Judge Refuses to Block Seattle’s Yellow Pages Opt-out Law — Dex Media v. Seattle

[Post by Venkat Balasubramani]

Dex Media West, Inc. v. City of Seattle, C10-1857JLR (W.D. Wash.; May 8, 2011)

I blogged a ways back about Seattle’s yellow pages opt-out law and a First Amendment challenge brought by yellow pages companies. I thought the law violated the First Amendment in several respects. (“Yellow Pages Companies Challenge Seattle Opt-out Ordinance on First Amendment Grounds.”) As of the first round at least, I’ll have to eat crow. Judge Robart rejected plaintiffs’ First Amendment arguments and denied a request brought by several yellow pages companies to enjoin application of the statute.

First, the court concludes that yellow pages are commercial speech, which is not entitled to “the highest level of First Amendment protection.” Plaintiffs argued that even if the directories constitute commercial speech, they are still deserving of a high degree of protection because the commercial and non-commercial speech in the yellow pages are ‘intextricably intertwined’. The court rejects this argument.

Using an intermediate level of scrutiny applicable to commercial speech, the court finds that plaintiffs are unlikely to succeed on the merits of their First Amendment claims. The court credits the city’s significant interests in reducing waste, protecting the privacy of its residents, and cost recovery. The court notes that the opt-in nature of the system means that the residents (and not the city) make their privacy choices vis-a-vis the yellow pages.

The court finds that the means chosen by the city to regulate the evils in question bear a “reasonable fit” to the ends. The opt-out registry provides “more than ineffective or remote support” for the city’s stated interests. [You know when the court holds the government to a “more than ineffective” standard, the First Amendment plaintiff will be out of luck.] The court also rejects plaintiffs’ argument that inclusion of the city’s required message is compelled speech because it’s more of a labeling requirement, which requires disclosure of “purely factual and uncontroversial information.”

The court didn’t discuss in detail what I thought were the two most problematic aspects of the statute: the fact that the statutory scheme singles out yellow pages and creates exceptions to satisfy local business interests and creates a licensing scheme for yellow pages.

I’m not a fan of yellow pages and promptly recycle any yellow pages that are delivered to me. I suspect many people are in the same boat. But our distaste for particular pieces of content shouldn’t necessarily result in tolerance for ill-structured attempts at regulation. Interestingly, the court finds that the city had a valid basis for singling out yellow pages, because it did so “in response to concerns raised by Seattle residents regarding the unwanted delivery of yellow pages directories.” If all that is required to single out particular categories of speech is complaints from a few citizens – as opposed to legislative findings – the government will end up having leeway to block all sorts of unpopular speech.

We’ll see what the Ninth Circuit says if the yellow pages plaintiffs appeal (no word yet if they plan to do so). Of course, at a certain point, given the travails of the paper phone book industry, this will become a moot issue.

Other coverage:

“Judge’s ruling lets Seattle residents opt out of receiving yellow pages” (Seattle Times)