     Case: 11-11136   Document: 00512037538   Page: 1   Date Filed: 10/30/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                               October 30, 2012

                                  No. 11-11136                   Lyle W. Cayce
                                                                      Clerk

JOHN E. GIBSON, In his Individual Capacity, doing business as John Gibson
& Associates,

              Plaintiff - Appellant

v.

TEXAS DEPARTMENT OF INSURANCE - DIVISION OF WORKERS’
COMPENSATION; ROD BORDELON, Commissioner, Texas Department of
Insurance, Division of Workers’ Compensation, in His Official Capacity,

              Defendants - Appellees



                  Appeal from the United States District Court
                       for the Northern District of Texas


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
        In February 2011 the Texas Department of Insurance issued a cease and
desist letter to Appellant John Gibson, arguing that his use of the words “Texas”
and “Workers’ Comp” in the domain name of his website violated § 419.002 of the
Texas Labor Code. Gibson filed a complaint in the Northern District of Texas,
alleging that the statute was unconstitutional under the First, Fifth, and
Fourteenth Amendments. The district court dismissed the complaint for failure
   Case: 11-11136    Document: 00512037538      Page: 2   Date Filed: 10/30/2012



                                   No. 11-11136

to state a claim. For the following reasons, we AFFIRM in part and REVERSE
in part.
                        FACTS AND PROCEEDINGS
      John Gibson is an attorney who represents plaintiffs in workers’
compensation claims and contested cases in Texas. Pursuant to this practice,
Gibson     maintains      a    website      under   the    domain      name        of
“texasworkerscomplaw.com” in which he discusses matters related to Texas
workers’ compensation law.        He also uses the website to advertise and
disseminate information about his law practice.
      On February 7, 2011, Gibson received a cease and desist letter from the
Texas Department of Insurance, Division of Workers’ Compensation (“DWC”),
requesting that he no longer use the above-stated domain name. The letter
alleged that Gibson’s website violated § 419.002 of the Texas Labor Code, which
states:
      a) Except as authorized by law, a person, in connection with any
      impersonation, advertisement, solicitation, business name, business
      activity, document, product, or service made or offered by the person
      regarding workers’ compensation coverage or benefits, may not
      knowingly use or cause to be used:

            (1) the words “Texas Department of Insurance,” “Department
            of Insurance,” “Texas Workers’ Compensation,” or “division of
            workers’ compensation”;

            (2) any term using both “Texas” and “Workers’ Compensation”
            or any term using both “Texas” and “Workers’ Comp”;

            (3) the initials “T.D.I.”; or

            (4) any combination or variation of the words or initials, or
            any term deceptively similar to the words or initials,
            described by Subdivisions (1)-(3).




                                            2
   Case: 11-11136    Document: 00512037538      Page: 3   Date Filed: 10/30/2012



                                  No. 11-11136

      (b) A person subject to Subsection (a) may not knowingly use or
      cause to be used a word, term, or initials described by Subsection (a)
      alone or in conjunction with:

            (1) the state seal or a representation of the state seal;

            (2) a picture or map of this state; or

            (3) the official logo of the department or the division or a
            representation of the department’s or division’s logo.

Tex. Labor Code § 419.002. Although DWC’s letter requested a response, Gibson
did not provide any written response, nor did he request any form of procedural
review from DWC.
      Instead, Gibson filed the instant suit, alleging that the regulation violates
various constitutional provisions including the First Amendment’s guarantee of
freedom of speech, the Fourteenth Amendment’s guarantees of equal protection
and due process, and the Fifth Amendment’s prohibition on takings. Gibson
sought declaratory and injunctive relief pursuant to 28 U.S.C. § 2201 and 42
U.S.C. § 1983 as well as attorneys’ fees pursuant to 42 U.S.C. § 1988. The
district court dismissed Gibson’s Fifth and Fourteenth Amendment claims under
Federal Rule of Civil Procedure 12(b)(6), along with Gibson’s First Amendment
as-applied challenge. The district court declined to consider Gibson’s First
Amendment facial challenge. Gibson appealed.
                          STANDARD OF REVIEW
      This court reviews a district court’s dismissal for failure to state a claim
de novo, accepting all well-pleaded facts as true and viewing those facts in the
light most favorable to the plaintiff. Bowlby v. City of Aberdeen, 681 F.3d 215,
219 (5th Cir. 2012) (citation and internal quotation marks omitted). A complaint
will not survive a motion to dismiss unless it pleads sufficient facts to allow the
court to draw a reasonable inference that the defendant is liable for the alleged


