First Amendment Scores Major Victory in Seattle

Attempt to control phone directories rejected

The courts reason that commercial speech can be regulated more than noncommercial speech because government has an interest in preventing commercial harm. That’s why advertisers are not allowed to make false product claims, for example.

The Seattle ordinance, which the court overturned in mid-October, banned the distribution of “Yellow Pages phone books” in the city unless the publishers satisfied certain rules. First, the publisher had to obtain a special license.

Second, the publisher was required to pay the city 14 cents for each Yellow Pages phone book distributed within Seattle’s jurisdiction.

Finally, publishers had to comply with an opt-out registry, permitting residents to decline receipt of future phone books from the publisher.

Seattle defended its regulation by characterizing the phone books as pure commercial speech with little value to society. (Tell that to the homeowner who needs a 24-hour plumber.) Because of the high advertising content in such directories, the city asserted that the books were only entitled to a modicum of protection.

The Ninth Circuit rejected Seattle’s commercial-speech argument, concluding that phone books were not that much different than newspapers and other publications that attempt to create positive cash flow from publishing.

“The First Amendment does not make protection contingent on the perceived value of certain speech,” the court wrote, reaffirming that speech intertwined with commercial activity, such as advertising, enjoys fundamental constitutional protections.

Fortunately, the court could not find “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.”

The Ninth Circuit should be applauded for rejecting Seattle’s program of speech restrictions. If First Amendment guarantees are not applied fairly and uniformly, governments could too easily characterize unfavorable speech as “commercial” and subject it to myriad restrictions.

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