Wednesday, Augu. 14, 20001
Web Dispute Over ‘Seven Dirty Words’ Moot, Ninth Circuit Rules
By a MetNews Staff Writer
A dispute over whether an Internet domain registrar can reject proposed names because of their vulgarity was turned away as moot yesterday by the Ninth U.S. Circuit Court of Appeals.
Lawyers for Seven Words LLC and the ACLU Foundation of Southern California had hoped to establish a precedent that domain names are protected by the broad “liberty of speech” clause of the California Constitution.
But Judge M. Margaret McKeown, writing for the appellate panel, said the court couldn’t decide the case because all 16 of the proposed names had been registered to other parties while the case was pending.
The court dismissed Seven Words’ appeal of a ruling by U.S. District Judge Stephen V. Wilson of the Central District of California that the complaint failed to state a cause of action.
Seven Words sought to register the domain names, variations of the “Seven Words You Can Never Say on Television” according to a famous 1972 routine by comedian George Carlin, in early 1999. But Network Solutions, Inc., which at the time was the exclusive registrar of .com, .net, .edu, and .org domain names under contract with the federal government, turned down the applications.
NSI had adopted a policy in 1996 banning registration of domain names containing the seven words.
Seven Words sued in federal court in Los Angeles, but Wilson transferred the case to the District of New Hampshire so that it could be consolidated with a suit brought there against NSI by Internet entrepreneur Lynn Haberstroh.
Seven Words then sued in Los Angeles Superior Court, basing all of its claims on state law, but NSI removed the case to federal court and moved that it be dismissed or transferred to the District of New Hampshire.
Wilson granted the dismissal, leading to the appeal ruled on yesterday. In the meantime, Seven Words’ first suit was dismissed in New Hampshire for procedural reasons.
The jurist in New Hampshire, District Judge Stephen McAuliffe, later dismissed the Haberstroh suit on the merits. NSI is a private, not a state, actor, the judge ruled.
He also held that a domain name is not a public forum.
McKeown, writing for the Ninth Circuit, concluded that the appeal from the dismissal of the second Seven Words suit is moot because “Seven Words never availed itself of the various opportunities it had to prevent registration of those names by third parties.”
The plaintiff, she noted, didn’t appeal Wilson’s denial of a preliminary injunction that would have barred third parties from registering the names or the dismissal of its first suit by McAuliffe. Nor, McKeown pointed out, did it attempt to block the registration of the last four domain names after they were released by McAuliffe’s order at the conclusion of the Haberstroh suit.
Judge Raymond C. Fisher and Senior Judge Frank Magill of the Eighth Circuit, sitting by designation, concurred in the opinion.
Attorneys on appeal were Jay M. Spillane of Fox & Spillane for the plaintiff, and Suzanne V. Wilson and James S. Blackburn of Arnold & Porter for NSI. The ACLU Foundation, as amicus, was represented by staff attorney Peter J. Eliasberg and by Stephen F. Rohde of Rohde & Victoroff.
The case is Seven Words LLC v. Network Solutions, 99-56909.
Copyright 2001, Metropolitan News Company