Constitutionality of Requiring Sexually Explicit Material on the Internet to be Under a Separate Domain Name
Constitutionality of Requiring
Sexually Explicit Material on the Internet
to Be Under a Separate Domain Name
Updated July 14, 2008
American Law Division
Constitutionality of Requiring Sexually Explicit Material
on the Internet to Be Under a Separate Domain Name
It has been proposed that there be a domain on the Internet exclusively for
websites that contain sexually explicit material; it might be labeled “.xxx” to
complement the current “.com,” “.org,” and others. Some propose making use of a
“.xxx” domain voluntary, and a June 26, 2008, decision by the Internet Corporation
for Assigned Names and Numbers (ICAAN) to allow a virtually unlimited number
of top-level domain names may make the voluntary use of “.xxx” possible in 2009.
Others propose that Congress make use of “.xxx” mandatory for websites that
contain sexually explicit material. This proposal raises the question whether a
mandatory separate domain would violate the First Amendment, and this report
focuses on that question.
It is unclear whether making a “.xxx” domain mandatory would violate the First
Amendment. Whether it would be constitutional might depend upon whether a court
viewed it as a content-based restriction on speech or as analogous to the zoning of
adult theaters, or even as a mere disclosure requirement that did not raise a significant
First Amendment issue. If a court viewed it as a content-based restriction on speech,
then it would be constitutional only if the court found that it served a compelling
governmental interest by the least restrictive means. Other factors that could affect
its constitutionality might be whether it imposed criminal penalties and whether it
were limited to websites that are predominantly pornographic.
A Voluntary “.xxx” Domain.....................................1
Constitutionality of a Mandatory “.xxx” Domain.....................3
Breadth of the requirement..................................9
Constitutionality of Requiring
Sexually Explicit Material on the Internet
to Be Under a Separate Domain Name
A Voluntary “.xxx” Domain
It has been proposed that there be a domain on the Internet exclusively for
Websites that contain sexually explicit material; it might be labeled “.xxx” to
complement the current “.com,” “.org,” and others. Some propose making use of a
“.xxx” domain voluntary, but others propose that Congress make it mandatory. The
latter proposal raises the question whether a mandatory separate domain would
violate the First Amendment, and this report focuses on that question.
Congress has already provided for a “.kids” domain: the Dot Kids
Implementation and Efficiency Act of 2002 directs the National Telecommunication
and Information Administration (NTIA), which is an agency in the Department of
Commerce, to establish a “new domain” “that provides access only to material that
is suitable for minors and not harmful to minors.”1 The URL for the domain is2
[http://www.kids.us], and that site lists 20 websites that use the domain.
An article reports that chairman and president of ICM Registry Inc., “Stuart
Lawley, a Florida entrepreneur, [is] trying to establish a pornography-only ‘.xxx’
domain. In such a realm, Lawley could restrict porn marketing to adults only, protect
users’ privacy, limit span and collect fees from Web masters. The .xxx proposal was
finally slated for approval in August  by the Internet Corporation for Assigned
Names and Numbers (Icann), but because of a flurry of protest,”3 was deferred, and,
on May 10, 2006, ICAAN voted against the establishment of a “.xxx” domain.
Another article explains that the reason that the proposal was put off is that “the
Commerce Department sought more time to hear objections [and] ICANN cannot
move forward without Commerce Department approval.”4
1 P.L. 107-317 (2002), 47 U.S.C. § 941.
3 Jascha Hoffman, “Porn Suffix, The” (sic), New York Times Magazine (December 11,
4 Eric J. Sinrod, “Time For A .xxx Internet Domain?” [http://writ.news.findlaw.com/
comme ntary/ 20051229_sinrod.html ].
On January 6, 2007, the Associated Press reported that ICAAN had revived the
proposal and opened it for public comment, but, on March 30, 2007, ICAAN rejected
On June 26, 2008, ICAAN approved a plan that would allow a virtually
unlimited number of top-level domains names. The plan could disallow a name for
only a few reasons, such as that it is confusingly similar to an existing name or is
“contrary to generally accepted legal norms relating to morality and public order that
are recognized under international principles of law.”6 It remains to be seen whether,
under this plan, ICAAN would approve an application to use a “.xxx” domain.
