Do You Want to Pass an Ordinance Regulating the Distribution of Phone Books? Not so fast says the Ninth Circuit…

Every year local governments observe an annual ritual – the door-to-door delivery of phone books, which quickly get dumped into the recycling bin.  In today’s Internet age, phone books seem to be becoming a thing of the past.  Our fingers may still be doing the walking, but they have relocated to a new neighborhood!

 Because of this annual ritual, several local jurisdictions passed ordinances that attempted to regulate the distribution of phone books.  Phone book companies, as you might expect, disliked these ordinances and challenged them in federal court.  Last month, the Ninth Circuit Court of Appeals, the federal appellate district to which Oregon belongs, agreed with the phone book companies and held that phone books are speech that have full protection under the First Amendment.

In Dex Media West, Inc. V. Seattle, the ordinance in question was a 2010 City of Seattle law that required publishers of phone books to obtain permits and pay a fee for each directory distributed in the city. It also established an opt-out registry, through which residents could decline to receive phone books. The publishers were required by the law to advertise the availability of the opt-out registry on the front covers of their phone books.  The fees paid by the publishers were intended to cover the cost of operating and promoting the opt-out registry.

 In examining the ordinance, the Ninth Circuit explained that “[a]lthough 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.”  Because of this level of protection, the ordinance was subject to the legal analysis known as strict scrutiny and was struck down by the Court as a violation of the First Amendment.

 This case is an important reminder for local governments about the far reach of free speech protections under the United States and Oregon constitutions.  Local governments are encouraged to work closely with us here at BEH before enacting regulations that might implicate free speech rights.