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.