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Monday, October 15, 2012

City Court of Appeals Rules Seattle's Opt-Out Phonebook Program Unconstitional

Posted by Cienna Madrid on Mon, Oct 15, 2012 at 12:01 PM

Updated with comments from council member Mike O'Brien and Neg Norton, president of the local search association.

In a ruling released today, a three-judge panel from the U.S. 9th Circuit Court of Appeals ruled that yellow pages qualify as a form of free speech, and that a 2010 ordinance passed by the Seattle City Council, establishing a resident opt-out system and imposing penalties for mis-delivered books, unduly infringes upon freedom-loving phonebook companies' ability to spread their free speech on every goddamn doorstep they so choose.

"The City of Seattle imposes substantial conditions and costs on the distribution of yellow pages phone directories," states the 26-page ruling (.pdf) of DEX MEDIA WEST, INC. v. SEATTLE, before adding:

We conclude that the yellow pages directories qualify for full protection under the First Amendment. Although portions of the directories are obviously commercial in nature, the books contain more than that, and we conclude that the directories are entitled to the full protection of the First Amendment. As a result, when we evaluate the Ordinance under strict scrutiny, it does not survive. Accordingly, we reverse the district court’s entry of summary judgment in favor of the defendants and remand for the entry of judgment in favor of the plaintiffs.

The 2010 city ordinance, championed by council member Mike O'Brien, was the first of its kind in the country to establish a resident opt-out registry for the phonebooks. More than 25 percent of households and businesses have opted out of more than 435,000 phone books, saving over 400 tons of paper. An earlier district court decision rejected the phonebook companies' challenge of it.

Neg Norton, president of the local search association and a man seemingly unfamiliar with the Internet, says that the Court’s ruling is "good news for residents who find value in the free and easy access to community information, emergency information, and local business listings that print Yellow Pages offer."

Because my first response to an emergency is, "Quick! To the yellow pages!"

“The people of Seattle also should have the right to say ‘no’ and right to privacy when unwanted yellow pages land on their doorstep," says O'Brien, who is probably sobbing into a stack of yellow pages at this very moment.

It's unclear right now what the city's next steps will be—city officials could ask for a reconsideration of the ruling, ask to have the whole panel of ninth circuit judges review the case (instead of a panel of three), or try to plead their case before the U.S. Supreme Court. "We simply don't know yet," says City Attorney spokeswoman Kimberly Mills. "We're assembling a panel of lawyers right now to read through the decision."

The City of Seattle will release a statement ~~later today~~ whenever the fuck they feel like it.

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So dumping garbage on people's lawns is protected speech.

Posted by Ben on October 15, 2012 at 12:03 PM

What? Don't I have the right to restrict your speech in my place of residence? The law wasn't about stopping or legally restricting the printing of the phone books, or even distribution of them in a "public square", but about residential distribution. I choose to not buy certain books because I don't like the content, but my decision doesn't mean those books ought to go out of print (though, if they're junk, all the better if they do). Forced distribution seems like a different animal altogether... Is my doorstep legally THAT type of public?

Posted by zobot

on October 15, 2012 at 12:08 PM

Who still buys the very expensive yellow page ads that fuel the directory industry? I'm not sure my teen-aged daughters even know what the yellow pages are. I'm one of the olds and even I haven't had a printed phone directory in my house for years. Why do advertisers continue to fork over the money for this medium?

Posted by Westside forever on October 15, 2012 at 12:11 PM

Wow. The judicial system behind the times on yet another issue. What a shocker.

Posted by pfffter on October 15, 2012 at 12:14 PM

This needs to go to SCOTUS. I'm charged for garbage and recycling: how the hell does Dex have legal protection to compel me to clean up at cost their free speech on my property?

Posted by Joe Szilagyi

on October 15, 2012 at 12:38 PM

Could you please give the Physical Address of the Court of Appeals?

I'm thinking a few tons of phone books stacked at all their entrances might cause them to reconsider this.

Posted by Will in Seattle

on October 15, 2012 at 12:40 PM

@5 for the They're Taking My Property! win.

Posted by Will in Seattle

on October 15, 2012 at 12:41 PM

By the court's logic, does that make anti-graffiti laws unconstitutional?

