Speaking to XBiz about the bill, Santa Monica criminal defense attorney and Free Speech Coalition Board Chairman Jeffrey Douglas felt that the recent action by Sens. Max Baucus and Mark Pryor had more to do with political than legal motivations.
Douglas said that the bill’s constitutional shortcomings raised issues that courts have repeatedly addressed. Notably, the bill inadequately defines what would constitute material that is harmful to minors.
“The most troubling constitutional issue from a 1st Amendment perspective is that the bill doesn’t use a community standards test to define what ‘material harmful to minors’ would be,” Douglas said. “That means that if this bill were law, a jury in one small town would have the power to decide what the national obscenity standards are. That would be impossible and the courts have rejected that.”
According to Douglas, the absence of a community standards test in the bill will likely prove to be its fatal flaw in a court challenge.
Nevertheless, .XXX raises more than just free speech concerns. The bill requires all adult sites to register under the new domain, but it also forces publishers to give up valuable domains elsewhere.
“It’s akin to the government seizing a newspaper, the way it would in an imminent domain case,” Douglas said. “Of course, this bill doesn’t talk about compensation for the taking, and the truth is that you really can’t put a price on speech the way you would for land.”
Keeping with the real estate metaphor, Baucus had this to say in a press conference: “This bill will section off a piece of the Internet neighborhood and confine adult sites to one location. It will give parents more tools to protect our kids. Parents should not have to worry about their children surfing into websites for adults – either on purpose or by accident.”
While Douglas agrees that protecting children is an extremely important concern, he wasn’t so sure about Baucus’ motives.
“What he’s really saying is that he doesn’t like this kind of speech,” Douglas told XBiz. “This kind of law treats us all like children; the courts have not been favorable to laws like that.”
Baucus’ office did not return calls from XBiz.
Practical Details of the Bill That Remain Uncertain
The bill gives few details about how it will enforce the proposed top-level domain. According to Tom Hymes, communications director for the FSC, the bill simply ignores the process that ICANN uses.
ICM Registry, which had originally pushed for .XXX and to operate the TLD’s voluntary registration system, expressed mixed feelings about the bill.
"We appreciate the concerns expressed by some members of Congress regarding this issue and will continue to stay in dialog with legislators and public officials, not only in the U.S. but across the globe,” ICM’s Stuart Lawley said. “No mandatory law, however, will produce better, more comprehensive results, sooner than the voluntary, self-regulatory approach being proposed by ICM Registry."