                                        3
   Case: 11-11136    Document: 00512037538      Page: 4   Date Filed: 10/30/2012



                                  No. 11-11136

misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)). The allegations stated in the complaint
must be enough to “raise a right to relief above the speculative level[.]”
Twombly, 550 U.S. at 555. “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555).
                                 DISCUSSION
1. Gibson’s First Amendment As-Applied Challenge
      The United States Supreme Court has recognized that commercial speech
is protected by the First Amendment. Va. State Bd. of Pharmacy v. Va. Citizens
Consumer Council, Inc., 425 U.S. 748, 770 (1976). However, “[t]he Constitution
. . . accords a lesser protection to commercial speech than to other
constitutionally guaranteed expression.” Cent. Hudson Gas v. Pub. Serv.
Comm’n, 447 U.S. 557, 562-63 (1980). Regulations on commercial speech are
permissible as long as they satisfy the four-part test set forth in Central Hudson:
      At the outset, we must determine whether the expression is
      protected by the First Amendment. For commercial speech to come
      within that provision, it at least must concern lawful activity and
      not be misleading. Next, we ask whether the asserted governmental
      interest is substantial. If both inquiries yield positive answers, we
      must determine whether the regulation directly advances the
      governmental interest asserted, and whether it is not more
      extensive than is necessary to serve that interest.

Id. at 566. Before reaching the commercial speech analysis we must first dispose
of two arguments put forward by Gibson in support of his allegation that the
regulation at issue deserves a higher level of protection than that normally
reserved for commercial speech.
      First, Gibson argues that the regulation is not content-neutral, and
therefore this court should evaluate the regulation under the test traditionally
reserved for content-based discrimination. See Turner Broad. Sys., Inc. v.

                                        4
   Case: 11-11136    Document: 00512037538      Page: 5   Date Filed: 10/30/2012



                                  No. 11-11136

F.C.C., 512 U.S. 622, 642 (1994) (“Our precedents thus apply the most exacting
scrutiny to regulations that suppress, disadvantage, or impose differential
burdens upon speech because of its content . . . [but] regulations that are
unrelated to the content of speech are subject to an intermediate level of
scrutiny[.]”). Gibson’s argument is unavailing. Texas’s law does not prohibit
Gibson’s use of his domain name because of the viewpoint it expresses, nor does
it prohibit all speech relating to workers’ compensation in Texas. See Hill v.
Colorado, 530 U.S. 703, 719, 722-23 (2000) (holding that a statute is content-
netural when it “places no restrictions on – and clearly does not prohibit – either
a particular viewpoint or any subject matter that may be discussed by a
speaker”).
      Gibson nevertheless argues that the statute at issue amounts to content
discrimination because the domain name is “inextricably intertwined” with the
content of his website, which includes his views on the need for compensation
law reform. But Gibson cannot bootstrap this challenge into one of content
discrimination simply by alleging that the content-neutral regulation has a
secondary effect on speech that is outside the reach of the regulation. See id. at
725 (holding that a statute prohibiting protestors within eight feet of an abortion
clinic was constitutional because the statute was “not limited to those who
oppose abortion . . . [it applies] to all demonstrators whether or not the
demonstration concerns abortion, and whether they oppose or support the
woman who has made an abortion decision. That is the level of neutrality that
the Constitution demands.”). Because the regulation at issue applies equally to
all individuals regardless of their position or viewpoint, and because it does not
prohibit all speech relating to workers’ compensation in Texas, it does not
amount to content discrimination.
      Second, Gibson argues that this law places a prior restraint on speech
because it operates as a “wholesale prohibition on the use of certain words[.]”