Before the plan takes effect, ICAAN must approve a final version of it; this is
expected to occur in early 2009.7
Some opponents of pornography support the proposal for a voluntary “.xxx”
domain and some oppose it; likewise, some in the pornography business support the
proposal and some oppose it. Both the above-mentioned articles comment on the
support and opposition to the proposal:
The proposal has had its share of critics. Some of them claim that a .xxx domain
would provide legitimacy to the pornography industry. Supporters claim that a
.xxx domain would make it easier for people to filter out content they do not
The Family Research Council warns that it [the proposal] will simply breed more
smut. But Senator Joe Lieberman supports a virtual red-light district because he
says it would make the job of filtering out porn easier.
Meanwhile, some pornographers, apparently drawn by the promise of catchier
and more trustworthy U.R.L.’s, have gotten behind Lawley. Other skin-peddlers,
echoing the A.C.L.U., see the establishment of a voluntary porn zone as the first
step toward the deportation of their industry to a distant corner of the Web,
where their sites could easily be blocked by skittish Internet service providers,8
credit card companies and even governments.
Finally, some opponents of pornography oppose the proposal for a voluntary
“.xxx” domain because “sites would be free to keep their current ‘.com’ address in
5 Associated Press, “Plan Would Create ‘.xxx’ Web Porn Domain,” New York Times
(January 6, 2007); Thomas Crampton, “Agency Rejects .xxx Suffixes for Sex-Related Sites
on Internet,” New York Times (March 31, 2007).
6 ICANN Generic Names Supporting Organisation, Final Report, Introduction of New
Generic Top-Level Domains, 8 August 2007. [http://gnso.icann.org/issues/new-gtlds/pdp-
7 “Biggest Expansion in gTLDs Approved for Implementation” (June 26, 2008).
[ ht t p: / / www.i cann.or g/ en/ a nnouncement s / a nnouncement -4-26j un08-en.ht m] .
8 Hoffman, supra, note 3.
effect making porn more easily accessible by creating yet another channel to house
Constitutionality of a Mandatory “.xxx” Domain
Two bills have been introduced to create a mandatory “.xxx” domain for
material that is “harmful to minors,” as the bills would define the term. They are S.
2426, 109th Congress, which was introduced by Senator Baucus, and S. 2137, 107th
Congress, which was introduced by Senator Landrieu. Both bills direct the Secretary
of Commerce, acting through the National Telecommunications and Information
Administration, to establish the new domain.
The rest of this report will consider the constitutionality of a mandatory “.xxx”
domain, without focusing on these bills or any other particular proposal. It does not
matter for constitutional purposes specifically how the bill would define the material
that it would require to be in the “.xxx” domain; we will assume merely that such
material would include sexually explicit material that is protected by the First
Amendment. And all sexually explicit material is generally protected by the First
Amendment, unless it constitutes obscenity, or child pornography that is produced
with an actual minor.10
Content-based discrimination. To require that websites with sexually
explicit material be under a separate domain name would be to treat such material
differently from other speech, and therefore could be viewed as discriminating
against speech on the basis of its content. The Supreme Court has said that “[i]t is
rare that a regulation restricting speech because of its content will ever be
permissible.”11 As a general rule, the Supreme Court will uphold a content-based
speech regulation only if it satisfies “strict scrutiny,” which means only if it is
necessary “to promote a compelling interest” and is “the least restrictive means to12
further the articulated interest.” By contrast, if a regulation of speech is “justified
without reference to the content of the speech,” then the Supreme Court considers it
“content-neutral” and will uphold it if it “is designed to serve a substantial
governmental interest and allows for reasonable alternative avenues of13
communication.” In other words, if a regulation of speech has a purpose other than
to protect people from harm that the speech itself might cause, then it stands a better
chance of being found constitutional.
