9th Circuit Court Rules City Imposed Permits Unconstitutional Restraint of Free Speech

Seattle, WA – The First Amendment protects yellow pages phone books, the 9th Circuit ruled Monday, rejecting a Seattle law that sought to limit distribution of the often thick and immediately recycled book. Under the 2010 ordinance, the phone book publisher had to pay a fee and obtain a permit for each directory it distributed in the city, and create a list through which residents could decline to receive the yellow pages. During hearings on the new law, numerous citizens testified that distribution of the book violated their privacy and created waste.

Read More at Courthouse News – http://www.courthousenews.com/2012/10/15/51283.htm

This is an interesting case in regards to Ballot Measure B. The 9th Circuit Court of Appeals held that phone books are entitled to full protection under the First Amendment and therefore the “strict scrutiny” test had to be applied to the permit law. The City of Seattle argued that only the “intermediate scrutiny” test had to be applied and thus the permits helped served to reduce waste, protect the privacy of its citizens and helped the city recover the costs of disposal of the unwanted phone books. As in Ballot Measure B, the City of Seattle wanted the phone book publisher to pay a permit fee to enforce the law.

While this case is obviously not about porn it is an important case in the 9th Circuit and could be used to argue that if passed and enforced, Ballot Measure B is unconstitutional. The 9th Circuit Court of Appeal’s decision turned on the issue of whether a phone book is commercial or non-commercial speech. The Court held that even though a phone book contains ads in the yellow pages section, it is non-commercial speech and entitled to the full protection of the First Amendment. The same would hold true of pornography.

I had authored an article discussing the constitutionality of Ballot Measure B on in which I though that the law may be reviewed under the “intermediate scrutiny” test in regards to permits ( Please see: http://adultbizlaw.com/condoms-the-first-amendment/ ). However, based on the ruling in this matter it is apparent that any court reviewing Ballot Measure B on constitutional grounds would be required to use the “strict scrutiny” test. In the phone book case the 9th Circuit Court of Appeals stated;

“Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny.”). The First Amendment protects Hustler Magazine, too. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).”

If Hustler Magazine would be entitled to full protection, Hustler movies and any other studios’ movies would also be entitled to the fullest extent of protection under the First Amendment.

To read the full decision of DEX MEDIA WEST, INC. v. SEATTLE you can download the decision here;




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