                                        5
   Case: 11-11136    Document: 00512037538      Page: 6   Date Filed: 10/30/2012



                                  No. 11-11136

This argument is also unavailing. The Supreme Court has stated that laws
aimed at prohibiting deceptive commercial speech are unlikely to implicate the
prohibition on prior restraints. Friedman v. Rogers, 440 U.S. 1, 10 (1979).
Moreover, there is a clear distinction, “solidly grounded in our cases, between
prior restraints and subsequent punishments.” Alexander v. United States, 509
U.S. 544, 550 (1993). Prior restraints typically involve “administrative and
judicial orders [such as temporary restraining orders and permanent
injunctions] forbidding certain communications when issued in advance of the
time that such communications are to occur[,]” or, in other words, laws which
require a speaker “to obtain prior approval for any expressive activities.” Id. at
550, 551 (emphasis in original) (citation and internal quotation marks omitted).
Because the instant regulation instead “penalize[es] past speech,” as opposed to
“barring speech in the future,” it is not a prior restraint under the precedent set
by our case law. Id. at 553.
      a.    Commercial speech
      This brings us to the crux of the question presented by Gibson: whether
the district court erred in finding that the statute (a) prohibits commercial
speech, and (b) is a valid prohibition of commercial speech under the test set
forth in Central Hudson.
      We agree with Gibson that his domain name and blog may do “more than
propose a commercial transaction.” Bolger v. Youngs Drug Prods. Corp., 463
U.S. 60, 66 (1983).     The domain name may nevertheless be considered
commercial speech if (i) it is an advertisement of some form; (ii) it refers to a
specific product; and (iii) the speaker has an economic motivation for the speech.
See id. at 66-67. As with many new issues involving the Internet, the proper
method of analysis to determine whether a domain name is commercial speech
or a more vigorously protected form of speech is res nova. A domain name, which
in itself could qualify as ordinary communicative speech, might qualify as

                                        6
   Case: 11-11136     Document: 00512037538     Page: 7   Date Filed: 10/30/2012



                                  No. 11-11136

commercial speech if the website itself is used almost exclusively for commercial
purposes. This is an issue we need not reach or decide in this appeal without a
record of all of the surrounding facts and circumstances involving the website’s
domain name. As discussed in more detail below, even if the domain name
amounts to commercial speech, Gibson has nevertheless stated a claim under the
First Amendment. Therefore, we reverse and remand the case for further
proceedings on that basis. But we also reserve to Gibson his right in those
proceedings to argue for and adduce evidence in support of stronger protection
of his domain name as ordinary, communicative speech, and not merely as
commercial speech.
      b.       Central Hudson analysis
      Even if we assume without deciding that the domain name is commercial
speech, we must still evaluate whether the statute presents a valid restriction on
commercial speech under the test set forth in Central Hudson. To answer this
question, we first look to whether the speech restricted by the statute is “false,
deceptive, or misleading[.]” Bates v. State Bar of Ariz., 433 U.S. 350, 383 (1977).
If so, it is not entitled to First Amendment protection. Id. The Supreme Court
and this circuit have distinguished between two types of misleading speech: that
which is “inherently likely to deceive,” and that which is only “potentially
misleading.” Pub. Citizen, Inc. v. La. Attorney Disciplinary Bd., 632 F.3d 212,
218 (5th Cir. 2011) (citing In re R.M.J., 455 U.S. 191, 202-03 (1982)). In order
for speech to fall outside of the First Amendment’s protection, the speech must
either be “inherently likely to deceive,” or “the record [must] indicate[] that a
particular form or method of advertising has in fact been deceptive.” R.M.J., 455
U.S. at 202.
      Appellees primarily argue that the Texas statute is constitutional because
Gibson’s domain name amounts to inherently misleading speech. In support of
this proposition, they cite to a series of cases in which courts have held that