One might argue that, although requiring sexually explicit material to be under
a separate domain name would discriminate against speech on the basis of its content,
9 Brian Bergstein, “Asia gets domain, .xxx delayed,” Miami Herald (December 6, 2005).
10 See CRS Report 98-670, Obscenity, Child Pornography, and Indecency: Recent
Developments and Pending Issues, by Henry Cohen.
11 United States v. Playboy Entertainment Group, Inc., 529 U.S. 801, 818 (2000).
12 Sable Communications of California, Inc. v. Federal Communications Commission, 492
U.S. 115, 126 (1989).
13 Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 50 (1986) (emphasis in original).
that would not be the purpose of the requirement, and the requirement could be
justified without reference to the content of the speech it would regulate. Its purpose
would arguably be to facilitate parents’ or librarians’ use of filters when children
access the Internet. It would accomplish this by dividing websites into two categories
— those with sexually explicit material and those without it. This could be viewed
as analogous to requiring “adult” movie theaters to locate in areas that are zoned for
them. In City of Renton v. Playtime Theaters, Inc., the Supreme Court upheld such
zoning on the theory that it “is not aimed at the content of the films shown at ‘adult
motion picture theaters,’ but rather at the secondary effects of such theaters on the
surrounding community.”14 “The ordinance by its terms is designed to prevent crime,
protect the city’s retail trade, maintain property values, and generally ‘protec[t] and
preserv[e] the quality of [the city’s] neighborhoods, commercial districts, and the
quality of urban life,’ not to suppress the expression of unpopular views.”15
Analogously, one might argue, to restrict sexually explicit material to a separate
domain name arguably would “zone” certain websites not because of the content of
their speech but to lessen the “secondary effect” of minors’ viewing those websites
without parental approval. In effect, the proposal, like a zoning ordinance, would
seek to isolate certain material into particular “neighborhoods” in cyberspace, and
assist parents in preventing their children from visiting those “neighborhoods.”
A possibly fatal flaw with this analogy, however, is that, in Renton, the
secondary effects that the zoning ordinance sought to prevent — crime, lowered
property values, and a deterioration in the quality of urban life — were not effects of
viewing the regulated speech itself. The “.xxx” proposal, by contrast, would
apparently attempt to protect minors from the effects of viewing the regulated speech
itself, and these effects therefore are arguably not “secondary” in the sense that the
Supreme Court meant in Renton. The “.xxx” proposal, from this view, would impose
a burden on speech because Congress deems it harmful, and that is not a sufficient
basis on which the government may regulate speech in a manner that affects adults,
unless the regulation satisfies strict scrutiny.16 In Ashcroft v. Free Speech Coalition,
for example, the Supreme Court struck down a federal statute that banned “virtual”
child pornography and other child pornography produced without the use of an actual
minor, despite various harms that the government claimed that viewing such
pornography could cause, such as “whet[ting] the appetites of pedophiles and
14 Id. at 47 (emphasis in original).
15 Id. at 48.
16 If sexually explicit speech is regulated in a manner that affects only minors, then it is more
likely to be constitutional. In Ginsberg v. New York, 390 U.S. 629, 634 (1968), for example,
the Supreme Court upheld a state statute that prohibited the sale to minors of what the Court
called “‘girlie’ picture magazines.” When, however, the government has restricted adults’
access to speech, even with the purpose of protecting minors, the Court has held that “the
Government may not ‘reduc[e] the adult population . . . to . . . only what is fit for children.’”
See, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 875 (1997), in which the
Court struck down the part of the Communications Decency Act of 1996 that prohibited
“indecent” material on the Internet.
encourag[ing] them to engage in illegal conduct.”17 The Supreme Court has stated:
“We have made clear that the lesser scrutiny afforded regulations targeting the
secondary effects of crime or declining property values has no application to content-
based regulations targeting the primary effects of protected speech. The statute now
before us burdens speech because of its content; it must receive strict scrutiny.”18
Thus, a court might view the “.xxx” proposal either as a content-based
regulation, which is constitutional only if it satisfies strict scrutiny by advancing a
compelling governmental interest by the least restrictive means; or as a content-
neutral regulation, which is constitutional if it advances a substantial governmental
interest and allows for reasonable alternative avenues of communication. We will
apply these two tests to the “.xxx” proposal, in the sections below titled “Strict
scrutiny” and “Content-neutral scrutiny.” First, however, we will explain why the
“.xxx” proposal would even raise a free speech issue, in light of the fact that it would
not censor speech.
