I first wrote about this issue here.  John Gibson, a lawyer in North Texas, picked a name for his blog, www.texasworkerscomplaw.com.  The Texas Department of Insurance, Workers Compensation Division, sent him a "cease and desist" letter accusing him of violating a state statute that forbids the use of "texas" and "workers compensation" in connection with advertising.  The statute apparently dates back to the days when workers compensation was a lucrative area and some lawyers sought to advertise their expertise in workers compensation law.  Now, of course, few Texas lawyers accept workers compensation cases.

Mr. Gibson sued the state.  He argued the department’s actions violated the First Amendment.  The district court found in favor of the Division of Workers Compensation (DWC).  

But, on appeal, the Fifth Circuit in New Orleans  agreed with Mr. Gibson.  A panel of three judges found the state did not make a "serious" attempt to tailor the statute to avoid First Amendment concerns.  The court recognized that a domain name could constitute commercial speech  if the name is used "almost exclusively" for commercial purposes.  See ABA Bar Journal report.  The Fifth Circuit found that the name of the blog was not necessarily a solicitation.  Even if it is a solicitation, the blog and domain name are not necessarily related to Mr. Gibson’s law practice.  Mr. Gibson does practice workers compensation law.  But, his blog is not "directly" related to his practice.  So, attorney solicitation cases do not apply.  The court seemed to appreciate the "informational" aspect of a blog, as opposed to web sites which are more like advertising. 

The Fifth Circuit also found that there is nothing inherently deceptive about the domain name, so it is subject to First Amendment protection.   See Fifth Circuit opinion here.  A state could still regulate speech that is not inherently deceptive if the state can show a carefully tailored state interest.  But, said the court, the state of Texas could not make such a showing. 

The Division of Workers Compensation had also argued that the public could confuse the DWC with the blog.  But, found the court, DWC did not offer sufficient briefing of that sort of possible confusion. The appellate court remanded that portion of the case back to the lower court for further factual findings regarding the constitutionality of the state statute. 

A Lubbock, Texas lawyer has filed suit against against the Texas Department of Insurance, Worker’s Compensation Division because the Texas Dept. of Insurance sent him a "cease and desist" letter.  The TDI had sent John Gibson a letter warning him to stop using the words "Texas" and "worker’s compensation" in the web address.  Mr. Gibson operates a web site called www.texasworkerscomplaw.com.  The TDI accused Mr. Gibson of violating a provision of the Texas Labor Code which prohibits use of the words "texas" and "workers compensation" in connection with advertising and solicitation for business.  In his lawsuit, Mr. Gibson argues this provision is unconstitutional as a violation of the First Amendment.  See Texas Lawyer report.  

I am sure that provision must date from the bad ole days of workers compensation litigation, which at one time was lucrative.  Workers compensation was the subject of much advertising as late as the 1980’s prior to so-called tort reform.  Now, very few lawyers practice workers compensation law.  More importantly, blogs have been seen by most observers as not advertising and more as an educational tool.  For example, law firm news letters are exempt from the advertising rules because they are seen as more educational than solicitations for business. This will be an interesting lawsuit as it explores the nature of blogs.