Dex Media West, Inc. v. Seattle

Mixed-content publications like phone books are entitled to the full protection of the First Amendment; the commercial aspect and underlying financial motive of the publishers is not enough to classify such publications as strictly commercial speech and subject them to a lesser level of protection.

Dex Media West, Inc., SuperMedia LLC, and Yellow Pages Integrated Media Association challenged the validity of an ordinance adopted by the City of Seattle. The ordinance requires publishers to obtain permits and pay a fee per directory distributed in the City, and establishes an opt-out procedure that publishers are required to advertise. The district court granted summary judgment in favor of the City, reasoning that phone directories are strictly “commercial speech” and thus entitled to less protection under the First Amendment. As yellow pages contain aspects of commercial and noncommercial speech, the Ninth Circuit analyzed “the nature of the speech taken as a whole” to determine the appropriate level of First Amendment protection. First, the Court considered whether the yellow pages as a whole are commercial speech, focusing on three characteristics: (1) advertising format, (2) reference to a specific product, and (3) underlying economic motive of the speaker. Second, the Court evaluated whether commercial aspects of the publication are “inextricably intertwined” with otherwise fully protected speech. Under this test, the Court determined yellow pages are more than commercial speech. They are not just advertisements and do not refer to a specific product. The Court distinguished this case from others involving advertising publications, noting that the yellow pages satisfy only the factor regarding the publisher’s underlying commercial motive. The Court held that phone book companies may depend economically on advertisements, and economic motive is not sufficient for a publication to be characterized as commercial. The Court declined to distinguish phone books from other publications that combine commercial and noncommercial speech, like newspapers, based on perceived value or any other arbitrary factors. The Court held that the ordinance does not survive strict scrutiny, and as a result, violates the First Amendment. DISMISSED in part, REVERSED and REMANDED in part.