Pat Murphy, The Daily Record Newswire
Those unwanted phone books that get dropped on your front lawn only to be tossed in the recycle bin are free speech protected by the Constitution, according to the 9th Circuit.
“Although portions of the [yellow pages] directories are obviously commercial in nature, the books contain more than that, and we conclude that the directories are entitled to the full protection of the First Amendment,” Circuit Judge Richard R. Clifton wrote in yesterday’s decision in Dex Media West v. Seattle.
This is certainly a disturbing development for those of us who hoped that some day we would see an end to this nuisance. Sure, phone books used to be a necessity. If you needed a phone number for a local business, you grabbed the local yellow pages.
That ended when all the information in the universe became available in the palm of your hand. Now phone books are a shoddy anachronism, an excuse to bury you in a mass of rain-soaked yellow advertising.
Despite the fact that we no longer want them, much less need them, every hamlet and made-up local region now seems to have its own yellow pages.
It would be nice if the books were helpful. But on those rare occasions when you actually do need them, they somehow manage to omit the number of the hardware store down the street that’s been there for 80 years.
I’ve dreamed of the day that my home town, Chesterland, Ohio, would pass a law banning the distribution of these useless directories. Perhaps an ordinance like the one Seattle, Wash. passed back in 2010.
Seattle Ordinance 123427 required publishers of yellow pages to obtain permits and pay a fee for each directory distributed in the city. The law also created an opt-out registry, permitting residents to decline to receive the pesky phone books.
Sounds like exactly what my town needs. Unfortunately, the 9th Circuit yesterday decided that the Seattle ordinance violated the First Amendment.
Naturally, immediately after Seattle passed the law, a band of yellow pages companies — Dex Media West, Inc., SuperMedia LLC, and the Yellow Pages Integrated Media Association — challenged the validity of the ordinance.
The district court turned aside the companies’ First Amendment challenge, but the 9th Circuit proved to be a more sympathetic forum.
Writing for a unanimous panel, Circuit Judge Clifton made the threshold determination that yellow pages phone books are noncommercial speech.
The judge wrote:
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.
Of course, this meant that the Seattle ordinance was subject to strict scrutiny, a standard it could not survive:
[T]he City advanced three governmental interests: (1) waste reduction, (2) resident privacy, and (3) cost recovery. 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.
So all is not lost. The court did present the option of private opt-out programs. Whether such programs are actually effective in practice may be doubtful, but it’s worth a try. Anything to end this yellow plague.