Posted by keshmeshi on October 15, 2012 at 12:42 PM

One of the inalienable rights of property ownership is the right to exclude whomever you want from your property. Maybe the ordinance should be rewritten so residents have the right to exclude phone book delivery people from their property.

Posted by TVDinner

on October 15, 2012 at 12:48 PM

Can we just shoot the phone book delivery people using Stand and Defend laws we have on the books in Washington State?

They're not USPS so it's legal.

Just saying.

Posted by Will in Seattle

on October 15, 2012 at 12:56 PM

I don't get it. I opted out - I expressed my speech.

Posted by CC-Rob on October 15, 2012 at 12:58 PM

What's a "Phonebook"?

Posted by easytarget on October 15, 2012 at 1:04 PM

Nobody else saw this coming?

Posted by gloomy gus on October 15, 2012 at 1:08 PM

Corporations are people, my friend!

Posted by Joe M on October 15, 2012 at 1:09 PM

Or in this case, yellow pages are people. People who get First Amendment rights.

I'm a little unclear on how exactly a business delivering things to a private doorstep violates a First Amendment right. Can someone of the legal persuasion explain what reasoning the 9th Circuit Court is using in this case?

Posted by Rain Muffin on October 15, 2012 at 1:20 PM

I don't understand how the phone book showing up unsolicited without any process for denying it is free speech, but when someone called you unsolicited, that is okay to deny? I want to be able to block things that annoy me. The phone book being one of those things, such a waste.

Posted by Verifex on October 15, 2012 at 1:36 PM

Gus, well, I saw it coming; I even posted something to that effect here when the law was passed. Not to rub it in or anything.

Rain Muffin: Reasoning? There isn't any. The Ninth Circuit is on drugs. Always has been. And not the good kind.

Posted by Fifty-Two-Eighty

on October 15, 2012 at 1:38 PM

@17, I remember! And a raft of shit flew your way for being so kind as to bring it up, if I recall. ah well.

Posted by gloomy gus on October 15, 2012 at 1:47 PM

No time to read the ruling, but I'm guessing they're saying you can't impose rules (and fees) ONLY on the Yellow Pages without extending that to EVERY publication someone might want to distribute.

The city may just have to rewrite the ordinance.

Posted by bigyaz on October 15, 2012 at 1:54 PM

@19 Hopefully they'll cast a wider net so I won't get Scientology flyers and menus for shitty Italian restaurants on my doorstep anymore.

Posted by T on October 15, 2012 at 2:05 PM

So, if Corporations are People, can I loot the mansions of the CEO and other execs who are littering on my property?

... Well?

Fair is fair.

Posted by Will in Seattle

on October 15, 2012 at 2:08 PM

@20 oh, hey, big call out and a thumbs up to Kylie's Chicago Pizza in Fremont who donated 1/3 of all proceeds to the NON-Komen breast cancer cause this past Friday! You rock!

Posted by Will in Seattle

on October 15, 2012 at 2:09 PM

What part of OPT OUT did they miss? Do not want.

Does this mean that if I have enough money I can jam MY free speech down anyone else's gullet whenever I please?

Also: Won't someone think of the TREE-Ldren!

I'll note that the Yellow Pages were produced long after the White Pages disappeared. The White Pages were far more useful to me.

Posted by treacle on October 15, 2012 at 2:23 PM

Oh hey, I didn't know free speech granted me solicitation rights, too!

Posted by erly on October 15, 2012 at 2:59 PM

The check is in the mail to someone on this decision. A useless phone book that few neither need nor want is free speech? Yeah, somebody's getting paid. If I weren't trying to be environmentally friendly, I'd say we need to gather all those hundreds and thousands of phone books left in lobbies everywhere and have a gigantic bonfire somewhere significant.

This is so funny because I remember the days of needing a phone book and having to call the phone company for one if you didn't have one delivered and sometimes they'd charge you for it.

Posted by Bauhaus I on October 15, 2012 at 3:14 PM

@TVDinner "One of the inalienable rights of property ownership is the right to exclude whomever you want from your property."

Unless you own a public place of accommodation. Then you're subject to the Civil Rights Act of 1964 and various other state and federal civil rights laws.

Posted by TheStrass on October 15, 2012 at 3:28 PM

@25, like their decisions or not (and the Ninth is the best circuit court in the country), it's silly conspiracy theory to say "somebody's getting paid."

