Phone book ban traded free speech for less waste

Guest Opinion: Jean Godden was the lone vote against the City Council's 2010 phone book ban. Now a decision from the 9th Circuit Court of Appeals has vindicated her freedom of speech rationale.
The distribution of phone books has been targeted by environmentalists and others in much of the world: This Flickr photo from Australia has a caption mocking paper phone books.

The distribution of phone books has been targeted by environmentalists and others in much of the world: This Flickr photo from Australia has a caption mocking paper phone books. Avlxyz/Flickr

Last week, a three-judge panel of the 9th Circuit Court of Appeals threw out Seattle’s restrictions on telephone directories, finding that the books deserve full First Amendment protection under the Constitution.

While a blow to a city striving to reach Zero Waste, the decision was not unexpected by some of us who have worried that the 2010 legislation went too far in its restraints on publication.

First a little history: In 2010, the Seattle City Council adopted restrictions meant to curtail the distribution of yellow pages (publications consisting of lists of business names and telephone numbers and advertising for those businesses). The rationale for allowing homeowners to “opt-out” (i.e. ban delivery) was that the bulky books inevitably ended up in the city’s solid waste stream. If you didn’t want yellow pages, you simply added your name to the Stop Phone Books list. In addition, the initial legislation required a $148 a ton charge to yellow page publishers and a 14-cent per book recycling fee. The tonnage charge was ultimately dropped.

From the beginning, I had major concerns that the proposal possibly violated the First Amendment to the U.S. Constitution. The First Amendment has an incredible history as part of our nation’s dedication to civil liberties. It was included originally as arguably the most important element of the Bill of Rights. Sentiment for it dates from the days when George III of England taxed printers to publish. The much-despised Stamp Act – which required print materials to be produced on stamped paper made in England – was one of the root causes of the Revolutionary War (“no taxation without representation”).

Ever since, the First Amendment has been used to protect our rights to publish, speak, worship and assemble. It was the basis for vindication of the New York Times and Washington Post after those papers published the Pentagon Papers. It protected Larry Flint when he satirized Jerry Falwell.

The defining principle is that the government does not have the right to place prior restraints on publication. It is true that commercial speech (e.g. a billboard) does not have the same broad protection as noncommercial speech; however, court precedent has held it necessary to consider a publication “non-commercial” when it contains both commercial and non-commercial speech.

Writing for the unanimous Circuit Court panel, Judge Richard R. Clifton pointed out that inclusion of commercial material in newspapers, magazines and TV shows does not support treating those media with less-than-full First Amendment protection. He wrote: “The First Amendment does not make protection contingent on the perceived value of certain speech.”

I didn’t have a crystal ball when I voted against the yellow pages restriction in 2010. (It passed easily with an 8-1 vote.) Casting a dissenting vote was never an easy position for me, particularly when I was in full support of the aim of reducing waste.

But, despite wanting to keep unwanted phone books out of the waste cycle, I do become uneasy when the First Amendment is seen as an impediment or hindrance to our aims, no matter how lofty those aims are. We must be conscious of the need to give great weight to free speech protections, especially when it is inconvenient to do so. It is a slippery slope when we erode these protections, even if the change seems small or trivial at the time.

I spent the bulk of my career working at newspapers that relied on the First Amendment. The papers also depended on commercial content to pay for salaries, newsprint and ink. For that reason, I tend to leap to the defense of others who rely on the printed word to make their living. The First Amendment does not require that protection depend on the worthiness of certain speech. And, since I often dabbled in satire, I am grateful for that distinction. I may not agree with what you say, but I believe in your right to say it.


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Comments:

Posted Tue, Oct 23, 11:08 p.m. Inappropriate

The newspapers you worked for did not expect to come onto peoples' property uninvited. That is not part of free speech. I think you're misconstruing the 9th's decision, which was a narrow decision on the issue of commercial/non-commercial material.

sarah90

Posted Wed, Oct 24, 8:41 a.m. Inappropriate

Write on, Jean!

edstover

Posted Wed, Oct 24, 8:53 a.m. Inappropriate

How about the impact on small business?

Every candidate out there talks about helping small businesses prosper----the Yellow Pages are one way small businesses can reach the public in a large media market, where newspapers and electronic media are priced out of the market. These businesses have a right to speak also, on behalf of themselves!

Thanks for a thoughtful vote, Jean!

Posted Thu, Oct 25, 1:22 a.m. Inappropriate

I'm guessing you were not familiar with yellow page advertising rates. They were never cheap. I was so appalled by the billings I saw for a company where I worked, that I refused to ever to business with anyone who had a large display ad... because I knew part of the price would be coming out of my pocket.

s_calvert

Posted Wed, Oct 24, 9:10 a.m. Inappropriate

What about the trees! And clearly yellow pages and apartment finders and all the other printed glut that fouls our community doorstep are unprotected commercial speech. The court is wrong. We are not banning these commercial products, we are saying we want to have a voice in distribution and the negative ecological impacts of these endless polluters. I'm still convinced that the breakup of the 206 area code was done to triple the number of yellow page ads/books/locations. And really doesn't the internet make all this wastefully redundant?

chapala21

Posted Wed, Oct 24, 12:39 p.m. Inappropriate

Were not phone companies required by law years ago to provide free white pages as part of general telephone service?

animalal

Posted Wed, Oct 24, 8:30 p.m. Inappropriate

Under this logic, would not the carpet-bombing of people's homes with leaflets also be protected as "free speech?" What's the difference?

rjudd

Posted Sat, Oct 27, 6:51 a.m. Inappropriate

I thought Jean Godden was dead.

knlsen

Posted Sat, Oct 27, 8:37 p.m. Inappropriate

What the hell is wrong with you "knielsen"? Go be unnecessarily rude in some less dignified news blog.

noah

Posted Tue, Oct 30, 3:24 p.m. Inappropriate

Not only is Jean not dead, but she's correct on this issue.

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