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Statement on Morality and Public Order Standards

  • To: <gtld-dispute@xxxxxxxxx>
  • Subject: Statement on Morality and Public Order Standards
  • From: "Cheryl Preston" <prestonc@xxxxxxxxxxxxxxx>
  • Date: Fri, 12 Dec 2008 16:20:50 -0700

My comments on Recommendation 6 of the RFP are below and attached. 
Please include this as a public comment.

Observations on Recommendation 6: Morality and Public Order
Cheryl B. Preston

ICANN has requested public input on a draft of the Request for
Proposals (RFP), or Applicant Guidebook, regarding new generic top-level
domains (gTLDs).  One policy recommendation in the RFP is that the new
TLD strings, or names, “not be contrary to legally accepted norms
related to morality and public order that are recognized under
international principles of law.” (GNSO Recommendation No. 6).

The RFP proposes the following three as categories fitting the language
of Recommendation No. 6. 

1.      Incitement to violent lawless action;
2.      Incitement to or promotion of discrimination based on race,
color, gender, ethnicity, religion, or national origin;
3.      Incitement to or promotion of child pornography or other sexual
abuse of children.

The following five comments address this issue:

1.      It is time to move on.  Those seeking a new gTLD will, at best,
have waited two years for ICANN to hash out the requirements for
applications.  The ICANN staff has done extensive research and
consulting.  Those who doubt the truth of this claim should ask for
supporting documentation or names, rather than dismiss the staff’s
conclusions without an equal good faith showing of competing research
and expertise.  The limitations as stated are extraordinarily minimal. 
Treating them as a serious violation of free expression principles
warranting this on-going attention saps resources and support from real
speech issues such as the repression of political speech in China. 

2.      The limitations protect against “mission creep” of the worst
kind.  The value of giving a for-profit company a shocking commercial
icon does not outweigh the risks of making ICANN and the Internet the
obvious target of the culture wars.  As illustrated by the milder
example of the proposal for a .XXX domain, forays into contested,
high-profile symbolic battles diverts ICANN into the kind of social and
cultural sensitivities it is ill equipped to handle.  The furor of the
victims of Nazi Germany need not be unleashed at ICANN.  By drawing
minimal limitations, ICANN can dodge the worst of these battles. 
Moreover, ICANN can use the resources, volunteer time, and good will to
forward more significant objectives.

There is an interesting tension between the insignificant speech value
of string names and their potential symbolic enormity in public
discourse.  Names of gTLDs are few and obvious.  Some become part of the
popular vernacular.  They may convey little information but provide, in
the minds of some, significant social symbolic meaning.  What important
human freedoms and rights are sacrificed if one of a hundred gTLDS
cannot be .spic (or another ethnic slur)?  The Internet, and other
forums, offer myriad alternatives for freely discussing one’s racial
views.  Yet, by elevating .spic to gTLD status, the implied approval of
racial hatred is unnecessarily amplified.

Some argue that a short string of letters could never be sufficiently
offensive to warrant restriction.  But some fairly short letter strings
could raise scorching public and governmental backlash.  Is it necessary
to embroil ICANN in the controversy that would accompany, for example,
.nazi, .jihad, .KKK, .nigger, .Alah, .Jesus, .kidrape, .fckboys?  Is
there enough speech value to warrant the costs of having to publicly
debate such words?  

3.      U.S. law is not the test.  Opponents to Recommendation 6
frequently assert that it does not reflect U.S. law.   The world need
not be subject to U.S. law when the deeply held traditions of most other
countries place other values on equal or higher footing.   The RFP
states that the three public order guidelines are based on standards in
“most, if not all, countries.”  It need not be unanimous.  No logic
compels the particularities of U.S. free expression law as the
conclusive test.  A global standard typically requires some chipping at
the extreme edges of competing systems.  We would not accept the speech
restrictions of the ten (or fifty) most restrictive countries; we should
not insist on the speech rights of the ten most liberal, especially when
the speech value of a TLD string is so minimal.  As glorious as free
speech is to an American, we must respect that others may equally value
stopping race discrimination, protecting children from sexual
exploitation, and respecting the lives of Nazi victims.