Posted by sarah70 on October 15, 2012 at 3:51 PM

Basically they found the Yellow Pages to be noncommerical speech which puts it in the same category as things like newspapers. So that requires the City to take the least restrictive means and have a compelling interest to regulate since they are specifically targeting one type of content.

The reason being that while there is paid ad content there is also things like numbers for social services and government agencies in there plus some other noncommercial shit.

Hardly the end of the world since the phone companies already have an opt out system, though the City's was easier.

@23 Don't even need a lot of money. My stoop is often littered with religious nonsense and glossy flyers from politicians and community groups. I just throw it away and go on with my life.

Posted by giffy on October 15, 2012 at 3:59 PM

Free speech, pffft. I put a notice with the opt-out number on my building's bulletin board on a regular basis, and management ALWAYS removes the number the same day. Yeah, it's about the money; It's definitely NOT about free speech. BTW, this is in Virginia, where we have the same problem with the yellow pages ("Yellow Book") as you guys. Since everyone has The Google, the huge stack of about 500 phone books sits in the lobby smelling musty for about a month until a garbage someone is specially-hired to take them away. I think not one person takes a book back to their apartment. I know that's not the same as dumping garbage on my porch, but it is interesting that I'm even discouraged from displaying the opt-out number.

Posted by Sandiai on October 15, 2012 at 4:15 PM

@26: Yeah, I know. But we're talking about phone books being delivered to residences for the most part, aren't we? If we can exclude that, then the majority of people who are frustrated by this pox can rightfully exclude the phone book delivery person from his or her property.

Although I wouldn't put it past the companies to start shooting these out of cannons from the street, but surely we can make a public safety argument for outlawing cannons on the street.

Posted by TVDinner

on October 15, 2012 at 4:24 PM

Hey, if corporations are people, does that make Romney a murderer? Or just a grave robber?

Posted by jzimbert on October 15, 2012 at 5:25 PM

@31 well, when you own 51 percent of a Chinese corporation, I'd think the former.

Posted by Will in Seattle

on October 15, 2012 at 5:37 PM

Since they're not happy with people politely opting-out online, can we safely assume they wouldn't find it objectionable if we decided to just dump our respective copies on their doorstep whenever we please? After all, it's exactly the same behavior, only in reverse.

Posted by Knat on October 15, 2012 at 6:59 PM

Unsubscribe is unconstitutional?

Posted by internet_jen on October 15, 2012 at 7:26 PM

I'd say it's time for the Dex people to leave a bag full of cash on McGinn's doorstep.

Posted by Mister G on October 15, 2012 at 9:47 PM

@6: Would prefer one truck load of yellow pages dumped on the steps of the Court of Appeals, and one at the door of each company delivering them - in the pouring rain, of course.

Posted by cloudveil1 on October 15, 2012 at 9:48 PM

let's round them all and drop them off in the yard here.... Dex One - 3700 Pacific Highway East, Fife, WA

Posted by kylembelltown on October 15, 2012 at 11:10 PM

"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."

The big difference is that people WANT, REQUEST, or CHOOSE to watch newspapers, magazines, television programs and radio shows. Yellow Pages are put on your doorstep uninvited.

Posted by veo_ on October 15, 2012 at 11:18 PM

You know, if the Yellow Pages guys want to stand on the sidewalk in front of my apartment and yell all their phone numbers at me, I can't stop 'em. This is just about them getting to dump litter in my front yard.

Posted by balderdash

on October 15, 2012 at 11:30 PM

Silly conspiracy theory? I'm assuming you have read some American history.

By the way, if you can opt out of junk mail, why can't you opt out of essentially a thick, useless catalog of advertisements?

Posted by Bauhaus I on October 16, 2012 at 1:40 AM

I would donate to an organization whose sole purpose was to send large trucks following the phone book delivery guys, picking up every set of books they leave, and dumping them en masse on the doorsteps of the fuckers responsible.

Posted by beef rallard on October 16, 2012 at 3:24 AM

Can we just use the phone books as a boycott guide? The companies paying to advertise in those pieces of junk are what is keeping them alive.

Posted by buxy on October 16, 2012 at 10:46 AM