	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. On June 26, 2008, ICANN approved a plan that would allow a virtually unlimited number of top-level domains names. This could be viewed as analogous to requiring "adult" movie theaters to locate in areas that are zoned for them. 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." 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.
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 (ICANN) 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.