Court Takes a Shine to Yellow Pages Publishers

     SEATTLE (CN) – The 9th Circuit seems likely to stop enforcement of a new Seattle law that lets residents opt out of receiving phone books and requires yellow pages publishers to be licensed and pay 14 cents on every delivered book.
     Last month, a federal judge granted partial summary judgment to the city, dismissing the publishers’ First Amendment and Commerce Clause claims. He separately refused their demand for an injunction.
     Directories are commercial speech, and “common sense – the touchstone of the commercial speech doctrine – dictates that the yellow pages directories should not receive the highest level of protection afforded by the First Amendment,” U.S. District Judge James L. Robart wrote.
     Dex Media West, SuperMedia and the Yellow Pages Association, which filed suit in November 2010, now want the 9th Circuit to grant an injunction pending appeal, saying the law violates their First Amendment rights.
     The publishers presented their claims for emergency relief to the three-judge appellate panel on July 13.
     The judges seemed sympathetic to the publishers’ request and saved most of their questions for the city of Seattle counsel Jessica Goldman.
     Judge Edward Korman began by asking why the new rule doesn’t apply to all junk mail.
     “There are many publications that are given out to which your ordinance doesn’t apply,” Korman said. “It only applies to the Yellow Pages. Why isn’t this a form of discrimination?”
     Judge Richard Clifton asked why “shopper”-type newspapers stuffed with ads are not addressed by the ordinance.
     “It comes twice a week,” Clifton said. “It forms a stack a whole lot bigger than the phone book and the ordinance does nothing about that and the city is apparently not going to do anything about that.”
     Goldman said she could not speak about what Seattle might do in the future, but this was a “first step.” She said that the city had a vested interest in preventing waste and protecting the privacy of residents, but the judges seemed skeptical about the privacy claim.
     “When I find these books on my doorstep, I don’t think my privacy has been violated any more than when I find a food flyer from a local restaurant or takeout place,” Korman said. “I don’t understand that argument at all.”
     Clifton said that he was also “mystified” by the privacy justification.
     “How does what Dex is doing – in attaching yellow pages to the directory – a further invasion of privacy?” he asked. “I see zero improvement of citizens’ privacy rights through this ordinance.”
     Clifton called privacy a “red herring” and said he thought the ordinance was strictly about waste.
     The judges then questioned Goldman about the publishers’ free-speech claims.
     “We need to be able to articulate a real difference between this publication and the publications which I suspect you would concede are entitled to full First Amendment protection,” Clifton said. “And I have a hard time understanding what that articulation is.”
     Goldman replied that there was an “inextricable intertwining” of commercial and noncommercial speech in the directories, and case law has shown that the phone books should not get First Amendment protection.
     “You can see that you lose if we disagree with you on whether it’s commercial speech?” Korman asked.
     David Burman of Perkins Coie, who represents the publishers, said the case was based on “content discrimination.” He said the ordinance only targets books that have listings and contact information, adding that directories are not commercial speech.
     Clifton asked Burman: “Why is it the publication that comes out in the form of the phone directory should be treated in the same way as the Seattle Times?”
     Burman said that, although there is no editorial content in the books, just “mere information,” it is still protected speech.
     “To single out one First Amendment publisher and to say they can no longer walk up to your doorstep is simply unacceptable,” Burman said.

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