                                         7
    Case: 11-11136         Document: 00512037538             Page: 8       Date Filed: 10/30/2012



                                            No. 11-11136

domain names that use trademarks to misidentify the source of a product are
outside the reach of the First Amendment. The case law cited by Appellees,
however, is unique to the field of trademark infringement, see, e.g., Coca-Cola
Co. v. Purdy, 382 F.3d 774 (8th Cir. 2004), and does not necessarily extend to a
case such as this one, where Texas is prohibiting Gibson from using words that
are otherwise in the public domain.1 Cases involving trademark infringement
involve inherently deceptive speech because they contain a significant risk that
an infringing party will freeload on the goodwill that has been created by the
original trademark. See Friedman, 440 U.S. at 11-16. No such risk is present
here. Texas has made no showing that its own talents and energy contributed
to the creation of any goodwill in the name “texasworkerscomplaw.com.” See San
Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 533-34
(1987). Instead the regulation at issue is forward-thinking; intended to prohibit
confusion for individuals seeking information from the government agency. It
is not retrospective in the same way as most trademark litigation, which is
generally intended to preserve the reputation that has been built upon a trade
name. See Friedman, 440 U.S. at 11-16. Accordingly, the case law cited by
Appellees is inapposite.
        Other than cases involving trademarks, inherently deceptive speech has
been found in essentially one other area: attorney solicitation of prospective



        1
                  In most of the cases cited by Appellees the domain name was actually held not to be
protected speech because it was not expressive, not because it was misleading. See, e.g., Planned
Parenthood Fed’n of Am. v. Bucci, No. 97-cv-0629, 1997 WL 133313, at *10-11 (S.D.N.Y. Mar. 24, 1997);
Morrison & Foerster, LLP v. Wick, 94 F.Supp. 2d 1125, 1135 (D. Colo. 2000); Jews for Jesus v. Brodsky,
993 F.Supp. 282, 286 n.1 (D.N.J. 1998). Here, in contrast, Gibson’s domain name is expressive because
it does more than simply mimic the state agency’s website or identify a source of Texas Workers’
Compensation Law. See Planned Parenthood, 1997 WL 133313, at *11. The domain name is intended
to direct visitors to a forum for discussing workers’ compensation laws and their potential reform, as well
as to convey to visitors the message of Gibson’s website as a whole. Accordingly, in the context of this
case, the domain name is “‘sufficiently imbued with the elements of communication’” to place it in the
realm of expressive speech. Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 585 (2d Cir. 2000)
(quoting Spence v. Washington, 418 U.S. 405, 409-10 (1974)).

                                                    8
   Case: 11-11136          Document: 00512037538             Page: 9      Date Filed: 10/30/2012



                                            No. 11-11136

clients. See, e.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 460-62 (1978).
In Ohralik, the Court specifically noted that “[t]he substantive evils of [attorney]
solicitation have been stated over the years in sweeping terms: stirring up
litigation, assertion of fraudulent claims, debasing the legal profession, and
potential harm to the solicited client in the form of overreaching, overcharging,
underrepresentation, and misrepresentation.” Id. at 461. Given the history of
in-person solicitation, the Court was convinced that these risks were inherently
likely to occur in future solicitations, and such solicitation could therefore be
prohibited. Id.
        The same risks are simply not attendant in the speech at issue here. First,
there is no history upon which a court could conclude that speech covered by this
statute, and domain names similar to the one at issue, are inherently deceptive.2
While Texas fears that Gibson’s domain name may confuse the public, there is
no showing that the domain name is incapable of being viewed in a
non-deceptive manner. See Pub. Citizen, 632 F.3d at 219. Second, there have
been no factual findings to support an allegation that the domain name is
actually deceptive. See, e.g., R.M.J., 455 U.S. at 202; Joe Conte Toyota, Inc. v.
La. Motor Vehicle Comm’n, 24 F.3d 754, 756 (5th Cir. 1994). Therefore, the
domain name at issue is entitled to some First Amendment protection.
        Although Texas cannot show that the domain name is inherently
misleading, that is not the end of our inquiry. Under the Central Hudson test,
commercial speech that is not inherently misleading may nevertheless be
regulated as long as the regulation directly advances a substantial state interest,