4.      Even if U.S. law were the test, these three guidelines are not

A.      The proper analogy in U.S. law is to broadcast law anyway.  If
indeed U.S. law is the appropriate standard for ICANN, then the law to
apply is the broadcast indecency rule upheld by the Supreme Court in
United States v. Pacifica, 438 U.S. 726 (1978).  The statute permits the
Federal Communications Commission (FCC) to punish broadcast media that
allow “indecent” content, a far broader standard than those in
Recommendation 6.  

It is true that the Supreme Court in Reno v. ACLU, 521 U.S. 844, 845-46
(1997), refused to apply the broadcast indecency rule to ordinary
publications made on the Internet.  But the Court’s carefully
explained reasons in Reno for not applying Pacfica are entirely absent
in the case of a TLD.  The application of Pacific turns on three things:
pervasiveness, scarcity, and history.  

Consider the phrase “.com.”  It appears on every kind of public
signage, radio and television advertising, emails, and talk shows.  Its
“pervasiveness” and accessibility to children far exceeds the
particular content of a single online post that must be sought out and
digitally requested, even if one accepts the Reno Court’s
determination that the Internet, as a general matter, is not as
pervasive as radio and television.

More importantly, the Reno Court relied on the fact that television and
radio station licenses are scarce and subject to significant barriers to
entry.  In Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969), the
Court explained:

Where there are substantially more individuals who want to broadcast
than there are frequencies to allocate, it is idle to posit an
unabridgeable First Amendment right to broadcast comparable to the right
of every individual to speak, write, or publish. If 100 persons want
broadcast licenses but there are only 10 frequencies to allocate, all of
them may have the same ‘right’ to a license; but if there is to be
any effective communication by radio, only a few can be licensed and the
rest must be barred from the airwaves. Id. at 388-89.

Currently, there are only 21 TLDs in the world.  Although ICANN has
proposed opening more, the number is still extremely limited compared to
the number of speakers who would want to register a TLD.  The Internet
root system cannot accommodate all comers.  To be one of the lucky few,
an applicant must pay and estimated $185,000 at the outset and $75,000 a
year or 5% of revenue, Cost Considerations of the New gTLD Program, Oct.
24, 2008,
  This is in addition to establishing evidence of significant economic
resources, support systems, employees, and expertise - not to mention
the competition with others wanting a similar string at an auction and
the difficulty of understanding even the application process.  When
there are scarcity and barriers, the governing authority has a
legitimate interest in assuring that the few available outlets are used
for higher and more public-serving purposes.

        Finally, the Reno opinion stressed the significance of the
unregulated prior history of the Internet and the kind of speech already
available on existing webpages.  This comparison also fails with respect
to gTLDs.  None of the 21 gTLDs in the history of the Internet use
strings that would be circumscribed by the guidelines ICANN proposes for
the new gTLDs.  Permitting these minimal restrictions would not be an
effort to put the cat back in the bag or otherwise undo expectations and
use patterns.

B.      The Brandenburg Rule does not defeat these guidelines.  One
issue is how a TLD string could actually “incite” anything (other
than public protest and outrage).  This, of course, turns on the
definition of “incite.”  Some argue that the U.S. Supreme Court case
of Brandenburg v. Ohio, 395 U.S. 444 (1969), requires “immediate”
violence or harm in response to speech to warrant restrictions on
speech.  This argument is flawed for a number of reasons.  

