By: Kolby Loft
Last October, the United States Court of Appeals for the Ninth Circuit held that yellow pages phone books, taken as a whole, constitute noncommercial speech. The court found that although the phone books display many commercial advertisements, they also provide phone listings and community information and thus go “beyond the threshold classification of commercial speech.”
The defendant in the case, the City of Seattle, had asserted the right of privacy as one justification for an ordinance that established the City’s own opt-out registry and required publishers to display a message informing recipients of the registry on their websites and on the covers of the phone books themselves. Additionally, it required publishers to pay a licensing fee and fourteen cents for each phone book distributed. After finding that the yellow pages deserved full First Amendment protection, the Ninth Circuit applied strict scrutiny review and invalidated the ordinance.
The parties recently reached a settlement that authorizes the yellow pages industry, and not the government, to maintain the opt-out program. The settlement comports with the Ninth Circuit’s opinion, which noted that the an opt-out program administered by the yellow pages industry would be a less restrictive means to further the City’s interest in waste reduction, resident privacy, and cost recovery.
The settlement strikes a balance by permitting the distribution of yellow pages, giving individuals the opportunity to opt-out (which takes about three minutes), and allowing the yellow pages industry to maintain the opt-out system.
Opponents of the opt-out system claim that most people are unaware that they can opt-out and may receive the phone books either way. However, studies suggest where opt-in is the rule only 2% of individuals will do so. Meanwhile, it appears that the yellow pages have, for now, managed to preserve at least some viability for as many as two out of three consumers in urban households. Time is probably not on the side of printed phone books, but there are sound arguments in favor of the opt-out system, especially where visibility of the opt-out program is strong and individuals are provided with a simple and reliable avenue to do so.