Compelled speech. The “.xxx” proposal could be viewed as, in effect,
compelling speech on the part of websites with sexually explicit material. It would
compel them to identify themselves, through use of a separate domain name, as
containing such material. In general, it is as unconstitutional for the government to19
compel speech as it is for it to censor speech, except in the commercial context. In
Riley v. National Federation of the Blind of North Carolina, Inc., a North Carolina
statute required professional fundraisers for charities to disclose to potential donors
the gross percentage of revenues retained in prior charitable solicitations. The
Supreme Court held this unconstitutional, writing
There is certainly some difference between compelled speech and compelled
silence, but in the context of protected speech, the difference is without
constitutional significance, for the First Amendment guarantees “freedom of
speech,” a term necessarily comprising the decision of both what to say and what20
not to say.
17 535 U.S. 234, 253 (2002).
18 Playboy, supra note 11, 529 U.S. at 815 (citations omitted). See also, Reno v. American
Civil Liberties Union, 521 U.S. 844, 867-868 (1997) (rejecting the government’s claim that
prohibiting “indecent” material on the Internet “constitutes a sort of ‘cyberzoning’” aimed
at “‘secondary’ effects”), and separate opinion by Justice O’Connor in Reno, 529 U.S. at
19 Compelling commercial speech (i.e., disclosures in commercial advertisements and on
product labels) is generally constitutional because the Supreme Court has held that “an
advertiser’s rights are reasonably protected as long as disclosure requirements are
reasonably related to the State’s interest in preventing deception of consumers. . . . The
right of a commercial speaker not to divulge accurate information regarding his services is
not . . . a fundamental right.” Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626,
20 487 U.S. 781, 796-797 (1988) (italics in original).
In Meese v. Keene, however, the Court upheld compelled disclosure in a
noncommercial context.21 This case involved a provision of the Foreign Agents
Registration Act of 1938, which requires that, when an agent of a foreign principal
seeks to disseminate foreign “political propaganda,” he must label such material with
certain information, including his identity, the principal’s identity, and the fact that
he has registered with the Department of Justice. The material need not state that it
is “political propaganda,” but one agent objected to the statute’s designating material
by that term, which he considered pejorative. The agent wished to exhibit, without
the required labels, three Canadian films on nuclear war and acid rain that the Justice
Department had determined were “political propaganda.”
In Meese v. Keene, the Supreme Court upheld the statute’s use of the term,
essentially because it considered the term not necessarily pejorative. On the subject
of compelled disclosure, the Court wrote:
Congress did not prohibit, edit, or restrain the distribution of advocacy
materials. . . . To the contrary, Congress simply required the disseminators of
such material to make additional disclosures that would better enable the public
to evaluate the import of the propaganda.22
One might infer from this that compelled disclosure, in a noncommercial
context, gives rise to no serious First Amendment issue, and nothing in the Court’s
opinion would seem to refute this inference. Thus, it seems impossible to reconcile
this opinion with the Court’s holding a year later in Riley (which did not mention
Meese v. Keene) that, in a noncommercial context, there is no difference of
constitutional significance between compelled speech and compelled silence.
In Meese v. Keene, furthermore, the Court did not mention earlier cases in which
it had struck down laws compelling speech in a noncommercial context. For
example, in Wooley v. Maynard, the Court struck down a New Hampshire statute
requiring motorists to leave visible on their license plates the motto “Live Free or
Die”23; in West Virginia State Board of Education v. Barnette, the Court held that a
state may not require children to pledge allegiance to the United States24; and, in
Miami Herald Publishing Co. v. Tornillo, the Court struck down a Florida statute that
required newspapers to grant political candidates equal space to reply to the
newspapers’ criticism and attacks on their record.25
In any event, if one views the “.xxx” proposal as discriminating on the basis of
content, then one could cite most of the compelled speech cases for the proposition
that the “.xxx” proposal would be unconstitutional unless it can pass strict scrutiny.
