Thus, despite the general principle that requires a court to consider statutory issues first, thus avoiding the need to decide constitutional issues, in this case we begin with the First Amendment. A. Porta's Non-Commercial Speech Enjoys Full First Amendment Protection. Plaintiff's action to enforce its trademark implicates the First Amendment even though plaintiff is not a government actor. An injunction sought by private parties is still government action by a court, which is therefore subject to scrutiny under the First Amendment. Nor can it be disputed that Porta's web site is protected by the First Amendment.
Numerous cases hold that consumer commentary is core speech protected by the First Amendment.
Many other cases have similarly treated criticisms of a company's products or business practices as speech protected by the First Amendment. This is core speech that is fully protected by the First Amendment. Furthermore, it is not just the web site generally, but Porta's use of plaintiff's trademark in his domain name, that constitute protected speech. The courts have repeatedly held that the use of trademarks constitutes speech within the protection of the First Amendment. Even if the only purpose of a domain name was to show the sponsor , and not the topic, of a web page, the proposition that the use of particular words is not speech if their only purpose is to denote the source of the speech is fallacious.