The City of Seattle, by ordinance adopted in 2010, requires publishers of yellow pages directories to obtain permits and pay a fee for each directory distributed in the city. It also maintains an opt-out registry through which residents can decline to receive directories. Distributors are required by the same ordinance to advertise the availability of the opt-out registry on the front covers of their directories. The fees paid by the publishers are intended to cover the cost of operating and promoting the opt-out registry. The plaintiffs – various yellow page companies – challenged the validity of the ordinance based on the First Amendment of the United States Constitution. The district court rejected the plaintiffs’ challenge and granted summary judgment in favor of the defendants, allowing the ordinance to stand.
The United States Court of Appeals for the Ninth Circuit reversed the district court’s entry of summary judgment in favor of the defendants:
- The First Amendment affords protection to both commercial and noncommercial speech. Content-based restrictions on noncommercial speech are reviewed under strict scrutiny, whereas similar restrictions on commercial speech are reviewed under a more lenient standard.
- Phone books contain components of both commercial and noncommercial speech and must therefore be evaluated by analyzing “the nature of the speech taken as a whole” to determine what level of First Amendment protection to they receive.
- Applying the applicable analytical framework, yellow pages directories receive full First Amendment protection because they include noncommercial content. A profit motive is not dispositive, since there is no principled way to distinguish yellow pages directories from newspapers and magazines.
- The ordinance does not survive strict scrutiny, as it is not the least restrictive means available to advance the government’s asserted interests (waste reduction, resident privacy and cost recovery).