But one could cite Meese v. Keene (adapting the above quotation from it) to argue
that the “.xxx” proposal would be constitutional because it would “not prohibit, edit,
21 481 U.S. 465 (1987).
22 Id. at 480.
23 430 U.S. 705 (1977).
24 319 U.S. 624 (1943).
25 418 U.S. 241 (1974).
or restrain the distribution of [sexually explicit material]. . . . To the contrary,
Congress [would] simply require[ ] the disseminators of such material to make
additional disclosures that would better enable the public to evaluate the [content] of
Strict scrutiny. If the “.xxx” proposal were viewed as content-based, and not
as constitutional simply by virtue of its similarity to the statute upheld in Meese v.
Keene, then, as noted, it would be subject to “strict scrutiny,” which means that it
would be constitutional only if it is necessary “to promote a compelling interest,” and
is “the least restrictive means to further the articulated interest.”26
Though the Supreme Court may be becoming less absolute in viewing the
protection of all minors, regardless of age, from all sexual material, to be a
compelling interest,27 it has never struck down, on the ground that it did not further
a compelling governmental interest, a statute aimed at denying minors access to
sexual material. Rather, the Court tends to assume the existence of a compelling
governmental interest in denying minors access to pornography and move on to the
“least restrictive means” part of the strict scrutiny test, upholding or striking down
the statute on that issue. In striking down the part of the Communications Decency
Act of 1996 that banned from the Internet all “indecent” material that was accessible
to minors, the Court wrote:
In order to deny minors access to potentially harmful speech, the CDA
effectively suppresses a large amount of speech that adults have a constitutional
right to receive and to address to one another. That burden on adult speech is
unacceptable if less restrictive alternatives would be at least as effective in28
achieving the legitimate purpose that the statute was enacted to serve.
The “.xxx” proposal would not suppress speech, but would only compel it to be
under a separate domain name. But are there less restrictive means by which to
accomplish the “.xxx” proposal’s goal? We will consider two alternative means.
One alternative might be to make use of the separate domain name voluntary.
The question with respect to this alternative would be whether there would be an
incentive for sexually explicit websites to use a separate domain name voluntarily —
an incentive sufficient to induce enough of them to use a separate domain name so
as to make the proposal as effective as it would be if it compelled them to use a
separate domain name. An incentive, arguably, is that, just as the proposal would
make it easier to block websites that use a separate domain name, it might make it
easier to locate websites that use a separate domain name.
In addition, one might argue, a statute could effectively make use of a separate
domain name mandatory only for websites based in the United States, as the U.S.
26 Sable, supra, note 12.
27 See, THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND
INTERPRETATION (2004), at 1233, n.1146 (n.1174 in the Web version at
[ h t t p : / / www.cr s.go v/ pr oduct s / c onan/ Amendment 01/ t opi c_3_12_12.ht ml ] ) .
28 Reno, supra note 16, 521 U.S. at 874.
government does not generally have authority over foreign websites. Therefore, a
statute that mandated use of a separate domain name would not cover all websites
with sexually explicit material, and this would appear to strengthen the case that
voluntary use of a separate domain name would be as effective as mandatory use.29
A second alternative to the proposal might be one that already exists: the Dot
Kids Implementation and Efficiency Act of 2002, mentioned at the beginning of this
report. This statute may enable parents who wish to do so to block out all websites
not under the “dot kids” domain name. If parents used a filter to prevent their
children from gaining access to any website that does not use the “dot kids” domain,
then they would be denying their children access to much material on the Internet that
is not sexually explicit. If one deems a purpose of both the “Dot Kids” statute and
the “.xxx” proposal to be not only to deny children access to sexually explicit
material, but not to deny them access to non-sexually explicit material, then the “Dot
Kids” Act might be viewed as less effective than the “.xxx” proposal, and therefore
as not an adequate alternative to the latter. But, in another respect, the “Dot Kids”
statute could be more effective because it could enable parents to block foreign as
well as domestic websites; in that respect it might be viewed as an adequate
alternative to the “.xxx” proposal.
