October 15, 2012
Ninth Circuit: Yellow Pages Entitled to Strict Scrutiny as Protected Speech
The Ninth Circuit's opinion today in Dex Media West v. City of Seattle concerns a challenge to a Seattle ordinance regulating "yellow pages" phone directories for the purposes of waste reduction, resident privacy, and cost recovery of the directories.
The bulk of the panel's opinion is devoted to the issue of whether the commercial speech standard or the higher strict scrutiny standard should apply. The panel ruled that the commercial speech portions of yellow pages directories were inextricably intertwined with the noncommercial aspects AND that the yellow page directories "as a threshold matter" "do not constitute commercial speech under the tests of Virginia Pharmacy and Bolger." [Virginia Pharmacy Bd. v. Va. Consumer Council, Inc., 425 U.S. 748 (1976); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983)].
In protecting the yellow pages directories by subjecting regulations to strict scrutiny review, the panel essentially found that the divide between the yellow pages and newspapers was simply too thin:
To be sure, the Yellow Pages Companies are in the business of selling advertisements and contracted to distribute the noncommercial speech to make their advertising space more desirable due to greater directory use. But it is important to keep in mind that the First Amendment protections available to newspapers and similar media do not apply only to those institutions of the type who “have played an historic role in our democracy.” To assume that every protected newspaper, magazine, television show, or tabloid’s “noncommercial” content precedes and takes priority over the publishing parent company’s desire to sell advertising is at odds with reality and the evidence in the record.
Ultimately, we do not see a principled reason to treat telephone directories differently from newspapers, magazines, television programs, radio shows, and similar media that does not turn on an evaluation of their contents.
The panel concluded, therefore, that "the yellow pages directories are entitled to full First Amendment protection."
The panel did not consider whether any of the proferred governmental purposes were compelling because it decided the ordinance was not "the least restrictive means available to further them." It stated that Seattle could support the companies' own opt-out programs or even simply fine the companies rather than compel them to finance the city's programs. Thus, the ordinance was declared unconstitutional.
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