        2
                 Even though Gibson’s blog may fall under the rubric of attorney solicitation, the cases
considering attorney solicitation are nevertheless distinguishable because the infraction at issue in this
case is not directly related to Gibson’s practice as an attorney. The Texas Department of Insurance
argues that Gibson has violated Texas law by creating confusion with the government agency, not by
creating a “potential harm to the solicited client in the form of overreaching, overcharging,
underrepresentation, and misrepresentation.” Ohralik, 436 U.S. at 461. Therefore, the attorney
solicitation cases are also inapposite.

                                                    9
  Case: 11-11136        Document: 00512037538          Page: 10     Date Filed: 10/30/2012



                                        No. 11-11136

and is no more extensive than necessary to serve that interest. Cent. Hudson,
447 U.S. at 563; Pub. Citizen, 632 F.3d at 218. The chosen regulation does not
need to be the least restrictive method for achieving the government’s goal. Bd.
of Trs. v. Fox, 492 U.S. 469, 480 (1989); Pruett v. Harris Cnty. Bail Bond Bd., 499
F.3d 403, 409 n.9 (5th Cir. 2007). A statute cannot be justified “by mere
speculation or conjecture,” Edenfield v. Fane, 507 U.S. 761, 770 (1993), and a
reviewing court is limited to a consideration of the reasons proffered by the state.
Pruett, 499 F.3d at 410.
       The court below found the law to be constitutional because its intent is to
prevent misuse of the DWC’s names and symbols. Gibson v. Bordelon, No.
5:11-CV-039-C, 2011 WL 7763787, at *4 (N.D. Tex. Oct. 31, 2011). However,
Texas concedes that it has not yet compiled the record necessary to demonstrate
satisfaction of the Central Hudson test as a matter of law. Although a factual
record is not necessarily required for Texas to demonstrate that the regulation
fits the Central Hudson test, see Pub. Citizen, 632 F.3d at 221 (noting that a
party can satisfy the second and third prongs of the Central Hudson analysis
with “‘history, consensus, and simple common sense.’”) (quoting Fla. Bar v. Went
For It, Inc., 515 U.S. 618, 628 (1995)), the district court nevertheless erred by
basing its decision on the legislative record without the benefit of briefing on this
issue. See Pruett, 499 F.3d at 410 (holding that a reviewing court is limited to
a “consider[ation of] . . . the reasons proffered by the state” in evaluating as-
applied challenges to commercial speech regulations). Because Texas has made
no serious attempt to justify this regulation as narrowly tailored to a substantial
state interest, the district court’s order dismissing Gibson’s as-applied challenge
was in error, and this case is remanded to allow Texas the opportunity to
develop additional factual findings to support the statute’s constitutionality.3

       3
              Despite this holding we do not interpret section 419.002 as covering only deceptive
commercial speech or interpret Gibson’s domain name as misleading.

                                               10
  Case: 11-11136    Document: 00512037538      Page: 11   Date Filed: 10/30/2012



                                  No. 11-11136

2. Gibson’s First Amendment Facial Challenge
      Gibson also alleges that the statute is facially unconstitutional. A movant
may bring a facial constitutional challenge if “no set of circumstances exists
under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745
(1987).   The First Amendment also permits facial challenges based on
overbreadth, meaning that the statute “may conceivably be applied
unconstitutionally,” even if the individual before the court is not himself harmed.
Fox, 492 U.S. at 484.
      We first note that the district court did not err in considering Gibson’s as-
applied challenge before reaching his facial challenge. See id. at 484-85 (“It is
not the usual judicial practice, however, nor do we consider it generally
desirable, to proceed to an overbreadth issue unnecessarily – that is, before it is
determined that the statute would be valid as applied.”). Furthermore, facial
challenges outside of the overbreadth context tend to be disfavored, as they rest
on speculation and “raise the risk of ‘premature interpretation of statutes on the
basis of factually barebones records.’” Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 450 (2008) (quoting Sabri v. United States, 541
U.S. 600, 609 (2004)). Here, Texas has made no showing that the statute is valid
as applied to Gibson. Because courts should not “anticipate a question of
constitutional law in advance of the necessity of deciding it,” we hold that it is
unnecessary to reach the merits of Gibson’s facial challenge before a
determination that the statute is valid as applied. Id. (citation and internal
quotation marks omitted).
3. Gibson’s Challenges Under the Fifth and Fourteenth Amendments
      In addition to his First Amendment claims, Gibson also alleges that the
Texas law is unconstitutional under the Fourteenth Amendment’s guarantees
of equal protection and due process, and under the Fifth Amendment’s