Content-neutral scrutiny. If a court were to find the “.xxx” proposal to be
analogous to the zoning of “adult” theaters that the Supreme Court has upheld, then
it would ask whether the proposal is designed to serve a substantial governmental
interest and allows for reasonable alternative avenues of communication. Because
it appears that a court would likely find the proposal to serve a “compelling” interest,
a court would ipso facto likely find the proposal to meet the less rigorous test of
serving a “substantial” interest. And, because the proposal would not prevent anyone
from posting protected speech, but would merely require them to post some speech
under a separate domain name, it apparently could not even be said to reduce their
avenues of communication except insofar as Internet users chose to block websites
that used the separate domain name. Though the proposal would presumably
facilitate such blocking, it would not require it, and therefore would seem likely to
be found constitutional if this less-than-strict-scrutiny test were applied.
Criminal penalties. A factor that might make a difference to the “.xxx”
proposal’s constitutionality is whether it imposed criminal penalties; if it did, that
might tip the balance toward making it unconstitutional. In Reno v. American Civil
Liberties Union, the Supreme Court, in striking down the Communications Decency
Act of 1996, was apparently influenced by the fact that the statute would have
imposed criminal penalties, including imprisonment.30 It distinguished Federal
Communications Commission v. Pacifica Foundation, in which it had upheld the ban
on “indecent” material on broadcast media, in part on the ground that the radio
station that had broadcast George Carlin’s “Filthy Words” monologue had been
29 This was one of the reasons that the Supreme Court upheld a preliminary injunction
against enforcement of the Child Online Protection Act. See, Ashcroft v. American Civil
Liberties Union, 542 U.S. 656, 667 (2004) (“The District Court noted in its factfindings that
one witness estimated that 40% of harmful-to-minors content comes from overseas”).
30 Reno, supra, note 16, 521 U.S. at 867.
penalized with only a Federal Communications Commission declaratory order.31
“[T]he Commission’s declaratory order,” the Court in Reno wrote, “was not punitive;
we expressly refused to decide whether the indecent broadcast ‘would justify a
Breadth of the requirement. Another factor that might make a difference
to the “.xxx” proposal’s constitutionality is whether it applied only to websites that
contained predominantly pornographic material, or it applied to any posting of
material that might be deemed pornographic, even on websites that did not contain
predominantly pornographic material. The latter approach would seem more
problematic from a constitutional standpoint because it would deter any website not
under the “.xxx” domain name from posting material that might be deemed
pornographic, even if the website posted it for other than pornographic purposes, and
even if the website contained material that was predominantly, for example, of a
literary, artistic, or medical nature that would not attract children.
But even a proposal that applied only to websites that contained predominately
pornographic material might be unconstitutional if it defined too vaguely the websites
that it would require to use the “.xxx” domain. The constitutional problem with an
overly vague definition is that it might deter a website that did not use the “.xxx”
domain from posting sexually explicit material for its literary, artistic, or medical
content. It might be deterred for fear that the material could be construed as
pornographic and the website sanctioned. A vague law violates due process because
it fails to “give the person of ordinary intelligence a reasonable opportunity to know
what is prohibited, so that he may act accordingly. . .. [P]erhaps the most important
factor affecting the clarity that the Constitution demands of a law is whether it
threatens to inhibit the exercise of constitutionally protected rights. If, for example,
the law interferes with the right of free speech or of association, a more stringent33
vagueness test should apply.”
Conclusion. If a court were to apply “strict scrutiny” to the “.xxx” proposal,
then it appears difficult to predict whether it would be constitutional. Although it
seems likely that the Supreme Court would find that it serves a compelling
governmental interest, it is not certain whether it would find that it would be the least
restrictive means to serve that interest. If a court were to apply “content-neutral
scrutiny,” or if the Court were to follow its reasoning in Meese v. Keene, then it
seems likely that it would find the “.xxx” proposal to be constitutional.
31 438 U.S. 726 (1978).
32 Reno, supra note 16, 521 U.S. at 867.
33 Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 497-499 (1982).