Court Rules Yellow Pages Are Protected Speech

from the and-landfills-groan dept

A couple of years ago, the publishers of a number of phone books in the Seattle area sued the city for passing a new ordinance that required the publishers to pay a fee and subscribe to an opt-out program. The ordinance was implemented to allow Seattle residents to opt-out of phone book deliveries and the fee was created to pay for the program. The publishers sued stating that this fee and the other regulations that came with it violated the publishers' First Amendment rights.

While we lost track of the lawsuit over the following years, it finally made its way to the Ninth Circuit Court of Appeals in which the three judge panel ruled that the city's ordinance did indeed violate the First Amendment rights of the publishers. The ruling is very thorough in defining just why the phone book is protected by the First Amendment and thus requires strict scrutiny before any regulations can be applied.

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. A profit motive and the inclusion or creation of noncommercial content in order to reach a broader audience and attract more advertising is present across all of them. We conclude, therefore, that the yellow pages directories are entitled to full First Amendment protection.

The city had argued that because the phone books are commercial speech they qualified for a more lenient scrutiny when it comes to regulation. This was argued because the publishers are in the business of selling advertising space and the phone books are the medium. However, the court ruled that neither the presence of advertising nor the financial motive of the publishers disqualified the noncommercial content, such as the phone listings and maps, from strict scrutiny under the First Amendment.

The Ordinance does not satisfy this standard. While arguing that the Ordinance survives intermediate scrutiny under Central Hudson, the City advanced three governmental interests: (1) waste reduction, (2) resident privacy, and (3) cost recovery. See Seattle Ordinance 123427 (Oct. 14, 2010) (Preamble). We need not determine whether any or all of these interests are “compelling”; even if they are, the Ordinance is not the least restrictive means available to further them. One clear alternative is for the City to support the Yellow Pages Companies’ own private opt-out programs. With proper implementation, the private opt-out programs could achieve precisely the same goals as the City’s registry. Even fining the Yellow Pages Companies for a lack of compliance with their own opt-out terms would be less restrictive than compelling them to fund and advertise the City’s program.

While most people these days get annoyed with the constant receipt of the yellow paper brick, that annoyance does not qualify the books for such regulation. As the court states, the city could have performed a number of other actions that would have met the needs of its citizens while still protecting the rights of the publishers. The publishers, perhaps in anticipation of this ordinance being passed, set up a voluntary opt-out program. The city could have instead promoted that voluntary program with its residents.

Despite this ruling, the future of the Yellow Pages still looks bleak. With the majority of people in the US and many other parts of the world now connected to the internet, owning a physical book of phone numbers has become rather pointless. The internet has changed the way people search for goods and services in such a way that the phone book can never compete. Without that ability to stay competitive, this ruling will do little good for these publishers in the long run.

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Comments on “Court Rules Yellow Pages Are Protected Speech”

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33 Comments
out_of_the_blue says:

It's, "opt-out of phone book deliveries", Mike!

Placing a large book that I don’t want — even if it’s by my mailbox — is NOT free speech, it’s littering!

YET AGAIN, the First Amendment is perverted into upholding commercial “speech” — in this instance, the right of those interests to inflict actual nuisance and harm on the public by placing a physical item: it isn’t ordinarily allowed to put stuff on the property of others, so it IS an actual harm. It’s the wrong application of First Amendment, besides continuing the insanity of corporations having more rights than “natural” persons.

And be damn glad, people, that the USPS has means to keep them and countless others from putting stuff physically in your mailbox. Bad enough the USPS stuffs it with bulk-mail crap.

Vic B (profile) says:

Re: It's, "opt-out of phone book deliveries", Mike!

“And be damn glad, people, that the USPS has means to keep them and countless others from putting stuff physically in your mailbox. Bad enough the USPS stuffs it with bulk-mail crap.”

Right…next thing will be “let’s give them a medal for their hard work”?!? USPS is very happy to see all that junk mail in our mailboxes. It’s money in their coffers and continued overpaid jobs to undereducated staff.

Michael says:

Mandate Return to Sender (paid by sender)

There should be the option to refuse delivery, including the mandate that said material must be packaged in a container which can be deposited in to a common carrier of the producer’s choice for free of charge return to the sender. (Even for copies otherwise delivered by third parties.)

Opening said package would invalidate the offer, but leaving opened packages would be defined as littering.

econoline (profile) says:

up next graffiti as protected speech

If littering hundreds of sheets of paper on my private property that I then have to dispose of is protected speech then shouldn’t spray painting a message on the side of my house be as well. In fact shouldn’t I be required to allow companies to paint a billboard on the side of my house as long as they also include a map of the area around their business? This is asinine, they aren’t being prevented from printing or distributing their “product” only from dumping it on people’s property against their will. Before I got on a do not distribute list I was receiving nearly a foot tall stack of 10-12 different yellow pages per year. I hope the ordinance will be rewritten more narrowly and rather than creating a list simply ban the dumping of paper on private property entirely.

Aliasundercover says:

Littering

Good bet a content neutral law which limits the quantity of stuff dropped off at people’s homes unasked for would survive a First Amendment challenge. It would have to key on size or weight but not message. Of course nothing else comes close in size to yellow pages so it would be easy to make the law effectively block those big bricks but not pages announcing some new take out joint or advocating for a politician.

Anonymous Coward says:

I think the judge made a good call here. Precedent for laws being enacted to prevent companies from distributing information for free would doubtless be abused by idiots to make anti-internet laws or somesuch.

That said, I also agree with everyone here that’s said the people who distribute the stupid books should be fined for littering. I say one book, one fine. If they’re determined to fill up America’s landfills, they may as well cover the costs involved.

Karl (profile) says:

The ruling is a good one

Did anyone actually read the ordinance? Yellow pages required a separate license, and one that was NOT required if you handed out phone books with only white pages in them. Certain other directories were also not affected; in fact, yellow pages were pretty obviously singled out.

I think this pretty clearly raises some free speech issues, and I think the ruling is dead on.

If it were simply a matter of an opt-out system, there really wouldn’t be a problem, IMO. “Do Not Call” registries have survived First Amendment scrutiny, and I can’t imagine a simple opt-out system wouldn’t survive as well.

Bergman (profile) says:

Given that while commercial expression is protected to a lesser degree than personal expression, if dumping a large heavy book on someone’s property against their explicit orders is not littering, then it would likewise not be littering for that person to do the same right back to the phone book company.

Nor would it be littering for a large number of individuals to do it collectively.

I wonder, would it be possible to build a sufficiently large bulwark of books around the offices of the phone book company, to prevent them from entering or leaving said offices, even through a second floor window?

Ralph-J (profile) says:

Free speech does not mean that we all have to listen

In discussions around free speech and censorship you often hear that free speech does not include the right to be listened to.

Someone exercising their free speech rights does not have the right to airtime on their desired radio/TV shows, to text placements in the publication of their choice, to a hall full of listening people.

Applying this principle here would seem to suggest that they should be allowed to produce as many yellow pages as they want, but may face lawful restrictions in distributing them door-to-door, and this wouldn’t hurt their freedom of speech.

Ralph-J (profile) says:

Free speech does not mean that we all have to listen

In discussions around free speech and censorship you often hear that free speech does not include the right to be listened to.

Someone exercising their free speech rights does not have the right to airtime on their desired radio/TV shows, to text placements in the publication of their choice, to a hall full of listening people.

Applying this principle here would seem to suggest that they should be allowed to produce as many yellow pages as they want, but may face lawful restrictions in distributing them door-to-door, and this wouldn’t hurt their freedom of speech.

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