                                        11
  Case: 11-11136    Document: 00512037538       Page: 12   Date Filed: 10/30/2012



                                  No. 11-11136

prohibition of taking without just compensation. None of these allegations are
meritorious.
      a.    Equal Protection
      To state a claim under the Equal Protection Clause, a § 1983 plaintiff must
either allege that (a) “a state actor intentionally discriminated against [him]
because of membership in a protected class[,]” Williams v. Bramer, 180 F.3d 699,
705 (5th Cir. 1999) (citation omitted), or (b) he has been “intentionally treated
differently from others similarly situated and that there is no rational basis for
the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564
(2000). Gibson makes no allegation that this law discriminates, either facially
or in its application, against members of any protected class. Nor does he make
any serious allegation that this law has been applied to him in a manner
different from other similarly situated individuals.
      Gibson instead argues that this law subjects him to controls not placed on
similarly situated businesses or individuals. The mere fact that a law impacts
different individuals in different ways does not subject it to constitutional
challenge unless Gibson can show that Texas’s law is so extreme as to lack a
rational basis.    Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (“[U]nless a
classification warrants some form of heightened review . . . the Equal Protection
Clause requires only that the classification rationally further a legitimate state
interest.”). Unlike under Gibson’s First Amendment challenge, Texas need not
“articulate . . . the purpose or rationale supporting its classification[,]” as long
as there is a “reasonably conceivable state of facts that could provide a rational
basis for the classification.” Heller v. Doe, 509 U.S. 312, 320 (1993) (citations
and internal quotation marks omitted). It is clear from the text of the statute
that Texas’s law is intended to prevent individuals from masquerading as
representatives of the DWC or distributing information that may be
misconstrued as bearing an endorsement of the DWC. Given the complex

                                        12
  Case: 11-11136    Document: 00512037538       Page: 13    Date Filed: 10/30/2012



                                   No. 11-11136

nature of workers’ compensation law and the risks that may result from the
dissemination of misleading information in this area, Texas’s law bears a
rational relationship to a legitimate state interest. See id. at 320. Accordingly,
we affirm the district court’s dismissal of Gibson’s equal protection claim.
      b.    Due Process
      Gibson also alleges that § 419.002 deprives him of procedural due process
because there is no means or procedure for hearing, and no possibility of appeal
from a determination of a violation of that section. Gibson admits that the
regulation permits an affected party to provide a written response to the cease
and desist letter, which he did not do.
      The requirements of procedural due process are “flexible and call[] for such
procedural protections as the particular situation demands.”           Morrissey v.
Brewer, 408 U.S. 471, 481 (1972). At a minimum, due process requires that
notice and an opportunity to be heard “be granted at a meaningful time and in
a meaningful manner.” Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (citation and
internal quotation marks omitted). And the ultimate requirements of due
process are dependent on three factors:
      First, the private interest that will be affected by the official action;
      second, the risk of an erroneous deprivation of such interest through
      the procedures used, and the probable value, if any, of additional or
      substitute procedural safeguards; and finally, the Government’s
      interest, including the function involved and the fiscal and
      administrative burdens that the additional or substitute procedural
      requirement would entail.

