Yellow Pages Are Free Speech, 9th Circuit Says

(CN) - The First Amendment protects yellow pages phonebooks, the 9th Circuit ruled Monday, rejecting a Seattle law that sought to limit distribution of the often thick and immediately recycled book.

Seattle had ordered Dex Seattle Metro to create an opt-out registry because distribution of its 1,344-page business directory allegedly generated about 1,300 tons of waste a year, at a cost of $190,000 to the city.

Under the 2010 ordinance, Dex had to pay a fee and obtain a permit for each directory it distributed in the city, and create a list through which residents could decline to receive the yellow pages. During hearings on the new law, numerous citizens testified that distribution of the book violated their privacy and created waste.

Dex Media West and others claimed, however, that the law violated the First Amendment and the commerce clause. U.S. District Judge James Robart ruled for the city, finding that the directory contained only commercial speech. The 9th Circuit reversed unanimously from Pasadena.

A three-judge panel found that commercial and noncommercial speech were "inextricably intertwined" in the yellow pages. Just 35 percent of the 2010 Dex Seattle Metro yellow pages contained display advertising, while nearly 100 pages were dedicated to community information and another 400 pages to business "white pages."

"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," Judge Richard Clifton wrote for the panel. "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."

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