First, the rest of the world need not be subject to a pre-technology
statement of a Court that inconsistently applies that “rule” itself,
especially in cases dealing with child pornography.  This summer, the
majority of the U.S. Supreme Court upheld in Williams v. United States,
128 S. Ct. 1830 (2008), a statute prohibiting offering to sell a
computer-generated or non-existent sexually explicit image of a minor. 
Because no actual child was hurt in the image production, the statute
must rest on other harms.  The dissent was vehement that the statute
fails under the Brandenburg rule and that the social harms of child
pornography in general are too remote.  The majority easily
distinguished speech related to pandering, or commercial sales
transactions.  Similarly, in New York v. Ferber, 458 U.S. 747 (1982),
decided more than a decade after Brandenburg, the Court upheld a speech
restriction based on long-term inducements, rather than immediate
incitement.  The Court found the distribution of images depicting sexual
activity by children “is intrinsically related to the sexual abuse of
children in [that] it contributes to the distribution network, which
must be closed if the sexual exploitation of children is to end.” Id.
at 759.  The harms of a “distribution network” are not immediate.
Second, other courts and scholars in the United States have made
powerful arguments that Brandenburg is inapplicable to Internet
communications, a question the Supreme Court has not addressed.  For
instance, John Cronan argues that the Brandenburg Court in 1969 could
not have foreseen the methods of communication that the Internet would
produce.  See John P. Cronan, The Next Challenge for the First
Amendment:  The Framework For an Internet Incitement Standard, 51 CATH.
U. L. REV. 425 (2002).  Internet communications are generally delayed,
and the speaker and hearer are almost always in different locations as
well as confronting the speech at different times.  Cronan predicts the
courts will modify the Brandenburg imminence requirement for the
Internet, focusing on the listener rather than the speaker, the intent
of speaker to incite, and other elements of the standard, rather than
immediacy.  See also Steven Penaro, Reconciling Morse with Brandenburg,
77 FORDHAM L. REV. 251, 270 (2008).  

I do not raise these cases or articles with the intent of suggesting
they are the only “True” statement of U.S. law on incitement.  (I do
not believe U.S. law is the required standard in any event.)  I raise
them to show that the Brandenburg case does not resolve the question of
U.S. law in this area, even if U.S. law were the standard.  The nuances
in the application of Brandenburg, particularly to the Internet, are
such that no definitive answer exists that would warrant ICANN to make
policy based on that case.

C.      At best, a gTLD string is commercial speech, a pointer, an
address, or a license subject to a lesser standard of scrutiny.  A gTLD
string is not the kind of “communication” that would be subject to
strict scrutiny under the First Amendment in the United States.  It is a
basis of distinguishing the paths of digital packets through electronic
routers.  The purpose of that speech is as a gatekeeper to control
access to a public place used by citizens of all ages and cultures.  A
city council can refuse to name a street something offensive to many of
its citizens, even if it could not prevent a citizen from standing on
that street and saying those words.

        Outside of the FCC and broadcasting, the most appropriate
analogy to granting a TLD is to licensing.  Many state statutes
explicitly cover public decency in the granting of entitlements.  In
Texas, an alcohol sales permit is subject to preventing conduct that is
“lewd, immoral, or offensive to public decency.” Texas Alcoholic
Beverage Code §104.01.  The California Department of Motor Vehicles
“may refuse to issue any combination of letters or numbers [on
personalized license plates] … that may carry connotations offensive to
good taste and decency.” California Vehicle Code §5105. Both of these
statutes have been challenged on First Amendment grounds and upheld as
constitutional. Although some restrictions that were much broader or
subject to unguided agency discretion have been found unconstitutional,
ICANN’s gTLD limitations in Recommendation 6 are sufficiently
specific, minimal, and clear. 

Other state and federal laws also govern public morality in a
commercial context.  For example, federal debt collectors may not use
“obscene or profane language,” when collecting a debt. (15 U.S.C.
§ 1692d). California statute prohibits any statements or words that are
obscene, indecent, or of immoral character on any advertising structure
or sign. (California Business & Professional Code § 5402).  In Ridley v.
Massachusetts Bay Transportation Authority, 390 F.3d 65 (2004), the
First Circuit Court of Appeals held that quasi-government companies can
prohibit advertisements containing profanity on public buses and subway

In conclusion, arguments asserting that Recommendation 6 violates
United States law are based on superficial assumptions about the First
Amendment rather than specific legal analysis of the complex case law. 
This should not be a basis for continuing to delay the new gTLD

Cheryl B. Preston
Edwin M. Thomas
Professor of Law
J. Reuben Clark Law School
Brigham Young University
434 JRCB
Provo, UT 84602
(801) 422-2312

Attachment: gTLD statement cbp3.doc
Description: MS-Word document

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