Matthews v. Eldridge, 424 U.S. 319, 335 (1976). Gibson alleges that any
guarantee of due process is illusory because Texas is permitted, under
§ 419.004, to assess a civil penalty of $5,000 for each violation. But according to
the terms of the cease and desist letter, Texas has not threatened to impose a
civil penalty against Gibson, but rather an administrative penalty pursuant to


                                          13
   Case: 11-11136          Document: 00512037538              Page: 14       Date Filed: 10/30/2012



                                             No. 11-11136

§ 415.021.4 Under that regulation, administrative penalties “may be assessed
only after the person charged with an administrative violation has been given
an opportunity for hearing under Subchapter C.” Tex. Labor Code § 415.021; see
also § 419.005 (stating that these requirements extend to penalties for violations
of § 419.002). Subchapter C states as follows:
        If an investigation by the division indicates that an administrative
        violation has occurred, the division shall notify the person alleged
        to have committed the violation in writing of:

                (1) the charge;
                (2) the proposed penalty;
                (3) the right to consent to the charge and penalty; and
                (4) the right to request a hearing

        Not later than the 20th day after the date on which notice is
        received the charged party shall:

                (1) remit the amount of the penalty to the division or
                otherwise consent to the imposed sanction; or
                (2) submit to the division a written request for a hearing

        On the request of the charged party or the commissioner, the State
        Office of Administrative Hearings shall set a hearing. The hearing
        shall be conducted in the manner provided for a contested case
        under Tex. Gov’t Code Ann. § 2001.001 et. seq.

        An order of the commissioner is subject to judicial review under the
        substantial evidence rule.

Tex. Labor Code § 419.031, et. seq. Under the balancing test set forth in
Matthews v. Eldridge, this procedural scheme is sufficient to guarantee Gibson
due process of law. While the private interests at issue are significant ($25,000


        4
                 Section 419.004 requires the attorney general to bring an action in district court in Travis
County to collect any civil penalty assessed under that statute. Although Appellees did not expand on
the applicability of this statute, this arguably gives the defendant notice and an opportunity to be heard
prior to any deprivation, sufficient to satisfy the requirements of due process. See Eldridge, 424 U.S.
at 332-35.

                                                    14
  Case: 11-11136     Document: 00512037538    Page: 15    Date Filed: 10/30/2012



                                  No. 11-11136

or more, depending on the extent of the violation), the procedures adequately
safeguard against the risk of erroneous deprivations, especially given the
availability of judicial review. This scheme gives Gibson sufficient notice and an
opportunity to be heard prior to any deprivation, and it is difficult to determine
any additional procedures that would further reduce his risk. See Eldridge, 424
U.S. at 332-35. Accordingly, we affirm the district court’s dismissal of Gibson’s
due process claim.
      c.    Takings
      Finally, Gibson cannot succeed on his Fifth Amendment takings challenge
because his claim is not yet ripe for adjudication. A takings claim becomes ripe
only when “(1) the relevant governmental unit has reached a final decision as to
how the regulation will be applied . . . and (2) the plaintiff has sought
compensation for the alleged taking through whatever adequate procedures the
state provides.” Severance v. Patterson, 566 F.3d 490, 496 (5th Cir. 2009) (citing
Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 186,
194 (1985). Because neither of these steps has occurred in the instant case, we
affirm the district court’s dismissal without prejudice of Gibson’s takings claim.
                                CONCLUSION
      We affirm the district court’s dismissal of Gibson’s Fifth and Fourteenth
Amendment claims. We also affirm the district court’s ruling that the regulation
at issue is content-neutral and does not amount to a prior restraint. We reverse
the district court’s finding that the law is constitutional as applied to Gibson,
and remand to permit the parties to more fully develop the record on this issue.




                                       15
  Case: 11-11136    Document: 00512037538    Page: 16   Date Filed: 10/30/2012


                                 No. 11-11136

REAVLEY, Circuit Judge, concurring only in the judgment to reverse:
      The court entertains the First Amendment claim because it reads the
Texas statute to prohibit deceptive commercial speech. I see nothing in the
statute to justify that reading. The district court saw the word “misuse” in the
heading as enough to read deception into the statutory language. I have
difficulty with that and, then, with reading Gibson’s domain name as “misuse”
or as misleading.




                                      16
