Under the provisions of the Kansas statute, such signs were limited to 40 square feet in size and could only display the name, phone number, location, and operating hours of adult enterprises.

The Lion's Den challenged the statute as a prior restraint of commercial free speech under the First Amendment to the U.S. Constitution. The adult "superstore," which is located along Interstate 70 in Abilene, Kansas, has three billboards designed to attract passing motorists, but claims the signs display only the name, location and logo of the story, without illustrations or photographs.

Judge Robinson's order for injunctive relief does not address the constitutionality of the Kansas statute. Similar laws have been overturned in a handful of states, including South Carolina and Georgia. The Court held that Lion's Den met its burden of proving that KSA sec. 68-2255 "impermissibly regulates commercial speech."

For now, Kansas summer vacationers can barrel down I-70 "Topeka" the Lion's Den billboards.