Dex Media West, Inc. v. City of Seattle
696 F.3d 952
9th Cir.2012Background
- Yellow Pages Ordinance 123427 (2010) requires publishers to obtain a license, pay per-book fees, and display an opt-out registry notice on front covers and within the book.
- Ordinance creates an Opt-Out Registry to reduce waste and protect privacy; penalties include fines or license loss for noncompliance.
- Yellow Pages companies challenge on First Amendment grounds, with additional Commerce Clause and state law theories.
- District court granted summary judgment for Seattle, treating directories as commercial speech under Central Hudson and upholding circumstantial fit.
- This appeal concerns whether yellow pages as a whole are fully protected by the First Amendment and if the ordinance survives strict scrutiny.
- Court holds the directories are fully protected First Amendment speech and the ordinance fails strict scrutiny, reversing and remanding for judgment in plaintiffs’ favor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are yellow pages fully protected by the First Amendment as a publication? | Yellow pages contain substantial noncommercial content; not purely commercial speech. | Directories are largely commercial speech because they include advertising and have economic motive. | Yes; yellow pages are fully protected First Amendment speech. |
| Does the Ordinance survive strict scrutiny when applied to a fully protected publication? | Even with noncommercial content, the ordinance should be narrowly tailored to legitimate ends. | The ordinance furthers waste reduction, privacy, and cost recovery with a reasonable fit. | No; ordinance fails strict scrutiny and cannot be maintained. |
| Is an alternative, less restrictive approach available to achieve the city’s goals? | Private opt-out programs could achieve the same goals without broad regulation. | Not explicitly addressed beyond ordinance validity. | Court declines to rule on alternative legality but implies less restrictive options exist. |
Key Cases Cited
- Bolger v. Youngs Drug Prods. Co., 463 U.S. 60 (U.S. 1983) (three Bolger factors for commercial speech, non-dispositive but strong)
- Virginia Pharmacy Bd. v. Va. Consumer Council, Inc., 425 U.S. 748 (U.S. 1976) (core notion of commercial speech; context of advertising)
- Riley v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781 (U.S. 1988) (mixed content; inextricably intertwined analysis motive matters)
- Board of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469 (U.S. 1989) (inextricably intertwined test applied to commercial elements)
- Central Hudson Gas & Electric Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (U.S. 1980) (test for commercial speech scrutiny)
- City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (U.S. 1993) (context of mixed commercial/noncommercial content in publications)
- S.O.C., Inc. v. County of Clark, 152 F.3d 1136 (9th Cir. 1998) (noncommercial expressive material containing ads; distribution impact)