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Fwd: [gtld-council] Update on new TLDs discussion: small group work on "morality and public order": posting from J Scott Evans

  • To: gtld-council@xxxxxxxxxxxxxx
  • Subject: Fwd: [gtld-council] Update on new TLDs discussion: small group work on "morality and public order": posting from J Scott Evans
  • From: Liz Williams <liz.williams@xxxxxxxxx>
  • Date: Wed, 11 Jul 2007 15:20:13 +0200


J Scott Evans has asked me to post this message for him.


Liz Williams
Senior Policy Counselor
ICANN - Brussels
+32 2 234 7874 tel
+32 2 234 7848 fax
+32 497 07 4243 mob

Begin forwarded message:

From: "J. Scott Evans" <j.scott.evans@xxxxxxxxx>
Date: Wed 11 Jul 2007 15:14:22 GMT+02:00
To: robin@xxxxxxxxxxxxx, liz.williams@xxxxxxxxx
Subject: Re: [gtld-council] Update on new TLDs discussion: small group work on "morality and public order"


Here again, I believe you are mixing apples and oranges. A gTLD string such as .com, .org. .net or .info IS NOT SPEECH. It relays no communicative message. Therefore, your prior restraint argument is misplaced. US Courts have routinely held that the registration of a second level domain name such as cocacola.com is not protected by the First Amendment because there is no communicative message. On the other hand, walmartsucks.com is protected because it communicates a message to the reader. The international community has determined (as Becky Burr pointed out in the free expression workshop in San Juan) that certain terms are so offensive to society that they should not be condoned by civil society. Therefore, .nigger or .nazi would be excluded as a gTLD. Again, this exclusion does not offend US law/the First Amendment because these strings communicate no message. In contrast, ihateniggers.info for a site run by the KKK falls into your case law examples because this speech is highly offensive to most sensible people; however, under US case precedent it is not obscene and, therefore, protected under the First Amendment. I believe your arguments are misplaced here. I believe ICANN can choose to deny applications for strings that offend because, while offensive, these strings have no communicative message and, therefore, do not violate the First Amendment.

J. Scott Evans

Ps - Could someone post this comment to the entire list as I could not due to technical restraints on my end.


On 7/10/07, Robin Gross <robin@xxxxxxxxxxxxx> wrote: Liz,

It seems you are comparing apples with oranges and risk serious legal
liability for ICANN.  There is an entirely different standard of
permissible expression for television than there is for the Internet.

Based on pressure from the "Religious Right" in the US in 1996, US
Congress passed the Communications Decency Act in an attempt to regulate
morality on the Internet to protect the children.   The Americans for
Civil Liberties Union (ACLU), EPIC, and the Electronic Frontier
Foundation (EFF) in addition to 17 other groups brought an immediate
challenge to the act.  In the most important US court decision
addressing free expression on the Internet, the US Supreme Court struck
down the CDA as an unconstitutional violation of Americans' freedom of
expression rights.

In the CDA case, the government asserted the same argument that you make
here: "TV is regulated to protect children, so we can regulate the
Internet too".  The US Supreme Court explained why the Internet is
different than TV and held that there is no basis for lowering the level
of protection for free expression to the lower standard applied to

In the CDA decision, /ACLU v. Reno/, the US Supreme Court affirmed the
lower court's ruling and held:
"we have made it perfectly clear that "[s]exual expression which is
indecent but not obscene is protected by the First Amendment." / Sable,/ 492 U. S., at 126. See also /Carey/ v. /Population Services Int'l,/ 431
U. S. 678, 701 (1977) ("[W]here obscenity is not involved, we have
consistently held that the fact that protected speech may be offensive
to some does not justify its suppression"). Indeed, /Pacifica/ itself
admonished that "the fact that society may find speech offensive is not
a sufficient reason for suppressing it." 438 U. S., at 745. It is true
that we have repeatedly recognized the governmental interest in
protecting children from harmful materials. See /Ginsberg,/ 390 U. S.,
at 639; /Pacifica,/ 438 U. S., at 749. But that interest does not
justify an unnecessarily broad suppression of speech addressed to
adults. As we have explained, the Government may not "reduc[e] the adult
population . . . to . . . only what is fit for children."

PLEASE read /ACLU v. Reno/, the '97 US Supreme Court decision (THE law
in the US dealing with free expression on the Internet):

If ICANN were to adopt your suggested policy that it can regulate
protected speech on the Internet, no doubt groups like ACLU and EFF will challenge such an illegal restriction in US courts and US judges will be
obliged to follow the US Supreme Court precedent on the matter.

No one here is suggesting that obscenity cannot be regulated to protect children, but the kind of overly-broad "TV standard" of regulation that
you suggest ICANN undertake 'to protect the children' will also be
struck down by US courts upon its attempted implementation.  I don't
think that is the kind of 'policy' you want to make for ICANN.   It
would be far wiser to follow the US Supreme Court's clear ruling, obey
the law and respect free expression rights.

There is no getting around the fact that ICANN is a US corporation and
operates under the authority of the US Government and it will not be
allowed to infringe the free expression rights of US citizens that are
guaranteed by the First Amendment to the US Constitution.


Liz Williams wrote:

> Robin
> Just to be clear about "prior censorship".
> If one reads all the way through the provisions there is specific
> provision for "prior censorship" particularly as it relates to
> childhood and adolescence.
> " 4.Notwithstanding the provisions of paragraph 2 above, public
> entertainments may be subject by law to prior censorship for the sole
> purpose of regulating access to them for the moral protection of
> childhood and adolescence."
> In the Australian context, this would be very similar to the
> regulation of content which prohibits the screening of content
> (including advertising) which is deemed inappropriate for children
> during prime viewing hours.
> Kind regards.
> Liz
> .....................................................
> Liz Williams
> Senior Policy Counselor
> ICANN - Brussels
> +32 2 234 7874 tel
> +32 2 234 7848 fax
> +32 497 07 4243 mob
> On 09 Jul 2007, at 16:01, Robin Gross wrote:
>> I sent the email below very quickly during a fast flight connection
>> and I'd like to explain what I meant - since its not entirely clear
>> below.
>> Article 13 of the convention explicitly forbids prior restraints on
>> speech - even in cases of immoral or disorderly expression (as
>> defined in the convention).
>> A "prior restraint on speech" is legalese for when a public
>> authority prevents expression from happening because it believes
>> harm will result.   Banning a domain name is a prior restraint on
>> speech.
>> In other words, under this convention, a public authority can't just >> assume that limiting speech will prevent harm and censor accordingly.
>> According to this convention, the allowable path under law is to
>> allow the domain name to be registered but let someone take it to
>> court if they have suffered real harm that can be shown and then let
>> the independent courts decide if there can be liability imposed.
>> So while I sympathize with the desire to find definitions for
>> "moral" and "public order" in international conventions, I am
>> concerned that we will use these definitions to do precisely what
>> the convention says we cannot do - create a prior restraint on
>> speech based on these terms.
>> I hope that is more clear.
>> Thanks,
>> Robin
>> Robin Gross wrote:
>>> I understand the desire to find definitions for these terms.
>>> But we need to keep in mind their context.
>>> We may be using these terms to define what expression can be
>>> prevented.
>>> /Sub-para 2 says that expression "shall not be subject to prior
>>> censorship/".
>>> Article 13 (cited) expressly forbids prior censorship -- so we
>>> could using the definitions, in order to achieve what the Article
>>> explicitly prohibits: prior restraints on speech.
>>> Robin
>>> Liz Williams wrote:
>>>> Colleagues
>>>> In light of yesterday's discussion about the inclusion of the
>>>> phrases "morality and public order" in the text, I have excerpted
>>>> below a footnote from Wolfgang Sakhalin's paper (submitted by the
>>>> NCUC as expert advice) which is available at  http://
>>>> www.ipjustice.org/ICANN/Sakulin_Legal_Briefing.pdf.
>>>> You'll see in Section 2 Paragraph 2 that the wording about public
>>>> order and morals is included (as a limiting test on how to apply
>>>> the Convention). /American Convention on Human Rights, 1144
>>>> U.N.T.S. 123, Article 13 states:/
>>>> /"Freedom of Thought and Expression/
>>>> /1.Everyone has the right to freedom of thought and expression.
>>>> This right includes freedom to seek, receive, and impart
>>>> information and ideas of all/
>>>> /kinds, regardless of frontiers, either orally, in writing, in
>>>> print, in the form of art, or through any other medium of one's
>>>> choice./
>>>> /2.The exercise of the right provided for in the foregoing
>>>> paragraph shall not be subject to prior censorship but shall be
>>>> subject to subsequent/
>>>> /imposition of liability, which shall be expressly established by
>>>> law to the extent necessary to ensure:/
>>>> /1.respect for the rights or reputations of others; or/
>>>> /2.the protection of national security, public order, or public
>>>> health or morals./
>>>> /3.The right of expression may not be restricted by indirect
>>>> methods or means, such as the abuse of government or private
>>>> controls over newsprint,/
>>>> /radio broadcasting frequencies, or equipment used in the
>>>> dissemination of information, or by any other means tending to
>>>> impede the/
>>>> /communication and circulation of ideas and opinions./
>>>> /4.Notwithstanding the provisions of paragraph 2 above, public
>>>> entertainments may be subject by law to prior censorship for the
>>>> sole purpose of/
>>>> /regulating access to them for the moral protection of childhood
>>>> and adolescence./
>>>> /5.Any propaganda for war and any advocacy of national, racial, or
>>>> religious hatred that constitute incitements to lawless  violence
>>>> or to any other/
>>>> /similar action against any person or group of persons on any
>>>> grounds including those of race, color, religion, language, or
>>>> national origin shall be/
>>>> /considered as offenses punishable by law."/
>>>> /
>>>> /
>>>> If the small group that is discussing this particular issue could
>>>> refer to this as an example and to other examples in different
>>>> jurisdictions it would be very helpful.
>>>> Kind regards.
>>>> Liz
>>>> .....................................................
>>>> Liz Williams
>>>> Senior Policy Counselor
>>>> ICANN - Brussels
>>>> +32 2 234 7874 tel
>>>> +32 2 234 7848 fax
>>>> +32 497 07 4243 mob

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